author: Mr. Justice Crow

text:
    Charles V. Smith, Administrator de bonis non of the Estate of Harry H. Hardesty, Deceased, Defendant in Error, v. Olive George Baxter, Plaintiff in Error.
    Gen. No. 7,828.
    1. Tbusts — burden of proof in suit to establish existence of trust in moneys delivered to defendant by decedent during his lifetime. In a suit to establish the existence of a trust in certain moneys delivered to the defendant by the complainant’s decedent during his lifetime, and to secure an accounting as to the same, the burden was upon the complainant to prove that the trust existed as alleged in the bill.
    2. Tbusts — degree and strength of proofs required to establish trust in moneys delivered to defendant by decedent during his lifetime. Complainant, seeking to establish a trust in certain moneys delivered to the defendant by the complainant’s decedent during his lifetime, cannot prevail unless, on consideration of all the evidence, it must be said that it not only clearly and satisfactorily supports the claim of a trust, but is inconsistent with every other reasonable claim put forward against a trust.
    3. Tbusts — necessity for showing of terms and conditions of alleged express parol trust. Where a complainant seeks to establish the existence of a parol express trust, he must support his bill by clear and satisfactory evidence, not only as to its existence, but also as to its terms and conditions.

      4. Appeal and ekrob — scope of review in equity on certificate of evidence. A court of review on appeal or error in equity regards no question in the record upon a certificate of evidence as closed, but all are open and must be determined as res integra.

    5. Trusts — sufficiency of evidence to establish express trust in moneys delivered to defendant by decedent during his lifetime. Evidence in a suit by an administrator to establish an express trust in moneys delivered»by his intestate to defendant, decedent’s sister, on the theory that it was given to her to invest for decedent, held insufficient to establish such trust, being equally consistent with an intention that the moneys .were a gift to defendant.
    6. - Gifts — presumptive gift of money delivered by brother to sister by cheek or draft payable to her. "Where money is delivered by a brother to his sister, by check or draft payable to her, in the absence of explanation the inference is that it was intended as a gift.
    7. Trusts — jurisdiction of equity of suit to establish express trust in moneys delivered to sister by decedent in his lifetime. Equity has jurisdiction of a suit by an administrator de bonis non appointed in another state seeking to establish a trust in moneys delivered to the sister of the intestate during the decedent’s lifetime, and asking an accounting therefor.
    Error by defendant to the Circuit Court of Hancock county; the Hon. Willis F. Graham, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed December 31, 1925.
    Rehearing denied February 23, 1926.
    O ’Harra, O ’Harra & O ’Harra, for plaintiff in error.
    Mack & Mack and Scofield & Bell, for defendant in error.
   Mr. Justice Crow

delivered the opinion of the court.

A decree was rendered by the circuit court finding that certain personal property in the possession of plaintiff in error was in fact the property of complainant’s intestate. It is averred in the bill that Harry H. Hardesty at his death had money invested in real estate located at Nauvoo, and other property consisting of certificates of deposit, issued by a bank for money belonging, to him at the time of his death, on deposit in the State Bank at Nauvoo. It is charged that defendant had in her possession a large amount of money which had been intrusted to her by Hardesty for investment for him, and that she invested it and at the time of his death she had in her possession, as his agent, notes, mortgage® and certificates of deposit which belonged to him; that she was his sister and sustained a relation of trust and confidence toward him and that at his death she held all said property in trust for his estate; that it was her duty to turn said property over to complainant but that she refused to do so; that the facts with reference to the amount of money so invested were unknown to complainant and that he was not advised as to the security in which the same was invested. It was averred on information that certain notes and mortgages aggregating about $20,000 were so held by defendant.

An answer was filed by Olive George Baxter, denying she held any money or the proceeds of money belonging to Harry H. Hardesty and averring that he gave her all the money in her possession formerly owned by him. It averred that he delivered to her at different times three sums of money of $5,000 each and another sum of $5,600 and that each was a gift to her and that she invested said sums and claimed and controlled them as her own, because they were given to her by her brother, and that she received and accepted said several sums as absolute and complete gifts and always thereafter held, used and controlled the money as her property and that it belonged to her and not to the estate of her brother and denied that she should be required to deliver it to the complainant as administrator of said estate. The answer makes complete denial of the agency of defendant for her brother and of every fact averred against her right in the bill and of every charge in the bill as to the right of her deceased brother in the property or any-of it. It gives a full Mstory of all her transactions with the money.

The hill was filed to the March term, 1914, and the cause was referred to a special master at the March term, 1915, of the court. At the June term, 1922, the special master’s report of the evidence was filed and by agreement it was made a certificate of evidence. The order of reference was to take and report the evidence and conclusions. The report was made with conclusions. The abstract states “the conclusions were dispensed with by order of court entered at the June term, 1922.” „ The cause was taken by the court at the October term, 1923, with a rule on defendant to file a written brief by January 1, 1924, and on complainant to file a reply by February 1, 1924. At the October term, 1924, a decree was rendered, finding the facts in favor of complainant and that defendant was the agent of her brother for investment of the money in her hands and decreeing that she should turn over to the complainant as administrator de bonis non the proceeds and accumulations of such money. The cause was again referred to the master to take and state an account and to report the notes, mortgages, certificates of deposit, securities and evidences of indebtedness, with great detail therein described, which are not necessary to be noticed for the purpose of decision. Defendant prayed an appeal to this court, which was allowed on her entering into bond in the penal sum of $40,000. The appeal was not perfected, but the record is brought here for review by writ of error.

Generally the crucial question in controversies concerning gifts is that of delivery and the quo animo it was done. In this case the fact of delivery is not an open one. Money was delivered to Mrs. Baxter by her deceased brother during his first wife’s lifetime. The total amount was $20,600 in three instalments of $5,000 each and one of $5,600. Why did Harry H, Hardesty, her brother, deliver it to her? The right of recovery predicated upon complainant’s hill is, it was delivered to her to invest for him, and therefore the complainant as administrator seeks to recover it as part of the assets of Hardesty’s estate. Mrs. Baxter denies, this claim. She does not rest upon denial, hut accounts for her possession of the money by averring it was a gift. Complainant, making the averments contained in his bill, assumed the burden of proving them as made by clear and satisfactory evidence. He asserts defendant was intrusted with decedent’s money for the purpose of investment for his use and benefit. The failure to account, therefore, involves a breach of trust and confidence, an act or series of acts of bad faith. An accounting was sought and decreed by the chancellor. Being a suit charging a trust, a bare preponderance of evidence is not sufficient to warrant a recovery. Every presumption favors the existence of good faith and fair dealing. Nothing is ever presumed against it. Therefore, if all the evidence and all fair inferences that may be drawn from it are as much or more in harmony with good faith and fair dealing on the part of plaintiff in error than with bad faith, she must prevail. Defendant in error has argued in this court as if the only question for consideration is a gift, and the burden of proof on plaintiff in error. This is a misapprehension of the case presented by the record. The burden in the case below was on him to establish the trust as he had in his bill stated it.

The evidence for and against a trust relation is direct and circumstantial. The direct evidence must be tested not only by the competency of the witnesses but by their means of knowledge, their relation to the controversy, the congruity or incongruity of the evidence with the experienced order of things and its reasonableness in respect to those' matters. The burden being on the complainant, every inference will be indulged against his claim if compatible with the defend ant’s claim. Otherwise expressed, complainant cannot prevail unless, on consideration of all the evidence, it must be said it not only clearly and satisfactorily supports the claim of a trust, but is inconsistent with every other reasonable claim put forward against a trust. The trust averred being a parol express trust, must be supported by evidence clear and satisfactory, not only as to its existence but also as to its terms and conditions. Lurie v. Sabath, 208 Ill. 401; Mahan v. Schroeder, 142 Ill. App. 538; Trubey v. Pease, 240 Ill. 513. The Maham-Schroeder case was decided by this court and affirmed by the Supreme Court in 236 Ill. 392.

A court of review on appeal or error in equity regards no question in the record upon a certificate of evidence as closed, but ah are open and must be determined as res integra. This principle is especially applicable to a case like this, where the chancellor did not see the witnesses nor hear them testify, but could be informed as to the facts only as we are informed, by the record. We must, therefore, from the record before us determine whether Harry Hardesty transmitted $20,600 to his sister for the purpose of investment for him and to account as his agent and trustee, as the bill charges.

At the threshold of this case reflection upon reading the entire record suggests, the natural inquiry, what were their relations? And why should he under the authentic facts in the record make her his agent to invest his money and account to him for it and its accretions? Mrs. Baxter was a sister of Hardesty. He lived at Minneapolis, Minnesota, and she at Nauvoo, Illinois, several hundred miles apart. He was engaged in the liquor business and had accumulated money and property. He was living with his wife, who died August 31, 1907. About two months after his wife’s death — November 4,1907 — the present Mrs. Hardesty became his housekeeper and in that relation continued until 1911, when they were married. During the interval, 1907 to 1911, she was assumed to he his wife and as such joined him in conveying property. Hardesty visited Mrs. Baxter at Nauvoo. They were on very friendly and intimate terms. He had no other brother or sister and left no child or children or descendants of child or children. The evidence offered in support of the averments of the bill consists of the testimony of Mrs. Hardesty, widow of H. H. Hardesty, Drake and Gray, attorneys for the administrator, and certain exhibits, consisting of letters and statements of moneys, interest, notes and securities written or sent by Mrs. Baxter or other persons. The evidence against the bill consists of the testimony of Schmitz, John Miller, Preston, Mr. and Mrs. Baxter, their son Harry, and Singleton.

