author: Mr. Justice John J. Sullivan

text:
    Alice A. Synwolt, Executrix of the Last Will and Testament of Edward W. Synwolt, Appellant, v. Otto Klank and Marie Klank, Appellees.
    Gen. No. 39,558.
    Opinion filed June 21, 1938.

      Charles C. Spencer and Richard M. Spencer, both of Chicago, for appellant.
    Sidney F. Blanc, of Chicago, and J. C. Forbes, for appellees.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This is an action brought by plaintiff, Alice A. Synwolt, as executrix of the estate of her husband, Edward W. Synwolt, to recover damages for his wrongful death. A verdict ivas rendered by a jury finding-defendants Otto and Marie Klank, guilty and assessing plaintiff’s damages at $3,250. Defendants’ motion for judgment notwithstanding the verdict was sustained and judgment was entered by the trial court in favor of defendants and against plaintiff. This appeal seeks to reverse that judgment. No question is raised on the pleadings.

Plaintiff’s complaint charged that defendant Otto A. Klank, while driving an automobile in his own behalf and as the agent of the other defendant Marie Klank, negligently caused the death of plaintiff’s testate, Edward W. Synwolt, while the latter was in the exercise of ordinary care for his own safety.

Plaintiff’s theory as stated in her brief is that “while the deceased, Edward W. Synwolt, who was a man 71 years of age, on May 21, 1934, was crossing Milwaukee Ave. a concrete highway in the township of Wheeling, Cook County, from east to west, at a place just north of where Milwaukee Ave. meets with River Road, the defendant, Otto A. Klank, drove his automobile in which his wife, Marie Klank, the other defendant, ivas riding, so negligently that it ran against Edward W. Synwolt and so injured him, that he died as a result of the injuries on May 24, 1934, and that Synwolt was in the exercise of due care for his own safety.”

Defendants’ theory is that the evidence shows that the deceased was guilty of contributory negligence as a matter of law and that the defendants were not guilty of negligence. In rendering judgment in favor of defendants notwithstanding the verdict of the jury, the trial judge stated that “in the opinion of the court, the jury was justified from the evidence in finding that the defendants were guilty of negligence, but that in the opinion of the court there was no evidence proving or tending to prove that the deceased was in the exercise of due care for his own safety, and that for that reason the court entered judgment in favor of the defendants notwithstanding the verdict.” Thus, the only question presented for our determination is whether under the facts and circumstances in evidence the trial court was warranted in disregarding the verdict of the jury and entering judgment notwithstanding such verdict on the ground that plaintiff failed to prove that the deceased was in the exercise of ordinary care when he received the injuries which resulted in his death.

The evidence disclosed the following facts. The deceased, who was 71 years old at the time of the occurrence in question, was a salesman of janitors’ supplies and earned about $25 a week. The accident which resulted in his death occurred on Milwaukee avenue in Wheeling township, Cook county, just north of the point where River road meets Milwaukee avenue. At the place of the accident Milwaukee avenue is a concrete road, 40 feet wide, with 4 traffic lanes, and runs almost straight north and south. Almost immediately south of where the accident happened Milwaukee avenue diverges in a southeasterly direction and at the point of its divergence is joined by River road, also a concrete highway, which leads into Milwaukee avenue from a slightly southwesterly direction. Synwolt stopped his automobile off the pavement on the east side of Milwaukee avenue, got out of his car, took some brooms from same for delivery to a customer and proceeded to walk in a westerly direction across Milwaukee avenue with the brooms on his back. The defendant Klank was driving his automobile in a southerly direction in the extreme right or west traffic lane of Milwaukee avenue. According to Klank he saw the deceased start to walk across the highway in a westerly direction when his automobile was 150 feet to the north of him and there was nothing between him and Synwolt. He testified that he saw the deceased when the latter had reached about the middle of the highway and that at that time he (Klank) was about 100 feet north of him; that just then another automobile came from behind him and passed his car on its left side; that this automobile, either in passing him or after it had passed him, proceeded south in the third lane from the west, which would be the traffic lane immediately east of the center of the road; that this passing automobile obstructed his view of Synwolt, but that he knew “this man had not crossed the road in front of me”; that the automobile which had passed him continued on to River road; that the next he saw of Synwolt was when “he ran out in front of the car that was passing me up” and in front of his car; that Synwolt “couldn’t stop ... I guess he could not stop running”; that he, Klank, turned his automobile to the right off the road “to avoid him” and struck the deceased after the latter had cleared the road; and that it was the left front bumper of his car that struck Synwolt. Klank was driving his car at a speed of from 30 to 38 miles an hour and after the accident it continued on in a westerly or southwesterly direction, running into a vegetable stand about 50 feet from where the body of the deceased lay.

In their endeavor to sustain the action of the trial court in entering the judgment in their favor notwithstanding the verdict, defendants do not argue very seriously that Synwolt was guilty of contributory negligence as a matter of law because of any conduct of his after he had reached the center of the roadway in safety, but they urge in effect that he was guilty of contributory negligence per se for even attempting to cross the highway. Their position in this regard is shown by the following statement from their brief: “Counsel’s argument on this point is devoted almost exclusively to Synwolt’s actions after he had reached the center of the roadway and was in danger of being struck by the ‘passing car.’

“We submit, his failure to exercise due care preceded these events, and the dilemma in which he found himself was the direct result of his contributory negligence.

“Synwolt, a man 71 years of age, parked his car on the east side of the road. This road was a busy forty-foot, four-lane, concrete highway in the open country, and Synwolt was charged with knowledge that the law prescribed no speed limit thereon, excepting that a speed in excess of 45 miles per hour is prima facie evidence of negligence. He was a salesman of janitors ’ supplies and was taking a bunch of brooms to some place west of the highway. In this situation the only safe course, and the thing which any ordinarily prudent man would have done, was to make a ‘U’ turn and park his car on the west side of the highway. Instead of so doing, he got out of his car and with a bunch of brooms on his back started to walk across this forty-foot highway ‘kitty-cornered.’ He knew or should have known, had he looked, that cars were approaching from the north, one of them about 150 feet away.

“These are the facts, uncontroverted, undisputed and stated most favorably to the plaintiff. They speak for themselves and, we respectfully submit, reasonable minds could reach no other conclusion than that Synwolt’s conduct was entirely lacking in that degree of care which an ordinarily prudent person would exercise for his own safety. The subsequent events and the precarious position in which he soon found himself furnish but confirming proof of his contributory negligence. ’ ’

It is idle to urge that the failure of the deceased to make a “U” turn and park his car on the west side of the highway was prima facie evidence of negligence on his part. The right of pedestrians to use the highways running through the country has always been recognized. In discussing this subject in Blumb v. Getz, 366 Ill. 273, the Supreme Court said at pp. 276, 277:

“In considering the question of due care on the part of the plaintiff’s intestate, it is well to remember that this cannot always be shown by direct proof but that the evidence as adduced by the plaintiff should disclose facts from which it may reasonably be inferred that the plaintiff’s intestate was in the exercise of due care. It was not negligence per se for the deceased, a pedestrian, to be upon the highway. As a matter of common knowledge, pedestrians upon highways running through the country use, and have a right to use, such highways, as well as the autoist, and both hold a mutual obligation, each to the other, to observe their reciprocal rights.” '

Thus the deceased unquestionably had the right to cross this highway on foot and in the exercise of due care he had safely reached the center thereof. Klank had seen him crossing the east half of the roadway and knew that he was at about the center of same when the automobile that passed his automobile obstructed his vision of Synwolt. If this automobile in passing Klank’s car traveled in the lane just east of the center of the road as Klank said it did, he must have known that Synwolt was directly in the path of such automobile and in a position of danger without fault on his part. Klank should also have known that with the speeding car bearing down upon him or at least in his direction, Synwolt would if he could and as quickly as he could hurry from the path of the automobile. We think that the deceased acted reasonably under the circumstances. In talcing what appeared to him to be the only avenue of escape from the danger confronting him, the deceased ran from in front of the oncoming car across the west half of the highway and cleared same. Klank had notice of Synwolt’s precarious position and the course he might be compelled to pursue in seeking safety. Knowing the dangerous predicament the deceased was in, if Klank had exercised the slightest degree of care the accident would not have happened.

Synwolt’s situation and conduct brought him well within the rule that if a person without fault on his part is confronted with sudden danger or apparent sudden danger, the obligation resting upon him to exercise ordinary care for his own safety does not require him to act with the same deliberation and foresight which might be required under ordinary circumstances. (Chicago Union Traction Co. v. Newmiller, 215 Ill. 383.)

In McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120, in passing upon the power of a trial court to enter a judgment non obstante veredicto, it was said at pp. 128, 129:

“The provision of the Civil Practice Act . . . changes the common law and permits either party to move the court for judgment notwithstanding the verdict, if done in compliance with the provisions thereof.

‘ ‘ The court in passing upon the motion must decide whether, as a matter of law, the party requesting the directed verdict is entitled thereto. This provision of the Civil Practice Act . . . must be taken in connection with rule 22 of the rules of practice of the Supreme Court which provides: ‘The power of the court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the court to direct a verdict without submitting the case to the jury. ’ The statute and rules require the court to be governed by the same rules in passing upon a motion for a judgment notwithstanding the verdict as govern it in passing upon a motion for a directed verdict. The trial court in passing upon this motion has no more authority to weigh and determine controverted questions of fact under the Civil Practice Act than under the Practice Act of 1907. Illinois Tuberculosis Ass’n v. Springfield Marine Bank, 282 Ill. App. 14; Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471.

