author: Mr. Presiding Justice Jones

text:
    The People of the State of Illinois (Benjamin S. Belt and Edward L. Eagle), Plaintiffs in Error, v. Elmer Saylor et al., Defendants in Error.
    Gen. No. 7,383.
    1. Contempt — record required. Commitment having been made for an alleged contempt committed in open court, without charge, plea, issue or trial, the only record required to be made was the order of commitment.
    2. Contempt — order of commitment should set out facts constituting offense. Order of commitment for contempt committed in open court should set out the facts constituting the offense so fully and certainly as to show that the court was authorized to make the order.
    3. Contempt — facts taken to he true on appeal. On appeal from an order committing one for contempt in open court, facts stated in the order must be taken to be true.
    4. Contempt — order of commitment to show presence of contemner. Contempt in presence of court being in its nature criminal, order of commitment should show presence in court of the party guilty of contempt when the penalty was imposed.
    5. Contempt — order to show disposition of fines. Orders of commitment for contempt in presence of court should state to whom fines are payable.
    6. Contempt — order must show what ruling violated. Order of commitment for contempt in open court by refusing to abide rulings of court must state what rule of the court the eontemfier failed to abide.
    Error by plaintiffs to the Circuit Court of Rock Island county; the Hon. William T. Ohubch, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed.
    Opinion filed August 3, 1925.
    Kenworthy, Dietz, Shallberg, Harper & Sinnett, for plaintiffs in error; J. J. Neiger and Cyrus E. Dietz, of counsel.
    Oscar Carlstrom, Attorney General, Benjamin S. Bell, State’s Attorney, James D. Bruner, Asst. State’s Attorney, for defendants in error; Edward L. Eagle, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

This is a writ of error to the circuit court of Bock Island county, sued out by Benjamin S. Bell and Edward L. Eagle, plaintiffs in error, who are respectively State’s Attorney and Assistant State’s Attorney of Bock Island county. They were fined for an alleged contempt of court, occurring during the trial of a criminal case in that court entitled ‘ ‘ The People, etc., v. Elmer Saylor, et al.” Exceptions were preserved to the ruling of the court and to the suEciency of the order and judgment. Plaintiffs in error entered their motion for a stay of commitment, and for time to secure a writ of error and supersedeas from this court, which motion was allowed. The order of commitment is as follows:

“And now, on account of improper remarks and charges made by Benjamin S. Bell, State’s Attorney, and Edward L. Eagle, Assistant State’s Attorney, in open court during the trial of this cause, against the court and not abiding the ruling of the court, they are held to be in contempt of court, and it is ordered by the court that the said Edward L. Eagle be and he hereby is fined the sum of one hundred dollars, and that he stand committed to the county jail until said fine is paid, and that the said Benjamin S. Bell be and he hereby is fined the sum of three hundred dollars, and that he stand committed to the county jail until said fine is paid. And now the said Edward L. Eagle and Benjamin S. Bell, except to the ruling and sufficiency of the order and judgment, and each of them enter herein their motion for a stay of commitment and for time to secure a writ of error and supersedeas from the Appellate Court of the Second District of the State of Illinois, which motion is allowed, and the issuance of the writ of commitment is stayed until May 10th, A. D. 1924. And the said Edward L. Eagle and Benjamin S. Bell are each given until May 10th, A. D. 1924, in which to file a Bill of Exceptions.”

The errors relied upon for reversal are that the order of commitment is invalid, and void because it does not set out any facts constituting the contempt; that it does not recite what the contemptuous conduct consisted of; what ruling of the court they failed to obey; that the order had no title and fails to show who was bringing the contempt proceedings; that it does not show that plaintiffs in error were present in court at the time the order was entered; and that it does not show to whom the fines should be paid.

It will be observed that the order of commitment merely states that “on account of improper remarks and charges made by plaintiffs in error in open court during the trial of this cause, against the court and not abiding the ruling of the court, they are held to be in contempt of court,” etc. The commitment having been made for an alleged contempt committed in open court, without charge, plea, issue or trial, the only record required to be made is the order of commitment. However, that order should set out the facts constituting the offense so fully and certainly as to show that the court was authorized to make the order, and the facts stated must be taken to be true. People v. Hogan, 256 Ill. 496 (499). The object of requiring these facts to be shown in the record is to enable the reviewing court to see whether they amount to a contempt, and thus to determine from them the jurisdiction of the trial court. 6 R. C. L., “Contempt,” sec. 49. The order in this behalf contains no such recitals and therefore is invalid and void. It also fails to show whether or not the plaintiffs in error were present in court at the time the order was entered. The alleged contempt against the court was in its nature criminal, and the order should show the presence in court of the plaintiffs in error when the penalty was imposed. Cases in this State in which it is held that the presence in court of the party against whom the penalty was entered need not he shown in the order are those involving civil contempts. (Barclay v. Barclay, 184 Ill. 375.) The order should also state to whom the fines are payable (6 R. C. L., “Contempt,” sec. 48; McDonald v. People, 86 Ill. App. 558, 560), and what rule of the court plaintiffs in error failed to abide. Since the order is insufficient in the particulars above recited, the judgment of contempt in the circuit court is reversed.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Marshall Field & Company, Defendant in Error, v. Isabelle Thompson, Plaintiff in Error.
    Gen. No. 7,460.
    1. Statutes — repeal of earlier by later. Later statutes do not repeal earlier statutes unless the inconsistency is so great that they cannot both stand.
    2. Statutes — repeal of special statute by general. A general statute does not repeal a special statute by implication unless they are so inconsistent that they cannot both stand.
    3. Statutes — construction against repeal by implication. As regards repeal by implication, it is the duty of the court to so construe statutes that they may both stand.
    4. Attachment — provision as to publication of notice not repealed. Notices Act of 1897, as amended in 1917, did not repeal by implication Attachment Act, ch. 11, sec. 22, Cahill’s St. ch. 11,
    22, relating to notice by publication.

      5. Attachment — notice by publication. Under Attachment Act, ch. 11, sec. 22, Cahill’s St. ch. 11, f 22, only three weeks’ notice by publication is necessary, notwithstanding Notices Act, V 9, Cahill’s St. ch. 100, If 9.
    Error by defendant to the County Court of Kendall county; the Hon. Abthur G. Labson, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed August 3, 1925.
    Hayes, Munts & Young, for plaintiff in error.
    Johnson & Carr and Robert C. Carr, for defendant in error.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

This is an attachment suit by Marshall Field & Company, defendant in error, in the county court of Kendall county, against Isabelle Thompson, plaintiff in error. The defendant in error, at the December term, 1922, of that court, recovered a judgment by default on January 12, 1923, against plaintiff in error for $225.79, upon publication of notice for three weeks, to wit: on November 29, December 6 and December 13,1922. An execution was issued and certain land belonging to plaintiff in error was sold thereunder.

The only question in this case is with reference to the sufficiency of the service. Plaintiff in error claims that the court had no jurisdiction, for the reason that four weeks’ publication was necessary and only three weeks’ publication was given. It is further contended . that only twelve days and not thirty days intervened between the first publication and the first day of the term of court at which judgment was rendered. It is claimed that the “Notices Act” of 1897 as amended in 1917, repealed by implication section 22, chapter 11 of the Attachment Act [Cahill’s St. ch. 11, ff 22], and that publication notices are controlled by the Notices Act and not by the Attachment Act. The Attachment Act provides for only three weeks’ notice by publication, while paragraph 9 of the Notices Act [Cahill’s St. ch. 100, [[9] provides that: “In all suits at law or in chancery, or in probate matters * * * it shall be sufficient publication if such notice shall be published at least once in each week for four successive weeks, the first publication to be at least thirty days prior to the first day of the term.” We are aware that McAnsh Dwyer & Co. v. Moore Furniture Co., 178 Ill. App. 562, apparently supports plaintiff in error’s contention, but the court in that case did not base its decision on the question of jurisdiction, inasmuch as the appellee, defendant below, waived that question by appearance, joining issue and participating in the trial; and the case was decided upon another question altogether.

The whole subject of attachment is governed by chapter 11 of the statute, which is complete within itself and provides all of the steps necessary in obtaining jurisdiction and judgment in attachment, including service by publication in case there can be no personal service. It is a well-known rule of law that later statutes do not repeal earlier statutes, nor does a general statute repeal a special statute, unless the inconsistency is so great they cannot both stand. If possible, it is the duty of the court to so construe such statutes that they may both stand. Eepeals by implication are not favored and a later statute will not be held to repeal a former one, unless they are irreconcilable. The presumption always obtains that the legislature by a general law does not intend to abrogate the provisions of a prior act relating to a special subject, and that such repeal will only be effected when there are no negative words, unless it is impossible for the two acts to stand together. (People v. Brown, 189 Ill. 619, 622.) It is the duty of the courts to construe them so as to avoid repeal, if such a construction can be given,- and a statute will never be held to be repealed by implication if it can be avoided by any reasonable hypothesis. It is also the rule that a subsequent law which is general does not abrogate or repeal a former one which is special and intended to operate upon a particular subject, and that if the later statute does not contain negative words it will not repeal the particular provisions of the special law on the same subject, unless it is impossible that both should be enforced. (Village of Ridgway v. Gallatin County, 181 Ill. 521, and cases cited.) Paragraph 9 of the Notices Act contains no negative words and no reason is perceived why the two statutes cannot be enforced together.