There was much incompetent and irrelevant evidence put in the record. But the case being considered upon the whole record, must be decided as a consideration of the relevant and competent evidence, in the light of the law applicable to it, requires.

That Harry Hardesty in 1906 and 1907 sent to his sister sums aggregating $20,600 is admitted. He was a man long in business and had experience in business affairs. His sister was a housewife in a rural community and the evidence does not show she had any superior knowledge of business or any advantage he did not have. There is no evidence that investments in Hancock county were safer or that they did or could make better returns than at Minneapolis. On his visits to his sister, with whom it is conceded he was on terms of intimacy and friendship, he became acquainted with bankers in her home town. He told them he was going to send her money, make a division of his estate. His plan was to give her about half of it and retain half. As he expressed it, he was placing it so that half of it would be kept on his “side of the house.” Soon after he made that statement he sent her a draft for $5,000, drawn and payable to her. At other times he sent her like sums. The' evidence shows the total amount sent her was “about half” of what he owned. One of the bankers asked him why he did not make a will dividing his property. He replied in substance that he knew a case where property was disposed of by will and the will was broken and he intended to- avoid that. There was nothing unreasonable about that attitude. His situation at the time lends credence and force to- this version of his conduct. He was childless. Evidently he was not in good health. He had “spells” though he was attending to*his business generally. "While the evidence shows nothing worthy of credit as to his relations with his first wife, probably he knew, as human observation about such matters continually verifies, that a contest between his widow and his sister, if ground for contest were presented, would result only in distressful controversy and needless dissipation of his accumulated wealth, great or small. Whether under the laws of Minnesota his sister would be entitled to anything, we do not know. But it was his property and as an incident of ownership he had the right to dispose of it as he pleased. The evidence as to- his manner of disposition as contended by Mrs. Baxter is not unreasonable nor improbable; indeed it is highly probable. The condition produced by and attending the subsequent marriage does not diminish the probability.

The testimony of John S. Schmitz, formerly assistant cashier, and of William J. Singleton, formerly cashier, and, at the hearing, vice-president of the State Bank of Nauvoo, is replete with evidence of Hardesty’s intention to make a gift of the money to his sister. During the period from the time of the receipt by her of the first remittance to- the time of the last, Hardesty talked with them of his “family affairs,” stated he was making a gift of the money and gave his reasons for it. The testimony of Johri Miller and of Charles E. Preston of Minneapolis fully confirms the claim of gifts by Hardesty to his sister. Miller had known Hardesty many years. They lived on adjoining lots in Minneapolis for 15 years. He had known Mrs. Baxter since 1909. He had heard her brother say he was going to provide for her and look out for her as long as he lived. When Hardesty was “very sick” in 1909, witness heard a conversation between Mrs. Baxter and her brother relative to his business. She suggested to him that he was in a pretty serious condition and it would be advisable to arrange his business. He said, “Olive, you are all right, I have given you $20,000. I have enough left to take care of me.” At the time of the conversation witness was “tending bar” for Hardesty. Mrs. Baxter had gone to Minneapolis in response to a telegram in expectancy of her brother’s death. Preston had known deceased since 1886. He had worked for him “off and on” for 23 years and both had tended bar before Hardesty went into business. Witness, was with him on two occasions when he sent money to his sister. On one of the occasions when he was sending money from the Northwestern National Bank, witness asked him what was. his idea in sending money down there. His reply was, if anything happened, his sister would have it. He heard, him remark “he had sent $20,000 down there.” He remembers the fact of $5,000 being sent by New York exchange because the cashier wanted to charge him for the exchange, and he said, “You have the use of my money here and you ought not charge me for exchange.” As we might expect, these witnesses were cross-examined closely, but there is nothing unreasonable in their testimony. It is in complete harmony with every known fact not open to controversy. They were not on intimate terms with Mrs. Baxter. They knew her brother intimately. They had opportunities for knowing vital facts relevant to the transactions of Hardesty concerning his property. Nothing in the evidence discloses any hostility on their part toward Mrs. Hardesty or anything from which such an inference can reasonably be drawn.

There is no competent evidence in the record overcoming the evidence of the gift of the money by decedent to- his sister. Every circumstance and all the competent, and, so far as it can be determined from a record, the most reliable evidence supports the claim of a gift. The fact he reserved the right to the interest or an annuity, if needed, does not impair the validity of the gift. Northern Trust Co. v. Swartz, 309 Ill. 586; Martin v. Martin, 170 Ill. 18; Beatty’s Estate v. Western College, 177 Ill. 280. But the evidence shows that for two years before his death he had received no interest. It had all remained in the bank to- the account of Mrs. Baxter, or was invested in securities held by her. There is no evidence that he asked for interest. The right to interest was personal and died with the person.

One of the strongest circumstances corroborating her contention that the money sent her was a gift is the fact he permitted her to hold the notes and mortgages and other papers representing the money for more than two- years before his death without calling for them or the interest. The condition of his health was such as to admonish a prudent man to collect his worldly goods if any were outstanding if he had as worthy or more worthy objects of his bounty than his sister. He was out of business and had been for some time before his death. A circumstance relied on by complainant is that the notes and mortgages or some of them were sent to 'Hardesty and that he held them for some time. They were used as collateral security. But they were returned, and remained in Mrs. Baxter’s possession at his -death. She might lend them to him without impeaching her title to them. The fact he returned them and permitted them to- remain with her, under the circumstances, confirms the contention that they were gifts. Martin v. Martin, 170 Ill. 18 (34); Shepard v. Shepard, 164 Mich. 183. In all cases involving the question of gifts, there is no fixed method or procees for its solution except this: what was done, what were the circumstances and conduct of the parties toward the entire transaction indicating their intention? Moore v. Moore, 237 Ill. App. 190, where authorities are cited.

Complainant introduced evidence showing Mrs. Baxter did not list the notes, money and mortgages in Hancock county for taxation. The theory in the mind of counsel must have been that all people list their securities for taxation; therefore, she did not claim them. But everyday observation furnishes complete denial of the major promise and the minor, though implied, therefore, comes to naught. Solicitor for defendant seems to have been quite as guileless, for he wasted some pages of the record proving they were not listed in Minnesota by Hardesty.

We have not proceeded in the disposition of this case on the theory the suit is one to establish a gift or that it was necessary for the defendant to prove her title by gift to the property in controversy. It was not necessary for her to make such proof except to rebut the inference of a trust relied on by complainant. The theory of the bill.is that the money was delivered to her as an express trust to be invested and to account to Hardesty for the interest and income. The bill charges that by the transaction between the brother and sister, and the delivery to her of the money, a relation of trust and confidence was created; and it is sought to have an accounting for the fund and its accumulations growing out of that equitable relation. The complainant is the representative of Hardesty. He stands in his place. Whatever bound Hardesty binds him. If he were now in person making that contention, under the principles applicable as above stated, there would probably be more direct, competent and relevant evidence concerning it. We may assume upon the averments in complainant’s bill he would, if alive and making these averments, testify that he sent the money to his sister to invest for him and deliver back to him the corpus of the fund and its accumulations. There is no such evidence in this record, nor anything approaching it. If it should be said his lips are sealed and we must depend upon circumstantial evidence to establish the trust, it must be conceded. But such evidence must be adequate to the purpose. Its character of adequacy must be such as, in the first place, to establish the trust, if nothing more were said. But it must, in the second place, go further and overcome any and every other reasonable inference than that of a trust. It is this principle that invests circumstantial evidence with its probative value. The delivery of the money by check or draft to Mrs. Baxter, payable to her, is a fact susceptible of establishing more than one inference. In the absence of explanation the inference would be it was intended as a gift. The complainant puts forward that inference which charges her with the duties and obligations of a trustee. Having done so, the burden rests on him, upon elementary principles and by the authorities without dissent, to produce such evidence as clearly negatives the other conclusion quite as consistent, a gift. That has not been done. If there is doubt or uncertainty as to the inference to be drawn from the evidence, it must, under the issues, be resolved against complainant. No one testifies there was a trust agreement.

If the widow of Hardesty were a competent witness, and to the extent that she is competent, there is nothing in her testimony, not met by other evidence, establishing the averment of a trust. She says her husband told her all about his business; but that clearly is not true as a reading of the abstract alone discloses and the transcript discloses more satisfactorily, unless she has forgotten something said or done. If he had told her all about his business, the bill now before the court would not be as indefinite, uncertain and uninforming as it is. She says, too, she wrote all her husband’s letters. But she does not offer secondary evidence of their contents or any of them, and some of them must have referred to these transactions, if the theory of her bill is true. That source of evidence failing, two lawyers from Minnesota actively engaged in the conduct of the case for complainant undertook to'find some evidence to support the bill. The testimony from this source, after reading it, is regarded as the Supreme Court has characterized it, as worthy of little consideration. We forbear further comment on this point but refer to Grindle v. Grindle, 240 Ill. 145; Bishop v. Hilliard, 227 Ill. 386; Wetzel v. Firebaugh, 251 Ill. 198; Barto v. Kellogg, 289 Ill. 528. One of them in his zeal endeavored to put into the mouth, and attach to the actions, of the husband of defendant, evidence derogatory of her title. There is nothing in the case that renders any admissions or declarations by word or act of the husband of defendant competent against her claim. If competent and trustworthy, it would fall far short of establishing the theory it was supposed to establish.

