text:
    Mary L. Kent and Amos M. Martin, Appellants, v. Frank Rhomberg and Elisabeth Rhomberg, Appellees.
    Gen. No. 38,758.
    Opinion filed January 27, 1937.
    Rehearing denied February 16, 1937.
    Edward H. S. Martin, of Chicago, for appellants.
    Anderson & Anderson, of Chicago, for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment entered by the court for the defendants after a trial upon the amended petition of the defendants to vacate a judgment by confession in favor of the plaintiff.

Subsequent to the day the appeal was filed in this court,' Amos M. Martin, a joint trustee, died and an order was entered suggesting his death and that Mary L. Kent, as the surviving trustee, continue to act as sole trustee and plaintiff in the above entitled cause.

The verified petition of the defendants, as amended, alleges that the defendants were the owners of certain real estate described in a trust deed securing payment of their four promissory notes, payable in two, three, four and five years after their date, the first three for $400 each, and the last, upon which the judgment was entered, for $2,300; that they paid the interest and prepayments due; that on October 4, 1926, they contracted to sell the real estate to Edward Williams, which contract was consummated on or about December 30,1926, when they executed a warranty deed to said Williams and conveyed title to the real estate to him for an express consideration of $10 and other good and valuable considerations, subject to the trust deed; that at the time of the closing of the deal, Williams verbally assumed and agreed to pay the $3,100 balance due on said mortgage, and the indebtedness secured by the trust deed was withheld from the purchase price, as appears from a closing statement made at the time; that on February 8,1927, Williams made a prepayment'of $400 due under said mortgage, and every six months thereafter paid the plaintiff the interest due, until February, 1929, and at maturity of said $2,300 note, the plaintiff and Williams entered into an extension agreement extending the note for five years, and Williams at the time of said extension had made $800 of prepayments and paid interest; that defendants had made none subsequent to the execution of said warranty deed; that by receiving said interest and prepayments from- Williams, the plaintiff knew, or was put on notice so that by reasonable diligence and care she would have been in complete possession of all the facts as to the assumption of the mortgage by Williams.

To this amended petition counter-affidavits were filed, signed by Amos W. Martin and Mary L. Kent.

From the facts in evidence it appears that on February 6, 1924, the defendants, Frank Rhomberg and Elisabeth Rhomberg, his wife, executed a trust deed conveying the real estate therein described to Amos Martin to secure an indebtedness of $3,500, evidenced by three notes for $400 each, and a final note for $2,300, due two, three, four and five years after their date.

On October 4, 1926, the Rhombergs entered into a contract to sell the property, subject to the trust deed, to Edward Williams at a price of $8,500, to be paid as follows: $600 earnest'money; $3,400 on closing the deal, and a purchase money mortgage for $1,400, payable in monthly instalments of $70 each until paid. It appears from the contract that the therein described real estate was also subject to the trust deed, of which $3,100 remained unpaid.

Later, on December 30, 1926, the Rhombergs closed the deal, making one change in the terms of the contract, namely, that Williams, the buyer, would pay and the sellers would accept $3,000 cash, and the purchase money mortgage increased from $1,400 to $1,800, Williams to meet the prepayment of $400, due on February 6, 1927.

The deed, which was a warranty deed, was executed on the 30th day of December, 1926, and after this deed was recorded, Williams, the purchaser, paid to the plaintiff $400 prepayment due on February 6,1927, and another prepayment of $400 on February 6,1928. The interest due and accruing on the loan had been paid to the plaintiff when the entire loan matured; in other words, Williams paid two prepayments, aggregating $800, and five instalments of interest. The purchase money mortgage of $1,800, executed by Williams to secure the payment of this amount to the Rhombergs, was paid in full, so that on February 6, 1929, there remained $2,300 due on the original loan of $3,500.

The warranty deed, which was executed by the Rhombergs, conveyed the property to Williams and recites a consideration of $10 and other good and valuable considerations, and describes the trust deed in question and the notes and their maturities, but does not contain an express clause of assumption by Williams.

Upon the maturity of the last note involved in the litigation the plaintiff without the knowledge or consent of the defendants, entered into an extension agreement, which recites that Williams had obtained title to the premises described in the trust deed from the Rhombergs, and extended payment of the $2,300 note for the period of five years, with interest at the rate of 6% per cent, payable semiannually, for which 10 interest notes were signed by Williams. This agreement was made between the plaintiff and Edward Williams, but was not executed by Williams’ wife.

On May 8, 1935, the plaintiff obtained a judgment against the defendants by confession for $2,702.59, which included attorney’s fees and costs. The defendants testified that they had not paid any interest nor made any payments whatsoever on the loan after they sold the real estate to Williams in December, 1926. So it is apparent from the record that the judgment against the defendants by confession for $2,702.59 entered on May 8,1935, was entered eight years after title was conveyed to Williams.

The plaintiff contends that the amended petition and the supporting affidavits were insufficient to justify vacating the judgment, for the reason that they did not affirmatively show that the affiants, if sworn as witnesses, could testify competently to the allegations of fact therein contained. In support of her contention she cites Supreme Court Rules 26 and 15 (pars. 250 and 238, eh. 110, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 105.26, 105.15).

“Bule 26. A motion to open a judgment by confession shall be supported by affidavit in the manner provided by Bule 15 for summary judgments,” .

“Buie 15. (1) The affidavits in support of a motion for summary judgment shall be made on the personal knowledge of the affiants; . . . shall not consist of conclusions but of such facts as would be admissible in evidence; and shall affirmatively show that the affiant if sworn as a witness, can testify competently thereto . . . .”

The record, however, shows that the court entered judgment on December 10, 1935, after consideration of the evidence presented, vacating the judgment by confession and providing that the plaintiff take nothing by her suit and that defendants recover costs of and from the plaintiff. The abstract of record does not show that the plaintiff objected upon the ground urged, so that the question cannot be considered by this court.

The plaintiff contends, however, that the evidence did not show nor tend to show that plaintiff had notice or knew, or ought to have known at the time of the alleged extension, that Williams, the new owner of the real estate, had assumed or agreed to pay the note sued upon, which was secured by a trust deed upon the real estate in question.

In consideration of this question it is necessary to have in mind the fact that when the real estate was conveyed by the defendants to. Edward Williams, the consideration, as appears in the deed, was ior the sum of $10 and other good and valuable considerations. This would indicate that the consideration mentioned in the warranty deed did not of itself show what sums were considered by the parties in the transfer of this property. This statement, however, does appear in the brief of appellant: “While the contract did not say the purchasers assumed or agreed to pay the notes, yet the note appears to have been deducted from the purchase price,” therefore the court will assume that Williams is properly charged with having assumed and agreed to pay the amount that matured, namely $2,300, and is now in default.

From the facts it appears that after conveyance of title by warranty deed to Williams, he made a prepayment of two notes for $400 each and interest accruing to the plaintiff, and the plaintiff received the money from Williams as the amounts fell due.

The pertinent question is whether at the time the extension agreement was executed the plaintiff had notice of these facts. It appears that during the eight years following the conveyance to Williams, until the maturity of the note in question, Williams made prepayments of the notes that matured, as well as the interest, and if the plaintiff had knowledge of the conditions upon which this title vested in Williams, which it would seem she did have from the fact that she admitted the amount of the note in question was deducted from the purchase price, then the extension would release the defendants.

