text:
    M. L. Munie, Appellee, v. Harry Millner et al., trading as Millner Brothers Tire & Vulcanizing Company, Appellants.

    1. Nuisances — how equity may relieve against. Courts of equity have power to give relief against public or private nuisances by compelling abatement or restraining continuance.
    2. Nuisances — when equity will not intervene. Equity will use its power with caution to relieve against nuisances and if there is a substantial dispute over law or facts will not intervene until after a trial at law is had.
    3. Nuisances — when equity will intervene without prior legal decision. When there is no reasonable doubt that one has a right to relief against a nuisance or that a nuisance per se exists, equity will grant relief without requiring a prior resort to legal action.
    4. Nuisances — when legitimate businesses become. A legitimate business which becomes so offensive, judged by the feelings of ordinary persons, as to materially interfere with ordinary physical comfort, will be enjoined as a nuisance.
    5. Nuisances — what conduct of garage constitutes. Excessive glare . of electric lights, operation of an open-air garage, and racing engines and starting trucks outdoors, all in the nighttime close to dwelling houses, constitutes a nuisance which will be restrained by equity.
    6. Nuisances — what conduct of garage does not constitute. The operation of a tire press, of a vulcanizing machine, the sale of tires and accessories, and the .operation of a filling station, all between the hours of. 10 p. m. and 6:30 a., m., even near dwelling houses, held not such nuisances as chancery will enjoin.
    Appeal by defendants from the Circuit Court of St. Clair county; the Hon. G-eorge A. Crow, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded with directions.
    Opinion filed March 10, 1924.

      Turner, Holder & Burlington, for appellants.
    Keefe, Baxter & Miller, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

Appellee filed a hill in the circuit court of St. Clair county, at the April term, 1923, to restrain appellants from operating their gasoline and oil filling station, tire repair shop and open air garage, and from operating their high-power incandescent electric lights in connection with said business, on the ground that such operations constituted a nuisance. A temporary injunction was issued as prayed. Thereafter the bill was amended and an answer was filed thereto by appellants and a hearing was had in open court. On said hearing, the trial court entered.a decree modifying said temporary injunction to the extent of permitting appellants to operate their said business from 6:30 a. m. to 10 o’clock p. m., of each day. To reverse said decree, appellants prosecute this appeal.

The record discloses that appellants’ business is located at the northeast corner of the intersection of Eighth Street and St. Louis Avenue, in the city of East St. Louis, and fronts on said avenue. Approximately 20 feet east of appellants’ property is appellee’s two-story frame dwelling. Continuing east on the same side of the street to the next cross street are dwelling houses, while across the street on the opposite corner is a soft-drink parlor, and the remainder of said block is occupied by a grocery store and a number of residences. The vicinity in question is shown to be a business and residential district, the majority of the buildings being residences.

It is contended by appellants for a reversal of said judgment that the business operated by them is not a nuisance per se, and that the operation of the same between the hours of 10 o’clock p. m. and 6:30 o’clock a. m., as shown by the evidence, does not constitute a nuisance.

In appellants’ tire shop there is a tire press, being a large machine operated by electric power, and a vulcanizing machine, together with such other materials and equipment as are ordinarily found in such repair shops. Appellee testified that loud and unusual noises came from appellants’ tire shop, which were by him attributed to the operation of said tire press, Avliich he testified caused his dwelling to tremble and vibrate, creating such a noise and disturbance that the occupants of his dwelling could not sleep and rest at night; that the noise from emery Avheels and the vulcanizing machine used by appellants contributed to such disturbance. He further testified that his household Avas also disturbed by the changing of tires in the open-air garage of appellants, immediately adjacent to his premises, by the noises from pounding and hammering on said tires and rims. He further testified that the running in and out of the service truck or trucks of appellants, immediately adjacent to his premises, the racing of automobile engines and loud, boisterous and profane conversations and language in and about said premises of appellants, at all times of the day and night, contributed to the disturbance and discomfort of the occupants of his dwelling. Further, complaint was made by appellee that there were something like 29 incandescent electric lights of high candle-power Avhich burned practically all night, causing the AvindoAvs of appellee’s dwelling to be flooded Avith light to such an extent that the occupants of said dwelling could not rest at night without pulling doAvn the shades, thereby shutting out the air, to the great inconvenience of appellee and said occupants.

Four Avitnesses, in addition to appellee, testified on his behalf. Three of said witnesses resided on appellee’s premises, and the other resided on the opposite side of said filling station and about fifty (50) feet therefrom. All of said witnesses testified, in effect, that the operation of said lights by appellants and said open-air garage with the noises incident to changing tires, and the racing of engines, disturbed their peace and quiet so that they could not get their proper rest at night. Only two of said witnesses corroborated appellee with reference to noises caused by the operation of said tire press, vulcanizing machine and emery wheels. The cross-examination of appellee and said witnesses disclosed that none of them had ever, in fact, seen any of said machinery in operation. It was therefore a conclusion on their part as to the source and cause of the noises which they testified to having heard.

Bight witnesses testified on behalf of appellants. All of said witnesses testified that no noise, except a slight grinding clicking of the gears, which could not be heard outside the building unless the doors were opened and a person was standing near the same, came from the operation of said tire press, and that no vibration resulted therefrom. Practically all of said witnesses testified that the operation of the vulcanizing machine caused no perceptible noise. Both of the appellants, and the mechanic who worked for them, testified that said tire press had never been operated at night, except on one occasion when a test was made as to whether or not its operation produced any vibration. Appellants both testified that they had never, during the time in question, operated an emery wheel in said building. Certain of appellants ’ witnesses resided near their place of business, and they all testified to the effect that no disturbing noises resulted from the operation of the same.

The chancellor’s specific findings had only to do with the matter of the lights and the noises emanating from the operation of the open-air garage, the racing of engines, etc. Such findings were followed by the general finding “that the operation of any and every part of the defendants’ said business, including the high-power electric lights after 10 o’clock p. m., standard time, and before 6:30 a. m., standard time, on any day, constitutes and is a nuisance. ’ ’

11 Courts of equity have power to give relief, whether against public or private nuisances, by compelling their abatement or restraining the continuance of their existence. This jurisdiction ivas not an original one and is of comparatively recent origin.- The general rule is that it is exercised sparingly, with caution, and only in extreme cases, — at least until after the right and the question of the nuisance have first been settled at law.” City of Pana v. Central Washed Coal Co., 260 Ill. 111-122; 29 Cyc. 1219. If there is a substantial dispute as to the facts or law, and the question is in doubt, a trial at law will be required before equity will intervene. 1 Pomeroy Eq. Rem., sec. 542; City of Pana v. Central Washed Coal Co., supra. The general rule, formerly strictly enforced, was that a court of equity would not interfere to restrain a nuisance unless the right so to do was first established in a court of law; but this rule has been somewhat relaxed in modern times, and when the case is clear, so as to be free from substantial doubt as to the right to relief, or it is evident that a nuisance per se exists, equitable relief may be granted without first resorting to an action at law. Village of Dwight v. Hayes, 150 Ill. 273, 1 High Inj. (3d Ed.), sec. 748; 29 Cyc. 1230; City of Pana v. Central Washed Coal Co., supra, 124; Wahle v. Reinbach, 76 Ill. 322, 327. Applying these principles to the issues involved in this case, we are of the opinion and hold that the order enjoining the operation of the whole of appellants’ business between the hours of 10 o’clock p. m. and 6:30 o’clock a. m. was too broad. The evidence wholly fails to support the injunction issued so far as the operation of the tire press, the vulcanizing machine, the sale of tires and accessories, and the operation of the filling station is concerned. The findings of the chancellor, to the effect that the lighting system maintained by appellants and the operation of their open-air garage between the hours of 10 o’clock p. m. and 6: 30 o’clock a. m. constitute, a nuisance, are clearly supported by the evidence. As to the operation of appellants’ service trucks during the time in question, we are of the opinion that appellants should also be restrained from starting the engines on said-trucks near appellee’s residence. The racing of the engines in connection therewith would necessarily be disturbing to the rest of the occupants of said dwelling, and said service trucks should be kept within appellants ’ garage and the engines started therein, when used at night. If this were done, the noises resulting therefrom would not be disturbing to the ordinary person outside of said garage building. It is contended by counsel for appellants that the business conducted by appellants is a legitimate business, and that the disturbance resulting therefrom is a necessary incident of such business, and that no part thereof should be enjoined, either day or night.

