text:
    Lottie E. Johnson, Appellee, v. Axel B. Johnson, Appellant.
    Gen. No. 30,355.
    Parent and child — recovery by divorced wife for support of child furnished out of her separate estate. The former wife of a resident of this State, who procured her divorce in another State, the decree awarding her the custody of their child but making no provision for its support, may maintain assumpsit in this State to recover from her former husband amounts expended out of her separate estate for the reasonable support of such child, the father having failed and refused to provide for it.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Philip L, Sullivan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed February 2, 1926.
    Benjamin I. Morris and Morris A. Mills, for appellant; Morris A. Mills, of counsel.
    Baker, Holder & Schmidt, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action in assumpsit, commenced by defendant’s former wife in said circuit court on July 29,1922, and tried without a jury on a stipulation of facts, the court, on April 13, 1925, found the issues in plaintiff’s favor, assessed her damages at $2,000, and entered judgment against defendant in that sum, and he appealed.

The amount awarded was for plaintiff’s expenditures at the rate of $400 per year, out of her separate estate, for the five years next preceding the commencement of the action, for the support and maintenance of the parties ’ minor son, Erwin Ralph Johnson, who was about 8 years: old when the action was commenced and who always had been in plaintiff’s care and custody. No questions are raised as to the amounts expended by her, as to the necessity therefor, or as to defendant’s financial ability. The child was bom in the State of Minnesota on January 23, 1914. The parties were divorced on complaint of the wife by decree (copy attached to the stipulation) of a district court of Minnesota on December 10,1921 (about seven months before the present action was commenced). By the decree, also-, plaintiff was awarded the custody of the child but no provision was made for alimony or for the child’s support. The court found in the decree that defendant was served with summons and copy of the complaint in Chicago, Illinois, on October 8,1921, but that he did not appear and contest the suit. It was agreed that the court had jurisdiction to enter the decree.

The points made by defendant’s counsel for a reversal of the present judgment are, in substance: (a) that at common law a wife could not sue her husband, and, even under the present Illinois Act in relation to husband and wife, she cannot recover in this action such expenditures as were made during the period when the marital relation existed; (b) that, as to the period after the granting of the divorce and the giving of the child’s custody to her, defendant is not liable for the child’s support, for the reason that no express promise on his part to support it is shown, and the stipulated facts are not such as justify an implied promise; and (c) that plaintiff cannot maintain the present action in Illinois, for the reason that she voluntarily sought and obtained an absolute divorce in Minnesota, as well as a decree awarding her the custody of the child, and did not then obtain any order on defendant to make payments for the child’s support.

From the stipulation the following additional facts appear: The parties were married at Berkeley, California, on April 16, 1913, and came to Chicago' about June 1, 1913, where they lived in the home furnished and maintained by defendant until July 28,1913, when plaintiff left defendant and went to Minnesota, in which State she has resided ever since. Prior to the marriage defendant’s residence and business were in Chicago' and, since plaintiff left him, he has maintained his said Chicago home and business. During the period from the birth of the child in Minnesota on January 23, 1914, until July 29, 1917 (a date just five years prior to the commencement of the action), plaintiff expended the sum of $800, “out of her separate estate,” for the child’s support and maintenance. During the five years ’ period from July 29, 1917, until the commencement of the action, plaintiff “necessarily expended from her separate estate,” for the child’s maintenance and education, the sum of $400 per year, or $2,000. Defendant did not at any time contribute anything to its support or education. Plaintiff sued to recover the expenditures during both periods, but the court did not allow the item of $800, evidently holding that its recovery was barred by the statute of limitations, which defendant had pleaded. (See Plaster v. Plaster, 53 Ill. 445; also 67 Ill. 93.) Attached to the stipulation as exhibits are 48 original letters which passed between the parties, practically all of which are dated prior to the divorce decree. They disclose that after the child’s birth plaintiff repeatedly requested that she be allowed to return to defendant and live with him in Chicago, but that he always refused the requests. We deem it unnecessary to further consider this correspondence as defendant’s counsel admit in their printed brief that plaintiff did show a desire to return to defendant but that he refused to permit and accept plaintiff back into his household. We may mention, however, that in one of defendant’s letters, in December, 1921, after the entry of the divorce decree, he writes: “I see in your letter that we are separated by law, and perhaps it is for the best. If you want to clear up the whole thing for good and give me a quitclaim, I will pay you $1,000 in fifty dollar payments a month. I have no cash to speak of on hand, for trade has been very quiet for some time. We are both well, and wish all of you a Merry Christmas and a Happy New Year. Will enclose a check for $25 for Christmas present, and you can buy what you wish for it.”

In the stipulation, also, are statements as to what defendant and plaintiff severally would testify to, if called as witnesses; that defendant would testify that when plaintiff left him about July 28, 1913, she did so against his wishes; that he then informed her that if she went to her relatives (then residing in Minnesota) “she need never return to him, nor would he receive her back”; that plaintiff would testify that, when on account of ill health she left for a visit with a relative in Minnesota, defendant did not SO' inform her; that on the contrary he consented to her going, purchased her ticket and assisted her to the train; that she intended only a temporary absence from Chicago and so informed defendant, and that during the months of September and October, 1913 (before the child’s birth), she “repeatedly wrote to defendant offering to return to him at Chicago.”

Prior to the passage of the Illinois Married Women’s Act in February, 1861, a married woman “could not sue alone for her own property, or institute any suit in her own name for the recovery of any of her rights.” (Emerson v. Clayton, 32 Ill. 493, 496.) Since the passage of that Act and the Act of 1869, and prior to the passage of the Act of 1874, a married woman could, not maintain an action at law against her husband, “except in cases where it may be deemed indispensable to enable her to recover or enjoy her separate property.” (Chestnut v. Chestnut, 77 Ill. 346, 350.) By the passage of the Act of 1874, and as it exists today as amended in some particulars (Cahill’s St. 1925, ch. 68), practically all of the former disabilities of a married woman have been removed. (Crum v. Sawyer, 132 Ill. 443, 454; Snell v. Snell, 123 Ill. 403, 409; Thomas v. Mueller, 106 Ill. 36, 41.) And a wife may now sue her husband and recover from him, except for labor performed or services rendered for him, on all contracts, in the same manner as if they were not married. (Thomas v. Mueller, 106 Ill. 36, 42; Bea v. People, 101 Ill. App. 132, 134.)