In the case of Prudential Ins. Co. v. Bass, 357 Ill. 72, called to our attention by the defendants, the Supreme Court of our State passed upon questions similar to those involved in the present litigation, and their opinion seems to sustain the contention of defendants that in order to bind them by the extension of the maturity of the note their consent was necessary.

The serious question involved in this litigation is as to the words contained in the trust deed which, the defendants executed and wherein they agreed “to pay said indebtedness according to any agreement extending the time of payment.” The words are those used by the defendants in the execution of the trust deed, and the language is broad enough to cover the extension of time of the maturity of the note in question.

The defendants point to the fact that the note 'of itself does not contain this language, but contend that they did not agree or consent to the extension of the time of maturity of the note, and for that reason they are released from all liability upon the note. Therefore it is necessary for this court to consider not alone the note, but also the trust agreement executed by the parties at the time the note was signed. As a part of the defense the defendants offered this trust deed in evidence, and from this document the words permitting the extension of payment of the note are a part of the record.

Upon this question the plaintiff has called our attention to the case of Continental Nat. Bank & Trust Co. v. Reynolds, 286 Ill. App. 290, in support of her theory that the words of the trust deed justified the extension of the time of maturity of the note, and being words used by the defendants at the time of the execution of the trust deed, they authorized the extension, and from that fact, when the extension was granted, they were still liable. The court upon the question said:

“After a careful consideration of these authorities we have reached the conclusion that ‘any extension’ as here used should not receive the narrow interpretation sought to be placed oh the language thus employed, but should rather be interpreted in the ordinary sense of ‘each’ and ‘every’ extension, without limited numbers. If the parties had intended to limit the right of the holder of the note to grant time they could easily have expressed their intention by using other language, such as ‘an extenison,’ or ‘one extension,’ or have placed a time limit on the authority of the holder to extend. ’ ’

We are of the opinion that the reasoning in the case from which we have just quoted is applicable to the cause here on appeal. There is no language which limits or qualifies the extension of time of payment in the trust deed in question, but the words used are very broad when it appears from the trust deed that the time of payment of the indebtedness may be extended according to any agreement which might be entered into for that purpose. The language not alone applies to an extension agreement that might have been had between the plaintiff and the defendants, but applies equally well to the extension agreement entered into between the plaintiff and Williams, the successor to title of the defendants by their deed.

We have carefully considered what we believe to be the material objections' offered, and are of the opinion that the court erred in finding for the defendants and entering judgment, and that the judgment must be reversed and judgment entered here for the plaintiff in the sum of $2,702.59, the amount entered by confession in the trial court.

Judgment for defendants reversed and judgment here for plaintiff for $2,702.59.

Denis E. Sullivan, P. J., and Hall, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Leslie Maringer and Virgil Maringer for the use of Genevieve Argentina Del Boccio, Appellee, v. Bankers Indemnity Insurance Company, Appellant.
    Gen. No. 38,828.

      Opinion filed January 27, 1937.
    Rehearing denied February 16, 1937.
    Cassels, Potter & Bentley, of Chicago, for appellant; Ralph F. Potter, George C. Bunge and T -est.te H. Vogel, all of Chicago, of counsel.
    Hirsch E. Soble and Benjamin Weinberg, both of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal from a judgment for $3,529.50, entered in the superior court of Cook county in favor of Leslie Maringer and Virgil Maringer, defendants for the use of Genevieve Argentina Del Boecio, plaintiff, against Bankers Indemnity Insurance Company, garnishee.

The garnishment proceeding is based upon a judgment for $3,500 and costs entered on May 3, 1935, in favor of the plaintiff Genevieve Argentina Del Boecio and against the defendants Leslie Maringer and Virgil Maringer, upon which an execution was issued, served and returned unsatisfied on June 6, 1935. The trial of the garnishment issues by the trial court resulted in a finding in favor of the plaintiff and against the garnishee, upon which, on November 8,1935, the judgment appealed from was entered.

The pleadings upon which these issues were tried consisted of the plaintiff’s interrogatories and the garnishee’s answer thereto, and the evidence presented in the trial of the cause.

From the facts it appears that on June 11, 1932, the garnishee, issued its Automobile Public Liability Policy No. AP 224593 to the defendant Virgil Maringer. By this policy the company agreed, for a stated premium, to pay on behalf of Virgil Maringer, the named assured, within the limits fixed by the policy, all sums for which he should become obligated to pay by reason of liability imposed by law upon him for damages arising out of bodily injuries accidently suffered by any person, by reason of the ownership, maintenance and use of a certain Ford automobile owned by Virgil Maringer. The policy further provided that it should apply to any other person operating the automobile with the permission of the named assured, and contained other provisions usual to such policies, including a stipulation that no recovery should be had against the company, until the amount of the assured’s obligation should have been rendered fixed and certain, and a proviso that the company should not be liable under the policy for claims arising from the use of the automobile for purposes other than those specified in the declaration, a part of the policy. The declaration included the statement that the insured automobile would be used for “Business and Pleasure,” and would hot be used “to carry passengers for a consideration, express or implied.”

On January 3, 1933, the plaintiff was injured when struck by the Ford car scheduled in the policy, which was operated at the time by the defendant Leslie Maringer, brother of the defendant Virgil Maringer, the named assured. Plaintiff’s declaration against both Virgil Maringer and Leslie Maringer alleges that Leslie Maringer was operating the car with the permission and consent of, and as agent for, the defendant Virgil Maringer.

The claim was reported to the garnishee insurance company, which denied coverage on the ground that the automobile was being used at the time of the accident for purposes other than those specified in the declarations and provisions of the policy, but which finally undertook the defense of the case, after execution of a “non-waiver agreement” by both Virgil and Leslie Maringer. The non-waiver agreement is dated August 25,1933, and provides that the defense of plaintiff’s suit by the company, through its representatives, should be without prejudice to the rights of the company, and should not waive or affect any rights it might have to deny liability and withdraw from the case, and that such defense also should not waive or prejudice any rights of the assured under the policy. Pursuant to this agreement, plaintiff’s suit was defended by attorneys employed by the company, and resulted in the judgment for $3,500 in favor of the plaintiff and against both Virgil and Leslie Maringer, upon which the garnishment proceeding is based.

Following the entry of the judgment, the defendants Virgil and Leslie Maringer, represented by the same attorneys, perfected an appeal to the Appellate Court of Illinois, and while the appeal was pending, plaintiff, on September 16, 1935, initiated this garnishment proceeding, which resulted in the judgment against the garnishee insurance company.

The defendants Virgil Maringer and Leslie Maringer, both called by the plaintiff, also testified on the trial of the garnishment issues. It appears from their evidence in the garnishment proceeding that Virgil Maringer, the named assured, had two businesses, or occupations, one as representative or agent for J. D. Watkins Company, manufacturers, and the other as partner in a public dance hall, called the “Yellow Lantern, ’ ’ located on Harlem avenue, approximately three blocks north of Irving Park Boulevard, Chicago. The Irving Park bus line, an extension of the street car system, ran along Irving Park Boulevard. There were no houses or buildings in the neighborhood of the dance hall, nor were there any street lights on Harlem avenue in the three blocks between it and Irving Park Boulevard. A 25-cent admission fee was charged to patrons of the dance hall, some of whom were girls who came alone. Virgil Maringer and his partners owned a Studebaker car which they used to transport patrons between the bus line at Irving Park Boulevard and the dance hall, and advertised that transportation to the dance hall was furnished by the management. No extra charge in addition to the 25-cent admission fee was made for this service.