“If it were permissible for a trial judge on a motion non obstante veredicto to weigh the evidence and enter a judgment according to his opinion as to wherein lies the greater weight of the evidence, then the right to a trial by a jury would be done away with and the judgment of the court substituted therefor. It is only where there is no evidence as a matter of law to sustain either a plaintiff’s or a defendant’s claim that a judgment may be rendered notwithstanding the verdict. ’ ’

The rules which should govern a trial court in passing upon a motion to direct a verdict are well established. In Hunter v. Troup, 315 Ill. 293, the court said at pp. 296, 297:

“A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff’s declaration. In reviewing the action of the court of which complaint is made we do not weigh the evidence, —we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill. 414; McCune v. Reynolds, 288 id. 188; Lloyd v. Rush, 273 id. 489.”

Surely the evidence above set forth viewed in the light of the rules that govern in passing upon a motion for judgment notwithstanding the verdict, as enunciated in the Hunter case, precluded the trial court from allowing the motion for such a judgment in the instant case.

In our opinion not only was there sufficient evidence of Synwolt’s exercise of due care as to clearly render the question of contributory negligence one of fact for the jury, but there was ample evidence to justify the verdict of the jury.

No error appears or has been urged by defendants that would have entitled them to a new trial if the judgment notwithstanding the verdict had not been entered in their favor.

For the reasons stated herein the judgment of the superior court is reversed and the cause remanded with directions to enter judgment on the verdict of the jury.

Judgment reversed and cause remanded with directions.

Friend, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Porter F. Leach, Appellee, v. Federal Life Insurance Company, Appellant.
    Gen. No. 39,624.
    Opinion filed June 21, 1938.
    MacNamara & Kutak, of Chicago, for appellant; Jerome F. Kutak, of counsel.
    Bell, Boyd & Marshall, of Chicago, for appéllee; David A. Watts and Victor M._ Harding, Jr., of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

Plaintiff, Porter F. Leach, filed a complaint in equity to require defendant, Federal Life Insurance Company, to maintain in force its disability insurance policy theretofore issued to him, which defendant claimed had lapsed for nonpayment of the annual premium due April 30, 1936, and to order defendant to apply a sufficient portion of the disability benefits due plaintiff from defendant prior to the purported lapsation in payment of the aforesaid premium that fell due while plaintiff’s claim for disability benefits was pending.

The defenses advanced by defendant, as set forth in its answer are as follows:

“Defendant admits that insured became ill with neuritis and that he suffered from said disease until February 12, 1936; admits allowing Three Hundred Ten and* No/100 Dollars ($310) on June 4, 1936, but denies that said disability benefit was due and owing from the defendant company to the plaintiff before said date, and denies the other allegations made in said paragraph.

“Defendant admits that said policy lapsed for nonpayment of premium at the expiration of the grace period, namely on May 31, 1936, but denies that it had any funds belonging to the plaintiff prior to that period which it could properly apply in payment of said premium, and denies all other allegations in said paragraph. ’ ’

After hearing the court entered a decree validating the policy and order.ed defendant to apply $110.50 on account of the premium due on the policy April 30, 1936, out of the $310 which defendant admitted was due plaintiff in payment of his disability claim and to pay plaintiff $199.50, the balance of said $310. This appeal seeks to reverse the decree. The cause was heard upon a somewhat lengthy written stipulation of facts, of which we deem the following material and sufficient for an understanding of the issues involved.

April 30, 1930, plaintiff applied to defendant for an insurance policy which provided benefits for accidental loss of life, limb or sight, and loss of time through sickness or accident. The policy, issued and dated the same date, was to remain in force until plaintiff was 60 years of age, provided premiums were continuously paid. It was not cancellable without the consent of the insured. The annual premium of $110.50 was payable on or before April 30 of each year and in case of default in the payment of any annual premium on its due date a grace period of 31 days was provided in the policy for such payment. For loss of time under the terms of the policy plaintiff was to receive $150 a month, which was to be paid after certain conditions were complied with, such as giving notice of loss to the company, furnishing affirmative proof of loss and permitting examination of the person of the insured by the defendant’s physician. Sec. 10 of the policy provided as follows:

“Upon request of the Insured and subject to due proof of loss all of the accrued indemnity for loss of time on account of disability will be paid at the expiration of each thirty days during the continuance of the period for which the Company is liable, and any balance remaining unpaid at the termination of such period will be paid immediately upon receipt of due proof. ’ ’

The policy .provided further that all indemnity other than loss of life was payable to the insured; and that the falsity of any statement in the application materially affecting either the acceptance or the risk or the hazard assumed, or made with intent to deceive, “shall bar all right to recovery under the policy.”

June 18, 1935, plaintiff notified defendant that he was ill from neuritis and was furnished various forms to complete in accordance with the policy provisions. January 25, 1936, he delivered to defendant on the forms furnished him, his preliminary proof of claim, stating the sickness from which he suffered and for which he had been confined in a hospital from December 18, 1935, to the time of the presentation of his claim. His proof of claim was supplemented by a certificate from both his physician and employer. March 2, 1936, plaintiff delivered to defendant his “Proof at Termination of Diability,” which stated that the period of his disability had terminated on February 12, 1936. The stipulation then enumerated certain physical ailments of plaintiff, which were disclosed either by his admission on the occasion of a physical examination made of his person on March 10, 1936, by defendant’s examining physician or as the result of defendant’s investigation of the records of hospitals in which plaintiff had been treated. Plaintiff’s admission and defendant’s investigation of the hospital records revealed certain physical conditions and ailments of plaintiff not stated by him in his application for the policy. Defendant’s request of plaintiff of April 3, 1936, to examine the records of the U. S. Veterans’ Bureau concerning- him was immediately granted. Pursuant to the permission granted, these records were obtained and examined by defendant on May 27, 1936. On May 31, 1936, the grace period provided in the policy for the payment of the premium due April 30, 1936, expired without said premium having* been paid. On June 4, 1936, defendant wrote plaintiff that his claim had been approved and inclosed its check for $310 in payment of his claim for disability benefits. On June 8, 1936, plaintiff, after receiving defendant’s check, sent his own check for $110.50 in payment of the premium due on Ms policy April 30, 1936, with a grace period of 31 days as above indicated. On that same day defendant returned plaintiff’s check and informed Mm that Ms policy had lapsed for nonpayment of the annual premium due April 30, 1936. Plaintiff did not cash or use the check for $310 delivered to him by defendant in payment of his disability benefits but tendered same to defendant in open court upon the trial of this case.

Defendant contends that it “had no money in its possession that was absolutely due before the expiration of the grace period”; that “the pending claim did not create a debt”; that “the defendant was not justified in assuming that the disability benefits, if any, should be applied to the premium”; and “that the defendant would have been entitled to a rescission of the contract if the plaintiff had tendered the premium before the policy lapsed.”

Plaintiff’s theory as stated in his brief is that “an insurer owing an insured a sum in excess of premiums falling due cannot forfeit the policy for nonpayment of premiums”; and that “the fact that the defendant questioned the validity of the policy did not extend the time of the accrual of defendant’s liability to pay disability benefits.”

It will be noted that on January 25, 1936, plaintiff delivered to defendant on the latter’s forms his preliminary proof of claim of loss because of the sickness from which he was suffering and for which he had been confined to a hospital from December 18, 1936, until the time his original claim was presented; that his claim was supplemented by certificates from both his physician and employer as to his illness; that on March 2, 1936, he delivered to defendant his “Proof at Termination of Disability,” advising that the disability period had terminated February 12, 1936; and that no money in payment of his claim was tendered to him until June 4, 1936, when he was advised that his claim was approved and. defendant’s check for $310 was forwarded in payment thereof. It will be noted further that the check for $310 in payment of plaintiff’s claim was delivered just four days after the expiration of the grace period on the premium due April 30, 1936, for the failure to pay which defendant declared the policy forfeited. During the period of more than three months, from January 25, 1936, when he first filed his claim, until the same was finally approved on June 4, 1936, and defendant’s check for $310 delivered to him, plaintiff was not advised that his proof of claim was in anywise insufficient. Defendant’s physician examined plaintiff on March 10, 1936, and the insurance company received plaintiff’s permission to inspect his medical record in the U. S. Veterans’ Bureau early in April, 1936, but at no time did it question the validity of plaintiff’s proof of loss.

Defendant admits in its brief that where money is absolutely due from an insurance company to a policyholder before the due date of a premium, the company should apply the credit, if necessary, to save the policy, and such application will be conclusively presumed to have been made. (Kern v. Western Life Ins. Co., 192 Ill. App. 96.) However, it is urged that this principle is confined to life insurance policies and applies only where the money owing is for dividends. The cases cited by defendant itself refute this contention as do the authorities generally.

In Long v. Monarch Accident Ins., 30 F. (2d) 929 (C. C. A. 4), which involved a health and accident policy, the court said at p. 930: “We start with the general principle that in the absence of special agreement, failure to pay an insurance premium when due ipso facto forfeits the policy.