It does not necessarily follow that because a man’s business is a legitimate business that its operation, under certain circumstances, may not be such as to amount to a violation of the rights of others, to such an extent that it may be enjoined. In Phelps v. Winch, 309 Ill. 158, the court, at page 163, in quoting from the case of First M. E. Church of City of Cape May v. Cape May Grain & Coal Co., 73 N. J. Eq. 257, says: “While defendant is entitled to the enjoyment of its property in the pursuit of a lawful business, that business must be conducted with due regard to the well-recognized rights of surrounding property owners. When such business becomes creative of conditions which clearly render the appropriate enjoyment of surrounding property impossible, the rights of others are invaded, and equity will restrain the persistent pursuit of such injuries. * * * The law takes "care that lawful and useful-business shall not be put a stop to on account of every trifling or imaginary amioyance, such as may offend the taste or disturb the nerves of a fastidious or over-refined person; but, on the other hand, it does not allow anyone, whatever his circumstances or condition may be, to be driven from his home or to be compelled to live in it in positive discomfort, although caused by a lawful and useful business carried on in his vicinity. ’ ’ And in Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322, being a case cited by appellants, the court says, page 326: “A private nuisance is defined to be anything done to the hurt or amioyance of the lands, tenements or hereditaments of another. (3 Bl. Com. 216.) Any unwarrantable, unreasonable or unlawful use by a person of his own property, real or personal, to the injury of another, comes within the definition stated, and renders the owner or possessor liable for all damages arising from such use.” Citing Heeg v. Licht, 80 N. Y. 579. In Oehler v. Levy, 234 Ill. 595, the court, at page 601, says “In Wahle v. Reinbach, 76 Ill. 322, on page 327, it was said: 'Whatever is offensive, physically, to the senses, and by such offensiveness makes life uncomfortable, is a nuisance.’ And in Wente v. Commonwealth Fuel Co., 232 Ill. 526, on page 533: ‘If a business is offensive to such a degree as to materially interfere with ordinary physical comfort, measured, not by the standard of persons of delicate sensibilities and fastidious habits, but by the habits and feelings of ordinary people, and the damages are of a nature which cannot be adequately compensated for in an action at law, a court of equity will grant an injunction.’ And in Chicago, Milwaukee & St. Paul Railway Co. v. Darke, 148 Ill. 226, on page 232: ‘It cannot be doubted that at common law mere noise in the immediate vicinity of the premises, and especially of the dwelling house of a land owner, may be of such character as to constitute an actionable nuisance, remediable by an action on the case for damages or by injunction.’ ”

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded with directions to modify the permanent injunction so as to limit the same to the enjoining of said open-air garage, the lighting system except as to sufficient lights for filling station, and restraining the racing of engines on the part of appellants or their employees, or permitting the same to be done by others on their said premises, and limiting the operation of appellants’ service trucks as hereinabove indicated.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Samuel Richards and Mary Richards, Appellees, v. Aloys Gundlach and Joseph E. Gundlach, Appellants.

    1. Damages — for realty injuries after beginning suit. In order to recover damages to realty after commencing suit, the injury must be of permanent character and continue to produce loss, and in such case both past and future damages may be recovered.
    2. Damages — for land subsidence after beginning suit. The removal of coal without leaving sufficient subjacent support, resulting in surface subsidence and cracking, cannot be said to result in future injuries, and damages should be confined to such as occur before suit is brought.
    3. Damages — measure for building injuries. The proper measure of damages for injuries to buildings but not to the land is the cost of restoring them to their condition just prior to the injury.
    4. Damages — measure for realty injuries. The measure of damages for injuries to real property is the difference in the market value before and after the injury.
    5. Damages — what value adopted in measuring land injuries. That valuation which will be most beneficial to the injured party should be adopted in determining damages from land subsidence due to excess coal removal.
    6. Damages — error and exclusion of restoration cost cured by later admission. Any error in excluding testimony in an action for damages to realty by undue removal of coal causing surface subsidence, that the cracks and depressions could be filled, is cured by later admitting proof us to the probable cost of such restoration.

      7. Damages — what instruction on restoration cost may cover. An instruction in an action for damages for causing land subsidence may rightly tell the jury they may consider the cost of filling cracks and depressions on the land in determining damages sustained by plaintiff.
    8. Damages — when erroneous admission of land, subsidence evidence not reversible. In an action for damages for causing land subsidence, improper admission of evidence of land subsidence damages after suit was begun was not reversible error, in view of the fact that the injury was substantial, that the court instructed the jury damages should be limited to injuries prior to the suit, and that there was a remittitur of one-fifth of the verdict.
    Appeal by defendants from the Circuit Court of St. Clair county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    P. Iv. Johnson, for appellants.
    W. E. Knowles, for appellees.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

An action on the case was instituted by appellees in the circuit court of St. Clair county against appellants to recover damages alleged to have resulted to appellees’ lands from the removal by appellants of the underlying strata of coal therefrom without leaving sufficient support.

At the time this suit was brought, appellants had taken coal from approximately one-fourth of appellees’ land, consisting of 12 acres. Some parts of the surface of the land over which the coal had been taken subsided, leaving depressions, the largest of which was about 62 feet by 54 feet, and 18 inches deep. There were six or seven of these depressions in different places on said lands. Cracks appeared in certain of these, the largest being about 3 feet wide; others were not so wide. A trial was had resulting in a verdict in favor of appellees for $1,000. A remittitur of $200 was made by appellees, and the court rendered judgment against appellants for $800. To reverse said judgment, this appeal is prosecuted. Appellants contend that the court erred in its rulings on the evidence and the instructions, and that the damages are excessive.

It is contended by counsel for appellants that the court improperly admitted evidence of a depression on said premises subsequent to the bringing of said suit.

While courts have permitted a recovery for injuries sustained after commencement of suit, it has only been in cases where the injury is of a permanent character and must necessarily continue to produce loss. In such cases, not only past but also future damages may be recovered. Suehr v. Sanitary Dist. of Chicago, 242 Ill. 496, and .cases cited therein. The taking out of coal without leaving a sufficient support for the superincumbent land may or may not cause injuries thereto in the future. This being true, the damages should be confined to such as have occurred before suit is brought. McConnel v. Kibbe, 33 Ill. 175; Catlin Coal Co. v. Lloyd, 109 Ill. App. 122; Morris v. Saline County Coal Co., 211 Ill. App. 178-186.

In Catlin Coal Co. v. Lloyd, supra, the court at page 125 says: “For the damages occasioned from subsidences of such parts of the land as had taken place at the time this suit was commenced, the appellee could in this action recover, but not for such as might thereafter occur,” citing McConnel v. Kibbe, 33 Ill. 175.

We therefore hold that it was error to admit evidence of injuries sustained after the filing of said suit.

It is also contended by counsel for appellants that the court erred in permitting appellees, over appellants’ objection, to give evidence of the market value of their, premises before and after the subsidences in question had taken place; that the question of the market value of the premises is not involved. Counsel concedes that appellees are entitled to damages, but insists that the true measure of damages is the cost of restoring the premises to the condition they were in before the injury occurred. In support of this contention counsel cites: Donk Bros. Coal & Coke Co. v. Slata, 133 Ill. App. 280; Donk Bros. Coal & Coke Co. v. Novero, 135 Ill. App. 633; Fitzsimons & Connell Co. v. Braun, 199 Ill. 390; City of Chicago v. Murdock, 212 Ill. 9.

In the cases cited, the damage sustained was the amount of injury to buildings and in each case there was no charge that the land was damaged. It was held in those cases that the cost of repair and the restoring of premises to their original condition at the time of the injury was the proper measure of damage. However, in Donk Bros. Coal & Coke Co. v. Slata, supra, and Donk Bros. Coal & Coke Co. v. Novero, supra, this court held that as a general rule the measure of damages in actions for injuries to real property is the difference in the market value before and after the injury to the premises. In R. C. L., vol. 8, p. 482, the rule is stated thus: “Usually depreciation in the value is determined by taking the difference between the value immediately before and that immediately after the injury.” To the same effect is 17 0. J., p. 880. The law further is that that valuation should be adopted which will be most beneficial to the injured party, as he is entitled to the benefit of his premises intact. Fitzsimons & Connell Co. v. Braun, 199 Ill. 390; Donk Bros. Coal & Coke Co. v. Novero, supra.

In this case there is .no claim for damages to buildings, the whole injury complained of being to the land itself. We are therefore of the opinion and hold that the measure of damages is the difference in the value of said premises immediately before and after the injury in question, and that the court did not err in admitting the evidence complained of.

It is also contended by counsel that the court erred in sustaining an objection to testimony offered by appellants to the effect that said depressions and cracks could be filled up and said premises restored to their original condition. While the court sustained an objection to such evidence when first offered, it after-wards permitted appellants to offer such proof, including the opinion of an engineer as to the probable cost of such restoration. Appellants were therefore not prejudiced by said ruling.

Certain instructions offered by counsel for appellants and refused by the court advised the jury that the cost of restoration was to be taken as the measure of damages. For the reasons we have already given, these instructions were properly refused.

Counsel for appellants complains of the court’s modification of the following instructions tendered by him:

“Plaintiffs have offered evidence tending to show that the market value of their premises has been decreased by reason of cracks and sinks caused by mining coal, and defendants have offered evidence tending to show that such cracks and sinks can be remedied and the premises restored to their original condition existing before the time such cracking and sinking occurred. It is for the jury to pass upon the credibility and weight to be given to the testimony in the case, and if, from the evidence before you, you believe that the cracking and sinking can be remedied and the premises restored to the original condition existing before cracking and sinking took place, by means of certain work and filling, then you should award to the plaintiffs only such amount of money, if shown by the evidence, that would be required to do and perform such work and filling. ’ ’

The court modified this instruction by substituting for the last three lines thereof the following phrase: “Then you may consider such evidence for the purpose of determining the amount of damages sustained by plaintiffs.” The instruction was given to the jury as modified.

The court committed no error in modifying this instruction. In giving the modified instruction, the court informed the jury that it might take into consideration the filling of the cracks and the restoration of the premises in determining the amount of damages sustained by plaintiffs. This instruction stated the rule as favorably to appellants as they were entitled to.

The question remaining to be determined is whether we should reverse the judgment and remand the case because of the error in the admission of the evidence as to the subsidence which occurred after the bringing of this suit and before trial.