It will be necessary to consider the policy of insurance as written between the insurer and the insured in the instant case. It is known to this court that the appeal, Case No. 38,437 (286 Ill. App. 603 [Abst.]), which was pending in the Appellate Court from a judgment of $3,500 entered in the superior court of Cook county between Genevieve Argentina Del Boecio, as plaintiff, and Leslie and Virgil Maringer, as defendants, was affirmed, and from the records of this court it does not appear that further steps were taken by the defendants to present the matter to the Supreme Court of Illinois, and that the judgment at this time is a final one.

The judgment entered in that case is the result of a trial based upon the negligent operation by Virgil Maringer of the Ford automobile, which caused the injuries suffered by the plaintiff. It is upon this judgment that the garnishment proceeding was predicated. The liability of the garnishee is fixed by the insurance policy, which provides that the Bankers Indemnity Insurance Company is: “To pay on behalf of the Assured all sums (within the limits as expressed in the Declarations) which the Assured shall become obligated to pay by reason of the liability imposed by law upon the Assured for damages, including consequential damage resulting from loss of services and expenses, arising out of bodily injuries, and/or death resulting therefrom, accidently suffered, or alleged to have been suffered, by any person or persons, by reason of the ownership, maintenance and/or use of any of the automobiles described in said Declarations (including carrying of goods thereon and the loading* and unloading thereof).”

The defense of the garnishee (defendant) is based largely on that part of the policy termed, “Items of Declaration forming a part of the policy.” In this declaration is included an item numbered 11, which is in these words: “None of the insured automobiles will .be used to carry passengers for a consideration, actual or implied,” and is marked “No Exceptions.” The defendant contends that the accident in question was not covered by the policy, and points to the fact that the assured, Virgil Maringer, was engaged in business as a salesman for J. D. Watkins Company, manufacturers, at the time of the accident, and the use of the Ford automobile was for business and pleasure, and the term is defined as personal, pleasure and family use, including business calls; that the car at the time of the accident was used to carry passengers for a consideration, actual or implied.

The question is do the provisions of the policy exclude claims arising out of the accident which occurred to the plaintiff while walking upon a public highway. The question of negligence has been adjudicated in the litigation in the former appeal by this court affirming the judgment entered in the case for the recovery of damages, as we have indicated in this opinion. ¿ The question then is whether the operation of the automobile by Malinger was in violation of the provisions of the policy.

The questions of fact, as we have stated above, were passed upon by the trial court, and the defendant seeks to avoid the payment of the judgment on the ground that the cause of action and resultant judgment is not covered by the terms of the insurance policy.

As a part of its defense the defendant points to what is known as the Guest Act, ch. 95a, par. 47 (5) Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 85.064 (1) and quotes therefrom as follows:

“No person riding in a motor vehicle as a guest, without payment for such ride, . . . shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury ... in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury . . . for which the action is brought.”

The reason for the passage of the act is called to the attention of the court by the defendant, and cases are cited bearing upon the question. It is doubtful whether such cases will be of aid upon the pending appeal.

The plaintiff in this action while a pedestrian upon a public highway was injured and is now seeking by this action to recover, and to apply the amount of the policy to satisfy the judgment entered in the action against the defendants for damages. Now then, the question is whether the defendant, Virgil Maringer, at the time of the accident was operating his car in violation of any of the provisions of the policy, in other words, carrying passengers for hire, and operating and using the automobile for the benefit of any one requiring such service. The facts do not bear out the assertion that the automobile was operated for use of the public for a consideration such as would apply to one traveling as a passenger in a public conveyance for hire to be transported to a given point.

The facts in the case are that Virgil Maringer, the owner of the automobile, permitted his brother Leslie Maringer, on the night the accident occurred, to use his Ford automobile to take Roy Walker and Clyde Lanum, who were personal friends of Virgil Maringer, to their homes, Walker residing only a short distance from Irving Park and Harlem avenue. Other persons were standing at the dance hall, and they requested Leslie Maringer to take them in the automobile. Maringer testified, “I saw some other people standing there. They asked me if they could go along and I said yes and gave them this ride. ’ ’ He also testified that it was while he was taking these other persons to their homes that the accident occurred. The names of the persons in the car besides Leslie Maringer, were Carmella Kapczak, Walker, Clyde Lanum, and a girl by the name of Irene, and there is evidence that no charge was made by the defendant, nor anything promised by the occupants of the car for the ride.

In the garnishment suit the defendant relies on and cites cases in support of its contention that the accident in question was not covered by the terms of the policy, more especially that “Hone of the insured automobiles will be used to carry passengers for a consideration, actual or implied. ’ ’

The plaintiff’s reply to the contention of the defendant is that nothing appears in the record to sustain the garnishee’s statement that the policy provision relied upon as a defense was intended to eliminate all liability for injuries to pedestrians occurring when more than one person was riding in the car with the permission of the assured; that this use of the car was not in violation of the terms of the policy; that paragraph (6) of the policy insures such persons in the same manner and under the same conditions as it insured the named assured, and declaration 9 (a) of the policy permits such purpose, and that in order to constitute a violation of the insurance policy the term “used” must mean an habitual use, something of a more permanent nature. In support of this contention plaintiff cites a number of cases, one of which is Commercial Union Assur. Co. v. Hill, 167 S. W. 1095 (writ of error denied). The Court of Civil Appeals of Texas said:

“The words ‘that the automobile hereby insured during the term of this policy shall not be used for carrying passengers for compensation, etc., were intended to mean that the automobile should not be continuously used for that purpose for any length of time, or, in other words, the owner should not make a business of using said automobile for carrying- passengers for hire, and it was evidently never contemplated that the casual use of it as made in this instance would work a forfeiture of the policy.” The plaintiff also cites the case of O’Donnell v. New Amsterdam Casualty Co., 50 R. I. 269,146 Atl. 410, where the court said:

“ ‘Condition A’ excepts from the insurance under the policy not automobiles while rented, but ‘while being used for rental or livery purposes.’ This exception is a prohibition of an habitual course of conducting the business of the assured, and does not prohibit a single and isolated transaction in an emergency such as the one under consideration. ’ ’ And further calls the court’s attention to the case of Crowell v. Maryland Motor Car Ins. Co., 169 N. C. 35, 85 S. E. 37; Firemen’s Ins. Co. v. Rye, 160 Ark. 212, 254 S. W. 465.

In Treolo v. Iroquois Auto Ins. Underwriters, 348 Ill. 93, the insurance company defended an action on an. automobile liability policy on the ground that at the time the accident occurred, the insured violated a term of the policy by using his automobile for the transportation of intoxicating liquor contrary to law. The court there said:

“The question here arises over what meaning shall attach to the word ‘use’ as applied to the automobile at the time of the accident. Webster’s Dictionary defines the word ‘use’ as an act of employing or state of being employed; to convert to one’s service; to employ. (Citing cases.) In the interpretation of the exclusion clause in this policy, ‘is being used for transporting intoxicating liquor,’ it is improper to consider the word ‘transporting’ alone. ...

“. . . The record contains no evidence even remotely tending to show that Treolo was then engaged in using his automobile for the transportation of liquor. To say that the single, isolated instance of carrying a jug of wine should defeat the rights of Treolo under his policy would 'be a strained and most unreasonable construction of the exclusion clause. Whether such transportation was a violation of the Prohibition act is not before us.”