The history of the legislation in connection with service by publication throws some light upon the intention of the legislature in enacting paragraph 9 of the Notices Act, its amendment and its purpose. As originally enacted it provided that: “It shall be sufficient publication if such notice shall be published for at least four (4) successive weeks, the first publication to be at least thirty (30) days next prior to the first day of the term of such court,” etc. Since its enactment it has been amended only once. In 1917 it was amended to read: “It shall be sufficient publication if such notice shall be published at least once in each week for four successive weeks,” etc., and the word “next” immediately before the word “prior” was omitted.

Up to 1917, section 13 of the Chancery Act of 1872 provided for publication of notice at least once in each week for four successive weeks and required forty days to intervene between the first publication and the first day of the term. At the 1917 session of the legislature, the Act was amended to require only thirty days to intervene between the first publication and the first day of the term. (Laws 1917, p. 643.) [Cahill’s St. ch. 22, ff 13.]

Section 105 of the Administration Act of 1872, relating to sale of real estate to pay debts of a decedent, provided that notices be published once in each week for four successive weeks, and that forty days shall intervene between the first publication and the first day of the term. In 1917 this section was amended so as to require only thirty days to intervene between the first publication and the first day of the term. [Cahill’s St. ch. 3, ff 106.]

It will be observed that the amendment of 1917 to paragraph 9 of the Notices Act changed the wording of the Act of 1897 from “for at least four (4) successive weeks” to “at least once in each week for four successive weeks” making it conform to the wording of section 105 of the Administration Act and section 13 of the Chancery Act; and at the same session of the legislature both of the latter acts were amended so as to make the period intervening between the first publication of notice and the first day of the term, as provided by these acts, conform to the provisions of paragraph 9 of the Notices Act.

While it may be argued that a proceeding to sell real estate to pay debts of a decedent is not a suit at law nor a chancery suit, but is a statutory proceeding, yet section 101 of the same Act [Cahill’s St. ch. 3, 1f 102] provides that the practice shall be the same as in cases of chancery, and it is apparent that the legislature had this in mind. Under the circumstances, if the legislature intended paragraph 9 of the Notices Act to apply to attachment proceedings, it is singular that section 22 of the Attachment Act was not given some attention at the same session of the legislature, when the Administration Act, the Chancery Act and the Notices Act were all amended making them uniform as to length of time required to intervene between the first publication of notice and the first day of the term, and when the wording of each of the acts was made the same as to the manner of publication, i. e., once in each week for four successive weeks.

We do not think that the act of 1897 as originally enacted or as amended in 1917 applied to proceedings in attachment, nor that the legislature intended that it should. Section 26 of the Attachment Act [Cahill’s St. ch. 11, [[ 26] provides that: “The practice and pleadings in attachments suits, except as otherwise provided in this act, shall conform as nearly as may be to the practice and pleadings in other suits at law.” The Attachment Act contains an express provision relating to the subject of notice and such provision must therefore obtain for that reason, as well as because of the rule that a general statute will not repeal a special statute, unless the inconsistency between them is so great that they cannot both stand. We feel there is no inconsistency between the two acts and that both of them should stand. Therefore, three weeks’ publication under section 22 of the Attachment Act is sufficient.

In Lawver v. Langhans, 85 Ill. 138, it is said: “The statute does not require that the three publications shall be made * * * a certain number of days before the term commenced * * *. We perceive nothing to prevent a part of the publications being made before the term begins and a part afterwards. * * * The Practice Act, in regard to service of process and filing of declarations in actions at law, was not intended to embrace an action in attachment.” (See also, Kirk v. Elmer H. Dearth Agency, 171 Ill. 207.) With these cases before us, we must conclude that the Notices Act, as well as the Practice Act, has no application to attachment suits; otherwise all publications should be made prior to the commencement of the term, and section 23 of the Attachment Act [Cahill’s St. ch. 11, [[23], providing that no default shall be entered until the expiration of ten days after the last publication, would be virtually meaningless.

The default was not taken and the judgment was not entered until more than ten days after the last publication, so that, under section 23 of the Attachment Act, the court had jurisdiction to render the judgment it did. The judgment is therefore affirmed.

- Judgment affirmed.


author: Mr. Justice Jett

text:
    American Tar Products Company, Appellee, v. Bradner Smith and Company, Appellant.
    Gen. No. 7,441.
    1. Judgments and decrees — consent decree as contract. A consent, decree partakes of the nature of both a contract and a decree.
    2. Judgments and decrees — manner of setting aside consent decree. A decree by agreement not the result of any judgment of the court cannot be impeached or set aside upon a bill of review for errors of law apparent on its face, or on account of additional evidence, but can only be set aside by an original bill in the nature of a bill of review.
    3. Judgments and decrees — personal liability for repairs to dam under consent decree. In view of consent decrefe, held that owners of shares of dam in Rock River were not personally liable for cost of repairs made by one of the shareholders, under Private Laws 1865, vol. 2, p. 686.
    Appeal by defendant from the Circuit Court of Winnebago county; the Hon. Bare D. Reynolds, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded.
    Opinion filed August 24, 1925.
    David D. Madden, Edward L. England and Ira W. Hurley, for appellant.
    Fisher, North, Linscott & Gibboney, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

American Tar Products Company, appellee, filed its bill in the circuit court of Winnebago county against Bradner Smith and Company, appellant, and others seeking to charge them with a portion of the expenses and costs for the alleged repairs of a dam in Bock Biver near the City of Bockford. On a hearing a decree was rendered as prayed for, finding that there was due from Bradner Smith and Company the sum of $46,369.41, for making said repairs and this appeal was prosecuted.

It appears that many years ago a dam was built across Rock River by a number of interested parties with a view of establishing a water power. It also appears that in the year 1865 the General Assembly of Illinois passed a special act, Private Laws 1865, vol. 2, p. 686, in the preamble of which it was recited that the Rockton water power was ‘ ‘ owned by divers persons and firms, as tenants in common, * * * and for the maintenance and usefulness of the property, repairs, alterations and improvements are, from time to time, required thereon, the expense of which, in justice, should be borne and paid by the owners, in proportion to their respective interests therein.”

Appellee in its bill among other things charges that the ownership of the dam and of the main race and the land upon which the dam and main race were constructed has been assumed to be divided into ninety-six equal parts; that it is an Illinois corporation and is the owner of twenty-eight ninety-sixths parts; that Bradner Smith and Company, a corporation, organized under the laws of the State of Illinois, one of the defendants in the bill and appellant here, is the owner of sixty-four ninety-sixths parts of said dam and raceway; that Charles Gleasman and Edward Gleasman, partners doing business under the firm name and style of Gleasman Brothers, own three and one-eighth ninety-sixths parts of said dam and main-race and that Herman Webber owns seven-eighths of one ninety-sixth parts of said dam and main-race.

It is further charged by appellee in its said bill that all of the said property known as the Rockton Water Power Company, including the dam across the Rock River and the main-race and water power, is held and owned by it and the other persons hereinbefore named including the appellant as tenants in common and is not susceptible of division and that for the maintenance and use of said, property repairs, alterations or improvements that are from time to time required thereon, the expense of which in justice should be borne by the owners in proportion to their respective interests therein; that on or about March 5, 1920, a large part of the said dam and main-race was washed out and destroyed on account of an accumulation of ice in said Rock River and that then and there it became and was necessary for the maintenance and use of the property to make certain repairs and improvements; that subsequent to the 5th day of March, 1920, other breaks occurred in said dam and main-race and other parts of the same were washed out and destroyed and it also became necessary for the maintenance and use of the property to make repairs and improvements; that in the year 1920 it spent large sums of money as a necessary expense in and about the repairing and maintaining the said dam and main-race and charged against the said Bradner Smith and Company the sum of $45,834.30 as and for its reasonable part of said expense; that on August 20,1920, the said Bradner Smith and Company paid to it the sum of $16,654.59, which said last-mentioned sum has been credited to the account of the said Bradner Smith-and Company; that there is now due and unpaid to appellee on account of moneys expended in the making of necessary and reasonable repairs for the maintenance of said dam and raceway for the year 1921 and up to January 12, 1922, from the said Bradner Smith and Company the sum of $46,339.41; that said last-mentioned sum constituted the amount due from the said Bradner Smith and Company after allowing it all just credits for moneys paid to appellee out of matters arising out of the reasonable repair and maintenance of the said dam and raceway.

The bill prays that an account may be taken by and under the direction of the court of all the dealings and transactions relative to the making of the repairs and improvements occasioned by the washout and destruction of the dam and main-race and that Bradner Smith and Company may be decreed to pay whatever sum should appear to be due occasioned by the repairing of said dam and that upon a failure to pay said sum found due appellee from said Bradner Smith and Company within a reasonable time to be named by the court, that all the right, title and interest in and to the premises, dam and raceway of the said Bradner Smith and Company be sold under the direction of the court and that in the event that the funds arising from such sale should not be sufficient to pay the amount mentioned and decreed against said Bradner Smith and Company the court will enter a money judgment for such deficiency.

