author: Mr. Justice Huffman

text:
    John Chucklin, Appellee, v. Frank O. Lowden et al., Trustees of Estate of Chicago, Rock Island and Pacific Railway Company, Appellants.
    Gen. No. 9,616.
    Opinion filed February 14, 1941.
    Rehearing denied April 2, 1941.
    Stafford & Schoede and Edward C. Schoede, all of Rock Island, for appellants; Daniel Taylor and Milton V. Thompson, both of Chicago, of counsel.
    Morris D. Coppersmith and Huber & Riedy, all of Rock Island, for appellee; Isador I. Katz, of Rock Island, and Morris D. Coppersmith and Albert Huber, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an action by appellee to recover for injuries received in a collision between an automobile then being driven by him and one of appellant’s trains. Trial resulted in a verdict for appellee in the sum of $7,500. Appellants bring this appeal on judgment rendered thereon.

The accident occurred in the city of Moline, where 15th street crosses appellant’s tracks. The street runs north and south, and appellee was traveling south. The tracks run east and west, and the train was traveling east. The accident happened a few minutes before 6:15 in the morning. The train involved is known as the Golden State Limited, and on the morning in question was composed of 15 coaches. It pulled out of the station in Eock Island at about 6:08 a.m. After leaving the station, it proceeded east and as it approached the 15th street crossing, according to the testimony of the conductor, engineer, and fireman, had reached a speed of from 20 to 25 miles per hour.

The appellee charged that appellants, through their servants who were in charge of the train, operated the same so carelessly and negligently as to wrongfully cause his damages. He further charged appellants with failing to keep a proper lookout on the engine; failing to keep the train under proper control; failing to provide a flagman at the 15th street crossing; failing to maintain a safety gate, and failing to maintain proper mechanical signal device at such crossing.

Appellants alleged that appellee was not in the exercise of due care and caution for his own safety at the time in question, that his injuries were the result of his own negligence, and deny all forms of negligence charged. Many other matters were set up by answer to the averments contained in the several counts of the complaint but we do not deem it necessary to make reference to same here.

Appellants maintained a crossing watchman at this street crossing each day from 6:30 a.m. until 12:00 o’clock midnight. The crossing is located in the factory district. Appellants claim that very little traffic crosses here between midnight and 6:30 in the morning.

Appellee by occupation is a window washer. It appears that it is his custom to start out of a morning at about three o’clock, and that he did so on the morning in question. He passed over this crossing to the north and to an office building where he was engaged in his work until shortly before the accident. He had thus been employed at this building for 3 years. Upon leaving this building he started driving south on 15th street toward the crossing in question. He states that he looked to the left and to the right; that he saw nothing coming; that he saw no watchman; that he thought if a watchman was there, he would stop but since none was there, that he kept going; that he did not hear any whistle or other warning and was not aware of the approach of the train.

It appears from appellee’s testimony that it had been his custom to pass over this crossing in his work from four to six times per day since 1927. He states that at the time of the accident, he had his car in second gear and was going about 10 miles per hour. He had almost cleared the crossing when the accident occurred. The side of the engine struck the rear portion of his automobile, injuring appellee and damaging his car. He states the weather condition was bad for visibility at the time. It further appears that it was his custom to go to the same building to start work each morning, at about three o’clock. This necessitated his crossing the tracks going north. Upon his completion of the work at the building, it was his custom to then drive south across the tracks as he was doing upon the morning in question. He states he did not see any watch-man at the crossing at 3 a.m., but that he did not know a -watchman was not there. He says he had seen a watchman at other times during the daytime. There are a series of tracks at the place in question, some belonging to appellant and some to the Burlington. He states that he looked toward the depot, the direction from which the train was approaching; that he saw no train; that he heard no whistle and heard no bell; that his hearing and sight were good; that it was a cold, frosty morning; that the windows of his car were closed and that they were frosty, being clouded over with vapor. He states that he could see through the windshield but that he could not see through the side windows.

One witness for appellee states that he saw the train coming and heard the whistle; that he did not see the accident but that he heard the crash when it occurred. He estimates the speed of the train to have been between 40 and 45 miles per hour.

Another witness for appellee states that he saw the train approaching the crossing in question, and that in his opinion it was running from 50 to 55 miles per hour. He also states that he saw an automobile approaching the track on which the train was traveling, and that the automobile was moving at about 10 miles an hour; that when he crossed the street, he heard a “bang” and turned around and saw that the car had been hit. He does not recall hearing any whistle or bell being sounded.

A witness for appellants, who was employed in the vicinity, was walking on 15th street at the time of the accident. He states he heard the train coming and heard the whistle; that he saw the automobile coming from the north; that he heard the train whistling and coming closer; that he continued on north and the automobile continued coming south; that it was proceeding slowly; that the train kept coming and the automobile kept coming; that the man driving the automobile was looking straight ahead, and that as his automobile came upon the track in question, the train hit it. He says he heard the train whistle several times; that it was a long heavy train; that the accident happened about 12 minutes after six; that he went to the scene of the accident and from there to his work.

Another witness for appellants was on his way to work at the time in question. He states he' saw the train before it reached 11th street; that it blew the whistle all the way from 11th street to 15th street where the accident occurred, and that the bell' was ringing. He says he saw the automobile approaching the crossing; and that he was near the shanty which was used by the watchman at the crossing when on duty. He states that the man driving the automobile was looking straight ahead and he did not see him look in any other direction; that the engine struck the rear of the automobile near the right-rear wheel; that the impact caused the automobile to come over toward "Where this witness was standing and that he ran out of the way; that he does not think it turned the automobile over but that it turned it around and the driver fell out of the door on his left side. He states that the whistle was blowing and the bell was ringing, and that the train was making the usual noise. He saw no other automobiles approaching the crossing at that time.

Appellant’s trainmaster was riding in the engine cab that morning and states that the engineer was in his accustomed position on the right side of the cab, and that the fireman was riding upon the left side. The trainmaster says that he was standing by the engineer ; that he was blowing the whistle; that the bell was rung by an automatic devise which was then in operation and the bell was being thus rung* automatically; that the train was traveling at a speed of from 20 to 25 miles per hour; that as the 15th street crossing was being approached and while he was blowing* the whistle, the fireman yelled, “spike her.” This occurred at the west edge of the 15th street crossing and at a time when this witness says he was pulling* the whistle cord. The train was brought to a stop shortly after the collision. The meaning of the expression used by the fireman was to set the air in order to bring the train to a stop. He states that when the fireman gave the alarm and the air was set, that he and the engineer both looked out of the right side of the cab; that they could not see the automobile until they struck it on account of the size of the engine, and the fact that the automobile had to cross the track far enough to become visible; that as soon as the accident occurred, he looked at his watch and it was 6:13 a. m.

Another workman who testified for appellants and who was on his way to work that morning states that he saw the accident. He says the weather was very cold but that visibility was good; that he heard the train coming and heard the whistle and hurried toward the track in order to get across ahead of the train; that as the engine approached the crossing in question, he saw an automobile coming from the north; that the whistle was blowing; that the automobile was traveling slowly; that the right-hand side of the engine struck the right-rear side of the car; and that the automobile almost “got across ahead of the train.”

Another witness employed as a crossing policeman by the city of Moline states that he was in his car that morning, and that as he drove across the 14th street crossing, going north, he heard the whistle of a train approaching from the west; that the whistle was being blown repeatedly; that he drove east to 15th street and that as he turned on 15th street, the accident occurred.

Appellee’s charges of negligence against appellants which were directed toward the operation of the train were questions of fact. The maintaining of automatic signal devices at such crossings is under the jurisdiction of the Commerce Commission of the State. We do not find where it is charged that such commission had ordered automatic signal device installed at this crossing, or that any of the regulations or orders of the said commission were then being violated. The question here is whether there was any negligence charged and proven on the part of appellants that was the proximate cause of plaintiff’s injuries.

Appellee states that he did not see the train approaching. This is quite evident. Those witnesses who observed his car crossing the tracks and saw the train coming, state that he was driving it slowly and that he did not alter the speed. All the facts and circumstances in evidence as well as the testimony of the witnesses who saw the accident, establish the fact that appellee did not see the train. Considering the manner in which his car was struck, it would appear that he had either cleared the south rail or practically so at the time of the collision. It is common knowledge that a large railroad engine used to pull heavy trains as in this case, extends out beyond the rails on either side for a considerable distance. From the evidence, it appears that the side of the engine struck the rear portion of appellee’s car, causing it to skid and turn about in the street but not overturning it. This would indicate that he needed but a few more inches to have avoided the collision.

