text:
    The People of the State of Illinois, defendant in error, v. Joe Latrulo, plaintiff in error.
    Gen. No. 37,681.
    Opinion filed December 24, 1934.
    Brodkin & Bieber, for plaintiff in error; Michael H. Brodkin, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Matehett

license: Public Domain

text:
    H. E. Delbare, appellee, v. F. H. Massmann et al., appellants.
    Gen. No. 37,707.
    Opinion filed December 24, 1934.
    George Gannon and Pines & Stein, for appellants; Alvin E. Stein, of counsel. Thomas M. Poynton, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Lu-Mi-Nus Signs, Inc., appellee, v. Arcturus Radio Tube Company, appellant.
    Gen. No. 37,716.
    Opinion filed December 24, 1934.
    George F. Callaghan and Richard H. Welsh, for appellant. Maurice J. Green and Philip Appel, for appellee; Philip Appel, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Carolan, Graham and Hoffman, Inc., defendant in error, v. Fred I. Simon, plaintiff in error.
    Gen. No. 37,484.
    Opinion filed December 31, 1934.
    Simon & Wolfsohn, for plaintiff in error. Errett O. Graham, for defendant in error.
   Mr. Justice Matehett

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Mike Delich, defendant in error, v. Fred Wolf and Elmer Wolf, plaintiffs in error.
    Gen. No. 37,544.
    Opinion filed December 31, 1934.
    Charles F. MeElroy, for plaintiffs in error; Edward Contoror, of counsel. E. J. Hauflaire, for defendant in error; Maxfield Weisbrod, of counsel. '
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Ethel Eskridge, appellee, v. City of Chicago, appellant.
    Gen. No. 37,670.
    Opinion filed December 31, 1934.
    Rehearing denied February 13, 1935.
    •William H. Sexton, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for appellant; Robert E. Dowling, Assistant • City Attofn'ey, of counsel. No appearance for appellee'.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Samuel Hecker, appellee, v. Car and General Insurance Corporation, Ltd., appellant.
    Gen. No. 37,760.
    Opinion filed December 31, 1934.
    Rehearing denied January 22, 1935.
    H. Kay George- and Martin Rothman, for appellant. Cohon & Gold-stein, for appeUee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    William L. O’Connell, receiver of West Side Trust and Savings Bank of Chicago, appellee, v. A. Miller et al., appellants.
    Gen. No. 37,788.
    Opinion filed December 31, 1934.
    Rehearing denied January 22, 1935.
    Loyal L. Smith and Alex C. Lawrence, for appellants. Carl M. Loos, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Hattie R. Cohen, appellee, v. Peggy Byrnes, trading as Jauma Beauty Salon, appellant.
    Gen. No. 37,809.

      Opinion filed December 31, 1934.
    Jacob Kosbie and Davidson & Tierney, for appellant. No appearance for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


author: Mr. Presiding Justice Gridley

text:
    Meyer W. Rosin, defendant in error, v. Bernard F. Weber, plaintiff in error.
    Gen. No. 37,409.
    Opinion filed December 31, 1934.
    Rehearing denied January 12, 1935.
    Ernest Saunders, for plaintiff in error. Joe A. Pearce, Leonard F. Carmody and Leon Weiss, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Charles N. Scherer, appellant, v. Greenebaum Sons Investment Company, appellee.
    Gen. No. 37,583.
    Opinion filed December 31, 1934.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel. Poppenhusen, Johnston, Thompson & Cole, for appellee; Edward J. Fleming and Henry G. O’Donnell, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Chicago Title and Trust Company and Frank Benjamin, plaintiffs in error, v. Margaret N. Collins and Metropolitan Trust Company, defendants in error.
    Gen. No. 36,907.
    Opinion filed December 31, 1934.
    Rehearing denied January 12, 1935.
    Hugh O’Neill and Hugh O’Neill, Jr., for certain plaintiff in error. Barthell & Rundall, for certain defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    The People of the State of Illinois ex rel. John S. Rusch, defendant in error, v. Simon Mann et al., respondents. Simon Mann et al., plaintiffs in error.
    Gen. No. 37,259.

      Opinion filed December 31, 1934.
    Simon Herr, for plaintiffs in error. Thomas J. Courtney, State’s Attorney, for defendant in error; John F. Cashen, Jr., of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. John S. Rusch, defendant in error, v. Simon Mann et al., respondents. Ida Rosenberg and Mollie Talbot, plaintiffs in error.
    Gen. No. 37,267.
    Opinion filed December 31, 1934.
    Simon Herr, for plaintiff's in error. Thomas J. Courtney, State’s Attorney, for defendant in error; John F. Cashen, Jr., of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Anna Snyder, appellee, v. The Prudential Insurance Company of America, appellant.
    Gen. No. 37,456.
    Opinion filed December 31, 1934.
    Rehearing denied January 12, 1935.
    Hoyne, O’Connor & Rubinkam, for appellant. Charles C. Cooley and Orion I. Bingaman, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Julius Luhrsen, administrator of the estate of Alfred L. Muller, deceased, appellee, v. John Marcus and Frank W. Glen, appellants.
    Gen. No. 37,485.
    Opinion filed December 31, 1934.
    Cassels, Potter & Bentley, for appellants; Ralph F. Potter and Kenneth B. Hawkins, of counsel. Cralien, Sullivan, O’Toole & Sullivan, for appellee; John E. Crahen, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Thomas McGreal, administrator of the estate of Francis Patrick McGreal, deceased, plaintiff in error, v. John Tiberi, trading as Brighton Paving Company, defendant in error.
    Gen. No. 37,502.

      Opinion filed December 31, 1934.
    Murphy O. Tate, Charles C. Spencer, Charles A. Nowak and Charles C. Bombaugh, for plaintiff in error. Miller, Gorham, Wales & Adams, for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    N. W. Conrardy, appellee, v. George L. Glendon, appellant.
    Gen. No. 37,512.
    Opinion filed December 31, 1934.
    Cochrane & George, for appellant. Robertson, Crowe & Spence and Charles M. Haft, for appellee; Charles M. Haft and James C. Spence, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    City of Evanston, defendant in error, v. John Gatewood, plaintiff in error.
    Gen. No. 37,525.
    Opinion filed December 31, 1934.
    Frank A. McDonnell and S. B. McDonnell, Jr., for plaintiff in error; Elwyn E. Long, of counsel. William Lister, Corporation Counsel, and Erwin F. Stolle, City Attorney, for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Kenneth Johnson, a minor, by Victor Johnson, his father and next friend, appellee, v. City of Chicago, appellant.
    Gen. No. 37,553.
    Opinion filed December 31, 1934.
    William H. Sexton, Corporation Counsel, and A. M. Smietanka, City Attorney, for appellant; Quin O’Brien, Assistant Corporation Counsel, of counsel. No appearance for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Yolanda Igyarto, a minor, by Cook County Trust Company, appellee, v. Yore Brothers Dairy Company, appellant.
    Gen. No. 37,567.

      Opinion filed December 31, 1934.
    Simon T.- Sutton, for appellant; Harry A. Goldsmith, of counsel. Joseph D. Ryan and Louis G. Davidson, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Justice Sullivan

text:
    Harry L. Weisbrod, appellee, v. Paul V. Shields et al., appellants.
    Gen. No. 37,337.
    Opinion filed December 31, 1934.
    Judah, Reichmann, Trumbull, Cox & Stern, for appellants. Donald J. Seeley, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    In re Estate of John W. Marshall, deceased. Cyrus S. Eaton and Selden E. Kline, trading as Otis and Company, plaintiffs in error, v. Helen M. Shaddock, administratrix of the estate of John W. Marshall, deceased, defendant in error.
    Gen. No. 37,462.
    Opinion filed December 31, 1934.
    Butler, Pope, Ballard & Siting, for plaintiffs in error; John F. Manierre and Ferris E. Hurd, of counsel. Wm. H. ■ Haight, for defendant in error.
   Mr. Justice Sullivan

delivered the opinion of 'the court.


text:
    Thomas F. Croke, appellee, v. Kane Fuel Company, appellant.
    Gen. No. 37,576.
    Opinion filed December 31, 1934.
    Rehearing denied January 12, 1935.
    Henry L. Blim, for appellant. Edward D. Pomeroy .and Henry T. .Martin, for appellee. - ■"
   Mr. Justice Sullivan

delivered the opinion of the court. ' ’


author: Mr. Presiding Justice Wolfe

text:
    Second District.
    The People of the State of Illinois, by Edwin V. Champion, State’s Attorney, and Henry A. Miller, appellees, v. Herald P. Reichel, appellant.
    Gen. No. 8,826.