Bradner Smith and Company answered the bill and admits that it is a corporation organized under the laws of the State of Illinois and is the owner of sixty-four ninety-sixth parts of the dam; that it was not advised as to the ownership of the remaining interests; that the dam was washed out and injured and certain repairs were made and that on the 19th day of August, 1920, appellee rendered to said appellant bills for repairs on said dam amounting to $16,654.59, which it paid, believing and understanding same was in full of all repairs necessary or advisable in connection with the maintenance of such repair of said dam and that there was no further or other expense connected therewith; that it did not authorize or direct any repairs to be made to said dam as a result of said washout which occurred March 5, 1920, or in any connection with such damages which occurred subsequently thereto and denies it can be held for any money judgment or deficiency and sets up that at the January term, 1898, it filed a certain bill in the circuit court of Winnebago county against W. T. Bandall Paper Company, the Second National Bank of Beloit, Wisconsin, James N. Harris, receiver, William Webber and Harry Webber, who constituted all of the parties who were at that time interested in the dam; that as a result of that bill a decree was entered by consent which provided that the ownership of the dam and the main-race be divided into ninety-six equal parts and. that the ownership therein of any individual or corporation be designated by the ninety-sixths parts of what they owned. At the time of the filing of the bill the W. T. Randall Paper Company owned twenty-eight ninety-sixths of the dam subject to a deed of trust to the Second National Bank of Beloit, Wisconsin. The decree further provides that the cost and expense of maintaining the dam be paid by the owners in proportion to the number of ninety-sixths parts thereof owned by each and that such costs should be a first and prior lien against the share of each owner; that no personal charge against any owner of any interest in said dam should be created; that in case of a sale or transfer of any part the part so sold should remain subject to the sale and charge for its proper proportion of the reasonable costs of maintaining the dam.

In the decree entered on the bill of appellee among other things we find the following: “The court further finds from the master’s report and the evidence that the complainant is entitled to contributions from the respective owners of interests in said dam property in the following proportions, to wit: from the defendant, Bradner Smith and Company, the sum of $63,024, the same being sixty-four ninety-sixths parts of the amount of said repairs.” The court further finds “that said Bradner Smith and Company have paid on account of their share of said expenses the sum of $16,654.59, leaving a balance due of $46,369.41.” It is decreed that “Bradner Smith and Company pay the complainant within thirty days from this date (being the date on which the decree is entered) the said sum of $46,369.41, with lawful interest to be computed thereon from the 12th day of January, 1922, until paid.” It is further decreed that in default of said payment being made as aforesaid then, in that case, the interest of Bradner Smith and Company in said premises mentioned in the bill of complaint or so much thereof as may be sufficient to realize the amount so due to the complainant, principal and interest, and all the costs of this suit, including the fees, disbursements and commissions on the sale herein mentioned, be sold, at public vendue for cash in hand to the highest and best bidder. It is further decreed that if the money arising from the said sale shall be insufficient to pay the amount so due the complainant with interest and the costs and expenses aforesaid, the said master specify the amount of such deficiency in his report of said sale and that on the coming in and confirmation of said report, Bradner Smith and Company, who are personally and individually liable to pay to the complainant the deficiency, if any, of such last-mentioned report or so much thereof as the court shall find due, if any, and that the complainant have execution therefor.

The decision of this case rests on the effect to be given to. the consent decree rendered in 1898. The evidence shows that after the consent decree was entered appellee purchased the interest of the said W. T. Randall Paper Company and that the appellant company continued to own the share represented by it. The evidence discloses that before appellee purchased the share of the paper company it had knowledge of the provisions of this decree and that subsequently in its dealings with the parties in the repair of the dam the terms of the decree were carried out.

It is the contention of appellee that the decree is not binding. Appellant insists it is binding and that by reason of its provisions the only claim appellee can have is a lien upon the part of the dam owned by appellant and that appellee is not entitled to a personal judgment.

It will be remembered that the consent decree was entered by consent of all the parties who were interested in the dam at the time it was rendered with the exception of William Webber who was the owner of a shadow’s interest only therein and he is not here complaining. The parties by this decree in effect entered into a contract fixing their rights and liabilities. In the decree it is provided that from the entry thereof “the reasonable cost and expense of the maintenance and repair of said dam and race in a reasonable and efficient condition to answer the purposes for which said dam and race were constructed shall be paid by the owners thereof in proportion to the amount or number of ninety-six parts thereof owned by each, and that the proportion of such reasonable cost and expense belonging to each owner to pay shall be a first and prior lien upon his, her or its interest in said dam, race and strip of land on which said race is constructed”; and further provided that said “decree shall create no personal charge against any owner of an interest in said dam, race and strip of land, but shall and does create and give a first and prior lien upon each owner’s share and interest in said dam, race and strip of land for his, her or its proper proportion of such reasonable cost and charge for maintenance and repair of said dam and race; and such lien may be enforced in equity or other proper manner”; also, “in case of sale or transfer of any of said ninety-six parts of said dam, race and strip of land on which said race is constructed, the parts so sold or transferred shall be and remain subject to the aforesaid lien and charge for their proper proportion of the reasonable cost and expense of the maintenance of said dam and race, the same as if such sale or transfer had not been made.”

The intention of the parties is clearly discernible from the decree and it fixes their interests and recites, “that from the entry of this decree” showing that the rights, interests and liabilities of the parties were not exact until the consent decree was entered. By the entry of the consent decree the rights and liabilities of the parties in interest became fixed and it was distinctly understood and so expressed therein that no personal charge should accrue against any owner of an interest in the dam.

A consent decree partakes of the nature of both a contract and a decree. It is not strictly a judicial decree but rather in the nature of a contract entered into by the solemn sanction of the court. Paine v. Doughty, 251 Ill. 396; Hohenadel v. Steele, 237 Ill. 229; Krieger v. Krieger, 221 Ill. 479.

We are of the opinion that the said consent decree is a contract and like any other contract should be enforced as written. The decree binds all of the parties and their privies, and the rule controlling the construction of a contract or a decree applies to a consent decree. A decree by agreement, not the result of any judgment of the court, cannot be impeached or set aside upon a bill of review for errors of law apparent on its face or on account of additional evidence, and can only be set aside by an original bill in the nature of a bill of review. Hohenadel v. Steele, supra; Krieger v. Krieger, supra; Chicago, etc., Benevolent Society v. Chicago, etc., Aid Society, 283 Ill. 99-104.

We are, therefore, of the opinion that the decree rendered in favor of appellee in so far as it holds Bradner Smith and Company personally liable for its proportion of repairs is erroneous. The evidence relative to the costs of making the repairs is to our minds indefinite and uncertain. The decree is reversed and the cause remanded.

Reversed and remanded.


text:
    B. H. James, trading as B. H. James & Company, Appellant, v. Union National Bank, Appellee.
    Gen. No. 7,436.
    1. Agency — what does not authorise agent to indorse check. Where an order for a truck taken by a salesman provided for payment in cash and the salesman on delivering the truck was directed to collect the amount due, such direction and the provision for cash payment did not authorize the salesman to indorse the seller’s name on a check presented to and accepted by the salesman as payment, or to cash the same.
    2. Agency — duty to ascertain agent’s authority. Persons dealing with an assumed agent are bound, at their peril, not only to ascertain the fact of agency, but the extent of the agent’s authority.
    3. Agency — inquiries as to agent’s authority. Where the drawee bank paid a check upon the unauthorized indorsement of a salesman of the payee it could not escape liability by showing that such payment was made only after consultation with the maker and upon being informed by it that it was “all right to cash it” and that the salesman was “supposed to have the cash,” since information as to the agent’s authority to indorse could come only from the payee.
    4. Banking — when Negotiable Instruments Act inapplicable to unauthorised payments. Negotiable Instruments Act, sec. 188,
    Cahill’s St. ch. 98, If 210, providing that a check does not operate as an assignment applies only where the bank refuses to cash a check presented to it for payment and is inapplicable where the bank has actually cashed the check on the unauthorized indorsement of one not authorized to receive the proceeds.
    5. Banking — liability of bank to payee where check cashed on unauthorised indorsement. A bank cashing a check on the unauthorized indorsement of an agent of the payee, who absconded with the proceeds, is liable to the payee in assumpsit or trover for the amount of the check, and the fact that a check' does not constitute a pro tanto assignment giving the payee an interest in the depositor’s account is immaterial.
    6. Banking — rights of depositor as to directing payment of check. While a bank may pay money on the verbal order of the depositor, where the depositor had given a check to an agent of the payee, who was without authority to indorse it, the depositor could not thereafter authorize the bank to pay the proceeds of the check to the agent on the latter’s unauthorized indorsement.

      Appeal by plaintiff from the Circuit Court of Kane county; the Hon. Mazzini Slussee, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded.
    Opinion filed October 10, 1925.
    Bennison F. Bartel, for appellant.
    Lawrence M. McNerney, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

The appellant, B. H. James, doing business as B. II. James & Company, instituted this suit in assumpsit against appellee. The declaration consisted of the common counts and three special counts. Appellee filed its plea of the general issue and, by agreement of parties, a jury was waived and the cause was heard by the court. A judgment was rendered in favor of appellee in bar of the action.