No instructions were tendered by appellees. Two instructions were given on behalf of appellants, limiting the right of recovery to damages which occurred prior to the beginning of the suit.

The damages, as testified to by appellees’ witnesses, run from $1,800 to $3,000, based on the difference in value of the premises before and after the injury complained of, while appellants’ evidence is to the effect that the cost of restoration would be about $150. We have held, however, that in this character of case, the measure of damages is as contended for by the appellees. It might be observed in this connection that the testimony of appellants’ witness who claimed the premises could be restored is very unsatisfactory, even if it be conceded that appellants are right in their contention.

The evidence in this case tends to show that the cracks in appellees’ land extend from the surface to the coal strata, some 125 feet, and the witness upon whom appellants relied largely as to the cost of restoring the land stated that it would be necessary to take out the soil around these cracks and refill them with clay or material impervious to water, then fill in with soil again, and that this method of shutting out the water from the cracks and refilling would perhaps require a period of several months or perhaps two years, when the land would stop cracking. His own words are as follows: “If there is no further settlement from below, after a period of two year's this settlement would be completed. We generally assume that in two years ground will have reached its original compactness and is fit for the same purpose it was before any settlement took place.”

He also stated in connection therewith: “If you fill them up (the cracks) and they don’t wash down any more, they will be alright after two years.”

The element of uncertainty is present to such an extent that it would not be fair to appellees to have their damages ascertained on the basis contended for by appellants. Fitzsimons & Connell Co. v. Braun, supra; Donk Bros. Coal & Coke Co. v. Novero, supra.

In view of the size and character of the subsidence shown to have occurred subsequent to the beginning of the suit, and in view of the instructions of the court that the jury should limit the damages as stated, and taking into consideration the testimony of the witnesses as to the amount of damages sustained, we hold that the trial court was warranted in rendering judgment for the amount of the verdict after deducting the remittitur of $200.

For the reasons above set forth, the judgment of the circuit court will be affirmed.

Judgment affirmed.


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    L. Kuykendall et al., Taxpayers of Community High School District No. 205, Appellants, v. James H. Tittle et al., Appellees.

    1. Schools — discretion in renting buildings. In ease school board directors find it necessary to rent a building to carry on school work, the selection of the building is in their discretion and not for the courts to decide."

      2. Schools — liability of directors for mistalces. School directors who in the honest exercise of their discretion have rented a building for school purposes are not to be held liable for the rent thereof because they may have made a mistake in judgment in so doing.
    3. Schools — taxpayers’ right to recover funds. A taxpayer has a right to maintain an action to recover funds of a school district when the directors have used the funds improperly.
    Appeal by plaintiffs from the Circuit Court of Jefferson county; the Hon J. C. ICern, Judge, presiding. Heard in ths court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    W. H. Greek and E M. Peavler, for appellants.
    Cokrad Schul and Curtis Williams, for appellees.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the-court.

This is an action in assumpsit, brought by appellants, taxpayers of Community High School District No. 205, who sue on their own behalf and for all other taxpayers in said district, against appellees, the board of directors of said high school district, to recover $400 alleged to have been unlawfully paid to one Orville T. Wallace and one W. M. Wilson.

The declaration alleges that appellees, as such board of directors, conducted a high school in said district, and occupied certain rooms located in the schoolhouse “owned by School District No. 88 of said county, and that by reason of such occupancy and use, said Community High School District No. 205 became and was liable to School District No. 88 for a reasonable rental for the rooms so occupied”; that appellees on October 29, 1921, as such directors, caused to be issued an order for $400, payable out of the school funds of said Community High School District to the said O. T. Wallace and W. M. Wilson, for rent “for the use of the part of the schoolhouse of District No. 88,” and further alleges that said amount was thereby wholly lost to the citizens and taxpayers of said Community High School District No. 205.

A plea of the general issue was filed to the declaration, and a jury being waived, said cause was heard by the court, resulting in a judgment against appellants in bar of action and for costs. To reverse said judgment this appeal is prosecuted.

The record discloses that the room in question was located on property owned by School District No. 88; that the directors of said district had begun the erection of said building without a vote of the people, and on a bill filed in the circuit court of Jefferson county by certain of the taxpayers in said district, the .directors of District No. 88 were enjoined from expending the funds of said district in payment for the erection of said building. The record further discloses that there had been negotiations between appellees, the directors of Community High School District No. 205, and the directors of School District No. 88, looking toward the renting of this and another room, which before that time had been completed, but that after said injunction proceeding, the directors of School District No. 88 refused to complete said building. Thereafter, appellees, after attempting to find quarters elsewhere for the accommodation of the pupils of said high school district and being unable to do so, rented said room that was being constructed from the contractors, the said Wallace and Wilson, and agreed to pay them therefor the. sum of $400. Pursuant • to said renting, said contractors completed said building, and the same was used for the then current school year by said high school district. The order in question was issued in payment for said rent. The record further shows that nothing whatever had been paid to said contractors on said building or addition, and that they, as such contractors, were in possession of the same.

The propositions of law submitted to the trial court, and the assignment of errors on the record, raises the question as to whether appellees, the directors of High School District No. 205, are personally liable to the taxpayers of said district for said sum of $400 so paid to said contractors.

Appellees testified, and for the most part without objection, that in renting said building and in making payment therefor, they were acting in good faith and, as they thought, for the best interests of said school district.' It is the contention of appellants that whatever liability said Community High School District incurred for the use of the room in question was to School District No. 88; that the payment to said contractors was wholly null and void, and that appellees by virtue thereof are liable personally to the taxpayers of ’said Community High School District, for the amount so paid.

On the other hand, appellees insist in answer thereto that the law makes it their duty'to provide suitable rooms for the use of the pupils of said high school district, and that if, in the performance of that duty, they in good faith'rent a building or room and'pay for the same out of the funds of the district, they cannot be made liable personally therefor, even though it should develop that they had acted unwisely in reference thereto. They also contend that if there is a right of recovery against thém at all, it would be in favor of School District No. 88.

Subdivision 1, paragraph 137, section 127, chapter 122, Cahill’s Revised Statutes, provides that boards of education shall “have the power, and it shall be their duty, to establish and support free schools for not less than seven months in each year.” In Millard v. Board of Education, 121 Ill. 297, the court had under consideration a bill filed by certain taxpayers, seeking to restrain a board of education from renting the basement of a church for school purposes. In discussing the question and the powers of. the board in reference thereto, the court says, page 303:

“The next and only remaining allegation of the bill, to be considered, questions the authority of the board to lease the basement of the church for school purposes. It appears from the bill, that on the 1st day of February, 1885, the voters of the district located a school-house site, in pursuance of the statute, and that the board of education submitted the question of issuing bonds, in amount $30,000, to erect a school house on the site selected, to a vote of the people, and that on the 10th day of March, 1885, the proposition was defeated by a vote of the people. Section 80, chapter 122, of the Bevised Statutes, made it the duty of the board of education to establish arid support free schools, not less than six nor more than ten months in each year. What course should the board pursue. Money to build could not be raised, because the voters had defeated the proposition. The school was required to be kept in. operation. Under such circumstances no remedy was at hand except to lease, which may be done under the section of the statute last named. What building the board should lease for school purposes is a matter for that body to determine, and not for the courts to decide.”

This case was cited and approved in Dunn v. Chicago Industrial School for Girls, 280 Ill. 613, and the court there held that the county board had the power and authority to appropriate funds for the care and maintenance of girls committed to the Chicago Industrial School for Girls by the juvenile court of Cook county, and reversed the decree of the lower court granting an injunction restraining said board from so doing.

The law further is that public officials, such as members of boards of education, are not liable for “a mere mistake in judgment, either as to their duties under the law or as to facts submitted to them. * * * They may judge wrongly, and so may a court or other tribunal, but the party complaining can have no action when such officers act in good faith and in the line of what they think is honestly their, duty. Any other rule might work great hardship to honest men who, with the best of motives, have faithfully endeavored to perform the duties of these inferior offices.” McCormick v. Burt, 95 Ill. 263-266; Churchill v. Fewkes, 13 Ill. App. 520-523.

Counsel for appellants lay down the proposition that a taxpayer “has a right to maintain an action to recover funds of a school district, when the directors have used them improperly or illegally,” and cite in support thereof Watts v. McCleave, 16 Ill. App. 272; Thompson v. Mahoney, 136 Ill. App. 403; Bednarski v. City of West Hammond, 170 Ill. App. 547; Lindblad v. Board of Education Norman School Dist., 221 Ill. 261; Leonard v. Garland, 252 Ill. 300. We have examined these eases, and find that for the most part they are injunction proceedings, brought to restrain some act on the part of public officials, and were not for the collection of money theretofore paid out by them. They wholly fail to support the proposition here contended for by appellants.

The record in this case discloses that appellees acted in good faith in renting the premises in question, and under the holding of the Supreme Court in Millard v. Board of Education and Dunn v. Chicago Industrial School for Girls, supra, they are not liable to appellants for so doing. The holdings of the trial court on the propositions of law are in accord with the authorities, and the court did not err in its rulings thereon.

We are of the opinion that substantial justice has been done and that there is no reversible error in the record. The judgment of the trial court will therefore be affirmed.

Judgment affirmed.