A number of letters from Mrs. Baxter to her brother were in evidence, with statements relating to mortgages, notes, certificates of deposit and interest. They were put in the record probably on the theory they were accounts rendered by virtue of the alleged trust. But, like all evidence, they are to be interpreted. What do they mean? What inference shall be drawn from them? In placing an interpretation on them as instruments of evidence, they must be regarded in the light of all the other evidence and of the dual condition presented by the issues. If there were no denial of the trust relation, where parties were dealing at arm’s length, they might be regarded only as statements of the funds and their accumulations. But they were communications from a sister to, a brother, left as the remnant of a family. Their relations were more than cordial. They were as close and affectionate, the evidence shows, -as that of brother and sister ought to be. He had remembered her in a substantial way while in life, though in ill health. He had not, as he evidently supposed, left her to1 contend after his death with any one for that which was her own. He only had asked to. have the interest if he needed it. She kept him advised in-these statements as to the condition of an estate he had created for her. She was concealing nothing from such a bountiful and affectionate brother. The letters, are full of affection that finds place in the. heart of a sister and donee, but seldom, if ever, finds expression in letters of a mere trustee with a burden and no compensation. If he was to have or if he needed interest, she wanted him to Imow it was ready for him. But after all that, the moneys and securities were still in her possession in her box in the bank, the lock to which she controlled with the only key in existence. The significant fact is they could not possibly have been in her possession at his death if he had not delivered them. This delivery to and retention by her under all the circumstances is conclusive evidence of a gift. Rosengren v. Manufacturers Nat. Bank, 220 Ill. App. 608, 618, and cases cited. While some of the letters may not be clearly understood, and much in them evidently does not refer to the subject of this litigation, there is nothing in them when considered as a whole, in the light of all the other competent evidence, that supports the claim of complainant or in the least impairs the defendant’s rights to the property. Some of them, being replies to letters written to her, were not competent without introducing such letters or satisfactorily accounting for them and making satisfactory secondary proof of their contents. This was not done nor attempted to be done. Some of the letters written by Mrs. Baxter while the notes were in Hardesty’s possession refer to the collection of interest and suggest the return of the notes that interest might be indorsed. If the notes were in fact Hardesty’s she could have sent the interest and he could have indorsed the payment. This circumstance, itself, corroborates the evidence of her claim to the right of possession in some capacity other than that of mere trustee. If the interest was his, there was no occasion for her retaining it and advising him, of it when he had the note.

The last point in the brief for plaintiff in error is that a court of equity had no jurisdiction of this case. To this we do1 not assent. It is true that under chapter 3, paragraphs 82 and 84, Cahill’s Statutes, probate courts are given a jurisdiction summary in character, on petition, to compel parties having in their possession notes or other property of a decedent to disclose and surrender it. That was the course pursued in Blair v. Sennott, 134 Ill. 78. The court in that case, by Mr. Justice Scholfield, said (p. 87):

“There is no question of the death of Henry E. Tafft, or of the lawful' appointment of Martha W. Tafft as his administratrix, and there is therefore jurisdiction over the estate; and, as we have seen, the affidavit, in our opinion, sufficiently charges that appellant has money in his hands belonging to the estate, to give the court jurisdiction to inquire into the truth of the charge under the statute.”

The two cases of Martin, 170 Ill. 18, and 174 Ill. 371, arose in the same way and title to negotiable instruments as gifts was determined. The statute was intended only to provide a summary method for ascertaining the title to, and compelling restoration of, property withheld from the legal representative. Not limited in the scope of the inquiry, the court may ascertain the nature of the title of the parties and order a surrender of the property if it in fact belongs to the estate. But that course could not be followed in this case. An administrator de bonis non appointed in another State is claiming the property. No court of probate in this State had acquired jurisdiction of the subject-matter of the estate of Hardesty. But we are of the opinion a court of equity would have concurrent jurisdiction of the subject matter as presented by the bill if administration were going on here. It alleged facts that constituted a trust in the hands of Mrs. Baxter. It charged an express trust and demanded an accounting. Not relating to lands, it was not necessary the trust should be evidenced by a writing. It was competent to create it by parol agreement. The fact the complainant did not prove the allegation of a trust did not oust the jurisdiction. An accounting was sought by the bill. Taking and stating accounts relating to trust is a familiar ground for the exercise of the equitable jurisdiction. Having acquired jurisdiction upon proper averments of the bill, the court may, and should, determine the equities of the parties. .

The finding and decree of the circuit court that the money delivered to Olive George Baxter by Harry H. Hardesty was delivered for the purpose of investment by her and accounting to him is not supported by the evidence and is contrary to the evidence and equitable and legal principles applicable to it. The decree is therefore reversed and the cause remanded to the circuit court of Hancock county with directions to dismiss the bill for want of equity and to render a judgment against complainant for costs.

Reversed and remcmded with directions. ■


source: Caselaw Access Project

author: Mr. Presiding Justice Boggs

license: Public Domain

text:
    Marie Davis, Appellee, v. John R. Thompson Company, Appellant.
    1. Negligence — sufficiency of evidence to show ownership by defendant of restaurant in which plaintiff injured by slipping on floor. Evidence in action by restaurant employee for injuries due to fall on slippery floor, held to show that the restaurant was not owned by the defendant, an Illinois corporation, but by an Indiana corporation of the same name.
    2. Corporations — operation of separate corporations under identical managing officers as affecting liability of one for injuries caused by the other. The mere fact that two corporations have certain persons who are managing officers in both corporations will not, in and. of itself, render one of the corporations liable for injuries caused by the other.
    3. Corporations — sufficiency of evidence to show liability of corporation of one state for negligence of one of same name of another state. Evidence, in an employee’s action for injuries sustained by slipping and falling upon a slippery floor in a restaurant owned by an Indiana corporation of the same name as defendant, an Illinois corporation, that at the time of such injury the defendant and the Indiana corporation had the same president, secretary and assistant secretary, and that the general manager in charge of the said restaurant for the Indiana corporation also acted as general manager of other restaurants operated by the defendant, held insufficient to support a judgment against defondant for such injuries, where it was also shown that each corporation had its own pay roll and was responsible for its own accounts.
    Appeal by defendant from the City Court of East St. Louis; the Hon. William F. Bobdebs, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed.
    Opinion filed February 17, 1926.
    McGlynn & McGlynn, for appellant.
    Beasley & Zulley, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

This appeal is prosecuted by appellant to reverse a judgment in the sum of $12,500, rendered by the city court of East St. Louis in favor of appellee.

The declaration consists of two counts. The first count charges among other things that on November 14, 1924, appellant, an Illinois corporation, was possessed of and operating a certain restaurant or cafeteria at 620 Washington avenue in the City of St. Louis, Missouri; that on the second floor of said building it used and operated a certain steam counter, situated on a porcelain tile floor, which floor was in a highly polished state, and whenever water or other liquid substance was spilled thereon it created a highly slippery and dangerous condition; that there were then in use in similar establishments inexpensive devices known as rubber matting, for the purpose of covering such porcelain floors in order to make them safe for the employees to walk thereon; that the defendant negligently failed to use such rubber matting, but ordered appellee to work in and about said dangerous condition; that while in the exercise of due care for her own safety, and while carrying a stack of trays, by reason of the carelessness and negligence aforesaid, appellee’s foot slipped and she was thrown, striking the floor, injuring her spine, etc. The second count was similar to the first, with this exception: It alleged in addition to the allegations in the first count that appellant negligently suffered certain valves in the hot water pipes in said restaurant to become and remain in a wornout, broken and defective condition, to such an extent that whenever the steam and hot water was turned on, the hot water from said pipes, and condensed from said steam, ran upon the said floor, etc.

To said declaration appellant filed a plea of the general issue and three special pleas. Bach of said special pleas averred that the John B. Thompson Company, a corporation of Dlinois, sued in this case, did not own, possess or control the restaurant at 620 Washington avenue in the City of St. Louis, nor did it own, possess or control the appliances, supplies, etc., in said restaurant. To said special pleas, general replications were filed, and a trial was had, resulting in a verdict and judgment as above set forth. To reverse said judgment, this appeal is prosecuted.

While various errors are assigned on the record, the only errors we deem necessary to consider are those which raise the question as to whether appellant company possessed, operated or controlled the restaurant at 620 Washington avenue in the City of St. Louis, so as to render it liable for any injury appellee may have received therein.