Then again in Wold v. Glens Falls Indemnity Go., 269 Ill. App. 407, the insurance policy provided that the assured was protected in the operation of a truck in his business, and further provided that his business was hauling for a certain corporation only, namely, Protection Products Co. At the time of the accident, the insured was engaged in hauling certain property on his own account, in addition to property of said company. The insurance company, as garnishee, contended, among other things, that the policy issued to Wold, the insured, covered the motor truck only while it was being used and operated in the business of contract hauling for the Protection Products Co. The court in this case said:

“It may be said in passing that Wold was not engaged in the business of general hauling in the use of the truck. The record contains no evidence that tends to show that Wold was using the automobile in general transportation business, and to say that a single isolated instance of carrying other goods than those of the Protection Products Co. would defeat the rights of Wold under his policy, would be a strained and unreasonable construction of the exclusion clause.”

On a like question the Supreme Court in the case of Felsenthal Co. v. Northern Assur. Co., 284 Ill. 343, said:

“We have examined the instructions of the court carefully and find that they are all substantially correct. The court instructed the jury, in substance, that the provisions of the policy in question rendering it void if gasoline be kept, used or allowed on the premises is not violated by the mere bringing of gasoline on the property; that the words ‘kept, used or allowed’ mean that the prohibited article must not only be upon the premises but must be there for the keeping or storing of it; that there must be some degree of permanence in its continuance there. ’ ’ Again, in the case of Szymkus v. Eureka Fire & Marine Ins. Co., 114 Ill. App. 401, the policy of insurance provided that it was void, “if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises, benzine,” etc. The trial court in that case instructed the jury as follows :

‘ ‘ The court instructs the jury that if they find from the evidence that before the time of the fire in question and during the term covered by the policy sued upon, there was kept, used, or allowed upon the premises described in the said policy any benzine, then the defendants are not liable, and your verdict must be for the defendants. ’ ’

This court held the instruction erroneous and reversed the judgment, which was in favor of the insurance company. The Appellate Court followed with approval Mears v. Humboldt Ins. Co., 92 Penn. St. 15, which was quoted with approval in Crowell v. Maryland Car Ins. Co., 169 N. C. 35. This court, referring to the Mears case, said:

“In respect to the word ‘use,’ the court say: ‘We are not disposed to give the word “use” in this policy the narrow construction claimed for it. It must have a reasonable interpretation, such as was probably contemplated by the parties at the time the contract was entered into. Nearly every policy of insurance issued at the present time contains this condition, or a similar one. What is intended to be prohibited is the habitual use of such articles, not their exceptional use upon some emergency. ’ We think the instruction erroneous.” See also the case of Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584.

While the defendant has cited cases which seem to take the contrary view to the cases we have cited, still we think the better reasoning as to the term “used” has been called to our attention by cases submitted by the plaintiff. “Used” as it appears in declaration 11 of the policy according to the authorities above quoted supporting this view, means a continued or business use, and the facts in the case at bar do not indicate that the Ford automobile was used for the carriage of passengers for hire, either express or implied, and the evidence does not support the defendant’s theory that the Maringer automobile was used on the night in question for that purpose. There is no indication that the conveyance was held out or offered for use of the public in the sense that the public might become passengers for a consideration.

We quite agree with the defendant that the plaintiff must recover if at all against the defendant insurance company upon the ground that the action is one covered by the terms of the insurance policy, and is an indebtedness due from the company to the Maringers. This indebtedness became fixed and certain when the judgment was entered in the negligence action against the Maringers, and the plaintiff in the instant case was entitled to the judgment against the garnishee, defendant. It follows from the views herein expressed that the trial court did not err in entering judgment, and it is therefore affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Hall, J., concur.


text:
    Charles Starck, Appellant, v. Anna Goodman et al., Appellees.
    Gen. No. 38,850.
    Opinion filed January 27, 1937.
    Rehearing denied February 16, 1937.

      Ralph H. Platt and Charles G. Palmer, both of Chicago, for appellant; Clyde C. Fisher, of Chicago, of counsel.
    Bryant, Roberts, Hwass & Colwell, of Chicago, for William L. O’Connell, Receiver of Forest Park Trust & Sav. Bank; H. Irving Ripstra, of Chicago, of counsel.
    Louis F. Blumenthal and Edward M. Platt, both of Chicago, for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.

This action comes here on appeal by the plaintiff from a decree dismissing plaintiff’s bill of complaint for want of equity. The proceeding instituted by the plaintiff was to foreclose the lien of a trust deed upon the property therein described securing the payment of a principal promissory note for the sum of $8,000. The note and trust deed was executed by Anna Goodman, a defendant in the proceeding. Anna G-oodman was named a testamentary trustee by the terms of the last will and testament of Max Goodman, deceased.

Anna Goodman, at the time of the execution of the trust deed was indebted to the Forest Park Trust & Savings Bank, the grantee named in the trust deed as trustee, in the sum of $2,900, this amount being the personal indebtedness of Anna Goodman. The note and trust deed were sold by the bank to the plaintiff, and out of the proceeds from the sale the personal obligation was paid, and the balance credited to Anna Goodman’s account in this bank.

Certain of the defendants were served by publication and thereafter defaulted.

Upon reference a hearing was had before a master in chancery of the superior court of Cook county, and a decree was entered by the court for the amount due because of failure of the defendants or one of them to pay.

The decree provides that a sale may be had and that the described real estate be sold according to the terms of the decree.

Subsequent to the entry of the decree of sale, Pearl Clair and Frances Platt, by consent of the court, filed their intervening petition, which was later amended. The petitioners prayed that they be given leave to file their appearance; that the decree of sale be vacated and that their interest in the real estate be held prior and superior to the rights of the plaintiff, who together with the Forest Park Trust & Savings Bank, is a defendant to the intervening petition. The plaintiff in this action is the holder and owner of the note secured by the trust deed in question. The defendant bank is the owner and holder of the note secured by a second mortgage upon the same real estate and signed by Anna Goodman, as trustee.

At a later date, in the foreclosure proceeding, Samuel Goodman, Jacob Goodman, Albert Goodman, Kate Goodman Cohen, Ida Goodman Keif and Margaret Goodman, also filed an intervening petition, praying for the same relief as that asked for by the original interveners.

To the intervening petitions answers were filed. The petitions were referred to a master in chancery of the court to take testimony and to report the same to the court, together with his conclusions of law and fact. After hearing the evidence submitted, the master filed a report recommending that the intervening petitions be dismissed by the court.

The plaintiff and the intervening petitioners filed objections to the master’s report, which were overruled by the master. The several objections filed were considered by the court as exceptions, and upon consideration the court sustained the exceptions of the intervening petitioners and overruled the objections of the plaintiff.

On February 18, 1936, a decree w.as entered by the court granting the relief prayed for by the intervening petitioners and finding that their interest in the real estate was superior to the rights of the plaintiff and the defendant, receiver, and dismissing the bill of complaint for want of equity. The note and trust deed in question were sold by the bank to the plaintiff before maturity and for a consideration.

The material portions of the last will and testament of Max Goodman, now deceased and who in his lifetime was the husband of Anna Goodman, are as follows:

“Third: I devise and bequeath all my estate and effects whatsoever and wheresoever, both real and personal, to which I may be entitled, or which I may have power to dispose of at my decease, unto my dear wife, Anna Goodman, in trust for the following uses and purposes :

“(a) To have absolute and unconditional control and management of all my property, at her best discretion to rent, lease, mortgage or sell any of the real estate and invest and re-invest the proceeds of any sale of real estate and to sell any of the personal property and to invest and re-invest the proceeds of any sale of the personal property.

