text:
    Frank S. Weigley v. Canute R. Matson, Sheriff, Impl’d, etc.

      Bill to Set Aside Default Judgments—Record as'Evidence—Fees of Creditor's Attorney—Issue of Executions.

      1. The record of a court showing a judgment by confession in open court, imports verity and can not be contradicted by parol evidence.
    2. A stipulation by which a debtor agrees to pay the fees of his creditor’s attorney, in case of legal proceedings to collect his debt, rests upon a good and valuable consideration, and will be sustained.
    S. Upon a bill to have certain default judgments vacated and set aside, and to enforce an alleged prior lien, it is held: That the admission by the complainant that the judgments in question purport to have been entered in open court in term time, is an admission of the existence of conclusive evidence that such judgments were so entered; and that, as the judgments were part of the proceedings of the court in term time, it is immaterial whether the records were actually written up when the executions were issued.
    [Opinion filed December 14, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Elliott Anthobt, Judge, presiding.
    The bill in this case alleges that, on the 27th day of December, 1886, Frank S. Weigley, the complainant, recovered a judgment against Sidney Guy Sea, in the Superior Court of Cook County, for 82,279.11 and costs, and on the same day caused an execution to be issued thereon to the Sheriff of Cook County, who thereupon levied the same upon a stock of merchandise belonging to said Sea; that at the time said execution was issued said Sheriff was in possession of said stock of mer. chandise under and by virtue of six certain pretended writs of execution issued upon six certain pretended judgments entered by confession in said Superior Court on the 27th day of December, 1886, in favor of various parties, amounting, in the aggregate, to 816,670.80 besides costs; that said pretended judgments were entered and said executions issued without any authority of law; “that each and every of said pretended judgments so entered as aforesaid, purport to be rendered in open court, in the branch of the Superior Court presided over by the Honorable Elliott Anthony, one of the Judges of the Superior Court, on the 27th day of December, 1886, at the December term of said court.”
    The bill further alleges that the branch of said court presided over by said Judge was not opened by him on the first day of said term or at any time thereafter, and was not open and in session at the time said pretended judgments purport to have been entered, and had not been open for said December term; that the declarations and cognovits on which said judgments were respectively entered were presented to said Judge at the place other than the court house where said court is provided by law to be held, whei-e no court was in session, and before either of said suits was docketed or commenced in said court, and that said Judge indorsed on said several declarations and cognovits the words, “ Enter judgment, E. Anthony, Judge;” that afterward said declarations and cognovits were filed in the office of the clerk of said court, and that executions were immediately issued thereon °by said clerk and placed in the hands of said Sheriff, who levied the same on said stock of merchandise; that at the time said executions were issued no entry of said judgments had been made upon the records of said court, and that said judgments were afterward entered without any authority other than as above stated; that said stock of merchandise has been advertised by the Sheriff for sale, and that the proceeds of the same will not be sufficient to satisfy said six judgments and the complainant’s judgment; that said Sea is hopelessly insolvent, and has no other property subject to execution; that said pretended judgments and executions are absolutely void in law and create no lien on said property, and that the complainant’s execution is the -first lien thereon.
    It is further alleged that each of said notes and warran ts of attorney upon and by virtue of which said pretended judgments were entered, provides for the entry of judgment for the amount specified in the note, and five per cent, thereof in addition for attorneys’ fees, such attorneys’ fees amounting in all to over $800; that said attorneys’ fees operate as a fraud on the bona fide creditors of said Sea by diminishing his assets by that amount, and converting the same to the use of the attorneys of the plaintiffs in said judgments.
    The bill prays that said six judgments may be declared null and void and be vacated and set aside, and that the executions thereon be declared to be void and of no effect, and that the complainant may be decreed to have a first and prior lien upon all the property levied upon, and that the Sheriff be directed first to pay the complainant the amount of his judgment before distributing any of the proceeds of said property to any other party.
    A demurrer to said bill being sustained by the court, the complainant elected to abide by his bill, and thereupon the decree was entered dismissing said bill at the complainant’s costs for want of equity. From this decree the complainant has appealed to this court.
    Messrs. Weigley, Bulkley & Gray, for appellant.
    A judgment by confession can be either entered in term time or vacation, and if in term time, it can only be in open court. Conkling v. Ridgley, 112 Ill. 36: Anderson v. Field, 6 Ill. App. 307, 314.
    Judgments by confession can be entered before the clerk only in vacation, but during term time they must be entered in open court. The case must be brought before the Judge in person and passed upon by him. The clerk can not act for him. The entry of a judgment is a judicial act which the Judge of the court alone can perform. And he can only perform such act while sitting in open court and acting as a court. Ling v. King, 91 Ill. 571.
    This is not a bill to set aside judgments on the ground of fraud or collusion, or irregularities, but it'is a bill to remove an obstruction to the satisfaction of appellant’s execution, and nothing more, based upon the fact that the said pretended judgments are absolutely void, because not entered by any court.
    If the said pretended judgments were entered in vacation before the clerk, under the authority of the statute, then no execution would be valid, issued before the same were entered upon the records of said court, whatever may be the rule in term time. Ling v. King, 91 Ill. 571; Cummins v. Holmes, 109 Ill. 15.
    Messrs. Flower, Remy & Holstein, for appellee.
    Where the court has jurisdiction of the parties and subject-matter of the action, and the journal of the court recites a trial and judgment in term time, the record imports absolute verity, and can not, in a collateral proceeding, be overthrown by parol testimony tending to show that the trial was had and the judgment rendered in vacation. Mitchell v. Insley, 7 Pacific R. (Kan.) 201; see, also, Wiley v. Southerland, 41 Ill. 25; Hughes v. Cummings, 2 Pacific R. 928.
    A stipulation for the payment of attorneys’ fees in a promissory note, in the event of an action to collect the same, is valid and enforceable. Nickerson v. Sheldon, 33 Ill. 372.
    A judgment entered by confession, upon warrant of attorney, may properly include attorneys’ fees, if authorized by the warrant of attorney. Ball v. Miller, 38 Ill. 110; Clawson v. Munson, 55 Ill. 394; Smith v. Silvers, 32 Ind. 321; Imler v. Imler, 94. Pa. St. 372; Parham v. Pulliam, 5 Cold. 487; Huling v. Drexel, 7 Watts, 126.
   Bailey, J.

The complainant, having obtained a judgment against one Sea, and having levied his execution upon the property of his debtor, seeks by his bill to have certain prior judgments and executions against the same debtor and in favor of other creditors vacated and declared null and void, so as to give priority to the complainant’s execution. The judgments thus attacked were entered by confession, and no claim is made that the indebtedness for which they were entered was not justly and in good faith due, nor are there any allegations of fraud or collusion. The claim to relief is based solely upon certain alleged irregularities in the entry of said judgments.

The bill admits that said judgments purport to have been entered in open court in term time, but it is alleged that, in fact, the branch of said court presided over by the Judge before whom said judgments purport to have been entered was not in session on that day and had not been opened for that term; that the declarations and cognovits were presented to the Judge out of court; that he there indorsed thereon directions to enter judgments, and that said papers, with such indorsements, being filed with the clerk, said judgments were entered by him.

It is the settled rule of law that the record of a court, show'ing a judgment by confession in open court, imports verity, and can not be contradicted by parol evidence. Roche v. Beldam, 119 Ill. 320. The record of such judgment is the only proper evidence of itself, and is conclusive evidence of the fact of the rendition of the judgment, and of all the legal consequences resulting from that fact, both as against the parties to the judgment, and all others whose interests may be affected thereby. Koren v. Roemheold, 7 Ill. App. 646; Richardson, v. Beldam, 18 Ill. App. 527; Jasper v. Schlesinger, 22 Ill. App. 637.

The complainant, then, by admitting that the judgments which he is seeking to have set aside, purport to have been entered in open court in term time, admits the existence of judgment records which furnish conclusive evidence that said judgments were so entered, and he has therefore precluded himself by such admission from insisting that the contrary is the fact.

It is alleged that the executions are void because they were issued and delivered to the Sheriff before the judgments were actually entered upon the records of the court. As the judgments were a part of the proceedings of the court in term time, it is not material whether the records of the judgments were actually written up or not at the time the executions were issued. Such was the conclusion reached by us on full consideration of this question in Jasper v. Schlesinger, supra.

The point is made that the provisions of the warrants of attorney as to attorneys’ fees was fraudulent as to other creditors, in that it appropriated the amount of such fees to the payment of the attorneys of the judgment creditors without consideration. It is claimed that to the extent of such fees at least the judgments should be vacated. A stipulation by which a debtor agrees to pay the fees of his creditor’s attorney in case the latter is compelled to resort to legal proceedings to collect his debt, is an agreement which is not only eminently just, but which rests upon a good and valuable consideration. It is not in the nature of a gratuity, but is a contract by which the debtor, in part consideration of the credit given him, agrees to indemnify his creditor against the consequence of his neglect or refusal to pay, whereby the creditor may be subjected to the necessity of employing and paying an attorney.

We are of the opinion that the bill presented no grounds for relief. The demurrer was therefore properly sustained.

Decree affirmed:


source: Caselaw Access Project

author: Pillsbury, J.

license: Public Domain

text:
    Martin Lynch, Administrator, v. Eugene Elmer.