Appellant on its behalf offered in evidence articles of incorporation, certified to by the Secretary of State of the State of Indiana, incorporating the John B. Thompson Company; also warranty deed to said Indiana corporation, conveying the premises known as 620 Washington avenue in the City of St. Louis, Missouri, for a consideration of $250,000; also a certificate of the Secretary of State of the State of Missouri, to the effect that the “John B. Thompson Company, an Indiana corporation, has this day registered in the office of the Secretary of State as required by law.” Appellant also offered in evidence a certificate of the Secretary of State of Missouri to the. effect that on February 8,1913, the John B. Thompson Company, an Indiana corporation, was licensed to do business in the State of Missouri, “and is at present an Indiana corporation in good standing,” and that said corporation is the only corporation of that title recorded in said State. In addition to the foregoing, other record evidence was offered showing the incorporation of appellant company in the State of Illinois.

Appellee testified in her own behalf that she “worked on this side (East St. Louis, Illinois) at Thompson’s on Collinsville avenue, 126. * * * I went to work there the first part of October (1924); I can’t say just the day. Mr. Burke hired me. He gave me the work of counter girl. I worked behind the counter, getting out orders and calling in orders. * * * "When I went to work there, I had uniform caps and aprons. They were white with the name ‘Thompson’s’ wrote across with red thread. Script. They had a white sign written in script like it was bn the aprons. The sign on the place in St. Louis was the same as over here. I worked at this place on this side about three weeks; until I was transferred over there. Three weeks until the 14th day of November, when I got hurt. I went to work over there the last part of October, 1924.”

Appellee further testified on cross-examination: “I worked there (East St. Louis) as an extra, in place of another girl. When the other girl returned I didn’t have any more work, only when somebody was laid off; could work three or four days a week. * * * It was not that I couldn’t have worked here, because another girl was laying off a few days after that, but Mr. Brown asked me if I wanted to work steady — wanted a place to work steady, and I said yes, because I sure needed it — I needed the money, and he told me to go to Thompson’s on Washington avenue and see Mr. Jerguson and tell him he sent me and he would sure put me on. I went to see him and told him Mr. Brown sent me, and he said, ‘I know; he called me up.’ ”

Appellee further offered in evidence an advertisement from the Globe-Democrat, giving a number of the large cities of the United States where Thompson’s restaurants were being conducted.

In this connection, John A. Brown, superintendent of the John R. Thompson Company, the Illinois corporation, and also superintendent of the Indiana corporation having the restaurant at 620 Washington avenue, St. Louis,'testified:.

“I had a conversation with her (appellee) concerning her going to St. Louis to work. It seems she was working, or had been working, as a counter girl over here in some other girl’s place, and she had worked, I think, two different Sundays prior to the time she went to work in St. Louis, Missouri, and the last day she worked there — or the second day — she asked if we had an opening for a counter girl in St. Louis, or if we could use her there, and I told her the best place to find that out would be over there. I told her to go over there and ask the manager if he could use her over there; her work over here was satisfactory and there was nothing to prevent her going to work there if he had an opening for her.”

William Jerguson, the manager of the restaurant at 620 Washington avenue, St. Louis, testified:

“I am manager for Thompson’s in St. Louis, at 620 Washington avenue. Not manager for all of them— just 620 Washington avenue. I have been employed there three years in that capacity. # * * The first time I saw her (appellee) she applied to me for a position; I don’t remember the exact date. It was a week or ten days before she was injured. I was in need of a counter girl and she applied to me for the position, saying she had worked extra for three days at our restaurant in East St. Louis, which qualified her as having some experience, and I told her to come back the next day and go to work.”

Appellant’s evidence is also to the effect that the John R Thompson Company, Indiana corporation, had seven restaurants in St. Louis, and that Brown was the superintendent of those seven restaurants and of the restaurant at 126 Collinsville avenue, East St. Louis; that he received one-eighth of his pay from the restaurant in East St. Louis, and seven-eighths from the restaurants in St. Louis. W. W. Walker, assistant secretary of the Thompson restaurant in St. Louis and the Thompson restaurant in East St. Louis, testified that the accounts of the Illinois corporation and the Indiana corporation were kept separate and distinct, and that the board of directors of the Indiana corporation was a separate and distinct board from that of the Illinois corporation, the Indiana board having certain members not belonging to the Illinois board; that the directors of the Indiana corporation were John B. Thompson, H. M. Henriks en and S. D. Groldenberg, and that the directors of the Illinois corporation were John B. Thompson, John B. Thompson, Jr., S. D. Groldenberg, H. M. Henriksen, C. A. McCullough, R. K. Kauffman and H. F. Nehls.

It will be observed from an examination of the declaration filed in this cause, and the special pleas filed thereto, that the direct issue is raised as to the ownership by appellant of the restaurant located at 620 Washington avenue, St. Louis. We are of the opinion and hold that the evidence on this issue clearly discloses that appellant did not own said restaurant, but that the same was owned by said Indiana corporation. As it is not averred in the declaration that appellant had so conducted its business as to estop it from denying that it was in the possession, control and operation of said restaurant at 620 Washington avenue, we would be warranted in not further considering the case. However, counsel, both for appellant and for appellee, have discussed this case and have cited authorities as though that question were in the record, and for this reason we have deemed best to give consideration to the matters presented in connection therewith, so that the parties may have the view of the court thereon.

It will be observed in this case that there is no contention that appellant was the owner of the stock of the Indiana corporation, having the restaurant at 620 Washington avenue, St. Louis. Even in cases where a corporation sued owned the whole or practically all of the stock of the corporation which caused an injury, and where such corporation, through the election of its board of directors, had the practical control of the corporation causing the injury, still, unless the corporation sued actually possessed or operated, through its board of directors, the corporation that caused the injury, or there was a joint or partnership- operation, the corporation sued has been held not liable. Proctor v. Wells Bros. Co., 262 Ill. 77; Stone v. Cleveland, C., C. & St. L. R. Co., 202 N. Y. 352, 35 L. R. A. (N. S.) 770; People’s Tobacco Co. v. American Tobacco Co., 246 U. S. 79; Carr v. U. S. Silica Co., 153 Ill. App. 511.

In Pullman’s Palace Car Co. v. Missouri Pac. Ry. Co., 115 U. S. 587, the court says:

“The two roads (Missouri Pacific and Iron Mountain Bailway Co.) are substantially owned by the same persons and operated in the same interest, but that of the St. Louis, Iron Mountain & Southern Company is in no legal sense controlled by the Missouri Pacific. * * * The Missouri Pacific Company has bought the stock of the St. Louis, Iron Mountain & Southern Company and has effected a satisfactory election of directors, but this is all. It has all the advantages of a control of the road, but that is not, in law, the control itself. Practically it may control the company, but the company alone controls its road. In a sense, the stockholders of a corporation own its property, but they are not the managers of its business or in the immediate control of its affairs. Ordinarily they elect the governing body of the corporation and that body controls its property. Such is the case here, * * *. It (the defendant) is not the corporation in the sense of that term, as applied to the management of the corporate business of the control of the corporate property.”

In Proctor v. Wells Bros. Co., supra, in discussing a question somewhat similar to the question at bar, the court at page 80 says:

“The corporations operated and were conducted as distinct and separate companies. Addison E. Wells was president of Wells Brothers Company and the vice president of Wells Brothers Company of New York. F. A. Wells was president of Wells Brothers Company of New York and vice president of Wells Brothers Company. Addison E. Wells had an office in the Monadnock block, in Chicago, and Harry L. Wells had an office in the same suite. There can be no doubt that the plaintiff here intended to sue the company by which he had been employed, or that his attorneys intended to sue that company, but they were mistaken as to what company it was, and actually sued another corporation. Misled by the similarity of name and ignorant of the existence of the other corporation, they had a summons issued against the Illinois company by its corporate name and served upon its secretary. When the plea was filed denying that the defendant was in possession or control of the premises, machinery, appliances or persons alleged in the declaration, the plaintiff in error continued to insist that the defendant was in°such possession and control and was the company by which he was employed, brought the case on for trial, and only after a jury had been impaneled did he retreat from that position.”

While the evidence discloses that appellant and the Indiana corporation at the time of the injury in question had the same president, secretary and assistant secretary, and while the evidence also discloses that the witness Brown was the general manager of the restaurant at 126 Collinsville avenue, East St. Louis, and of the seven restaurants in St. Louis, Missouri, it is further to- the effect that each corporation has its own pay roll and is responsible for its own accounts, and that the accounts of one corporation are not paid by the other.

The mere fact that two corporations may have certain persons who are managing officers in both corporations, in and of itself, will not render one corporation liable for injuries caused by the other. In Cannon Mfg. Co. v. Cudahy Packing Co., 267 U. S. 333, 69 L. Ed. 634, the Supreme Court says:

“The Alabama corporation, which has an office in North Carolina, is the instrumentality employed to market Cudahy products within the state, but it does not do so as defendant’s agent. It buys from the defendant and sells to dealers. In fulfilment of such contracts to sell, goods packed by the defendant in Iowa are shipped direct to dealers, and from them the Alabama corporation collects the purchase price. Through ownership of the entire capital stock and otherwise the defendant dominates the Alabama corporation immediately and completely, and exerts its control both commercially and financially in substantially the same way and mainly through the same individuals as it does over those selling branches or departments of its business not separately incorporated which are established to market the Cudahy products in other states. The existence of the Alabama company as a distinct corporate entity is, however, in all respects, observed. Its books are kept separate. All transactions between the two corporations are represented by appropriate entries in their respective books.in the same way as if the two were wholly independent corporations. This corporate separation from the general Cudahy business was doubtless adopted solely to secure to the defendant some advantage under the local laws.”