“It is true that the aforegoing principle has been qualified to this extent: That if money is absolutely due by the Company to the policyholder when a premium falls due, the Company should apply the same towards the premium and thereby, if possible, avoid forfeiture of the policy. This includes any excess of premiums paid, dividends, profits, benefit payments, and the like, but the offsetting of such credits will only be required where the company actually has in its hands at the time funds which, are absolutely due and payable.” (See also Ruderman v. Massachusetts Accident Co., 118 N. J. Eq. 461, 180 Atl. 237; Birlew v. Mutual Ben. Health & Accident Ass’n, 53 Idaho 472, 24 P. (2d) 677.)

The question then is whether the defendant was absolutely liable to plaintiff for disability payments at the time the premium fell due on April 30, 1936. The policy provides that the insurance company shall pay the insured within 30 days after due proof of loss and it was not contended in the trial court nor is it here that plaintiff did not file due proof of his claim. In fact, it was admitted that such proof of loss was filed and the trial court so found. It follows that defendant under the terms of the policy became liable to pay plaintiff’s claim to the extent of $310 by April 2, 1936, at the very latest, since that was 30 days after plaintiff submitted final proof of his loss.

Defendant’s answer averred no defense on the ground that the policy was invalid because of purported misrepresentations on the part of plaintiff in his application for same and since no valid excuse appears in the record for the failure to pay the disability benefits as and when the policy provided they should have been paid, we are impelled to hold that there was absolutely due to plaintiff on May 31, 1936, when it is claimed plaintiff’s policy was forfeited for lapsation, $310, out of which the insurance company was in equity and good conscience obligated to apply $110.50 to keep the policy alive.

Whatever purpose defendant intended to serve by its protracted investigation of the records of the various hospitals as to plaintiff’s previous illnesses and medical and surgical history, it clearly appears that neither such investigations nor the result thereof could under the facts in this case extend the time of the accrual of defendant’s liability to pay the disability benefits due plaintiff or have any possible bearing on the issues raised on the pleadings in this cause. It is significant that the claim was allowed and the check for the amount of same forwarded four days after the expiration of the grace period for the payment of the premium in question and defendant’s “hesitation” in approving and paying the claim is also highly significant in the light of its attempt to forfeit the policy.

There is not a particle of evidence in the record to justify defendant’s failure and refusal to make the disability payments to plaintiff when due. If such payments had been made before the final due date of the premium, it is fair to assume that plaintiff would have paid some himself. Defendant having wrongfully withheld the disability payments ivas obligated to pay the premium out of plaintiff’s money in its hands.

Other points are urged, but in the view we take of this cause we deem it unnecessary to discuss them.

For the reasons stated herein the decree of the superior court is affirmed.

Decree affirmed.

Friend, P. J., and Scanlan, J., concur.


text:
    W. J. Chapin, Appellant, v. Herbert Foege and Henry Foege, Appellees.
    Gen. No. 39,636.
    Opinion filed June 21, 1938.

      Cassels, Potter & Bentley, of Chicago, for appellant; Claud D. Baber, Leslie H. Vogel, Richard H. Merrick, Anthony Ras, all of Chicago, of counsel.
    Robertson, Crowe & Spence, of Chicago, for appellees ; Burt A. Crowe, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment rendered against plaintiff, W. J. Chapin, on the verdict of a jury in an action brought by him against the defendants, Herbert Foege and Henry Foege, for damages for personal injuries alleged to have been sustained by plaintiff as the result of the conduct of Herbert Foege in driving an automobile so negligently that it collided with the automobile which Chapin was driving on Algonquin road near its intersection with Plum Grove road in Cook county. No point is raised on the pleadings.

In his complaint plaintiff charged that defendant Herbert Foege negligently operated the automobile which he was driving and that Henry Foege was the principal and employer of Herbert Foege. The defendants filed an answer denying the negligence charged against them in plaintiff’s complaint and also denying that plaintiff was in the exercise of due care. A counterclaim was filed by defendant Herbert Foege, alleging that the collision between the two cars was caused by the negligence of plaintiff and asking damages for injuries to his person and to his automobile. Plaintiff filed an answer denying the allegations of the ' counterclaim. Subsequently defendant Henry Foege filed an additional answer to plaintiff’s complaint denying that defendant Herbert Foege was his servant or agent in driving* the car that collided with plaintiff’s automobile.

It is unnecessary to either state or discuss at length the facts and circumstances in evidence since it is conceded in plaintiff’s brief that upon the evidence presented the questions of negligence and contributory negligence were properly submitted to the jury.

At the conclusion of the trial the court, after instructing the jury, gave it five forms of verdicts, one for every possible verdict that might appropriately be returned upon the complaint and counterclaim. After the jury separated its sealed verdicts upon being opened were found to read as follows:

“We the jury find the defendant Henry Foege not guilty; the defendant Herbert Foege guilty and assess the plaintiff’s damages at the sum of no dollars.

“We the jury find the cross-defendant W. J. Chapin guilty and assess the cross-plaintiff Herbert Foege damages at the sum of no dollars.”

When the verdicts were read plaintiff moved for a new trial and at the same time a similar motion was entered by defendants, but the latter motion was thereafter disclaimed by defendants. In denying* plaintiff’s motion for a new trial and rendering* judgment upon the verdicts of the jury the trial court entered a draft order, the pertinent portions of which are as follows:

“After arguments of counsel and due deliberation by the court, the said court finds that the verdicts as above set forth and as returned by the jury herein find both W. J. Chapin and Herbert Foege guilty of negligence, and the court construing said verdicts together, finds that by said verdicts it was the intention and meaning* of the jury to find both defendants,,W. J. Chapin and Herbert Foege guilty of contributory negligence and that the two said verdicts mean ‘Hot Guilty’ under the pleadings filed in the case and the evidence heard in open court, and the court finds that neither W. J. Chapin nor Herbert Foege is entitled to recover damages by their respective suits and said motion of the plaintiff, W. J. Chapin for new trial is overruled and new trial denied. . . .

“Thereupon plaintiff, W. J. Chapin, enters his motion in arrest of judgment which motion is also overruled. . . .

“Therefore it is considered by the court that the plaintiff, W. J. Chapin take nothing by his aforesaid action and the cross-plaintiff, Herbert Foege, take nothing1 by his aforesaid action but that both W. J. Chapin and Herbert Foege each go hence without day and do have and recover nothing from each other, or costs or charges in their behalf expended ...”

Plaintiff contends that “the verdicts of the jury upon the complaint as against defendant Herbert Foege and upon the counterclaim were so uncertain, contradictory and improper that no judgment could properly be entered upon them and that therefore the plaintiff’s motions for a new trial and in arrest of judgment should have been granted.”

Defendants’ theory is that “the trial court was fully justified under the law and the evidence in entering judgment on the verdicts”; that “the trial court was fully justified in finding that by the two verdicts the jury intended and meant to find both plaintiff and defendant Herbert Foege guilty of contributory negligence and in finding that the two verdicts meant ‘Not Guilty’ that the verdicts are easily susceptible of a reasonable interpretation; and that the trial court did not err in approving them and entering judgment thereon.

In so far as the verdicts are concerned the question presented is whether under the pleadings and the facts and circumstances in evidence the trial court was warranted in construing them as it did as to their legal effect and in entering judgment upon them. No point is made that the verdict as to plaintiff was against the manifest weight of the evidence. The following statement is found in plaintiff’s brief: “The plaintiff was either negligent or he was not, and likewise the defendant Herbert Foege was either guilty or he was not. If defendant Herbert Foege was negligent, he was necessarily contributorily negligent. ' On the other hand if the plaintiff was guilty of negligence, he was also necessarily guilty of contributory negligence.” This is a correct statement of the law and the jury was so instructed. Since the doctrine of comparative negligence ceased to prevail in this State it has always been held that where an accident occurs and both plaintiff and defendant are negligent, neither can recover from the other. After a careful examination of the pleadings and evidence it is obvious that the two verdicts considered together could only mean that the jury believed that both plaintiff and defendant Herbert Foege were negligent and careless in the operation of their respective automobiles at the time and place of the accident and that neither of them was entitled to recover damages from the other. While the verdicts returned by the jury were inapt and awkward as to form, there can be no doubt of the propriety of the court’s interpretation that “it was the intention and meaning of the jury to find both . . . W. J. Chapin and Herbert Foege guilty of contributory negligence and that the two said verdicts mean ‘not guilty’ . . . and the court finds that neither W. J. Chapin nor Herbert Foege is entitled to recover damages . . . .”

The following statement on inartificially drawn verdicts is found in 27 R. C. L., pp. 858, 859:

“Although defective in form, if it [the verdict] substantially finds the question in issue in such a way as will enable the court intelligently to pronounce judgment thereon for one or the other party according to the manifest intention of the jury it is sufficiently certain. The mere fact that a verdict is inartificially drawn or is otherwise informal does not vitiate it, as it is to be kept in mind that juries are usually composed of men who are not learned in the forms of law or exact in their use of language, and therefore all reasonable intendments should be made in order to sustain their verdicts when the validity of such verdicts is challenged on merely technical grounds. Moreover, every reasonable construction should be adopted for the purpose of working* the verdict into form so as to make it serve. If by reference to the record, any uncertainty in the verdict can be explained it is sufficient to sustain the appropriate judgment; and if the parties could not have been prejudicially affected, the fact that the form is unusual and not according to practice is not such a defect as to justify a reversal.”

