author: Mr. Presiding Justice Shurtleff

text:
    State Bank of Mansfield et al., Plaintiffs in Error, v. The Moore State Bank et al., Defendants in error.
    Gen. No. 8,122.

      Opinion filed February 8, 1928.
    W. A. Doss, F. M. Shonkwiler and C. W. Firke, for plaintiffs in error.
    Edie & Edie, for defendant in error Moore State Bank.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

The Moore State Bank, one of the defendants in error, filed its bill of complaint in the circuit court of Piatt county on January 12, 1926, to the February term thereof, to foreclose a mortgage given by one Asahel Thomas in his lifetime to the complainant, covering 390.55 acres of land in Piatt county to secure an indebtedness of $19,350.

The bill alleged that on and prior to January 25, 1926, one Asahel Thomas was indebted to defendant in error and thereupon duly executed his note and mortgage to secure said indebtedness conveying certain real estate owned by said mortgagor in the county of Piatt, State of Illinois; that said mortgage was filed for record in the office of the recorder of deeds of Piatt county, Illinois, on January 25,1922; that said Asahel Thomas died intestate May 20, 1922, leaving surviving him certain heirs at law, and that administration was then pending upon his estate; that said real estate was incumbered by prior mortgage for the principal sum of $41,000; that said indebtedness was due one year after date and default had been made in the payment thereof. The said original bill for foreclosure of said mortgage made parties defendant thereto the heirs at law of said Asahel Thomas, deceased, the administrators of his estate and certain persons who had judgments of record against certain of said heirs at law. None of the plaintiffs in error and none of the complainants in the cross-bill were parties to the original bill. Answers to said bill were filed by the administrators of the estate of Asahel Thomas, deceased, and also by his heirs at law.

At the February term, 1926, of said court, plaintiffs in error, with other persons, obtained leave to become parties defendant and to file a cross-bill. Thereupon plaintiffs in error, joined with other persons, filed a cross-bill in said cause alleging in substance that cross-complainants were creditors of Asahel Thomas, deceased, and were such creditors on January 25, 1922, and that the Moore State Bank had knowledge of the indebtedness of Asahel Thomas, deceased, to said cross-complainants and that the execution of said mortgage was made to hinder and delay cross-complainants in the collection of their debts and was fraudulent as to them.

The cause was referred to a special master in chancery to take the proofs and report his conclusions of law and fact.

The testimony tended to show that at the time Thomas gave the note and mortgage to defendant in error to secure a bona fide debt, that Thomas was hopelessly insolvent and that defendant in error had knowledge of that fact. Plaintiffs in error have brought the record by writ of error to this court for review, to reverse the decree entered in favor of the original complainant. °

The right of a debtor to pay one creditor in preference to another or to deliver property in satisfaction or to create a lien upon such property for the security of a particular debt, in preference to and to the ex-elusion of all other liabilities, always existed at common law and is the established rule in this state. (Cross v. Bryant, 2 Seam. [3 Ill.] 36; Bartel v. Zimmerman, 293 Ill. 154,162; Barnes v. Ward, 190 Ill. App. 392.) But it is contended by plaintiffs in error that the statements made by the cashier of the Moore State Bank to Thomas that “the Bank wanted a mortgage to protect the Bank and said Thomas,” renders the transaction fraudulent and the mortgage should be set aside. There is no merit in this contention. In Behrens v. Steidley, 198 Ill. 303, 306, the court held:

“We have repeatedly held that under our Statute of Frauds and Perjuries, in order to set aside a conveyance on the ground that it was made to hinder and delay creditors, it must appear that both parties participated in the fraud; and that the conveyance may have the effect to delay and hinder the creditors does not, of itself, bring a case within the statute. (Ewing v. Runkle, 20 Ill. 449; Hessing v. McCloskey, 37 Ill. 341.)”

Even attributing to the statement of the cashier a purpose to mislead and secure a preference which would result in the exclusion of other creditors, there is no proof that Thomas acted otherwise than from a motive to prefer defendant’s in error debt. The statement and the conduct of the parties were not such a fraud as is contemplated under the statute against frauds and perjuries. Neither party did anything that he or it did not have a right under the law to do.

In Murry Nelson & Co. v. Leiter, 190 Ill. 414, 422, the court held:

“A debtor in failing circumstances, not seeking the benefit of the general Assignment act, may decide to prefer and pay one creditor to the exclusion of all others, or may, by mortgage or deed of trust, or in other legal manner, secure the payment of his indebtedness to one creditor though he thereby hinders and delays his other unpreferred creditors in the collection of their claims, provided the payment is made or security given with the intent, in good faith, to discharge or secure the preferred claim. (Waddams v. Humphrey, 22 Ill. 661; Funk v. Staats, 24 Ill. 633; Morris v. Tillson, 81 Ill. 607; Welsch v. Werschem, 92 Ill. 115; Wood v. Clark, 121 Ill. 359; Hulse v. Mershon, 125 Ill. 52.) A debtor who is indebted to a number of creditors, when he exercises the right to prefer one of his creditors and to secure the payment of his indebtedness to such creditor by a mortgage or deed to a trustee creating a prior lien on his real estate, must, of course, not only be conscious that his act of preference will hinder and delay, — possibly defeat,— the collection of other demands against him, but if he intends his mortgage or trust deed shall be effective, his purpose being to subordinate the claims of the other creditors to that of the creditor he desires to prefer, it may always be said his intention is to hinder and delay all the unpreferred creditors. The test to be applied is whether the debtor, in exercising the privilege of making the preference, acts in good faith, with the intent to pay, or secure the payment of, a just indebtedness against him, and he cannot be deprived of the right on the ground he knows or intends that the preference given to one creditor, to the extent such preference shall be available and effective, will operate to hinder and delay other creditors.”