The Supreme Court then discusses the organization of a subsidiary corporation controlled by the parent organization and, continuing, says:

“That such use of a subsidiary does not necessarily subject the parent corporation to the jurisdiction was settled by Conley v. Mathieson Alkali Works, 190 U. S. 406; Peterson v. Chicago, R. I. & P. R. Co., 205 U. S. 364, and People’s Tobacco Co. v. American Tobacco Co., 246 U. S. 79. In the case at bar, the identity of interest may have been more complete, and the exercise of control over the subsidiary more intimate, than in the three cases cited, but that fact has, in the absence of an applicable statute, no legal significance. The corporate separation, though perhaps merely formal, was real. It was not pure fiction.”

In People’s Tobacco Co. v. American Tobacco Co., 246 U. S. 79, at page 87, the court says:

“The fact that the company owned stock in the local subsidiary companies did not bring it into the state in the sense of transacting its own business there. (Citing: Peterson v. Chicago, R. I. & P. R. Co., 205 U. S. 364; Philadelphia & R. Ry. Co. v. McKibbin, 243 U. S. 264.) As to the continued practice of advertising its wares in Louisiana, and sending its soliciting agents into that state, as above detailed, the agents having no authority beyond solicitation, we think the previous decisions of this court have settled the law to be that such practices did not amount to that doing of business which subjects the corporation to- the local jurisdiction for the purpose of service of process upon it.”

From our examination of the foregoing and other authorities, we are of the opinion and hold that the evidence in the record is insufficient to sustain a judgment against appellant for the injuries to appellee, received by her while working for the John E. Thompson Company, an Indiana corporation, at 620 Washington avenue, St. Louis, Missouri. For the reasons above set forth, the judgment of the trial court will be reversed.

Judgment reversed.


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    Mabel Fitch, Appellee, v. Monarch Accident Insurance Company, Appellant.
    1. Evidence — presumption based upon presumption. A presumption cannot be based upon another presumption.
    2. Insurance — sufficiency of evidence to show death due to bursting of blood vessel was result of strain. Where, in an action upon a policy insuring the plaintiffs decedent against death due to “a bodily injury, caused solely by external, violent and accidental means, which- did leave visible marks of contusions and wounds upon his body,” it was shown that the immediate cause of death was the bursting of a blood vessel in the left lung, evidence that immediately before his death the insured was pushing a lawn mower across a depression in his lawn, some five or six inches wide and about the same depth, held insufficient to support a judgment for plaintiff on the theory that the bursting of the blood vessel resulted from a strain in pushing the mower across such depression, where it was equally consistent with the evidence to infer that the bursting of the blood vessel resulted from a weakened condition of the walls thereof.
    3. Evidence — admissibility of testimony of physician as to visibility of wounds on body of insured, in action on accident policy. In an action upon a policy insuring against death due to “a bodily injury, caused solely by external, violent and accidental means, which did leave visible marks of contusions and wounds upon his body,” etc., wherein it was shown that the immediate cause of death was the bursting of a blood vessel in the lungs, testimony of a physician who examined the body of the insured after the accident that he observed a visible mark of a wound on the deceased, held erroneously admitted, over objection, because invading the province of the jury.
    4. Insurance — burden of proof of allegations as to cause of death, in action upon accident insurance policy. In an action upon a policy o£ insurance against death by accident, the burden is upon the plaintiff to prove the allegations of the declaration touching the cause of death, in order to warrant a recovery.
    5. Insurance — sufficiency of evidence to show death due to causes within terms of accident insurance policy. In an action upon a policy of insurance against death by accident, evidence held insufficient to show that the death of the insured was due’ to causes within the terms of the policy.
    Appeal by defendant from the Circuit Court of Marion county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed February 17, 1926.
    W. G. Murphey, for appellant; Gordon W. Gordon, of counsel.
    Charles H. Holt, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

Appellee instituted suit in the circuit court of Marion county to recover on an accident policy for the death of her husband. A trial was had, resulting in a verdict and judgment in favor of appellee for $2,000. To reverse said judgment, this appeal is prosecuted.

The principal ground relied on for a reversal of said judgment is the alleged error of the trial court in denying the motions made at the close of appellee’s evidence, and again at the close of all the evidence, to exclude the evidence and to direct a verdict in favor of appellant.

The record discloses that on May 22, 1924, the insured had been mowing his yard, and shortly before noon he came into the house, apparently quite ill. Appellee helped him to bed and a doctor was called. The insured died some fifteen minutes thereafter, from the bursting of a blood vessel somewhere in the left lung. No one saw the insured immediately prior to his coming into the house, and from that time until his death he was evidently unconscious. There was no autopsy, hut the two doctors who examined the insured both testified that there was a slight bulging over the left lung, and that blood was oozing from the mouth and nose. Other than this, there was nothing to indicate an injury to the body of the deceased. In reference to the circumstances surrounding the insured at the time in question, the evidence discloses that there was a small depression, some five or six inches in width and some five or six inches in depth, running across the yard of the insured; that some five minutes prior to the insured coming into the house, he had been seen operating his lawn mower, and evidently had pushed the mower over this depression, as it was found only a few feet past the same after the death of the insured.

The declaration declared on a policy which provided for a recovery based on “a bodily injury, caused solely by external, violent and accidental means, which did leave visible marks of contusions and wounds upon his body,” etc., “causing death,” etc. Counsel for appellee insists that, although there was no contusion, bruise, wound or dislocation externally upon the body of the deceased, that the bulging over the left lung from the collected blood, in contemplation of said policy, amounted to a visible mark, contusion or wound upon his body; while the theory of counsel for appellant is that the policy contemplates only such an injury as would leave a wound or contusion of some kind upon the exterior of the body, which would be visible to the naked eye; that the mere bulging of the lung, or the oozing of blood from the nose and mouth, was not such a bodily injury as was contemplated by the language of the policy.

It is the further contention of counsel for appellee that the bursting of said blood vessel was caused by a jar or strain, and that as there was nothing else disclosed by the evidence which could have jarred or caused said strain, it therefore must have been caused by the pushing of said lawn mower across- said depression. In other words, the whole theory of appellee’s case is based on the following presumptions: First, that the insured did receive a strain or jar from the operation of said lawn mower; and second, that said strain or jar caused the bursting of said blood vessel.

As a general proposition of law, a presumption cannot be based on a presumption. Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625-629; Condon v. Schoenfeld, 214 Ill. 226-229; Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 Ill. 96-110 [14 N. C. C. A. 224]; City of Chicago v. Carlin, 141 Ill. App. 118-121; Sertaut v. Crane Co., 172 Ill. App. 477-487; Campbell v. Centralia Gas & Electric Co., 224 Ill. App. 589-591; Klaiber v. South Side El. R. Co., 226 Ill. App. 422-429.

In Globe Accident Ins. Co. v. Gerisch, supra, the court at page 628 says:

“Several physicians were in attendance at the bedside of Gerisch, all of whom testified at the trial, * * * and give it as their opinion that some strain or external violence caused the injury which resulted in their patient’s death. This evidence is sufficient, when uncontradicted, to make out the point sought to be established by it, — that is, that Gerisch was strained or was injured by some external force. There is, however, no proof that the deceased strained and injured his body ‘by lifting a box of cinders and ashes,’ and one essential fact, — indeed, the all-important fact, — is therefore wanting in order to make out this case. If, from the fact that he lifted a box of ashes and from the further fact that he not long afterwards suffered from the effects of a strain, it can be inferred that such strain was caused by so lifting said box of ashes, the missing link in the chain will be supplied. But this presumption cannot be indulged. As we have seen, the fact upon which it is sought to base this presumption, viz., that Gerisch lifted the box, is itself but a presumption drawn from other facts in evidence, and the law is that a presumption cannot be based upon a presumption, for there is no open and visible connection between the facts out of which the first presumption arises' and the fact sought to be established by the dependent presumption. (Citing: Douglass v. Mitchell’s Ex’r, 35 Pa. St. 440; United States v. Crusell, 14 Wall. 1; United States v. Ross, 2 Otto 281.) In the case last cited it is said, in-passing upon this question: ‘Such a mode of arriving at a conclusion of fact is generally, if not universally, inadmissible. No inference of fact or of law is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed.’ ”

In order to draw an- inference that the death of the insured was caused by a strain or jar, there should be proof by direct evidence, and not by inference, that he did so receive said jar or strain. It will not suffice to presume that he received a jar or strain from the operation of the lawn mower, and then found upon this* presumption another, that said jar or strain caused the bursting of said blood vessel. The evidence in the record further tends to show that the bursting of the blood vessel may have resulted as well from a weakened condition of the walls of such blood vessel as from a jar or strain.