We are of the opinion that the evidence in this case does not support the verdict. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Fulton

license: Public Domain

text:
    In re Estate of William G. Blyman, Deceased. (Shelby Loan and Trust Company, Executor, Appellee, v. D. A. Milligan, Appellant.)
    Gen. No. 9,253.
    Opinion filed February 25, 1941.

      J. L. McLaughlin, of Sullivan, and U. G. Ward and R. I. Pugh, both of Shelbyville, for appellant.
    Philip L. Turner, John J. Baker and Geo. B. Rhoads, all of Shelbyville, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

William G. Blymau, a resident of Shelby county, Illinois, became deceased on the 8th day of April, 1937. At the time of his death the decedent left two instruments each of which purported to be his last will and testament. One will was dated February 5, 1937, and named the Shelby Loan & Trust Company, executor thereof. A petition to probate said will was filed in the county court of Shelby county and hearing on the same set for May 17, 1937. On the day of the hearing D. A. Milligan filed the other purported will of the deceased, together with a petition to probate it. This will was dated March 13, 1937, and named D. A. Milligan as executor. On subsequent hearings the county court admitted the Shelby Loan & Trust Company will to probate and denied the petition to probate the Milligan will. Milligan appealed from the judgment of the county court on each of said petitions to the circuit court where both appeals were heard. The circuit court reversed both judgments of the county court and directed that court to admit the Milligan will to probate and to deny the petition to probate the Shelby Loan and Trust Company will.

The mandate of the circuit court in both appeals was filed in the county court, and on the 27th day of December, 1937, that court entered orders in compliance with such mandate allowing probate of the Milligan will, refusing probate of the Trust Company will. Milligan immediately qualified as executor by filing oath and bond and letters testamentary were issued to him as such executor.

The Shelby Loan & Trust Company then filed its complaint in the circuit court of Shelby county to contest the will dated March 13, 1937, designated as the Milligan will, making all parties having any possible interest either plaintiffs or defendants therein. This case was tried in the circuit court, and the so-called Milligan will was set aside by a verdict of the jury finding that the said will was not the last will and testament of William G-. Blyman, deceased. Judgment was entered upon the verdict of the jury, and an appeal taken to the Supreme Court of the State of Illinois from such judgment, where on hearing the decree and order of the circuit court was affirmed. The mandate of the Supreme Court was filed in the circuit court, and on December 21, 1939, that mandate and a certified copy of the order of affirmance of the Supreme Court was filed with the clerk of the county court of Shelby county.

On the same day the Shelby Loan & Trust Company filed a petition in the county court setting forth a history of the case much as it appears in this opinion and praying for an order setting aside all previous orders admitting the Milligan will to probate or denying the probate of the will of February 5, 1937. It also asked that the court enter an order confirming and enforcing the order probating the Trust Company will and appointing the petitioner executor.

The petition further prayed for an order directing Milligan to forthwith turn over to petitioner, as executor of the will of William Gr. Blyman, deceased, all property and effects of said estate in his hands, and requiring him to file and render an account of his acts and doings as executor under the will of March 13, 1937, which had been set aside and held not to be the last will and testament of the decedent.

On December 28, 1939, after a hearing on said petition the county court entered an order setting aside and vacating all previous orders concerning the probate of the will of March 13, 1937, and confirmed its prior orders and findings relating to the probate of the will of February 5, 1937, and the appointment of the Trust Company as executor thereunder.

The order further provided that the appointment 'of D. A. Milligan as Executor under the will of March 13, 1937 be vacated; that the said D. A. Milligan be directed to forthwith pay and deliver to the Shelby Loan & Trust Company, as executor, all of the assets of every kind belonging to said estate and in his hands, and that he be required to file a report of his acts and doings in said estate on or before January 6, 1940.

D. A. Milligan took an appeal from this order of the county court to the circuit court. Whereupon the Shelby Loan & Trust Company, who in the meanwhile had qualified as executor of the will under date of February 5, 1937, filed its motion in said circuit court to dismiss said appeal, setting forth the following grounds in support of said motion:

1. This appeal is prematurely taken.
2. The said David A. Milligan is acting as so-called executor of the estate of William Gr. Blyman, deceased, and acting for himself and has no interest in the matter which is appealable.
3. In this proceeding the matter appealed from is not a matter which may be brought before this court upon an appeal from the county court of Shelby county, Illinois, in probate.

Upon the hearing of said motion to dismiss in the circuit court, the motion was allowed and the appeal dismissed. It is from this order of the circuit court of'Shelby county, that the appeal comes to this court.

It is the contention of the appellee that all matters with reference to the two wills have been litigated and settled by the decree of the circuit court, and the affirmance of such judgment and decree by the Supreme Court of Illinois; that because the will dated March 13, 1937, has been judicially determined not to be the last will and testament of William Gr. Blyman, deceased, that D. A. Milligan has no possible interest upon which he can base an appeal. Also that an order of the county court requiring an executor to account is not an appealable order. Conceding much that ap-pellee has said about all matters in litigation over the two wills having been finally and completely determined, there is one feature of the order which is erroneous. As a part of said order it recites: “And the said D. A. Milligan’s appointment as executor in this estate under said will of March 13, 1937 is hereby vacated and set aside and his position in said office is terminated; and he is directed to forthwith pay and deliver to the said Shelby Loan <fc Trust Company as executor, all the assets of said estate now in his hands, including monies, papers, deeds, records and accounts forthwith.”

We believe the court went too far in ordering the assets of said estate turned over to the new executor forthwith. In the case of Smith v. Smith, 168 Ill. 488, the court discusses the status of an executor after probate notwithstanding the subsequent setting aside of the probate. On page 496 of that opinion it states: “The general.rule seems to be, that the acts of an executor after probate are valid, notwithstanding the subsequent setting aside of the probate. Sales made by the executor, or payments made to him, will be sustained, although the probate is afterwards set aside. . . . This being so, there is no reason why, if such sales and payments have been proper and right, the acting executor should not receive such compeiisation as the statute allows, even though his letters testamentary are subsequently revoke^. by the setting aside of the will. The probate of the will in the county court is prima facie valid until it is set aside. ... If the grant of letters testamentary is to be looked upon as an absolutely void act upon a subsequent setting aside of the will by a judicial proceeding, then all the acts of an executor done between such grant and its revocation might be regarded as void,- and in such case the executor would not be entitled to his compensation. But the better doctrine seems to be that the grant is not void, but only voidable.”

After quoting from and discussing cases where letters of administration have been granted in ignorance of the fact that there was a will, and afterwards upon discovery of the will, it was probated and- recorded, and letters of administration were revoked, and letters with will annexed were granted to another person, that in such case the grant of the first letters was not void but voidable, the court, further says: “There is no reason why the same principle, which thus applies to a case where letters of administration are revoked upon subsequent admission' of a will to probate, should not also apply to a case where an executor has acted in good faith under a will which is afterwards set aside.”

The procedure in such cases was definitely outlined in the case of Snell v. Weldon, 162 Ill. App. 11, where the court said: “The county court erroneously required appellee to turn over all the property in his possession as executor to appellant as administrator without giving appellee an opportunity to state his account as such executor, and the finding of the circuit court that the county court- erred in that particular was right. ’ ’ The court -further said: ' ‘ The order of the county court operated as a final judgment against appellee and an appeal therefrom was properly taken to the circuit court.”

Again in Snell v. Weldon, 162 Ill. App. 11, 14, it was stated: “Appellee was entitled to file a report of his acts and doings as executor, and to have his account as executor passed upon and'adjudicated, before being required to turn over the property in liis possession as executor to appellant as administrator. . . .”

Believing the county court wrongfully ordered Milligan to turn over the assets of the Blyman estate forthwith, before giving him a chance to have his accounts passed upon, we are of the opinion that the circuit court should have retained jurisdiction to try the case on appeal de novo and that it was error to grant appellee’s motion to dismiss appeal. This case is therefore reversed and remanded to the circuit court for further trial.