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    William R. Browning, Administrator of the Estate of C. A. Jones, Deceased, for the use of Valier State Bank, Appellee, v. Ray Spurrier and Fred Steckenrider, Appellants.

    1. Witnesses — competency of widow as to deceased husband’s acts. A widow is competent to testify that notes signed by her deceased husband in his name and also in her name were never signed by her or with her consent, on garnishment against transferees of his property to collect a confessed judgment against him on the notes.
    2. Confession of judgment — propriety of entering confession against one of two signers of note. Judgment may be entered solely against a husband upon notes containing provision for confession of judgment although his wife’s name also appears thereon, if the evidence shows the wife to have in no way authorized or signed the notes.
    3. . Confession of judgment — setting aside at subsequent term. Unless a meritorious defense is shown in the motion and application to open a judgment on a note providing for confession judgment, even the maker cannot have the judgment set aside at a subsequent term.
    4. " Confession of judgment — re-opening as equitable question. The question presented on motion to re-open a judgment taken on confession at a. prior term is not whether it should be vacated for error of law but whether there is any equitable reason for opening it.
    5. Fraudulent conveyances — liability of vendee to garnishment. One who buys' goods in violation of the Bulk Sales Act and afterwards sells them is liable in a subsequent garnishment proceeding for their value at time of sale to satisfy a note confession judgment against the vendor.
    6. Fraudulent conveyances — when knowledge does not bar vendor’s creditor. A creditor cannot be prevented from pursuing garnishment against the vendee of debtor’s garage and contents under a sale in violation of the Bulk Sales Act, merely because he learned of the sale after it and the delivery thereunder had occurred and part of the consideration been paid.
    Appeal by defendants from the Circuit Court of Franklin county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Layman & Johnson, for appellants.
    Hart & Hart, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

One C. A. Jones, of Christopher, Franklin county, Illinois, while the owner and operator of a garage in said city, became indebted to the Valier State Bank in the sum of $3,235. To secure this indebtedness, he delivered to said bank seven promissory notes, in varying sums, aggregating said principal sum. Said notes were signed by the said C. A. Jones, and all of them purported to be signed by his wife, Emma Jones. In May, 1921, Jones sold his said garage, with its corn-tents, including the fixtures, accessories, oils and other supplies, to appellants. Thereafter, on June 16, 1921, the Valier State Bank obtained judgment by confession on said notes, in the circuit court of said county, against the said C. A. Jones alone. An execution Was issued on said judgment and delivered to the sheriff of said county, and was by him returned “No property found,” the return being dated August 16. On August 18, the said C. A. Jones died and William R. Browning, appellee herein, was appointed administrator of his estate.

Thereafter garnishment proceedings were instituted by said bank, predicated on the theory that said sale to appellants was void for failure to comply with the “Bulle Sales Act.” At the time the garnishment proceedings were begun, appellants had sold $300 worth of said fixtures, accessories and supplies. At the February term, 1923, of said circuit court, a jury being ivaived, a trial was had before the court, resulting in a personal judgment for $300, rendered against appellants in favor of appellee as such administrator, for the use of said bank, and a judgment - in rem for $3,371.57, with a special execution. To reverse said judgment, this appeal is prosecuted. -

It is practically conceded by appellants that, in the sale of the contents of said garage, there was no attempt to comply with the “Bulk Sales Act,” Cahill’s St. ch. 121a, If 1 et seq., but it is insisted that, notwithstanding that fact, the judgment in this case should be reversed: First, for the alleged reason that the judgment against the said C. A. Jones wqs confessed on a joint warrant of attorney, and that there7 fore the same is void, and cannot here be made the basis for said garnishment proceeding; second, that the court erred in rendering a personal judgment against appellants as garnishees for the amount received by them on the sale of said fixtures, supplies and accessories, and that there was no warrant of law therefor.

Oh the first proposition, the record discloses that the cashier of said bank, in making affidavit to the signatures on said notes and warrants of attorney, stated on information and belief that the signature of Emma Jones, appearing on said notes, was affixed thereto by the said C. A. Jones without the consent or authority of the said Emma Jones. In addition thereto, Emma Jones testified on behalf of appellee that she never signed any of said notes, and never authorized her husband or anyone else to sign the same for her. There is no evidence in the record disputing this testimony. Counsel for appellants, however, contend that Emma Jones, being the widow of C. A. Jones, deceased, was not a competent witness in said garnishment proceedings.

In Lingreen v. Illinois Cent. R. Co., 61 Ill. App. 174, the Appellate Court of the third district, in discussing a question of this character at page 175, says:

“Lena Lingreen, widow of the deceased, was in company'with him at the time and saw much or all that occurred. * She was offered as a witness in behalf of the plaintiff.

“The court ruled she was ‘not competent to testify to any fact that occurred at the time of her husband’s death or in respect to any matter or thing leading to it. ’ •

“At the common law a wife was excluded as a witness for or against her husband in his litigation with others than herself, upon the ground that the interest of husband and wife were in legal contemplation identical, and also for reasons of public policy looking toward the preservation of harmony and confidence in the marriage relation.

“After the death of the husband, as no reasons of public policy demanded silence, except as to communications imparted under the sanctity and confidence of the marriage relation, the wife, if not interested pecuniarily in the action, was deemed competent to testify to facts coming to her knowledge from other sources and not by means of her situation as a wife, notwithstanding they related to the transactions of the husband. 9 Amer. & Eng. Ency. of Law, p. 807; 1 Green-leaf, Evid., Sec. 338.”

And in Supreme Lodge of Mystic Workers of the World v. Jones, 113 Ill. App. 241, the same court at page 243 says: “Neither this statute nor the rule of evidence mentioned, however, precludes the' husband or wife from testifying to facts which come to his or her knowledge by means equally accessible to any person not standing in the relation of husband1 or wife. 1 Greenleaf on Evidence, sec. 338; 2 Best on Evidence, sec. 586; 29 American & Eng. Ency. of Law, 629 and 630; Lingreen v. I. C. R. R. Co., 61 Ill. App. 174; Dexter v. Booth, 2 Allen, 559.” The only name, then, rightfully appearing on said notes and warrants of attorney was the name of C. A. Jones. This being true, the court was fully warranted in entering judgment against him thereon, notwithstanding the language of the warrant may have indicated that' the same was joint and not several. Clause 3, sec. 1, ch. 131, Cahill’s Revised Statutes, provides that words “importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular.”

The law further is that a judgment by confession cannot be set aside at a subsequent term, even on motion of the maker of the note and warrant of attorney, unless a meritorious defense is shown in the motion and application to open up such judgment. Knox v. Winsted Sav. Bank, 57 Ill. 330; Zuckermann v. Solomon, 73 Ill. 130; Blake v. State Bank of Freeport, 178 Ill. 182; Bowman v. Powell, 127 Ill. App. 114; Moyses v. Schendorf, 238 Ill. 232.

In Knox v. Winsted Sav. Bank, supra, the court at page 332, in discussing a question of this character says: “It is insisted, that the power given by the warrant of attorney was departed from in this case, — that the authority given was, to confess judgment against the makers of a joint and several note, according to the tenor and effect of the note, and that the judgment should only have been confessed against all the makers of the note jointly, or against them severally — that there was no authority to confess it against five of the seven jointly; * * *.

“It must be considered that Tucker and Ritchie had authority to confess judgment against these five of. the makers, as they could not have confessed a judgment against themselves in their own favor; and whether such authority passed to their assignee or not, we think it was substantially pursued in this case, in confessing the judgment against these five defendants jointly. * * *

“The question properly before the court below was, not whether the judgment should be vacated for error of law, but whether, in the exercise of its equitable jurisdiction, there was any equitable reason for opening the judgment. Rising v. Brainard, 36 Ill. 79.”

We therefore hold that the court was warranted in entering judgment against C. A. Jones alone on said warrants of attorney.

The second proposition contended for by appellants is not supported by the authorities in this State. The only case cited by appellants which at all tends to support their contention is the case of Chicago Specialty Shoe Co. v. Uhwatt, 197 Ill. App. 460, a first district case. An examination of the opinion will disclose that the court did not have squarely before it the question here sought to be raised. Since the decision in the Uhivatt case, the Appellate Court for said district has in several cases held to the contrary of said proposition. Monski v. Smith, 224 Ill. App. 206; Ogden Ave. State Bank v. Cherry, 225 Ill. App. 201; Larsen v. Ritter, 227 Ill. App. 300; 27 C. J. p. 886, sec. 892.

In Monski v. Smith, supra, the court, at page 209, says: “We are of the opinion that the purpose and effect of the Bulk Sales Act were to render goods sold in violation of the act, trust property in the custody of the vendee for the benefit of the vendor’s creditors. If the vendee under a fraudulent sale of this character afterwards sells the goods he is liable under a subsequent garnishment proceeding for their value at the time he sells'them and the proceeds may be applied to the satisfaction of the garnishee’s debt against the principal defendant. Jaques & Tinsley Co. v. Carstarphen Warehouse Co., 131 Ga. 5; Friedman v. Branner, 72 Wash. 338; Interstate Rubber Co. v. Kaufman, 98 Neb. 562.”

It is further' contended by counsel for appellants that the cashier of said bank had actual notice of the sale and transfer of the contents of said garage, and that therefore said bank was not in a position to maintain said garnishment proceeding. We have examined the record in connection with this contention, and find that the proof is to the effect that said garage and its contents had been sold and delivered and a part of the consideration had been paid, before said cashier had any notice thereof. There is, therefore, no merit in this contention.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed. ■


author: Mr. Justice Higbee

text:
    The People of the State of Illinois, Defendant in Error, v. William H. Martin, Plaintiff in Error.