It is also insisted that the court erred in allowing the witness, Dr. Logan, to testify over the objection of appellant that he observed a visible mark of a wound on the deceased. This testimony on the part of the doctor, we think, invaded the province of the jury, and the court should have sustained an objection to the question. City of Chicago v. Didier, 227 Ill. 572-575; Illinois Cent. R. Co. v. Smith, 208 Ill. 608-612.

The burden of proof was upon appellee to prove the allegations of her declaration in order to warrant a recovery. This she has failed to do. For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.

Reversed cmd remcmded.


text:
    W. L. Simpson, Appellee, v. A. J. Sligar, Appellant.
    1. Justices of the peace — requisites of petition for certiorari to remove cause from justice court. A petition for a writ of certiorari to remove a cause from the court of a justice of the peace upon the grounds provided in sections 186 to 190 of the act governing justices and constables, Cahill’s St. ch. 79, 1i 178, is fatally defective unless it states facts showing the existence of the statutory prerequisites to such relief.
    2. Justices of the peace — sufficiency of petition for certiorari to remove cause from justice court. Petition for certiorari to remove cause from justice court pursuant to sections 186 to 190 of the act governing justices and constables, Cahill’s St. ch. 79, IT 178, held fatally defective in that it failed to state wherein judgment in cause was unjust and erroneous, and otherwise fell short of the requirements of the statute.
    3. Certiobabi — construction of petition for writ. A writ of certiorari is controlled by the statute, and the petition therefore is construed strictly as against the petitioner.
    Appeal by defendant from the Circuit Court of Marion county; the Hon. WiUliam B. Weight, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed February 17, 1926.
    L. B. Skipper and Charles H. Holt, for appellant.
    Wilson & Wilson, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

Appellant filed a petition in the circuit court of Marion county in August, 1924, to have brought before said court a transcript of the record in the case of W. L. Simpson v. A. J. Sligar, before S. B. Warren, a justice of the peace. The petition was presented to the master in chancery of said county and he ordered that a writ issue for the removal of said cause to said circuit court. The record was filed in the office of the clerk of the circuit court, and a motion was made by appellee to quash said writ.

The petition alleges that W. L. Simpson commenced an action against petitioner before one Bradshaw Warren, a justice of the peace of said county, to recover $96. Said petition further alleges that the said justice, after said cause was heard and said trial had been had, stated that he would not enter a judgment until certain premises belonging to appellant had been surrendered by appellee and certain rents claimed by appellant to be due from appellee had been paid; that without giving appellant any notice in reference thereto, said justice on July 1, 1924, rendered judgment against appellant for $96 and costs of suit; that appellant had no notice of the rendition of said judgment on that day, and did not learn of the same until the 9th day of August, 1924, when he was served with an execution on said judgment, that being more than 20 days after the rendition of said judgment, he had no opportunity to appeal said cause. Appellant further sets forth in said petition “that he is not indebted to the said W. L. Simpson in any sum whatsoever, and that upon, a trial of said cause it will appear that the said W. L. Simpson is indebted to your petitioner; that the said judgment is unjust and erroneous and in fraud of your petitioner’s rights, and that the judgment as rendered was not the result of any negligence on the part of your petitioner and was obtained by false representations and the statement of the justice of the peace, that no judgment would be rendered thereon at that time, but that the cause would be continued until the plaintiff, W. L. Simpson, surrendered possession of the property to petitioner and accounted for the rents, and at which time all parties would be notified so their rights might be preserved.”

Provision is made for relief by certiorari in chapter 79, paragraphs 186 to 190, in our statutes [Cahill’s St. ch. 79, [[178], It is there required that the petition shall set forth and show, upon the oath of the applicant or his agent: (1) that the judgment was not the result of negligence in the party praying the writ; (2) that the judgment, in his opinion, is unjust and erroneous, setting forth wherein the injustice and error consists; and (3) that it was not in the power of the party to take an appeal in the ordinary way, setting forth the particular circumstances which prevented him from so doing.

Our’courts have uniformly held that the three facts required by the statute must be shown by the petition, not merely alleged as a conclusion of the party. Couch v. Illinois Cent. R. Co., 213 Ill. App. 429-431, citing: Russell v. Pickering, 17 Ill. 31; First Nat. Bank of Chicago v. Beresford, 78 Ill. 391; Schmitt v. Edward Hines Lumber Co., 124 Ill. App. 319.

The petitioner must set forth and show the facts, and permit the court to draw the conclusions therefrom. If he fails to do this as to either of the three specifications of the statute, or if the facts set forth as to either of those specifications appear insufficient to support the conclusion, the petition is fatally defective, and the order for the writ should be refused, or, if granted tentatively, then the writ itself should be quashed by the court on motion for that purpose made in apt time. Horrell v. Horrell, 52 Ill. App. 477; Clifford v. Waldrop, 23 Ill. 336; Couch v. Illinois Cent. R. Co., supra, 431.

Appellant’s petition is insufficient in that it fails to state wherein the judgment rendered against him was unjust and erroneous. Said petition is further insufficient in that the allegation to the effect “that petitioner is not indebted to the said W. L. Simpson in any sum whatsoever, and that upon a trial of said cause it will appear that the said W. L. Simpson is indebted to your petitioner,” does not meet the requirements of the statute in this respect. Chicago World Book Co. v. Brewer, 57 Ill. App. 526; Couch v. Illinois Cent. R. Co., supra, 431.

Appellee calls attention to the fact that the transcript of the record filed from the justice court discloses that the claim sued on was for $296.62, whereas the judgment is only for $96, and that said transcript shows that the court allowed a set-off of $200 in favor of appellant, and that said transcript shows that said judgment was not in fraud of appellant’s rights. Without reference thereto1, an examination of the petition clearly discloses its insufficiency.

A writ of certiorari is controlled by the statute, and the petition therefore is construed strictly as against' the petitioner. Cushman v. Rice, 2 Ill. (1 Scam.) 565; Davis v. Randall, 26 Ill. 243; Schmitt v. Hines Lumber Co., supra, 320; Town of Waverly v. Kemper, 88 Ill. 579; Doan v. Sibbit, 61 Ill. 485.

For the reasons above set forth, the judgment of the trial court will he affirmed.

Judgment affirmed.


author: Mr. Justice Barry

text:
    Tako Sarpisian, Plaintiff in Error, v. Charles Mardirosian et al., Defendants in Error.
    1. Judicial and execution sales — nonconfirmation of sate as affecting liaMlity of purchaser refusing to complete purchase for deficiency. Where the successful bidder at a partition sale refused to complete her purchase, but such sale was not reported to and confirmed by the court and the master readvertised the premises, sold them, and such sale was approved by the court, there was no basis for a deficiency decree against such bidder, the want of approval of the first sale, followed by the second sale and the confirmation thereof, amounting to a rejection of the first bid.
    2. Judicial and execution sales — procedure to fix liaMlity of purchaser refusing to complete purchase. In order that a purchaser at a sale under a decree in chancery who refuses to complete his purchase may be charged with any deficiency arising from a resale there must be a report of the first sale and the refusal to complete, a confirmation, of the report, and an order on notice, With opportunity to show cause contra, to complete the purchase or in default thereof, to resell at such purchaser’s risk, and such notice is jurisdictional unless the purchaser voluntarily submits to the jurisdiction of the court.
    Error by plaintiff to the City Court of East St. Louis; the Hon. William F. Bobdeks and Silas Cook, Judges, presiding. Heard in this court at the October term, 1925.
    Reversed.
    Opinion filed February 17, 1926.
    McGlynn & McGlynn and Dan McGlynn, for plaintiff in error.
    No appearance for defendants in error.
   Mr. Justice Barry

delivered the opinion of the court.

At a master’s sale, in a partition proceeding, plaintiff in error made an offer of $3,000 which was the highest and best bid received for the premises. So far as the record shows that sale was never reported to or approved by the court. The master readvertised the premises and at a second sale the highest bid received was $2,600 and the sale was confirmed by the court. Reporting the latter sale the master informed the court of the offer made by plaintiff in error at the previous sale and of her refusal to pay the purchase price. The court entered a decree finding that by reason of her refusal to pay the amount of her bid plaintiff in error became liable to pay any deficiency arising upon a resale of the premises together with the costs and expenses occasioned thereby; that there was a difference of $400 between her bid and that received on the second sale, and that the costs and expenses of the resale were $86.38. Plaintiff in error was ordered to pay said sum of $486.38 to the master for the use of the parties entitled thereto within 30 days of the date of the decree and that in default of payment execution should issue therefor.

The decree is clearly erroneous and must be reversed. The bidder at a master’s sale merely agrees to purchase the property upon the terms named by him, if the same shall be approved by the court; and until the bid is reported and the report confirmed, the sale is incomplete and the bidder is under no obligation to complete the purchase. And although a bid may have been accepted by the master, yet if it was not reported to or approved by the court, and the master on his own motion and responsibility resells the property, the report of such resale and its approval by the court will operate as a rejection of the first bid and put an end to the liability of the bidder thereon. Dills v. Jasper, 33 Ill. 262.