In De Brauwere v. De Brauwere, 203 N. Y. 460, a married woman, who had been abandoned by her husband, filed a complaint in a New York court, seeking to recover from him moneys which, as alleged, she had been compelled to expend out of her separate estate to provide necessaries for herself and her three infant children. She further alleged that she had caused him to be arrested on the charge of abandonment, that he had been ordered to pay her a weekly stipend, but that he had refused to comply with the order and had moved to New Jersey. The trial court overruled the husband’s demurrer to the complaint and entered an interlocutory judgment in her favor, which was affirmed by the Appellate Division. On appeal the Court of Appeals decided that the complaint stated a good cause of action and also affirmed the judgment. After referring to cases which had decided that “a parent is under a natural obligation to furnish necessaries for his infant children,” and that, if the parent neglect that duty, any person who supplies such necessaries can recover of the parent their value on the theory of an implied promise, as can also the person, who supplies such necessaries to a deserted wife for the benefit of the children, of the husband, the court held (p. 463) that, a married woman’s marital disabilities having been wholly removed by statute, she can now maintain any action in reference to her separate estate as if unmarried; (p. 464) that under the facts alleged “the husband was unquestionably under a legal obligation to provide his wife and children with the necessaries of life suitable to their condition”; that “a wife who has applied her separate estate to the purpose of an obligation resting primarily upon her husband may now recover from him the reasonable amounts, which she has thus expended out of her separate estate in discharge of his obligation”; and that “the plainest principles of justice require that a wife should have some adequate legal redress upon such a state of facts as that set forth in this complaint.”

In Laumeier v. Laumeier, 237 N. Y. 357, an action was commenced in New York by the former wife of defendant, from whom she had obtained a divorce by decree of a Missouri court, to recover moneys expended by her for the maintenance and education of the child of the parties. Defendant was personally served in New York State. The trial court held that the New York courts did not have jurisdiction of the case, as it was a matter solely within the control of the Missouri courts, where the divorce had been granted, and dismissed plaintiff’s, action. This judgment was affirmed by the Appellate Division, but the New York Court of Appeals reversed the judgment. From its opinion, the following facts appear (p. 360): The parties were married in July, 1918, in Illinois, and thereafter resided together as husband and wife in St. Louis, Missouri. On June 6, 1919, the wife filed a petition for divorce in the circuit court of St. Louis. The cause was, heard on the following day, and on June 12, 1919, a decree of absolute divorce was entered in her favor. Nothing was said in the decree regarding a child. It was not then born, although the mother was pregnant. It was born about six months after the entry of the decree. Subsequently plaintiff moved to New York State, where she and the child afterwards resided. Defendant never contributed anything toward the child’s support, refused to do so, and denied all responsibility for it; and the expense of its care and maintenance fell upon plaintiff. In her complaint she alleged that the child was the son of defendant, that the Missouri court had made no provision for its support, as the question was not there made an issue, and that defendant had failed and refused to contribute anything to its support, or to pay plaintiff’s expenditures for its maintenance, etc. She asked for $5,000, for reimbursement for these expenditures. The court held (p. 363) that under the circumstances, both reason and authority favored the sustaining of plaintiff’s right to maintain the action to recover the moneys necessarily expended by her for the support and maintenance of the child, saying (p. 364): “This child has rights which the courts have not disposed of or passed upon. * * * This action brought by the wife is not brought to recover any money for herself; it is brought to recover money spent upon the maintenance and support and education of the child. It is in reality brought for the benefit of and in behalf of the child. * * * The child is entitled to the support and maintenance by its father. If the father fails to support his child and furnish the necessaries to keep it alive, that is, fail and refuse to give it a home, food and clothing, education and medical attendance, these may be furnished by others, even a stranger to the family, and he will be held liable for it.” After stating that such was the decision in the DeBrauwere case, supra, and referring to certain holdings in that case, the court continues (p. 365): “This is the nature of the action which the plaintiff here seeks to maintain. She is not looking for relief in the future. She is asking from the father the moneys which she has expended out of her own estate for the support, maintenance and education of his child. If a stranger could maintain such an action, why cannot she”? The court then cites a number of adjudicated cases, in Missouri and other States of the Union, as supporting its holdings and decision.

In Gulley v. Gulley, 111 Tex. 233, 237, it is decided. that a father, owning an adequate estate, can, at the suit of the mother, be required to pay the value of necessaries for his minor children furnished by the mother from her own adequate estate, after the mother has been decreed a divorce from the father and in that decree the custody of said children awarded to her— the decree failing to provide for said children’s maintenance. In 15 Am. Law Rep. 569, in a note following the report of said Gulley case, it appears that the authorities in this country are not entirely uniform on the question decided, and it is stated (p. 573) that “in a few jurisdictions it is held that a divorce decree awarding the custody of the minor children to the wife absolves the husband from further duty to support and educate them,” but that' (p. 569) “the rule supported by the weight of authority is that a father is not released from his obligation to support or contribute to the support of his infant children, by reason of the fact that the mother has been granted an absolute decree of divorce from him, and has been awarded the custody of the children by a decree making no provision for their maintenance.” Many cases in different States of the Union are cited in the note as sustaining the “majority rule.” Such Illinois decisions as we have been referred to, or have reviewed, seem not to be adverse to the principles announced in the two New York cases, supra, and in the Gulley case. (See Plaster v. Plaster, 47 Ill. 290; Steele v. People, 88 Ill. App. 186; Konitzer v. Konitzer, 112 Ill. App. 326; Parkinson v. Parkinson, 116 Ill. App. 112; Panther Creek Mines v. Industrial Commission, 296 Ill. 565; Kelley v. Kelley, 317 Ill. 104, 110.) In Zilley v. Dunwiddie, 98 Wis. 428 (cited with approval in Harding v. Harding, 180 Ill. 481, 508), a divorced woman filed a claim against the estate' of her former husband for moneys, expended in the care and maintenance of their minor child, during the husband’s life. The claim was allowed and the allowance affirmed by the Supreme Court. It appears that in the divorce decree she was awarded the care and custody of certain children until the youngest became 10 years of age, but the decree made no provision for their support; that when the youngest child reached that age the father applied to the mother to have the child come to live with him, but the mother refused to let it go, and thereupon he told her that he would not pay for its support; and that thereafter he made frequent efforts to get the child to live with him, but she would not consent and the child continued to reside with her until a short time before the father’s death, when the latter sent it away to school where it remained until after the father’s death. It was held that a promise on the father’s part to compensate the mother for her necessary expenses in maintaining the child, after the father became entitled to its care and custody, would be implied from his acquiescence in such maintenance by her and his failure to compel the child to live with him. (See also, Spencer v. Spencer, 97 Minn. 56.) In Pretzinger v. Pretzinger, 45 Ohio St. 452, the wife had obtained a divorce from her husband, and in the decree was allowed a sum of money as alimony, was given the care and custody of their child, but no provision was made for its support. It was held that the mother might maintain an original action against the father, in a court other than that in which the divorce was granted, to recover compensation for necessaries furnished the child after the decree, and that the obligation of the father to provide reasonably for the child’s support, until it was in a condition to provide for its own support, was not impaired by the entry of the decree. (See also, Brown v. Brown, 132 Ga. 712.) In Spencer v. Spencer, supra, the contention was made that, the divorce court having by the decree awarded the custody of the children to the mother without providing for their support, it was to be presumed that provision for their support was unnecessary, and, hence, the decree was conclusive as to the obligation of the father, unless modified by subsequent proceedings in the court which had granted the divorce, but the court said (p. 59): “It would seem, if the court omits to make in its decree any provision for the support of the children, that the presumption would be that the court deemed it best to leave the matter of the support of the children to rest upon the father’s legal liability to support them until its further order.” And further said: “In cases where the husband deserts his family in one State and becomes a resident of another State, leaving no property in the State where he left his wife and children, and where she commences an action against him for a divorce for his wrong, the court would have jurisdiction of -the wife, of the marriage status, and of the custody of the children, but not of the husband or his property. It would be impracticable to make and impossible to enforce any decree as to the support of the children in such a case.” So, under the stipulated facts of the present case, where it appears that the Minnesota court which granted the decree did not have such jurisdiction of the person of the defendant or over his property as would justify the incorporation in the decree of provisions for alimony and for the child’s support, the insertion of such provisions would have been useless as they could not have been enforced.