Reversed and remanded.


text:
    Bertha B. Newby, Appellee, v. Charles Dudley Kingman and R. G. Real, Appellees. Thomas V. Wright, Trustee Under Last Will and Testament of Carrie Kingman, Deceased, Appellant.
    Gen. No. 9,262.

      Opinion filed February 25, 1941.
    Jacob Berkowitz and Kiger & Dilsaver, both of Mattoon, for appellant; George N. Gilkerson, of Mat-toon, of counsel.
    Craig & Craig, of Mattoon, for certain appellee.
    J. Boy Browning, of Chicago, for certain other ap-pellee.
    Harry I. Hannah and Thomas R. Figenbaum, both of Mattoon, for certain other appellee; Roger Fruin, of Mattoon, of counsel.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

Bertha B. Newby, the plaintiff appellee and a real estate broker in Coles county, Illinois, brought suit in the circuit court of said county against Charles Dudley Kingman and B. G. Beal, defendants appellees, Thomas V. Wright, trustee under the last will and testament of Carrie Kingman, deceased, defendant appellant, and other parties not interested in this appeal, to recover real estate commission for the sale of a business building in Mattoon, Illinois. The property, known as the Demaree Building, had been devised by the testatrix in equal shares to her two children, Bertha Kingman Bogers and Charles Dudley Kingman, and to two trustees for a third child, Tracy Kingman.

The case was tried before the court without a jury and the court found for the appellee, Bertha B. Newby, as against the appellant, Thomas V. Wright, trustee of the last will and testament of Carrie Kingman, deceased, in the sum of $666.66, and costs of suit. Judgment was entered upon such findings against the appellant, resulting in this appeal. In its judgment the court further found that the plaintiff take nothing by her suit against Charles Dudley Kingman and R. Gf. Real, or either of them. No complaint or appeal is taken from that part of the judgment and will receive no further notice from this court.

The cause was tried upon the second-amended complaint of appellee and alleged in brief as follows: The ownership of the property; the creation of the trust by the will containing the power and authority of the trustees to sell real estate; that the appellee, a real estate broker, was requested by the trustees of said will to find a buyer and she did find and produce a buyer, who did in fact purchase at the price she procured him to offer; that the commission due was $2,000; that the sale was reported by the trustees to the court together with the request for allowance of a $2,000 commission out of the total sale price of $60,000, of which the trustees portion would be one third; that the court approved the sale and allowance of commission and ordered the trustees to pay their proportionate share and that the trustees had refused to pay.

The answer of appellant denied most of the material allegations of the complaint.

By his motion to strike the amended complaint, which was renewed at the close of plaintiff’s case, and by his appeal from the judgment, the appellant raises the question of law as to whether, even if there was a contract and performance thereof by the appellee, could the appellee recover from the áppellant where the appellant was a successor trustee, who had no connection with the contract or performance thereof.

The facts pertaining to that issue are as follows: In her last will and testament, Carrie Kingman bequeathed and devised one third of her property to her son, Charles Dudley Kingman, and R. Gr. Real, as trustees, upon the following expressed trust: “Said Trustees shall, upon my death, take possession of said one-third interest in said property, and shall manage and care for the same, investing any portion thereof from time to time as circumstances require in income producing bonds or securities to be approved by the court, and shall pay the entire income from the property hereby conveyed after payment of expenses, to my son, Tracy Kingman, and I further authorize and dir rect said Trustees, if in their judgment it is advisable to do so, to sell and convey any of the real estate composing said trust estate, at either public or private sale, and to execute proper deeds of conveyance therefor, and to invest the proceeds of said sale or sales in income producing bonds or securities to be approved by the court. At the death of my son, this trusteeship shall terminate and all of said property composing said Trust Estate shall descend to the children of my son, Tracy Kingman.”

It became the desire of Charles Dudley Kingman, Bertha Rogers and the trustees, to sell the Demaree Building. Early in 1936, the appellee, while working as a saleswoman for the firm of J.'B. Franklin & Son, learned of the intended sale. She contacted Louis Linder as a prospective buyer. In September, 1936, she obtained a brokers license and procured a sale price of $70,000 for the building from the trustees. She then frequently negotiated with Louis Linder who made a standing offer of $60,000, and on July 23, 1937, purchased the property at that figure. The offer of $60,000 had been communicated to the trustees by the appellee and at first refused. After the sale she notified them ■ she was entitled to a commission. In July, 1937, the trustees filed their sworn petition in the circuit court asking the approval of the sale for $60,000 and set up that a commission of $2,000 was to be paid out of the sale price. On August 3, 1937,- the circuit court entered an order approving the sale, and the allowance of a commission of $2,000, and ordered the trustees to pay their proportionate part, or one-third of such commission.

In December, 1937, Charles Dudley Kingman and R. Gr. Real filed their final report as trustees, and were discharged. The appellant, Thomas V. Wright, was then appointed as successor trustee. Neither he, nor the former trustees have ever paid any commission to appellee.

In contending that no possible judgment could be entered against appellant or against Charles Dudley Kingman and R. Gr. Real if they were still the trustees, appellant quotes from a long list of Illinois cases holding that if a trustee makes a contract in his own name for the benefit of the trust estate, he is liable on it personally and not in his representative capacity, whether he describes himself as trustee or not. Those cases in our opinion are clearly distinguishable from the case under consideration. In the case of Equitable Trust Co. of Chicago v. Taylor, 330 Ill. 42, where the trust agreement gave power to three trustees to execute notes in behalf of the trustor in carrying on his business, and one of the trustees borrowed $1,000 from the bank and signed a note ‘ ‘William Goyette, per L. Taylor, Trustee,” it was held that the trustee exceeded his authority, and that he could not create a lien on the trust estate without express authority given by the instrument creating the trust. A different situation would have arisen if all three trustees had executed the note and been sued by the bank for nonpayment.

In Wahl v. Schmidt, 307 Ill. 331, and O’Connor v. Bathje, 298 Ill. App. 489, both cases relied upon by appellant, an attempt was made to hold the trust estates for the negligence of the trustees. The court held in each case that the duties of a trustee make him personally liable for torts committed by him or the agents or servants in his employ, but that a trustee is not liable in his representative capacity for an injury caused by his negligence in the management of the property held in trust. We believe a different rule applies where a lien is created on the trust estate in pursuance of express authority given in the trust instrument.

Trustees and trust estates would be greatly hampered and hindered if they could not employ assistants and agents to aid in carrying out the powers contained in the trust, and to make the trust estate liable for the payment of such services. It is common practice for trustees to employ attorneys, secretaries and other agents under general powers given them in the trust instrument. We can see no reason why real estate brokers should not be employed to assist in making-sale of real estate where the power of sale is expressly authorized. It is our opinion that the courts of Illinois have indicated approval of these principles. In Johnson v. Leman, 131 Ill. 609, it was held that, A Trustee cannot create a lien on the trust estate, even by his contract, without express authority given by the instrument creating the trust. In 2 Perry on Trusts, sec. 912, it is stated that a trustee may employ necessary assistants in executing the trust and pay for their services from the trust fund.

In the present case, under the terms of the last will and testament of Carrie Kingman, deceased, Charles Dudley Kingman and E. G-. Eeal, as trustees named therein, were expressly authorized to sell the real estate of said decedent, at either public or private sale, and execute the proper deeds of conveyance therefor. While no express authority was granted said trustees to employ brokers or other agents in connection therewith, nor to compensate them for their services, such authority is incident to and is implied in order to carry out the powers granted. Such acts do not constitute a delegation of trust powers and such expenses are the obligations of the trust estate. Hibernian Banking Ass’n v. Roseboom, 214 Ill. App. 324; Coleman v. Connolly, 242 Ill. 574.

Thomas V. Wright, as successor trustee took over the management of said trust, together with the obligations chargeable thereto, and while not personally liable therefor, not having contracted the debt, he is obliged to pay the same out of the funds belonging to said trust.