The abstract does not set out the master’s report or the objections and exceptions to the same; neither is there an index to the abstract, which is a violation of the rules in this court, and for the reasons stated the decree of the circuit court of Piatt county is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Elleanor Puntenney, Appellee, v. Pauline R. Mantle, Appellant.
    Gen. No. 8,116.
    Opinion filed February 8, 1928.
    John Gr. Feiedmeyer, for appellant.
    A. M. Fitzgerald, Harry C. Moore and Noah Gtullett, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

This is an action of assumpsit brought by appellee against appellant in the circuit court of Sangamon county, to recover back money paid by appellee for Class “D” securities under the Illinois Securities Law passed by the legislature in 1919, Cahill’s St. ch. 32, If 254 et seq., on the ground that the same were sold to appellee by appellant in violation thereof.

The first count of the amended declaration charges that appellee bought 1,000 shares of stock of the Consumer’s Oil Shale Company for the sum of $90; that said stock was Class “D” securities; that said company had not qualified, under the law, to sell Class “D” securities; that appellant, in making said sale, acted as agent or solicitor of said company, and advised and encouraged appellee to buy said stock and that appellee has tendered back the same to appellant and now tenders it in open court. The second count is like the first except that it charges that appellee purchased 30,000 shares of stock which were Class “D” securities of the Central Oil Shale Refining Company, for $1,140. The third count consists of the consolidated common counts. Two additional counts were also filed. The first relates to the stock of the Consumer’s Oil & Shale Company and after alleging that said stock was of Class “D” securities and that said company had not complied with the provisions of the Illinois Securities Law relating to the sale and offering for sale of Class “D” securities, charges that appellant was the owner of 1,000 shares of said stock and did knowingly counsel, advise, solicit and recommend to the plaintiff to buy said shares of stock and unlawfully, fraudulently and knowingly did offer for sale to the plaintiff 1,000 shares of said stock for the purpose of defrauding the plaintiff, and the plaintiff then and there did, upon said counsel’s advice, solicitation and recommendations, buy 1,000 shares of stock of and from said appellant then and there acting for herself and on her own behalf. The second count relates to the Central Oil Shale Refining Company stock and after making the same averments in regard to the failure of said company to comply with the provisions of said law. in regard to the sale of Class “D” securities, alleges that appellant was the owner of 50,000 shares of the stock of said company and that she had not complied with the provisions of said law in regard to the sale of Class “D” securities and did knowingly counsel, advise and solicit and recommend to appellee to buy said stock and knowingly unlawfully and fraudulently did offer for sale and did sell in the course of repeated and successive transactions of like character, for her own account, to appellee 30,000 shares of said stock and paid therefor the sum of $1,150. The declaration also seeks to recover attorney’s fees.

The trial was had before the court without a jury and a judgment was entered in favor of appellee for $1,240 damages and $400 attorney’s fees.

It is first contended by appellant that the evidence does not show that she was the owner of any of the stock in question or was the agent or solicitor of either of said companies in the sale of said stocks, but that she simply acted as a friend of appellee and was, in fact, her agent in the purchase of said stocks for her. This question has been found adversely to appellant’s contention in two trials, once by a jury and once by the trial court, and there is ample evidence to sustain these findings of fact. In our view of the case it is immaterial whether appellant was the actual owner of the stocks sold to appellee or that she acted as the agent or solicitor of the respective companies in the sale of said stocks, because it was through the counsel, advice, solicitation and recommendation of appellant that appellee purchased the same, and there are counts covering both situations. In fact, with one exception, all the money that was paid for these stocks was paid directly to appellant by appellee. Appellant was the only one' with whom appellee had any dealings or transactions in the purchase of the stocks.

The transactions involved consist of the purchases by appellee, at different times, of three blocks of stock as follows: September 27, 1919,10,000 shares of Central Oil Defining Company stock, for which she paid $300; October 4, 1919, 1,000 shares Consumer’s Oil & Shale Company stock for which she paid $90; and November 28, 1919, 10,000 shares Central Oil Shale Defining Company’s stock for which she paid $350.