“ (b) I hereby direct my beloved wife, Anna Goodman, to hold in trust either in cash, or in property, as she may see fit during her lifetime, the following- sums out of my estate, to be paid to my beloved children at her decease by her successor in trust, as set forth in the list headed ‘Bequest to My Beloved Children as Follows. ’ However, it is my desire and I so direct, that all of the income of the following bequests to my beloved children during the lifetime of my beloved wife, Anna Goodman, go to my wife, Anna Goodman, to be held, and to be used as she may see fit for her own comfort, use and benefit.

“Bequests to My Beloved Children as Follows:
To my beloved son Samuel.................$5,000.00
To ray beloved son Jacob...................$5,000.00
To my beloved son Albert..................$5,000.00
To my beloved daughter Fannie Platt.......$3,000.00
To my beloved daughter Pearl Clare........$3,000.00
To my beloved daughter Kate..............$5,000.00
To my beloved daughter Ida................$5,000.00
To my beloved daughter Margaret..........$5,000.00

‘‘ Seventh : I hereby direct that Maurice P. Golden, the successor as Executor and trustee of my dear beloved wife, Anna Goodman, to immediately upon the decease of my beloved wife, or as soon as conveniently may be thereafter, to call in and convert all of the property held by my beloved wife, Anna Goodman, in trust for my beloved children, into cash, and to distribute the same unto my various children, . . .

“Eighth: It is my desire, and I therefore direct and empower my beloved wife, Anna Goodman, to use her discretion in the manner in which to hold the sums provided for my beloved children in trust, and she may hold the same in real property or personal property, or in any other manner at her best discretion. ’ ’

The plaintiff submits that under the terms of the will Anna Goodman, as trustee, took the fee simple title to the real estate owned by the deceased in his lifetime. In support of this position plaintiff relies upon the case of Olcott v. Tope, 213 Ill. 124, and cites excerpts from this opinion, where the court said:

“The estate of a trustee in real estate is commensurate with the powers conferred by the trust and the purposes to be effected by it. ‘If a trustee is required to grant a fee, the fee must be conferred upon him.’ (Lawrence v. Lawrence, 181 Ill. 248-251; Lash v. Lash, 209 Ill. 595-605.) In Kirkland v. Cox, 94 Ill. 400-412, it is said, quoting from Perry on Trusts, sec. 305: ‘If the trustee is to exercise any discretion in the management of the estate, in the investment of the proceeds or the principal or in the application of the income, or if the purpose of the trust is to protect the estate for a given time, or until the death of someone, or until division, ’ ‘the operation of the Statute of Uses is excluded and the trusts or uses remain mere equitable estates.’ > 5

Construing the will and taking into consideration all the provisions upon which this question has any bearing, it is apparent that the intent of the testator was to give Anna Goodman, as trustee, authority to rent, lease, mortgage or sell any of the property of the testator, and in order to execute a mortgage it was necessary that she acquire the fee simple title to the real estate under the terms of the will. Execution of the trust deed by Anna Goodman was as trustee, which appears from the document itself, and .although no mention is made therein that she signed as trustee, it appears that it was executed by her as trustee under the last will and testament of Max Goodman, deceased, and that she appeared before a notary public and acknowledged that she executed the deed individually and as trustee under the last will and testament of Max Goodman, deceased. It is apparent from the trust deed that the money to be received should be for the benefit of the trust estate.

The plaintiff contends that the record is silent as to whether the bank, the assignor of the note, knew that Anna Goodman was a trustee under her husband’s will, and as such held title to the property in question. The fact is, however, that the trust deed as drawn was prepared by the bank, and it was at the solicitation of the officials of the bank that Anna Goodman executed the trust deed so as to receive payment of money which was to be used by the bank in paying a personal loan due it from the trustee. The amount deducted was $2,900, which was more than one-third of the principal sum secured by the trust deed, and, as we have indicated in this opinion, the balance was credited to Anna Goodman’s account to be used for her personal needs.

In our opinion, the bank at the time of the preparation and signing of the trust deed and the execution of the note, knew that Anna Goodman was acting as a trustee under the terms of her late husband’s will, so they had knowledge of the purposes for which this money was obtained. The plaintiff suggests that he, in any event, was dealing with two fiduciaries within the meaning of the statute, (ch. 140a, sec. 2, Ill. Bar St. 1935; Jones Ill. Stats. Ann. 135.07) — the bank as trustee under the trust deed, and the mortgagor as trustee under a will, so that when the plaintiff paid his money in good faith he was not required to see to the application of the purchase money, yet was protected against latent equities of third persons of whose rights he could know nothing. This contention of the plaintiff is subject to the rule that a purchaser of a trust deed or mortgage takes it subject to all the infirmities to which it is liable in the hands of the mortgagee and the parties in interest, and the reason for the application of the rule is clearly stated in the case of King v. Harpster, 306 Ill. 202, where the court said: “The doctrine of an innocent purchaser for value, which applies to commercial paper, has no application to a mortgage. The assignee of a mortgage takes it subject to the same equities it was subject to in the hands of the assignor. The assignee of a mortgage knows that it is not assignable at common law but only in equity and that he takes it subject to all equities existing in favor of the mortgagor. It is therefore the duty of the assignee to inquire of the mortgagor if there is any reason why it should not be paid. (Olds v. Cummings, 31 Ill. 188; Silverman v. Bullock, 98 id. 11; Himrod v. Gilman, 147 id. 293; Buehler v. McCormick, 169 id. 269; Peacock v. Phillips, 247 id. 467.) The right to recover on the note against its makers in a court of law is not involved in this case, which is concerned only with the lien of the trust deed on the land.”

The court also stated in the case of Romberg v. McCormick, 194 Ill. 205, as follows: “The assignment of the note by the bank to the appellant invested her with the security of the mortgage as an equitable incident to the debt evidenced by the note. The mortgage is not an assignable instrument, but the appellant, as the assignee of the note, by the operation of equitable principles became invested with an equitable right to the benefit of the lien of the mortg*age for the security of the note. Her right to the security was equitable, and subject to all of the affirmities to which it was liable in the hands of the bank. Olds v. Cummings, 31 Ill. 188; Walker v. Dement, supra (42 Ill. 272); Bryant v. Vix, 83 Ill. 11; Sanford v. Kane, 133 id. 199.”

In seeking relief, the plaintiff in this foreclosure litigation has submitted his cause for relief upon the ground of the equitable principles that apply in proceedings of this character, and under the well established rule, the plaintiff derives no better title than his assignor, the bank, had when it assigned the notes and delivered the trust deed to the plaintiff. In paying* the indebtedness due it from Anna Goodman, the assignor had knowledge that the money was derived from the real estate owned by the late Max Goodman, and that Anna Goodman could in only one way execute a trust deed to secure the payment of such indebtedness, and that was as trustee under the last will and testament of her late husband, Max Goodman. The bank also had knowledge, when deducting the $2,900 due it from Anna Goodman upon a personal loan, that the money was for the purpose of the trust, as declared by the will, and not for the purpose of satisfying the claim of the bank. Therefore, when the bank transferred this note secured by the trust deed, the plaintiff acquired title from the bank, subject to the existing equities. The equities of the intervening petitioners were of public record. The trust deed itself, which the plaintiff acquired and seeks to have foreclosed, recites that Anna Goodman executed the same individually and as trustee under the last will and testament of Max Goodman, deceased. This gave notice to the plaintiff that the property therein conveyed by Anna Goodman was held by her as trustee. The plaintiff appreciated the importance of naming proper parties defendant to the foreclosure suit when he made Anna Goodman and the beneficiaries under the last will and testament of Max Goodman, deceased, defendants in the case, which fact does not tend to bear out the assertion that he had want of knowledge of the purpose for which the deed was executed.