      Drive, J., dissenting.
    Opinion filed November 30, 1934.
    Rehearing denied May 11, 1935.
    ■ Ralph W. Stone and Ben Thurman, for appellant. Todd, Morgan, Péridarvis & Arber and Shelton F. McGrath, .for appellee Henry A. Miller. • ' ■ • ■' ' '
   Mr. Presiding Justice Wolfe

delivered the opinion- of: the court.


author: ■Mr. Presiding Justice Wolfe

text:
    Johnson Oil Refining Company, plaintiff in error, v. Ellis F. Burt and Anna Burt, defendants in error.
    Gen. No. 8,809.
    Opinion filed January 10, 1935.
    John R. Palissard, for plaintiff in. error. Edward F. Braden and Miles S. Odie, for" defendants in error.'
   ■Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Anna Domeyer et al., appellees, v. William L. O’Connell, receiver of First Trust and Savings Bank of Sterling, appellant. Carolina M. Stadeble et al., appellees, and Joe Reaver, defendants.
    Gen. No. 8,853.
    Opinion filed January 10, 1935.
    Jacob Cantlin and" Samuel Rubin, for .appellant. " Ward, Ward & Seheineman and Edward F. Mee, for appellees. ■
   Mr. Presiding Justice Wolfe

delivered the opinion - Of the court.


text:
    Dorothy F. Durr Schuchat, appellant, v. Stanley F. McKee, appellee. P. A. Whitney and First National Bank of Morrison, defendants.
    Gen. No. 8,857.
    Opinion filed January 10, 1935.
    Rehearing denied February 5, 1935.
    Sheldon & Brown, for appellant. Ward, Ward -& Seheineman, for appellee. ■
   Mr. Presiding Justice Wolfe

delivered the opinion of .the court. : • ■


author: Mr, Presiding Justice Wolfe

text:
    Charles Oertley, defendant in error, v. Maria L. Gruner et al., plaintiffs in error.
    Gen. No. 8,862.
    Opinion filed January 10, 1935.
    Rehearing denied February 5, 1935.
    Henry Mansfield and David J. Cowan, for certain plaintiffs in error. Quinn, Quinn & O ’Hern, for defendant in terror; Jay J. Alloy and Emerson T. Anthony, of counsel. "
   Mr, Presiding Justice Wolfe

delivered the opinion of .the court.


text:
    Frank G. Keplinger, appellee, v. Anne R. Lord et al., appellants.
    Gen. No. 8,888.
    Opinion filed January 10, 1935.
    Rehearing denied February 5, 1935.
    Tuesburg & Armstrong, for. appellants. Baker, Niven & Crabtree, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    John G. Ericksen et al., appellants, v. C. A. Winn et al., appellees.
    Gen. No. 8,739.
    Opinion filed January 10, 1935.
    Harry C. Kinne and Harold F. Scovel, for appellants. Werner W. Sehroeder, for certain appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    General Paint and Varnish Company, appellant, v. Estate of Harry B. Husted, deceased, appellee.
    Gen. No. 8,836.
    Opinion filed January 10, 1935.
    Slxulman, Shulman & Abrams and George S. MeGaughey, for appellant. A. C. McHenry, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    Jack Slifer, administrator of the estate of Jack Burt Slifer, deceased, appellee, v. C. L. Agnew, appellant.
    Gen. No. 8,828.
    Opinion filed January 10, 1935.
    Rehearing denied February 5, 1935.
    Lord & Parker, for appellant; Maurice F. Lord and Gilbert L. Wood, of counsel. Hadley, Weaver & Woodward, for appellee; Harry G. Weaver and William C. Atten, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Lulu M. Day, executrix of the last will and testament of Dudley W. Day, deceased, appellant, v. Grace Forbes Talcott, appellee.
    Gen. No. 8,873.
    Opinion filed January 10, 1935.
    Andrews & Essington and Hall & Duslier, for appellant. C. H. Linscott, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Edna Sanders, appellee, v. City of Peoria, appellant.
    Gen. No. 8,830.
    Opinion filed January 17, 1935.
    Chester F. Barnett, for appellant. Walter W. Winget and Clarence W. Heyl, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Charity Eckhardt, appellee, v. Village of Lomax, appellant.
    Gen. No. 8,863.
    Opinion filed January 17, 1935.
    Charles E. Lauder and Frederick H. Lauder, for appellant. M. E. Nolan and Edward S. Martin, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Marcus O. Kagy, appellee, v. Robert Luke et al., appellants.
    Gen. No. 8,889.
    Opinion filed January 17, 1935.
    Louis Sevin and Shulman, Shulman & Abrams, for appellants; Meyer Abrams, of counsel. Ernest A. Eklund and Campbell, Clithero & Fischer, for appellee; Carlton L. Fischer, Frederick J. Bertram and John N. Thornburn, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Presiding Justice Fulton

text:
    Third District.
    M. N. Hollander and Company, appellant, v. Edward J. Hughes, appellee.
    Gen. No. 8,844.
    Opinion filed January 14, 1935.
    Rehearing denied April 2, 1935.
    Joseph B. Lawler and C. Ray Smith, for appellant. Otto Kerner, Attorney General, for appellee; P. C. Otwell, Assistant Attorney General, of counsel.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    Mollie A. Knochel, administratrix of the estate of William M. Knochel, deceased, appellee, v. City of Lincoln and Central Illinois Electric and Gas Company, appellants.
    Gen. No. 8,852.
    Opinion filed January 14, 1935.
    Rehearing denied April 2, 1935.
    Uri Kissinger and Covey & Woods, for appellants. Trapp & Trapp, for appellee. ■■ ■
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    James M. Parsell, plaintiff in error, v. Frank S. Parsell et al., defendants in error.
    Gen. No. 8,855.
    Opinion filed January 14, 1935.
    J. B. Harris, for plaintiff in error. O. H. Richards, for defendants in error.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    Earl Weakly, appellee, v. Ruth Firebaugh, administratrix with the will annexed of the estate of C. C. Firebaugh, deceased, appellant, and C. Walter Jones.
    Gen. No. 8,860.
    Opinion filed January 14, 1935.
    Rehearing denied April 2, 1935.
    Bryan H. Tivnen, for appellant; Thomas R. Figenbaum and Carus S. ■Ieenogle, of counsel. Ward & Pugh, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    Colchester Building, Loan and Investment Association, complainant, v. Alonzo O. Kline et al., defendants. Alonzo O. Kline and Lenore H. Kline, appellants, v. Colchester Building, Loan and Investment Association et al., appellees.
    Gen. No. 8,863.
    Opinion filed January 14, 1935.
    Gumbart & Grigsby, for appellants. Downing & Helfrich, for certain appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


author: Mr. Presiding Justice'Pultom

text:
    Village of Exeter, plaintiff in error, v. Frank Rockwood and Charles Rolf, defendants in error.
    Gen. No. 8,866.

      Opinion filed January 14, 1935.
    C. C. Carter and S. H. Cummins, for plaintiff in error. Punk & Mc-Keene, for defendants'in erf or.¡ r
   Mr. Presiding Justice'Pultom

delivered the; .opinion-of the court.


author: jyir. .Justice Allaben delivered

text:
    Lacy L. Brown, appellee, v. Lena E. Smith and Fred A. Smith, appellants.
    Gen. No. 8,851.
    Opinion filed January 14, 1935.
    Robert H.. Allison apd James, P,_ §t. Cerny, for appellants; William A.,Potts,.of .counsel,. C. I. Martin; for app'il'lee.
   jyir. .Justice Allaben delivered

the opiriion of the court. e


author: Mr. Justice Allaben

text:
    Gertrude B. Chism, as executrix of the estate of Walter P. Chism, deceased, appellant, v. Buske Lines, Inc., and William H. Meyer, appellees.
    Gen. No. 8,859.
    Opinion filed January 14, 1935.
    Costigan & Wollrab and Dryer & Brown, for appellant. Hill & Buffington and Gillespie, Burke & Gillespie, .for appellees.-
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    In re Estate of Mary C. Williams, deceased. Cecil Hirsch et al., appellants, v. Elinor M. French, administratrix, etc., et al., appellees.
    Gen. No. 8,862.
    Opinion filed January 14, 1935.
    Louis L. Williams and E. B. Hawk, for appellants. Morrissey &. Morrissey, for a-ppellees; John J, Morrissey, of'counsel.
   Mr. Justice Allaben

delivered the opinion of the court.


author: Sir. Justice Allaben

text:
    John Deere Plow Company of Moline, appellant, v. R. H. Coorts and Thomas A. Scully, appellees.
    Gen. No. 8,865.
    Opinion filed January 14, 1935.
    H. W, Pike and Barry & Barry, for appellant. Trapp & Trapp, for appellees.
   Sir. Justice Allaben

delivered the opinion of the court.


text:
    Porter Fox and A. H. Skelton, appellees, v. Achille F. Lete and Everett E. Smith, defendants. Achille F. Lete, appellant.
    Gen. No. 8,868.
    Opinion filed January 14, 1935.
    Colfax T. Martin and Arthur R. Hall, for appellant. Acton, Acton & Baldwin, for appellees; W. M. Acton, of counsel.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    W. S. Hardwick, appellant, v. Illinois National Bank of Springfield, appellee.
    Gen. No. 8,873.
    Opinion filed January 14, 1935.
    A. M. Fitzgerald and H. C. Moore, for appellant. Brown, Hay & Stephens, for appellee; R. Allan Stephens and Robert A. Stephens, Jr., of counsel.
   Mr. Justice Allaben

delivered the opinion of the court.


author: Mr. Justice Davis

text:
    A. F. Turnbeaugh, appellee, v. L. T. Graham et al., appellant.
    Gen. No. 8,841.
    Opinion filed January 14, 1935.
    Geo. C. Weaver, for appellant. William and Barry Mumford, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Barney Fromm, appellee, v. Guy Smock, appellant.
    Gen. No. 8,853.
    Opinion filed January 14, 1935.
    Rehearing denied April 2, 1935.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Milton Hay Brown and Stuart Brown, trading as Haylands Farms, Inc., appellees, v. Baltimore and Ohio Railroad Company, appellant.
    Gen. No. 8,861.