In Western Springs Park Dist. v. Lawrence, 343 Ill. 302, the court in discussing the same subject said at pp. 310, 311:

“In the view which we take of this case we do not feel called upon to decide the questions raised by the objection of Webster to the amendment of the verdict. A verdict is not to be construed with the same strictness as an indictment but is to be liberally construed, and all reasonable intendments will be indulged in its support and it will not be held insufficient unless, from necessity, there is doubt as to its meaning. (People v. Lee, 237 Ill. 272.) The rule is, that in determining the sufficiency of a verdict, and the judgment based thereon, the entire record will be searched and all parts of the record interpreted together, and a deficiency at one place may be cured by what appears at another. (People v. Tierney, 250 Ill. 515; People v. Murphy, 188 id. 144.) A verdict may be amended by the court or construed by reference to the pleadings and the evidence in the record, and in some instances from the notes of the judge, when the intention of the jury is apparent from the pleadings and the evidence. In considering the verdict itself with a view to its sufficiency the first object is to ascertain what the jury intended to find, and this is to be done by construing the verdict liberally, with the sole view of ascertaining the meaning of the jury and not under the technical rules of construction which are applicable to pleadings. If the meaning of the jury can be ascertained and a verdict on the point in issue can be made out the court will mold it into form and make it serve. (Law v. Sanitary District, 197 Ill. 523.)”

The case of Schwab v. Nordstrom, 138 Kan. 497, 27 P. (2d) 242, is directly in point. In this case the plaintiff went to the defendants ’ home where there was a controversy as to a number of bales of hay. The plaintiff and the two defendants went out to the barn to make a count of the bales, at which place the plaintiff and one of the defendants engaged in a fist fight. The other defendant then mixed up in the melee and all three parties were injured, the plaintiff the most severely. Suit was brought by plaintiff Schwab for damages for assault and battery. Each of the defendants answered denying liability and filed counterclaims seeking to recover damages on similar charges from plaintiff. Upon the trial the jury returned three verdicts, one of which was “for the plaintiff and against both defendants and assessed plaintiff’s recovery at no damages actual or punitive and assess one-third of the court costs to the plaintiff.” Another verdict was in favor of John Nordstrom, one of the defendants, against the plaintiff and “the amount of his recovery was fixed at no damages actual or punitive, and one-third of the costs were assessed to him.” The third verdict was in favor of Buhen Nordstrom against the plaintiff, and “the amount of his recovery was assessed at no damages actual or punitive, and one-third of the costs were assessed as to him. ’ ’ The parties agreed that the assessment of costs by the jury should be treated as surplusage and the only contention was that when the jury found in favor of the plaintiff and against each of the defendants, it was error not to assess some damages. The court said at pp. 243, 244:

“Appellant argues that, when the jury found in favor of plaintiff and against each of the defendants, it was error not to assess some damages, hence that the court should not have received the verdict, or that a new trial should have been granted. But the same argument can be made with respect to each of the defendants. While the forms of the verdicts are awkward, considering all of them, it is clear that the jury found that none of the parties claiming damages had made out a case in which he was entitled to recover damages. That is the view taken by the trial court. There is evidence in the record from which the verdicts as so interpreted can be harmonized. While plaintiff was the more severely injured, there is evidence, although conflicting, from which the jury might very well have found that plaintiff was the aggressor, and for that reason not entitled to recover any sum as damages. With respect to the verdicts for each of the defendants, without allowing them damages, these may be sustained upon the view that, although plaintiff was the aggressor, the actual damage sustained by each of the defendants was inconsequential. . . . The court had no difficulty in interpreting the verdicts as above outlined, which appears to be the only reasonable interpretation to give them, and approved the verdicts and declined to grant a new trial. General verdicts should be construed to give them effect, if that can reasonably be done. In 27 B. C. L. 859, it is said: ‘If by a reference to the record any uncertainty in the verdict can be explained, it is sufficient to sustain the appropriate judgment; and if the parties could not have been prejudicially affected, the fact that the form is unusual and not according to practice is not such a defect as to justify a reversal. ’ ’ ’

It is also contended by plaintiff that defendants’ counsel made statements in his closing argument to the jury that were so improper, prejudicial and inflammatory as to require the granting of a new trial. Defendants insist that an examination of the closing arguments in their entirety will clearly demonstrate that their attorney made no statements or remarks that were inflammatory or prejudicial and that in every instance and in every respect the statements of their counsel about which complaint is made were in reply to the argument of plaintiff’s counsel.

For a better understanding of the statements complained of in the closing argument of defendants’ counsel, we deem it proper to quote the pertinent portions of plaintiff’s attorney’s argument, defendants’ attorney’s argument and plaintiff’s attorney’s closing argument to the jury as follows:

“Plaintiff’s Attorney’s Argument.
“Now, Mr. Crowe may talk about what Chapin did on this occasion, he was driving 45 miles an hour on that highway. That is a very reasonable speed in the country and this was out in the country on Algonquin Boad. Let us test these men by a test you would apply to yourselves. Here is a man that comes over the top of that hill seventy miles an hour — I don’t care how fast you make him go, seventy miles an hour, and he sees this man just clearing* the eastbound lane, is he g'oing* to run off of the highway and hit him down on the dirt or is he going to go around if it appears that can be done? . . . He could be going 25 or 35, I don’t care what degree it was. Now, Mr. Crowe has talked to you in his opening-statement concerning speed. Things happen rapidly. It isn’t only with reference to automobiles, but we live in a fast way, we live in a hurry and do things in a hurry. We have to do it to keep out from under foot. One word more and I am going to conclude. I wondered when I saw the pleadings in this case and saw that there was a counterclaim made against Mr. Chap-in, a claim filed after Mr. Chapin filed his case in court. Herbert Foege filed a claim in answer to it .and said, ‘I was hurt too; I want damages.’ Well, I wondered whether or not that was sincere, a sincere effort to redress a wrong or whether it was an effort to prevent justice on the facts in this case. I believe the latter is the truth. I do not believe that Herbert Foege believed that he had any claim. I think that counterclaim is solely filed upon the theory that a strong offense is better than a poor defense. . . . He claims damages to the extent of $2,000 and I say that is an effort to defeat the claim of Chapin; to submit a fictitious claim against him deserves no consideration at your hands. It is solely a lawyer’s defense and I am satisfied that Herbert Foege never from the time this accident happened until today ever felt he was entitled to one single cent of money for any injuries he may have sustained, great or small.” “Defendants’ Attorney’s Closing Argument.
“I have been conscious for the third day as I have gone along with you through this case that I have been at some disadvantage and that these two hoys that I happen to represent are at some disadvantage.
“I know that the plaintiff, Chapin, was an employee of Swift & Company and I know that he was driving a car which belonged to Swift & Company which was in fine upstanding shape. I know that this boy here had a 1927 or 1928 Willys Knight automobile and sometimes those old cans are not so hot, and I know this boy and his father are humble farmers and probably try to make a living doing the best they can on the farm. í Í
“Mr. Vogel: ‘Now, if the Court please, I don’t believe that this case has been tried to date upon the relative positions of the parties. That argument is highly prejudicial and improper and I object to it.’
“The Court: ‘Proceed, Mr. Crowe.’
“There is another thing, apparently we are under a disadvantage on this side of the table. Now he is charging us with something to defraud you men. I am told here that I am a party to it and I don’t mind telling you that this makes my blood boil and I don’t mind telling you I do not deserve it, and I don’t mind telling you that this boy, no matter who he is or what he is, whether he" makes $20 a month or otherwise, is just as much entitled to justice at your hands as Swift & Company employees on the other side of the table.
“. . . But I want to say to you, no matter what the circumstances are, arterial highway or no arterial highway, this boy, humble as he is, has just as much right to that highway as anybody working for Swift & Company. Their rights were equal and he had a right to go down to the farm and grease the plow if he wanted to, that is his business, even though it paid him $20 a month, it was still his business. Í 6
“The other side of this story is that Chapin came down there at 45 miles an hour and you tell me that anybody that admits going 45, they are going 65, and I know because when you pick up the Tribune in the morning and read the list of accidents—
“Mr. Vogel: ‘If the Court please, I don’t know whether we are trying cases in the newspapers or not.’
“The Court: ‘I will sustain the objection.’
“Mr. Crowe: ‘Speed, my friends, is the cause of 95% of all accidents and the fact that we are living in a fast age and the fact about motor car companies putting speed, speed and more speed is not going to decrease accidents, while we have cars with high power and they are still going to spread wreckage all over our State and somebody is going to have certain expenses so what causes accidents I lay to speed. ’
“Mr. Vogel: ‘Now if your Honor please.’
“The Court: ‘Objection sustained.’
“I could unlimber and unleash myself of things on my mind and on my chest, and I have a right to repeat and I ask you in behalf of these two men, these friends of mine, for a verdict in their favor.” “Plaintiff’s Counsel’s Closing Argument.
“It doesn’t make any difference to me and it doesn’t make any difference to you and it doesn’t make any difference I assure you to Mr. Chapin that these defendants are tillers of the soil, planters in the south or large landowners in the north. It makes no difference to me and it makes no difference to you and it makes no difference to anyone that Chapin is a salesman employed at $2,000 a year for Swift & Company. Those are not things which affect you gentlemen I am sure. It makes no difference whether this man is the lowest or the highest man in the United States and it makes no difference whether these men may be of high or low degree. Mr. Crowe has told you gentlemen that he has been charged with bad faith in filing this complaint, but upon looking at it I found that Attorneys Jenkins & Kirkpatrick failed to file a counterclaim, but that doesn’t make any difference, but Crowe is a fellow of open countenance and he is honest and he is a pretty blamed smart fellow and don’t let anybody tell you any different. A man like that when he begins talking about what this fellow is, he is employed by Swift & Company wants you to begin to think about something other than about the evidence and don’t forget that. You know when you are without fact and you are without law the best thing you can do to a jury is to wave, the flag and that is what my friend has been doing for 25 or 30 years. Those things don’t make that much difference in this lawsuit. Now, may I assure you gentlemen that merely because I am not jumping on Crowe or these gentlemen who happen for the moment to be defendants in this case that Crowé has any corner on honesty or good faith in this case. Now, let us not kid ourselves about this lawsuit. It is a lawsuit, of course, and I don’t believe that anything- I say about Crowe or anything Crowe says about me or anything Crowe says about my client who is interested in this case is going to make any difference. When this case is over and you are through, gentlemen, this man is either compensated for those injuries or he is not. He has no second chance. It is his last chance in this case and when you have had your final say and when your verdict is returned it seals it, it ends this lawsuit, and if he doesn’t recover then my duty I am afraid has not been .discharged.
“Mr. Crowe .talks to you about the kind of people he represents, they are good people. This is not a case where we are seeking to put somebody in jail. That is not the purpose of this thing. I don’t care who Herbert Foege may be or might be, in fact I don’t care who his father is. He might be the best, great or little, but I submit to you that Chapin is entitled to a substantial verdict in this case at your hands. . . .
“In any event, gentlemen, don’t let the argument of Mr. Crowe about these poor farmers affect your judgment in this case and don’t worry whether Chapin can collect it. That is not your function. We will take care of that. Tour job is to determine the question of liability and the question of damages and return a verdict then on your honest belief and when you have done that nobody can complain of your action. ’ ’