      Administration—Employment—Term of Service—Bate per Annum— Contract—Instruction—Question for Jury.

    1. Where an employment is at a certain sum per annum, such sum may only be the rate of compensation agreed upon for the time served and not a specification of any particular term of service.
    2. Upon appeal from a judgment allowing a claim against an estate, it is held: That an instruction in which it was assumed that an employment for $900 per annum constituted a contract for an entire year, and that a continuance of the employment was governed by such contract, was calculated to mislead the jury; that said instruction also erroneously assumed a first contract for a year; that the jury might consider the original contract in ascertaining what the terms of the new agreement were under which the service was continued; that the claimant can not recover for a wrongful dismissal until he has proved a contract for a definite period; and that an objection based on a variance can not be first raised in this court.
    [Opinion filed September 10, 1887.]
    Appeal from the Circuit Court of St. Clair County; the Hon. Amos Watts, Judge, presiding.
    The appellee filed his claim in the County Court against the estate of B. F. Switzer, deceased, in which he claimed to recover for one year’s salary as book-keeper at $900, less a credit of $311.25 admitted to have been paid.
    His claim being allowed, the administrator prayed and obtained an appeal to the Circuit Court, where, before the court and a jury, he was again defeated, and he brings the case to this court.
    Messrs. Turner & Holder, for appellant.
    Mr. E. L. Thomas, for appellee.
   Pillsbury, J.

It appears from the evidence that the claim of the appellee is not for a year’s salary earned in the employ of decedent, but arises from the fact claimed by him to exist, that he was employed for a year and was discharged without cause before the expiration of his term of service.

The appellee went to work for Switzer on April 2, 1882, and continued in his employ until August 8, 1885, when he was discharged.

The only evidence in the record bearing upon the question of an annual hiring for the entire ensuing year is the testimony of John Eimer, the father of the appellee, and certain entries in the books of Switzer claimed to have been made under his direction or approval.

The substance of Eimer’s testimony is that Switzer saw him and asked him if he could get Eugene (the appellee) to keep his' books; that if he was not mistaken Switzer said he was paying $1,000 a year and would like to reduce expenses a little, but he was willing to pay Eugene $900 per annum; was never present when they made a contract and don’t know what their contract was.

The entries in the books relied upon show charges against Eugene for money received as salary.

These entries are alike except as to amounts and time of payment, one of which we give:

Expense Account :

Eugene Eimer, salary from June 1st to August 1, 1885, at the rate of $900 per annum, $150.

In this condition of the evidence the court gave to the jury-on heliaif of the appellee, the following instruction:

“ The court instructs the jury that if they believe from the evidence that Switzer in his lifetime employed Eimer for §900 per annum, and that he began work on April 2. 1882, and continued to work under the same terms without any change, then the first contract governs, and if a new year was commenced the contract would be continued for that year under the same terms as the first year’s employment, unless the jury believe from the evidence that a new contract was entered into.”

This instruction was calculated to mislead the jury and should not have been given. It assumes that an employment for §900 per annum constitutes a contract for the entire year and if the employment was continued this first contract governs, etc. Again it assumes a first contract for a year, when the question should have been left to the jury to determine whether there was in fact a contract for a year.

Before the appellee can recover for a wrongful dismissal he must prove a contract for a definite period, as no presumption arises that a hiring for an indefinite time is a hiring for a year.

It does not necessarily follow that the amount of §900 per annum as testified to by Eimer, or the entries upon the books, amount to conclusive proof that there was a hiring for an entire year in the first instance.

It may have been but a rate of compensation agreed upon for the time served and not a specification of any particular time agreed upon, as was said in Pfund v. Zimmerman, 29 Ill. 269, and also held in Haney v. Calwell, 35 Ark. 156. This evidence taken in connection with the other circumstances connected with the service may be proper for the consideration of the jury in determining what the real contract was between the parties, but do not of themselves make the contract for a definite time.

From all the evidence the jury are to ascertain what was the agreement between the parties, as it is evident that their relation existed by virtue of some kind of a contract.

The original contract did not, and could not, under the Statute of Frauds, extend into a second year, but it may be considered by the jury-in ascertaining what the terms of the new agreement were under which the service was continued for the last year, or the part served before the dismissal. Tatterson v. Suffolk Man’f’g Co., 106 Mass. 56.

Regarding the point made that there is a variance between the claim filed and the proof, in this, that the claim is for a year’s salary, and the proof shows that evidence of a wrongful dismissal is the basis of the action, it may be said no objection was interposed in the court below to the introduction of the evidence upon that ground, thus affording an opportunity to the claimant to amend his claim, and in such case the point now made for the first time must be treated as waived.

For the error of the court in giving the instruction for appellee, the judgment will be reversed and the cause remanded.

Judgment reversed.


author: Wilkin, P. J.

text:
    The Milwaukee Mechanics’ Mutual Insurance Company v. Albert Ketterlin, for use, etc.

      Fire Insurance—Change of Title to Avoid Policy—Conveyance of Homestead by Husband and Wife.

    1. An estate of homestead under our statute may he legally conveyed from the husband to the wife.
    2. Such a conveyance is such a change in the title as will avoid a policy of fire insurance containing a stipulation that any change in the title without the consent of the company shall have that effect.
    [Opinion filed September 10, 1887.]
    In erboe to the Circuit Court of Effingham County; the Hon. William C. Jones, Judge, presiding.
    Mr. S. F. Gilmore, for plaintiff in error.
    Messrs. Wood Brothers, for defendant in error.

      The conveyance of a homestead by a husband to his wife, she not subscribing or acknowledging the same, and the husband continuing in occupancy, is insufficient to pass the legal title. The forfeiture provided in clause ten of the policy is not one favored by the law, and the party claiming it must bring himself strictly within its provisions. Hence our Supreme Court has held that either the passing of an equitable interest, or the parting of the legal title, by way of mortgage, is not such change of title as to avoid a policy, under a simular clause. Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213; Com. Ins. Co. v. Spankneble, 52 Ill. 53.
    Notwithstanding the deed Ketterlin still had his homestead in the insured property.
    To avoid the policy, there must have been an alienation or change of title in fact; not a nominal one. Flanders on Fire Ins., 417. There must be nothing short of a conveyance of the title, a parting of all the interest of the owner and passing it to the grantee. May on Insurance, 291, Sec. 267. Hence it is well settled that the policy is not avoided by a conveyance that is, for any cause, void. Wood on Fire Ins., Vol. 1, 703; School District v. Ætna Ins. Co., 62 Me. 330; Com. Ins. Co. v. Spankneble, 52 Ill. 53.
   Wilkin, P. J.

The facts necessary to be considered in giving our reasons for reversing this case may be briefly stated as follows: On November 12, 1883, plaintiff in error issued its policy of insurance to defendant in error Ketterlin for §1,200 on a two-story frame store-house on lots 1 and 2 in block 9 in the Town of Dieterich, for one year.

On the 27th of December, 1883, the other defendant in error, Swan Swanson, took a mortgage on the insured premises from Ketterlin and wife to secure the sum of §950 and thereupon plaintiff in error stipulated that the loss, if any, should be payable to said Swanson as his interest might appear. This policy was renewed by Ketterlin November 11, 1884, for another year, and on the 9th day of January following, he conveyed the property by deed of general warranty to his wife, Amelia, without obtaining the consent of plaintiff in error. By the terms of the policy it is agreed that the policy shall be wholly void if the property be sold, transferred, or if any change takes place in the title, use or occupation by act of the assured without the consent of the company indorsed on said policy. While there was a room in the building used and occupied in carrying on a small mercantile business, it was also occupied by Ketterlin as a family residence, and with the lots on which it was built, was his homestead. There were some transfers of the stock of merchandise during the years 1884 and 1885, prior to the 'oss. Ketterlin, however, continued to occupy the building with his family as his homestead and worked in the store as a clerk, and we hold that there was not such a change of the use and occupation of the premises as would work a forfeiture of the policy.

There is a conflict in the evidence as to whether the premises were worth more than §1,000, but the jury no doubt found that fact in favor of the theory of defendants in error and we have no disposition to disturb that finding. The legal question, therefore, as to whether the conveyance by Ketterlin to his wife produced such a change in the title to the insured premises as by the stipulation in the policy renders it void, may be considered in the light most favorable to defendants in error. It is earnestly insisted and ably argued by counsel in their behalf that the deed being from husband to wife and purporting to convey a homestead not exceeding in value §1,000; is absolutely void for the reason that by the express provisions of our statute no release, waiver or conveyance of the estate of homestead shall be valid, unless the same is in writing, subscribed by the householder, and his or her wife or husband if he or she have one. The question here involved may be further simplified by stating it thus: can the estate of homestead under our statute be legally conveyed from husband to wife?

Although it has not been decided by our Supreme Court, on the authority of Thompson on Homesteads, 473; Ruhl v. Bingenheimer, 28 Wis. 84; Iron v. Mills et al, 41 Tex. 310, and Stevens v. Castal (Sup. Ct. Michigan), 5 Western Rep. 724, the question must be answered in the affirmative. These authorities, in upholding such conveyance, proceed upon the reasoning that the statutory requirement that husband and wife shall join in a conveyance of the homestead is for the protection and benefit of 'the wife, and hence, when the conveyance is to her, its sole object is accomplished without her joining.