Considering the stipulated facts, and the law as disclosed by the decided weight of authority, we are of the opinion that there is no merit in any of the above-mentioned contentions of defendant’s counsel, and that the circuit court did not err in entering the judgment appealed from. It should be affirmed and it is so ordered.

Affirmed.

Barnes, P. J., and Fitch, J., concur.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    Mahalia Amps and Sarah J. Amps, Plaintiffs in Error, v. Public Life Insurance Company, Defendant in Error.
    Gen. No. 30,368.
    1. Insurance — sufficiency of evidence to sustain finding of lapse of life insurance policy by nonpayment of premium instalment. Evidence in action on life insurance policy held to sustain finding that policy had lapsed, prior to death of insured, by nonpayment of premium instalment within grace period after due date.
    2. Insurance — obligation of insurer under life policy after default of premium,, where no forfeiture declared before loss. Where the covenants of a policy of life insurance condition the existence of the obligation of the insurer thereunder upon the payment in advance of quarterly instalments of premiums within a thirty-day grace period following the due date thereof, the insurer was under no obligation under such policy to the beneficiaries of the insured who died while an instalment was in default, although the policy contained no provision for a forfeiture in the event of nonpayment of premium, and although! the insurer did not formally notify either the insured or the beneficiaries, prior to the death, that the policy had been forfeited.
    Error by plaintiffs to the Municipal Court of Chicago; the Hon. Robert E. Gentzel, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed February 2, 1926.
    Rehearing denied February 17, 1926.
    Schoenbrod & Rosengard, for plaintiffs in error.
    A. L. Williams, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action on an insurance policy, issued by the defendant company on August 16, 1922, on the life of Washington D. Amps for the benefit of plaintiffs as beneficiaries, wife and mother of the insured, the court, after a hearing without a jury, found the issues in favor of the company and on July 14,1925, entered the judgment against plaintiffs for costs which it is sought by this writ of error to reverse.

It is stated on the first page of the policy that it is a “twenty payment life” policy for $1,000, but by an attached rider the company agreed to pay double the amount in case the insured met his death through external, violent and accidental means. He was drowned in Lake Michigan on September 4, 1924. Plaintiffs sued to recover $2,000, alleging" that “all the terms, covenants and conditions of * * * said contract of insurance have been duly fulfilled and complied with” by the insured during his, lifetime and by plaintiffs, as beneficiaries, after his death. It was conceded on the trial that, if plaintiffs were entitled to recover anything, $2,000 was the proper amount. The company, in its affidavit of merits, denied that all the terms, covenants and conditions of the policy, or contract of insurance, had been complied with by the insured or by the beneficiaries, and alleged that the beneficiaries were not entitled to recover from it the amount of the policy, or any sum, for the reason that neither one of the two quarterly premiums, each for $10.03, due respectively on May 16, 1924, and August 16, 1924, ever was paid.

Practically the only disputed question of fact on the trial was whether the quarterly premium, due on May 16, 1924, had been paid. Mahalia Amps, wife of insured, testified in substance that she paid in cash the premium due on that date on April 18, 1924, i. e., nearly a month before it became due, to Lewis W. Johnson, agent of the company, when he called at her home in Chicago; that at the time of such payment he delivered to her the company’s printed receipt for the amount, countersigned by him, but that the receipt had been lost; that all prior premiums had been paid in cash, either by the insured or herself, to Johnson and similar receipts given; that a day or two after the insured’s death Johnson again called at her home at which time (within the 30 days ’ grace period) she tendered to him $10.03 in cash, in payment of the premium due on August 16, 1924, but that Johnson refused the money, saying that, inasmuch as her husband had died on September 4, 1924, the payment of such premium was unnecessary; and that subsequently Johnson informed her that the company would not pay the beneficiaries the amount of the policy because the premium due on May 16, 1924, had never been paid. She produced some receipts for payment of premiums due prior to May 16,1924. It was conceded that Johnson was authorized to collect all premiums from the insured. The policy provided that 11 a grace of one month (not less than 30 days) will be allowed for the payment of every premium after the first, during which time the insurance shall continue in force”; and that “if death occurs within the month of grace, no reduction will be made from the amount payable hereunder for the unpaid premium or any installment or installments thereof necessary to complete the premium for the current policy year”; and that “this contract is based upon the receipt of premiums annually in advance, but the mode of premium payments may be changed on any anniversary date of the policy from annual to semi-annual, quarterly or monthly installments in advance, or vice-versa.” In the written application, signed by insured, for the policy, mention is made that the premium is to be paid “quarterly” and in the amount of “$10.03.” It. does not appear that the mode or time of paying the premiums was changed at any time. Johnson testified in substance that he received from Mahalia Amps the premium (due under the policy in question on February 16, 1924) on March 14, 1924, almost at the end of the 30-day period of grace, and gave her a written receipt for the payment; that the prior premiums on the policy had never been paid on their due date and only after repeated calls and solicitations; that, about a year before, a payment was not made until on the very last day of the grace period; that he saw Mrs. Amps on April 18, 1924, at which time she paid him some money due on a policy which she was carrying for her son (not the policy in question); that she did not pay him any money at that time on the policy sued upon; that he made several unsuccessful efforts to collect the premium, due on the policy sued upon on May 16, 1924, but that the same was not paid; and that the day after the insured’s death he called on Mrs. Amps at her request, when she tendered to him in cash $10.03, which he refused, telling her in substance that, if the policy was alive, such a payment would be unnecessary, but that, if the policy had lapsed, the company would not reinstate it after her husband’s death.

From the foregoing testimony, and other testimony and documentary evidence introduced on the trial, the court found in effect that the premium, due on the policy on May 16, 1924, had never been paid and that in consequence the policy had lapsed. It is apparent that, if the premium due on May 16 had been paid in apt time, the policy would have been in full force and effect at the time of the insured’s death (September 4, 1924), because the next premium payment, accruing on August 16, was not required to be paid, by virtue of the 30-day period of grace clause, until September 15, which is after the date the insured died.