We fail to perceive in the argument of counsel, heretofore set forth, that either side made any statement that was so inflammatory or prejudicial as to neccessitate the reversal of the judgment in this cause. It appears to us that every statement of any importance in the closing argument of defendants’ counsel to which plaintiff objects was based on evidence in the record or was made in response to remarks of plaintiff’s attorney. The record in this case is unusually free from error and in our opinion there was no misconduct of defendants’ counsel in so far as his closing argument is concerned which wrongfully affected the verdict or should cause a reversal of the judgment. Any statements made by the attorneys in their closing arguments which might possibly be construed as being improper were about equally divided.

Where it appears that one party is as guilty in engaging in an improper argument as the other, the verdict of the jury will not be disturbed on that account. (Humphreys v. East St. Louis & Suburban Ry. Co., 253 Ill. App. 450.) “While it is the duty of the court to see to it that no advantage is obtained by improper remarks of counsel made to or in the presence of the jury, still counsel cannot be put in a straight-jacket when making their arguments, but within reasonable bonds of propriety must be left to their own discretion.” (Goldstein v. Smiley, 168 Ill. 438.) Since any line of discussion indulged in by defendants ’ attorney which was not based on evidence in the record was provoked by or replied to in like manner by plaintiff’s attorney, there can be no just ground for the complaint concerning the character of the closing argument to the jury of defendants’ attorney. We note nothing in such argument of probable prejudice to plaintiff.

Plaintiff also claims that the admission in evidence of a certain plat offered by defendants constituted reversible error. We have examined this plat and the evidence as to what it purports to portray, and satisfied that it was neither calculated to nor of a nature to mislead the jury, we are impelled to hold that the plat was properly received in evidence.

For the reasons stated herein the judgment of the superior court is affirmed.

Judgment affirmed.

Friend, P. J., and Scanlan, J., concur.


author: Mb. Justice John J. Sullivan

text:
    Henry Gunderson, Appellee, v. First National Bank of Chicago, Successor-Trustee Under Last Will and Testament of Lucius G. Fisher, Deceased, Appellant.
    Gen. No. 40,002.

      Opinion filed June 21, 1938.
    Lord, Lloyd & Bissell, of Chicago, for appellant; Gordon B. Close, of Chicago, of counsel.
    No appearance for appellee.
   Mb. Justice John J. Sullivan

delivered the opinion of the court.

This action was brought under the Dramshop Act (Ill. State Bar Stats. 1935, ¶. 43, 42 [Jones Ill. Stats. Ann. 68.042]) by plaintiff, Henry Gunderson, against defendant, First National Bank of Chicago, as successor-trustee under the last will and testament of Lucius G. Fisher, deceased, to recover damages for injuries alleg’ed to have been sustained as the result of an assault committed upon Gunderson. At the close of plaintiff’s evidence the court directed a verdict for defendant. Thereafter plaintiff filed a written motion for a new trial, which was allowed. This appeal, granted upon defendant’s application for leave to prosecute same, seeks to reverse the order which sustained plaintiff’s motion for a new trial. No brief has been filed by plaintiff appellee.

Plaintiff’s complaint alleged in substance that on July 26, 1936, defendant owned a building located at 399 South Dearborn street, Chicago; that it permitted one of the stores in said building to be used for a tavern known as “The Dells Buffet”; that “defendant had knowledge that alcoholic liquors were to be and were sold on the said date on the said premises occupied by the said tavern and the defendant knowingly permitted the sale therein of alcoholic liquors”; that the owners and operators of the tavern gave or sold liquor to a patron thereof on July 26, 1936, causing him to become intoxicated; and that while in that condition. he assaulted plaintiff, inflicting the injuries complained of.

Defendant’s answer admitted the ownership of the building on July 26, 1936, and that it permitted the use of a store situated therein for a tavern known as “The Dells Buffet,” but denied every other allegation in the complaint.

Plaintiff testified that at about 9 p. m. on Sunday, July 26, 1936, he entered “The Dells Buffet” and purchased a glass of beer; that he gave the bartender $5 and received only $3.90 back from him; that when he asked for his correct change he was “grabbed from behind and hit on the nose by a man named Nick”; that Nick was the only name by which he knew this man; that as he left the tavern Nick swung an ice club at him and struck him in the ribs; that when he went into the tavern “that night” he saw Nick pour a drink of whisky from a bottle on the bar and drink it but he did not see him pay for it; that he had been in the tavern about three times previously and on those occasions he had seen Nick behind the bar and outside of it; that when he reported the occurrence to the police, he stated that the man behind the bar hit him, referring to Nick; that he might have referred to him in his “police report” as the saloon keeper but that he was uncertain whether he did or not; and that he had known Arthur Lavigne, the bartender, for about two years.

Except for the physician who examined Gunderson and treated him for his injuries the only other witness presented in plaintiff’s behalf was Arthur Lavigne, who testified that on the day of the occurrence he was working in the tavern in question as a bartender; that the plaintiff came in the tavern, purchased a glass of beer and then began to argue about his change; that Nick Monaco assaulted plaintiff; that prior to this incident Nick Monaco had had about twelve drinks of whisky that day and was intoxicated; that he was hired by Nick Monaco and went to work for him when he opened up the tavern in defendant’s building; that he was paid by Monaco, who was around the tavern all the time; that he had never been paid by anyone else; that he took orders from Monaco, who was his boss; that Monaco “helped himself” to liquor in the tavern whenever he wanted it; and that on the occasion and on the day in question Monaco “helped himself” to the liquor he drank.

As heretofore stated, the trial court at the close of plaintiff’s evidence directed a verdict for defendant upon the latter’s motion and subsequently allowed plaintiff’s motion for a new trial. The following grounds were assigned in plaintiff’s written motion for a new trial: “ (1) The Court erred in directing a verdict for the defendant at the close of the plaintiff’s case; (2) the court erred in denying plaintiff leave to take a nonsuit; (3) the court erred in denying plaintiff leave to reopen his case and introduce further evidence; (4) the court erred in denying plaintiff’s motion to continue the hearing of evidence until the next trial day; (5) the judgment is contrary to law and fact.” Thus the question presented for decision is whether the trial court was warranted in allowing plaintiff’s motion for a new trial on any one or more of the grounds assigned.

As to the first reason advanced for the allowance of a new trial, we are of the opinion that under the law and the evidence the trial court had no alternative but to direct a verdict for defendant. In order for the plaintiff to recover in this cause it was incumbent upon him to prove, among other things, that the operator of the tavern located on the premises owned by defendant sold or gave alcoholic liquor to plaintiff’s assailant.

The section of the Dramshop Act under which recovery is sought provides in part as follows [Ill. State Bar Stats. 1935, ch. 43, ¶ 42; Jones Ill. Stats. Ann. 68.042]:

“Every . . . person who shall be injured, in person ... by any intoxicated person . . . shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein . . / shall be liable severally or jointly with the . . . persons selling or giving alcoholic liquors-aforesaid. . . .”