    1. Intoxicating liquors — necessity of defensive averments in information or indictment for possessing. An indictment or information need not contain negative, defensive averments that the defendant accused of possessing a still and intoxicants contrary to law had the still without the consent of the Attorney General and the intoxicants without compliance with the exceptions of the Prohibition Act.
    2. Intoxicating liquors — ^necessity of preliminary motion to return illegal seizure. Without prelimianry motion for the return of liquor on the ground of illegal seizure or that the court investigate the legality of the seizure, it is not error on a trial for illegal possession to overrule objections to the admissibility of the liquor because of the alleged illegal seizure.
    3. Intoxicating liquors — erroneous penalty for possession. Penalties for unlawful possession of intoxicants under the Prohibition Act are fixed by Cahill’s St. ch. 43, 1134, which penalizes by fine or imprisonment, but the court cannot impose both.
    4. Intoxicating liquors — where unaxithorized penalty for possessing must he corrected. Where the trial court has wrongly penalized one convicted of possessing intoxicants by both fine and imprisonment, the Appellate Court cannot correct the error by determining whether the penalty should be fine or imprisonment but will remand the case for the trial court to enter proper judgment.
    Error by defendant to the County Court of Franklin county; the Hon. Sydney M. Ward, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed in part and remanded with directions.
    Opinion filed March 10, 1924.
    J. E. Carr, for plaintiff in error.
    Roy C. Martin, for defendant in error.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Higbee

delivered the opinion, of the court.

Upon trial before a jury in the county court of Franklin county, a verdict was returned finding plaintiff in error guilty of unlawfully possessing a still and unlawfully possessing intoxicating liquor. The trial was upon an information containing two counts. The first count charged that plaintiff in error on the 25th day of January, 1923, “did then and there unlawfully have and possess a still” and the second count charged that he “did then and there unlawfully have and possess intoxicating liquor,” and in both counts it was alleged that the offenses charged were contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Illinois. The first question raised by plaintiff in error is as to the sufficiency of the information. It is urged that the first count is defective in not negativing the right appellant had to have a still in his possession by permission of the Attorney Gfeneral. It is also contended that the second count is insufficient in not stating that plaintiff in error did not have the intoxicating liquor in his possession, under the conditions provided in section 8 of the Illinois Prohibition Act, Cahill’s St. ch. 43, ff 8, under which the having of such liquor in his possession would not have been unlawful.

In answer to these criticisms of the information in this case we deem it sufficient to say that they have been fully considered and disposed of by this court in opinions heretofore filed at the present term in the cases of People v. Mosley, post, p. 388, and People v. Smith, ante, p. 119. In the opinions in those cases, involving informations containing charges substantially similar to those complained of here, we held that as every possession of intoxicating liquor is prohibited, except it be authorized by said act, it was not necessary to include defensive negative averments in an indictment or information, and the informations were sustained. What was said concerning those in-formations in the cases named applies with equal force to the two counts of the information before us here, both as to possession of the still and the intoxicating liquor, and the objections raised by appellant to this information were therefore not well founded.

It is also contended by plaintiff in error that the intoxicating liquor and the still were secured from him by the officers without a legal search warrant, and that it was therefore reversible error for the court to admit them in evidence. We do not find that plaintiff in error made any preliminary motion that the court require this property, claimed to have been illegally seized, to be returned to him. It is true upon such property being offered in evidence, he did object, upon the grounds that it had not been obtained through a legal search warrant. We do not understand that the case of People v. Brocamp, 307 Ill. 448, goes to the extent of holding that property unlawfully obtained from a defendant without a search warrant can never be introduced in evidence against such defendant. The doctrine laid down in that case, as we understand it, is, that where the party has not in apt time petitioned the court to investigate the legality of seizure of the property, or has not moved that the court make an investigation and order the property returned if defendant’s constitutional rights have been violated, that such property is admissible against defendant even if secured without legal search warrant. That case expressly holds that “an offer of proof made on the trial of a cause raises no other question than that of the competency, relevancy and materiality of the evidence .offered. Consequently the court, on an objection being made, cannot be expected to stop the trial of the case and enter upon the trial of a collateral issue as to the source from which the evidence was obtained. This court has repeatedly refused to enter upon the trial of such collateral issues even when the objection raised to the competency of the evidence was based upon the claim that the evidence had been secured by means of unlawful search and seizure, in violation of defendant’s constitutional rights.” So in the absence of any preliminary motion by plaintiff in error that this intoxicating liquor and still be returned to him or that the court investigate the legality of the seizure thereof, it was not error for the court to overrule the objections to the admissibility of the same, when made on the trial of this cause.

Complaint is also made that the trial court refused to give certain instructions to the effect that before the still or intoxicating liquor seized could be considered in evidence it should be shown that the same was obtained by means of a legal search warrant. Under our view of the law as above stated it was not error to refuse these instructions.

The court assessed a fine of $200 under the first count and a fine of $1,000 and confinement in the county jail for a period of six months under the second count. The Illinois Prohibition Act does not seem to specifically provide the penalty for the unlawful possession of intoxicating liquor, and for such penalty we must look to division B, of section 33 of that act, Cahill’s St. ch. 43, fi 34, which provides: “Any person violating the provisions of any permit, or who makes any false record or report required by this Act or violates any of the provisions of this Act, for which offense a special penalty is not prescribed, shall be fined for a first offense not less than $100.00 nor more than $1,000.00, or be imprisoned not less than sixty days, nor more than six months.” It is contended by plaintiff in error that under this section a person found guilty may be fined or imprisoned, but that he cannot be both fined and imprisoned, and the argument for the People admits that under the statute the court did not have the authority to assess a penalty of both fine and jail sentence as was done in this case, under the second count of the information, but asks that this error in the judgment be corrected in this court if possible.

It is manifest that this court cannot, take the place of the trial court and determine whether the penalty under the second count of the information should be inflicted by imprisonment or by a fine. That is a matter intrusted by the law to the sound discretion of the judge who presided at the trial. We are therefore of the opinion, as we find no other error in the record than the form of the judgment on the second count, that the judgment on the first count should be affirmed and that as to the judgment on the second count this cause should be and it accordingly is remanded with instructions to the trial court to enter a proper judgment in accordance with the law.

Affirmed in part and remanded with directions.


text:
    Dora E. Freeland, Claimant, Appellee, v. Estate of James A. Freeland, Deceased. Eva L. Reichard et al., Objectors, Appellants.

    1. Estates of decedents — how appeal from judgment on claim tahen. Appeals in eases of allowance or rejection of claims in the matter of decedent’s estates must conform to the statutes provided therefor and must be taken in the same time and manner as provided for appeals from judgments of justices of the peace in Cahill’s St. ch. 79, If 116.
    2. Appeal and error — effect of failure to file appeal bond in time. If one entitled to take an appeal files no instrument in the nature of a bond within the time prescribed by law, the reviewing court has no jurisdiction to take any action but to dismiss the appeal.
    3. Estates of decedents — time of filing bond on appeal from judgment on claim. In ease of the allowance of a claim against an estate, an appeal bond must be filed within 20 days after the rendition of the judgment by the county court.

      4. Estates op decedents — right of court to set aside judgment as affecting time for filing bond on appeal from claim judgment. Although the county court might set aside or alter a judgment on a claim against an estate after expiration of time for filing appeal bond but before the term ended, that will not affect the duty of the appellant to file the bond as provided by statute unless the time so fixed is extended before expiration thereof.
    Appeal by defendants from the Circuit Court of Jasper county; the Hon. W. B. Weight, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Albert E. Islet, for appellants.
    W. E. Islet, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Jasper county, dismissing an appeal taken by appellants to that court from a judgment of the county court of that county, allowing a claim against the estate of James A. Freeland, deceased, in favor of appellee.

On November 6, 1922, the county court of Jasper county entered a judgment against the estate of said deceased in favor of appellee, in the sum of $715.92, upon a claim filed by appellee, based upon a promissory note purporting to be executed by deceased in favor of appellee. It appears from the record that the only entry made of the action taken by the court on that date was the entry of the judgment in question but that under date df November 18, 1922, appellants appeared in that court and prayed an appeal from such judgment to the circuit court which appeal was “granted upon filing bond in the sum of $100.00 within thirty days.” It also shows that such bond was filed with the clerk of said county court and approved by the judge thereof on the 8th day of December, 1922. Upon call of the case in the circuit court, appellee filed her motion to dismiss the appeal on the ground that the appeal bond had not been filed within 20 days from the rendition of the judgment. This motion was granted and said appeal dismissed. If the judgment in the county court was rendered on November 6 and the bond was not filed until December 8, it was of course not filed within 20 days from the rendition of the judgment as required by the statute.