One of the contentions of plaintiffs ’ counsel is that the above-mentioned finding of the court is not sustained by a preponderance of the evidence. After a careful review of the transcript we are of the opinion that the finding is sufficiently supported by the evidence and should not be disturbed.

Plaintiffs’ counsel contended in the trial court that, even assuming that the payment of the quarterly premium in question had not been made, still, inasmuch as the policy does not contain any provision for a forfeiture thereof because of a failure to pay the premium on the due date including the 30 days ’ grace, plaintiffs, as beneficiaries, are entitled to recover the full amount of the policy. Counsel submitted a proposition of law, embodying the contention, to the trial court, but the court marked it “refused,” and made the further indorsement thereon that it is “not in point.” Counsel make substantially the same contention in this court, as a ground for a reversal of the judgment, citing in support thereof the cases of Ingersoll v. Mutual Life Ins. Co., 156 Ill. App. 568; Bolton v. Standard Life Ins. Co., 219 Ill. App. 177; and Haas v. Mutual Life Ins. Co., 84 Neb. 682. After a review of the provisions contained in the policy sued upon, and the evidence, we are of the opinion that the principles announced in those cases are not applicable to the present case.

There is no clause in the policy providing for the declaring by the company of a forfeiture in case of failure of payment of the quarterly premiums as they become due, including the 30 days’ grace, and there is no evidence that the'company, after the failure of payment of the quarterly premium of May 16, 1924, formally in writing or otherwise notified the insured or the beneficiaries that the policy had been “forfeited.” From the terms and language of the policy it is apparent, we think, that the keeping of it in force was dependent upon the making of the payments of the quarterly premiums on their due dates, allowing for each payment the period of grace of 30 days, and that that was the contract of the parties, clearly understood by both. On the first page it is stated that the company “agrees to pay” to the beneficiaries, upon receipt of due proofs of death of the insured, the amount of the insurance “provided this policy is in force at the time of the death of the insured”; and in several other clauses it is mentioned that such payment will be made “if all premiums have been duly paid.” In another clause it is stated: “This policy shall be incontestable after it shall have been in force, during the lifetime of the insured, for one year from date of issue except for nonpayment of premium”; in another “except as herein provided” (evidently referring to the 30 days’ grace clause) “the payment of a premium, or any installment thereof, shall not maintain the policy in force beyond the date when the next premium or installment thereof is due and payable”; and in another, “should this policy lapse by reason of nonpayment of any premium, it may be reinstated at any time upon evidence of insurability of the insured at the time of application for reinstatement, satisfactory to the Company, and the payment of all arrears of premiums,” etc. In the rider, headed “Double Indemnity Benefit,” it is stated: “The Company will pay double the face amount of this policy upon * * * due proof * * * that the death of the insured occurred * * * in direct consequence of bodily injury effected solely through external, violent and accidental means, * * * provided that no premium is due and unpaid * * * and that this policy is then in full force.” And, finally, at the end of the policy, just above the signature of the officers of the company, under date of August 16, 1922, it is stated: “This insurance is granted in consideration of the application for this policy * * * and in further consideration of the payment in advance of the sum of $37.85 (which may, however, be paid in semiannual, quarterly, or monthly installments in advance # * *)? being the premium for term insurance terminating on the 16th day of August, 1923, and of the payment as renewal premiums of a like sum (which may also be paid in semi-annual, quarterly or monthly installments in advance) on the 16th day of August in each and every year during the continuance of the contract, or until renewal premiums for nineteen compíete years shall have been paid. This policy takes effect as of the 16th day of August, 1922.”

In the case of Roberts v. Ætna Life Ins. Co., 101 Ill. App. 313 (affirmed 212 Ill. 382), suit was brought on a policy of insurance, in consideration of the issuance of which the insured had given his four notes of $6.25 each for the premiums for periods aggregating one year. The first premium note was payable one month from the date of the policy, March 14, 1899, and the payment thereof was, to carry the insurance for two months; the second note, payable in two months, continued the insurance for four months, and so on. The notes as well as the policy provided that in case of nonpayment of any one of the notes at maturity the insurance should cease. The first note was paid, but the second and third were not. After the maturity of the third note, June 14, the insured received accidental injuries on July 10 which caused his death on July 26. Between the time of his injuries and death, his sister went to the office of the company, and, in his behalf, offered to pay said second and third notes which were past due and tendered the money therefor. The company refused to accept the money on the ground that the insurance had lapsed. When proofs of death were presented the company wrote: “Inasmuch as the insurance * * * expired on May 14th, by reason of the nonpayment of the second note given in connection with the issue of said policy, there could be no claim under it.”

On the trial, at the conclusion of plaintiff’s evidence, the court instructed the jury to return a verdict for the company and judgment was entered accordingly. On writ of error the Appellate Court for this district affirmed the judgment and held that under the facts “there is presented no question of forfeiture” (p. 319) and said (p. 316):

“We are unable to see any logical ground upon which it could be held that the beneficiary named in a life insurance policy gains thereby vested rights which cannot be defeated through a failure of the insured to comply with the terms of the contract as to payment of premiums. If the contention of counsel were tenable, there would be no reason, save sense of moral obligation, for the payment of any premiums upon insurance policies such as this after the one payment by which the issuing of the policy had been secured. This policy expressly makes the prepayment of premiums a condition precedent to the existence of the contract. It provides for separate insurance covering separate periods of time.”

We think that the decision and holdings in the Roberts case should be followed in the present case. While the policy in the Roberts case is somewhat different from the policy in the present case, yet in both policies the contract was for term insurance and the continued existence of the insurance was dependent upon the payment of the premiums at the times specified. In the present policy, as to the payment of the premiums, it was expressly provided that “the payment of a premium, or any installment thereof, shall not maintain the policy in force beyond the date when the next premium or installment thereof is due and payable,” considering, of course, the 30 days’ period of grace. In 32 Corpus Juris, p. 1196, sec. 329, it is said: “Where instead of payment of the entire premium at one time, provision is made in the contract of insurance or policy for payment in installments, annually, semi-annually, quarterly, monthly, or weekly, as the case may be, each installment must be paid when it falls due according to the terms of the contract in order to keep the policy in force, except where such payment may have been excused or waived by the company.” In 37 Corpus Juris, p. 472, sec. 189, it is said: “It has been laid down that the covenants of insurer to .pay the loss and of insured to pay the premiums may be dependent, and that in such case the obligation of the insurer ceases where premiums are not paid, notwithstanding the absence of an express provision for forfeiture.” (Citing Mutual Life Ins. Co. v. Hill, 193 U. S. 551; Jackson v. Mutual Life Ins. Co., 186 Fed. 447, 450.) In the Hill case it is said (p. 559): “It is simple justice between two parties to a contract containing depending stipulations that neither should be permitted to exact performance by the other without having himself first performed. * * * Courts have always set their faces against an insurance company which, having received its premiums, has sought by technical defenses to avoid payment, and in like manner should they set their faces against an effort to exact payment from an insurance company when the premiums have deliberately been left unpaid. ’ ’ 0

Our conclusion is, after considering the evidence contained in the present transcript and a considerable number of adjudicated cases, that the municipal court did not err in entering a finding and judgment in favor of the defendant company and accordingly the judgment will be affirmed.