      Opinion filed January 14, 1935.
    Rehearing denied April 2, 1935.
    Graham & Graham, for appellant; William A. Eggers, of counsel. Brown, Hay & Stephens, for appellees; Albert O. Schlipf and Leigh M. Kagy, of counsel.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Illinois Midwest Joint Stock Land Bank of Edwardsville, appellant, v. Martha A. Pomroy et al., appellees.
    Gen. No. 8,864.
    Opinion filed January 14, 1935.
    John W. Williams and Burroughs, Simpson & Rood, for appellant. O’Harra, O’Harra & Roeth,and Henry S. Walker, for certain appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Isabel Newton Oliver, appellant, v. Estate of Levi Walker, deceased, appellee.
    Gen. No. 8,867.
    Opinion filed January 14, 1935.
    Rehearing denied April 2, 1935.
    Ferdinand Tunnell, for appellant. C. E. Springstun, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


author: Mr. Presiding Justice Edwards

text:
    Fourth District.
    Freda Herman, appellee, v. Chapman Hotel Corporation, appellant.
    Opinion filed January 4, 1935.
    Farmer, Klingel & Baits, for appellant. Philip G. Listeman and Beasley & Zulley, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.


author: Mr, Justice Murphy

text:
    H. J. H. Becker, appellant, v. City of West Frankfort, appellee.
    Opinion filed January 4, 1935.
    Denison & Spiller, for appellant. J. E. Carr and W. F. Dillon, for appellee.
   Mr, Justice Murphy

delivered the opinion of the court.


author: Mr. Justice Stone

text:
    Eddie Ragon, administrator of the estate of Annie Fox, deceased, appellee, v. The Cleveland, Cincinnati, Chicago and St. Louis Railway Company, appellant.
    Opinion filed January 4, 1935.
    Rehearing denied February 25, 1935.
    W. W. Wheatley, for appellant; H. N. Quigley and S. W. Baxter, of counsel. Charles H. Thompson and Lloyd H. Melton,-for appellee.
   Mr. Justice Stone

delivered the opinion of the court.'


text:
    John H. Wedig, administrator of the estate of Adelle Wedig, deceased, appellee, v. The Kroger Grocery and Baking Company, appellant.
    Opinion filed January 4, 1935.
    Rehearing denied February 25, 1935.
    C. W. Burton, for appellant. M. R. Sullivan, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    William Davis, appellee, v. Oscar J. Liese et al., appellants.
    Opinion filed January 4, 1935.
    Bernreuter, Petli & Thomas, for appellants. Frederick E. Merrills, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


author: Me. Presiding Justice 0 ’Connor

text:
    Mary Edith Kaufman, Appellee, v. Frank Forest Kaufman and Columbia Casualty Company, Appellants.
    Gen. No. 37,613.
    Opinion filed January 28, 1935.
    Brelin, Britton & Landon and Cassels, Potter & Bentley, all of Chicago, for appellants; Ralph F. Potter, John D. De Feo and E. Douglas Sohwantes, all of Chicago, of counsel.

      Aend, Gavin & Hanley, of Chicago, for appellee; Frederick Aend and C. Thomas Hanley, of counsel.
   Me. Presiding Justice 0 ’Connor

delivered the opinion of the court.

By this appeal Frank Forest Kaufman and Columbia Casualty Company seek to reverse a decree by which a petition filed by Kaufman was dismissed and a motion of the Columbia Casualty Company denied.

The petition and motion were heard upon an agreed statement of facts from which it appears that on June 17,1930, Mary Edith Kaufman filed her bill for divorce against Frank Forest Kaufman. Thereafter a writ of ne exeat was issued against the defendant. His bail was fixed at $2,000 and he was released on bond signed by himself and Columbia Casualty Company. Afterward, on April 14, 1931, a decree was entered awarding complainant a divorce and it was further decreed that the bond remain in full force and effect until the further order of the court. Complainant’s alimony was fixed at $100 a month and $150 was awarded her for her solicitor’s fees. It further appears that since the entry of the decree defendant continuously resided at Dana, Indiana, but had not obtained leave of court to depart from Illinois. .

June 3, 1933, complainant, without notice to the defendant or to his solicitors or to the Columbia Casualty Company, appeared before the chancellor and filed her verified petition in which she set up the proceedings theretofore had in the divorce suit, as hereinbefore stated. The petition further set up that the defendant had not paid any part of the alimony or solicitor’s fees; that under the terms of the decree there was then due and owing $2,450; that since the decree was entered defendant had boasted he would never • pay any alimony; that he would remain out of the jurisdiction of the court; that he removed to Dana, Indiana, where he now claims to reside, making periodical visits to Chicago, and that the only hope of serving him with process would be upon one of these visits; that if he were notified complainant was applying for a capias ad satisfaciendum he would evade service by remaining out of the jurisdiction of the court, and the prayer was that the court enter a decree in favor of complainant and against defendant for $2,450, and that a capias issue against the defendant directed to the sheriff of Cook county. Upon presentation of the petition the court heard the matter ex parte and entered a decree as prayed for, finding the facts as set forth in the petition. Three days afterward, June 6th, a capias was issued, and on September 6, 1933, following, was returned by the sheriff “not found on order of Atty.”

Six days thereafter, September 12, 1933, complainant commenced suit on the ne exeat bond against the Columbia Casualty Company in the municipal court of Chicago. Summons was issued returnable September 25th, the defendant was served, and he entered his appearance. That suit is still pending. October 5, 1933, defendant, Frank Forest Kaufman, filed his petition in which he set up the proceedings had in the divorce suit, averring that neither he, his solicitors, nor the Columbia Casualty Company had any notice of the presentation of the petition on June 3, 1933, by complainant or the decree entered thereon; that he first learned of the filing of the petition and the entry of the decree September 29, 1933, when he received a letter from his solicitors asking him to appear before the chancellor in Chicago on October 5,1933, when he moved the court to vacate and set aside the order of June 3, 1933; that he be permitted to surrender to the court; that the Casualty Company be exonerated from further liability, and that he be released on his own cognizance.

The petition further sets up that whenever notified he appeared in court; that since the entry of the divorce he has temporarily resided with his son at Dana, Indiana; that the sheriff of Cook county was unable to serve defendant because he was not notified by complainant or her solicitors, who at all tithes knew where he resided, and that he was unable to pay the alimony.

Upon a consideration of the foregoing agreed statement of facts the court found that the defendant’s petition was without equity; it was dismissed and the Casualty Company’s motion to surrender the defendant in exoneration of its liability on the bond was denied.

A number of points are discussed in the briefs but in the view we take of the case it will be necessary to discuss but one of them. The filing of the petition and the entry of the decree on June 3, 1933, were without notice to the defendant or his solicitors. This was in direct violation of Rules 20 and 21 of the circuit court of Cook county. Rule 20 provides that “No motion will be heard or order made in any cause without notice to the opposite party, when an appearance of such party has been entered, except where a party is in default, as shown by an order of record, or when a cause is reached on the call of the trial calendar.” Rule 21 provides that notice in writing must be given to the opposite party or his solicitor of record, stating the nature of the motion and time and place of hearing. For failure to give this notice the decree of June 3rd was void and all subsequent orders based on such decree are likewise of no force and effect. North Ave. Bldg. & Loan Ass’n v. Huber, 286 Ill. 375; Feldott v. Featherstone, 290 Ill. 485.

People v. Davis, 357 Ill. 396, cited by complainant (where it was held that rules of court unless contrary to the Constitution or Statutes must be obeyed but that such rules do not preclude reasonable action thereunder where no material harm is done to any litigant) is not in point. In the instant case there was material harm done both to the defendant and to the Casualty Company.

For the reasons stated the decree of the circuit court of Cook county is reversed and the matter remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

McSurely and Hatchett, JJ., concur.


author: Mr. Presiding Justice O’Connor

text:
    Winifred Baker, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 37,679.
    Opinion filed January 28, 1935.
    Rehearing denied February 11, 1935.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant.

      Danaher & Garriott and I. ft. Boss, all of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff, the beneficiary named in two certificates issued to her husband under a group life insurance policy, brought suit to recover the face value of the certificates, with interest thereon. At the close of the evidence there was a directed verdict in plaintiff’s favor for $8,420, being the amount of her claim; judgment was entered on the verdict, and defendant appeals.

The record discloses that on October 1, 1924, defendant insurance company issued its policy, in which it was named as the beneficiary, insuring the lives of certain of its employees. Afterward, on December 3, 1926, the defendant issued its certificate insuring “the life of — Gilbert W. Baker — an employee included in the said group of employees, for the amount of — Four Thousand — Dollars, payable to Winifred Baker, Wife of said employee . . . upon receipt of due proof of the death of said employee while the insurance on the life of said employee under said Policy is in force.” On June 1,1928, defendant issued another certificate for $4,000, the terms of which are identical with the terms of the first certificate. These certificates were issued pursuant to written application made by the insured, Gilbert W. Baker, dated December 3, 1926, and June 1, 1928, respectively. In these applications Baker states that he is an agent of the defendant in the Chicago district and applies to defendant for life insurance in accordance with the terms of the Prudential group insurance plan, as amended. In the first application he authorizes the Insurance company to deduct from his salary $2.40 a month “in payment of $4,000 of insurance, ’ ’ and in the second application he authorizes the company to deduct from his salary $5.20 a month in payment of $8,000 insurance; and it is stated this authorization supersedes the previous authorization made by him. The group insurance policy issued by defendant insured certain employees of defendant. The policy named the Prudential Insurance Company of America, which was designated in the policy as the Employer.

The policy contained the following provisions: “The Insured hereunder are the several persons named in the Schedule of Employees forming part of the Application above referred to, said persons being all. the employees of — The Prudential Insurance Company of America — herein designated. as the Employer, that have agreed to be included in the group or class defined in the Application. . . . The Premium hereunder, payable to the Employer, shall be the sum of the several premiums for the individual amounts insured, computed upon the basis of the table of term premiums on the second page hereof for the respective ages, nearest birthday, of the Insured. . . .

“If any premium be not paid when due, this Policy shall be void and all premiums forfeited to the Company except as herein provided.

“It is understood that the Employer and the Employees shall contribute jointly towards the payment of the premiums, and that the contribution of the Employer shall not be less than ... 1% .. . per cent, of the total premium and that the contribution of an individual Employee shall not be more than 60 cents per month for each $1,000 of insurance.

“Grace in Payment of Premiums. — In the payment of any premium under this Policy except the first, a grace of thirty-one days without interest will be allowed, during which time the Policy will remain in force.