As to the 1,000 shares of Consumer’s Oil & Shale Company stock which appellee purchased October 4, 1919, there can be no question as to the liability of appellant because neither the oil company nor appellant had complied with any of the provisions of the Securities Law. In regard to the purchase of the shares of stock of the Central Oil Shale Defining Company, a somewhat different situation is presented. The Illinois Securities Law was approved and became effective June 10,1919, and the Central Oil Shale Defining Company, having complied with the provisions of said act, was granted permission to sell its stock in this State, by a certificate of the Secretary of State dated August 15, 1919, though this certificate was revoked by the Secretary of State March 5, 1920, after the purchases of the stock of this company were made by appellee and while the certificates were in force, but this is a suit against appellant personally and not against the oil company and before appellant could have lawfully acted, either as dealer, agent, broker or solicitor for the sale of said stock, she would have had to qualify herself to act as such under said law, as is clearly indicated by the provision of the act. Sections 13 and 14, Cahill’s St. ch. 32, M 266, 267, are as follows:

“§13. If the statement as to securities in Class ‘D’ discloses that such securities are intended to be offered or sold by the issuer, through a solicitor, agent or broker, a statement giving the names, residences, qualifications, occupations and business experience of such solicitor, agent or broker for a period of ten years prior to the filing, and the name and address of each employer, the period of employment and reason for resignation or discharge, shall be filed in the office of the Secretary of State. The signatures of each and every of such solicitors, agents or brokers, shall be attached to such statement. If after the filing of such statement the issuer shall appoint any additional solicitor, agent or broker to offer or sell such securities before any such additional solicitor, agent or broker, shall offer or sell any such securities, there shall be filed like statements.

“§14. After qualification of securities in Class ‘D’ by the issuer, any dealer or owner may sell such securities upon filing in the office of the Secretary of State, a statement verified by the oath of such dealer or owner as otherwise provided by this Act, a statement of the amount and description of the securities to be sold by him or it, the maximum price for which they are to be sold, his or its address by street and number, qualification, occupation, and business experience of such dealer or owner, for a period of ten years prior to filing such statement, giving name and address of each employer, the period of employment and the reason for resignation or discharge.”

Section 29, Cahill’s St. ch. 32, ¶ 282, provides that any solicitor, agent or broker selling or offering to sell any securities in Class “D” without compliance with the provisions of this act, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than $100, etc. Section 31, Cahill’s St. ch. 32 If 284, provides that any person or corporation, whether acting on his or its own behalf or on behalf of another violating any of the provisions of this act, shall be deemed guilty of a misdemeanor and on conviction thereof shall be fined not less than $100, etc. Section 37, Cahill’s St. ch. 32, if 290(1), of the act is as follows:

“§ 37. (1) Every sale and contract of sale made in violation of any of the provisions of this Act shall be void * * * and the seller of the securities so sold * * * and each and every solicitor, agent or broker of or for such seller, who shall have knowingly performed any act or in any way furthered such sale, shall be jointly and severally liable, * * * upon tender to the seller or in court of the securities sold, to the purchaser for the amount paid, * # * together with his reasonable attorney’s fees in any action brought for such recovery. ’ ’

There is no pretense that appellant ever attempted to comply with any of the provisions of this act in order to qualify herself either individually or as dealer, agent, broker or solicitor, to sell Class “D” securities of the oil company in question or of any other company.

It is next urged that appellee cannot recover because the proofs fail to show that she tendered back to appellant the same stock which she bought, as required by section 37 above quoted. This alleged error can have no application to the certificate of the stock of the Consumer’s Oil & Shale Company because that certificate was tendered in court, but it is vigorously insisted that no certificate of the stock in the Central Oil Shale Defining Company was, in fact, tendered. The basis for this contention is that subsequent to the purchase by appellee of the stock of the Central Oil Shale Defining Company, this company changed its name to the Central Oil & Shale Company and changed the par value of its stock from one cent to one dollar per Share. Appellee was notified of the change of name and requested to surrender the certificate of stock which she held in the Central Oil Shale Defining Company and receive, in. lieu thereof, a certificate of stock of equal value of the Central Oil & Shale Company. This was accordingly done and appellee received a certificate of stock in the latter company which she tendered to appellant. The two companies were the same, the only change being in the name and in the par value of the stock, which the evidence shows was raised from one cent to one dollar to facilitate the sale thereof. On a former appeal of this case (234 Ill. App. 137) this court held that appellee’s right to recover is purely statutory and the conditions upon which that right is based must be strictly complied with and that the tender of certificates of stock other than the certificates of stock actually sold is not a sufficient tender under the statute, as the Securities Law requires a tender back of the stock actually purchased to the vendor as a condition precedent to the right of recovery. The evidence adduced at the former trial justified the conclusion that the Central Oil & Sliale Company was a different corporation from the Central Oil Shale Refining Company, and that after appellee had purchased the stock she had reinvested the same by exchanging it for stock in another and different corporation. From the evidence introduced at the last trial, however, it appears that the reorganization of the corporation amounted merely to a change in the name and the par value of the stock, and that the stock tendered by appellee was a reissue of the same stock purchased from the appellant. It also appears from the testimony that appellee sent in the stpck originally purchased for the purpose of exchanging it for the new stock at the instance of and by direction of appellant. We are of opinion that the stock tendered back by appellee was, in fact, the same stock purchased by her from appellant and that the requirement of the statute was substantially complied with. Puntenney v. Wildeman & Co., 318 Ill. 139.