The plaintiff was engaged in the sale of Parker trucks. His place of business was in Chicago and he had in his employ a salesman by the name of F. L. Pruse. On April 26, 1922, Pruse obtained an order from the Elgin Storage & Transfer Company, of Elgin, Illinois, for a Parker truck at the price of $4,283, but took in exchange, and as a part of the purchase price, a Dodge sedan, an Overland sedan and a Dodge truck, at an allowance of $2,283, leaving a balance of $2,000 due the plaintiff. The order was in writing and was subject to the approval of the plaintiff. It was approved in due time and shortly thereafter plaintiff turned over the new truck to the said Pruse, together with invoices, for delivery to the Elgin Storage & Transfer Company. Pruse was instructed to collect the balance of $2,000 due on the purchase price. He drove the truck to his home at Park Bidge on the evening of May 26, and the next morning drove it to Elgin where he delivered it with the invoices to the Elgin Storage & Transfer Company. The Transfer Company after deducting $375 which it claimed as an allowance on a speed-wagon body, made out its check for $1,625, payable to the order of B. H. James & Company, and delivered it to Pruse. Thereupon Pruse went to the Union National Bank in Elgin, upon which the check was drawn, and presented it for payment. The cashier, A. L. Metzel, being unacquainted with Pruse, called by phone H. C. Muntz, the treasurer of the Transfer Company, and said: “There is a man standing here who wants $1625. Am I to give it to him? The check reads James & Co.” Muntz replied: “It is all right. He delivered a truck to us and is supposed to have the cash. It will be all right to cash it.” At the suggestion of the cashier the check was then indorsed on the back “B. H. James & Co.” and immediately underneath was written the name “F. L. Pruse.” The bank cashed the check. Pruse took the money and absconded. It appears that the cashier of the bank had never seen Pruse before and that he had no acquaintanceship with James. On June 8, 1922, the plaintiff, through his attorney, made a demand on the defendant for the payment of the check, but such payment was refused.

The trial court found as a proposition of fact that Pruse had authority to indorse the check and receive payment thereof. The court also held and refused certain propositions of law which were submitted by respective counsel. In view of the conclusion we have reached with respect to the law applicable to the facts in this case it is unnecessary to set out in full those propositions.

While it is true that the order given by the Transfer Company to James called for a cash payment of the balance due, this provision was one that could be waived. Pruse had the right to receive payment from the Transfer Company. He delivered the truck and accepted the Transfer Company’s check payable to B. H. James & Co. for the balance due. No objection was raised to the payment being made in this manner. The only parties concerned in it were the Transfer Company and the plaintiff. They were the only parties to the contract and no one else had any interest in it or rights under it. The authority of Prase to collect the amount due did not include authority to indorse the check received for the amount due. (Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 Ill. 151.) Persons dealing with an assumed agent are bound, at their peril, not only to ascertain the fact of the agency, but the extent of the agent’s authority. (Merchants’ Nat. Bank v. Nichols S Shepard Co., 223 Ill. 41.) There is no evidence in the case even tending to support the finding of the trial court that Prase was authorized to indorse and cash the check and the trial court was in error in finding he had such authority.

The difficult question in this case is: Can a bank upon which a check has been drawn be held liable by the payee thereof because of the payment of such check upon an unauthorized indorsement? Prior to the passage of the Negotiable Instruments Act by the legislatures of the several States there was much contrariety of view upon this question. The courts of last resort in a number of the States held that a bank was not liable to the drawee under such circumstances and the courts of last resort in many other States held that there was a liability against the bank.

It is a matter of common knowledge that, as a result of great effort on the part of the legal profession ánd the commercial interests of the country, all of the States, with perhaps a single exception, have now enacted the so-called Uniform Negotiable Instruments Act. The purpose of this legislation was to obtain uniformity of laws, rules and decisions in matters pertinent to negotiable instruments. Considerable progress has been made in this direction, but the fact cannot go by unobserved that the courts of the several States have not been uniform in their holdings upon this question. It is first contended that the bank is not liable in this case because the check was not certified or accepted in writing. Section 188 of the Negotiable Instruments Act [Cahill’s St. eh. 98, [f 210] is as follows: “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.” In some States it has been held that under this section the lawful owner of a check can maintain no action against a bank for the nonpayment of a check unless and until the check has been certified or accepted by the bank in writing.

The Ohio Supreme Court in Elyria Savings & Banking Co. v. Walker Bin Co., 92 Ohio St. 406, a case where the bank had paid a check on a forged indorsement, said:

“We are of the opinion that when the legislature enacted section 8294 (being the same as section 188 of the Illinois Statute on Negotiable Instruments) it intended to cover the subject of the liability of a bank to the holder of a check. It prescribed when and when only there is a liability to the holder. In the absence of the conditions therein prescribed, no right of action exists in favor of the holder. In the present case, the checks in question not having been certified or accepted within the meaning of section 8294, there was no right of action on the part of the defendant in error against the banking company.”

The Supreme Court of Arkansas has held to the same effect in Simms v. Americmi Nat. Bank, 98 Ark. 1. So also has the Supreme Court of Pennsylvania in Tibby Bros. Glass Co. v. Farmers’ & Mechanics’ Bank, 220 Pa. 1. But the rule in those jurisdictions does not appear to be in harmony with the views expressed by the Supreme Court of this State. In State Bank of Chicago v. Mid-City Trust & Savings Bank, 295 Ill. 599, the suit was between two banks and not between the true holder of a check and the drawee bank. A depositor drew his check upon the State Bank payable to James G-len. The check was presented to the hank by some unauthorized person. The bank stamped it: “Accepted for $2060, August 12, 1916, payable through Chicago clearing house when properly indorsed. ’ ’ The check was afterwards deposited in the Mid-City Bank by a man by the name of James Grlen, but not the same James Grlen who was the payee named in the check. It was paid through the clearing house and in due time was charged by the State Bank to the account of the drawer. While the opinion of the Supreme Court does not deal with the right of a holder of a check, it does discuss the subject of unauthorized indorsements and on page 602 of the opinion the court said:

“The parties to a check are the drawer, the payee and the drawee, and the liability of each is fixed by law. The acceptance or certification of a check by the drawee after it is issued changes the rights of the parties by releasing the drawer, the drawee becoming alone liable for the payment. Therefore, an acceptance stamped on the face of a check, as ifi this case, without the consent or the knowledge of the drawer or the payee was of no effect.”

The question of the liability of a bank to the true holder of a check for payment upon a forged or unauthorized indorsement is conclusively settled in this State in Independent Oil Men’s Ass’n v. Fort Dearborn Nat. Bank, 311 Ill. 278. Checks belonging to the association and payable to its order were cáshed by the bank upon the unauthorized indorsement of J. A. Specht. The facts in the case are very much like those in the case at bar. The bank interposed the provisions of said section 188 of the Negotiable Instruments Act as a defense and the Supreme Court said (p. 280):

“We agree that under the Negotiable Instruments Act the payee of an unaccepted check, who holds it, cannot sue the drawee, * * *. Defendant in error does not contend that it has a right to base its action on the check or on any contractual relation arising out of the check as such. It seeks to recover the value of its property which came into the hands of plaintiff in error and for which plaintiff in error refuses to account. Defendant in error might have brought an action of trover against plaintiff in error for unlawful conversion of its property, but it chose to waive the tort and to bring its action in assumpsit for money had and obtained for its use. That it had the right to do this is well established by the great weight of authority.”

In the instant case the bank assumed the sole responsibility of treating Pruse as the agent of the plaintiff with authority to indorse his name upon the check and collect the proceeds. It is true that it made some inquiry of the maker of the check, but the information it received related only to the bona fides of the check itself. It shed no light upon the authority of Pruse to indorse the check. It is evident that the bank sought the wrong party for information. It should have inquired of the payee to find out if Pruse was authorized to indorse the check. In failing to do this it committed a wrong for which it must answer in damages. It seems to us that section 188 of the Negotiable Instruments Act has no application to the facts in this case. That section is intended to apply to cases where a bank has refused to pay a check and not to cases where the bank has in fact cashed it. In this case, the bank did not refuse to cash the check, but on the contrary it cashed it and paid the proceeds to one who had no right to receive them, wholly ignoring the payee named in the check. Where a drawee bank refuses to pay a check which has not been certified or accepted, the holder’s action is against the maker, but where the bank pays it and pays it without authority the bank is liable to the holder. The plaintiff in this case is not suing on the check. The check was taken out of his possession by the bank and now the plaintiff seeks to recover the value of his property which came into the hands of the bank and for which the bank refuses to account.