“Termination of Individual Insurance. — Irrespective of any other mode of termination the insurance upon the life of any person insured hereunder shall cease and determine upon termination of the employment of such person with the Employer, upon receipt by the Company of written notification to that effect from the Employer, except that at the option of the Employer employees temporarily laid off, on leave of absence or temporarily disabled shall during such periods be considered as being in the employ of the Employer. Such written notification by the Employer of any termination of insurance shall be satisfactory evidence that such insurance has terminated and shall release the Company from all claims on account of the insurance so terminated, except as to the right of conversion as herein provided. . . .

“Incontestability. — This Policy, except for non-payment of premiums, shall be incontestable one year from its date of issue, but if the age of any person insured hereunder shall have been mis-stated the amount of the premium actually paid for the insurance on his (or her) life shall be adjusted accordingly. . . .

“The Company will issue to the Employer for delivery to each person insured under this Policy an individual certificate setting, forth the insurance protection to which such person is entitled hereunder and to whom such insurance is payable, together with a provision that when the insurance on the life of any person insured hereunder shall terminate by reason of termination of employment, as heréin provided, the Company will upon application by such person within thirty-one days after the date of such termination, without evidence of insurability, issue a policy upon the life of such person . . . for the same amount as such person was insured for under this Policy at the time of said termination of employment, subject to the payment of the premium for such policy at the then current rates of the Company according to the occupation of and at the age attained by such person at that time. . . .”

The two certificates issued to Gilbert W. Baker, pursuant to his application, provide that “The Prudential Insurance Company of America in accordance with and subject to the terms and conditions of its Group Policy No. — 1690, (policy in question) insuring the lives of a group of the employees of The Prudential Insurance Company of America Newark, New Jersey, has insured the life of — Gilbert W. Baker — an employee included in the said group of employees, for the amount of — Four Thousand — Dollars, payable to the Beneficiary designated by said employee upon receipt of due proof of the death of said employee while the insurance on the life of said employee under said Policy is in force. . . .

“Conversion of Insurance. — When the insurance on the life of said employee shall terminate by reason of termination of employment for any reason whatsoever, the Company will issue, upon application by said employee within thirty-one days after the date of such termination, without evidence of insurability, a policy on his or her life.”

The evidence tends to show that on January 7,1932, Gilbert W. Baker, the insured, was discharged by his employer for good and sufficient reasons, and defendant was notified of this fact January 22,1932; that the premium on the group policy for January was paid; that $5.20 had been deducted from Baker’s salary in part payment of the January premium, in accordance with the authority given the employer by Baker; that Baker died February 7, 1932, and that he had not worked for the assured since the time of his discharge.

Plaintiff contends that the certificate issued to Baker and the group policy must be construed together. With this contention the defendant agrees. . We think this contention is sound, and in arriving at the rights of the parties the certificates and the policies must be considered together. Adopting this view of the case, plaintiff contends that the “Incontestable clause” of the policy is in full force and effect and that defendant can make no defense except nonpayment of the premium, and that since the January premium was paid and since the policy allowed a grace of 31 days in the payment of the premium, it was in full force and effect on February 7th, when Baker died. This view was adopted by the trial court and evidence offered by defendant tending to show the policy was not in effect because Baker was discharged on January 7th was excluded. This ruling was erroneous.

From the material provisions of the policy and the certificates from which we have above quoted, it is clear that the policy covered only the employees of the insured. It did not cover an employee after he had been discharged. After his discharge he had the right to take out a policy for himself, if he so desired, in accordance with the provision for conversion, from which we have above quoted. The incontestable provision did not prevent the defendant insurance company from showing that the policy was no longer in effect because Baker had been discharged a month before his death. That provision of the policy would prevent the defendant in the instant case from contending that the policy was obtained by fraud or misrepresentation or upon any other ground, going to the original validity of the policy. Clement v. New York Life Ins. Co., 101 Tenn. 22; Home Life Ins. Co. v. Masterson, 180 Ark. 170; Flanigan v. Federal Life Ins. Co., 231 Ill. 399; Weil v. Federal Life Ins. Co., 264 Ill. 425; Matter of Metropolitan Life Ins. Co. v. Conway, 252 N. Y. 449; Equitable Life Assur. Soc. v. Florence, 47 Ga. App. 711; Massachusetts Benefit Life Ass’n v. Robinson, 104 Ga. 256; Magee v. Equitable Life Assur. Soc., 62 N. D. 614; Davis v. Metropolitan Life Ins. Co., 161 Tenn. 655.

In Clement v. New York Life Ins. Co., 101 Tenn. 22, which was a suit on an insurance policy containing a provision that after the policy had been in force one year the company would not contest its payment provided premiums had been paid, it was held that after the policy had been in effect for more than one year payment of it could not be contested on the ground that it was obtained by fraud or upon any other ground going to the original validity of the policy.

In Flanigan v. Federal Life Ins. Co., 231 Ill. 399, it was held that a provision in a life insurance policy, making it incontestable after one year from its issue if the premiums were paid, was a bar to the defense of fraudulent representation made by the assured in his application even though the insurer claims to have had no knowledge of such fraud until after the death of the insured, where the death took place more than three years after the policy was issued.

In Weil v. Federal Life Ins. Co., 264 Ill. 425, it was held that a clause in the insurance policy that it should be incontestable after one year from the date of its issue provided the premiums were paid, was a valid provision and after one year the defense that the policy was obtained by fraud could not be made.

In Matter of Metropolitan Life Ins. Co. v. Conway, 252 N. Y. 449, it was held that a statute of that State which provided that every insurance policy should be incontestable after it had been in force during the lifetime of the insured for a period of two years, except for nonpayment of premiums, only meant that within the limits of the coverage the policy should stand unaffected by any defense that it was invalid in its inception. The court there, speaking by Chief Judge Cardozo, said (p. 452): “The provision that a policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years is not a mandate as to coverage, a definition of the hazards to be borne by the insurer. It means only this, that within the limits of the coverage the policy shall stand, unaffected by any defense that it was invalid by reason of a condition broken. ’ ’

Equitable Life Assur. Soc. v. Florence, 47 Ga. App. 711, was a suit on a certificate issued under a group policy. The question arose as to whether at the time the certificate was issued the relationship of employer and employee existed. It was contended this could not be shown because of an incontestable clause. In discussing this question the court there said (p. 319): “It cannot be doubted that the relation must exist at the time the loss occurs.”

And in discussing this question the Supreme Court of Georgia, in Massachusetts Benefit Life Ass’n v. Robinson, 104 Ga. 256, said (pp. 270, 271): “The contract entered into between the insurer and the insured in the ‘incontestable clause’ is, in effect, that the insurer says on his part, pay me your premiums according to the terms of the contract, and I will pay at your death to the beneficiaries named in the policy the amount thereof, without regard to the statements which you made in your application, whether they be true, or whether they be false.”

Under the foregoing authorities, and in view of the express provisions of the policy and the certificates in the instant case, we are clearly of opinion that an employee of the insured, such as Baker was, is not covered by the policy after he has been discharged by his employer. And the provision in the policy allowing a grace of 31 days for the payment of the premium is in no way applicable to the facts in the case before us. Had Baker lived he could not have paid the premium to the defendant insurance company; that was payable by his employer although part of the money would come from him. The employer could not pay the premium for February because it had theretofore discharged Baker.

The judgment of the municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

McSurely and Hatchett, JJ., concur.


author: Mr. Justice MoSurelt

text:
    The Travelers Insurance Company, Appellant, v. Josef Wagner, Trading as Josef Wagner Dairy Company, Appellee.
    Gen. No. 37,719.

      Opinion filed January 28, 1935.
    Rehearing denied February 11, 1935.
    Musgrave, Oppenheim, Price & Ewins, of Chicagu, for appellant.
    Grablowski & Eanak, of Chicago, for appellee.
   Mr. Justice MoSurelt

delivered the opinion of the court.

February 16, 1934, defendant; failing to appear, plaintiff had judgment against him for $322.56, and execution was issued; April 6th defendant filed his petition asking that the judgment be vacated; the court vacated the judgment and the cause was set for hearing, and subsequently on May 1st was dismissed for want of prosecution. Plaintiff appeals, asking that the order of April 6th be ordered vacated and set aside.

It is well established that where final judgment has been entered and the term has expired the court has no longer jurisdiction to vacate the judgment except

where the petition to vacate asserts some error of fact unknown to the court at the time judgment was rendered as well as one which would have precluded the rendition of the judgment, such as fraud, duress or excusable mistake without negligence on the part of the defendant. Jacobson v. Ashkinaze, 337 Ill. 141; Chapman v. North American Life Ins. Co., 292 Ill. 179; Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516.

January 15, 1934, defendant was served with summons and notified to file his answer or appearance on or before the first Monday in February, 1934, “provided this writ shall be served upon you not less than twenty days prior to said date.” The writ also noted that if it should be served less than 20 days before the first Monday of February, defendant should answer or appear on or before the third Monday of February, 1934. The form was pursuant to Supreme Court Rule 4. Sunday, February 4th, was the 20th day after the service of summons; defendant not appearing, plaintiff, on February 16th, took judgment by default.

February 19th, after the entry of the judgment, defendant filed his appearance, jury demand, plea and affidavit of merits.

The petition of defendant, filed April 6th, avers that on February 19th he filed Ms appearance and affidavit of merits, not knowing at the time of the entry of the default judgment; that from January 15th, the date of the service of summons, to February 5th, which was the first Monday of February, “constituted, in Ms opinion, less than the twenty days required by the practice in the court” for the reason that the twentieth day fell on Sunday, February 4th. The petition further averred that defendant was served with summons, “on February 16, 1934, instead of February 15, 1934, and he further believes that the Sheriff’s return- of service may be incorrect.”

The petition further stated that defendant has a meritorious defense which will appear in the plea and affidavit of merits then on file.