The allowance of attorney’s fees was based upon the evidence and properly allowed.

There is no reversible error in the record and the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Niehaus

text:
    Anna Rudin, Administratrix of the Estate of August Rudin, Deceased, Defendant in Error, v. William W. Wheelock and William G. Bierd, Receivers of the Chicago & Alton Railroad Company, Plaintiffs in Error.
    Gen. No. 8,136.
    Opinion filed February 8, 1928.
    William L. Patton, for plaintiffs in error; Silas H. Strawn, of counsel.
    John G. Friedmeyer and Chas. S. Andrus, for defendant in error.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case, the defendant in error, Anna Rudin, as administratrix of the estate of August Rudin, deceased, sued the plaintiffs in error William W. Wheelock and William G. Bierd, as receivers -of. the Chicago & Alton Railroad Company, in the' circuit court of Sangamon county, to recover damages resulting to the next of kin of the deceased, on account of the death of the deceased, which it is alleged was caused by the negligence of the plaintiffs in error in the operation of the Chicago & Alton Railroad Company. The declaration contains an averment of general negligence in the operation of an interstate train on the Chicago & Alton Railroad at its intersection with Sangamon Avenue, a public crossing, located in the northern part of Springfield, Illinois. It also alleges specific negligence in that the train in question was driven across Sangamon Avenue at a high and dangerous rate of speed, without giving any warning of its approach; also that the statutory signals, namely, the ringing of a bell or the blowing of a whistle upon the train’s approach to the crossing in question were not given.

The trial of the case resulted in a verdict and judgment in favor of the defendant in error for $10,000. This writ of error is prosecuted from the judgment.

The questions of negligence of the plaintiffs in error which were the main subjects of controversy at the trial were that the train was running at an excessively high rate of speed, and that the statutory signals of warning were not given as required by the statute. A number of witnesses were called both by the plaintiffs in error and the defendant in error to testify concerning these matters. It is urged by the plaintiffs in error for reversal of the judgment that the defendant in error did not establish her case by a preponderance of the evidence, and this question is the main question submitted for review.

The record discloses that the court gave an instruction directly bearing upon the question of how the jury should determine the matter of the preponderance of the evidence. Error is assigned on this instruction which is as follows:

“The jury are instructed that the preponderance of the evidence in a case is not, necessarily, alone determined by the number of witnesses testifying to a particular fact or state of facts, but in determining upon which side the preponderance of the evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify, their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit, the probability or improbability of the truth of their several statements, in view of all the other evidence, facts and circumstances proved in the trial, and from all the evidence, facts and circumstances in evidence, determine on which side is the weight or preponderance of the evidence. ’ ’

It will be noted, that in this instruction the court told the jury that “in determining upon which side the preponderance of the evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify, their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit, the probability or improbability of the truth of their several statements, in view of all the other evidence, facts and circumstances proved in the trial, and from all the evidence, facts and circumstances in evidence, determine on which side is the weight or preponderance of the evidence.” Thus by the instruction, the court eliminated from the consideration of the jury the element of the number of witnesses as a factor in determining the question of the preponderance of the evidence. It has been repeatedly held that instructions of this character, which inform the jury how the question of the preponderance of the evidence should be determined, but do not take into account the force and effect of the greater number of witnesses which may have testified for one side or the other, are erroneous. Noone v. Olehy, 297 Ill. 160; Ogren v. Sundell, 220 Ill. App. 584. There is another erroneous feature in this instruction, namely, that which directs the jury that they should take certain matters into consideration. This was referred to in Lyons v. Chicago City R. Co., 258 Ill. 75, where the court said: ‘ ‘While it may be proper to enumerate elements which the jury may consider, an instruction which tells them they ‘must’ or ‘should’ consider is liable to be misleading. * * * On the trial of the case the court should leave the jury perfectly free and untrammeled to pass upon the credibility of the witnesses, determining for themselves the weight to be given to the testimony. * * * It is not the province of the court to tell the jury in any case what evidence is the strongest.” The instruction referred to was distinctly prejudicial to the right of the plaintiffs in error to have instructions legally accurate, inasmuch as the record discloses that the larger number of witnesses, who testified on the controverted questions referred to, testified favorably to the contention of the plaintiffs in error.

For the reasons stated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Thomas D. Masters. Helen J. Masters, Intervener, Appellee, v. Edgar Lee Masters et al. Edgar Lee Masters, Appellant.
    Gen. No. 8,151.