The receiver for the Forest Park Trust & Savings Bank contends that the interveners have no interest in the real estate in question, and the g*round upon which they base their contention is that the bequests to the children named in the last will and testament were cash and not real estate, and that the children have no interest whatsoever in the property, even if the particular piece involved in this litigation had been selected as a part of the trust estate; that there was here an equitable conversion of the real estate into personal property at the time of the testator’s death. In support of this contention the case of Ebey v. Adams, 135 Ill. 80, is cited, where the language is somewhat similar to that in the instant case, and may be applied in construing the will before us. The language referred to is, “upon the death or remarriage of my wife it is my will that all my estate, real and personal, shall be sold, and from the proceeds pay certain devises.” The court then uses the following language:

í í There was here no devise of the land, or of any interest in land, either to the children or grandchildren of the testator. Land devised to be sold, and the proceeds distributed, is a devise of the proceeds and not of the land. . . . The general principle applicable to the execution of trusts of this character is, that the trustee will take ‘exactly that quantity of interest which the purposes of the trust require.’ If the fee is required, the fee will be taken; if a less estate will suffice, a less estate, only, will be vested. ’ ’

The Supreme Court in the case entitled Buckner v. Carr, 302 Ill. 378, after referring to the case of Ebey v. Adams, 135 Ill. 80, said: “The conversion takes effect at the death of the testator; the gift to his children is a bequest of money; they have no interest in the land, and therefore no title upon which they can maintain a bill for partition. In a similar case it was said that a good reason for sustaining the demurrer and dismissing the bill was that the beneficiaries under the will took the property not as real estate but as personal property. ... In this case, as in that, it was not left to the discretion of the executor to sell or not, but it was the intention of the testator that there should be a sale of the real estate' and a division of the proceeds, which would be personal property and not a proper subject for a bill for partition.”

From an examination of these cases which have been called to our attention, we find that the case of Ebey v. Adams, 135 Ill. 80, was a case pending in the courts for the purpose of having the proper construction applied to the terms of the last will and testament, the subject of the litigation, and not a case wherein the property of the trust was converted or dissipated and the proceeds used for purposes other than those provided for in the trust.

Buckner v. Carr, supra, was a case wherein the court construed the will and determined whether there was a violation of the rule against perpetuities. This would be pertinent upon the question of the construction of the terms of the will, but then the question arises, as we have stated before, whether the res of the estate was being dissipated.

The beneficiaries were made parties, as well as the trustee, and in our opinion they were necessary parties because the property of the estate was involved in the foreclosure proceeding and they had an interest, which necessitated their being made parties to the suit.

In Jones on Mortgages, Third Vol., sec. 1832, the author there makes this pertinent statement:

“Any person having such an interest in the mortgaged premises, or the debt secured, that his rights might be affected or prejudiced by a decree in his absence, may generally intervene on his own petition.”

The intervening petitioners were defaulted and upon a motion this default was set aside and they were permitted to file their intervening petition, and are properly before the court.

It is well to remember that Anna Goodman, the trustee, executed the trust deed securing* the loan for $8,000. One of the defendants, the Forest Park Trust & Savings Bank, induced the trustee to make this loan, and in doing so the bank deducted $2,900, the amount due to the bank from Anna Goodman on a personal loan, in payment of this account. At the time this was done, the bank knew that Anna Goodman was appointed under the last will and testament of Max Goodman, as trustee, to carry out the provisions of this document, and so it was properly charged with accepting this money, which was a violation of the provisions of the last will and testament. The will did empower Anna Goodman, as trustee, to execute mortgages for the purposes of the trust. The bank being charged with notice of the conditions above stated, the plaintiff in this case is subject to the defense of waste of the trust property, which, in our opinion would be sufficient to permit the intervening petitioners, who have a direct interest in the outcome of this litigation, to be made defendants and offer a defense of the character indicated.

Another point is raised in this litigation, and that is as to the plea of release of errors filed by Pearl Clair, Frances Platt, Samuel Goodman, Jacob Goodman, Albert Goodman, Kate Goodman Cohen, Ida Goodman Beif and Margaret Goodman, the intervening petitioners in this proceeding. In support of this plea they allege that the plaintiff Charles Starck and William L. O’Connell, as receiver of the Forest Park Trust & Savings Bank ought not to have and maintain their aforesaid appeal, for the reason that after the filing* of the decree in the instant case the plaintiff, Charles Starck, seeks to review the record as to the rights, title and interest of the defendants in the above entitled cause.

Subsequent to the rendition of the decree entered in the superior court of Cook county defendants allege that plaintiff Starck seeks to enforce the decree, and otherwise claims and accepts the full rights and benefits of the same; that by his action in the circuit court of Cook county entitled, “People of the State of Illinois ex rel. Oscar Nelson, Auditor of the State of Illinois v. Forest Park Trust & Savings Bank, Case No. B-23546,” asserts that the decree is valid and final, and thereby confirms the same, and that plaintiff is estopped because of said conduct to have the decree reviewed, and that he has expressly and impliedly abandoned, waived and released any and all right of appeal therefrom.

Without going into the merits to the extent requested, we wish to say that the plaintiff Starck had the right to exercise any remedies provided by law, but can have but one satisfaction. While it is true that he has appealed in the instant case and it now appears from the plea of release of errors that he .seeks to exercise the right as a petitioner in the circuit court of Cook county to recover as against the bank the amount of $8,000, which was loaned to Anna Goodman, as trustee, still it does not appear that there has been any satisfaction of the decree now pending in this court, and for the reasons stated the plea of release of errors is dismissed.

For the reasons stated in our opinion, the court’s decree dismissing the bill for want of equity will be affirmed, and this will include the order appealed from by the plaintiff dated March 2, 1936, wherein the receiver in the foreclosure suit is directed to deliver to Anna Goodman, as trustee, the sum of $500.94, and he is also directed to assign all insurance policies and accounts receivable to her, whereupon he will be discharged.

The principal complaint made by the plaintiff in regard to this order is that the money is to be paid to Anna Goodman, trustee, about whose acts interveners had complained, and which is the subject of this controversy. This is so, but the plaintiff has pointed out in his brief that she acted within the authority given her by the last will and testament of her husband and that she thereby acted properly. As we have indicated, we have determined the question of the propriety of her actions, and this in itself is not an action to remove the trustee from her position, but is a foreclosure maintained by the plaintiff to foreclose the equity of redemption.

We believe that the court was right when he entered the order as he did.

It appears of record in this court that the death of William L. O’Connell, receiver, who died on July 24, 1936, was suggested. The record, together with the briefs, was filed on April 15,1936, and the cause was at issue and taken by the court on May 7, 1936. It is the order of this court for the reasons stated, and under the authority of the Citizens Securities Company v. Dennis, 236 Ill. App. 307, and the authorities therein cited, that an order be entered herein nunc pro tunc as of May 8, 1936, affirming the decree and the order of March 2, 1936, entered in the superior court of Cook county.