It is true that under our statute, children have an interest in the homestead, but it is an interest absolutely under the control of the parents, and in no sense a vested interest. The parents may defeat it at pleasure by conveyance or abandonment. Clubb v. Wise, 64 Ill. 157; Shepard v. Brewer et al, 65 Ill. 383. The validity of the conveyance by Ketterlin to his wife being questioned upon no other ground, we hold that the title was changed thereby, and being without the consent of plaintiff in error, rendered the policy void and for that reason the judgment of the Circuit Court must be reversed.

Reversed.


text:
    C. C. Cross v. School Directors.

      School Contract with Teacher for Term Extending into Neto School Tear—Discharge—Action for Salary.

    1. School Directors have no power to employ a teacher just before the expiration of the school year for a term extending three months into the ensuing year.
    2. In the case presented, it is held: That the plaintiff can not recover under bis first contract, which was abandoned by mutual consent; that his discharge was not wrongful; and that he can not recover for the time taught, the cause of action set out being the wrongful discharge.
    [Opinion filed September 10, 1887.]
    In error to the County Court of Saline County; the Hon. Boer Phillips, Judge, presiding.

      Declaration in assumpsit by plaintiff in error, containing two counts: The first alleges that on the 6th of March, 1886, a written contract was entered into by the plaintiff, a legally qualified school teacher, and the defendants, at a special meeting of said defendants as the Board of Directors of said district, employing the plaintiff to teach the public school in said district for a term of three months, commencing April 1,1886, ■at $40 per month. That the plaintiff began his school under said contract April 1st, and continued it until April 12, 1886, when, by mutual consent of the plaintiff and the defendants, at a special meeting, said contract was discontinued as to the unexpired part of said term. The second alleges that on the 12th of April, 1886. a second written contract was entered into by the plaintiff and defendants at a special meeting, employing him to teach the public school in said district, for a term of three months, commencing on said date, at $2 per day. That the plaintiff began his school under said contract April 12th, and continued it until April 19, 1886, when the defendants discharged him from said school; that he was wholly unemployed during the remainder of the said three months, and has sustained $140 damages.
    The above statement of the claims made by the plaintiff is sufficient to a proper understanding of the opinion of the court. The court below held the contract noti binding upon the district and a verdict for defendants followed, upon which judgment was entered by the court and plaintiff sued out this writ of error to reverse such judgment.
    Messrs. Marsh & Scott, for plaintiff in error.
    Messrs. Boyer & Choisser, for defendants in error.
   Pillsbury, J.

The first contract being abandoned by mutual consent, the plaintiff can not recover because he did not teach the full term of three months thereunder. The second contract, entered into on the 12th day of April, engaging the plaintiff to teach for a term of three months thereafter, when the election for directors of the district would occur, under the statute, on the 17th of the same month, and a new organization of the Board of Directors then take place, was such an evident attempt upon the part of the out-going board to control the school for three months of the ensuing school year, irrespective of the wishes of the pe >ple that might be expressed at the election, or the desires of the new Board of Directors, then to be provided for, as to render it voidable by the incoming board, under the authority of the cases of Stevenson v. School Directors, 87 Ill 255, and Davis v. School Directors, 92 Ill. 293. It would be a work of supererogation for us to attempt to add to, or enlarge upon, the reasons so clearly stated in those opinions why such contracts can not be upheld, and we have no desire so to do.

Directors can not be permitted, five days before the current school year expires, to hire a teacher, perhaps obnoxious to the people of the district, to teach a term of school extending three months or nearly so into the ensuing school year. The only doubt we have had about the correctness of the judgment of the court below, in favor of the defendants, arises from the "fact shown that the plaintiff taught for the space of about three school weeks, under contracts, which, although voidable by the successors of those making them, would furnish the measure of the recovery so far as fulfilled, during the continuance in office of the directors making them.

A careful examination, however, of the declaration in the case, shows that the plaintiff below-does not cl aim for the services actually performed, but makes the gravamen of his action the wrongful discharge by which he lost prospective gains and profits that otherwise he would have made. 3STo common counts appear in the declaration, and no such breach of the special contracts is alleged as would authorize a recovery for the money due him for the time actually engaged in teaching.

Minor alleged errors of the court are not further noticed, as the plaintiff could have not recovered even if such errors had not been committed. Davis v. School Directors, supra.

Peroeiving no error for which the judgment below should be reversed, it will be affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    The City of East St. Louis v. Trustees of Schools.

      Municipal Corporations—Proceeds of Dram Shop Licenses—•Action by School - Trustees—Consent Judgment—Agent—Authority—Mandamus— Motion to Vacate Judgment and Order.

    In an action by school trustees against a municipal corporation to recover “ one-half of all money received into the city treasury from dram shop licenses,” as provided by the charter of the defendant, it is held: That the
    representative of the defendant was duly authorized to enter its appearance and consent to the rendition of the judgment in question and consent to the order for the tvrit of mandamus; that the court below properly overruled the motion to vacate said judgment and order; and that if, on the return of the writ, it appears that the City Council was ordered to do an impossible and illegal act, the court below will doubtless so modify its order as to protect the interests of both parties.
    [Opinion filed September 10, 1887.]
    Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, presiding.
    Messrs. F. G. Cockrell and E. R. Davis, for appellant.
    A suit was pending against the city on the part of the trustees, and a suit involving the same subject-matter was pending against the City Treasurer; the City Attorney had filed pleas in the case against the city which raised the question of the liability of the city; it was well known that it was a matter of doubt whether, under the Harper Law, the trustees were entitled to the money arising.from dramshop licenses; hut, without consulting the City Attorney or either of the special counsel, without giving any reason, and without any reason in fact, Mr. Flannigen withdrew the pleas filed by the City Attorney, and allow'ed a judgment to be entered against the city, and thereafter permitted an order for a peremptory mandamus to be awarded for the payment of the entire judgment, interest and costs, and this without regard to the necessary current expenses of the city, and without regard to other prior mandamus orders. It is claimed that Mr. Flannigen had authority from the City Council to appear and consent to the judgment and the order for peremptory mandamus. In reply to this, we wish to say that there is no record of any such authority; and while counsel for the trustees and Mr. Flannigen did produce what purported to be a certified copy of a motion passed by the Council, it is difficult to see how the City Clerk could certify to a motion without any record to support it. See Logansport v. Crockett, 64 Ind. 319; People v. Lee, 112 Ill. 113.
    But if the action of a City Council can be proved in this way or by parol testimony, or if in fact the City Council did authorize Mr. Flannigen to consent to the entry of the judgment and the order for mandamus, it only shows that the Council was actuated by corrupt motives, for the reason that the transaction was so high-handed and outrageous, going to the extent of pledging the entire revenue of the city a year in advance, without regard to the necessary current expenses of the city, that such an act would bear no other construction. The city, as appears from the record, is and was indebted beyond its constitutional limit, and is and was hampered with numerous judgments and mandamus orders. It was well known the city could not in any one year raise over $70,000 net revenue, and out of this amount the necessary current expenses had to be paid. Mo power can rightfully take away from a city the means necessary for current expenses. City of East St. Louis v. People, 6 Ill. App. 76.
    Mr. L. H. Hite, for appellees.
    The issue at bar arises upon a motion filed at the close of the May term, 1887, of the St. Clair Circuit Court, to set aside and vacate a mandamus order entered at the September term, 1886, of said court, and to vacate a judgment in another case rendered at said September term. The grounds for the motion are that the judgment was unauthorized, illegal and void. That it was fraudulently obtained. That the order for mandamus requires the performance of an impossible thing.

      The original judgment was the result of a suit commenced in the Circuit Court. An amended declaration sets out that on the 30th of November, 1886, the defendant, City of East St. Louis, had collected and received into its city treasury from dram shop licenses, between the date mentioned and the 1st day of January, 1881, the sum of §200,000, and that one-half thereof belonged to the Trustees of Schools. There were several suits pending between the Trustees and the city and its ex-Treasurer, Launtz, and its present Treasurer, Flannigen, to' enforce the payment of that money to the schools. On the 80th of November, 1888, the attorney of the Trustees went before the City Council of. said city and proposed to end all existing litigation by taking a judgment for all moneys which could be provedjto be due, provided the city would consent to the granting of a mandamus to compel the payment of said judgment. A motion was made and adopted, unanimously authorizing Alexander Flannigen, as attorney for the city, to appear for it in the case and take the action he did. In the suit at law the court heard the evidence and rendered judgment accordingly. In the mandamus proceeding the order says, “ it appearing to the court that the said defendant by its City Council had duly authorized said attorney to act for it and to consent to the entering óf a judgment according to the prayer of the petition of relators, and a jury being waived by the parties, the court hears the evidence,” etc.
    It is claimed that there is no evidence that Flannigen was authorized to appear. The courts have decided that the authority of an attorney who appears in a case is presumed until the contrary is shown. ]j}ut further, he produced to the' court a certified copy of the action of the City Council, and the court found “that said attorney was duly authorized to appear for and on behalf of the defendant.” The' court found that fact; and again, when the matter was brought before the same Judge upon this motion he again found the facts.
    The Supreme Court has had the question before it as to whether the city owes the Trustees the one-half of the dram shop fund by it received into its treasury, and has decided that the city must pay it over to the Township Treasurer. City of East St. Louis v. Trustees of Schools, 102 Ill. 489.