Where the purchaser at a sale under a decree in chancery refuses to complete' his purchase, in order to charge him with any deficiency arising on a resale, the master should report the sale and refusal, and after the confirmation of the report, a motion should be made and notice thereof served upon the purchaser, that he be ordered to complete his purchase by a certain time, or, in default thereof, the property be resold at his risk. Hill v. Hill, 58 Ill. 239. Before making an order of resale at the purchaser’s risk, he should be called upon to show cause why he has failed to complete his purchase, and allowed an opportunity so to do. Hill v. Hill, supra. He must have notice of such an application unless he voluntarily submits to the jurisdiction of the court by answer or otherwise. Thrifts v. Fritz, 101 Ill. 457; Harrison v. Timmons, 139 Ill. 167.

As plaintiff in error was not liable, under the law, for any deficiency or for the costs and expenses of the resale of the premises the decree is reversed and the cause will not be remanded.

Reversed.


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    M. Sternberger, Appellee, v. S. Wright, Appellant.
    1. Affidavits — construction of affidavit supporting motion to vacate judgment by confession. An affidavit in support of a motion to set aside a judgment by confession must be construed strictly against the defendant.
    2. Gambling contbactS' — sufficiency of affidavit to show consideration for note was gambling debt. An affidavit in support of a motion to vacate a judgment by confession upon a note, alleging that the note was executed by the defendant for a gambling debt and no other consideration, in that it was by way of settlement of a partnership relation between the parties in the conduct of a general gambling business with cards, dice and other gambling devices prohibited by law, but containing no averment that plaintiff ever won any money or property from defendant in any game of chance, held insufficient to show that the consideration for the note was a gambling debt.
    3. Judgments — laches in seeking relief from judgment by confession. Where defendant did not move to reopen a judgment by confession and for leave to plead until more than a month after the entry of such judgment and at a subsequent term of the court, and made no showing as to the date when he first learned of such judgment, it was not error to deny the motion on the ground of laches.
    4. Judgments — sufficiency of affidavit to show meritorious defense. Affidavit in support of motion to reopen judgment by confession upon note held insufficient to show existence of meritorious defense in that consideration of instrument was gambling debt of defendant to plaintiff.
    Appeal by defendant from the City Court of East St. Louis; the Hon. William F. Bobdbks, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed February 17, 1926.
    Louis Beasley and Edward C. Zulley, for appellant.
    John C. Roberts, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.

Appellee procured a judgment by confession against appellant on April 14,1925, and the latter, on May 19, 1925, moved the court to open the same and for leave to plead. Appellant filed his affidavit in support of the motion in which he stated that he was not aware of the fact that the judgment was entered against him until he was served with an execution and that he then proceeded to use all his efforts for the purpose of employing counsel and making a defense. There was no showing as to the date of the service of the execution. The affidavit avers that the note which is the basis of the judgment “was executed by the defendant in consideration of a gambling debt and for no other consideration whatever; that this affiant and the said plaintiff, M. Sternberger, for a long time prior to the date of execution of said judgment note, engaged in a joint venture and partnership in the business of general gambling with cards, dice, and other gambling devices, prohibited by law; and that the said judgment note in question was executed by this affiant by way of .settlement of the said partnership venture and balances between the plaintiff and this affiant as a result of being engaged in the gambling business aforesaid.” The motion was overruled and the only question properly before us is as to whether the affidavit was sufficient to show a meritorious defense and due diligence on the part of appellant.

It is a well-settled rule that an affidavit in support of a motion of this kind must be construed strictly against the defendant. We cannot say that the affidavit in question shows that the consideration for the note was a gambling debt. There is no averment that appellee ever won any money or property from appellant in any game of chance. Even if the affidavit can be construed as showing that the parties jointly bet and lost money on games of chance, and that appellee paid more than his proportion thereof, and that appellant executed the note in question to adjust the difference between them, it has been held that a note given under such circumstances is a valid obligation and not a gambling debt. Brooks v. Brady, 53 Ill. App. 155; Suttle v. Finnegan, 86 Ill. App. 423; Charleston State Bank v. Edman, 99 Ill. App. 235; L. R. A. 1918C 252, and cases cited.

A motion to open a judgment by confession and for leave to plead is analogous to a motion to vacate a judgment obtained by default, and the rule as to laches in default cases is applicable. Kesner v. Truax, 195 Ill. App. 285; Freeman v. Counsell, 203 Ill. App. 333. A default will not be set aside although the defendant may show that he has a good defense, when it does not appear that he exercised proper diligence. Mendell v. Kimball, 85 Ill. 582. An application to set aside a default must show a meritorious defense, and a reasonable excuse for not having made that defense in due time. Hitchcock v. Herzer, 90 Ill. 543.

In the case at bar the judgment was entered on April 14, 1925, and the motion to open it and for leave to plead was not filed until May 19,1925, at a subsequent term of court. Appellant made no showing as to the date when he first learned of the judgment. So far as the record shows he may have had full knowledge of the fact on the day the judgment was procured. In the state of the record we cannot say that the court erred in holding that appellant failed to show a meritorious defense and that he was guilty of laches. The judgment is affirmed.

Affirmed.


author: Mb. Justice Babby

text:
    Fred Lueders et al., Appellees, v. George Darling, Appellant.
    1. Payment — sufficiency of evidence to show "bonds of corporation received by sureties as collateral security. Evidence in suit to compel contribution among sureties on notes of corporation held to show that bonds of corporation delivered to such sureties were received as collateral security and not in payment of the corporate obligation to them.
    2. Payment — sufficiency of evidence to show payment of corporate notes by sureties thereon seeking contribution. Evidence in suit to compel contribution among sureties on notes of corporation held to show that such notes were paid by the sureties seeking contribution.
    3. Suretyship — sufficiency of evidence to show insolvency of cosureties not parties to suit. Evidence in suit to compel contribution among sureties on notes of corporation held to show that certain others of such sureties, not parties to the suit, were insolvent.
    4. Suretyship — proof of nonresidence as basis for finding of insolvency of cosurety not party to suit, where insolvency only •alleged. Where in a suit by sureties upon the notes of a corporation to compel contribution from a cosurety the bill averred the insolvency of a cosurety not joined as a party, but the proof showed only that he was a nonresident, and there was no application for leave to amend the bill, the court did not err in refusing to find that such cosurety was insolvent, on the theory that in cases of this kind nonresidence is equivalent to insolvency.
    Appeal by defendant from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1925.'
    Affirmed.
    Opinion filed February 17, 1926.
    H. J. Bandy and D. H. Mudge, for appellant.
    M. R. Sullivan, for appellees.
   Mb. Justice Babby

delivered the opinion of the court.

The Howe Safety Appliance Company became financially involved and to procure funds to enable it to continue in business ten of its eleven directors assumed the responsibility of sureties on notes aggregating $39,000. Appellees are six of those who thus obligated themselves. They filed a bill for contribution against appellant averring that the money was borrowed for the corporation on the credit of the directors who signed the notes; that appellant was one of the directors who signed the same; that appellees paid all of the said indebtedness except $1,000 which was paid by director A. F. Howe; that A. F. Howe, J. T. Daniel and Ealph Kalish, who were directors and signers of said notes, and the corporation, are all insolvent. The bill prayed that appellant be required to pay appellees one-seventh (1/7) of the amount which they had paid on said notes. Issues were joined and the cause referred to the master who found and reported that the averments of the bill were true and recommended a decree in accordance with the prayer thereof. The court overruled all exceptions to the master’s report except as to the finding that Kalish was insolvent and decreed that appellant should pay appellees one-eighth (1/8) of the amount paid by them instead of one-seventh (1/7) as prayed in the bill.

The Howe Safety Appliance Company placed a trust deed upon its real estate to secure bonds for $85,000, some of which bonds were sold and the money used by the company. Others of the bonds of the face value of about $40,000 were delivered to appellees. Appellant contends that the bonds delivered to appellees were received in full payment of the amount they paid on the notes in question. The trust deed was after-wards foreclosed and the real estate sold and there was derived from such sale twelve and one-half per cent, of the mortgage indebtedness. The court credited the amount received on the bonds held by appellees on the amount they had paid on the notes in question and required appellant to pay appellees one-eighth (1/8) of the balance. It is unnecessary to set out the evidence bearing upon this question. A careful consideration of the same leads to the conclusion that the bonds were received by appellees as collateral security and not in payment of the amount paid by them.

It is argued that $14,000 of the indebtedness in question was paid to the G-ranite City National Bank from the money received on notes made to the First National Bank and that the same was not paid by appellees. The secretary-treasurer of the corporation testified positively that the notes held by the Granite City National Bank were not paid with the proceeds of the notes given to the First National Bank. Appellees testified that they paid all of the notes in question except $1,000 which was paid by Mr. Howe. We find no conflict in the evidence as to these matters and appellant’s contention in that regard cannot be sustained.

It is argued that the evidence does not show that J. T. Daniel and A. F. Howe were insolvent. Mr. Daniel testified that he was not able to pay any part of the notes and that a judgment and execution against him would not produce enough money to pay any part thereof. Mr. Howe testified that he could not raise any more money and that he had no property out of which his share of the notes could be collected. In the absence of evidence to the contrary we are satisfied that the showing was sufficient to establish prima facie that these parties were insolvent.