The facts presented in the petition were not sufficient to authorize the court to vacate the judgment. The fact that the defendant or his attorney may have been of the opinion that from January 15th to February 5th was less than 20 days is of no importance and would not change the fact that it was not less than 20 days. The averment is merely an admission of negligence. As stated in Imbrie v. Bear, 230 Ill. App. 155, “It is well settled that relief will be barred where the applicant has been guilty of negligence, and that an agent’s or attorney’s neglect or want of diligence is binding on the principal. (Simon v. Hengels, 107 Ill. App. 174; Foster v. Weber, 110 Ill. App. 5; Eggleston v. Royal Trust Co., 205 Ill. 170; Staunton Coal Co. v. Menk, 197 Ill. 369.)”

The averment that defendant was served with summons on February 16, 1934, is contrary to the record, which shows that summons was served January 15, 1934. Parties are bound by the sheriff’s return after the term is ended in which judgment is entered unless a false return has been procured by the fraud of the plaintiff. Chapman v. North American Life Ins. Co., 292 Ill. 179.

The only reply made by counsel for defendant in his brief is that plaintiff did not save any objections or exceptions to the action of the trial court and that there are no assignments of error attached to the transcript of record. It is sufficient to say that the motion or petition to vacate the judgment stands as a declaration in a new suit. Central Bond & Mtg. Co. v. Roeser, 323 Ill. 90. Such a motion is a part of the common law record without a bill of exceptions. Welley v. Klein, 257 Ill. App. 171.

Moreover, an appeal is now a continuation of the proceeding’s in the trial court and the whole record is in the reviewing court. Sec. 74 of the Practice Act, Cahill’s St. ch. 110, If 202, in effect January 1, 1934, provides that—

“(1) Every order, determination, decision, judgment or decree, rendered in any civil proceeding, if reviewable by the Supreme or Appellate Court of this State by writ of error, appeal or otherwise, shall hereafter be subject to review by notice of appeal, and such review shall be designated an appeal and shall constitute a continuation of .the proceeding in the court below. Such appeal shall be deemed to present to the court all issues which heretofore have been presented by appeal and writ of error.

“(2) All distinctions between the common law record, the bill of exceptions and the certificate of evidence, for the purpose of determining what is properly before the reviewing court, are hereby abolished.” No formal exceptions need be taken to any ruling or action of the court in order to make such ruling or action a ground for review. Sec. 80, Practice Act, Cahill’s St. ch. 110, If 207.

Formal assignments of error were only required by rule of court, not by statute. Ditch v. Sennott, 116 Ill. 288. The present rules of the Supreme Court, effective January 1, 1934, contain no provision for assignments of error, but Rule 39, entitled “Briefs,” provides that the brief of appellant shall contain “the errors relied upon for a reversal.” The brief of plaintiff before us meets this requirement.

Plaintiff by his notice of appeal prayed that the order of April 6, 1934, be vacated and set aside and expunged from the record. Such an order is a final and appealable order. Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516.

The order of April 6,1934, is reversed and the cause is remanded with directions to vacate and expunge the order entered on that date, and also the order entered May 1,1934, dismissing the cause for want of prosecution.

jReversed and remanded with directions.

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


author: Mr. Justice McSukely

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, v. Lincoln Trust and Savings Bank. Patrick DeMichele, Intervening Petitioner, Appellee, v. William L. O’Connell, as Receiver of Lincoln Trust and Savings Bank, Appellant.
    Gen. No. 37,791.
    Opinion filed January 28, 1935.
    Igoe & Flaherty, of Chicago, for appellant; George H. Mason and Bernard M. Fitzgerald, both of Chicago, of counsel.
    N. Rothblum, of Chicago, for appellee.
   Mr. Justice McSukely

delivered the opinion of the court.

Patrick DeMichele filed his intervening petition in the above entitled cause seeking to have his claim on cheeks for $10,000 and $1,870 allowed as a preferred claim; the master in chancery reported against him but the chancellor sustained exceptions and entered a decree allowing a preferred claim for the amount of the checks. The receiver appeals.

The intervening petition alleges that on April 14, 1931, the Sunnyside Oil Company, a depositor in the Lincoln Trust and Savings Bank, drew its check to its own order for $10,000 and indorsed and delivered it to Henry Lueders, who ,caused the check to be certified by the bank; Lueders then indorsed and delivered the check to the intervening petitioner who is now the bona fide owner and holder of the check. The petition alleges that immediately on the certification the bank appropriated $10,000 of the moneys on deposit with it to the credit of the Sunnyside Oil Company and set aside this amount for the payment of the check, and that this amount was held in trust by the bank for the benefit of the holder of the check.

The petitioner further alleges that on April 13,1931, he was a depositor in said bank and on that date issued his check to the DeSoto Motor Corporation for $1,870, and on the same day caused it to be certified by the bank; that it was delivered to the payee on April 14th and indorsed by it and deposited to its credit at Detroit, Michigan; that neither of said checks was ever paid, as the bank closed and ceased doing business on April 15, 1931; that by reason of this petitioner was obliged to pay the amount of the check to the DeSoto Motor Corporation and petitioner is now the owner and holder of this check; that upon the certification of the last mentioned check the amount of $1,870 was appropriated and set aside out of the moneys on deposit to the credit of petitioner, and that said sum was thereupon held in trust by the bank for the benefit of the holder.

The master found the facts as alleged in the petition, and the certificate of evidence shows that on the day the check for $10,000 was drawn the bank made out a debit slip against the Sunnyside Oil Company for $10,000, which was marked paid on that date and delivered to the depositor, and that a similar debit slip was made out April 13th for the $1,870 against the petitioner’s account with the bank, which was marked paid on that date. This slip also was delivered to the depositor.

It should be noted that these claims arose before the Act of 1931 went into effect on July 8,1931, wherein it is provided that under the circumstances above narrated the holder of a certified check is entitled to a preferred claim. Ch. 16a, If 37, Illinois Statutes (Cahill) 1931.

The appealing receiver argues that the amounts of checks certified before this statute went into effect are not entitled to a preference, while the intervening petitioner argues to the contrary. A large number of cases can be cited holding in accordance with each view.

The statute above referred to is almost a copy of a similar statute enacted in the State of New York. (Neg. Inst. Law of N. Y., subdivision 2, sec. 350-1.) In re Jayne v. Mason, 251 N. Y. S. 768, indicates that the purpose of the act was to establish the rule of law which had been the subject of conflict in judicial decisions. This opinion cites a considerable number of cases in which preferences have been allowed in the absencé of statute, and also a number of cases holding to the contrary. Some .of these cases are cited in the briefs before us but we do not think it necessary to comment upon them for the reason that this court is already committed to the opinion that the holder of a certified check under similar circumstances as above is not entitled to a preferred claim. People ex rel. Nelson v. Builders & Merchants Bank, 264 Ill. App. 388.

In that case the intervening petitioner, Osterlind, withdrew something over $4,000 from his savings account and requested a cashier’s check for this amount, which was given to him; the savings account was charged with the amount of this withdrawal and the cashier’s check-stub ledger showed the issuance of the check for this amount; two days thereafter the bank failed to open; the cashier’s check given to the petitioner was deposited in another bank and was not paid. The petitioner’s theory in that case was that by the withdrawal of the money from his account and the purchase of a cashier’s check a trust was created in favor of the holder of the check. The receiver argued that the cashier’s check was merely an evidence of the type of the deposit, being no different from money in the Savings account from which the amount had just been deducted. We rested our opinion upon Clark v. Chicago Title & Trust Co., 85 Ill. App. 293, affirmed in 186 Ill. 440. That case involved a cashier’s check. The Supreme Court said that this was, in legal effect, the same as a certified check. The opinion also said, quoting from the opinion of the Appellate Court: “The drawing of the cashier’s check, even if it changed the form of indebtedness, did not change the fact. The Globe Savings Bank was still indebted to the appellant for the $3,000represented by its cashier’s check. There was no change in the nature of the debt. The only change was in the evidence of it.”

In our opinion in the Osterlind case we held that the transaction did not create a trust; that there was merely a change in form of the evidence of indebtedness — that is, a change from money in the depositor’s account to a cashier’s check. The same is true in the instant case. There was merely a change of money from the depositor’s account to a certified check of the bank.

Petition for certiorari in the Osterlind case was denied by the Supreme Court, 264 Ill. App. xiv. We must assume, then, that the Supreme Court was of the opinion we had correctly held that the intervening petitioner was entitled to his claim only as a general creditor. Our opinion in the Osterlind case is applicable to the facts in the instant case.

For the reasons stated we hold that the decree entered by the chancellor is erroneous. It is therefore reversed and the cause is remanded with instructions to overrule the exceptions to the master’s report and to enter a decree in accordance with its recommendation.

Reversed and remanded with directions.

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


author: Mr. Justice McSurely

text:
    The People of the State of Illinois ex rel. Victor E. Krajci, Appellant, v. Edward J. Kelly et al., Appellees.
    Gen. No. 37,921.

      Opinion filed January 28, 1935.
    Rehearing denied and supplemental opinion filed February 11, 1935.

      Albert Sabath, of Chicago, for appellant; Charles Hudson, of Chicago, of counsel.
    William H. Sexton, Corporation Counsel, Quin O ’Brien and Carl Hjalmar Lundquist, Assistant Corporation Counsel, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Relator sought by mandamus to compel the City of Chicago to pay a judgment rendered against it; defendants filed a general demurrer which was sustained and the amended petition dismissed.

Relator appealed directly to the Supreme Court on the ground that the validity and constitutionality of a municipal ordinance were involved. The Supreme Court, however, declined to entertain the appeal and transferred the cause to this court.

The petition alleges that on December 23, 1931, a judgment was entered in the superior court of Cook county for $10,000 in favor of James O’Brien, a minor, and against the City of Chicago; that no appeal was taken and said judgment is final; that the judgment was assigned December 8, 1933, to the relator who is now the bona fide owner thereof; that demands were made upon defendants and other city officials for payment of the judgment and that they perform the duties and acts required of them to pay the judgment.