The law is well settled that recovery under the foregoing section of the statute is dependent upon proof of the fact that the operator of the tavern sold or gave alcoholic liquor which, in whole or in part, caused the intoxication complained of and that to establish the liability of the owner of the premises it is necessary to prove first the guilt of the occupant. (Hedlund v. Geyer, 234 Ill. 589; Austin v. Bass, 206 Ill. App. 435.) So in the case at bar, in order to hold the defendant owner liable plaintiff must first show that Monaco, the operator of the tavern, is liable under the Dramshop Act by reason of his having sold or given away alcoholic liquor to some person who became intoxicated and assaulted and injured plaintiff. In our opinion when Monaco helped himself to his own liquor he was neither selling nor giving away alcoholic liquor to the person who assaulted plaintiff within the contemplation of the statute. It is clear that Monaco could make neither a sale nor a gift of the liquor to himself and since there was no evidence of a sale or gift of liquor by the tavern operator as is required under the Dram-shop Act in order to hold liable the owner of the premises in which the tavern was located the verdict was properly directed for defendant.

The second reason urged in plaintiff’s motion for the allowance of a new trial was that the court erred in denying him leave to take a voluntary nonsuit. When Gunderson’s testimony had been concluded his attorney merely made an oral motion in his behalf “for leave to take a voluntary nonsuit.” This was insufficient. Section 52 of the Civil Practice Act (Ill. State Bar Stats. 1935, ch. 110, ¶ 180 [Jones Ill. Stats. Ann. 104.052]) provides that after the trial of the cause has begun plaintiff may only dismiss his action “upon filing a stipulation to that effect” signed by the defendant or “on the order of the court or judge made on special motion in which the ground for such dismissal shall be set forth and which shall be supported by affidavit.” Because of plaintiff’s failure to file either a stipulation to dismiss signed by defendant or to make a special motion to dismiss supported by affidavit, the trial court had no authority to allow a nonsuit to be taken over defendant’s objection. In passing upon this identical question in Chicago Title & Trust Co. v. County of Cook, 279 Ill. App. 462, this court said at p. 466:

“In the instant case the motion for a nonsuit not having been made until after the trial of the cause began, the court was not authorized to dismiss it over defendant’s objection, except upon plaintiff’s compliance with the terms of the act. To entitle plaintiff to a nonsuit under the circumstances involved, the statute required that plaintiff make a ‘special motion in which the ground for such dismissal shall be set forth and which shall be supported by affidavit. ’ No attempt having been made to comply with this provision of the act, the court was not warranted in sustaining plaintiff’s motion and entering the order awarding the plaintiff a nonsuit.”

The next reason urged for the allowance of a new trial is that the court erred in denying plaintiff leave to reopen his case and introduce further evidence. We deem plaintiff’s position in this regard untenable. It was only after he had presented all of his evidence and the court had allowed defendant’s motion for a directed verdict that plaintiff made the oral motion for leave to reopen his case and submit further evidence. He presented no additional witnesses, he made no offer of evidence which he desired to introduce and he made no statement to the court as to the nature of his purported additional evidence. It is usually within the court’s discretion as to whether or not a case shall be reopened to hear further evidence, but in order that the court may exercise its discretion, it must necessarily be advised as to what additional evidence will be offered so that its materiality may be determined. Inasmuch as the mere statement of plaintiff’s counsel that he wanted to reopen the cáse and introduce further evidence presented nothing for the court to pass upon, the denial of the motion could hardly furnish a sufficient reason for allowing the motion for a new trial.

The final ground relied upon by plaintiff in his motion for a new trial was that the court erred in denying his motion “to continue the hearing of evidence until the next trial day.” Plaintiff’s oral motion for continuance, which was not supported by affidavit, was made just as the prospective jurors were about to be examined. In support of such motion it was urged that Arthur Lavigne was a material witness, that he had disappeared, that he was not available for the trial, that plaintiff himself had worked the night before as a watchman, and that he was tired and sleepy and not fit to testify. The action of the trial court in overruling plaintiff’s motion for continuance was in accordance with the provisions of par. 1, of rule 7 of the Supreme Court (Ill. Rev. Stat. 1937, ch. 110, ¶ 259.14 [Jones Ill. Stats. Ann. 105.14]) and in any event Gunderson was not prejudiced by the ruling of the court since both Lavigne and plaintiff were present and testified fully at the trial.

Whenever a party files a written motion for a new trial he will be held to have waived all causes therefor not set forth in his written motion (Erikson v. Ward, 266 Ill. 259), and in passing upon such motion the trial court is precluded from considering any except the grounds specified therein. As has been shown none of the five errors assigned in plaintiff’s written motion for a new trial were sufficient to justify the trial court in granting same.

For the reasons indicated the order of the circuit court allowing plaintiff a new trial is reversed and the cause remanded with directions to enter judgment upon the verdict of the jury.

Order reversed and cause remanded with directions.

Friend, P. J., and S candan, J., concur.


text:
    People of the State of Illinois, Appellant, v. Casimer Kemnetz, Appellee.
    Gen. No. 40,103.

      Opinion filed June 21, 1938.
    Thomas J. Courtney, State’s Attorney, for appellant ; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
    No appearance for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This case was consolidated for hearing in this court with case No. 40,104, which involves an identical charge in a separate information ag’ainst defendant. In the instant case an information signed and verified by one Harry Milock was filed in the municipal court of Chicago, charging that the defendant, Casimer Kemnetz, unlawfully tampered with Milock’s automobile on November 13, 1936, in his absence and without his consent, contrary to the statute in such case made and provided. On April 8, 1937, defendant waived a jury and entered a plea of guilty and after evidence heard the trial court adjudged him guilty as charged in the information and sentenced him to confinement in the house of correction for the term of one year and to pay a fine of $1 and costs. Defendant was committed to the house of correction and while serving his sentence filed a sworn petition on November 8, 1937, which purported to be in the nature of a writ of error coram nobis under sec. 72 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, §196; Jones Ill. Stats. Ann. 104.072].

The pertinent allegations of this petition are that “the trials of both of said informations were held the same day and at the same time”; that “your petitioner had not been given and did not see either or both of said informations prior to his trial and did not rightly comprehend the nature of the accusations that he now finds were made against him therein”; that “in his ignorance of the fact that under the constitution and laws of this State he had an absolute right to examine personally any information filed against him, his further ignorance of the fact that on due representations to the trial court and on proper application a reasonable postponement would have been granted him to secure an attorney and to summon witness and by an excusable mistake of fact and ignorance, without negligence, on his part, and an anxiety of mind to such a degree as to render him incapable of making proper provisions for his defense he consented to an immediate trial and pleaded guilty to both of said informations without understanding rightly the statements of the trial judge before and at the time he entered his plea of guilty and his plea of guilty was accepted”; that “on a trial of said informations had at said time before the Court and without a jury a finding of guilty was made on both charges ’ ’; that ‘ ‘ at the time of his said trial he was not represented by counsel, and that counsel had not been appointed by the Court to act in his behalf, nor did counsel volunteer to act in his behalf”; that “at the time of his said trial he was not guilty of the supposed offenses which he now finds were alleged against him in both of said informations ’ ’; that “if at the time of said trials he had seen both of said informations and had he not been laboring under great excitement and confusion of mind, and had he been able to understand rightly the nature of the accusations made against him, he would have prayed the court to grant him an opportunity to present his full defense to same, and to offer mitigating circumstances in the said matters”; that “he is a very sick person suffering from numerous ailments; that his health will suffer great injury and be impaired if he is to remain incarcerated in the House of Correction; that under the statutory powers conferred on the trial courts of records by . . . section 72 of the Civil Practice Act of this State and the powers thereby conferred by the Judges of the Municipal Court of Chicago, under the statutes complying to said Court and Rule 2090 of the Municipal Court, Rules Amended, your petitioner humbly prays that the Judge of this Court may grant leave to your petitioner to file his motion and this petition instanter, and requiring the superintendent of the House of Correction to produce the body of your petitioner before this Court on a certain date to be set by this Court”; and that “this Court may then and there order a rehearing and retrial of these causes at a future time convenient to this Court to the end that your petitioner may appear in his behalf at that time to demonstrate and make manifest his innocence of said charges, or to offer mitigating circumstances.”

On November 18, 1937, the State ’s attorney filed a motion to dismiss defendant’s petition, which motion averred substantially that the facts alleged by defendant in his petition were known to him at the time of trial and that it was only by reason of his own negligence or carelessness that they were not presented to the court; that the defendant was not prevented from presenting said alleged facts to the court at the time of the trial, either by duress, fraud, excusable mistake or ignorance; that he was not prevented from procuring counsel and that if counsel had been requested the court would undoubtedly have appointed an attorney for him; and that the facts alleged in his petition were insufficient to confer jurisdiction upon the court to recall its judgment of conviction.

A hearing was had on November 23, 1937, on defendant’s petition and the People’s motion to dismiss same, at the conclusion of which the court, treating defendant’s petition as a motion for a new trial, sustained same, set the cause for trial December 1, 1937, and ordered the superintendent of the house of correction to produce the defendant in court on said last mentioned date. When the defendant was again placed on trial, December 1, 1937, he waived a jury and - entered a plea of not guilty. The court, after a hearing, found the defendant guilty, granted his application for probation and released him on .probation for one year. On January 14, 1938, the State’s attorney, on behalf of the People, filed the following notice of appeal:

“1. The People of the State of Illinois, Appellant, above named, hereby appeal from the judgment entered in this cause on the 1st day of December, A. D. 1937, whereby it was adjudged that the petitioner, Oasimer Kemnetz, be discharged from the House of Correction and placed on probation for one year on a petition in the nature of a writ of error coram nobis;
“2. Appellant prays that said judgment and order may be reversed and judgment entered for the Appellant and that the petitioner, Casimer Kemnetz, be remanded to the House of Correction to serve the remainder of his sentence in both cases, Municipal Court Numbers 1416390 and 1416391.
People of the State of Illinois, Appellant.
By Thomas J. Courtney,
State’s Attorney.
By A. P. Scruggs,
Assistant State’s Attorney.”