      After a final judgment has been entered, and the term of court at which the judgment was rendered has closed, no steps having been taken to vacate the same, the court, at a subsequent term, has no power to alter or amend its final judgment so rendered, except, perhaps, in matters of mere form. Messervey v. Beckwith, 41 Ill. 452; McKindley v. Buck, 43 Ill. 488; Fix v. Quinn, 75 Ill. 232; Hibbard v. Mueller, 86 Ill 256; Hearson v. Graudine, 87 Ill. 115; Becker v. Sauter, 89 Ill. 596.
    After the close of a term at which a'judgment is rendered, its absolute verity can not be attacked even by affidavit. Goucher v. Patterson, 94 Ill. 525.
   Per Curiam.

We have examined the record in this case, the printed briefs, and arguments of counsel, and have had the benefit of oral arguments on behalf of the respective parties, and believing the best interests of all concerned' requires that our decision should be announced at once, we have concluded to file this per curiam opinion, rather than delay the matter to prepare and file one more elaborate. It sufficiently .appears, from the affidavits and evidence in the record, that Alexander Flannigen was duly authorized by the City Council of East St. Louis to enter the appearance of said city and consent on its behalf to the rendition of the judgment against it. And as there is no evidence of fraud or collusion rendering his action in the premises void, and no valid defense to said claim of the School Trustees, for which said judgment was entered, was shown, we find no reason why it ought to have been vacated, and mandamus being the only remedy to collect the judgment, the order for such a writ was properly made by the court with the consent of the city through its authorized attorney. The motion in this ease made in the court below being to set aside and absolutely vacate such order and vacate said judgment, we think was properly overruled. If it should appear by the return to the writ, the City Council was ordered by it to do an impossible and illegal act, the Circuit Court on such return being made will doubtless refrain from punishing the failure to obey its mandate asa contempt, and modify its order, so that the judgment can be collected, and yet the interests of the city be protected by leaving sufficient funds at its disposal for the necessary current expenses of the city government. The judgment is affirmed.

Affirmed.


author: Reasons for affirming by Wilkin, J.

text:
    Michael Smith v. Josiah Forth.

      Practice—Evidence.

    An objection to the admission of an account book in evidence can not be first raised in this court.
    [Opinion filed October 5, 1887.]
    Appeal from the Circuit Court of White County; the Hon. C. C. Boggs, Judge, presiding.
    Mr. Ross Graham, for appellant.
    No briefs were filed for appellee.
   Reasons for affirming by Wilkin, J.

This is a very small case growing out of a controversy over a saloon bill. Appellee sued appellant before a Justice of the Peace, and on appeal to the Circuit Court (by which party does not appear), he recovered judgment for the amount of his claim, 816.85, and the case is again appealed to this court.

On looking into the record we find that the principal ground relied on for a reversal is the admission of objectionable evidence on behalf of appellee. Appellee’s bartender testified that he kept a book of the items sold by himself and other employes of appellee to appellant, which he produced, and the items were without objection read to the jury. On cross-examination he stated that some of the items were rendered to him by other bartenders, and that he knew nothing personally as to tlieir correctness. The twenty items read to the jury aggregate the amount of the judgment below. Appellant admitted that he got drinks at the bar of appellee for which he paid nothing, hut claims that, by an arrangement previously made with appellee, he was to have them without charge. This appellee denies. Appellant also swore that in no event could his bill exceed the sum of §3.00. In rebuttal the account book kept by appellee’s bartender was again offered in evidence and admitted without objection. It is now urged that there was error in admitting the book, no sufficient foundation having been laid for its introduction. It is a sufficient answer to this position to say that it can not be urged for the first time in this court. Ho objection or exception appears to have been taken on the trial. The book account, together with the testimony of the barkeeper, made a prima faoie case for appellee, and it was for the jury to say whether it was overcome by the evidence of appellant. We think the jury was fairly instructed as to the law of the case, and find no substantial cause for a reversal and further prolongation of this unprofitable litigation.

Affirmed.


text:
    David Boyd v. Corydon Barnett et al.

      Homestead—Conveyance to Wife—Bill and Aid of Execution against Grantor—Fraud.

    The statute takes the homestead out of the available assets of the debtor for the payment of his debts. The creditor can not, therefore, complain of its conveyance by the debtor to his wife or another. Under the statute the grantee holds, free from all claims of the grantor's creditors.
    [Opinion filed October 5, 1887.]
    In error to the Circuit Court of Randolph County; the Hon. George W. Wall, Judge, presiding.

      Bill in equity by plaintiff in error against the defendants in error in aid of execution in his favor, issued out of the Circuit Court of Bandolph County, October 2, 1884, upon transcript of Justice’s judgment recovered September 13th of the same year.
    Avers its return nulla bona and issue of alias execution which was still in the hands of the Sheriff at time of filing bill.
    Avers that on April 19, 1884, the said Corydon was owner of the property sought to be made subject to the execution, and on that day conveyed it to one Despain, and that Despain, on the 21st day of the same month, conveyed the same to Mary J., the wife of Corydon; that said conveyances, while purporting to be supported by a valuable consideration, were in fact mere shams, and intended to defraud complainant; alleges insolvency of said Corydon and that he and his said wife absconded and went to the State of Kansas.
    Asks to have the said deeds set aside and the lands declared subject to sale on said execution. The answers of the principal defendants, Corydon and his wife, after denying the principal allegations of the bill, set up that the real estate in controversy constituted the homestead of the said Corydon and family, and that it was of less value than $1,000 at the time of the conveyances, and claiming that in such case the said Cory-don had the right to convey it to whom he pleased, if done in good faith which they averred, regardless of the fact that he was in debt, and upon this point arises the only controversy in this court or the courts below.
    Upon hearing, the court below dismissed the bill and Boyd sued out this writ of error.
    Mr. R. J. Goddard, for plaintiffs in error.
    Mr A. G. Gordon, for defendants in error.
    Bo conveyance of property exempt from execution can be considered fraudulent as against a creditor. Injury is an essential element of fraud, and where injury is wanting there can be no fraud. Leupold v. Krause, 95 Ill. 440. This was a case involving a homestead. A similar rule prevails in reference to personal property. Vaughan v. Thompson, 17 Ill. 78; Cole v. Green, 21 Ill. 104; Washburn v. Goodheart, 88 Ill. 229. See, also, Dreutzell v. Bell, 11 Wis. 114; Pike v. Miles, 25 Wis. 164.
    Heither fraud, nor even the commission of a criminal offense, can work a release or forfeiture of the homestead right. People v. Stitt, 7 Ill. App. 294.
    A judgment is not a lien on homestead. Hartwell v. McDonald, 69 Ill. 293; Bliss v. Clark, 39 Ill. 590.
    A judgment debtor may sell his homestead and give title to grantee, free of judgment lien. Green v. Marks, 25 Ill. 221; McDonald v. Crandall, 43 Ill. 231; Lytle v. Scott, 2 Ill. App. 646.
   Pillsbury, J.

It is contended by plaintiff in error that the evidence shows that the conveyances by which this property in question became transferred to the wife were not made in good faith, but the understanding of the parties was that she should hold the title in trust for him, and, being purely voluntary, he has still.such an interest in it that equity will take and apply it to the payment of his debt, as it appears that the parties abandoned it as a homestead by taking up their residence in Kansas, and leaving this land to a tenant now occupying it.

Without going into the testimony in detail, as it would serve no useful purpose, we will content ourselves with saying that we have carefully read it as contained in the record, and given to the statements of each and every witness sworn the best consideration of which we are capable; and while we do not think the defendants established their claim of the payment by the conveyances of such antecedent debts owing from the husband to the wife, as a court of equity would support as against existing creditors, we fail to find any evidence that they were made upon any secret trust that the land should be held, treated or considered as still belonging to said Corydon, the defendant in execution, or that he should thereafter have any interest therein or control over it.

It appears to us to be a case where the husband being in debt conveys the homestead through an intermediary to his wife to the end that whatever may befall him she and his children shall have and possess a home free from the interference of his creditors.

The question then arises, whether the law prohibits this action and will stamp it as fraudulent as to such existing creditors.

Section 1 of the Homestead Act of 1874, after defining the right, provides that “ such homesteads, and all rights and title therein, shall be exempt from attachment, judgment, levy or execution sale for the payment of his debts, or other purposes, and from the laws of conveyance, descent and devise, except as hereinafter provided.” And section six, When a homestead is conveyed by the owner thereof, such conveyance shall not subject the premises to any lien or incumbrance to which it would not have been subject in the hands of such owner.”

This statute is so plain that it hardly seems capable of being made clearer by judicial exposition.

Ho creditor can claim that he gave credit upon the faith of the homestead of his debtor, for he well knows he can never look to it for payment so long as it continues such. Ho judgment that he may recover can in any manner affect it. It is taken by the statute out of the available assets of the debtor for the payment of his debts, as effectually as if he had never owned or possessed it.