Relator further avers “that an assessment was made by the City for the payment of said judgment which was sufficient to pay said judgment; that said judgment was included in the assessment; that a levy was made on said assessment; that notwithstanding said assessment and levy the City has not paid the judgment.”

It is axiomatic that the writ of mandamus is an extraordinary remedy, and one petitioning for such a writ must show a clear and undoubted right to the relief demanded. Hooper v. Snow, 326 Ill. 142; People v. Nelson, 346 Ill. 247.

Respondents say that an ordinance of the City of Chicago touching the order in which judgments shall be paid defeats relator’s petition. We hold that the point is well taken. This court must take judicial notice of the .general ordinances of the City of Chicago. Ch. 51, H 57 and 58, Illinois Statutes (Cahill). Statutes and ordinances of which the court would take judicial notice need not be stated in the pleading. Chitty on Pleading, 9th Amer. Ed., vol. 1, p. 215; 12 Ency. PI. & Prac., p. 1; French v. Senate of California, 146 Cal. 604; Journal Printing Co. v. City of Racine, 210 Wis. 222; Knisely v. Community Traction Co., 125 Ohio St. 131; O’Moore v. Driscoll, 135 Cal. App. 770, 28 P. (2d) 438; Capital State Sav. Bank v. Larson, 255 Ill. App. 479.

The ordinance, of which we will take judicial notice, is found in section 88, page 28, of the Chicago Code of 1931. In brief it provides that judgments which in the opinion of the corporation counsel should not be appealed should be certified to the city comptroller, and that whenever the annual appropriation bill shall provide for the payment of such judgments they “shall be paid in the order of the date of entry upon the records of the court.”

Respondents say that as there is no averment in the petition touching the order of its entry with reference to other judgments, relator is not entitled to the writ of mandamus. The ordinance permits the city comptroller to pay judgments of $1,000 or less out of their regular order. As the instant judgment is for $10,000 the comptroller is given no discretion as to when it must be paid but it must be paid in the order of the date of entry upon the records of the court.

We do not construe this ordinance to mean, as relator says, that a judgment shall not be paid and that the ordinance nullifies the judgment. It merely means that the judgment shall be paid in the order of its entry. This is reasonable and in line with the statute as amended May 4, 1934, which provides that “Judgments against such city shall be paid out of said fund in the order in which same were obtained.” Special Session Laws 1933-1934, p. 122.

It follows that the relator is not entitled to coerce by mandamus the payment of his judgment unless it is first in order of the judgments against the city which are unpaid. Although the. point just considered is sufficient to justify the order of the trial court denying relator the writ of mandamus, we notice certain other matters presented in the briefs.

It is said that the petition is defective in that it fails to allege that there is money available in any particular fund or tax levied or collected to discharge the city’s liability under the judgment. A similar point was made in City of Cairo v. Everett, 107 Ill. 75, a mandamus proceeding to compel the City of Cairo to levy a tax to satisfy a judgment against it. The court in affirming the award of the writ said: “The judgment creditor would not be supposed to know whether there were, or not, funds in the city treasury for the payment of his judgment. We think it sufficient for him to demand the payment of his judgment, — that this may be held as including a demand to do any particular thing which was necessary to be done to enable the city council to make payment of the judgment.” A similar question was raised in City of Cairo v. Campbell, 116 Ill. 305, a mandamus proceeding to collect a judgment. It was held that as the judgment was unreversed and unpaid the petitioner was not required to assume that the city council would not perform its duty and include the amount in the annual appropriation bill. In Lewis v. Drainage Com’rs, 111 Ill. App. 222, the trial court sustained a demurrer on the ground that the petition failed to allege that the defendants had the necessary funds to pay. The Appellate Court opinion says it was not the duty of the relator first to ascertain if there were sufficient funds in the treasury to pay his claim; that if it were his duty he would be compelled to demand a tax levy to raise the amount and then make another demand after it was raised. 1 ‘ Such requirements would necessitate •a multiplicity of mandamus proceedings to accomplish the single object of payment. Such a course, if necessary, would result in a refinement of the use of the writ which would rob it of all practical use to compel parties to perform their manifest duties.”

Cases cited by defendants are not applicable. Siegel v. City of Belleville, 349 Ill. 240, was a bill to restrain the purchase of a fire engine which had not been properly authorized. Travers v. County of Richland, 265 Ill. App. 443, was an assumpsit suit to recover the wages of an assistant janitor where there was no authority to hire him. Other cited cases can be distinguished from the instant case.

Moreover, the petition avers that a sufficient assessment was made to pay the judgment; that the judgment was included in the assessment and that a levy was made on the assessment. The word “levy” when used with relation to a tax means to raise or collect the tax. Black’s Law Dictionary,- Bouvier’s Law Dictionary, Rawle’s 3rd Rev’n.

A further consideration is that any inability on the part of the defendants to pay the judgment is not raised by demurrer but must be presented by answer. In DeWolf v. Bowley, 355 Ill. 530, cited by defendants, it was held that want of funds is a complete answer to a petition for mandamus. In People ex rel. Pollastrini v, Whealan, 269 Ill. App. 281, a mandamus case, we held that the burden was not on the petitioner to show that there were sufficient funds in the treasury to pay the amount due him. The decision in this respect was affirmed by the Supreme Court in 353 Ill. 500. In the recent case of People v. Rice, 356 Ill. 373, it was held that if there are any facts which would excuse payment they must be “presented by answer and supported by proof. The demurrer raised no such question. Board of Supervisors v. People, 226 Ill. 576.” Other citations to the same effect might be made.

We agree with counsel for defendants that courts • will take judicial notice of abnormal emergencies created by the widespread financial and economic collapse. We have already done so. Straus v. Chicago Title & Trust Co., 273 Ill. App. 63. See also Reif v. Barrett, 355 Ill. 104; Kuhn v. Cermac Realty Co., 265 N. Y. S. 861. And we are also in accord with the proposition that the writ of mandamus will not be granted where it will work injustice or introduce into municipal administration great confusion or disorder. Michigan-Grand Bldg. Corp. v. Barrett, 350 Ill. 291, and cases cited in that opinion. In the cases cited by defendants the prevailing economic conditions were presented by answer, not by a demurrer. This point also comes within the rang-e of the decision in People v. Rice, 356 Ill. 373, where it was held that facts which would embarrass or prevent essential functions of government if the mandamus writ were awarded'must be presented by answer.

Defendants’ brief asserts that 'the instant judgment is only one out of thousands, aggregating more than $6,592,000; that this is the first case of the kind brought to coerce city officials to pay a judgment during the economic depression; that practically all the other judgments are older than the one at bar and that interest has not been paid on them for over two years because of the shrinkage of tax collections and the inability of the city to raise money due to the economic depression. All of these matters are outside the record and manifestly are not raised by a general demurrer, although they may have a proper place in an answer.

For the reasons that the petition fails to allege that relator’s judgment is first in order of entry of judgments unpaid, and the municipal ordinance provides that such judgments must be paid in the order of their entry, we hold that the relator failed to state a case which entitled him to the writ of mandamus, and that the judgment of the trial court is proper, and it is affirmed.

Affirmed.

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

Supplemental Opinion.

Plaintiff has filed a petition for rehearing, saying that the opinion did not, in terms, pass upon the question of the validity of the municipal ordinance requiring judgments against the city to be paid in the order of the date of entry, sec. 88, Chicago Code of 1931. We did not discuss this point at length, as it was understood, perhaps mistakenly, that both counsel had agreed upon the oral argument that this court need not discuss this question.

However, it is a clear inference, from what is said in our opinion, that we held the ordinance valid. The argument of plaintiff assumes that the judgment “has been nullified” by the ordinance, and cites People v. Clark, 300 Ill. 583, where it was held that the legislature could not by a subsequent act nullify a previous final judgment of the court.

The ordinance in question does not affect the judgment in any way. It only controls the order in which it shall be paid. It simply governs the administration of the business in the office of the city comptroller. It has to do with his clerical duties. The city council has inherent power to regulate and control the merely administrative duties of the city officers, and that is all the ordinance does.

As we said in the opinion, it is reasonable to direct that judgments should be paid in the order of their entry. Without such an ordinance the payments of such judgments might go by favor or chance, with resulting injustice and confusion. The statute [ch. 24, Ti 1032 (1) Cahill] as amended May 4, 1934, has a similar provision. We hold that the ordinance is valid.


author: Mr. Presiding Justice Gridley

text:
    Ethel M. Sebolt, Defendant in Error, v. Nadesda Verderevski et al., Defendants. Konstantas Stulas and Veronika Stulas, Plaintiffs in Error.
    Gen. No. 36,980.
    Opinion filed February 1, 1935.
    James C. Baker, of Chicago, for certain plaintiffs in error.

      No appearance for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On September 19, 1930, complainant filed a bill to foreclose a trust deed, executed by Robert R. Simon, on certain improved premises in Chicago, to secure a principal note for $9,000, and certain coupon notes, dated March 13, 1926, and which were guaranteed on the back by Peter Conrad before delivery. Conrad alone filed an answer to the bill. Other defendants, including the two Stulases, were duly served but failed to appear, and on April 17, 1931, all were defaulted and a decree pro confesso was entered as to them. Thereafter the cause was referred to a master and certain evidence on complainant’s behalf was taken before him. Thereafter he filed his report, finding that the total amount due to complainant including solicitor’s and stenographer’s fees was $10,889.67, and recommending that the trust deed be foreclosed and the premises be sold, etc. On June 2, 1931, following the master’s report, the court entered a decree of foreclosure and sale. Among the findings in the decree are the following in substance:

That there is of record in the recorder’s office of Cook county a deed conveying the premises from Anthony Lunecki and wife to the defendants, Konstantas and Veronika Stulas, dated January 7, 1930, and recorded on January 20, 1930, as document No. 10577064; that “said deed was expressly made subject to incumbrances of record and provided that the purchasers (the Stulases), as a part of the consideration for the convey am,ce, assume and agree to pay said incumbrances of record”; that on the dates of the execution and recordation of said deed the trust deed herein sought to be foreclosed “was one of the incumbrances of record”; that “by reason of the agreement of said defendants (the Stulases) they are personally liable for the payment of the amounts hereinabove found to be due and owing to the complainant”; that Robert R. Simon and Peter Conrad are also personally liable to complainant for the payment of said amounts; that in the event a sale of the premises is had and the amount received therefrom is insufficient to satisfy in full the amounts found to be due to complainant, then “complainant is entitled to have a deficiency decree for any deficiency against said defendants, Konstantas and Veronika Stulas, Robert R. Simon and Peter Conrad.”