Appellees have assigned cross errors to the effect that the court erred in refusing to find that Ralph Kalish was insolvent. They insist that he was shown to be a nonresident and that in a case of this kind non-residence is equivalent to insolvency. It may be that an allegation and proof of nonresidence would have entitled appellees to recover a greater amount from appellant, but the bill averred that Kalish was insolvent and did not aver that he was a nonresident. There was no proof of his insolvency, but it was shown that he was a nonresident. A complainant in chancery cannot avail himself of any claim established by the proof which has not been alleged in his bill. Millard v. Millard, 221 Ill. 86. Appellees did not ask leave to amend their bill. The cross errors cannot be sustained.

No reversible error appearing in the record the judgment of the circuit court is affirmed.

Affirmed.


text:
    Theodore E. Kircher, Appellant, v. Charles P. Hamill and Carl W. Schuchardt, Appellees.
    1. Appeal and error — orders from which appeal lies. An appeal lies only from a final order, judgment or decree except in such cases as are expressly authorized by statute.
    2. Appeal and error — decision on demurrer as interlocutory. An order sustaining or overruling a demurrer to a bill, declaration or petition is merely interlocutory.
    3. Appeal and error — consent as basis for jurisdiction to review interlocutory order. The Appellate Court has no power to enter judgment on the merits where the judgment appealed ■from is not final, even though the parties consent, but should dismiss the appeal of its own motion, at the cost of the appellant, for want of jurisdiction.
    4. Appeal and error — determination as one of several parties as basis for appeal. An order dismissing a bill as to a part of the defendants therein is not a final order, and cannot be appealed from until final disposition of the cause as to all parties, except where great hardship or injustice will result from a denial of such an appeal.
    5. Appeal and error — order allowing plea to jurisdiction by one of several defendants as basis for appeal. The Appellate Court is without jurisdiction to entertain an appeal from an order allowing a plea to the jurisdiction by one of several defendants to a bill for contribution, where, so far as the record shows, there has been no decree dismissing the bill as to either of such defendants.
    Appeal by plaintiff from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1925.
    Appeal dismissed.
    Opinion filed February 17, 1926.
    Turner, Holder & Burlington, for appellant.
    J. Kent Greene and F. J. Tecklenburg, for appellee Carl W. Schuchardt.
   Mr. Justice Barry

delivered the opinion of the court.

Appellant sought to enforce contribution by bill in equity. One of the appellees answered the hill and the other filed a plea to the jurisdiction of the court. The plea was set for argument and. thereafter the court entered the following orders:

“Now on' the 21st day of February, A. D. 1925, the plea to the amended bill filed herein having been set down for argument and the court having carefully considered said plea, it is ordered by the court that said plea be and it is- allowed.
“Now on the 13th day of March, A. D. 1925, from the order of this court allowing plea to complainant’s bill, plaintiff prays an appeal to the Appellate Court in and for the Fourth District of the State of Illinois which is allowed upon entering into bond in the sum of $200.00 with surety to be approved by the clerk of this court in 30 days.”

The practice does not permit demurrers to pleas to bills in chancery. If the complainant thinks the plea insufficient, instead of demurring he has it set down for argument as to its sufficiency. By doing this he admits the truth of the matters averred in the plea but denies they are sufficient in law, to bar the relief sought. If the plea is held good he may then reply to it denying the truth of its allegations. If he does not reply, a decree will be entered dismissing the bill. Perry v. United States School Furniture Co., 232 Ill. 101. So far as the record shows, there was no decree dismissing the bill as to either of appellees and the cause is still pending in the circuit court.

An appeal lies only from a final order, judgment or decree except in such cases as are expressly authorized by statute. An order sustaining or overruling a demurrer to a bill, declaration or petition is merely interlocutory and no appeal lies therefrom, as to justify an appeal there must be a final order or decree in a chancery suit, or a final judgment in a suit at law. To be appealable, the order, judgment or decree must contain language to the effect that the party take nothing by the writ or that the defendant go hence without day. People v. Board of Education, 236 Ill. 154; Smith v. Dellitt, 244 Ill. 75; Franklin County v. Blake, 257 Ill. 354; People v. Chicago, B. & Q. R. Co., 306 Ill. 166.

If the judgment appealed from is not final the Appellate Court should dismiss the appeal, of its own motion, at the cost of the appellant for want of jurisdiction of the subject matter, and has no power to enter judgment on the merits although the parties make no objections. Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200.

Even if the court had entered an order or decree dismissing the bill as to the appellee who filed the plea, the order would have been interlocutory and appellant could not appeal until there was a final disposition of the cause as to the other appellee. Foote v. Yarlott, 238 Ill. 54. An order dismissing a bill as to part of the defendants is not a final order and cannot be appealed from until there has been a complete disposition of the cause as to all parties, except where great hardship' or a denial of justice will result from not allowing an appeal. Dreyer v. Goldy, 171 Ill. 434. When an appeal has been taken from such an order the appeal should be dismissed by the court of its own motion. People v. Banks, 285 Ill. 137.

Under the foregoing authorities this court is without jurisdiction of the subject matter and the appeal is dismissed at appellant’s costs.

Appeal dismissed.


author: Mr. Justice Higbeb

text:
    The People of the State of Illinois, Defendant in Error, v. Harley Hill, Plaintiff in Error.
    1. Intoxicating ucquoks — sufficiency of evidence to sustain verdict of unlawful sale. Evidence in prosecution under Prohibition Act held to sustain verdict against (defendant charged with unlawful sale.

      2. Witnesses — discretion of court as to admission of impeaching testimony. The admission of testimony to impeach the general reputation for veracity of a witness in a prosecution under the Prohibition Act is largely a matter of discretion with the trial court.
    3. Intoxicating liqtjoes — necessity to negative right of sale under permit in count for sale for "beverage• purposes. Where a count of an information under the Prohibition Act charged a sale of liquor “for beverage purposes,” it was not error to refuse to quash the count because failing to negative a right of sale “under a permit,” since the Act does not authorize the issuance of a permit to sell for beverage purposes.
    Error by defendant to the County Court of Perry county; the Hon. J. G-. Van Keueen, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed February 17, 1926.
    L. A. Cranston, for plaintiff in error.
    Judson E. Harriss, for defendant in error.
   Mr. Justice Higbeb

delivered the opinion of the court.

Plaintiff in error, Harley Hill, was found guilty of a violation of the Illinois Prohibition Act [Cahill’s St. ch. 43] in the county court of Perry county under an information which originally consisted of two counts. To the first the State’s Attorney, on the trial, entered a nolle prosequi. The second count charged that the said Harley Hill, on the 9th day of May, 1924, “did then and there unlawfully sell intoxicating liquor, said act of the said Harley Hill in making said sale of intoxicating liquor being then and there prohibited and unlawful and in violation of the provisions of the Hlinois Prohibition Act; said intoxicating liquor being for beverage purposes and fit for use for beverage purposes and not wine for sacramental purposes and not denatured alcohol or denatured rum used as provided by law nor vinegar'or preserved sweet cider and said intoxicating liquor so sold as aforesaid not then and there having been sold on a prescription of a physician, contrary,” etc.

Plaintiff in error was found guilty by a jury under the second count of the information and sentenced to pay a fine of $400 and stand committed to the county jail until fine and costs were paid. Two witnesses for the State, who appear to have been employed by the State’s Attorney and other officers of Perry county, testified to having made purchases of intoxicating liquor known as “white mule” of plaintiff in error on the date named in the information at a “soft drink” place operated by him in the City of DuQuoin in- said county. Plaintiff in error swore that he never made the sales testified to by said witnesses for the State. A witness for him named Siebenschuh swore that he saw one of the witnesses for the State, John Franklin, in Hill’s place at one time, did not know what day it was, and on that occasion Franklin was refused liquor when he asked for a drink. In addition to this testimony plaintiff in error introduced several witnesses, some of whom testified to facts tending to contradict a statement of one of the State’s witnesses, Franklin, that there were a number of chickens in boxes in the room when he purchased the liquor. By his other witnesses he sought to impeach the general reputation of the State’s witnesses for truth and veracity. The evidence, as a whole, appears to us to have clearly sustained the verdict of the jury.

Plaintiff in error complains that the testimony of one of his impeaching witnesses who had known Franklin some 12 or 13 years before was not admitted by the court. This, under the circumstances, was largely a matter of discretion with the court and we cannot say that such discretion was abused in the refusal to admit said testimony. The principal contention of plaintiff in error appears to be that the second count of the information is defective because it does not negative the right of sale “under a permit” and that therefore Ms motion to quash this count should have been sustained. This contention must fall for the reason that the second count of the information clearly charges that the liquor in question was sold for beverage purposes, and under the Prohibition Act of tMs State no one is given the right to issue a permit to sell intoxicating liquor for beverage purposes. While the Attorney G-eneral is given the right to issue permits for the sale of intoxicating liquors, in certain cases for nonbeverage purposes, he cannot issue such permits for the sale of the same for beverage purposes.

The record discloses no reason calling for the reversal of the judgment in this case and the same is therefore affirmed.

Affirmed.