Defendant appellee filed no brief in this court.

It will be noted that by the foregoing notice of appeal no appeal was perfected from the order of the trial court of November 23, 1937, granting a “new trial” on defendant’s petition which purported to be a “petition in the nature of a writ of error coram nobis under Section 72 of the Civil Practice Act.” The order of November 23, 1937, also denied in effect the People’s motion to dismiss said petition. It is that order only that was reviewable on appeal by the People. The proceeding instituted by the filing of defendant’s petition under sec. 72 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, §196; Jones Ill. Stats. Ann. 104.072] is civil in its nature and the order or judgment rendered in response to such petition, being final, was subject to review by appeal by either the State or the defendant. It has been repeatedly held that a motion or petition filed in the nature of a writ of error co-ram nobis stands as a declaration or complaint in a new suit, and it is only because the proceeding so instituted is civil in character that the right of the State to appeal from the judgment entered in such proceeding has been generally recognized by the authorities. In discussing the matter under consideration in People v. Green, 355 Ill. 468, the Supreme Court said at pp. 472, 473:

“A motion or petition made under section 89 of the Practice Act [identical with section 72 of the Civil Practice Act] . . . stands as a declaration in a new suit. The issue made and the judgment sought concern only the setting aside of the original judgment entered. The order made on such motion is a final order and directly reviewable as a final judgment. (Cramer v. Commercial Men’s Ass’n, 260 Ill. 516; Domitski v. American Linseed Co., 221 id. 161.) It is generally recognized that the proceedings under a motion or petition in the nature of a writ of error coram nobis are civil in their nature. (People v. Crooks, 326 Ill. 266; State v. Calhoun, 50 Kan. 523, 72 Pac. 38; 2 R. C. L. sec. 266.) . . .

“. . . Since the judgment entered upon such proceeding is final and the proceeding is civil in its nature, either the State or the defendant is entitled to a review of the judgment of the court entered on such motion or petition.”

In its notice of appeal, however, the State failed to perfect an appeal from the order entered on November 23, 1937, allowing defendant’s motion to set aside the original judgment against him. What the State’s attorney did do in his notice of appeal was to attempt to perfect an appeal from .the judgment of December 1, 1937, which was a final determination of the merits as to defendant’s guilt of the crime with which he was charged in the information upon which he was tried. Under our law such a judgment is not reviewable at the instance of the State. In People v. Nakielny, 279 Ill. App. 387, in a well considered opinion written by Justice Scanlan it was pointed out that if an order or judgment granting a new trial is erroneously entered in a criminal case on a motion or petition under sec. 72 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, §196; Jones Ill. Stats. Ann. 104.072] and such order or judgment so entered is reversed on review, any orders entered by the trial court pursuant to such erroneous order granting a new trial are void and the defendant may be recommitted under his original sentence.

Since no appeal has been perfected from the order granting defendant a “new trial,” and that is the order we are asked to review, this proceeding will necessarily have to be dismissed.

Proceeding dismissed.

Friend, P. J., and Soanlan, J., concur.


author: Mr. Presiding Justice Stone

text:
    Chicago Pump Company, Appellant, v. Lakeside Engineering Corporation et al., Appellees.

      Opinion filed June 6, 1938.
    Rehearing denied July 7, 1938.
    Whitman, Holton & Tews, of Chicago, for appellant; Charles B. Holton and Herbert B. Tews, of counsel.
    C. J. Morgan, of Chicago, and Smith, George and McCollum, of Flora, for appellees; C. J. Morgan, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

On July 20, 1937, pursuant to leave of court plaintiff filed its engrossed amended and supplemental bill wherein it alleged that it is an Illinois Corporation and is engaged in the manufacturing and selling* of pumps and sewage disposal equipment; that defendant Lakeside Engineering Corporation is also an Illinois corporation; that prior to July 24, 1934, the defendant city of Flora, a municipal corporation, entered into a written contract with the defendant Samuel Bryden whereby the latter agreed to furnish all material, machinery, labor, and so forth, necessary for the construction of the proposed sewage plant. On the same day a contract was entered into between the Lakeside Engineering Corporation and Bryden with reference to the furnishing of certain material, machinery, labor and so forth, for the construction of said plant. On July 31, 1934, the Lakeside ordered of plaintiff certain materials for the use in the sewage disposal plant and the same were delivered by plaintiff to the Lakeside on October 31, 1934, and they were incorporated in the plant and became an integral part thereof. After-wards certain corrections were made in the prices thereof..

The complaint further alleges that afterwards the Lakeside furnished other material, machinery, labor and so forth, in connection with the construction of said plant, and also advanced and paid out various sums of money in that behalf. Plaintiff further alleges that there is due from the Lakeside the principal sum of $9,096.39, but that Lakeside has refused to pay the plaintiff and that the same remains unpaid.

Notices of said indebtedness to plaintiff were properly served upon the mayor, city clerk, and upon the treasurer of the city of Flora, claiming a lien upon the moneys, bonds or warrants due or to become due to the contractor Bryden from the City. A second notice of the same character was served upon the proper authorities of the City through some inadvertence as to whom the original contract was with. After service of notice plaintiff filed its complaint in the circuit court of Clay county against the Lakeside Engineering Corporation and the City. The City filed its answer and Lakeside filed its answer and counterclaim. At the dates of the service of the above notices the City was indebted or subsequently became indebted to contractor Bryden under their contract in the sum of $5,200, and on those dates Bryden was indebted to or subsequently became indebted to Lakeside under his contract with Lakeside for material and so forth-in the sum of $5,200. ......

Plaintiff claims it is entitled to a mechanic’s lien upon the moneys, bonds, or warrants due or to become due the defendant Bryden from the City pursuant to the statute and is without remedy and prays an account be taken, that the .court fix the amount due the plaintiff from Lakeside and Lakeside be decreed to pay and that plaintiff may be entitled,to a lien upon the aforesaid moneys, bonds or warrants and so forth due or to become due to Bryden for the amount due the plaintiff in pursuance of the statute; that in default of payment by Lakeside that said city or its proper disbnrsing officers be directed to pay such sum or sums to the plaintiff as the court may determine is due and owing and that plaintiff may have execution against Lakeside for any balance remaining due the plaintiff in the event the moneys, bonds and warrants referred to shall be insufficient fully to pay the whole debt found to be due plaintiff.

A similar prayer was made against the defendant Bryden. Bryden was not made a party defendant to the original complaint, but was added as a party by the amended complaint.

The Lakeside filed its motion to strike said amended complaint and defendant Bryden joined in said motion. The City did not plead. The trial court held the complaint insufficient in law and ordered the same dismissed for want of equity. Proper exceptions were taken and plaintiff brings the case here upon appeal. It assigns as error that the court misconceived the purport and effect of section 23 of the Mechanic’s Lien Act [Ill. Rev. Stat. 1937, ch. 82, § 23; Jones Ill. Stats. Ann. 74.23]; that it erred in sustaining the motion and ordering the case dismissed.

There is no substantial disagreement between the parties hereto, nor, indeed, can there be, as to the proper end aimed at in construing statutes, namely, to find out the intention of the legislature. It is equally certain under the decisions of our courts that those statutes which are in derogation of the common law must be strictly construed and interpreters thereof in such cases must look to the language of the act to find out the meaning of the particular statute. There is also agreement between the parties as to the historical legislation involved here, — that is, the mechanic’s lien law, before the amendment of 1935 and before the amendment of 1937, both of which are invoked in this case. It is also an undisputed fact that the materials furnished to the subcontractor were furnished prior to these amendments. If it is intended to be argued that material men in the position of plaintiff were entitled to lien prior to these amendments and that said amendments were in fact wholly remedial, that is, provided a means for carrying out a right that already existed, then we are immediately brought into contact with the case of Alexander Lumber Co. v. Coberg, 356 Ill. 49, which holds as definitely as language can make it, that no lien did exist prior to the amendments to material men placed in a position which plaintiff now is. These amendments, whether the legislature had .under consideration the effect of the Coberg case, supra, or not, in our judgment provide the lien for such persons as plaintiff now is, and that, therefore, had the materials which it furnished been furnished subsequent to the amendment of 1935, the remedy which he here seeks would have been plenary and complete. It seems to us, therefore, that the question before this court is whether the amendments were remedial and provided a means of carrying out a right which already existed, or whether they created a new right together with the remedy for its enforcement. As said above, on the theory that such a right existed and the amendments created a system of carrying out that right, we have to contend with the Coberg case, supra. We must decide that in view of the Coberg case no such right as plaintiff now insists upon existed in it prior to the time of the amendments. What then was there to remedy or carry out ? There would first have to be established a right before the remedy for carrying it out could be available. It is true as contended by appellant under the authorities cited that there is such a thing as remedial legislation which does not change the statics quo of the parties, except by means óf a- remedy for its enforcement which does not affect any of the. parties. But we have here to consider law which creates a new right which did not exist in the party at the time of making the contract and then proceeds in the same breath to provide for the carrying- out or executing that right. In Fisher v. Green, 142 Ill. 80, our Supreme Court said, “the rule undoubtedly is, that in the absence of express language requiring it, a retroactive constructive will not be adopted. The rulé on this subject is laid down in Endlich on the Construction of Statutes, sec. 271, as follows: ‘The rule to be derived from the comparison of a vast number of judicial utterances upon this subject seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal and unavoidable implication from the words of the statute, taken by themselves and in connection with the subject matter, and the occasion of the enactment, admitting of no reasonable doubt, but precluding- all questions as to such intention. ’ ” There are acts which under certain conditions may and do provide that said act shall have a retroactive effect; also there are cases where vested rights are divested and acts which were perfectly lawful when done are subsequently made unlawful by statutes; in such cases those who have the duty of interpretation must give such effect to such acts and conditions. Until a right exists, either at law or in chancery, or by statute, the enactment of a method of procedure can neither add to nor detract from the basis on which the supposed right rests.