Following’ the foreclosure decree the premises were sold, at the master’s sale on July 31,1931, to the complainant for $7,500, and on August 12, 1931, the master ’s report of sale and distribution was filed, reporting a deficiency due to complainant of $3,841.67. On the same day (August 12, 1931) the court entered the deficiency decree which the Stulases by the present writ of error (sued out on August 9, 1933) seek to reverse. In that decree the court found inter alia that the proceeds realized from the sale were not sufficient to pay the amounts due to complainant; that the deficiency amounts to $3-,841.67; that “the defendants, Konstantas and Veronika Stulas, Robert R. Simon and Peter Conrad, are each and all personally liable to complainant for such deficiency”; and that complainant has a lien upon the rents, issues and profits until such deficiency shall have been paid. And the court . ordered and decreed in part :

“That complainant have and recover of and from the defendants (the Stulases, Simon and Conrad) the amount of said deficiency, viz., $3,841.67, with interest thereon at 5% per annum from July 31, 1931, the date of the master’s sale; and that execution issue therefor in favor of complainant and against said defendants.”

The allegations of complainant’s bill, material to the present controversy, are the following in substance :

That defendant Verderevski is now the owner of the premises and of the equity of redemption; that the trust deed sought to be foreclosed is a valid first lien on the premises; that there are other subordinate incumbrances thereon, viz., (a) mortgage by said Lunecki and wife to John Rekosk, as trustee, dated August 15, 1929 and (b) trust deed by said Lunecki and wife to Peter Conrad, trustee, dated August 15, 1929.

“12th. That there is of record in the recorder’s office of Cook county a deed conveying the premises from Anthony Lunecki and wife to the defendants, Konstantas and Veronika Stulas, dated January 7, 1930, and recorded on January 20, 1930, as document No. 10577064; that said deed was expressly made subject to incumbrances of record, and provided that the purchasers (the Stulases), as a part of the consideration for the conveyance, assumed and agreed to pay said incumbrances of record; that one of the incumbrances then of record was the trust deed herein sought to be foreclosed; that by reason of the agreement of said defendants (the Stulases) they are personally liable for the payment of the amounts secured to be paid by the trust deed herein sought to be foreclosed. ’ ’

In Gault v. Hoagland, 25 Ill. 266, 268, it is said (italics ours):

“A decree pro confesso, as we understand it, concludes the party only as to the averments in the bill. He cannot, on error, allege the want of testimony, or the insufficiency or amount of the evidence the court may have heard. The rule is well settled that a defendant in chancery cannot, on error, object to the insufficiency of complainant’s proof when the bill is taken for confessed. . . . He may, however, on error, contest the sufficiency of the hill itself, and insist that the averments contained in it do not justify the decree.”

These holdings have been followed in subsequent cases decided by our Supreme Court. (See Jacksonville, N. & S. R. Co. v. Town of Virden, 104 Ill. 339, 342, 343; Glos v. Swigart, 156 Ill. 229, 232; Monarch Brewing Co. v. Wolford, 179 Ill. 252, 255.) In the last cited case it is said: 1 ‘ The decree must not be broader than the averments of the bill, and those averments must be such as to justify the relief prayed.” In the Toion of Virden case it is said:. “The finding’s of the court are not material, as the bill was taken pro confesso. On such a decree all of the material allegations of the bill are taken as true, and such a decree as they warrant will be sustained.”

In urging a reversal of that portion of the deficiency decree now in question (wherein a judgment was rendered against the Stulases, and two others, for $3,841.67, for the amount of the deficiency arising after the sale of the premises), the main contention of counsel for the Stulases is in substance that the allegations of complainant’s bill do not justify that portion of the decree as to the Stulases. Counsel argues that the only pertinent allegations of fact contained in the bill are in substance (a) that there is of record a deed from the Lnneckis conveying the premises to the Stu-lases, (b) that said deed was made subject to incumbrances and provided that the purchasers, “as a part of the consideration for the conveyance, assumed and agreed to pay said incumbrances,” and (c) that the trust (leed being foreclosed was one of the incumbrances,; that the further allegation in the bill (that by reason of said agreement the Stulases are “personally liable” for the payment, of the amounts secured to be paid by the trust deed being foreclosed) is a mere conclusion of law and not justified by the other allegations ; that there is not contained in the bill any allegations that the Stulases had any knowledge that the Lunecki deed to them contained the provisions mentioned, or that the Stulases by acts on their part assented to becoming personally liable for any incumbrances on the premises, or that they accepted the Lunecki deed with such understanding; and that by the Stulases default, and the entry of the foreclosure decree taken pro confesso as to them, they only admitted such facts as were properly pleaded in the bill.

Complainant’s counsel in their brief and argument here filed state that “the only question presented to this court is whether the allegations in complainant’s bill, of an agreement by the defendants (the Stulases) to assume the mortgage, is sufficient to sustain the deficiency decree and the finding that they assumed the mortgage.” And they contend in effect that said allegations are sufficient to sustain and warrant the decree. In the case of Ludlum v. Pinckard (decided in 1922) 304 Ill. 449, 452, our Supreme Court said (italics ours):

“An agreement on the part of a grantee to pay incumbrances on property conveyed must be based on sufficient consideration and the assumption clause of the deed be accepted and agreed to by the grcmtee. The law requires something more than the mere insertion by the grantor of a clause in the deed that-the grantee assumes an incumbrance. The assumption of such incumbrance is by way of contract or agreement on the part of the grantee, and the grantee’s assent to such contract must in some manner appear. While the general rule is that if the grantee takes and claims title under a deed he takes it by the terms of the deed, .yet in order that a grantee be held personally liable for the payment of an incumbrance against the property, it must be shown, in addition to having accepted title to the property, thát he assented to the condition of the deed relating to the personal assumption of the debt. Unless it be shown that the grantee in a deed has some reason to suppose that the deed to him contained a personal contract on his part to pay a mortgage or other lien on the property transferred, and that he assented thereto, he cannot be held, as a matter of law, to have assumed such obligation.” (Citing cases, including Thompson v. Dearborn, 107 Ill. 87.)

After carefully reviewing the allegations of complainant’s bill, the deficiency decree, and the briefs and arguments of opposing counsel, and considering the holdings in the adjudicated cases herein above referred to, we are of the opinion that said allegations of complainant’s bill were not sufficient to warrant the court in including in the decree in question the judgment against the Stulases for the deficiency. Such were the holdings and decision in substance in the somewhat similar case of Thompson v. Dearborn, 107 Ill. 87, 93, 94. Accordingly, that portion of said decree affecting the Stulases, and particularly the personal judgment rendered against them, is reversed, and the cause is remanded to the circuit court for such modification of said decree as is consistent with the views herein expressed.

Reversed and remanded with directions.

Sganlan and Sullivan, JJ., concur.


author: Mr. Presiding Justice G-ridley

text:
    Jessie Martin, Complainant, v. Norman Crews et al., Defendants. Appeal of Stella Rosenberg, Appellant, v. Mina S. Oyster et al., Appellees.
    Gen. No. 37,545.
    Opinion filed February 1, 1935.
    H. J. Rosenberg, of Chicago, for appellant; Abraham Miller, of Chicago, of counsel.
    Sims, Stransky & Brewer, of Chicago, for certain appellees; Otto W. Berg, of Chicago, of counsel.
    Harry A. Fleck, of Chicago, for certain other appellees.
   Mr. Presiding Justice G-ridley

delivered the opinion of the court.

This appeal is prosecuted by Stella Rosenberg, an intervening petitioner in a foreclosure proceeding, from an order of the superior court, entered March 27, 1934, sustaining objections to the master’s report of sale and ordering a resale of the property.

In the order the court stated that the cause came on to be heard upon complainant’s motion for the approval of the report of sale; also upon the amended objections to the report of sale of Mina S. and Louis A. Oyster, the two receivers of the International Life Insurance Co. and two other parties; and also upon the verified petition of Stella Rosenberg (purchaser at the sale) praying for an order granting her leave to become a party to the record and that the master be directed to issue a certificate of sale to her. And the court, after considering the evidence and the arguments of respective counsel, and being fully advised, made the following findings in the order in substance:

1. That the sale of the property by the master on July 18, 1933, for the sum of $5,000, to Stella .Rosenberg, “was at a grossly inadequate price,” and that the sale for such price “amounts to a constructive fraud upon the holders of the indebtedness.”

2. That the fair cash market value of the property, at the time of the sale and at the present time, “was several times the amount of said hid of $5,000 by Stella Rosenberg.”

3. That the parties in interest, who were bidders at the sale, “were not given a fair and impartial opportunity to perfect their bid”; that because of the master’s actions as set forth in the objections herein, “the rights of the parties were not protected”; and that “a great injustice will be caused to the owners of the indebtedness secured by the trust deed on the property herein foreclosed, if the court should approve this sale.”

4. That it is apparent to the court that if the property be again legally offered for sale, no injury will be done to any party in the cause, that the consummation of a fraud will be prevented, and that the property “will bring at such sale at least three or four times the amount which it brought at the previous sale. ’ ’

5. That “two responsible bidders appeared in open court on March 26, 1934, and showed conclusive evidence to this court that they would hid at least $15,000 for the property, if the same was again offered for sale”; and that they exhibited to the court a certified check of $5,500 as evidence of their good faith.