The appellant as further grounds for reversal urges the question as to whether appellee ever had a contract with the former trustees and, if she did, as to whether she performed the contract, so as to be entitled to recover anything from appellant. The testimony in the case shows plainly that it was the appellee who contacted the purchaser Linder. It was she who prepared financial statements regarding the building for him and got him interested as a prospective buyer. She took Linder and his contractor over for an inspection of the building. She conferred with Charles Dudley Kingman and R. Gf. Real, the trustees, both in person and by letter. For more than a year she saw Linder at frequent intervals and procured his standing offer of $60,000 for the property, and it was finally sold to him at that figure. There is plenty of evidence in the record, both oral and documentary, to sustain a finding'that appellee was the procuring cause of the sale. We further believe the oral testimony of the appellee, Kingman, Real, Linder and others, together with the correspondence between the appellee and Kingman and Real was sufficient to show her employment by the trustees to sell.

The judgment of the trial court is affirmed.

Affirmed.


text:
    In re Estate of Anna Strickland, Deceased. Frank Dawdy, Administrator, Appellee, v. Hal Strickland and Granite City Trust and Savings Bank, Defendants. Hal Strickland, Appellant.
    Gen. No. 9,267.
    Opinion filed February 25, 1941.
    Jos. O. Steele, of Granite City, for appellant; J. F. Beck, of Edwardsville, of counsel.
    Clement L. Smith, of Carrollton, and Beal B. Smith, of White Hall, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

Anna Strickland, a resident of Greene county, Illinois, died intestate on March 20,1939. On June 27, 1939, Frank Bawdy was appointed administrator of her estate, in the county court of said county. On August 19, 1939, the appellee, Frank Bawdy, as such administrator, filed in the said county court, his affidavit, alleging he had been informed that the appellant, Hal Strickland, son of the decedent, had in his possession certain assets belonging to the estate of Anna Strickland, deceased. The Granite City Trust & Savings Bank was also made a defendant to the petition and charged with having possession of certain bonds belonging to Anna Strickland. The petitioner prayed that a citation issue against said Hal Strickland and Granite City Trust & Savings Bank, each to appear and be examined touching said cause. The citation was issued and served on each of the respondents.

The petition for citation was heard in the county court on September 12, 1939, and taken under advisement by the court. On September 23, 1939, the cause came on for final determination and the prayer of the petition denied. An appeal was taken and the matter heard in the circuit court, where petitioner made a written demand that respondents turn over to him as such administrator $3,500 par value of Washington Theatre bonds, or cash in lieu thereof. On March 19, 1940, the case was tried before a jury and a verdict returned finding ‘ ‘ the issues in favor of the petitioner Frank Bawdy, Administrator, etc., and assessed petitioner’s damages at the sum of $3,500.00.” Motions made by appellant at the close of petitioner’s evidence and at the close of all of the evidence for an instructed verdict were denied. Buring the trial, on motion of appellee, the petition was dismissed as to Granite City Trust & Savings Bank.

The court thereafter entered judgment on said verdict in favor of Frank Dawdy, administrator, and against the appellant, Hal Strickland, for the sum of $3,500 and costs. It is this judgment of which the appellant, Hal Strickland complains on this appeal.

The facts giving rise to this controversy are that Anna Strickland during her lifetime and particularly from 1928 to 1935, owned certain bonds issued by Washington Theatre Company, amounting to $3,500, and that she left them with R. C. Barney, a cashier of Granite City Trust & Savings Bank for safekeeping. He testified that the bank acted as trustee "for the bonds which were redeemed October 15, 1937. Whenever the bonds were presented after that date they were paid off in full. He further testified that about the 1st of July, 1935, Hal Strickland was authorized by Anna Strickland to take charge of those bonds at the bank and that they were all turned over at one time to Hal Strickland on a letter from Mrs. Strickland. He was not able to find the letter but recalled definitely that it was brought.to him.

The appellant, Hal Strickland, testified that in June, 1935, he was living in Granite City and that in October he went to work in Fleishman’s store; that his mother had $3,500 invested in Washington Theatre bonds; that his mother turned over all of the bonds to him on June 7, 1935, and he used them to buy an interest in the store; that at the time of transfer he took shares of stock in his own name; that his mother gave him the bonds and wanted him to have them; that she said she was giving him the bonds because at one time there was $6,000 of his money deposited in the bank in his father’s and mother’s name; that he had to enter suit for recovery of same but the suit was settled for $3,000, and she wanted to right a wrong done him. He further testified that his mother conveyed some real estate to his sister Pauline and that was another reason why she wanted him to have the bonds. The appellant and Pauline were the only children of Anna Strickland.

As against the testimony of appellant, Amy Hazel-wood, a sister of Anna Strickland, testified that during December, 1935, Mrs. Strickland visited in the Hazelwood home in Granite City, remaining there until April, 1936; that in her presence and that of her daughter and son, the appellant had a conversation with Ms mother concerning use of the Theatre bonds, in which appellant asked permission of his mother to use the bonds; that Hal told his mother he would lose his job i'f he didn’t put money into the store; that his mother told him he could use the bonds; that appellant afterwards on several occasions told her he was paying his mother $245 per year or 7 per cent interest on the bonds.

Margaret Hazelwood, daughter of the last witness, testified to the same conversation and substantially corroborated her mother’s evidence.

The appellant maintains that the verdict is against the manifest weight of the evidence and that under no construction of the testimony could the appellee be entitled to a money judgment for damages against the appellant.

As to the weight of the evidence the testimony was directly in conflict, on the questions of fact and it was peculiarly the province of the jury to determine those questions. There was sufficient competent evidence in the record to sustain the verdict found by the jury, and it should not be disturbed.

The other question raised by appellant deserves serious consideration. He contends that in order to recover damages such as were assessed by the judgment of the circuit court, it would be necessary to bring a plenary action at law. The action in this case was brought upon a petition for citation under the authority provided by sections 81 and 82, of the Administration Act as amended in 1925, and in full force and" effect in August 1939, when the action was commenced in the county court of Greene county.

‘' Section 81 of the Administration of Estates Act provides the method and procedure of bringing before the Court persons who are alleged to have in their possession property belonging to the estate of a deceased person or to their legal representatives, and provides that the Court make such order in the premises as the case may require, and that the Court shall have power to hear, settle and adjudge all controverted questions of title and claims of adverse title and to determine the right of property, and further provides that such questions of title and of rights of property, and such claims of adverse title shall be determined, upon the demand of either party, by a trial by jury.

“Section 82 of the same Act provides that if such person refuses to deliver up such property or effects, or in case the same has been converted, the proceeds or value thereof, the court may, upon proper requisition being made for that purpose, commit such person to jail until he shall comply with the order of the court therein, and that if the order is for the delivery of such property or effect the court may enforce such order by execution against the real and personal property of the person thus ordered. And, said Section further provides that “With respect to property and effects concerning which there is raised a question of title, or the right of property, or claim of adverse title, the court shall (upon trial by jury as provided in the preceding section, if such trial is demanded)' enter a judgment according to the right of the matter and enforce the same by execution against the real and personal property of the person against whom such judgment is rendered, or the court may enforce its judgment and order in the premises by proceedings in contempt against any of the parties to said proceedings.”

Appellant relies chiefly upon the case of Johnson v. Nelson, 341 Ill. 119. In that case the court held that the question whether an intestate, who gave money to his son, made a loan or an outright gift cannot be determined by a citation proceeding under sections 81 and 82 of the Administration Act, as the title to the money in either case passed to the son and no question of title is open for determination under the Amendatory Act of 1925, and if the transaction was a loan the remedy for collection of the debt is an action at law. The court said, “To enforce collection of the indebtedness in such a case, by the rendition of a personal judgment against the debtor, was not within the scope of sections 81 and 82 prior to July 1, 1925, and no such power was conferred by the amendatory act, either expressly or by implication.” But that case also held in commenting on section 81 that “the purpose of the section as amended, apart from the recovery of books of account, papers or instruments of title, and the obtaining of information, is to recover possession of specific property, or if converted, its proceeds or value.”