Appellee also contends that inasmuch as the giving of a check does not constitute an assignment, pro tanto, of the depositor’s account in the bank, the payee has no interest in such account. This is undoubtedly so, but it must be remembered that the plaintiff is not endeavoring to compel the bank to pay the check out of the funds in the account of the Transfer Company. This suit was brought directly against the bank and if judgment is obtained it will be paid out of the funds of the bank. That the check constituted no assignment of the depositor’s funds affords no reason for holding that a bank may negligently pay the proceeds of a check to someone not entitled to receive them. The indorsement on the check was made at the direction of the bank without any effort to ascertain the extent of the agent’s authority. The bank might as well have cashed it without any indorsement at all as to have cashed it without knowing what authority Pruse had in the premises. The indorsement was unauthorized, but it was not a forgery. And while the bank cannot be sued on the check, because of the provisions of section 188 of the Negotiable Instruments Act, nevertheless, the payee may treat the conduct of the bank as a tort and sue in trover for conversion for the value of the check or waive the tort and sue in assumpsit. A drawee bank cannot rightfully cash a check payable “to order” without the indorsement of the payee.

It is true that a bank may pay out a depositor’s money even on a verbal order of the depositor, but such fact has no. bearing on this case. The Transfer Company had given its check to plaintiff. The check was not revoked. It was the property of plaintiff and while the maker might stop payment of it altogether, he had no right, as against plaintiff, to direct that it be paid to someone other than the payee or his indorsee. The check belonged to the payee and "if the bank had refused to pay it when presented, then the payee could have maintained an action against-the maker. But when the bank paid the check on an unauthorized indorsement it destroyed all right of action the plaintiff might have had against the maker in case of nonpayment and became liable to the true holder for conversion.

The case of Louisville & N. R. Co. v. Citizens’ & Peoples’ Nat. Bank of Pensacolo, 74 Fla. 385, presents a state of facts very much like those involved in this ease and the provisions of the Negotiable Instruments Act above mentioned were construed in the same way as they are here construed.

The findings of fact and the holdings on the propositions of law by the trial court are not in harmony with the views we have expressed and for that reason this case is reversed and remanded.

Beversed and remanded.


author: Mr. Justice Barry

text:
    The People of the State of Illinois, Defendant in Error, v. Edward Gleason and George Furrey, Plaintiffs in Error.
    1. Criminal procedure — comment on failure of defendant to testify. Prosecuting attorney in argument may call attention to fact that testimony of witnesses for the prosecution has not been contradicted, even though the defendant, who is the only person who could contradict such testimony, has not testified.
    2. Criminal procedure — general verdict under indictment containing several counts. Where jury found defendants guilty of keeping a common gaming house, in manner and form as charged in the indictment, without specifying any count or counts, defendants were found guilty of but one offense and could only be punished for such.
    3. Betting and gaming — maximum fine. The maximum fine for the first offense of keeping a gaming house is $500.
    Error by defendants to the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed in part and reversed and remanded with directions in part.
    Opinion filed April 15, 1925.
    Faulkner & Moore, for plaintiffs in error.
    Jesse R. Brown, State’s Attorney, for defendant in error.
   Mr. Justice Barry

delivered the opinion of the court.

Plaintiffs in error were convicted of keeping a common gaming house. The court sentenced Gleason to pay a fine of $200 and Furrey $2,000. We find no evidence • in the record even tending to prove that plaintiff in error Gleason was guilty of the offense for which he was convicted and for that reason the judgment against him must be reversed.

Plaintiffs did not testify. In argument the State’s Attorney said: “There is no scintilla of evidence contradicting the State’s testimony that No-Coat George rented this property. And there is further no contradiction, no evidence denying the evidence introduced by the State that these various forms of gambling were going on in the very room, the very part of the building that No-Coat George had rented from the witness Bricher. ” It is argued that this was a comment on the failure of the defendants to testify.

The prosecuting attorney in his argument to the jury may call their attention to the fact that the testimony of witnesses for the prosecution has not been contradicted, even though the defendant, who is the only person who could contradict such testimony, has not testified. People v. Donahoe, 279 Ill. 411; People v. Paisley, 299 Ill. 576-586. The use of stronger language was held not reversible error in People v. Donaldson, 255 Ill. 19-31. The court did not err in its rulings on the admission and exclusion of evidence.

Several counts of the indictment charged plaintiffs in error with keeping a gaming house. Bach of them averred that the house was so kept on the same day and at the same place. The evidence referred to but one place and is ample to support the charge against plaintiff in error Furrey. The jury found them guilty of keeping a common gaming house in manner and form as charged in the indictment without specifying any count or counts. They were clearly found guilty of but one offense. The statute provides that for the first offense a defendant shall be fined not less than $100, and for a second offense not less than $500 and confined in the county jail for not less than six months, and for a third offense not less than $500 and imprisonment in the penitentiary not less than two years nor more than five years. [Cahill’s St. eh. 38, 305.]

The Supreme Court has clearly indicated that the maximum fine for the first offense is $500. Hankins v. People, 106 Ill. 628. The court erred in sentencing plaintiff in error Furrey to pay a fine of $2,000 and costs. For the reasons aforesaid the judgment as to Gleason is reversed and the judgment as to Furrey is reversed and the cause remanded with directions to enter a proper judgment and a fine of not less than $100 nor more that $500 and costs. People v. Elliott, 272 Ill. 592-604; People v. Brown, 312 Ill. 63-66.

Reversed as to Gleason and reversed and remanded with directions as to Furrey.


text:
    William Edwards, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    1. Railroads — cattle guards as to animals running at large. The fact that animals were running at large in violation of law is no defense to an action against a railroad for injury to such animals based on violation of statute requiring cattle guards.
    2. Railroads — injury to cattle, contributory negligence. In action against railroad for injury to cattle through failure of defendant to maintain cattle guards, held that trial court was warranted in refusing to find that plaintiff was guilty of contributory negligence in not securely fastening gate to pasture in the dark.
    3. Appeal and error — allowance of attorney’s fee. Where railroad appeals from judgment against it for injury to cattle through its failure to maintain cattle guards, a motion of plaintiff’s counsel for allowance of a reasonable attorney’s fees for services rendered on appeal will be denied, his remedy in that regard being a new suit.
    Appeal by defendant from the Circuit Court of Bond county; the Hon. George Á. Cbow, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed April 15, 1925.
    C. E. Davidson, for appellant.
    Albert, Webb & Albert, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.

This case was tried before the court without a jury upon a stipulation of facts. Appellant admitted a failure on its part to construct cattle guards at a place where they should have been constructed and that appellee’s cattle went upon the railroad track at that place and were killed by one of appellant’s trains. It is contended that appellee was guilty of contributory negligence which should bar a recovery. Three carloads of cattle were shipped to appellee from Omaha, Nebraska, and were carried by appellant to Reno, Illinois. They reached their destination on the evening of April 4, 1924, at about 7:30 p. m., and appellee was notified of their arrival. He and his assistants reached Reno after dark and unloaded one of the cars into a pen provided by appellant. The pen would hold but one load so some of the men drove the first load of cattle to a pasture. The gate of the pen was then closed and fastened by putting the iron hook into the staple but the man did not notice, in the dark that there was a slide board to the gate and failed to fasten the gate with that board. The second car of cattle was then unloaded into the pen and the men proceeded to place the third car in place for unloading. When they returned to the pen the cattle had escaped therefrom and were not in sight. They closed the gate, unloaded the third car and took those cattle to the pasture. Having done so they returned and searched most of the night for the missing cattle but failed to find them. In the morning it was found that twelve of them had been killed and four injured by appellant’s train.

It has been held that the statute was intended to require cattle guards and fences to prevent cattle at large in the highway from getting upon the right of way, regardless of the question as to how said cattle came to be in the highway. [Cahill’s St. ch. 114, 78.] Brandt v. Joliet & E. Traction Co., 213 Ill. App. 512; Illinois Cent. R. Co. v. Davidson, 225 Ill. 618. The law is well settled that the fact that animals Were running at large in violation of law is no defense to an action for injury to such animals based on a violation of the statute in question. Illinois Cent. R. Co. v. Davidson, 225 Ill. 618-624. Where the trial court refused to instruct the jury as to contributory negligence this court said: “The only act of appellee, claimed by appellant to have been negligent, is that of pasturing his cow on land joining the right of way of appellant, knowing there was no sufficient fence to keep her from straying on the tracks. We cannot concur in that view. Appellant should have had its road fenced and appellee had the right to have his cow in his pasture, and the mere fact that he put his cow in the pasture and left her there, when there was no fence to keep her off the railroad tracks, is not evidence of contributory negligence, causing death of the cow.” Hartzell v. Alton, G. & St. L. Traction Co., 183 Ill. App. 641. That case was affirmed in 263 Ill. 205.

In the case at bar there is no evidence that appellee knew that appellant had not constructed cattle guards at the place in question. We cannot say that the court erred in refusing to hold that appellee was guilty of contributory negligence.

The court assessed appellee’s damages in accordance with the stipulation and there is no just cause for complaint in that regard. Appellee filed a motion in this court requesting that the trial court be directed to hear evidence and allow him a reasonable attorney’s fee for services rendered on this appeal. The motion is denied. His remedy, in that regard, is by a new suit, as we held in Finucane v. Illinois Cent. R. Co., 169 Ill. App. 175.