      Opinion filed February 8, 1928.
    Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, for appellant.
    George E. Jenkins and Oscar J. Putting, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Sangamon county sustaining appellee’s right of recovery under an intervening petition, which the appellee, Helen J. Masters, filed by leave of court in the partition case of Thomas D. Masters vs. Emma J. Masters, Edgar Lee Masters et al., in the circuit court of Sangamon county. The decree finds that the appellee has a lien upon the distributive share of Edgar Lee Masters, the appellant, in the proceeds of the master’s sale of the real estate involved in the partition suit referred to. The record discloses that when the intervening petition was filed a decree in the partition case had been rendered, fixing the rights and interests of the parties in the real estate involved, and fixing the interest of the appellant, Edgar Lee Masters, to be an undivided one-third, but that an appeal had been prayed from this decree by Edgar Lee Masters, and allowed, and had been perfected, and the partition case, involving the rights and interests of the parties, was pending on appeal in the Supreme Court. The intervening petition was verified by affidavit and filed on the 14th day of January, 1927, at the term of the circuit court following the appeal. It avers that prior to April 2, 1923, the appellee was the wife of the appellant, Edgar Lee Masters, and that on the date mentioned she was granted a divorce in the superior court of Cook county, and that in said decree dissolving the marriage it was ordered that Edgar Lee Masters pay to the petitioner commencing on April 1,1924, $150 per month for alimony; and that said Edgar Lee Masters has paid pursuant to said order only the sum of $950, and is in arrears in the payments required to be made under said decree in the sum of $4,050. It is also averred in the petition that by a decree in the circuit court of Sangamon county, recently entered in the partition case referred to, there has been adjudged that Edgar Lee Masters is the owner of an undivided one-third interest in the real estate involved in the partition suit, and is entitled to contribution from the estates of Emma J. Masters, Thomas D. Masters and Madeline Masters Stone for a fair rental value of said premises from May 1, 1926, at, the rate of $75 per month. It is also averred that said Edgar Lee Masters has no other tangible property except the property above mentioned, and that in law and equity the petitioner by virtue of the decree of the superior court of Cook county, a. copy of which is,-attached to the petition, marked Exhibit A, is entitled , to a lien on said real estate; and in case of sale thereof, under the direction of the court, and a division of the proceeds of the sale, that she is entitled to a lien on all moneys and proceeds of said sale covering the interest of Edgar Lee Masters and his share in the rents of said real estate. The prayer of the petition is that, upon a hearing thereof, the court may order and decree that the interest in said property and money of said Edgar Lee Masters is subject to the lien of the petitioner on account of the decree of the superior court of Cook county, above mentioned; and that the petitioner ought to have satisfaction in accordance with the orders of her decree obtained against Edgar Lee Masters; and that the said Edgar Lee Masters may be required to pay to petitioner her reasonable expenses and solicitor’s fees for the prosecution of her petition; and that it may be further adjudged that said Edgar Lee Masters pay to the petitioner from the moneys and property awarded to him in the partition case the sum of $4,050, together with the costs of this suit, and such other and further relief as equity may require. Upon the filing of the petition, the court entered an order requiring the appellant to answer the petition by the 24th of January following. No answer however, was filed, and nothing further was done in the matter of the petition until May 17, 1927, when the order of affirmance of the partition decree by the Supreme Court was filed in the case; thereupon another order was entered on motion of appellee by which the appellant was ruled to answer the petition by the following 31st day of May at 9:00 o’clock a. m., and the appellant having failed to answer the petition was defaulted. After the sale of the real estate by the master in the partition suit, and the approval of the sale by the court, there was a hearing on the intervening petition, and thereupon the court entered the following decree:

“This cause coming on to be heard on the intervening petition of Helen J. Masters'and the default of Edgar Lee Masters thereto, said intervening petition being taken as confessed, and the court having-heard the evidence offered by said intervening petitioner doth find: that a decree in the sum of $4050.00 was entered in favor of said Helen J. Masters against Edgar Lee Masters in the Superior Court of Cook County, Illinois, on January 11, 1927, in case number 388663 and execution was duly issued on said decree and was levied on by the sheriff of the County of Sangamon on the interest of said Edgar Lee Masters in the premises described in the bill of complaint herein. That no part of said $4050.00 due from Edgar Lee Masters to intervening petitioner has been paid and the same is still due and owing. Ordered said intervening petitioner, Helen J. Masters, has a good and valid lien upon the interest of said Edgar Lee Masters in the premises described in the said bill of complaint and in the interest of said Edgar Lee Masters in the proceeds of the master’s sale of said premises and the Special Master D. L. Griffin is directed to pay over to said intervening petitioner, Helen J. Masters, the sum of $4050.00 from the proceeds of such sale arising from the interests of said Edgar Lee Masters in said premises, or the total amount of said interest of said Edgar Lee Masters in such proceeds not exceeding said sum of $4050.00.”

Error is assigned by the appellant on the granting of leave to file the intervening petition, and on the granting of the relief prayed for in the petition. In reference to these assignments of error, it may be said that the appellee by the averments in the petition bases her right to the relief prayed for upon the decree for divorce from appellant, requiring him to pay alimony, which was rendered in the superior court of Cook; county. There is no averment in the petition, however, to the effect that the decree for the alimony was made a lien on the real estate of the appellant, nor that the decree awarded her the right to an execution against the property of the defendant for the alimony which would remain unpaid; and the copy of the decree which is attached to the intervening petition and made a part thereof shows that no such order was made. The statute concerning the enforcement of payment of alimony contemplates the making of such an order before a lien becomes operative. Section 20, ch. 40, Smith-Hurd Rev. St.; Cahill’s St. ch. 40, 1121; Enoch v. Walter, 209 Ill. App. 619. It is apparent, therefore, that on the face of the petition and the averments thereof the petitioner did not have any lien upon the real estate of the appellant at the time of the filing of her petition, nor upon the rights and interests of the appellant in the real estate involved in the partition suit, and that the court should therefore have denied the motion for leave to file the intervening petition. Wightman v. Evanston Yaryan Co., 217 Ill. 371.