Decree and the order of March 2, 1936, affirmed.

Denis E. Sullivan, P. J., and Hall, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Albert A. Sprague, Plaintiff in Error.
    Gen. No. 38,972.

      Opinion filed January 27, 1937.
    Rehearing denied February 16, 1937.
    George H. Guenther, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Richard H. Devine, and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This case is in this court upon a writ of error prosecuted by Albert A. Sprague (hereinafter referred to as the defendant) to review the judgment of the municipal court of Chicago, whereunder, in a trial without a jury, he was found guilty of “the criminal offense of driving a vehicle with a wilful or wanton disregard for the safety of persons or property and sentenced to ten days confinement at labor in the House of Correction.” This judgment was predicated upon the finding made by the court as follows:

“The Court finds the defendant guilty in manner and form as charged in the information herein. Whereupon it is ordered that the same be entered of record herein.”

The judgment recites that “said defendant, Albert A. Sprague is guilty of the criminal offense of driving a vehicle with a wilful or a wanton disregard for the safety of persons or property.”

The information upon which the charge is predicated is in the following words:

“Harry Barth a resident of the City of Chicago in the State aforesaid, in his own proper person, comes now here into court, and in the name and by the authority of the People of the State of Illinois, gives the Court to be informed and understand that Albert A. Sprague heretofore, to-wit: on the 5th day of May, A. D. 1936, at the City of Chicago aforesaid Did then and there operate a certain vehicle, to-wit: an automobile (Lie. No. 32-423 Ill. 36) in and upon a public highway within the jurisdiction of The Chicago Park District, with a wilful or a wanton disregard for the safety of person or property; in violation of Section 48 U. A. R. T. Violation occurred on Outer Drive— 64 Miles per hr. from Surf to Briar Place — Heavy traffic passed 17 cars (35 M.P.H. Zone) contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois.” This information was verified by Harry Barth.

The court after examining the information granted leave to file said information and it was ordered that a capias issue against the accused. Thereafter, on May 7, 1936, Fred F. Malley, attorney for the defendant, entered the appearance of Albert Sprague defendant in the above entitled cause.

It further appears from the record that by the appearance of the State’s attorney, and the defendant as well, in his own proper person and by his attorney, the defendant, being duly arraigned, entered a plea of not guilty. Thereupon, the People being represented by the State’s attorney and the defendant being present in his own proper person as well as represented by his attorney, the court entered upon the trial without a jury, and after hearing all the evidence of the witnesses, entered the finding that Albert A. Sprague is guilty of the criminal offense of driving a vehicle with a wilful or a wanton disregard for the safety of persons or property. He was then sentenced by the court to confinement and labor in the House of Correction of the City of Chicago in the County of Cook and State of Illinois, for the term of 10 days.

Thereupon a motion was made by the defendant to vacate the judgment, which motion was subsequently heard by the court on May 16, 1936, and denied.

On the 18th day of May, 1936, before Honorable Gibson E. Gorman, one of the judges of the court, this cause came on for hearing on motion to set aside and vacate the judgment and sentence herein, and in support of the motion the defendant filed an affidavit, which is as follows:

“Albert A. Sprague, being first duly sworn on oath deposes and says, that heretofore, on to-wit, the 5th day of May, A. D. 1936, he was arrested upon an information or complaint for a criminal offense, charged against him in the above entitled cause; that thereafter he was admitted to bail in said cause and that on to-wit, the 7th day of May, A. D. 1936, he 'was arraigned, pleaded not guilty and a trial was held on the 7th day of May, A. D. 1936, before the Honorable Gibson E. Gorman, Judge, holding court at 26th Street and California Avenue in said City and presiding in the Municipal Court of Chicago; and that previous to his arraignment, hearing or examination, he was not furnished with a copy of the information or complaint upon which he is charged and that the same was not furnished to him one (1) hour previous to his arraignment, hearing or examination and that such copy was at no time furnished to him, according to the statute in such case made and provided, and required to be done.
(Signed) Albert A. Sprague.”

Upon the motion being denied, the defendant filed his bill of exceptions, and the above and foregoing were all the proceedings had to set aside and vacate the judgment and sentence.

The assignment of errors appears of record substantially as follows:

“(a) The information consists of two counts;

“(b) ‘ Count one, upon which sentence was imposed, is a nullity, in that it charges a violation of ‘Section 48 U. A. R. T. ’ — which means nothing; for there is no such statute as ‘U. A. R. T.’ in this State;

“(c) The second count purports to charge an offense under the speeding section, viz.,. Section 49 of the 1935 Uniform Act Regulating Driving on Highways;

“(d) The judgment finds plaintiff in error is, ‘guilty of the criminal offense of driving a vehicle with a wilful or wanton disregard for the safety of persons or property’ — in an attempt to predicate count one on Section 48 of the 1935 Uniform Act Regulating Driving on Highways, which Section 48 relates to the driving of any vehicle ‘with a wilful or a wanton disregard for the safety of persons or property.’

“The judgment and sentence are illegal and void, in that same were entered and imposed on a finding of” the law above set forth.

The eyidence heard by the court upon the trial of the charge against this defendant is not preserved by a report of the proceedings, as provided by the statute, and therefore the only point to be considered' is whether upon the face of the record filed in this case the ■ court was justified in the entry of the judgment now here to be reviewed upon the writ of error.

The rule is well established in this State and hardly needs citation of authorities, that where a bill of exceptions has not been filed preserving the evidence heard by the court, it will be presumed that the verdict of guilty upon a criminal charge is not against the weight of the evidence, and in the absence of a statement or report of the proceedings showing the evidence introduced tending to prove the offense, this court will assume that the offense was established by the evidence beyond a reasonable doubt.

The argument presented to this court by counsel for the defendant is that section 48 of ch. 121 of the 1935 Act entitled, “An Act in relation to the regulation of traffic” (Ill. State Bar Stats. 1935, H 323, p. 2792; Jones Ill. Stats. Ann. 85.177) provides:

“Any person who drives any vehicle with a wilful or a wanton disregard for the safety of persons or property is guilty of reckless driving.”

No provision appears in the act as to abbreviations to indicate the use of such abbreviation. Indeed, the use of abbreviations is forbidden by section 18 of the Constitution of Illinois of 1870, p. 27, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. Yol. 1, p. 498, which commands that:

“All laws of the State of Illinois, and all official writings, and the executive, legislative and judicial proceedings, shall be conducted, preserved and published in no other than the English language.”

The defendant then points out that the capitals “U. A. B. T.” in the information are not even as full as an abbreviation.

The courts, however, in this State have held that an information or indictment in the language of the statute is sufficient if the statute itself sufficiently defines the offense.

Complaint is made by the defendant that the information charges a violation of section 48 U. A. B. T. in that it is not sufficient to advise the defendant of the charge lodged against him. However, even though that part of the complaint “in violation of section 48 U. A. It. T., the violation occurred on Outer Drive— 64 miles per hr. from Surf to Briar Place — Heavy traffic passed 17 cars (35 M.P.H. Zone)”, be disregarded, still the charge would be within the language of the statute, in that the defendant did then and there operate a certain vehicle, to wit, an automobile in and upon a public highway within the jurisdiction of the Chicago Park District, with a wilful or a wanton disregard for the safety of persons or property, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois.