Affirmed.

Barnes, P. J., and Fitch, J., concur.


author: Mr. Justice O’Connor

text:
    Orlando Noble et al., trading as Noble & Thumm, Appellants, v. Arthur S. Carruthers, trading as Arthur S. Carruthers & Company, and Robert L. Leffingwell, Appellees.
    Gen. No. 30,266.
    1. Appeal and error — enforcement of payment of judgment by execution as effecting release of errors. The enforcement by execution of the payment of a judgment does not operate to release errors that may have been made in the entry of such judgment.
    2. Lis pendens — effect of reversal of decree dismissing till of interpleader upon rights acquired ty claimants pending appeal. Where rival claimants for commissions due from a common principal for services in procuring a tenant for his property prosecuted their claims to judgment while there was pending in the Appellate Court an appeal from a decree of the circuit court dismissing his bill of interpleader seeking the judgment of that court on the respective rights of such claimants, their action in so doing and in procuring satisfaction of such judgments by execution was at their risk and subject to the power of the circuit court, upon reversal of its decree, to restore the status or to give such other relief as equity might deem just in the premises.
    3. Interpleader — sufficiency of supplemental till. Where, pending reversal on appeal of a decree dismissing a bill of interpleader wherein complainants admitted an obligation to pay commissions for procuring a tenant to their property and prayed that the two claimants to such commissions be required to interplead, each of such claimants prosecuted his claim against complainants to judgment, payment being enforced as to one by execution issued following its affirmance on appeal, and the other remaining pending on writ of error, a supplemental bill of interpleader, filed by complainants following the reversal of the former decree, setting up the matters that had transpired since the filing of the original bill and praying that the said claimants, named as defendants, be enjoined from attempting to enforce the collection of the judgment and upon payment by complainants of the sum found due for commissions, to satisfy such judgments, was improperly dismissed on demurrer by one of such claimants.
    Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. Hugo M. Friend, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed February 3, 1926.
    Rehearing denied February 16, 1926.
    Delbert A. Clithero and Clithero, Van Schaick & Stevens, for appellants.
    Brundage, Landon, Holt & Boord, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal complainants seek to reverse a decree of the circuit court of Cook county dismissing their bill of interpleader for want of equity.

The record discloses that on March 28, 1923, complainants filed their bill of interpleader, wherein they alleged that they were the owners of certain real estate located in Evanston and were desirous of leasing the premises and for that purpose listed it with the two defendants, who were real estate brokers; that after-wards a tenant was obtained by one of the two defendants, but each of them claimed to have obtained the tenant, and, therefore, was entitled to the full commission. The bill further alleged that on October 22,1921, the defendant, Carruthers, brought suit in the municipal court against the complainant to recover a commission of $2,790, claimed to be due him for obtaining the tenant for the premises in question; that on January 11, 1922, the defendant, Leffingwell, also brought an action in the municipal court of Chicago against the complainants to recover $2,220, claimed by him as commission for obtaining the same tenant; that complainants admitted that they owed a commission of $2,409.51 to the defendant who had obtained the tenant and prayed that the defendants be required to inter-plead. The defendant, Leffingwell, answered the bill but Carruthers demurred to it. The demurrer was sustained and the bill dismissed. An appeal was taken to this court where the decree of the circuit court was reversed and the cause remanded. Noble v. Carruthers, 235 Ill. App. 1. The opinion was filed in this court November 26, 1924. In the meantime, over objection of complainants, the two suits pending in the municipal court were tried without a jury before the same judge who heard the evidence in both cases and on December 31,1923, entered a judgment in favor of Leffingwell for $2,220 and another judgment in favor of Carruthers for $750. Complainants appealed from the Leffingwell judgment to this court where the judgment of the municipal court was affirmed by another division of this court on October 7,1924 [235 Ill. App. 608]. No appeal was taken from the Carruther’s judgment. After this court reversed the decree of the circuit court which dismissed the bill of interpleader, the cause was redocketed in the circuit court and complainants upon leave filed their supplemental bill which set up the matter that had transpired since the entry of the decree dismissing the bill. It further appears from the record that two days after the original bill was filed, the court entered an order restraining the defendants from prosecuting the two suits in the municipal court until further order of the court. By both the original and supplemental bills complainants offered to pay into court the $2,409.51, or whatever sum the court should find to be the reasonable and customary commission due for the obtaining of the tenant. The prayer of the supplemental bill was that the two defendants be enjoined from attempting to enforce the collection of the two judgments rendered in the municipal court; that upon the payment by complainants of the amount found due for the commission, the injunction be made perpetual and the defendants ordered to satisfy the municipal court judgments. Carruthers answered the bill and the defendant, Leffingwell, demurred to it. His demurrer was sustained, the bill was dismissed and this appeal followed.

It was agreed by counsel for complainants, and counsel for Leffingwell, that since the decree was entered, from which this appeal was taken, Leffingwell has enforced collection of his municipal court judgment by execution. Our attention has also been brought to the fact that afterwards and on November 17, 1925, a writ of error was sued out from this court by Carruthers to reverse the $750 judgment entered in his favor by the municipal court, which writ of error is returnable to the March, 1926, term of this court.

The enforced payment of the Leffingwell judgment rendered in the municipal court does not operate to release any errors that may have been made in the entry of that judgment. Zbetovsky v. Doupnik, 237 Ill. App. 647; Richeson v. Ryan, 14 Ill. 74; Chaney v. Baker, 302 Ill. 481, and other cases cited by us in the Doupnik case.

What was done by the two defendants in prosecuting their two suits which were pending in the municipal court while the appeal was pending in this court from the decree dismissing the bill of interpleader was at the risk of defendants and subject to the power of the circuit court upon the reversal of its decree by this court to restore the status or to give such other relief as equity might deem just in the premises. New Haven Clock Co. v. Kochersperger, 175 Ill. 383; Turney v. Shriver, 269 Ill. 164; Gulick v. Hamilton, 287 Ill. 367. It would certainly be unjust and inequitable to permit the two defendants who were plaintiffs in the two municipal court actions to proceed with those cases whereby the complainants might be compelled to pay Carruthers and Leffingwell the full amount of the commission, thereby compelling the complainants to pay for the same services twice. We have held that if the allegations of the bill of interpleader were true, the bill stated a good cause of action. If the decree of the circuit court dismissing the supplemental bill is reversed, complainants may be forced to pay twice, because it appears that Leffingwell has been paid the full amount of the commission and that Carruthers, by his writ of error now pending in this court, is also endeavoring to get the full commission.