It is quite plain in this case that the appellant claimed adverse title to the property sought to be recovered by the appellee. We believe that because the transaction inquired into in this proceeding related to bonds and the title thereto, it is easily distinguishable from the facts in Johnson v. Nelson, supra, where the controversy was over money, and it was not claimed that petitioner in that case would be entitled to a return of the identical money which was loaned. While we do not believe the remedy given by sections 81 and 82 is applicable to the collection of a debt, we do think it contains power to determine questions of title and rights of property, and to enforce compliance with the same. This procedure seems to have been approved in the case of Wilson v. Prochnow, 284 Ill. App. 369, where the decree of the circuit'court finding that the petitioner have execution for said money judgment as upon a judgment at common law against the real and personal property of the respondent, Prochnow, was quoted with approval by that court. In that case there was a finding or money judgment awarded petitioner in the decree in the sum of $30,282.61, because of securities embezzled or converted.

The appellant further suggests that there is no evidence of the value of said bonds in the record upon which a money judgment could be based, but the testimony of the cashier of the bank, R. C. Barney, that the bonds were redeemed and paid off in October of 1937, is sufficient basis for the value found in the verdict of the jury.

The judgment of the circuit court of Greene county was fully warranted by the record in this case and is affirmed.

Affirmed.


author: Mr. Justice Biess

text:
    Thomas A. Penman et al., Appellees, v. Village of Philo, Appellant.
    Gen. No. 9,259.

      Opinion filed February 25, 1941.
    Little & Finfrock, of Urbana, for appellant.
    Dobbins, Dobbins & Thomas, of Champaign, for certain appellee.
    H. Leonard Jones, of Champaign, and L. H. Strasser, for certain other appellees.
   Mr. Justice Biess

delivered the opinion of the court.

An appeal was wrongfully taken from a judgment of the circuit court of Champaign county disconnecting certain territory from the Village of Philo to the Supreme Court and was transferred by that court upon motion of the appellees to the Appellate Court of the Third District.

The original petition was filed by plaintiffs, Thomas A. Penman as individual owner of the premises therein described and sought to be disconnected from said Village, and Norman B. Pitcairn and Frank C. Nicodemus, Jr., receivers of the Wabash Bailway Company, which was the owner of a right of way easement across the same previously acquired by condemnation proceedings. Subsequently, the Wabash Railway Company intervened as a copetitioner therein.

The petition, filed under the provisions of the Disconnection Act (par. 385d, ch. 24, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 21.403(1)]), sought to disconnect 75 acres of land owned by said Penman and crossed in an eastwardly and westwardly direction by the right of way of said Wabash Railway Company lying within the' corporate limits of said Village of Philo. The tract sought to be disconnected was described in both the petition and order of court disconnecting the same as follows: “The East Half of the Northeast Quarter of Section Twenty-two (22), in Township Eighteen (18) North, Range nine (9) East of the Third Principal Meridian, except the grounds used for Cemetery in the Southeast corner thereof, and except, also, two (2) acres described as follows: Commencing at the intersection of the center line of Grant Street, in the Village of Philo, with the center line of the public highway at the west end thereof, running thence north 117.8 feet, thence West 400 feet, thence South 217.8 feet, thence East 400 feet, to the center line of said highway, thence North 100 feet to the place of beginning.” It was so further alleged and found that the tract sought to be disconnected contained more than 20 acres, to-wit: 75 acres; that the area was not subdivided into city lots or blocks or in any other manner; that the land is located on the border or boundary of the Village and that to disconnect it would not result in the isolation of any part of the Village from the remainder, and it was prayed in the petition and ordered by the court that the same be disconnected.

The defendant Village filed a motion to dismiss the petition on the following grounds: That it did not show the appointment of the receivers or that the same had not been revoked or set aside; that it did not show their authority to present such petition as not being within the usual power or powers of the receivers; that they claimed powers under a certain order or record, a copy of which was not attached to the petition, and denying their right to file the same; that the lands described did not constitute one tract or parcel but constituted separate tracts of land and railroad right of way; that the disconnecting act is unconstitutional in that the same is discriminatory and grants special privileges to owners of lands which have not been platted which are denied to owners of other lands similarly or identically situated, which have been platted into city blocks or lots, and that said act is unconstitutional for other grounds not urged on this appeal. This motion was heard and denied by the trial court, and defendant stood by its motion, following which default for failure to plead further under rule therefor was entered and proof heard by the court, and the final order disconnecting the land from the Village subject to taxation for any bonded indebtedness contracted prior to filing said suit was entered, followed by defendant’s appeal herein.

The principal contention of defendant appellant’s brief was directed to the alleged discriminatory nature and unconstitutionality of the act. The contentions in relation thereto were substantially covered in the opinion of the Supreme Court in the case of Punke v. Village of Elliott, 364 Ill. 604, 5 N. E. (2d) 389, and upon transfer of the instant case by the Supreme Court to this court, such contentions are not matters to be passed upon herein.

Further error was assigned by appellants in decreeing said disconnection; in disconnecting the Penman land; in finding that Pitcairn and Nicodemus were receivers; in finding that said receivers were proper parties as petitioners; that the order disconnecting lands was at variance with lands described in the petition; in permitting plaintiffs to amend the petition and make new parties without leave of court being first obtained; in overruling motion to dismiss the petition; in entering an order of default and decree pro confesso. The brief and argument, as hereinabove stated, was directed almost entirely to the constitutional objections, which will not be considered herein.

One of the contentions of the appellant was that the petition did not state that the land sought to be disconnected is not contiguous in whole or in part to any other city, town or village. While it was not contended to be and was not in fact so contiguous, this objection was neither raised in the motion to dismiss nor pointed out in the assignment of errors herein and is therefore waived and is not properly before this court. The general statement in the motion that the petition did not “set forth any facts showing that the petitioners are entitled to the relief prayed in and by their said petition” does not point out any specific objection and is not sufficient under our Practice Act to preserve it for review in this court.

While the tract disconnected was owned in fee by petitioner Penman, subject only to the right of way of the railway company, we hold that the lower court did not err in disconnecting the entire area covered by the petition, over which the right of way easement extended. We find no variance between the petition and the final order of court.

The contention that the Wabash Eailway Company intervened without leave of court is not sustained by the record and is without merit. The defendant was ruled by the court to plead to the complaint as amended by a specified day and hour, but made default in not so doing, and did not raise the above point in its motion to dismiss. It was properly defaulted by the court for such failure to plead, following which proof of the allegations of the petition and final order was entered by the court, as hereinabove indicated.

Owners of more than one tract, where the whole area constitutes an acreage in excess of 20 acres and meet the remaining requirements of the statute, may join in the petition for disconnection. Illinois Cent. R. Co. v. Village of South Pekin, 374 Ill. 431, 29 N. E. (2d) 590. We find no force in defendant’s contention that the petitioners might not except from the 80-acre tract, the 2-acre residence tract and the cemetery premises, which were not included within the 75 acres sought to be disconnected.

We have examined the abstract and record and respective briefs of parties herein, and although we have not commented upon all assignments of error, we have fully considered the same, and find no reversible error in the record.

The judgment of the circuit court of Champaign county will therefore he affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Friend

text:
    Niels Pedersen et al., Appellants, v. Logan Square State and Savings Bank et al., Defendants. Logan L. Mullins, Receiver, Coappellant, v. John R. Notz and Ruth Notz, Appellees.
    Gen. No. 41,258.

      Opinion filed March 11, 1941.
    Irving Goodman, Harold L. Perlman, Marvin J. Welfeld and Russell, Murphy & Pearson, all of Chicago, for appellants; Irving Goodman, of counsel.
    David Jetzinger, of Chicago, for coappellant.
    Frank M. Kelly, of Chicago, for appellees.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

A representative suit in equity was filed by creditors to enforce the constitutional and statutory liability of the stockholders of the defunct Logan Square State & Savings Bank. As owners of three shares of the capital stock of the bank, John B. and Buth Notz were made defendants and personally served with summons on Sunday, September 17, 1939. Neither of them having appeared or answered, a decree, in favor of Logan L. Mullins, receiver, for the benefit of all the creditors of the bank, was entered against them November 27, 1939, for $300 and costs. Execution issued and was served December 20, 1939. Thereafter, January 29, 1940, defendants filed a petition in the equity proceeding, setting forth that they had been served on Sunday and alleging that such service was prohibited and void under par. 549 of the Criminal Code (ch. 38, Ill. Rev. Stat. 1939, sec. 261 [Jones Ill. Stats. Ann. 37.510]), which provides: “"Whoever disturbs the peace and good order of society, by labor (works of charity and necessity excepted), or by amusement or diversion on Sunday, shall be fined, not exceeding $25.00.” The chancellor, in response to the prayer of the petition, and without hearing any evidence, entered an order vacating and setting aside the decree as to John E. and Euth Notz, and quashing the service. Plaintiffs, on behalf of the creditors who instituted the proceeding, and Logan L. Mullins, as receiver, have appealed from the order thus entered, on the ground that after the expiration of 30 days the chancellor was without jurisdiction to disturb the decree entered in November, 1939.