It is to be noted from the record that the defendant did not make a motion to quash the information, nor question the jurisdiction of the court to proceed against him upon the charge lodged and which appears in the verified information. The rule which would apply to the state of the record as we find it, where the defendant did not file a motion to quash the information, is that he waives the objection by filing his plea of not guilty unless the information fails to charge a crime.

Considering the question as to whether the information in the instant case charges the crime which it is alleged the defendant committed, we must have in mind sec. 6, par. 740 of eh.' 38 of the Criminal Code, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 37.691, which is as follows:

“Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury. . . .” Together with sec. 9, par. 743 of the same act; Jones Ill. Stats. Aim. 37.694, which provides:

“All exceptions which go merely to.the form of an indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error, shall be sustained, for any matter not affecting the real merits of the offense charged in the indictment. No indictment shall be quashed for want of the words, ‘with force and arms, ’ or of the occupation or place of residence of the accused, nor by reason of the disqualification of any grand juror.”

In taking up this question of what constitutes a charge of a crime for which a defendant may be tried, it is necessary to consider the opinion of the Supreme Court of this State as expressed in numerous cases.

In McCutcheon v. People, 69 Ill. 601, where there was an indictment against the plaintiff in error for unlawfully selling intoxicating liquor to a minor, without the written order of his parents, guardian or family physician, it was claimed that the indictment was fatally defective inasmuch as it failed to aver that the defendant knowingly sold liquors to a minor. The court there said:

‘ ‘ Since the adoption of this statute, it has uniformly been held it was not necessary to do more than state the accusation in the language of the statute creating the offense. Where the intent is mentioned as an element of the offense created by a law, it ought to be alleged; but where it is silent as to motive, no intent need be averred in the indictment.”

In the case of Cannady v. People, 17 Ill. 158, where there was an indictment for selling spiritous liquor in a less quantity than one gallon, the court held that the general averment of an illegal sale is sufficient, and said:

“These great niceties, and strictness in pleading, should only be countenanced and supported," when it is apparent that the defendant may be surprised on the trial, or unable to meet the charge or make preparation for his defense, for want of greater certainty or particularity in the charge.

“Beyond this, it tends more to the evasion than the investigation of the charge, and becomes rather a means of escaping punishment for crime, than of defence against the accusation.”

To the same effect is the case of Warriner v. People, 74 Ill. 346.

In the case of Allen v. People, 82 Ill. 610, the court said:

‘ ‘ The averment in the indictment is specific that the assault was made with a deadly weapon — a pistol; and we can not well understand that anything more could be required of the pleader. To aver that the pistol was loaded, or that it was an instrument of such size and weight as to be a deadly weapon, in the hands of a strong man, who might desire to use it for the purpose of striking a blow, would be, in effect, pleading the evidence which was necessary to be introduced on the trial in order to obtain a conviction. When the pleader averred that the assault was made with a certain instrument, and averred that instrument to be a deadly weapon, the demands of the law were fully answered.

“The case of State v. Seaman, 1 Green, 418, is in point, where the Supreme Court of Iowa held an indictment good where it alleges the assault to have been made with a deadly weapon, without any other description of the instrument.”

Fuller v. People, 92 Ill. 182, wherein the court considered an indictment which charged that the defendant, on, etc., unlawfully did have in his possession a certain obscene and indecent drawing, and held it sufficiently certain and good, without describing* in what the obscenity consists. So in respect to an indecent picture.

In the case of Strohm v. People, 160 Ill. 582, the court passed upon the sufficiency of the indictment under the Act of 1889, and held that an indictment under the Act of June 3, 1889, to suppress the selling, giving or showing to minors of any publication principally made up of criminal news, sufficiently describes the offense in the language of the statute, without setting out the supposed prohibited matter or excusing a failure to do so.

In Honselman v. People, 168 Ill. 172, the court held an indictment alleging that the defendant committed “the infamous crime against nature upon and with” a certain person, ‘ ‘ a man then and there being, ’ ’ sufficiently apprises the defendant and the jury of the nature of the offense charged.

In West v. People, 137 Ill. 189, the court said regarding the rule that it is sufficient to state the substantive elements of the crime in the language of the statute creating the offense, yet in cases of felony the indictment must, either by the statutory description or by other apt averment, so identify the offense as to meet the requirements of the constitution:

“When the offense is purely statutory, having no relation to the common law, — where, in other words, the statute specifically sets out what acts shall constitute the offense, — it is, as a general rule, says Bishop, (1 Crim. Proc. 611,) ‘sufficient, in an indictment, to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter. ’ In United States v. Simmons, 96 U. S. 362, the court, after quoting the rule laid down by Bishop, said: ‘But to this general rule there is a qualification, fundamental in the law of criminal procedure, that the accused must be apprised, by the indictment, of the nature of the accusation against him, to the end that he may prepare his defense, and plead the judgment as a bar to any subsequent prosecution for the same offense.’

“Multiplication of authorities will be unnecessary, for it will be found, upon examination, in this State and elsewhere, that while the general rule is, that it is sufficient to state the substantive elements of the crime in the language of the statute creating the offense, yet in cases of felony the indictment must, either by the statutory description or by other apt averment, so identify the offense as to meet the requirements of the constitution.”

This being the rule laid down by our Supreme Court, we are of the opinion that the information was sufficient to give the defendant notice of the charge he is required to meet; that notwithstanding the words complained of as being unintelligible, still we believe that in the language of the statute the defendant was charged with a wilful or a wanton disregard for the safety of persons or property in the operation of his automobile ■ in the city of Chicago; that the charge informed the defendant and was sufficient for the court to proceed to trial, and we must assume that the evidence established the offense beyond a reasonable doubt, and that the defendant was guilty as found by the court.

The defendant further contends, that there is a second count charging violation of the statute in relation to the regulation of traffic (Ill. State Bar Stats. 1935, ch. 121, H324; Jones Ill. Stats. Ann. 85.178) sec. 49 of which relates to speeding. We feel that under the information as shown by the record, the so-called second count may be disregarded, for the reason that the court found the defendant guilty of the criminal offense of driving a vehicle with a wilful or a wanton disregard for the safety of person or property.

Finally, the defendant contends that the judgment of guilty is erroneous, in that the defendant was not furnished with a copy of the information previous to the trial, as required by the 1933 Act. This act is entitled, “An Act to provide that persons arrested for certain offenses shall be furnished with a copy of the information or complaint upon which they are charged. ’ ’ (Ill. State Bar Stats. 1935, ch. 38, If 753 (1); Jones Ill. Stats. Ann. 37.706.) It provides:

“Every person arrested upon an information or complaint for any criminal offense or for the violation of any penal ordinance of a municipal corporation of this State shall be furnished with a copy of the information or complaint upon which he is charged, not less than one hour previous to his arraignment, hearing or examination. ’ ’

The defendant sought to call the alleged failure to comply with the statute to the attention of the trial court subsequent to the entry of the judgment finding the defendant guilty, and it is made a part of the record by a bill of exceptions filed subsequent to the trial.

To properly bring this question before the court, the record of the proceedings in the trial court wherein evidence was heard, should have been preserved within the time fixed by the court after the judgment of guilty was entered, and not in the manner here presented. In other words, the defendant now seeks to call the attention of this court, by. affidavit, to facts which are alleged to have occurred at the time of the trial, and this will not be permitted. For the reasons stated we are not in possession of any evidence of facts presented at the trial to justify our taking up this question at this time.

The judgment upon the whole record as presented to the court is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J.,-and Hall, J., concur.