It is contended by appellants in their argument that the court, as a matter of fact, did not render such judgment on the 6th of November, but simply indicated what the judgment of the court would be, and that appellants did not know that such judgment had been rendered until the 18th day of November; that upon that date the appeal was. prayed for and, the bond having been filed within 20 days from that date, the statute was complied with and the circuit court thereby obtained jurisdiction of the cause. Nothing is disclosed by the record to sustain this position, and, however that may be, this court must decide this case upon the facts as they actually appear from the record, which states that the judgment in the case was rendered on the 6th day of November, and that the bond was not filed until the 8th day of December. If the filing of a bond within 20 days after November 6 was a prerequisite to an appeal by appellants, the circuit court properly granted the motion to dismiss the appeal. Paragraph 69, chap. 3 of Smith-Hurd Revised Statutes of 1923, Cahill’s St. ch. 3, If 69,. provides, “In all cases of the allowance or rejection of claims by the county court, as provided in this Act, either party may take an appeal from the decision rendered to the circuit court of the same county, in the same time and manner appeals are now taken from justices of the peace to the circuit courts, by appellant giving good and sufficient bond, with security, to be approved by "the county judge; and such appeals shall be tried de novo in the circuit court.” Section 1 of article 10 of the act on Justices and Constables, Cahill’s St. ch. 79, If U6, provides among other things that “The party praying for an appeal shall, within twenty days from the rendition of the judgment * * * enter into bond with security to be approved and conditioned as hereinafter provided” etc. It has been repeatedly held that appeals in cases of the allowance or rejection of claims against the estates of decedents must conform to the statute and be taken in the same time and manner as appeals from judgments by justices of the peace. In the case of Pence v. Pettett, 211 Ill. App. 588, the Appellate Court of the second district so held in the following language: “We are of opinion that an appeal from a judgment of a Probate Court allowing or rejecting a claim must be taken in conformity with the Justices Act, except that it must be approved by the probate judge and therefore cannot be filed and approved by the clerk of the court. Language can be found in reported decisions contrary to this conclusion, but an examination of those cases will show that, in nearly if not quite all of them, the appeal was not from the allowance or rejection of a claim but in some other probate matter not governed by said section 68.” To the same effect are Haaren v. Miller, 139 Ill. App. 405, and Barker v. Estate of Thompson, 98 Ill. App. 78.

It has also been held that failure to file bond in an appeal from the judgment of a justice of the peace within 20 days after the rendition of the judgment is fatal and the court to which the appeal is taken can acquire no jurisdiction of the case. (Cochren v. Sweigle, 213 Ill. App. 594; Rozier v. Williams, 92 Ill. 187.) The Supreme Court in the case of Kemper v. Town of Waverly, 81 Ill. 278, held that if such bond were filed only 21 days after the rendition of the judgment the appeal should be dismissed on motion. It is also a well-established general rule that where the party entitled to take an appeal files no bond or instrument in the nature of a bond within the time prescribed by law, the court to which the appeal has been taken has no jurisdiction to take any action but to dismiss the appeal. (Hill v. City of Chicago, 218 Ill. 178; Fairbank v. Streeter, 142 Ill. 226: Stafford v. Kimmel, 188 Ill. App. 281.)

Under these authorities it was prerequisite to appellants ’ right to appeal that they should file an appeal bond within 20 days after the rendition of the judgment on November 6, and having failed to comply with that requirement the circuit court acquired no jurisdiction except to dismiss the appeal.

It is urged by appellants that the term of the county court at which the judgment was rendered was still in session at the expiration of the 20 days, and that therefore the court could at any time after the expiration of such 20 days, and before the termination of that term of court, have altered or set aside the judgment and that had an appeal been perfected by filing a bond within 20 days after such judgment had been set aside or altered, the circuit court would have acquired jurisdiction. The record shows that such judgment was not set aside or altered and that it was the judgment entered on the 6th day of November from which an appeal was taken. But aside from this fact such position is not well taken even under the Practice Act, Cahill’s St. ch. 110, providing the general rules for an appeal under which the court fixes the time within which an appeal bond may be filed. Such time might expire before the adjournment of the term at which the judgment was rendered, in which case the court would have the right to set aside or alter the judgment after the expiration of time for filing the appeal bond and before the adjournment of the term. Yet if the party praying an appeal filed a bond after the expiration of time fixed without having had such time extended before the expiration thereof, the court appealed to would acquire no jurisdiction except to dismiss the appeal. (Hill v. City of Chicago, supra.) The circuit court properly dismissed the appeal and its judgment is affirmed.

Affirmed.


author: Me. Justice Higbee

text:
    Hercules Powder Company, Appellant, v. M. A. Rowan, Appellee.

    1. Sales — written contract not alterable by parol agreement. An order for goods signed by the buyer and accepted in writing by the seller was a written contract of sale which could not be altered or varied by any oral agreement of the seller’s agent to send the goods on consignment with privilege of returning unused goods.
    2. Savinc questions fob review — necessity of objecting to incompetent evidence. The Appellate Court will not hear complaints of evidence of parol agreements to vary a written contract of sale, which should not have been admitted, in the absence of an objection to the admission of the evidence at the trial.
    3. Sales — no consideration to support modification of contract. A mere written statement sent by seller to buyer, not signed by anyone, purporting to modify a sales contract by making it a consignment of which any unsold part could be returned, being without consideration could not be upheld as a modification of the contract.
    4. Sales — effect of statement later than contract. Letters written by a seller’s agent long after the contract of sale had been made should not be admitted in evidence to vary the terms of such written contract in action by the seller to enforce payment thereunder.
    5. Bailments — consignment with privilege of returning unused or unsold part, constitutes. A consignment of goods by a seller to a buyer with the privilege to the latter of using or selling what he wished and paying for same at the market price when so used and of returning the balance, constitutes a bailment of the goods.
    6. Bailments — acts constituting termination. Any attempt on the part of a bailee to part with possession or title of the subject matter of a bailment, whether by transferring them to another contrary to orders, even without wrongful intent, or by use for another purpose than the special purpose of the bailment, or by unauthorized sale, or by use in a different manner, or for a different purpose, or for a longer period than agreed, puts an end to the bailment.
    7. Bailments — how bailee held liable for conversion. A bailee who has converted the subject of a bailment may be made liable for its value in an action of assumpsit.
    .8. Bailments — necessity of tendering unused consignment to bailor. One who has received from another a consignment of goods on the understanding that he is to use what he can at the market price at the time of use and return unused goods must show a tender of unused goods to the bailor to excuse nonpayment therefor.
    9. ■ Instructions — without basis in evidence as erroneous. Instructions given in an action to recover the purchase price of goods on the matter of tender of unused goods to the seller without evidence of such tender were erroneous.
    Appeal by plaintiff from the Circuit Court of Gallatin county; the Hon. J. C. Kern, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.
    Joseph Babtley, for appellant.
    C. K. Roedel, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Me. Justice Higbee

delivered the opinion of the court.

Appellee was operating a coal mine at Equality and gave appellant a written order for 800 kegs of powder at $2.05 per keg. The order was accepted, the powder shipped and received but never paid for. This suit was brought to recover the purchase price. The trial resulted in a verdict and judgment for appellee.

Appellant contends that as the order was signed by appellee and accepted in writing by appellant it was a written contract which could not be altered or varied by parol evidence; that the court erred in allowing appellee to testify that appellant’s agent agreed to ship the powder on consignment with the privilege to pay for what he used, at the market price when used, and to return the balance. If an objection had been interposed and overruled it would have been reversible error. Vierling v. Iroquois Furnace Co., 170 Ill. 189. Appellant allowed the evidence to go to the jury without objection and is in no position to complain.

Appellee’s Exhibit “1” was admitted in evidence over objections. It purports to be a statement sent by appellant to appellee showing that the transaction was not a sale but a consignment. The written contract was a contract of sale and if we assume that the exhibit was genuine there was no consideration to support a modification of the contract. The exhibit was not signed by anyone. If it were to appellee’s inter: est to insist the transaction was a sale the exhibit would be incompetent. We think it is equally incompetent as against appellant.

Appellee’s Exhibits 3, 5 and 7 were self-serving declarations by appellee and were not competent evidence. His Exhibits 6 and 8 are letters written to him by appellant’s agent long after the contract had been made and should not have been admitted in evidence.

If it were proper to receive the testimony of appellee as to what he claims the contract was, can it be said that he has shown a defense to this suit? On his theory of the case the powder was received on consignment with the privilege to him to pay for what he used, at the market price when used, and to return the balance. Such a transaction is bailment. 6 C. J. 1095; 24 B. C. L. 449. The same would be true if he was authorized to sell and return what was not sold. Lenz v. Harrison, 148 Ill. 598. Appellee proved that he sold, a part of the powder and the evidence shows that he turned the balance over to the Turns Coal Company, without authority from appellant.

Any attempt on the part of a bailee, by sale or otherwise, to part with the title or possession of the subject matter of the bailment constitutes a conversion thereof and is regarded as putting an end to the bailment. 3 B. C. L. 112. If a bailee, intrusted with the goods of the bailor for a particular purpose, puts them into the hands of a third person, contrary to orders, it is a conversion. A wrongful intent is not necessary. It is enough if the owner has been deprived of his property by the act of another assuming an authorized dominion and control over it. 3 R. C. L. 118; Boldewahn v. Schmidt, 89 Wis. 444.

If a bailee for a special purpose uses the property for another purpose he is liable as for a conversion. Fritz v. F. W. Hochspeier Co., 287 Ill. 574. An unauthorized sale is a wrongful conversion. Taylor v. Welsh, 138 Ill. App. 190. If the article bailed is used in a different manner, or for a different purpose, or for a longer period than was agreed, the bailee is guilty of conversion. Dolphin v. Davis, 183 Ill. App. 118; 3 R. C. L. 109. Where property has been converted by a bailee he is liable to the bailor for its value in an action of assumpsit. Ives v. Hartley, 51 Ill. 520; Mayer v. Springer, 192 Ill. 270-276.