The judgment is supported by the law and the evidence.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Rudolph H. Kolb, Plaintiff in Error.
    1. Criminal procedure — affirmative showing of admonishment as to consequences of plea of guilty. Record must affirmatively show that one pleading guilty was admonished as to the consequences of such plea.
    2.. Criminal law — record of examination of witnesses on plea of guilty. Where one pleads guilty, record need not show that witnesses were examined in mitigation or aggravation of the offense.
    3. Criminal law — judgment to fix place of confinement. Place of confinement must be definitely fixed by court in a judgment of conviction, and should not be in the alternative in the discretion of the sheriff.
    4. Criminal law — preservation of sufficiency of information for review. Even if reviewing court can decide question whether information charged a criminal offense, to which plaintiff in error pleaded guilty, it cannot do so in absence of motion to quash or motion in arrest of judgment.
    5. Criminal law — preservation of questions for review. Reviewing court on writ of error is not at liberty to pass upon a question that was not raised in the trial court.
    Error by defendant to the County Court of Jefferson county; the Hon. J. R. Pierct, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded with directions.
    Opinion filed April 15, 1925.
    C. A. Karoh, for plaintiff in error.

      Job Frank Allen, State’s Attorney, for defendant in error.
   Mr. Justice Barry

delivered the opinion of the court.

The record fails to show that plaintiff was admonished as to the consequences of entering- a plea of guilty. It is well settled that an affirmative showing is essential and the absence thereof is reversible error as will be seen from our decision in People v. Benner, 224 Ill. App. 515, and cases therein cited. It need not appear that witnesses were examined in mitigation or aggravation of the offense. People v. Pennington, 267 Ill. 45. The place of confinement must be definitely fixed by the court and should not be in the alternative in the discretion of the sheriff.

It is argued that the information does not charge a criminal offense. If the determination of that question is within the jurisdiction of this court it has not been preserved. There was no motion to quash and no motion in arrest of judgment. People v. Maffei, 315 Ill. 226. We are not at liberty to pass upon a question that was not raised in the trial court. The judgment is reversed and the cause remanded with directions to set aside the plea of guilty. Plaintiff may then move to quash the information if he so desires.

Reversed and remanded with directions.


author: Mr. Presiding Justice Higbee

text:
    The People of the State of Illinois, for use of Alton Banking & Trust Company, Guardian of John Irving Gerdes, Defendant in Error, v. National Surety Company, Plaintiff in Error.

      Suretyship — judgment against surety alone. Under Rev. St. ch. 103, sec. 13, Cahill’s St. ch. 103, f 13, while plaintiff could bring suit against surety of guardian alone, or, after having brought suit against both guardian and surety, he might have dismissed the suit as to the principal and secured judgment against surety alone, he could not bring suit against both, and not having dismissed the principal out of the suit be entitled to entry of judgment against surety alone.
    Error by defendant to the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    Hiles, Newell & Brown, for plaintiff in error.
    D. H. Mudge and J. J. Brenholt, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

On February 28,1919, Katheryn Gerdes gave a bond in the county court of Madison county in the sum of $10,000 as guardian for her minor son, John Irving Gerdes, with Kate Phelan, Annie Phelan and E. H. Dorsey, as sureties. On February 25, 1920, she gave another bond as such guardian in the sum of $20,000 with plaintiff in error, National Surety Company, as surety.

This suit as originally started was against Katheryn Gerdes and those persons who signed the first bond as her sureties and plaintiff in error her surety on the second bond. It appears that demurrers were filed by the defendants to the declaration which were overruled. The parties to the first bond filed a second demurrer which was also overruled. They elected to abide their demurrer and judgment was entered against them in the sum of $10,000. Later this judgment, over objection of plaintiff in error, was set aside. The declaration was then amended so as to declare only against Katheryn Gerdes and plaintiff in error upon the second bond and the sureties on the first bond were dismissed out of the case. Katheryn Gerdes filed no demurrer or pleading of any kind to this amended declaration. Plaintiff in error filed a special plea of nil debet to which a demurrer was sustained and no error is urged concerning that action of the court. It also filed a plea alleging that Katheryn Gerdes as such guardian did not dispose of any property belonging to her said ward without an order of the probate court; that the property of her ward consisted of bonds registered in her name as such guardian, and that no legal assignment thereof had ever been made, but that the same still stood in the name of said guardian; that Katheryn Gerdes was not permitted to show this to the probate court, and that she had never defaulted as such guardian, but had been wrongfully discharged and that the terms of said supposed writing obligatory had never been broken. Plaintiff in error filed a further special plea setting up as a defense that the bond signed by it was given simply as an additional bond, and that judgment had been theretofore taken against Katheryn Gerdes and the sureties of her first bond which had been released and set aside on motion of defendant in error. The court sustained demurrers to these two special pleas. Plaintiff in error elected to abide its demurrers, and the cause was then heard before the court without a jury. Plaintiff in error by its attorney took part in the hearing in the way of cross-examining witnesses and also by introducing ■ some documentary proof. After the hearing the court entered judgment against plaintiff in error, but did-not enter any judgment for or against Katheryn Gerdes who had been served with process but had filed no pleading, and had not been defaulted.

It is earnestly argued by plaintiff in error that it was error for the court to enter judgment against it without disposing of the case against Katheryn Gerdes. On the other hand defendant in error contends that under section 13 of chapter 103 of the Revised Statutes [Cahill’s St. ch. 103, fí 13], which relates to suits on official bonds, it was proper for the trial court to enter judgment either against Katheryn Gerdes or plaintiff in error or both.

It is true that under this statute a suit may be instituted and prosecuted to final judgment against a guardian “and any or all of the sureties, or against one or more of them, jointly and severally.” No doubt under the statute defendant in error could have instituted this suit against plaintiff in error and prosecuted it to final judgment without taking any action against Katheryn Gerdes, the principal. However, the suit after the amendment of the declaration and dismissal as to the sureties on the first bond proceeded against plaintiff in error and Katheryn Gerdes and the latter was never defaulted or dismissed out of the case and the suit as against her, so far as the record disclosed, was never determined but may still be pending. In a suit on a collector’s bond where a judgment was entered against certain defendants who had elected to abide their demurrers, but in which no judgment was taken against or in favor of defendants not demurring, the Appellate Court of the Second District held that an appeal taken in the absence of any judgment for or against the defendants not demurring was premature. (People v. Jamison, 141 Ill. App. 406.)

Had Katheryn Gerdes been dismissed out of the suit, then under the case of Kaspar v. People, 230 Ill. 342, relied on by defendant in error, judgment could have been properly rendered against plaintiff in error. But the opinion in that case does not go to the extent of holding that judgment can be entered against one surety on a guardian’s bond with the other defendants still remaining in the suit and the cause undisposed of as against them, and in that case all the other parties except the one surety against whom judgment was taken were dismissed out of the suit.

Under our statute mailing obligations both joint and several the party instituting the suit may bring the same against one or all of the signers, but having made his choice and brought the suit against all, and they all remain parties throughout the action, he cannot secure judgment against one alone. (Teich v. Ayer, 213 Ill. App. 41.)

So in this case defendant in error might have brought this suit against plaintiff in error alone or after having brought the suit against both plaintiff in error and its principal he might have dismissed the suit as to the principal and secured judgment against plaintiff in error alone. But having brought the suit against both and not having dismissed the principal out of the suit it was error to enter judgment against plaintiff in error alone. While in our opinion the merits of this case are with the defendant in error and the court properly sustained the demurrers to the special pleas, yet we are constrained to hold that for the error above pointed out the judgment must be reversed and the cause remanded for further proceedings consistent with the views herein expressed.

jReversed and remanded.


text:
    Egyptian Seed Growers’ Exchange, Appellant, v. D. G. Hollinger, Appellee.
    1. Contracts — construction giving effect of clauses. In construing contracts courts will, if possible, give such construction that each clause shall have some effect and perform some office.
    2. Associations — termination of contract. Contract between seed growers’ exchange and member to “continue to be in full force and effect until” a certain date and “remain in full force and effect continually thereafter, unless cancelled on written notice,” etc., held not subject to termination on notice until after the date specified.
    3. Contracts — construction against party preparing. Where a contract is entered into upon a form prepared and generally used by one of the parties, and doubt arises as to its true meaning, it should be construed most strongly against the party preparing it, but this does not warrant changing the evident meaning of plain words.
    Appeal by plaintiff from the Circuit Court of Clay county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded.
    Opinion filed August 5, 1925.
    Creighton & Thomas, for appellant.
    J. H. Smith and B. O’Neill, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

The Egyptian Seed Growers’ Exchange is a non-stock and nonprofit association of redtop growers incorporated under the laws of this State for the purpose of storing, grading and marketing the redtop seed produced by its members. It entered into a contract with each of its members providing, in substance, that the grower should deliver all the redtop seed produced by him for market during the life of the contract to appellant, and that appellant should store, test, clean, grade and sell it for the grower. It further provided that the grower should pay to appellant as liquidated damages five cents per pound for all seed sold by or for him to any person other than appellant. Clause 10’ of the contract reads as follows:

‘' This contract shall be in full force and effect from August 1, 1922, and shall continue to be in full force and effect until the 1st day of July, 1927, and remain in full force and effect continually thereafter, unless cancelled on written notice by either of the parties, to the other, between the 15th and 30th days of May, inclusive, of any year; which notice shall become effective on the first day of the following July. ’ ’

Appellee, D. J. Hollinger, signed this contract on ■ August 17,1922. Appellant filed its declaration in assumpsit against appellee to the September term, 1924, of the circuit court of Clay county. The declaration alleged the signing of the contract by appellee and set out the contract in full. It further alleged that appellee delivered to appellant his redtop seed for 1922, but that in the year 1923 appellee produced 300 pounds of seed for market .and should have delivered the same to appellant, but did not, but on the contrary delivered and sold the same to another party, in violation of his agreement, whereby he became liable to pay appellant five cents per pound for the seed so sold to the other party.