Ho creditor, therefore, can be said to be injured because the debtor retains it in defiance of him. '

The creditor can not legally be said to be injured because the homestead is pffaced beyond his reach, for he has no right to look to it at all for the satisfaction of his claims against the debtor whatever form they may assume.

In fact, it is placed beyond their reach to all intents and purposes, except by the voluntary action of the husband and his wife, if he have one, in the manner provided by the same act that creates it. The clause of the sixth section, quoted above, invests the grantee of the homestead with all the rights, exemptions and immunities attaching to it in the hands of the grantor. The grantee holds it as free from all claims of the creditors of the debtor grantor, under this statute, as he himself could have held it if not conveyed.

From these provisions, then, the creditor can not claim to be injured if the homestead be sold and possession be surrendered under the deed. He is placed in no worse position because of this action of the debtor. He had no right to subject the homestead to the payment of his debt in the hands of his debtor, and his inability to follow it is continued after the sale.

His rights are, therefore, not in the least affected, impaired nor denied. Even if we had found that the sale to Despain and from him to the wife of said Cory don, were made with intent to defraud the complainant as alleged in the bill, still the conveyance would be good, as the property did not exceed 81,000 in value, under the case of Leupold v. Krause, 95 Ill. 440, and if this be so, then a mere gift of the property made in go.od faith ought to be held valid for much weightier reasons. Folding, as we do, that this conveyance was made for a provision to the wife and family, and of property upon which the complainant below did not have and could have no lien or right, he is in no position to question it.

No error was committed bv the court below in dismissing the bill and its decree will be affirmed.

Decree affirmed.


author: Wilkin, J.

text:
    Chicago & Alton Railroad Company v. John M. Dillon.

      Railroads—Collision ai Highway Crossing—Practice—Hridence—Comment l>y Counsel on Former Verdicts—Instructions—Comparative Negligence—Signals—Sec. 68, Chap. 114, and Sec. 1, Chap. 121, R. S.

    1. In an action against a railroad company to recover damages caused by a collision at a highway crossing, it is held: That witnesses for the plaintiff were properly permitted to testify that they could have heard the bell or whistle if rung or sounded; that it does not appear from the record that the action of counsel for plaintiff in commenting on former verdicts «was improper; that there was no error in giving and refusing instructions; that the jury were justified in finding that the place of the injury was on a public highway, and that a failure to give the required signal was statutory negligence; that the questions of fact as to the negligence or comparative negligence of the parties were properly submitted to the jury; and that the finding on said questions is supported by the evidence.
    2. It is not error to refuse instructions which correctly state rules of law applicable to the case, when said rules are fully stated in other instructions given at the instance of the same party.
    8. The application of Sec. 68, Chap. 114, R. S., requiring signals at public highways, is not limited to the roads defined to be public highways in Sec. 1, Chap. 121, R. S.
    [Opinion filed September 10, 1887.]
    Appeal from the Circuit Court of St. Clair County; the Hon. Amos Watts, Judge, presiding.
    Messrs. Luke H. Hite and Brown & Kirby, for appellant.
    Whether the bell or whistle was in fact sounded was a question of fact to be found by the jury and it was not for the witnesses to give opinions or conclusions. Hopkins v. I. & St. L. R. R. Co., 78 Ill. 32; C. & N. W. R. R. Co. v. Moranda, 108 Ill. 576; Pennsylvania Co. v. Conlan, 101 Ill. 93.
    It was improper to submit to the jury the question whether Avenue F was or was not a public highway, which is a question of Jaw, without defining to the jury what constitutes a public highway. Forbes v. Ballenseifer, 74 Ill. 183,187.
    There was no evidence legally competent to show Avenue F to be a public highway. McIntyre v. Storey, 80 Ill. 127.
    The instruction on comparative negligence is inaccurate in stating that though the plaintiff may have been guilty of “ some ” negligence, which is comprehensive enough to embrace gross, ordinary and slight negligence, yet he might recover if defendant’s negligence was -gross and his slight. If that “some” negligence of plaintiff was “gross” or “ ordinary,” it was error to submit the proposition in that form to the jury. C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; C., B. & Q. R. R. Co. v. Dougherty, 12 Ill. App. 181; U. R. & T. Co. v. Kallaher, 12 Ill. App. 400.
    “ When danger is actually known or apparent to ordinary observation, or reasonably to be .apprehended, proof of positive or special care must be made to warrant a recovery.” C., B. & Q. R. R, Co. v. Olson, 12 Ill. App. 255 ; N. P. R. R. Co. v. Heileman, 49 Pa. St. 60 ; P. R. Co. v. Beale, 73 Pa. St. 504.

      “ On approaching a railroad a traveler must use his eyes and ears, and must avoid danger, if he can, notwithstanding the negligence of the company.” Henze v. St. L., K. C. & N. R. R. Co., 71 Mo. 636; Purl v. St. L., K. C. & N. R. R. Co., 72 Mo. 168; Pa. Co. v. Rudel, 100 Ill. 603; C. & N. W. R. R. Co. v. Hatch, 79 Ill. 137.
    Neglect to sound a whistle or ring a bell is not such neglect as will authorize a recovery of itself; but it must be shown by the evidence that the injury was the result of such negligence. I. & St. L. R. R. Co. v. Blackman, 63 Ill. 117; C., B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; I. C. R. R. Co. v. Benton, 69 Ill. 74; C., B. & Q. R. R. Co. v. Notzki, 66 Ill. 455; C., B. & Q. R. R. Co. v. Damerell, 81 Ill. 450.
    The conclusion from all the cases is, that if one goes upon a track without taking the necessary precautions to ascertain whether there is an approaching train or not, he is guilty of gross negligence, and he can not recover. N. P. R. R. Co. v. Heileman, 49 Pa. St. 60-64; P. R. Co. v. Beale, 73 Pa. St. 504. See, also, C., B. & Q. R. R. Co. v. Olson, 12 Ill. App. 255; C., B. & Q. R. R. Co. v. Dougherty, 12 Ill. App. 181; U. R. & T. Co. v. Kallaher, 12 Ill. App. 400.
    Messrs. W. H. Bennett and Dill & Schaefer, for appellee.
    The witnesses were properly permitted to testify that if a bell had been rung they would have heard it. P., P. & J. R. R. Co. v. Stiltman, 88 Ill. 529.
    In addition to this, there were seven witnesses who were present and saw the collision, and swear positively that no bell was rung nor whistle blown.

      The instruction on comparative negligence is an exact and literal copy of the instruction in the case of City of Chicago v. Stearns, 105 Ill. 554, which is expressly approved by the court. See, also, C. & A. R. R. Co. v. Johnson, 116 Ill. 206.

    The refused instructions contain no principle of law applicable to the case that had not already been given over and over again.
    It is not error to refuse instructions which in substance have already been given. Hessing v. McCloskey, 37 Ill. 341; Wood v. Clark, 21 Ill. App. 464; Smith v. Taggert, 21 Ill. App. 538; Stephenson v. Morrissey, 22 Ill. App. 258.
    The question of negligence and comparative negligence is one of fact for the jury, and the finding will not be disturbed except in a clear case. Haworth v. G. W. R. R. Co., 39 Ill. 346; Hillmer v. R., R. I. & St. L. R. R. Co., 72 Ill. 235; Gillis v. I. C. R. R. Co., 68 Ill. 317; Schmidt v. C. & N. W. R. R. Co., 83 Ill. 405; Hetherington v. I. C. R. R. Co., 83 Ill. 510; O’Connor v. T., W. & W. Ry. Co., 77 Ill. 391; Lee v. C., B. & Q. R. R. Co., 87 Ill. 454.
    The place where appellee was hurt was a highway crossing. It was not only dedicated as a highway, but it had been used and treated as such for more than ten years at the time of this injury. McIntyre v. Storey, 80 Ill. 127. It was a numerously traveled crossing, the most numerous (except one) in the county. It was known to the public asa highway, and treated by the railroads as such. They rang the bells and whistled when approaching it.
   Wilkin, J.

This was an action on the case brought by plaintiff below to recover for a personal injury, and damages sustained by injury done to his horse and wagon through the alleged negligence of appellant’s engineer and fireman in failing to ring a bell or sound a whistle at a public road crossing as required by statute.

The injury occurred at the national stock yards at East St. Louis on a road called Avenue F.” Appellee was driving north and about to cross the railroad track when a locomotive of appellant struck his horse and wagon, killing the horse and destroying the wagon, and also severely injuring him. On the west side of the avenue, south of the railroad track and in the angle formed by the two, was a building near to both the avenue and the track, and so obstructing the view, that neither appellee nor the engineer on the locomotive could see the other, nor could appellee see the locomotive until very near the crossing, and it is clear from all the proof that neither did see the other until about the moment of the collision. Three trials have been had in the Circuit Court, each resulting in a verdict for appellee, and the case is before us on a second appeal by defendant below. At our August term, 1885, we reversed a judgment of the Circuit Court for errors in instructions. The evidence then before us and that in the present bill of exceptions is substantially the same, and the error now urged as ground for reversal, going to the substantial merits of the case, were also urged and considered on the former hearing. Our opinion then filed is reported in 17 Ill. App. 355. Having now decided to affirm the judgment, it would be unprofitable to do more than briefly state our reasons for so doing.