By his given instructions appellee recognized the fact that it was his duty to tender to appellant the powder that was not used. He made no proof of a tender. The nearest approach thereto was a suggestion that he was turning the mine over to Turns Coal Company, and that appellant should protect its interest by a replevin suit, or otherwise. Mr. Turns testified that the powder was turned over to his company and this was not contradicted by appellee. There was no evidence on which to base instructions in regard to a tender and the instructions should not have been given. In any view of the case appellee failed to show that he has any defense and a new trial should have been granted.

For the reasons aforesaid the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Walter Bitzer et al., Appellees, v. Southern Surety Company, Appellant.

    1. Appeal and error — duty on review in absence of propositions of law. Even though no propositions of law are submitted to the court in an action on an automobile insurance policy, it is the duty of the court of review to determine whether the judgment is in accordance with the law and the evidence.
    2. Appeal and error — questions reviewable by Supreme Court on appeal from Appellate Court. An affirmance by the Appellate Court of a judgment in an action on an automobile insurance policy, the Supreme Court would have no questions of law to pass upon except such as arose at the trial on the court’s rulings on pleadings, admission of evidence and the like.
    3. Insurance — when policy exclusion of acts of automobile driver under eertain age does not apply. The provision of an automobile accident policy that the policy shall not apply to “any automobile while operated by any person in violation of law as to age, or, if there is no legal age limit, under the age of 16 years of age” is controlled by the age limit of 16 years where there is no law fixing an age limit below which a child might not lawfully operate a motor vehicle except the statute requiring a chauffeur to be 18 years of age, and therefore does not apply where the driver was over 16 but under 18 years of age.
    4. Insurance — liberal interpretation of policy. Even though two interpretations of a policy provision are equally reasonable, the one which will enable the insured to recover will be adopted.
    5. Appeal and error — when error in judgment amount not considered on appeal. On the record failing to show that appellant called to the court’s attention an error in computing interest, the Appellate Court will not consider it for the first time.
    Appeal by defendant from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Burroughs, Simpson & Renderer, for appellant.
    Geers & Geers, for appellees.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Higbee

delivered the opinion of the court.

Appellant contracted to indemnify appellees against loss or expense arising or resulting from claims upon them on account of bodily injuries or death accidentally suffered by any person or persons by reason of the ownership, maintenance or use of certain automobiles. The amount of the insurance was $5,000, together with interest and costs. During the life of the contract a child was injured by one of the trucks and recovered a judgment against appellees for $6,500 and costs. Its father also recovered $1,500 and costs. The latter judgment was paid in full by appellees who settled the child’s judgment for $6,000. Appellant declined to pay appellees the amount of the policy and suit was brought to recover the same. The declaration was in proper form and appellant filed the general issue and special pleas. A jury being waived, the court found the issues in favor of appellees and entered judgment for $5,637.45.

The accident occurred on September jl9, 1919, while Jesse Bitzer, a son of one of the appellees, was driving the truck. At that time he was over 16 but under 18 years of age and had procured a chauffeur’s license by misrepresenting his age. The parties stipulated the main facts in the case and agreed that the only question to be determined by the court was whether the operation of the truck by Jesse Bitzer was a violation of one of the provisions of the contract. That defense was set up in the special pleas and is based upon the following clause: “This policy shall not apply to such bodily injuries or death or damage to or destruction of property caused by reason of the' ownership, maintenance or use of any automobile while operated by any person in violation of law as to age, or, if there is no legal age limit, under the age of 16 years of age. ’ ’

Although no propositions of law were submitted to the court, it is our duty to determine whether the judgmeiit is in accordance with the law and the evidence. Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago City Ry. Co., 300 Ill. 162. If we affirm the judgment no questions of law are preserved for review by the Supreme Court except such as arose during the progress of the trial upon the rulings of the court upon pleadings, the admissibility of evidence and kindred subjects. Mutual Protective League v. McKee, 223 Ill. 364; Myers v. Union Nat. Bank, 128 Ill. 478. The question presented is one of much importance and so far as we know has never been passed upon by the courts of this or any other State.

When the policy was issued and also at the time the accident occurred there was no law fixing an age limit below which a child might not lawfully operate a motor vehicle except the statute requiring a chauffeur to be 18 years of age. For that reason appellant contends that the .language of the provision is so clear and unambiguous it cannot be construed otherwise than as referring to the requisite age of a chauffeur, that as Jesse Bitzer was under that age appellant was not liable under its contract.

Where provisions, somewhat similar, were involved the courts did not find the language so clear and unambiguous as to admit of but one construction. On the contrary, directly opposite conclusions were reached. Brock v. Travelers’ Ins. Co., 88 Conn. 308; Morrison v. Royal Indemnity Co., 180 N. Y. App. Div. 709, 167 N. Y. Supp. 732; Mannheimer Bros. v. Kansas Casualty & Security Co., 147 Minn. 350,180 N. W. 229. The first case is relied upon by appellees and the others by appellant but we do not consider any of them as having much bearing on the question here represented. It is very doubtful whether the evidence is sufficient to show that Jesse Bitzer was operating the truck in the capacity of a chauffeur at the time of the accident, but we shall consider the case on the theory that he was, as that position is more favorable to appellant.

When the policy was issued and when the accident occurred there was no law to prevent a child 10 years old from operating an automobile so long as he was not employed as a chauffeur. Before the accident happened a statute was enacted to the effect that no person shall operate or drive a motor vehicle who is under 15 years of age, unless such person is accompanied by a duly licensed chauffeur or the owner of the motor vehicle being operated, but that law did not become effective until January 1,1920.

What, then, is the meaning of the language, “While operated by any person in violation of law as to age, or, if there is no legal age limit, under the age of 16 years of age?” The words “if there is no legal age limit” make it clear that the provision was only intended to apply to a person who was prohibited by law from operating a car, solely, because of his age. The law referred to must be one that fixes the age below which no person is permitted to drive. There is nót a word to indicate that the parties were contracting with reference to the age at which a chauffeur’s license might be procured. If appellant intended it to mean the age requisite for such a license.it is quite clear that more appropriate language could readily have been selected.

No doubt appellant uses this form of policy in many States. We know of no State in which a chauffeur’s license may be lawfully issued to one who is under 18 years of age. Some States have no limitation as to the age at which a child may drive a car providing he is not employed as a chauffeur. Others absolutely prohibit children under 15 and 16 from driving cars. Others permit children under those ages to drive if accompanied by a chauffeur or the owner of the car. If the present law fixing the legal age limit at 15 years had been in force at the time of the accident, no one would seriously contend, it seems to us, that such statute was not the law fixing the legal age limit within the meaning of the policy. As no legal age limit had been established, the clause in question fixing the age limit at 16 years must control. The manifest purpose of the policy provision was to excuse from liability only in case the operator was too young, either in the opinion of appellant or under the terms of a statute, to operate a car upon the public highways. Even if Jesse Bitzer was driving the truck as a chauffeur and was not of the requisite age, he was not violating any statute fixing a legal age limit because no such statute was in force. He was above the age agreed upon by the parties and the contract was complied with.

It seems to us that this is a more reasonable construction than that contended for by appellant, but if both interpretations are equally reasonable the one which will enable the insured to recover should be adopted. Zeman v. North American Union, 263 Ill. 304.

In Travelers’ Ins. Co. v. Dunlap, 160 Ill. 642, at page 647 the court said: “It would not be difficult for the insurer to use language which, in respect to the question here under consideration, would be free from doubt. A policy' of insurance should not be so' framed as to be susceptible of one construction in the hands of the soliciting agent, and of quite a different one in the hands of the adjuster.” This language is highly appropriate to the policy in question.

It is suggested that the court erred, in the calculation of interest and by reason thereof the judgment is larger by $72.55 than it should have been under, the averments of the declaration. That seems to be true, but if the point had been brought to the attention of the court the declaration could have been amended and under the provisions, of the policy the court would have been fully warranted in allowing a larger amount than it did. We refer to the fact that under the policy appellant agreed to pay interest on $5,000 from the date of the judgment providing the judgment was for that amount or more. The judgments against appellees were for more than $5,000 and were rendered in the fall of 1920 and appellees settled them in the fall of 1921 by paying $7,500. The court computed interest on $5,000 and the court costs from the date of settlement until the entry of judgment in this case. So far as the record shows appellant did not call the attention of the court to the fact that an error had been made in computing interest. The question cannot be considered here where it is raised for the first time. District Grand Lodge v. Menken, 67 Ill. App. 576. But if we were to reverse the judgment for that reason appellees could amend their declaration and obtain a larger judgment.

The judgment is fully supported by the law and the evidence and it will be affirmed.

Affirmed.


author: Mr. Justice Higbee-

text:
    Houston B. Moore, Appellee, v. Standard Accident Insurance Company, Appellant.

    1. Insurance — useless treatment by physician not required under accident policy. Beeovery may be had under an accident insurance policy for total permanent disability if the insured was under the care of a physician, even though useless treatment was not administered, although the policy required such treatment as precedent to insurance payments.
    2. Insurance — accident policy provision for physician’s treatment applied only to temporary disability. An accident policy provision that insured must have been under physician’s treatment during the period for which he seeks recovery will be construed to apply only to a total temporary disability and not to a permanent disability of which further treatment is useless.