After a demurrer of appellee to the declaration had been overruled, he filed a plea of nonassumpsit with notice of special defense and a special plea stating “that on the 17th day of May, A. D. 1923, he delivered to the plaintiff a written notice, cancelling said contract, effective on July 1st, 1923, as by the terms and conditions of said contract he might lawfully do, by means whereof the said contract became and was can-celled, and null and void, as against said defendant from and after July 1st, 1923.” To this special plea appellant demurred and the court overruled its demurrer. Appellant elected to abide its demurrer and appellee then withdrew his plea of the general issue and notice of special defense and the court thereupon rendered judgment in favor of appellee and against appellant for the costs of suit, from which this appeal has been perfected.

The sole question in this case is the construction of clause 10 of the contract. It is contended by appellee that under said clause the contract could be "terminated by him on the first day of July of any year after the execution thereof, by giving written notice to appellant between the 15th and 30th days of May of that year.

Appellant, upon the other hand, contends that by the terms of clause 10 the contract could not be terminated by such notice until after the first day of July, 1927; that the contract was to run until July 1, 1927, in any event and would continue in force after that date unless canceled by written notice given between the 15th and 30th days of May. This question is squarely raised by the pleadings in this case, and is the only question presented by the record to this court.

If appellee’s contention is correct, that is, if the contract could be terminated by notice between the 15th and 30th days of May of any year, then the provision that the contract “shall continue to be in full force and effect until the first day of July, 1927” must be rejected as surplusage. It can perform no office unless it be construed to mean that the contract was to be irrevocable until that date, and was to continue in full force thereafter unless terminated by notice. If the contract could be terminated as contended by appellee prior to that date this language is meaningless and of no effect. In construing contracts courts will, if possible, give such construction that each clause shall have some effect and perform some office. (Hayes v. O’Brien, 149 Ill. 403.) “It cannot be presumed that the parties used words or terms in the conveyance without intending some meaning should be given them, or without an intent that the effect legitimately resulting from their use should follow; hence, if it can be done consistently with the rules of law, that construction will be adopted which will give effect to the instrument, and to each word and term employed, rejecting none as meaningless or repugnant.” (Lehndorf v. Cope, 122 Ill. 317.) The same doctrine is laid down in Mittel v. Karl, 133 Ill. 65, and 6 Ruling Case Law, pp. 837, 838. A construction which requires the court to reject an entire clause of the contract is not to be admitted except from unavoidable necessity. (City of Alton v. Illinois Transp. Co., 12 Ill. 38.) A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions. (Hayes v. O’Brien, supra, and 6 Ruling Case Law, p. 838.)

Under these authorities, the court must, if possible, give some meaning and effect to the words in clause 10 that the contract “shall continue to be in full force and effect until the first day of July, 1927.” If they are given effect they must be construed as providing that the contract could not be terminated by notice between the 15th and 30th days of May until after the first day of July, 1927, and hence the allegation in appellee’s special plea that he gave such notice on the 17th day of May, 1923, did not state a defense to the declaration and the demurrers thereto should have been sustained.

It is true, as contended by appellee, that where a contract is entered into upon a form prepared and generally used by one of the parties and doubt arises as to its true meaning, it should be construed most strongly against the party preparing it, and it would appear from the pleadings that this contract was one of a series similar in terms used by appellant in its dealing with individual seed growers. Yet that con- • tention would not avail as a defense against the construction which the evident meaning of the plain words of this contract, as above indicated, demands.

For the reason that the trial court erred in overruling the demurrer to appellee’s special plea the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Ephraim Sutton, Appellee, v. Margaret Penn, Appellant.
    1. Examination of witnesses — leading question. A question, “Did you know that as you went along the hallway,” following testimony of witness that floor was wet with oil, was not leading.
    2. Examination of witnesses — leading questions. Question, “Now there where you fell, did you see the condition of the floor before you fell,” was not leading.
    3. Examination of witnesses — leading questions. The mere fact that questions can be answered “Yes” or “No” does not make them leading.
    4. Examination of witnesses — unresponsive answers. Portion of witness’ answer stating that he was not able to see the condition of the floor, in answer to question, “Now there where you fell, did you see the condition of the floor before you fell,” should have been stricken as not responsive.
    5. Appeal and error — harmless error. Unresponsive answer of witness to question held not reversible error.
    6. Evidence — opinion of witness. Court did not err in refusing to permit witness to answer question as to ability of another person coming toward her in a hallway to see oil on the floor as he came, question calling for opinion of witness.
    7. Negligence — mailman as invitee on premises. A letter carrier going to second floor of building, rooms of which were leased as offices, held an invitee and not a mere licensee.
    8. Negligence — questions for jury. In action by mailman against owner of building for injuries through fall on oily floor, negligence held question of fact for jury.
    Appeal by defendant from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    P. K. Johnson, for appellant.
    Farmer & Klingel, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an action brought by Ephraim Sutton, appellee, against Margaret Penn, appellant, to recover damages for personal injuries. It appears from the proof that on and prior to April 5,1922, appellant was the owner of a three-story business building known as the Penn Building located at the northeast comer of the public square in Belleville. The first floor is used for store purposes; on the second floor are office rooms leased by appellant to various parties. The long way of this building extends north and south. On the second floor a hallway runs along the entire east side of the building and the offices are to the west of the hallway. A stairway leading to the second floor is at the north end of the building.

Before 8 o’clock on the morning in question, appellee, who is a mail carrier, went to the second floor of the building to deliver the mail for appellant’s tenants. The janitress had washed the floor and was at that time engaged in oiling it. Appellee slipped and fell, sustaining injuries. It is his contention that he slipped on the oil and that appellant, through her janitress, was guilty of negligence in applying this oil, which caused his injury. He secured a verdict and judgment for $1,250. It is first contended by appellant that the court erred in admitting improper evidence in behalf of appellee. The first evidence admitted for appellee complained of is that after he had testified the floor was wet with oil he was asked, “Did you know that as you went along the hallway,” and over appellant’s objection was allowed to answer, “I did not.” He was also asked, “Now there where you fell, did you see the condition of the floor before you fell,” and he replied, “No, I could not.” It is urged that the questions objected to were leading. We do not think these questions subject to the criticism made of them. The mere fact that they could be answered “Tes” or “No” did not make them leading. Schlesinger v. Rogers, 80 Ill. App. 420. That portion of appellee’s answer to the second question, which stated that he was not able to see the condition of the floor, should have been stricken because it was not a reply to the question asked, but we are of the opinion that the failure of the court to sustain appellant’s motion to strike it did not in itself constitute reversible error.

It is also objected that the court erred in not permitting the janitress of appellant to answer a question as to the ability of a person coming toward her in the hallway to see the oil on the floor as he came. The objection to this question was properly sustained, since it only called for her opinion as to what another person than herself might have been able to see.

It is further claimed that the court erred in not giving a peremptory instruction for appellant, for two reasons: (1) Appellant did not owe any duty to appellee save that owed to a licensee; and (2) that no negligence on the part of appellant was shown by the evidence.

To sustain her first position appellant cites those decisions of" this State holding that a fireman or policeman who enters a building is only a licensee and not an invitee. It seems to us, however, that there is a distinction between a policeman or fireman and a mail carrier in this respect. Appellant was leasing the offices on the second floor and she must have known that her tenants would have their mail delivered and that such would be a daily occurrence. Therefore by leasing these rooms for office purposes as a matter of common knowledge she invited, in the sense that term is used in legal phraseology, appellee to come upon her premises in the discharge of his duties. „ If so he cannot then be treated as a mere licensee. This doctrine is recognized and laid down in 9 Ruling Case Law, p. 1256. The rule is there stated in the following language: “If the owner of a building lets different parts of it to tenants, but there is an open hallway in which is an elevator and also letter boxes for the accommodation of the tenants, and the hallway does not appear to have been leased but is always open, a letter carrier who enters the hallway to put a letter for one of the tenants in a letter box kept there for that purpose may be deemed to have entered the premises by the invitation or authority of the owner, and hence may recover of him if there injured through his negligence.” The conditions stated in that rule are practically the same as in this case except that instead of there being an elevator in the hallway in question there was a stairway. Under that authority, which appears to us to be logical, appellant would be liable to appellee, if his injuries resulted through her negligence.