Defendants stand squarely on the sole proposition that in Illinois civil process cannot legally be served on Sunday; that it is forbidden by par. 549, Criminal Code, hereinbefore set forth, and interpreted in the early case of Scammon v. City of Chicago, 40 Ill. 146, which has never been overruled or modified, as being in violation of the spirit and policy of this State. That was a proceeding to condemn certain lots in Chicago for failure to pay a special assessment levied upon them for the purpose of paving a portion of Wabash avenue. Section 13, ch. 7, of the charter of Chicago, as amended in 1863, directed that in such proceedings “notice shall be given by said commissioners, by six days publication in the corporation newspaper, of the filing of such assessment roll in the clerk’s office; and that, at the next regular meeting of the common council, to be held after the expiration of such publication, they will apply to the common council for a confirmation of said assessment.” In order to make out the 6 days ’ notice, it was necessary to include a publication made on Sunday, July 6, 1865, and the question presented was whether that publication could properly be counted. The court held that the charter provision unquestionably required a publication for 6 different days, and that the validity of the notice “is clearly just what it would have been, if the charter had only required one publication, and that had been made on Sunday. ’ ’ The court then raised the inquiry: “Would such a notice have been sufficient?”

It is pointed out that at common law Sunday was in legal phrase, dies non juridicus, and that no valid judicial proceeding could be had upon that day; that this rule of common law was applied in Baxter v. People, 3 Gilm. 368, and a judgment rendered on Sunday pronounced void, though it was held in the same case that a verdict might be received on Sunday as a matter of necessity; that while the common law may only prohibit strictly judicial proceedings, “it will hardly be contended that in this state civil process can be legally served on Sunday”; that in England this was forbidden by the 29 Car. 11, and “in this state the same result would follow from the . . . section of our Criminal Code.” In reaching the conclusion that the service of civil process on Sunday would be a violation of the spirit and policy of the law, the court gave the following supporting reasons (pp. 148,149): “The unquestionable object of this law is, to secure to every individual in the community the right to pass the Sunday, either in religious exercises, or in the quiet and seclusion of his home, without liability to annoyance from the ordinary secular pursuits of life, except so far as they may be dictated by necessity or charity. The wisdom of this provision no one doubts. ... If the wise lawgiver, whatever may be his own religious opinions or habits, concurs in this setting* apart one day in seven, it would ill become the judiciary to give to such enactments a restricted operation. They should be so construed as fully to accomplish their purpose, and we think it clear that to permit officers to intrude upon families on Sundays for service of civil process would be a violation of the spirit and policy of this law, . . . .” The court finally concluded that if the service of civil process would be invalid on Sunday, “it necessarily follows that a publication of this notice on Sunday . . . would be equally invalid. ...”

We are not unmindful of the fact that other States, and particularly California, Ohio, Montana and North Carolina, have held otherwise. (Heisen v. Smith, 138 Cal. 216; Hastings v. Columbus, 42 Ohio St. 585; State ex rel. Hay v. Alderson, 49 Mont. 387; State v. Ricketts, 74 N. C. 187, 192.) In some of those States it was held that civil process had on Sunday was valid, notwithstanding specific statutes which prohibited the transaction of judicial business on Sunday. The courts in those States proceeded on the theory that the service of summons was a ministerial act, not judicial in character, and therefore was not prohibited by the statute.

The law in Illinois is otherwise. The case of Scam-mon v. City of Chicago has never been reversed, and although, we have searched for expressions of our courts to the contrary it seems to be the settled law of this State that where a notice is of such a character as to be in the nature of process, its publication on Sunday is unlawful. This would, of course, apply also to the personal service of summons on Sunday, and it logically follows that any judgment or decree predicated upon such service is invalid, and therefore null and void.

Johnston v. People, 31 Ill. 469, is cited as a recognition by the court that judicial functions may be performed on Sunday. The opinion in that case was written by Mr. Justice Breese, who later dissented from the decision in the Scammon case, wherein it was pointed out that the decision in Johnston v. People, rested “on the express ground that the taking of a recognizance might be a work of both necessity and charity,” which “in nowise conflicts with the views we have here expressed.”

Counsel for plaintiffs and receiver also cite Richmonv. Moore, 107 Ill. 429, wherein a contract entered into on Sunday was held to be valid since there was nothing done to disturb the peace and good order of society, which is the primary purpose of the statute to prevent, and People v. Berof, 290 Ill. App. 1, wherein the approval of a bond by the municipal court on Sunday was held to be proper, as a matter of emergency. However, these cases do not alter the rule enunciated in Scammon v. City of Chicago, expressing the spirit and public policy of this state. It is significant that numerous sections of the Criminal Code were repealed in 1939, and that although sections 547 and 548 were among those repealed, section 549, which immediately followed, was retained in the statute by the legislature.

It is a matter of common knowledge that the sheriff of Cook county and the bailiff of the municipal court of Chicago have rules prohibiting the service of civil process on Sunday in compliance with the rule laid down in Scammon v. City of Chicago. The deputy sheriff who served process in the case at bar violated that rule.

When one considers the extent to which labor and amusements have entered into the present life of the people of this State on Sunday, paragraph 549 of the Criminal Code and certain language contained in the opinion in the Scammon case sound strange, indeed, and not in accord with what seems to be the spirit of the times. But paragraph 549 still remains in the Criminal Code, and the decision in the Scammon case has never been reversed, and it is, therefore, our plain duty to follow the law laid down in that case. We are of- opinion that it is not necessary to invoke paragraph 549 in, order to hold that it is not legal to serve civil process in this State on Sunday, for even if paragraph 549 were no longer a part of the Criminal Code, public policy would not permit the service of civil summons on Sunday, unless it appeared that such service was necessary.

The contention that the expiration of 30 days after the entry of the decree rendered the court without jurisdiction to quash the service and vacate the decree has no application to a judgment predicated upon invalid service. Under the decision in4the 8common case the service is invalid and therefore void, and no judgment or decree could be predicated upon it.

The order or decree of the superior court is affirmed.

Order affirmed.

Scanlan and John J. Sullivan, JJ., concur.


text:
    Esther Ruth Haffenberg and Nathan Haffenberg, Appellants, v. Jacob G. Grossberg, Appellee.
    Gen. No. 41,284.
    Opinion filed March 11, 1941.
    Opinion modified March 27, 1941.

      Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago, for appellants; Herbert M. Lautmann, and Isaac E. Ferguson and Joseph Rosenbaum, both of Chicago, of counsel.
    Folsom, Grossberg, Brill & Mat, of Chicago, for appellee.
   Modified Opinion.

Mr. Presiding Justice Friend

delivered the opinion of the court.

Esther Ruth Haffenberg and Nathan Haffenberg appeal from an order denying them leave to file a bill, predicated upon newly discovered evidence, to review a decree of the circuit court entered July 2, 1936, adjudicating in part the issues in case No. B-126,517, entitled Grossberg v. Haffenberg et al.

Nathan Haffenberg and Jacob Grossberg were lawyers practicing their profession as copartners from March 1, 1917, to December 1, 1920, when the partnership was dissolved by mutual consent. Thereafter Grossberg rented space from and maintained his office with Haffenberg until the month of April 1925, under an arrangement by which Grossberg paid his expenses in part by rendering services to Haffenberg in particular cases, and until 1925 the parties apparently maintained a cordial relationship. Haffenberg testified that between 1920 and 1925, he made considerable advances to Grossberg for loans, rent and stenographic services, and rendered to him monthly an itemized statement of their account, which in 1925 showed that Grossberg was indebted to Haffenberg in excess of $7,000. Gross-berg denies any indebtedness and contends that Haf-fenberg was indebted to him.