In the Kochersperger case, the court said (p. 395): “A party filing a bill for an injunction may fail to procure a preliminary injunction, but any act after the court has acquired jurisdiction will be subject to the power of the court to compel a restoration of the status or to enforce such other relief as may be proper.”

In the Turney case, the court said (p. 172): “The rule in this State is, that where a hill for an injunction has been filed and the court has acquired jurisdiction of both the person and the subject matter of the suit and the defendant does any act which the bill seeks to enjoin, such party acts at his peril and subject to the power of the court to compel a restoration of the status, or to grant such other relief as may be proper under the particular circumstances of the case.”

The case at bar is to be distinguished from the case of the Billboard Pub. Co. v. McCarahan, 192 Ill. App. 384, cited by counsel for Leffingwell. In that case Mc-Carahan had brought an action of assumpsit against the Billboard Company to recover commissions claimed to be due him. The Billboard Company then filed a bill in equity for an accounting against McCarahan and praying .that the action at law be restrained. A temporary restraining order was issued. Afterwards the matter was referred to a master in chancery and while he was taking the proofs, the chancery suit was dismissed, March 10, 1910, for want of prosecution. Neither party discovered the dismissal order until the lapse of several terms after the dismissal order was entered. McCarahan upon learning of the dismissal of the bill moved that the action at law be set for trial. On October 27, 1910, the Billboard Company filed a petition in the chancery case, seeking to have McCarahan held in contempt of court for proceeding with the action at law. A demurrer to the petition was sustained and upon appeal to this court the decree was affirmed. The court held that McCarahan could not be held in contempt of an order entered in the chancery suit when that suit had been dismissed. After-wards McCarahan proceeded with his action at law and secured a judgment in 1911. On February 6 following, the Billboard Company filed another bill praying that the judgment at law be vacated and that McCarahan be enjoined from attempting to enforce the collection of it. The temporary injunction was afterwards dissolved and an appeal was denied the Billboard Company. Afterwards its bill was dismissed and it appealed to this court where the decree was affirmed on the ground that the dismissal order of March 10, 1910, while erroneous, was not void. The Billboard Company sued out a writ of error to reverse the order of March 10, 1910, and this court reversed and remanded that order. On redocketing the cause, the Billboard Company filed a supplemental bill to which McCarahan filed a plea. The plea was held good, the bill dismissed and an appeal was taken to this court where the decree of the trial court was affirmed. (192 Ill. App. 384.) In that case the court said: “But the injunction was dissolved by the dismissal of the bill, the lawsuit was prosecuted; the Billboard Publishing Company could have raised in defense to it, inconvenient as it might have been to it to have done so, every matter that it did raise in the chancery suit. It elected neither to do that nor to file a new bill, nor even, until long after, to sue out a writ of error on the dismissal of the old one, pertinaciously adhering to the erroneous theory that the order of dismissal was void. This it did at its peril, and we think it has now no ground of complaint.”

In the instant case, we held on the former appeal that the bill of interpleader would lie and plaintiff did not have an adequate remedy at law by defending the two suits in the municipal court. Moreover, complainants here did not adhere to any erroneous theory as in the McCarahan case, but on the contrary we have held that his theory has been consistently correct. Further, in that case the bill was filed after judgment at law had been entered, while, in the case at bar, the bill was filed while the two suits were pending in the municipal court. Another distinction is that in the Mc-Carahan case nothing whatever was pending in the equity case from the time the suit was dismissed until the writ of error was sued out, many months later, while in this case the equity suit instituted by complainants has been alive and pending continuously since the original bill was filed.

For the reasons stated, the decree of the circuit court is reversed and the cause remanded to that court with directions to overrule the demurrer filed by Leffingwell and for such other proceedings as may be in accordance with the views herein expressed.

Reversed and remanded with directions.

Thomson, P. J., and Taylor, J., concur.


author: Mr. Justice Taylor

text:
    Grossfield & Roe Company, Defendant in Error, v. Antonio Zanni et al., Plaintiffs in Error.
    Gen. No. 30,249.
    1. Continuances — propriety of allowance to permit procuring of witnesses to obviate necessity of testimony by party's counsel. Where counsel for defendant was able to testify to facts going to establish a defense, but, being counsel, wished not to do so, his application for a continuance to enable him to secure witnesses to supply the needed testimony should have been granted.
    2. Fraudulent conveyances — rights of creditor of vendor of stock of merchandise against vendee where Bulk Sales Act not complied with. The mere fact that a sale of merchandise in bulk has not been made in accordance with the requirements of the Bulk Sales Act does not entitle the creditors of the vendor to maintain assumpsit against the vendee.
    Error by defendants to the Municipal Court of Chicago; the Hon. James J. O’Toole, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed February 3, 1926.
    Cairoli Gigliotti, for plaintiffs in error.
    Weil, Ward & Adams, for defendant in error.
   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal from a judgment obtained by the plaintiff, Grossfield & Eoe Company, in the municipal court of Chicago, against the defendant Vito Daltolico, in the sum of $160.95.

On October 23, 1924, the plaintiff filed a verified statement of claim, in which Antonio Zanni, Vito Daltolico and Marco Lungo were described as defendants, alleging that the defendant Antonio Zanni was indebted to it in the sum of $160.95, for goods, wares and merchandise consisting of groceries sold and delivered to the defendant Antonio Zanni in July, 1924; and “that the said Zanni subsequently sold his business in bulk to the other defendants herein, without giving notice thereof as is by statute provided. ’ ’

On October 11, 1924, service was had on the defendant Vito Daltolico. No service was had on either of the other defendants. On October 23, 1924, a trial took place before one of the judges of the municipal court, without a jury.

The record shows that on August 4, 1925, on motion of the defendant, it was ordered that an affidavit of merits be filed nunc fro tunc as of October 23, 1924.

The affidavit of merits, sworn to by the defendant, recites that he, Vito Daltolico “purchased the contents of the store located at 1327 West Ohio street at public auction on August 18,1924, at a mortgage foreclosure, being the highest bidder; that he had no notice of claim of the plaintiff against any of the defendants, and was altogether within the law in purchasing the contents of said store. This defendant, Vito Daltolico, is not indebted to plaintiff in the sum claimed by plaintiff in its statement of claim, or in any other sum, as he never had any transaction with said plaintiff, either in person or by means of any agent. ”

At the trial, the defendant Vito Daltolico was called as a witness on his own behalf. No other witness was called by either party. He testified that about ten o’clock on August 18, 1924, he bought a store located at 1327 West Ohio street; that the store at the time contained only furniture, and that the stock was of no value. Following that testimony, there was a colloquy between the court and counsel for both sides. Counsel for the defendant stated that there was a chattel mortgage on the property, which was recorded in the recorder’s office, which the defendant did not have with him, but had at home. Counsel for the plaintiff stated that the defendant had failed to show that the sale was conducted by a public officer or by an auctioneer, or that notice was published or posted in accordance with the statute, and that the plaintiff was suing under the Bulk Sales Law. Counsel for the defendant then stated that he would produce the chattel mortgage, and the notice of sale which was posted on the door. The court then stated: “He has no proof here that it was sold at public auction, or that it was sold under foreclosure, absolutely none. Finding for the plaintiff in the sum of $160.95.”