The granting of leave to appellee, however, to file the intervening petition and the orders in connection therewith were erroneous for another reason, namely, because at the time of granting the leave the partition case in which the petition was filed was pending in the Supreme Court on appeal. The law is well settled that when an appeal in a case is perfected to the Supreme or Appellate Court, the court from which the appeal has been taken loses jurisdiction of the case until after the appeal has been finally disposed of by appellate tribunal. Reynolds v. Perry, 11 Ill. 534; Owens v. McKethe, 5 Gilm. (Ill.) 79; Simpson v. Alexander, 5 Gilm. (Ill.) 260; Smith v. Chytraus, 152 Ill. 664; Cowan v. Curran, 216 Ill. 598; Bowar v. Chicago West Division Ry. Co., 136 Ill. 101; Barnes & Co. v. Chicago Typographical Union No. 16, 232 Ill. 402; Merrifield v. Western Cottage Piano & Organ Co., 238 Ill. 526; People v. Pam, 276 Ill. 181, 184; People v. Wiley, 284 Ill. 186, 189; City of Chicago v. Lord, 281 Ill. 414, 416; German-American Sav. Loan & Building Ass’n v. Trainor, 293 Ill. 483, 493. It is pointedly stated in the case last above cited: “Pending the appeal the circuit court was without authority to make any order affecting the interests of any of the parties or in any way affecting the costs.”

Concerning the error assigned upon the rendition of the decree granting the relief prayed for in the • petition, it will be noticed that the particular finding in the decree upon which the court bases the right of appellee to a lien is as follows : “That a decree in the sum of $4050.00 was entered in favor of said Helen J. Masters against said Edgar Lee Masters in the Superior Court of Cook County, Illinois, on January 11, 1927”; and that execution was duly issued on said decree against Edgar Lee Masters and was levied by the sheriff of the county of Sangamon in the State of Illinois on the interest of said Edgar Lee Masters in the premises in question. The court finds her right to a lien from, evidence adduced of a decree rendered on January 11, 1927, which is a different decree and rendered at a different time from the one referred to in the petition. This was error. Ohling v. Luitjens, 32 Ill. 23; Houlihan v. Morrissey, 270 Ill. 66; Kelly v. Kelly, 293 Ill. 169. In Houlihan v. Morrissey, supra, the court said: “We are of opinion that this decree must be reversed, if for no other reason, because the decree finds a different state of facts upon which relief is granted from the facts alleged in the bill. This clearly appears from an examination of the bill and decree. * * * The allegations of the bill and the proofs must correspond. A complainant, to recover at all, must do so on the casé made by the bill, and will not be permitted to state one case in the bill and make a different one by the proof. Even though the evidence may make a meritorious case, if it is variant from the case made by the bill, the bill should be dismissed.” And in Kelly v. Kelly, supra, the court pointed out that: “It is a fundamental rule of equity pleading that the allegations of a bill, the proof and the decree must correspond, and that the decree cannot give relief which the facts disclosed by the evidence would warrant, where there are no averments in the bill to which the evidence can apply. ’ ’

For the reasons stated, the decree entered on the intervening petition is reversed and the cause is remanded with directions to dismiss the intervening petition.

Reversed and remanded with directions.


text:
    Thomas D. Masters, Appellee, v. Edgar Lee Masters et al. Edgar Lee Masters, Appellant.
    Gen. No. 8,161.
    Opinion filed February 8, 1928.
    Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, for appellant.
    Walter T. Day, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This is an appeal from the final order of distribution entered by the circuit court of Sangamon county on June 13, 1927, in the partition case of Thomas D. Masters vs. Edgar Lee Masters, Madeline Masters Stone, S. S. Thayer and Harry P. Jones, administrator of the estate of Emma. J. Masters, deceased. It is the contention of the appellant that the order should be reversed for the certain reasons which are embodied in the assignments of error. The assignments of error are as follows:

“(1) The circuit court of Sangamon county, after entering its order on June 4,1927, confirming the master’s report of final distribution, discharging said master from further liability, and striking this cause, was without further jurisdiction or authority to enter any subsequent order of distribution in said cause on June 13, 1927.

“(2) The circuit court of Sangamon county erred in granting any relief to Harry P. Jones, administrator of the estate of Emma J. Masters, deceased, for reimbursement on account of a deficit of assets to pay claims and costs of administration as administrator of the estate of Emma J. Masters, deceased, for the reason that the decree of partition in this cause found there was sufficient personal property in the hands of said administrator with which to adjust and pay the same, which is res adjudicata, and said court was without power or authority to make any further allowance for the payment thereof.