6. That when the property was offered for sale on July 18, 1933, the master “abused Ms discretion in refusing to continue the sale” on the motion of the respective solicitors for the receivers of the International Life Ins. Co. and of Ward K. Doebler, “for the reasons set forth in the affidavit of Harry A. Fleck,” made a part of the amended objections filed herein.

And the court ordered and adjudged in substance (a) that the amended objections filed to the master’s report of sale “are hereby sustained and approved, and said report of sale is hereby disapproved, set aside and held for naught”; (b) that the master is hereby directed to readvertise the property and resell the same; (c) that he withhold the delivery of the certificate of the sale made by him on July 18, 1933; (d) that the costs of the readvertising and resale “be paid by Mabel Weideman, the owner of the equity herein, out of the rents and profits derived by her from the rental of the property to Howard K. Hurwith, who is now the tenant on said property”; (e) that the master, at the time he- reoffers the property for sale, “accept none of the bids submitted at the resale, but that he submit to the court the names of the various bidders and the amounts of their bids, within 5 days from the date of said sale”; (f) that the master “refrain from the issuance of any certificate of sale of the property until this court has approved the highest bid submitted by the master”; (g) that said Mabel Weideman and Howard K. Hurwith, and the members of their respective families, and their agents and servants, “give access to the property to any parties asking to view the property for the purpose of becoming bidders at said resale”; (h) that Mabel Weideman file in this court, within 30 days, a complete report and account of the rentals received by her, together with her expenditures herein, from the date she became the owner of the equity of the property; and (i) that Stella Rosenberg be given leave to become a party to the cause and the right to file her appearance herein.

From this order Stella Rosenberg duly perfected her appeal in this court. A report of the hearing and proceedings had in the superior court on March 26, 1934, was thereafter duly filed in that court, bearing the signature of the trial judge, dated April 16, 1934, and is contained in the present record. From the report the following in substance appears:

That the master’s report of the sale of the property, filed September 6, 1933, was exhibited and considered by the court; that the amended objections (filed September 25,1933) to the report, as well as the supporting affidavits of Harry A. Fleck, Harry W. Gahagan, and Robert Honoré Brown, were read and considered by the court; and that all parties interested were present by their respective counsel.

That thereupon Stella Rosenberg, by her counsel, H. J. Rosenberg, presented her petition for leave to become a party to the record for the purpose of protecting her interests in the matter of her purchase of the property at the sale, “which motion was allowed and said petition ordered filed.”

That thereupon her counsel “ admitted for the record herein every allegation of fact contained in said amended objections to the master’s report of sale, and each and every allegation of fact contained in the affidavits attached to and made a part of said objections”; that he also “specifically admitted the various findings of fact, as contained in said order of March 27, 1934”; that he “insisted that, assuming the correctness of all said statements of fact to be true,” the same “did not strictly as a matter of law constitute a ground for refusing to confirm the master’s report of sale”; and that he “further insisted that Stella Eosenberg (who appeared by him as her counsel at said sale and made an offer for the purchase of the property) was entitled to have said offer approved by the court and to have a certificate of sale issued to her.”

That thereupon the matter was fully argued by respective counsel; that the court considered the arguments, “together with each and every admission of fact made by said H. J. Eosenberg”; that thereupon the court entered the order of March 27, 1934 (which sustained and approved all allegations contained in said objections to the sale), and disapproved, set aside and held for naught said master’s report, and directed a resale of the property involved, etc.; and that “the foregoing were all of the proceedings had upon the matter of the confirmation of said sale.”

In the amended objections to the confirmation of the sale, the following statements in substance were made, which are supported by the accompanying affidavits above mentioned:

1. That the sum of $5,000, for which the property was struck off to Stella Eosenberg at the master’s sale of July 18, 1933, “is not the full and fair value of the premises, but is grossly inadequate and unfair and amounts to a fraud in law.”

2. That the property on the date of the sale “had a fair cash market value of $20,000, and it today has not depreciated in value.”

3. That through an inadvertence the receivers of the International Life Insurance Co. “were prevented from making a bid for the reason that the Honorable Charles B. Davis, U. S. District Judge of the eastern division of the eastern district of Missouri left the district unexpectedly, and no other official was present with jurisdiction to enter an order in the cause of said receivership, then pending as No. 8308, authorizing them to draw a check to apply on a bid to be made by them”; that in the decree of foreclosure there was a provision authorizing the master, at any time and from time to time in his discretion, to adjourn the sale, upon advising the persons present and giving notice, etc.; that Harry A. Fleck, solicitor for the receivers, was present at the sale of July 18, 1933, and “made a motion to continue said sale, with a guaranty of all expenses involved, but that the master abused his discretion in that behalf and denied the motion for the continuance, which ruling destroyed all competitive bidding, to the prejudice of these objectors”; that “as a result the property was struck off to the only bidder, Stella Rosenberg, for $5,000, although the solicitor for the receivers made a bid of $6,000, qualified by the statement that he would produce the balance of cash required within a day or two after using his bonds on deposit”; and that the only objection made to a continuance of the sale “was made by said H. J. Rosenberg, solicitor for the owners of the equity of redemption, Mabel Weideman, and who appeared at the sale on behalf of his wife, Stella Rosenberg.”

4. That after the sale had been made, said Judge Davis returned to his district; that on July 25, 1933 (7 days after the sale) the then receivers of the Insurance Co. “caused an order to be entered, authorizing them as such receivers to make a bid as high as $10,000, in the event the property was offered for resale”; that as evidence of their good faith, the receivers “are now able and willing to deposit $500 in cash and a certified check for $5500 with said master or the clerk of the court to guarantee a bid as high as $10,000.”

In the verified petition of Stella Rosenberg, filed March 27, 1933, she alleged inter- alia that no order has been entered finally determining her rights as the purchaser at the sale; that she has paid the master $5,000; that “a certificate of sale has been made out by the master to her but has not been delivered to her”-, and that she has a direct and vital interest in the proceedings, etc.

In urging the reversal of the order in question, Mrs. Rosenberg’s counsel (H. J. Rosenberg) makes three contentions, viz.: (1) That the refusal of the court to confirm the master’s sale of the property for $5,000 “was arbitrary, not in accordance with established principles of law, and constituted an abuse of judicial discretion”; (2) that “mere inadequacy of price is not ground for disapproving a master’s sale, unless the inadequacy is so gross as to amount to fraud”; and (3) that “the court will not order a resale of property to protect one against the consequences of his own negligence.”

In urging the affirmance of the order, counsel for the receivers of the Insurance Co. and the other objectors to the confirmation of the master’s sale make four contentions, in substance as follows: (1) That the court’s refusal to confirm the sale and its order directing that a resale of the property be had were not arbitrary acts but were such as constituted the exercise of a sound judicial discretion under the admitted facts; (2) that it is a well established rule that the court will aid an interested party by ordering a resale to prevent the consummation of what amounts to a fraud upon and a loss to him, brought about by an abuse of discretion of an officer of the court; (3) that other well settled rules are that the highest bidder whose bid had been returned into court, is a mere offerer to purchase, and the confirmation of the sale is the final consent, and that the court, being in fact the vendor, may consent or not in its discretion; and (4) that each case should stand or fall upon its own facts or equities, and that, after all, the granting of equitable relief rests in the sound discretion of the court.

After reviewing the present record and the exhaustive briefs and arguments of opposing counsel, and considering numerous authorities, we are of the opinion that the order in question should be affirmed. We do not think that under the admitted facts the order should be considered as an arbitrary one or as an abuse of judicial discretion. Nor do we think that it appears from the evidence that negligence may be charged against the objectors. And the following holdings of our Supreme Court may appropriately be mentioned. In Moeller v. Miller, 315 Ill. 454, 460, it is said: “The rule has often been announced that if in addition to the inadequacy of price there be any appearance of unfairness, or any circumstance, accident or occurrence in relation in the sale of a character tending to cause such inadequacy, then the sale will be set aside.” (See, also, Logar v. O’Brien, 339 Ill. 628, 632; Magnes v. Tobias, 337 Ill. 605, 611; Barnes v. Freed, 342 Ill. 73, 78, 79.) And in Miller v. Miller, 332 Ill. 177, 179, 180, it is said: “A sale by a master in chancery is not, until confirmed by the court, a sale in a legal sense. The chancellor has a broad discretion in the approval or disapproval of the sale. The highest bidder whose bid has been returned to the court as the best offer acquires no interest in or a right to the land and is a mere offerer to purchase. Confirmation is final consent and the court, being in fact the vendor, may consent or not, in its discretion. . . . This discretion, unless abused, will not be interfered with by a court of review.” And in the well considered case of Griswold v. Barden, 146 Wis. 35, 37 (followed in Suring State Bank v. Giese, 210 Wis. 489, 492) it is said, italics ours:

“It has been said by this court that it is the settled practice of courts of equity to refuse a resale for mere inadequacy of consideration, and that this court will not depart from that rule where no other ca/ase exists.

. . . This is doubtless a correct statement of the rule, but it seems from the argument in the present case that it may be easily misunderstood. It must be strictly confined to oases where there is absolutely no fact appearing, except that the price is inadequate. Whenever other facts appear, . . . , the court will readily refuse to approve the sale. No fraud is necessary to justify the court in so withholding its approval. The question simply is: Is the sale under all the circumstances one of which the court, in justice to all parties, should approved If the only objection be that a small price was obtained, the court will doubtless feel constrained to approve, unless indeed the price be so small as to amount itself to a fraud if it were permitted to stand.”

And we may here refer to the opinion of this division of this Appellate Court, filed December 31, 1934, in the case of Levy v. Broadway-Carmen Bldg. Corp., 278 Ill. App. 293.

The judgment order of March 27, 1934, appealed from, should be and is affirmed.

Affirmed.

Scahlau and Sullivau, JJ., concur.