November 30, 1925, Grossberg filed his bill of complaint in case No. B-126,517, claiming that there had never been a final accounting of the partnership business, and that he was entitled to additional compensation for services rendered on hehalf of Haifenberg since the dissolution of the partnership which had never been properly credited to him. In addition to an accounting by Haifenberg for partnership assets and numerous items of fees, Hrossberg also sought specifically to declare a trust in four parcels of real estate which had been acquired by the partnership on account of fees and to which Mrs. Haifenberg held title. Three of these parcels had been acquired by warranty deed from Emma Herts and Oscar Herts, her husband, in May 1918, and the fourth property, consisting of three lots on the northeast corner of Kedzie avenue and Addison street, were acquired by quitclaim deed from Claudia Hopp and Joseph Hopp, her husband, in May 1919. When Hrossberg filed his bill the title to all of this real estate was held by Mrs. Haifenberg, and it was alleged, and Hrossberg contended all through the proceeding, that Mrs. Haifenberg had paid no consideration for any of it; that she had acquired it through a plan on the part of Nathan Haifenberg to obtain the property for himself, without Hrossberg’s knowledge or consent, and with notice that it was equitably the property of the copartnership ; that rents derived therefrom had been retained by the Haifenbergs, and no settlement or accounting made with Hrossberg. The decree entered July 2, 1936, determined the claim with respect to the Herts property adversely to Hrossberg’s contention, but sustained him as to the Hopp property by decreeing that Mrs. Haifenberg held this property in trust for the partnership. An appeal from the decree was taken to the Supreme Court, wherein Hrossberg assigned cross errors as to the Herts property, but the court (Grossberg v. Haffenberg, 367 Ill. 284) sustained the decree with the following comment (at pp. 285, 286): “The Hertz property seems to have been acquired by Esther Ruth Haifenberg in 1919, for a substantial consideration and the title to it, or, at least, the title opinion of the Chicago Title & Trust Company, appears, without question, to have been examined by Grossberg. It is also apparent that he represented Mrs. Haffen-berg in some litigation concerning the tenancy and collection of rents thereon. No sufficient reason appears from the abstract or briefs for us to upset the considered opinion of the chancellor, and the cross-errors will therefore be overruled.”

After the issues had been made up under the original bill for accounting, the matter was referred to a master in chancery, who in January 1934, filed an interim report with respect to the four parcels of real estate, but not otherwise settling the issues between the former partners. In the hearing before the master, Grossberg testified that shortly before the dissolution of the partnership in December, 1920, he was surprised to learn that Mrs. Haffenberg had become owner of the Hopp property, and when Haffenberg explained that he had sold these lots to Mrs. Haffen-berg on behalf of the partnership, Grossberg protested that he had no right to do so without consulting him. In the course of the hearing Haffenberg produced evidence tending to prove that the property had been sold to Mrs. Haffenberg for $500, with Grossberg’s knowledge, and he sought to prove by entries in the partnership cashbook that Mrs. Haffenberg had made payments to the firm of $300 on September 20, 1919, and the balance of $200 on March 15, 1920. Grossberg insisted, however, that the book entries were but a ruse to cover a private transaction between Haffen-berg and his wife, and that no consideration had in fact passed from Mrs. Haffenberg to the firm. An apparent weakness of the defense was that neither Haffen-berg nor his wife was able to produce primary evidence of payments of $300 and $200 by Mrs. Haffenberg, and because the transaction had taken place some 13 years before the hearing, Mrs. Haffenberg was unable to say definitely whether these payments were made by check or in currency. As a result of this uncertain state of the record, the book entries of Mrs. Haffenberg’s payments were not accepted as conclusive, and because of the doubt which arose as to the authenticity of the book entries and the sufficiency of these entries to establish a sale of the firm’s interest in the Hopp lots to Mrs. Haffenberg, the master and the chancellor concluded that the Haffenbergs had not met the burden imposed upon them of showing that the sale was a bona fide transaction, and the decree accordingly held adversely to their contention.

Title of the Hopp property was originally taken by the two partners in their own names, and so it remained for nearly 4 months. September 22 or 23, 1919, Gfrossberg prepared a deed whereby he and his wife and Haffenberg and his wife conveyed title by quitclaim deed to Harold Sternfield, Haffenberg’s nephew who was then employed by the partnership as a law clerk. Haffenberg testified that the copartners desired to dispose of the property and that both of them contacted various real estate brokers in hopes of finding a purchaser, but the property was unsalable in ordinary commercial routine. G-rossberg testified that the conveyance was made to Sternfield, a bachelor, so that if a purchaser were found it would facilitate the sale. The deed was made only 2 or 3 days after Mrs. Haffenberg claimed to have made the initial payment of $300, and Sternfield held title until the day after the balance of $200 was claimed to have been paid, when the property was conveyed to her by Sternfield.

The Supreme Court held that “the chancellor was right in his rulings as to the Hopp property,” and commented on the transaction as follows (pp. 286, 287): “Almost immediately after Haffenberg’s nephew got the title, he conveyed it to Mrs. Haffen-berg without Grossberg’s knowledge, and although it is contended that Mrs. Haffenberg made some payments to the firm in return for the title, the evidence is not clear either as to the amoimt, time or purpose of these payments. The chancellor was fully justified in believing that these payments, if actually made, were inadequate and that the entire transaction was a plan to overreach Grossberg. . . . The relationship between partners is one of trust and confidence and when it appears, as it does here, that one of the partners has indirectly obtained property from the firm, he must rebut the presumption of fraud by clear and convincing evidence showing that he has acted in good faith, and has not betrayed the confidence reposed in him. (Suchy v. Hajicek, 364 Ill. 502; Masterson v. Wall, 365 id. 102.) The defendant has not denied that the property in question came to the firm for legal services. It now stands in his wife’s name through the conveyance above noted. He has not met the burden imposed upon him by the rules of law above stated, and the chancellor arrived at the right conclusion.” (Italics ours.)

The decree had ordered an accounting between the partners, and notwithstanding the admonition of the Supreme Court, in October 1937, that “both principal parties to this suit are officers of this court and the public interest requires that they should conclude this litigation speedily,” hearing* on the accounting has never been concluded. However, in accordance with the decree, Haffenberg filed an account including the rents, issues and profits of the Hopp property, showing a balance purportedly due him.

The allegations of the petition for leave to file a bill of review with reference to the newly discovered evidence may be briefly summarized as follows: Since the institution of the suit for an accounting, associates and employees of Nathan Haffenberg have continuously and diligently searched for evidence respecting the payment of consideration and acquisition of title to the Hopp property by Mrs. Haffenberg, and they allege that month after month they searched and examined the premises, desks, furniture, records, files, papers and documents of the firm, including personal papers, checks, bank statements and accounts, in an effort -to meet the many issues in the suit, but it was not until September 5> 1939, that Joseph Rosenbaum, who was employed in Haffenberg’s office, found a check in a tin box in Haffenberg’s storage room of the kind and size used to contain office tools, paraphernalia and typewriter equipment, and not a box in which checks, records or documents were ever kept by Haffenberg, which was located among a heap of discarded office paraphernalia, files, books and douments under a desk in the storage room. This check for $300, dated September 20, 1919, was signed by Esther Ruth Haffenberg, and made payable to Gfrossberg and Haf-fenberg. Oh the back thereof appears the following-indorsement: “For purchase of 1/3 interest in 3 lots corner Addison & Kedzie. Bal. 200.00 Pay Standard Trust & Savings Bank, or order. Gfrossberg & Haffen-berg.” This check cleared through the bank and, according to Haffenberg, was ultimately credited to the partnership account, on the firm’s books, which also contain an entry that the balance of $200 was paid by Mrs. Haffenberg March 15, 1920. Gfrossberg denies that the partnership was credited with either the $300 check or the $200 that was claimed to have been paid later, and further denies that the partnership ever received any benefit from either of these alleged payments.