“(3) The circuit court of Sangamon county erred in making in its order of June 13, 1927 any provision for the payment to Helen J. Masters, intervenor, of any sum whatsoever based upon her intervening petition, as said matter had been previously made the subject of a final order and decree entered in said cause on her petition.

“(4) The circuit-court of Sangamon county erred in directing that the distributive share of appellant in the proceeds of the sale under the decree for partition should, after the making of the order of distribution entered on June 13th, 1927, be retained in the custody of the court.

“‘(5) The circuit court of Sangamon county erred in allowing the master in chancery the sum of $251.80 as his costs and stenographer’s costs in said suit without requiring the production of evidence heard by said court as to the reasonableness and the legality thereof.”

Concerning the first assignment of error, the record discloses that the so-called order of final distribution referred to was final only in so far as it concerned the master in chancery who made the report which the order approved, inasmuch as the master was about to retire from the office of master in chancery and therefore turned over the net proceeds of the master’s sale, amounting to $9,587.75, to the special master who had succeeded him in the case for a final distribution among the parties in interest in due course of the proceeding. It is true that at the end of the order confirming this report of distribution the words appear “and this cause is stricken.” But the adding of these words to the order was obviously a mere inadvertence, and the court did not thereby lose jurisdiction to enter subsequent orders to make further and final distribution among the parties in interest. Frederick v. Connecticut River Sav. Bank, 106 Ill. 147.

Concerning the second assignment of error, the record discloses that Harry P. Jones, administrator of the estate of Emma J. Masters, deceased, on the 5th day of June, 1927, filed a petition setting forth the financial condition of his decedent’s estate which showed a deficiency in the personal estate of $59.97, and the petition was verified by affidavit of the petitioner, and the court upon the verified petition ordered that the master in chancery pay over to the administrator the sum of $59.97 to cover this deficiency. The appellant made no objection to the filing of the petition, nor to the order.

The third and fourth assignments of error concern direction in the order for the retention of the share of the appellant, Edgar Lee Masters, by the master until the final disposition óf the appeal taken by him from the decree of the court directing his share be paid over to Helen J. Masters in accordance with the prayer of her intervening petition. The appellant made no objection to this part of the order nor raised any question about the legal propriety of the order.

In reference to the fifth assignment of error, which concerns the item of the master in chancery’s fees and stenographer’s costs in the partition case, the record discloses that he reported these fees with the other costs to the court, and that they were approved and allowed by the court as proper charges against the proceeds of the sale. No objection was made by appellant or filed against the order of approval and allowance; nor was there any question raised at any time in the court below concerning the legal propriety of the allowance and the approval of the same. What was said in the case of Lowden v. Wilson, 166 Ill. App. 320, appears to be specially pertinent to this assignment of error: “Appellant’s attack here is directed solely against the item of costs designated in the fee bill as ‘master’s fees, $150.00.’ The record does not disclose the ground of attack upon the fee bill in the court below. For aught that appears, the report of the master conformed in every particular with the requirements of proper practice in the statement of his claim for fees, and in that event, the decree, directing the clerk to tax the costs embodied in said report, was sufficiently specific and amounted to an adjudication by the court, upon an inspection of the report, that the claim of the master was just and proper.” None of the questions which are embodied in the assignments of error above set forth and urged for reversal of the order appealed from were raised in the court below in any way, and no ruling was made thereon by the court. The record therefore does not disclose anything for review by this court. In this condition of the record the general rule announced in Ortmeier v. Ivory, 208 Ill. 577, is applicable: “As suggested by-counsel, an exception to a ruling of the court is both unnecessary and improper in chancery, but it is necessary to show by the record that any question presented in a court of review was involved in the suit below and an adverse ruling made there.” This general rule has been repeatedly emphasized in particular cases. Hart v. Oliver, 296 Ill. 209; Smith v. Love, 286 Ill. 570; Hickey v. Forristal, 49 Ill. 255.

For the reasons stated, the decree is affirmed.

Affirmed.


text:
    Louis K. Liggett Company, Appellee, v. Maurice Strum et al., Appellants.
    Gen. No. 8,165.
    Opinion filed February 8, 1928.

      Johnson & Peeeerlb, for appellants.
    Brown, Hay & Stephens, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