      3. Insurance — construction of accident policy provision for proof of loss. Under evidence showing that one insured hy an accident policy furnished proofs of loss following which the insurer made weekly payments for some time, the insured as a sufferer from total permanent disability will not be required to prove loss under the policy provision for proof of loss after the disability terminates, but such provision will be construed to apply only to a temporary disability.
    Appeal by defendant from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Merritt U. Hayden and Burton & Burton, for appellant.
    M. R. Sullivan, for appellee.

       Beeeived from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Higbee-

delivered the opinion of the court.

Appellant insured appellee in the sum of $1,000 and a weekly indemnity of $12.50 against loss resulting from bodily injuries effected directly, exclusively and independently of all other causes through external, violent and accidental means. The policy provides that if such injury should directly and immediately, totally and continuously, disable and prevent him from performing any and every kind of duty pertaining to his occupation, appellant would pay him $12.50 per week for the entire period during which he is so disabled and under the treatment of a legally qualified physician or surgeon by reason of such disability.

Appellee was a railroad section man. He was seriously injured on September 13, 1921, when the car upon which he was riding was accidentally derailed. Appellant recognized its liability and paid the weekly indemnity until April 24, 1922, when it ceased to make further payments. Six months later appellee sued to recover the sum of $325, the amount then due. Appellant filed the general issue but offered no evidence.. The trial resulted in a verdict and judgment in favor of appellee for the amount claimed.

Appellant admits that there is sufficient evidence to support a finding that appellee was totally and continuously disabled within the meaning of the policy during the time in question; It is insisted, however, that appellee was not entitled to recover because he failed to prove that during the entire period from April 24,1922, to November 29,1922, he was under the treatment of a legally qualified physician or surgeon by reason of such disability.

Dr. Scott treated appellee from the date of the injury until some time in the spring of 1922. Appellant notified appellee to appear at Dr. Scott’s office on May 5, 1922, and submit himself to an examination to be conducted by Dr. Scott and Dr. Kiser. The doctors examined him at that time. Appellee was under the care and treatment of Dr. Haven from May, 1922, until the day'of trial with the exception of 6 or 8 weeks when appellee was in Texas. Dr. Haven says he gave appellee no treatment, only advised him to not try to use the arm too much, and gave him a nerve sedative.

The only reasonable conclusion to be drawn from the evidence is that appellee is totally and permanently disabled and can never follow his occupation and that no medical treatment will improve his condition. In many cases the very purpose for which accident insurance is written would be defeated if there could be no recovery for an injury which did not require the regular attendance of and treatment by a physician. A recovery may be had if the insured was under the care of a physician even though no treatment was administered. Rechtzigel v. National Casualty Co., 143 Minn. 302,173 N. W. 670.

An accident policy providing that indemnity should not be paid for more than two years, nor longer than insured is under regular treatment of a legally qualitied physician or surgeon, does not require treatment, where it is undisputed that none of value could be given. Hunter v. Federal Casualty Co. of Detroit, Mich., 199 App. Div. 223, 191 N. Y. Supp. 474. In'the first part of the policy appellant insured appellee in the sum of $12.50 per week against loss resulting from bodily injuries. It seems to us that it would be a reasonable construction of the provision in question to hold that it only applies to a total temporary disability and not to one that is total and permanent and for which medical treatment would be of no value. In a case, somewhat similar, such a provision was so limited. Cook v. Benefit League of Minnesota, 76 Minn. 382, 79 N. W. 320.

It is argued that appellee was not entitled to recover because he failed to prove that he furnished proof of loss. The evidence shows that he submitted some proof of loss which must have been satisfactory because appellant paid the weekly indemnity for several months, and made no objection to the proof submitted. The only provision of the policy pertaining to proof of loss, so far as shown by the abstract is: “Affirmative proof of loss must be furnished to the company at its said office in case of claim for loss of time from-disability within 90 days after the termination of the period for which the company is liable, and in case of claim for any other loss, within 90 days after the date of such loss.”

Appellee’s claim is for loss of time. He is totally and permanently disabled. The period for which appellant is liable will not terminate until appellee’s death. The policy provides that no action shall be brought prior to the expiration of 60 days after the proof of loss has been submitted. If the provisions aforesaid are construed literally and are applicable to such a case as the one at bar proof of loss cannot be furnished until appellee’s death and suit cannot be brought until 60 days thereafter. Such a construction Avould defeat the very purpose of the insurance contract. Appellant agreed to pay weekly indemnity for loss of time occasioned by bodily injuries. A provision that “no benefits shall be due until disability ceases or the right to benefit has terminated” does not apply to a claim for permanent total disability. 1 C. J. 484; Binder v. National Masonic Acc. Ass’n, 127 Iowa 25, 102 N. W. 190. We cannot give our assent to a construction that would delay the payment of weekly indemnity until the death of appellee. Such a construction Avould be unreasonable in view of the fact that appellant agreed to pay weekly indemnity. The provisions are inconsistent and it is more in accord with right and justice to hold that the provision in regard to proof of loss, above quoted, was intended to apply, only, to a temporary loss of time, and not to a total and permanent loss. The judgment is affirmed.

Affirmed.


text:
    City of Mount Vernon, Illinois, Appellee, v. H. C. Rainwater, Appellant.

    1. Penalties and forfeitures — degree of proof required to recover. While a suit to recover a penalty for violating an ordinance against maintaining a disorderly house is civil in nature, yet a greater degree of proof is required to convict than a mere preponderance of evidence.
    2. Penalties and forfeitures — admitting evidence of other than defendant’s ordinance violations as error. In an action to collect penalties for infringing an ordinance against maintaining a disorderly house, the admission" of evidence as to what other parties on the premises pleaded guilty to in other cases when charged with violating other sections of the ordinance than defendant violated, is erroneous.

      Appeal by defendant from the Circuit Court of Jefferson county; the Hon. J. C. Kern, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.
    W. H. Green, for appellant.
    George G. Gilbert, Jr., for appellee.

       Received from clerk of Appellate Court, August 8, 1927,

   Mr. Justice Higbee

delivered the opinion of the court.

This is a suit to recover from appellant a penalty for the alleged violation of an ordinance of the City of Mount Vernon, Illinois.

The complaint made July 14, 1922, charged appellant with violating section 4 of ordinance 345 of said city, by keeping or maintaining a common ill-governed and disorderly house to the encouragement of idleness, gambling and drinking or fornication, and a warrant was issued thereon by a police magistrate. On appeal the case was tried in the circuit court of Jefferson county with a jury and a verdict of guilty was returned and a fine of $10 assessed against appellant. There was a judgment against appellant for said fine of $10 and costs and it was ordered that appellant be committed to jail in case of his failure to pay the fine and costs in 30 days.

On the trial in the circuit court the court instructed the jury: ‘ ‘ The suit is a civil one and the rules of evidence are the same as in a civil suit; the city is only required to prove the guilt of the defendant by the preponderance of the evidence or the greater weight of the testimony.” It is insisted by appellant that this instruction is erroneous for the reason that while the suit is civil in its nature, yet as it was brought to recover a penalty for the violation of a city ordinance, a greater degree of proof is required for a conviction than a mere preponderance. The position taken by appellant on this question is sustained by the well-established rules of evidence in this State. An early case on this subject is the case of Ruth v. City of Abingdon, 80 Ill. 418, where the Supreme Court held, in a prosecution to recover a penalty for the violation of a ‘‘town ordinance” against selling intoxicating drinks, that in such an action it was error to give an instruction to the effect that it was sufficient to convict if a preponderance of the evidence was in favor of plaintiff. This case has been often cited with approval and never, so far as we have been able to learn, has it been distinguished in any way. Among the other cases adhering to this rule in actions to recover penalties for violation of a city or village ordinance are City of Waverly v. Goss, 138 Ill. App. 68; City of Chicago v. Classen, 170 Ill. App. 310; City of Chicago v. Stone, 187 Ill. App. 90. In two of the above cases the amount of evidence required for a conviction of the violation of a city or village ordinance is described as “a clear preponderance.” Under this line of authorities the instructions complained of were clearly erroneous and constituted reversible error.

It appeared from the proofs that the officers raided- or searched appellant’s place of business, the same being a hotel, on the night of July 13, 1922, and at the same time arrested, in addition to appellant, other persons then on his premises against whom charges were also preferred the next day. The court admitted in evidence the docket of the justice of the peace showing that these parties were charged with a violation of section 1 of ordinance 260, and that one person was charged with a violation of section 2 of ordinance 698. The docket in each case showed that pleas of guilty were entered by the parties so charged and fines assessed but did not show what they pleaded guilty to. These ordinances, of which violations were charged in these entries of the police magistrate, were not introduced in evidence but, over the objection, of appellant, witnesses were allowed to testify that the charges to which the respective defendants entered pleas of guilty were gambling except as to one and that he pleaded guilty to “having” intoxicating liquor. It is urged by appellant this testimony was improperly admitted.

Waiving the question whether the judgments of the police magistrate could be properly explained or amplified by parol testimony, yet we are of the opinion that the admission of this testimony as to what other persons pleaded guilty to in other cases, when charged with violating other sections of the ordinance of appellee than that which appellant was charged with violating, was erroneous as against appellant.

The judgment will be reversed and the cause remanded.

Reversed and remanded.