Witnesses having testified that they were near the crossing at the time of the accident, stated that they heard no bell or whistle. They were then allowed to answer, over objections by appellant, the question, “state if you could have heard one if it had sounded?”

Whether the ruling of the learned Judge presiding at the trial, as to the competency of the question, conformed to the better rule or not, we think it is sustained by the decision of our Supreme Court in Pennsylvania Co. v. Boylan, 104 Ill. 595, and there was no error in overruling the objection.

In the bill of exceptions this statement appears: “ James M. Bill, attorney for the plaintiff, in the closing argument to the jury, referred to the former verdicts of §875 and §4,000, to which counsel for the defendant objected.” What ruling, if any, the court made upon the objection does not appear. Appellant asked the court to instruct the jury that the comments of counsel in the closing argument, wherein he referred to former verdicts, were improper and should not be considered by the jury, and that the jury should not, in any respect, be influenced by what former verdicts may have been, which was refused. It is now earnestly insisted that there was such misconduct on the part of counsel in commenting on former verdicts rendered in the case as to greatly prejudice its rights, and that such conduct taken in connection with the refusal of the court to instruct the jury as asked with reference thereto, should be held such error as to reverse the judgment. There is nothing whatever in the bill of exceptions to indicate the connection in which the former verdicts were mentioned, nor from which we can determine the object or motive with which the reference was made. All that counsel is shown to have said may have been perfectly proper and said in such connection as to render it harmless to appellant; it might, on the contrary, have been highly improper, and if said in such connection and with the purpose of influencing the jury to render a similar verdict to those referred to, it was improper, and the instruction asked should have been given. With the information furnished us by the record, we can not say that the Judge, who heard all that was said in the argument on both sides, knew what elicited the comments, etc., erred in holding the reference not improper as we must presume ^he did in refusing to give the instruction.

But three instructions were given on behalf of plaintiff below, and they are each criticised by counsel for appellant as tending to mislead the jury. We find no substantial error in either of them, and while, perhaps, more apt language might have been used to express the legal propositions announced by them, we can not believe that, taken in connection with the voluminous and liberal instructions given on behalf of appellant, the jury could have been misled as to the law of the case.'

It is also urged that certain refused instructions, other than the one previously referred to, should have been given, as asked by appellant. As already stated, the court did fully instruct the jury on every theory of appellant’s defense, and, as we think, construed the law most liberally in its favor.

The rules of law applicable to the case, correctly stated in the refused instructions, were announced to the jury in those given, and we think the refusal of those so marked was proper.

The position that “Avenue F” is not a public highway within the meaning of the' statute requiring signals, is not tenable under the evidence of the case. It is shown to have been open to and used by the public as a road for more than ten years. It was one of the most public roads in the County of St. <piair, so far as it could become so by general use and recognition.

Appellant’s employes, as well as those of all other railroad corporations using the various tracks in the stock yards, treated it as a public highway, and, as they swear, habitually gave the signals. It could not have been the intention of the Legislature that See. 68, Chap. 114, R. S., requiring signals at public highways should only apply to roads defined to be public highways in the first section of the chapter on roads and bridges. We think the jury was fully justified by the proofs, under the instructions of the court, in finding that the place of the injury was on a public highway, as alleged in the declaration, and a failure to give the required signal, statutory negligence.

The questions of fact, as to whether or not appellant was guilty of negligence, and appellee in the exercise of due care at the time of the injury, or on the doctrine of comparative negligence, whether or not appellant was guilty of gross and appellee only of slight negligence, seem to have been fairly submitted to the jury.

We can not say that the finding on those questions in favor of appellee is so far unsupported by the evidence as to make it our duty to set it aside by a reversal of the judgment. The fact that repeated trials of the case have already been had with like results can not be ignored in this decision, and on the whole record, as it now appears, we are of the opinion that the judgment should be affirmed.

Judgment affirmed.


text:
    Chicago & Alton Railroad Company v. Sebastian Fietsam, Administrator.

      Railroads—Action for Damages for Causing a Death—Incompetent Testimony—Ruling Out—Time of—Offer of Evidence after it has been held Incompetent by this Court—Instructions—Comparative Negligence— Fellow-Servants—Practice.

    In an action against a railroad company to recover damages for causing the death of the plaintiff's intestate, it is held-. That the defendant can not object to the admission of incompetent testimony called out by its own cross-examination of a witness for the plaintiff; that an objectionable answer could not have any greater weight with the jury because not ruled out unti. a later stage of the trial; that plaintiff’s counsel did not exceed the limits of strict professional conduct in again offering evidence deemed competent by him, although declared incompetent by this court on a former appeal; that it is not indispensable to a right of recovery that the question of comparative negligence be submitted to the jury"by the plaintiff; that in a proper case either party may ask the court to submit said question; that there was no error in giving and modifying instructions; that, if the defendant desired to raise the questions whether the plaintiff’s intestate and the servants of appellant were fellow-servants, and whether the deceased came to his death through one of the ordinary perils of his service, it should have submitted them to the jury by proper instructions; and that they can not ba raised here for the first time.
    [Opinion filed September 10, 1887.]
    Appeal from the City Court of East St. Louis; the Hon, B. H. Canby, Judge, presiding.
    Messrs. Luke H. Hite and Brown & Kirby, for appellant.
    The accident was the result of the gross negligence of engineer Guess and his comrades, and no recovery can be had.
    Even if appellant’s servants were negligent. “ it was the duty of Guess to so drive the engine as not to imperil his own safety,” and if he drove the engine at a negligent rate of speed, or in other respects negligently, which materially contributed to the injury, he could not recover. I. C. R. R. Co. v. Patterson, 69 Ill. 650.

      It is gross negligence to operate a locomotive engine after dark without a head-light. Burling v. I. C. R. R. Co., 85 Ill. 18.
    Since Guess disobeyed the rules of the company and was not in the exercise of ordinary care, he could not recover. C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576.
    It is indispensable to the right of recovery that Guess should have exercised ordinary care. I. C. R. R. Co. v. Hetherington, 83 Ill. 510.
    In cases where danger is to be reasonably apprehended, proof of positive or special care must be made to warrant a recovery. C., B. & Q. R. R. Co. v. Olson, 12 Ill. App. 245.
    These faults, both of omission and commission, on the part of Guess, materially contributed to the injury, and in such case there can be no recovery. Abend v. T. H. & I. R. R. Co., 111 Ill. 202.
    Mr: M. Millard, for appellee.
    The negligence of defendant’s servants was wanton. The act of leaving a switch open in the night time and going beyond signaling distance, by a lot of employes who were using another company’s track, can only be regarded as sheer recklessness.
    There is a natural presumption that every one will act with due care, and that negligence can not be imputed to a person because he does not anticipate the contrary and provide against the consequences. Thompson on Neg., p. 1172; Ernst v. Hud. R. R. Co., 35 N. Y. 9; Newton v. N. Y., etc., R. R. Co., 29 N. Y. 383; Cleveland, etc., R. R. Co. v. Terry, 8 Ohio St. 570; Reeves v. Del., etc., R. R. Co., 30 Pa. St. 459; Kellog v. Chicago, etc., R. R. Co., 26 Wis. 223; Darmour v. Lyons, 44 Iowa, 276; Frahn v. Sears, 12 Cal. 556; Moulton v. Aldrich, 28 Kan. 300; Langan v. St. Louis, etc., R. R. Co., 72 Mo. 392.
   Pillsbury, J.

This case was before us at a former term of this court, when a judgment in favor of the appellee was reversed for the action of the court below in admitting evidence deemed by this court to be inadmissible to establish the fact alleged that the servants of appellant committed the act that caused the death of appellee’s intestate.

Upon a new trial in the lower court the appellee again recovered and the defendant below again brings the case here for review upon appeal, The principal facts claimed to exist are stated in our former opinion reported in 19 Ill. App. 55, and it is not necessary to again repeat them.

We will briefly notice the points made by counsel for appellant, upon which they base their conclusion that the judgment should again be reversed.' It is first objected that the court erred in admitting improper evidence.

From the record it appears that one Bailey, while testifying for the plaintiff, expressed his conclusion, not, however, asked for by the appellee, that an engine and crew of the appellant went into the stock yards switch for stock'and intimated that they left the switch open, or left it wrong.

Upon cross-examination counsel for appellant asked him how he knew it was wrong, when the witness answered, “because they told me so,” and therefore the court was asked to exclude the answer, which the court refused to do at the time, but subsequently did withdraw it from the consideration of the jury.

The appellee can not be held to be prejudiced by the action of counsel in thus asking the witness to disclose the source of his knowledge or information concerning the condition of the switch, and such answer could not have any greater weight with the jury because it was not ruled out by the court until at a later stage of trial. The court directed the jury to disregard it, and that was all he could do. We can not hold that a defendant can call out incompetent testimony from a witness favorable to a plaintiff, and then have a judgment reversed, when the court excludes it because it may, perchance, have influenced the jury in their finding. To do so would give a party an opportunity to demand a reversal for his own action in eliciting testimony which might prejudice his own cause.

It is next insisted that counsel for appellee made improper remarks in the presence of the j ury.