The condition that no negligence was shown on the part of appellant was a question of fact to be determined by the jury and in our opinion there is sufficient evidence to sustain the jury’s finding in that respect. There being no error in the record and as we cannot hold that the verdict and judgment are contrary to the evidence the judgment must be affirmed.

Affirmed.


text:
    State of Illinois, Defendant in Error, v. Ben Mayhue, Plaintiff in Error.
    1. Criminal procedure — sufficiency of abstract to question indictment. If sufficiency of an indictment or information is called in question, it should he set out in the abstract on appeal.
    2. Criminal procedure — preservation of ruling on motion for continuance. In order to review decision of court on motion for continuance, the motion, the grounds upon which it was based, the decision of the court thereon and an exception thereto must be made to appear by a bill of exceptions.
    3. Criminal procedure — sufficiency of abstract to question ruling as motion for continuance. There can be no review of decision on motion for continuance unless the motion, grounds, decision and exception are shown in the abstract.
    4. Criminal procedure — when remarles of counsel to be shown in abstract. When remarks of court and counsel are complained of, they must be shown in the abstract.
    5. Criminal procedure — bill of exceptions necessary to preserve instructions. Instructions become a part of the record only when preserved in the bill of exceptions.
    6. Criminal procedure — necessity that abstract set out instructions. Error cannot be predicated upon the rulings of the court in the giving or refusal of instructions unless all instructions are set out in the abstract.
    7. Criminal procedure — necessity for incorporating motion for new trial in bill of exceptions. A motion for new trial does not become a part of the record unless it is incorporated in the bill of exceptions, and it is not sufficient that the clerk in writing up the judgment recites the denial of a motion for new trial and an exception thereto.
    8. Criminal procedure — sufficiency of abstract on appeal. The abstract must be sufficient to present every error relied upon, as the reviewing court will not search the record to find errors not disclosed by the abstract.
    9. Criminal procedure — what is excessive punishment. A punishment authorized by law cannot be said to be disproportionate to the nature of the offense unless the law itself is subject to that objection.
    Error by defendant to the County Court of Hamilton county; the Hon. J. M. Lee, Judge, presiding. Heard in this court at the March term, 1925.
    Affirmed.
    Opinion filed August 5, 1925.
    G. W. Hogan, Jr., and J. H. Lane, for plaintiff in error.
    W. W. Daily, State’s Attorney, for defendant in error.
   Mr. Justice Barry

delivered the opinion of the court.

Plaintiff in error contends that the indictment is wholly insufficient to charge a criminal offense; that the court erred in overruling his motion for a continuance ; that improper instructions were given on behalf of the people; that the State’s Attorney made improper remarks in his argument to the jury; that the verdict is contrary to the evidence; that the punishment inflicted by the court is excessive.-

The abstract of the record gives us no information as to these several matters except as to the evidence. It simply says: “Copy of indictment.” “Instructions given on the part of the people.” “Instructions given on the part of the defendant.” “Record of the case made during the argument of the case.” It shows that the court rendered judgment on the verdict but there is no showing as to what punishment was inflicted. What purports to be the original bill of exceptions is filed here as a part of the record but it is not certified by the clerk of the trial court. It does not contain the motion or affidavit for continuance or any of the instructions, the motion for a new trial or in arrest of judgment. All of these matters are certified by the clerk as a part of the common-law record.

If the sufficiency of an indictment or information is called in question it should be set out in the abstract. People v. Armour, 307 Ill. 234-236. In order to review the decision of the court on a motion for continuance, the motion, the grounds upon which it was based, the decision of the court thereon and an exception thereto must be made to appear by a bill of exceptions (Bromwell v. Bromwell’s Estate, 139 Ill. 424), and must be shown in the abstract. People v. Marshall, 309 Ill. 122. When the remarks of court or counsel are complained of they must be shown in the abstract. People v. Sunesson, 314 Ill. 402. Instructions become a part of the record only when preserved in the bill of exceptions. Indicma, D. & W. Ry. Co. v. Hendrian, 190 Ill. 501; People v. Ellis, 309 Ill. 51. Error cannot be predicated upon the rulings of the court in the giving or refusal of instructions unless all instructions are set out in the abstract. Thompson v. People, 192 Ill. 79; Beavely v. Harris, 239 Ill. 526.

A motion for new trial does not become a part of the record unless it is incorporated in the bill of exceptions. Chicago, B. & Q. R. Co. v. Haselwood, 194 Ill. 69. It is not sufficient that the clerk in writing up the judgment recites the denial of a motion for new trial and an exception thereto. People v. Faulkner, 248 Ill. 158; Greenwell v. Hess, 298 Ill. 459. The abstract must be sufficient to present every error relied upon as the court will not search the record to find errors not disclosed by the abstract. People v. Paul, 167 Ill. App. 557; People v. Yuskauskas, 268 Ill. 328; People v. Armour, 307 Ill. 234.

The court imposed a fine of $600 and sentenced plaintiff in error to six months at the Illinois State Farm. It is within the limits prescribed by the statute. A punishment authorized by law cannot be said to be disproportionate to the nature of the offense unless the law itself is subject to that objection. People v. Elliott, 272 Ill. 592. In view of the state of the record and the foregoing authorities, it is our duty to affirm the judgment.

'Affirmed.


text:
    Mae E. Hill, Appellant, v. Andrew E. Hill, Appellee.
    1. Husband and wim-^when improper conduct of husband shown. In action for separate maintenance, evidence of plaintiff held sufficient to raise a reasonable inference that defendant husband was guilty of improper relations with other women.
    2. Husband and wife — consorting with other women as authorizing separate maintenance. Wife is entitled to separate maintenance where husband has consorted with other ’women.

    3. Appeal and error — reversal where appellee offered no evidence. On appeal in action by wife for separate maintenance, where proof was sufficient to raise a reasonable inference of misconduct on the part of defendant, and defendant offered no countervailing evidence, Appellate Court will reverse judgment for defendant with directions to enter decree in favor of plaintiff.
    Appeal by plaintiff from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the March term, 1925.
    Reversed and remanded with directions.
    Opinion filed August 5, 1925.
    R. E. Wright, for appellant.
    Beasley & Zulley, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.

Appellant filed a bill for separate maintenance and at the close of her evidence, on motion of appellee, the court dismissed her bill for want of equity. The parties were married on April 17, 1920, and their relations seem to have been harmonious until a few weeks before their separation on May 20, 1924. They have one child that was bom June 3, 1924. Appellee did not testify and offered no evidence. The record discloses that appellant’s mother has been an invalid for many years and resided with her husband at Green-ville, Illinois, which was appellant’s home at the time of her marriage. Appellant was a teacher in the schools of Greenville since 1909 and continued in her work after her marriage. Because of. her mother’s health the parties, by mutual consent, resided at Greenville, and purchased a residence there. Appellee had a boy by a former wife. At the time of their marriage appellee was employed in the yards of the Illinois Central Railroad Company, at Clinton, Illinois, and later was transferred to the yards of the same company at East St. Louis. He made frequent visits to the home at Greenville and about March 1, 1924, they moved to East St. Louis and rented rooms.

The evidence discloses that appellee became acquainted with a Mrs. Huskey in 1922. She kept a boarding house in East St. Louis and he took his meals at her place. In May, 1924, appellee procured a railroad pass for himself and wife. It is quite evident that he and Mrs. Huskey used the pass on a trip to Indiana and Kentucky and were gone about a week. They returned to East St. Louis on a Friday and went to the home of Mrs. Huskey where they remained until the following Monday morning when they were arrested on complaint of appellant.

Appellant testified that she talked to appellee after his arrest and that he told her that he had been immoral with Mrs. Huskey practically ever since he knew her. She says that she afterwards told him that if he would behave himself and get the company to transfer him to another place she would live with him and care for their children, and that he replied that he would not live with her; that he did not want to set eyes upon the unborn child; that he was going where his own folks would not know where he was.

It was shown that appellee frequented a restaurant in company with other women. He had an automobile and on two or three occasions in the spring of 1924 was seen riding with a woman who was not his wife. When appellant wanted to go with him he often found excuses for leaving her at home.

In the absence of countervailing evidence the proof was sufficient to raise a reasonable inference that appellee sustained improper relations with Mrs. Huskey.

The law does not require a wife to put up with such conduct. The court should have allowed appellant a reasonable amount for the support of herself and child and for the expenses incident to her confinement, and a reasonable solicitor’s fee.

As appellee chose to offer no testimony but to submit the case on appellant’s evidence it is our duty to reverse the decree with directions to enter a decree in favor of appellant for separate maintenance in accordance with the prayer of her bill. Koebel v. Doyle, 256 Ill. 610; Thorworth v. Scheets, 269 Ill. 573; People v. Scanlan, 294 Ill. 64; People v. DeYoung, 298 Ill. 380. If, in so doing, an injustice is done to appellee, he has only himself to blame as he should have put in his evidence, if he has any, instead of moving to dismiss the bill for want of equity. People v. Scanlan, 294 Ill. 64-69. In the latter case the rule was applied with reference to a divorce case. The decree is reversed and the cause remanded with directions to enter a decree in favor of appellant for separate maintenance.

Reversed and remanded with directions.