Following that, there was a further colloquy between court and counsel, and the court asked counsel for the defendant if he desired a continuance to bring in these papers, and, upon counsel for the defendant answering in the affirmative, the court asked, “What are the grounds why you should have continuance for more evidence at this time?” and counsel answered, “To bring* documentary evidence.” The court then said, “To sustain your affidavit of merits. That is what you want?” to which counsel for the defendant responded, “The affidavit of merits in this case.”

After some further discussion, counsel for the defendant said that he desired to produce not only the papers, but a number of witnesses, and that he himself could testify, but as he was attorney for the defendant he did not think it proper for him to do so. The court then asked why he was not ready for trial when the case was called, and counsel for the defendant stated that the defendant only came to him that morning. Then after counsel for the defendant stated that he was willing personally to testify, the court said, ‘ ‘ Your motion for continuance is overruled. ’ ’ Counsel for the defendant then asked for a judgment in favor of the defendant. The court asked him if he had closed his case, and he said, “Yes.” The court then found for the plaintiff, and entered judgment for $160.95 in favor of the plaintiff.

From the foregoing it will be seen that the case was tried on the theory that the pleadings consisted of the verified statement of claim and the affidavit of merits. It is true that the affidavit of merits was not marked “Filed” at the time, and was actually filed subsequently by an order nunc pro tunc as of the date of the trial, but we think it is only proper, however, having in mind the colloquy of court and counsel, which shows that the affidavit of merits was there and was considered as part of the pleadings at the time of the trial, and considering the order mine pro tunc, to treat the affidavit of merits the same as if physically filed at the time of the trial.

It is contended on behalf of the defendant Vito Daltolico that the trial judge erred in refusing to give him a reasonable opportunity to produce evidence in support of his defense. The record shows that counsel for the defendant had only just been retained by the defendant, and that there were witnesses and papers which he desired to have present, in order to make out the defense set up in the affidavit of merits.

Counsel for the defendant stated that he could testify to the facts himself, but that, as he was attorney for the defendant, he did not wish to do so, and that he desired a continuance in order to produce certain papers and a number of witnesses. We think that, under the circumstances, the court in its discretion should have granted to the defendant th'e continuance which was requested. But apart from that, and on the merits of the case, we find, upon examination of the statement of claim and consideration of all that connsel claims for the plaintiff, that no such cause of action was shown as would entitle the plaintiff to a judgment against Vito Daltolico. The statement of claim seems to have been drawn on the theory that where an owner sells in bulk the major part, or the whole, of a stock of merchandise without compliance with the Bulk Sales Act [Cahill’s St., ch. 121a, 1-3], a creditor may sue the vendee directly in assumpsit for whatever may be due the creditor from the vendor. The Bulk Sales Act provides that certain sales in bulk are fraudulent and void, as against creditors, and further provides that a sale in violation of the Bulk Sales law constitutes a misdemeanor, but goes no further. Although a sale may be fraudulent and void, as against creditors, by reason of the Bulk Sales Act, it does not follow that the vendee immediately becomes a direct debtor so as to be liable, for example, in assumpsit, to the creditor. The fact that a sale is void as to creditors by reason of the Bulk Safes Act may be taken advantage of in proper proceedings by the creditor (Ogden Ave. State Bank v. Cherry, 225 Ill. App. 201; Page v. Wright, 194 Ill. App. 149), but that fact may in no way be said to give rise to a new obligation on the part of the vendee directly to the creditor, that is, such an obligation as may be enforced by the creditor against the vendee in a suit at law. Chicago Specialty Shoe Co. v. Uhwat, 197 Ill. App. 460.

We desire to call the attention of counsel for the defendant to the fact that in his brief there are statements and innuendoes, concerning the trial judge and his conduct, which are highly improper, and should not have been made. Epstein v. Fort Dearborn Motor Cartage Co., 207 Ill. App. 321.

The judgment will be reversed.

Reversed.

Thomson, P.J., and O’Connor, J., concur.


text:
    In the Matter of the Petition of Karl Schikowski, for release from arrest at suit of Joseph Levy, etc. Joseph Levy, Appellant, v. Karl Schikowski, Appellee.
    Gen. No. 30,345.

      Bxecuitoits — prima, facie sufficiency of showing 5y declaration, verdict and judgment in tort action that malice not gist of action. Proof by a petitioner in proceedings under the Insolvent Debtors’ Act to secure his release from detention under a writ of capias ad satisfaciendum issued upon a judgment against him in an action for negligence, that the declaration upon which the judgment was based alleged in both counts that the defendant caused the injury sued upon by “carelessly, wilfully and negligently” driving his automobile, did not affirmatively prove that malice was the gist of the action, but on the contrary made out a prima facie case that malice was not the gist of the action, and put the burden of establishing the contrary upon the judgment creditor.
    Appeal by plaintiff from the County Court of Cook county; the Hon. I. L. Weaver, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed February 3, 1926.
    Ela, Grover & March and Justin K. Orvis, for appellant.
    Werner H. Sommers and Walter F. Sommers, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court..

This is an appeal from an order of the county court in a proceeding by petition under the Insolvent Debtors’ Act, releasing Karl Schikowski from arrest upon a capias ad satisfaciendum.

Under the Insolvent Debtors’ Act, ch. 72, ffl[4, 5, Cahill’s St. (1925), any one who is arrested or imprisoned upon any process issued in any civil action where malice is not the gist of the action may be released upon complying with certain requirements of that act.

The question upon this appeal is whether .Karl Schikowski, the petitioner in the county court, complied with the act, and showed that malice was not the gist of the particular action out of which the capias under which he was arrested was issued.

The cause of action here involved was a suit by Joseph Levy against Karl Schikowski in the circuit court for damages for personal injuries suffered as the result of being run into by an automobile driven by Schikowski. The declaration in that case, which was offered in evidence at a hearing upon the petition in question, consisting of two counts, in describing the breach of duty on the part of Schikowski, contained the following language:

“By carelessly, wilfully and negligently driving, operating and managing his said automobile or motor vehicle that by and through such wilfulness, carelessness and negligence the defendant then and there wilfully, negligently and carelessly operated said automobile or motor vehicle so that the same then and there ran into and struck with great force and violence upon and against the plaintiff * * *; and so carelessly, negligently and wilfully drove, operated and managed his said automobile, or motor driven vehicle, at a great and unreasonable rate of speed, to-wit: greater than ten (10),miles an hour; that by and through such negligence the- defendant then and there negligently, carelessly and wilfully operated said automobile,0 or motor driven vehicle, so that the same then and there ran into and struck with great force and violence, upon and against the plaintiff * *

There was also offered in evidence the judgment record in the damage suit, which showed that Schikowski was served with summons, that there was a trial before the court, with a jury, and that there was a verdict and judgment against Schikowski in the sum -- of $1,500. That was all the evidence.