When the petition for leave to file the bill of review based upon the newly discovered evidence was presented to the chancellor he denied the petition and entered an order accordingly. He said that he had reached this conclusion after examining the decree and the abstract of record submitted to the Supreme Court, and pursuant to arguments of counsel and extensive citation of authorities, principally for the reason that the admission of the check and the showing of payment of the additional $200 as consideration for the Hopp property would not decisively change the findings and the decree, and because, as he observed, “the Supreme court was not so much concerned about the actual consideration, but rather with the method of acquiring title to the Hopp property by Mrs. Haf-fenberg, it being partnership property.” After a careful examination of the record and authorities dealing with the subject, we have, reached the conclusion that, the court erred in denying petitioners the right to file their bill of review, for the following reasons : Grossberg had alleged, and it was his contention all through the proceedings, that no consideration was paid by Mrs. Haffenberg for the Hopp lots; that the property was conveyed to her through a private arrangement ivith her husband and Avithout Grossberg’s knowledge or consent, and that the conveyance violated the relationship of trust and confidence which the law imposes upon partners. It was, of course, incumbent upon Haffenberg to rebut the presumption that he had derived benefit from the transaction, by clear and convincing evidence showing that he had acted in good faith and had not betrayed the confidence reposed in him. As the case was tried the question of payment by Mrs. Haffenberg for the real estate, and the time, amount and purpose of such payment was of controlling importance, and Haffenberg’s inability to produce the check may well have contributed to his failure to sustain the burden of proof cast upon him. The discovery of the check, however, furnishes additional evidence to support the contention made by the Haffenbergs all through the proceeding, — that it was a bona fide transaction. It is not merely cumulative but may be of controlling importance upon a further hearing in determining whether this was a sale of property by the partnership to Mrs. Haffenberg, or whether it was, as Grossberg contended, part of a plan, on the part of Haffenberg, to obtain the property without paying any consideration therefor, and without Grossberg’s knowledge and consent. The same contention was made by Grossberg before the chancellor with reference to the Gerts lots, but the Haffenbergs were able to satisfy the chancellor that Mrs. Haffenberg acquired the Gerts property for a substantial consideration. On appeal Grossberg conceded that Mrs. Haffen-berg was entitled to be credited with the amount of her cash payments for the Gerts real estate. Her purchases of these properties were not isolated transactions. She testified that she had on other occasions made cash loans to the firm which were never repaid. It is quite probable that with the newly discovered evidence and the implications arising therefrom a convincing showing may be made on rehearing with reference to the Hopp property.

The law applicable to bills of review because of newly discovered evidence presents no serious difficulty. Where a showing is made that the newly discovered evidence is of decisive importance and not merely cumulative, leave to file the bill should be granted. (Hupp v. Mclnturf, 4 Ill. App. 449, 451; Drawdy Inv. Co. v. Robinson, 96 Fla. 397, 118 So. 157; Mullong v. Muttony, 178 Iowa 552, 159 N. W. 994; Winfield Building & Loan Ass’n v. McMullen, 59 Kan. 493, 53 Pac. 481.)

The showing of diligence made by petitioners is unchallenged. The loss of the canceled check, made in 1919, with no forewarning that more than 6 years later it would become the material evidence in litigation, is clearly excusable; and the circumstances of the rediscovery of the check in 1939, as narrated in the affidavit of Joseph Rosenbaum, satisfactorily explains the failure of petitioners to find the lost check before the master’s hearing. There is of course no plausible reason to suppose that they would have withheld it, if it had been available. Nor do we think that the language of the Supreme Court furnishes any serious obstacle to the conclusion we have reached. The court said that “although it is contended that Mrs. Haffenberg made some payments to the firm in return for the title, the evidence is not clear either as to the amount, time or purpose of these payments.” This conclusion was entirely justifiable in view of Grossberg’s contention that the entire transaction was a ruse, that no consideration passed from Mrs. Haffenberg to the firm, and the absence of satisfactory evidence of the transaction without the check as primary evidence of the payment. The further statement of the court that “the chancellor was fully justified in believing that these payments, if actually made, were inadequate and that the entire transaction was a plan to overreach Gross-berg, ’ ’ may have been prompted by the same consideration which led the court to "believe that there was no satisfactory showing as to the payments, the amount, purpose or the time thereof. Grossberg’s principal contention has been that no consideration passed from Mrs. Haffenberg, and in the alternative he has insisted that if any money was paid, it was for her husband’s benefit and not the firm’s, and that he had no knowledge of any payments. On the pleadings and the case made by Grossberg, the Haffenbergs had no occasion to introduce direct evidence of the value of the property on September 20, 1919, but in explanation of the circumstances under which Mrs. Haffenberg became a buyer of this property, Haffenberg testified that the copartners tried to dispose of the lots through the ordinary routine, but were unable to do so; that in May 1919, Joseph Hopp made an offer to Patrick K. Redmond to sell him 20 lots in this subdivision for $10,000, which was not accepted; and that later in settlement negotiations with Fred A. Bangs, attorney for various creditors of Joseph Hopp, Grossberg and Haffenberg first submitted the 50 lots subject to a $2,500 mortgage, and later the 3 lots which were not then mortgaged; that upon investigation of the 50 lots, Bangs answered that if his clients took them, they would be taking a “gold brick” for their payments; that Bangs said he found the corner lots at Addison and Troy and Troy and Eddy streets to be worth probably $750 each, and the inside lots not to exceed $400; and that Bangs rejected the offer of the 3 lots in question and accepted instead a cash offer of $2,000. Gross-berg presents a different theory as to the value of these lots. He contends that Haffenberg had negotiated a loan on them of $2,500, indicating that they were probably worth $5,000, and that “in a few years that property brought in $12,530.64 in accumulated rents,” and that the $2,000 payment to Bangs was made from the $2,500 loan on the property. However, none of this evidence was introduced on the question of the adequacy of the sales price of the lots to Mrs. Haffen-berg; it was not contended that the price was inadequate, but rather that the sale was a ruse on the part of the Haffenbergs, and that if made it was for Haffen-berg’s sole benefit and in order to enable him to pay his debts.

In examining the decisions wherein leave to file a bill of review upon newly discovered evidence was considered we find that the courts frequently raise the inquiry whether the newly discovered evidence would probably produce a different result, “and one more beneficial to plaintiff than the original decree.” (21 C. J. 756, et seq.) In Drawdy Inv. Co. v. Robinson, supra, the circumstances were strikingly similar to the case at bar. The defendant there claimed a credit for $5,600 on account of a mortgage indebtedness, which the chancellor denied, and on appeal to the Supreme Court the decree was affirmed. Subsequently, the defendant discovered the canceled check for $5,600, with markings indicating that payment of the check had been received by complainant. Nevertheless, the chancellor denied defendant’s petition for leave to file a bill of review, but on appeal the Supreme Court reversed the order. It was pointed out that the check became material because when the testimony was taken in the original suit defendant could not produce the check; that complainant claimed he had never received a check for $5,600, notwithstanding evidence introduced by Drawdy through several witnesses who testified that they saw the check delivered and remembered that plaintiff had made a memorandum of the credit; and that Drawdy’s failure to produce the original check had caused the chancellor to discredit his evidence in this regard and to believe plaintiff’s statement that he had not received that payment. The court called attention to the fact that as a matter of common experience an important paper becomes misplaced and is frequently discovered, after having been long given up as lost, in places where the owner’s hands and eyes frequently must have passed over it many times. In conclusion, the court observed that “had this check been introduced at the hearing before the final decree, it is morally certain that in that decree the defendant in that suit would have had credit for the $5,600, and that to require the performance of the decree as it was entered is to require the defendant to pay this amount of money the second time, which is not in accordance with our views of equity and good conscience.” This decision, and others here-inbefore cited, express the current weight of authority on the right of a defeated party to review a decree because of newly discovered evidence, and is applicable to the proceedings in- the case at bar.

In determining the issues presented by this appeal it is not necessary for us to pass upon the weight of the evidence or the credibility of witnesses. The testimony is sharply conflicting on most questions and we do not intend by anything we have said to indicate how the controverted issues of fact should be determined. We are of opinion, however, that the newly discovered evidence is of such character as to entitle petitioners to a review of the decree entered.

During the pendency of this appeal Grossberg filed motions to strike the report of proceedings from the record, also to strike certain pages from the record, and to affirm the order appealed from. All these motions were reserved to hearing and are now denied.

For the reasons herein stated, we are of opinion that the order of the circuit court should be reversed and the cause remanded with directions that petitioners he granted leave to file their complaint for review, and that further proceedings be had, not inconsistent with the views herein expressed.

Order reversed and cause remanded with directions.

Soanlan and John J. Sullivan, JJ., concur.