In the present case the right contended for, if it exists at all, must exist by statutory enactment. We cannot see any sufficient reason; in view of the language of the statute under consideration, to hold that it is retroactive and established a right in plaintiff so that its remedial provisions might be applied to that right, —a right which did not exist prior to the enactment of the remedy. Not only do we think that this was not the intention of the legislature, but we are constrained to the belief that to give the statute such an interpretation would be to impair the obligations of contracts, such as rights which existed in the defendant Bryden, or rights which existed in the defendant Lakeside Engineering Corporation. To give these amendments such an interpretation in disregard of the rights which exist in the two above named defendants, even though the public for which the improvement was made is not affected, would be obnoxious to the constitution and void and unenforcible.

We are of the opinion that the trial court did not err in dismissing the complaint in this case for want of equity and its action in that regard will be affirmed.

Decree affirmed.


text:
    Farmers National Bank of Grayville, Illinois, Appellee, v. E. B. Crooks, Appellant.
    Opinion filed June 6, 1938.
    Rehearing denied July 7, 1938.

      Conger & Elliott, of Carmi, for appellant.
    P. J. Kolb, of Mt. Carmel, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Edwards county in the sum of $7,402.88. The judgment was obtained by confession. It was opened up by the court on motion, and defendant given leave to file an answer. Trial of the issues was had and substantially the following facts are deducible from the record and are uncontradicted.

For many years plaintiff had been a national bank located at Grayville, Illinois, and from the year 1916 until January, 1935, E. P. Bowman was its president. In 1935, he was succeeded by his brother Frank. In December, 1928, the Peng]ase Sand & Gravel Company was indebted to the Bank for $6,000 the limit of indebtedness which the Bank could legally loan. This gravel company owned a boat which had been purchased for $9,000 and upon which a contractor, one Dunlap of Edwardsville, had a lien in the form of a conditional sales contract for a balance of $5,877. This indebtedness was past due and Dunlap was about to take the boat under said contract. The gravel company had no money and no further credit. The company at that time was indebted to plaintiff in the sum of $6,000, and plaintiff bid fair to lose that loan. Accordingly, for the purpose of protecting plaintiff’s loan, E. P. Bowman, who was then president and the actual manager of the plaintiff institution, sent his personal check to Dunlap at Edwardsville for $5>875 and took an assignment of the aforesaid contract. When this check was returned to the Bank it was not charged to Bowman’s account, but was retained over night as a cash item. The next day Bowman, procured a note from one F. E. Bigall for the amount of this check. The record does not disclose who Bigall was or what relations he and Bowman sustained. The note was substituted for the check as one of the assets of the Bank and the check removed. The assigned contract was returned to Bowman and placed in the vaults of the Bank away from the personal papers of Bowman. It was afterwards carried as collateral by plaintiff. No credit was given to Bigall because of his note and the same was carried for about a year and a half, the Sand & Gravel Company paying the interest thereon. In May, 1929, a bank examiner came to examine the Bank. He complained of the Bigall note, that it was too large and insufficiently secured and demanded that it be taken up and another placed in its stead. The examiner Avas aware of the facts concerning it.

Acting* upon the examiner’s request Mr. Bowman, the president, in May, 1929, asked the defendant, who was a farmer, not connected Avith Bank or the gravel company in any way, but merely a friend, to sign a note for $5,877.50 for the Bank. It seems that defendant asked no questions; that BoAvman had his entire confidence, and defendant did not hesitate to sign the note. Defendant received nothing* for this note, not even the canceled note of Bigall, and no consideration of any kind or character unwed to him. He understood that he was not to get anything and did not expect anything. He thought he was doing an accommodation by signing this note for the Bank. He received no credit for it. It was handled as an accommodation to the Bank all the way through. This note was placed among the assets of the Bank and was renewed from time to time. Defendant never paid any interest on it and apparently never paid any attention to it. The note was in the hands of his friend Bowman and he asked no questions.

Later the Sand & Gravel Company went into bankruptcy and an attempt was made by Mr. BoAvman, acting for the Bank, to foreclose his lien. This it seems was unsuccessful, even though carried to the circuit court of appeals. It was apparently the Bank’s doings; they paid the costs and attorney fees for this litigation.

The notes sued on in this case were charged off as assets of the Bank on July 20, 1935. This was done at the behest of the bank examiner. He decided they were accommodation notes for the accommodation of the Bank and could not be collected. He apparently was in possession of all the facts as given to him before any litigation was contemplated or begun.

This case must be decided by putting proper conclusions upon the facts as above stated insofar as it is humanly possible. There can be no question but what the notes on which judgment was taken were accommodation paper, and as such between the payee and defendant they are uncollectible unless it is possible to deduce from these facts that this accommodation was given for the benefit of the gravel company and not for the Bank.

We are unable to arrive at that conclusion. Aside from the facts as they are stated, every circumstance in this case seems to indicate that these notes were made for the accommodation of the Bank, that there was no consideration for them moving* to defendant, that he received no credit for them; that it was understood they were not to be paid by him. He was merely helping the Bank, or accommodating the Bank by use of his paper. So far as this record discloses defendant knew nothing* about any transactions between the Bank and the gravel company. No rights of third parties intervene at any point. The plaintiff here is payee in these notes; they have not been transferred. Plaintiff is charged with knowledge of all the circumstances and does not deny such knowledge; in fact, it is one and the same person as the one who originally took the notes and who renewed them from time to time.

In view of all these circumstances we are impelled to the belief that this case falls within the case of Ruvenacht v. German-American Bank, 212 Ill. App. 68, and Straus v. Citizen’s State Bank, 164 Ill. App. 420, and other cases along the same line.

Not only is this true in our judgment, but it would be manifestly unjust to compel defendant to pay these notes. The sole beneficiary of these transactions was the plaintiff itself; not until the collateral which it had taken over failed to materialize in money did plaintiff turn upon the individual who has accommodated it and helped it to keep its credit. The law will not lend itself for the carrying out of such transactions.

It was error for the court to restore these judgments. The judgment of the circuit court is reversed.

Cause reversed.


author: Mr. Justice Edwards

text:
    The People of the State of Illinois, Appellee, v. Archie B. Riggs, Appellant.

      Opinion filed June 6, 1938.
    Rehearing denied July 7, 1938.
    Lloyd A. Faxon and Harry F. Wiggins, both of Chicago, for appellant.
    Louis P. Zerweck, State’s Attorney, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

The state’s attorney of St. Clair county filed an information in the county court charging defendant with having deserted his two minor children, who were in destitute and necessitous circumstances, in violation of section 24, ch. 68, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 37.002, 37.012],

A motion for temporary support, based upon section 26 of such act [Ill. Rev. Stat. 1937, ch. 68; Jones Ill. Stats. Ann. 37.004], was duly filed in the cause, but it does not appear to have been passed upon prior to the trial. The section provides that “At any time before the trial, upon motion of the complainant and upon notice to the defendant, the court at any time, or a judge thereof in vacation, may enter such temporary order as may seem just, providing for the support or maintenance of the wife or child or children of the defendant, or both, pendente lite, and may for a violation of such order punish the offender as for a contempt of court.”

The issues were heard before a jury who disagreed. Upon discharge of the panel, as for a mistrial, the court entered an order upon such motion, requiring defendant to pay the sum of $50 monthly beginning September 9, 1937, for the support of said children; from which order he has appealed.

Section 24 aforesaid is a criminal statute, and for any order entered thereunder a review could only be had by writ of error; Gallagher v. People, 207 Ill. 247. Section 26 has been held to be chiefly in the interest of the wife and children, and proceedings pursuant to its terms are civil in their character, as a consequence of which a person who felt himself aggrieved by an order so entered for support pendente lite, might question its propriety or correctness by appeal, People v. Elbert, 287 Ill. 458; People v. Elbert, 217 Ill. App. 394. We shall accordingly consider the appeal as properly taken.

Appellant appears to have fully perfected his appeal and fulfilled all the statutory requirements, as well as complied with each of the rules of this court, in so doing.

Appellee has filed no brief or argument to sustain the judgment. This court has held that where such is the case the judgment may be reversed without a consideration of the cause on its merits, C. I. T. Corp. v. Blackwell, 281 Ill. App. 504; Eichelberger v. Robinson, 233 Ill. App. 579.

For which reason the judgment is reversed.

Judgment reversed.