At the close of the hearing on the petition for release under the Insolvent Debtors’ Act, an order was entered in the county court finding that malice was not the gist of the action, and discharging and releasing the petitioner, Schikowski, from arrest under the writ of capias ad satisfaciendum. This is an appeal from that order.

The suit in the circuit court being in tort, the plaintiff in that case was entitled, upon recovering a judgment, to have a capias ad satisfaciendum issued as a matter of course. People ex rel. Mark v. Walker, 286 Ill. 541; Reinwald v. McGregor, 239 Ill. App. 240. Upon arrest under such a capias, the defendant, in the damage suit, was entitled to apply to the county court to be discharged and released under the Insolvent Debtors ’ Act, ch. 72, Cahill’s St. 1925; Sawyer v. Nelson, 44 Ill. App. 184. Whether, upon an application to the county court, he would be released, depended upon evidence introduced as to the nature or gist of the action out of which the capias issued. If, in the words of section 5, the petitioner proved that “malice is not the gist of the action,” then he would be entitled to be released, provided he complied with certain provisions which afie not here involved. First Nat. Bank of Flora v. Burkett, 101 Ill. 391; In re Warnke’s Petition, 207 Ill. App. 459; Allen v. Raughan, 175 Ill. App. 395; People ex rel. Mark v. Walker, supra; Fetz v. People, 239 Ill. App. 250; Reinwald case, supra.

A judgment in tort having been rendered against the petitioner, a capias having issued thereunder, and the petitioner having applied under the Insolvent Debtors ’ Act to the county court for his release, it follows that the only question that arises is whether it was shown that malice was not the gist of the action in which the judgment was obtained. If that was shown, then the statute provides that he shall be discharged; if it was not, then, as the statute makes no provision for his release, he must remain in custody.

To determine whether malice was not the gist of the action it is necessary to consider the evidence produced by the petitioner in the county court. That consists only of the pleadings, verdict and judgment in the case in the circuit court.

It is argued that if the evidence does not show that the verdict of the jury involved a finding that the plaintiff in the tort case was guilty of wilful negligence, but shows that it may have only involved a finding that the defendant was guilty of ordinary negligence, then it cannot certainly be said, with such a verdict, that malice was the gist of the action; that ordinary negligence does not imply malice; that it may well be, for aught that appears in the evidence that was submitted to the county court, that the jury in the tort case based its verdict on a finding that the defendant was guilty of ordinary negligence; that from the fact that the declaration in each of the two counts charged the defendant with wilfully and negligently driving the automobile, it does not follow that, in bringing in their verdict for the plaintiff, they did more than find that he negligently drove the automobile.

From the argument made, it becomes necessary, therefore, to determine exactly what scope must be given to the verdict and judgment in the tort case. In First Nat. Bank of Flora v. Burkett, 101 Ill. 391, the court said: “The gist is defined to be the cause for which an action will lie — the ground or foundation of a suit, without which it would not be maintainable1— the essential ground or object of a suit, and without which there is not a cause of action.” Kitson v. Farwell, 132 Ill. 327. In Jernberg v. Mix, 199 Ill. 254, the court said: “The gist of an action is the essential ground or principal subject matter, without which the action could not be maintained. ’ ’ Citing Gould on Pleading, ch. 3, sec. 8, and the First Nat. Bank of Flora case, supra.

Bearing in mind those definitions as to the gist of an action, can it he said, in considering proceedings under the Insolvent Debtors ’ Act, that the declaration, verdict and judgment in the instant case, when offered in evidence in the county court, affirmatively proved that malice was so involved that without it the action could not have been maintained? In our judgment, that question must be answered in the negative. As the declaration, verdict and judgment do not necessarily show that the defendant in the tort case was guilty of wilful negligence, as they, in fact, may have involved only the finding that the defendant was guilty of ordinary negligence (Guianios v. De Camp Coal Min. Co., 242 Ill. 279), which does not include malice, the deduction cannot logically be made that malice was the gist of the action. Of course, ordinary negligence per se does not in any way imply malice. It may well be, for aught that appears in the record that was submitted to the county court, that the jury in the tort case based its verdict solely on a finding that the defendant was guilty of ordinary negligence; and, if they did so, it follows that malice was not the gist of the action.

To reiterate, as the gist of an action, having in mind the meaning of those words as used in the Insolvent Debtors’ Act, connotes that without which an action cannot be maintained, and as a verdict based on simple negligence — that is, conduct without malice — may be supported by a declaration which charges wilful negligence, it follows that a charge of wilful negligence does not necessarily import malice.

Even in the Jernberg case, where there were three counts, one of which alleged malice and two of which did not, the court said that the judgment was not conclusive, and that the petitioner had the right to put in evidence to show that the verdict and judgment were based upon the counts where malice was not the gist of the action. In the instant case, there are two counts, neither of which, it should be noted, necessarily involves malice; and in such a case, bearing in mind that the petitioner is entitled to every reasonable presumption in his favor,-the matter involved being one of imprisonment, it is only reasonable to hold that the introduction of the declaration, verdict and judgment made out a prima facie case in his favor to the effect that malice was not the gist of the action, and put the burden of introducing evidence to the contrary upon the judgment creditor.

When the petitioner had offered in evidence the declaration, verdict and judgment, and it was obvious to the court that the cause of action was one which could be maintained without malice being the gist- of the action, it was not its duty to enter upon conjecture and hold that which the evidence did not prove, that malice was the gist of the action. The petitioner was entitled to the benefit of the uncertainty. Although the Insolvent Debtors ’ Act binds him to prove a negative, that malice is not the gist of the action, we think he has done so when he proves that the court, with the record before it, cannot, without dealing in conjecture, hold the contrary. Further, the court said in the Kitson case, supra, when considering the Insolvent Debtors’ Act, “a judgment is conclusive only of what it necessarily and directly decides,” and applying that principle here, it must be said that the judgment in the tort case, as offered in evidence, does not necessarily and directly decide that malice was the gist of the action.

In the case of Fetz v. People, 239 Ill. App. 250, we held that the declaration charged malice, because one count alleged malice expressly and the other an assault vi et armis. That obviously is distinguishable from the instant case.

From the foregoing reasoning it follows that the judgment must be affirmed.

Affirmed.

Thomson, P. J., and 0 ’Connor, J., concur.