This objection is based upon the fact that counsel offered to prove what Snell, the engineer, said, about the switch being left open by his crew, testimony held by this court to be ineompetent in its former decision. It must be remembered that this court is not the court of last resort, and when it reverses a judgment and remands the cause for a new trial, no appeal lies to the Supreme Court on behalf of appellee to correct any error of this court. Therefore, upon a new trial in the court below, the appellee in the cause in this court, if he desires to insist that error was committed by this court, must lay the proper foundation for assigning error in the Supreme Court upon the action of the Circuit Court in following our decision and opinion. This was all that was done in this'case, and the court below, out of abundant caution, while sustaining the objection to the offered proof, told the jury that they must not consider any statements of counsel of what was offered to be proved, but must be governed by the testimony of witnesses alone.

Under the circumstances of this ease, we do not think that counsel exceeded the limits of strictly professional conduct in the assertion of the rights of his client to offer evidence deemed to be competent by him.

The third and fourth objections urged question the action of the court in giving the instruction asked by appellee and in modifying the fifth asked by appellant, and may be considered together.

Appellee’s instruction was as follows: “The jury are instructed, that if they believe from the evidence that Levi Guess was killed in the manner stated in the declaration, through the fault of the defendant’s employes in negligently leaving the switch open, and was exercising due care himself at the time, or if the jury believe from the testimony that the said Levi Guess was guilty of slight negligence contributing to his death, and that the employes of the defendant were guilty of gross negligence contributing to the death of the said Levi Guess, but that the negligence of the said Guess was slight and that of the defendant’s employes was gross, when compared with each other, the plaintiff is entitled to recover, and the verdict should be accordingly.”

The first objection to this instruction is that it presents only a partial view of the case, as the appellant insists that Guess came to his death through one of the ordinary perils of his service, and in not submitting whether Guess and the servants of appellant were fellow-servants. It is to be noticed that Guess was not an employe of the appellant, neither is the action against his master.

The appellant, prima facie, was a stranger to him, and if the appellant desired to raise the question suggested, it would seem that it should have submitted them to the consideration of the jury by proper instructions asked on its own behalf. JSTo such course was pursued, but on the contrary, as appears from the record, the appellant was content to rest its defense upon the ground alone that Guess was guilty of such contributory negligence as to defeat the action. Again, it is said that the instruction assumes that the servants of the appellant negligently left the switch open. We do not so read the instruction.

The jury are required to find from the evidence that Guess was killed in the manner charged through the fault of defendant’s employes in negligently leaving the switch open while he was in the exercise of due care at the time. The instruction leaves the jury free to find what the fact was.

It is also objected to the instruction that it allows the jury, in applying the doctrine of comoarative negligence to the case, to find for the plaintiff, even if Guess was not in the exercise of ordinary care for his own safety at the time. This same objection is made to the modification of defendant’s fifth instruction, in that it is made to conform to the principle of plaintiff’s instruction in submitting the question of comparative negligence to the jury. Even if true, as suggested by counsel for appellant in argument, that it is much easier to criticise an instruction attempting to inform the jury what comparative negligence is, and in what state of the case the jury may apply it, than to draft one correctly embodying the doctrine, it must be admitted that since Jacobs’ case in 20 Ill. 478, it has had a place in our jurisprudence, and is to-day a principle which is applied by the courts in determining the right of a plaintiff to recover for injuries caused by the negligence of a defendant, when the defendant insists upon and has given evidence tending to prove that the negligence of the plaintiff also contributed to produce siicli injury.

Whatever may have been the apparent holding in former eases as to the necessity of instructing the jury upon this question, the rule as now held, appears to be that it is not indispensable to a right of recovery that the question of comparative negligence be submitted to the jury by the plaintiff, but, if tiie circumstances of the case are such that the doctrine can be applied to the ease, either party may ask the court to inform the jury as to the rule and in what state of the evidence they may consider it in determining the right of the parties. Calumet Ivon & Steel Co. v. Martin, 115 Ill. 358; C. & E. I. R. R. Co. v. O’Connor, 119 Ill. 586.

From these decisions it will be seen that a plaintiff may, if lie desire, rely upon the doctrine of contributory negligence as applied in the courts of England and in most of the States of the Union; that is, that if the plaintiff has exercised ordinary care for his own safety, and the defendant has been guilty of negligence which primarily resulted in the injury to the plaintiff, he may recover, but if the evidence is such that it leads to the conclusion that the plaintiff was also somewhat negligent, then, if he desires, he may have the jury pass upon the degree of the negligence of the respective parties, and if they find that both parties have been negligent, then they are further told that they are to compare the negligence of the plaintiff with that of the defendant, and if, upon a full and fair consideration of all the evidence in the ease, they find that the negligence of the plaintiff was but slight, and that of the defendant was gross, upon such comparison being made, then the plaintiff is not debarred from maintaining his action.

It is thus se'en that two conditions may exist where negligence of the defendant is the basis of the action, either one of which, if found to be a fact by the jury, will support the action of the plaintiff.

These conditions are: First, when the plaintiff has exercised the degree of care required—in this case ordinary care—and the defendant has been negligent, which negligence has been the proximate cause of the injury without regard to the degree of negligence; and second, where both plaintiff and defendant have been guilty of negligence contributing to the injury, yet the negligence of the plaintiff has been but slight, and that of the defendant gross, when compared with each other.

How the plaintiff below, recognizing the fact that the defendant had proven certain facts from which the jury might perhaps find that Guess was not entirely free from negligence, asked the court to instruct the jury, in case they did so find, to pass upon the question of the relative degrees of negligence of the parties if both were negligent.

In other words, both of the conditions that we have already stated were submitted to the jury for their consideration with a view to have them ascertain from the evidence, whether the plaintiff had brought himself within either of them, so as to justify a verdict for him. We fail to find such error in submitting the ease upon this point as calls for our interference.

The jury could not have understood from the manner the court submitted the question to them, that the plaintiff could recover if Guess had failed to exercise ordinary care to protect himself, for, as we have said, the defendant made its defense substantially to rest upon the ground of his failure in this respect, and at its request the court stated to the jury in the second, third, fifth, sixth and tenth instructions given for appellant, the effect of the negligence of Guess upon the right of recovery in the cause, and in such clear, pointed and positive terms that appellant can have no cause for complaint that the court, on behalf of the plaintiff, allowed the jury to pass upon the question of the comparative negligence of the parties.

Indeed, the negligence of Guess was made such a prominent factor in the case by appellant, both in the evidence and the instructions asked and given, that it is difficult to understand how the ingenuity of counsel could have presented it in any stronger light for the consideration of the jury.

They were told that if Guess failed to exercise “ ordinary care,” or was guilty of more than slight negligence, or was guilty of gross negligence, or failed to obey the rules of his own master in approaching the crossing, and that obedience to them would have prevented tlie injury, or, if he could have prevented the injury by ordinary care upon his own part and failed to exercise it, in either case the verdict should be for the defendant. What more upon this point could the defendant helow ask or expect at the hands of the court 1

It is urged that the verdict is against the evidence, and for this reason a new trial should have been granted.

It was not seriously contended on the trial helow, and is not in this court, but that the jury was justified in finding from the evidence that the servants of the appellant failed to connect the switch with the main line after passing upon the stock yards track with their train.

The jury undoubtedly came to the conclusion that leaving a switch disconnected from the main track upon which trains of another company are liable to pass at any time, may well be denominated gross negligence, if not to be characterized as criminal in the one guilty of the act. Such act is so terrible in its,consequences to life, limb and property that courts and juries can not be expected to look upon it with any degree of toleration, or to be very alert or anxious to find some plausible excuse for its commission. It would be extremely difficult, if not impossible, to conceive a state of case that would excuse or palliate the act. The appellant, indeed, does not attempt such a task in this court, but as we have seen, relies upon the contributory negligence of Guess to defeat the action. This question was passed upon by the jury and, we think, they were justified in 'finding that the negligence of Guess, admitting that he was negligent, was but slight compared with that of the servants of appellant. Even if he was negligent, the act of appellant’s servants was so extremely so as to make a most fitting case for the application of the doctrine of comparative negligence. Under the instructions, also, they must have found that even if Guess had obeyed the rules of his master in all respects, and otherwise had exercised ordinary care, the injury would not have been prevented thereby, and we are not disposed to hold that such conclusion does not find support in the evidence.

It is urged here for the first time that Guess was a fellow-servant of the servants of appellee, and also that he was injured by one of the ordinary hazards of his employment. Without going into any extended discussion of the rules underlying these propositions, we think they partake more of questions of fact than of law and should have been made in the court below by proper instruction, defining who are fellow-servants and what are the ordinary perils of the business assumed by an employe, and thus called upon the jury to ascertain from the proofs whether the facts of this case brought the deceased within the principle governing either of the propositions. This was not done, but appellant was content to rest its entire defense upon the ground repeatedly stated herein, and having done so, it ought to be held to have waived other defenses that it might have urged before the court below.

The evidence of the plaintiff below considered by itself, would not justify the inference that Guess was injured either by the negligence of a fellow-servant or from one of the ordinary perils of his business, as the action is not against his own master but another company, but if the business relations were such as to bring Guess within the defenses claimed, or either of them, it devolved upon appellant to submit the facts to the jury under proper instructions for their guidance. C., B. & Q. R. R. Co. v. Bell, 112 Ill. 360.

It may be said, however, that it is not made to appear that Guess and the servants of appellant were within the rule stated in North Chicago Rolling Mill Co. v. Johnson, 114 Ill. 57, that requires that the servants of the same master, to be co-employes, so as to exempt the master from liability on account of injuries sustained by one resulting from the negligence of the other, shall be directly co-operating with each other in a particular business—i. e., the same line of employment—-or that their usual duties shall bring them into habitual association, so that each may exercise a mutual influence upon the other, pnomotive of proper caution.

We find no such error in the record as calls upon us to again reverse the judgment, and it will therefore be affirmed.

Judgment affirmed.


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    Oscar Cramer and Elizabeth Cramer v. William Bode and Frederick Jobusch.

      Husband and Wife—Settlement—Bill to Subject Property in Wife's Name to Lien of Judgment against Husband—Default—Extent of Admission—Defects in Bill—Transcript of Justice’s Judgment Filed in Circuit Court—Requisites.

    1. The default of a defendant in a bill in equity is an admission of facts alleged in the bill, but not of the pleader’s conclusions from such facts.
    2. A settlement of property by a husband upon his wife, when he is solvent and the settlement reasonable, can not be attacked by subsequent creditors, unless such settlement was made with a view to future fraudulent indebtedness.
    3. To entitle a party to a transcript from a Justice to file in the Circuit Court to obtain a lien upon the realty of the judgment debtor, execution must be first issued by the Justice within one year from the rendition of the judgment, and returned nulla bona.

    4. Upon a bill to subject certain real estate, standing in a wife’s name, to the lien of a judgment against her husband, it is held: That it does not appear from the bill that the lien of the judgment was perfected by the issue of execution within a year from its rendition; that the bill is defective in not showing what proceedings were had before the Justice and certified to the Circuit Court; that the averment of time when the indebtedness accrued, leaves it uncertain whether it was prior or subsequent to the con-. veyance to the wife; and that the decree is too broad in setting aside the conveyance which is valid as between the parties, except as to creditors, if any, who have been hindered or delayed in the collection of their claims.
    [Opinion filed October 5, 1887.]
    In error to the Circuit Court of Monroe County; the Hon. George W. Wall, Judge, presiding.
    This was a hill in equity exhibited in the Circuit Court of Monroe County by defendants in error as partners, against the plaintiffs in error, to subject certain real estate in the name of Elizabeth Cramer to the lien of a judgment against her husband, the said Oscar.

      A decree pro confesso was entered and this writ of error is prosecuted to have it reviewed.
    The bill avers that on March 16, 1882, one Henry Winter-man sold the said real estate to said Oscar for the sum of $600, and with the intent to hinder and delay his creditors, the said Oscar requested said Winterman to make the deed to his wife, the said Elizabeth, and that the deed was so made.
    Concerning the accruing of the indebtedness and the recovery of judgment thereon, the bill charges “ that the said Oscar Cramer, long before and afterward, at the time said purchase of said lots was made, opened an account at the store of complainants, of which a balance remained due upon final settlement, and for which balance, before Charles Metzger, a Justice of the Peace, on the 9th day of April, 1884, the complainants commenced suit, and on the 16th day of April, 1884, a judgment in favor of said complainants was entered in said cause for the amount of $70.25 and costs of suit against said Oscar Cramer; and your orators further show unto your honor that on the 30tli day of July, 1885, at 11:45 o’clock am. of said day, a transcript of the judgment and proceedings before said Justice in said cause, was filed and recorded in the office of the Clerk of the Circuit Court of Monroe County, Illinois, and thereby became a judgment in the Circuit Court of said county, and thenceforth was, and continued to be, a lien against all of the real estate of said Oscar Cramer in said county; and that afterward, on the 30th day of July, 1885, the said judgment remaining in full force and effect, and the damages and costs aforesaid unsatisfied, your orators, for the purpose of obtaining satisfaction of the same, caused a writ of fieri facias to be issued and delivered to the Sheriff of the said County of Monroe to serve, and out of the goods and chattels, lands and tenements of said Oscar Cramer, according to law, said Sheriff was commanded to make the sum of $70.25> with interests and costs, and that he return the same into the office of said Circuit Clerk, together with his indorsement thereon, showing the manner in which he has served the same.”
    Upon these allegations arises the question noticed in the opinion which renders any further statement of the contents of the bill unnecessary.
    The decree declares the deed to said Elizabeth to be null and void, that the property is that of said Oscar and subjects it to sale upon the execution of defendants in error.
    Mr. William Winklemann, for plaintiffs in error.
    Mr. Joseph W. Rickert, for defendants in error.
   Pillsbury, J.

It may be considered as settled law in this State that a settlement of property by a husband upon the wife, where the husband is solvent and the settlement reasonable considering the grantor’s circumstances, can not be attacked by subsequent creditors of the husband but can be held voidable by creditors only who were such at the time of the conveyance, unless it shall appear that such settlement was .made upon the wife with a view to future fraudulent indebtedness. Moritz v. Hoffmann, 35 Ill. 553; Wooldridge v. Gage, 68 Ill. 157; Patterson v. McKinney, 97 Ill. 41; Crawford v. Logan, 97 Ill. 396.

It is equally true that before a bill, like the one at bar, can be maintained, the proof must show that the judgment is a lien upon the land, and to show this it is indispensable that execution should have been issued within a year. Newman v. Willits, 52 Ill. 98; Weis v. Tiernan, 91 Ill. 27. Applying these well established principles to the case at bar how stands the case ?

The defendants below by suffering a default admitted no facts not alleged in the bill.

The conclusions of the pleader from the facts stated were not admitted. The averment of facts is for the pleader; the legal conclusion arising from such alleged facts upon a default, is for the court.

The averment of time when the indebtedness accrued to the complainant below is so uncertain that the court could not judicially know whether it was prior or subsequent to the conveyance from Winterman to Mrs. Cramer. It is nowhere alleged that this settlement upon the wife was unreasonable) or that, at that time, the said Oscar was insolvent, not retaining a sufficient amount of property to pay all existing indebtedness. It is alleged that at the time of filing the bill he was insolvent, but when it is seen from the bill that the conveyance was made to the wife some two years and four months before judgment was rendered, the pleader should have shown that the debtor was insolvent at that time, or that he was at that time indebted to the complainants.

The allegation of indebtedness is, “that the said Oscar Cramer, long before and afterward, at the time said purchase of said lots was made, opened an account at the store of complainants, of which a balance remained due upon final settlement, for which balance judgment was obtained.”

How, whether this balance was for that part of the account accruing before the conveyance or afterward, does not appear, and taking the pleading most strongly against the pleader it is quite as clear that the account was opened with complainants at the time of, or after the conveyance, as it was before. If at the time or afterward, then the pleader should have gone further and shown by his bill that this conveyance was given to the wife in contemplation of future indebtedness, and for the purpose of preventing the collection thereof.

Upon the second branch of the case it is to be noticed that the judgment before the Justice of the Peace was rendered on the 16th day of April, 1884, and the transcript was filed in the clerk’s office on the 30th day of July, 1885, over one year and three months after its rendition.

To entitle a party to a transcript from a Justice of the Peace to file in the Circuit Court for the purpose of obtaining a lien upon the realty of the judgment debtor, it is essential that execution be first issued by the Justice and a return nulla bona by the Constable. Rev. Stat. 1874, Chap. 79, S. 95. And in analogy to the limitation prescribed by the statute in the issuing of executions upon judgments in courts of record, in order to preserve the lien of the judgment upon realty it is incumbent upon the party to have such execution issued by the Justice within one year from the rendition of the judgment, otherwise his only remedy is a suit upon the judgment, as taking a transcript after that time will not create a lien upon real estate although filed in the office of the clerk of the Circuit Court. Hay v. Hayes, 56 Ill. 342. There is no direct averment in the bill before us that any execution was ever issued by the Justice of the Peace, much less that any such was issued within a year after the entry of the judgment. The averment is that on the 30th day of July, 1885, a transcript of the judgment and proceedings before said Justice was filed and recorded in the office of the clerk of the Circuit Court, etc.; then the statement follows that said transcript thereby became a judgment of the Circuit Court and was thenceforth a lien upon the lands of said Oscar. By the averment that a “transcript” of the judgment and proceedings had before the Justice was filed, we can not infer that an execution was issued within a year upon the judgment and returned nulla bona, for the averment would be as well established without proof of such execution, as with it. A transcript, i. e., a copy of such judgment and proceedings, can be filed without obtaining a lien upon real estate of the judgment debtor. The difficulty with the bill in this respect is, that we are not informed by it what “proceedings” were had before the Justice and certified to the Circuit Court.

The conclusion of the pleader that a lien was created by filing and recording such transcript is not admitted by the default, for the facts alleged do not necessarily legally lead to such conclusion.

The decree, also, we think, is too broad in setting aside the deed to Mrs. Cramer and finding the land belongs to Oscar, the husband, for such deed is good between the parties and should be held valid except as to creditors who have been hindered or delayed thereby in the collection of their j ust claims.

Por the reasons stated we are of the opinion that error was committed in entering the decree upon the averments in the bill, for which the decree will be reversed and the cause remanded with leave to complainants to amend their bill if they shall be so advised, and for further proceedings according to the usual course of chancery practice and proceedings.

Deoree reversed,