The appellee, Louis K. Liggett Company, filed a bill in equity against the appellants, Maurice Strum and Nathan Strum, copartners, etc., and H. R. Dean, to restrain the appellants from operating a pop-corn making machine in front of the premises occupied by the appellee, to remove the machine from the premises, and to restore said premises to the same condition in which they were prior to thg boarding up of a certain stairway upon which the machine referred to was located. The bill avers that on the 8th day of November, 1920, the appellee by a certain indenture leased to the appellants Maurice Strum and Nathan Strum, as co-partners doing business under the firm name and style of Strum Brothers, a certain portion of the premises, namely, that portion of the basement shown within the red lines on a certain blue-print plan annexed to the lease, also the show window facing Fifth Street, to be constructed by the lessee at the lessee’s expense, said basement space to be occupied only for the storage and sale of shoes at retail, and the show window to be used for the display of shoes only. The premises in question are situated on the southwest corner of Monroe and Fifth Street in the city of Springfield, and consist of a three-story brick building. It is averred in the bill that the first floor of the building is occupied by appellee for a retail drug store; that the second and third floors of the building were leased by the appellee to various persons for offices and for living and housekeeping rooms; that, there is a basement to said building, a portion of which was leased to the appellants, Strum Brothers, as heretofore mentioned; that on the east side of the building, a two-way stairway, 4 feet in width, leads from the sidewalk down to the basement leased to the appellants. One of these stairways leads south from the sidewalk to the basement, and the other stairway leads north from the sidewalk to the basement. It is further averred that on or about the 12th day of December, 1926, Maurice Strum and Nathan Strum attempted to lease and grant to the appellant H. R. Dean permission to operate a certain piece of machinery, commonly known as a pop-corn vending machine over the stairway leading from the sidewalk to the basement from the south; that the appellants Maurice Strum and Nathan Strum and H. R. Dean caused the stairway mentioned to be closed up by boards or planks, and caused the pop-corn vending machine to be placed on the boards covering said stairway on or about the date mentioned, and that thereupon the appellant H. R. Dean operated said machinery in and upon the place described, and continues to operate the same; that the pop-corn vending machine is a mechanical device consisting of motors and heaters, equipped with various revolving pistons and wheels used in the manufacture of pop corn; that it is extremely noisy and emits offensive smells and noisome odors, which noises, smells and odors are extremely annoying to persons in and about and in the vicinity of the premises in question; that the appellant Dean also keeps a stock of candies and confections and has been engaged since the date mentioned in selling pop corn, candies and confections at the place mentioned. The bill also avers that the lease between the appellee and Maurice and Nathan Strum referred to contains the following covenants:

(A) “PROVIDED ALWAYS, and the lessee hereby covenants as follows: (h) not to assign, mortgage nor pledge this lease nor under-let the whole or any part of the premises without the lessors written consent * * *; (j) not to suffer any act to be done or omitted on the premises which will increase the rate of insurance thereon * * *; (n) not to place any safes or heavy weights in the premises without Lessors written consent. ’ ’

(B) “It is understood and agreed that the Lessee will keep the sidewalk in front of the demised premises free from ice, snow and other obstructions during the term of this lease.”

(C) “In addition to any other remedies which the Lessor may have the Lessor may apply for and obtain an injunction to enforce the Lessors rights or any of them. ’ ’

It also avers that the closing up of the stairway and the operation and maintenance of the pop-corn vending machine is a violation of the provisions of the lease referred to, and has been and is productive of great injury and damage to the appellee, and that the appellee has not consented to, nor acquiesced, in, the acts of the appellant, or any or either of them. It is also averred in the bill that the pop-corn vending machine as maintained and operated constitutes a public nuisance; that the subtenants of the complainant occupying portions of the building on the premises in question, and other persons coming upon said premises, in the vicinity thereof, have been and continue to be annoyed and molested by the noises, smells and other noisome features incident to the maintenance and operation of the machine referred to, whereby and in consequence of which their peace has been and is greatly disturbed.

When the issues were made up, the case was referred to the master, who heard the evidence and reported the same to the court, and thereupon the cause came to a hearing upon the evidence which had been taken by the master. The court thereupon entered a decree for an injunction requiring the appellants to remove the pop-corn vending machine from the premises in question, and that the appellants Maurice Strum and Nathan Strum restore the premises to the 'same condition they were in prior to the boarding up of the stairway and the placing of the pop-corn vending machine thereon. The appeal is prosecuted from this decree.

The record discloses that the evidence taken by the master clearly supports the allegations .in the bill of complaint. Robert T. Wallace, a witness for appellee, testified that he was the manager of appellee’s drug store at Springfield and their business in the building referred to, since June 20, 1926; that the building is a three-story building with a basement underneath; that the appellee occupied the first floor and a part of the basement, and that Strum Brothers occupied the balance of the basement space; that prior to December, 1926, there were two stairways and the railing on both of them led down to the basement entrance on the east side of the.building, on Fifth Street, but that on the 12th of December, 1926, the railing on the south side was taken down and the stairway boarded up, and shortly thereafter a pop-corn machine was placed thereon; that the machine was completely enclosed and about 8 feet high; that boards were put over the stairway about a week before the machine was put there. The machine was placed there on or about December 12, 1926, and when he, Robert T. Wallace, got down to work that day, the machine was placed in position. And the witness further testified as follows: “Right after the machine had been placed up the fire department had them- move it a little bit so as not to interfere with the fire escape. They did not start to operate the machine until the next day. It has operated ever since. The stairway is still boarded up. There is a fire in the pop-corn machine. Since the machine has been placed where it is we find an odor coming from it. Our only ventilation is a small window on the east side of the building near the top and the odor comes right in and we can smell it during the day. We can smell this every afternoon when he is popping corn. The patrons of the store often inquire what the odor is. The people on the 2nd and 3rd floors said they didn’t like the smell. There are several tenants occupying the second and third floors. These people are all tenants of the Liggett Company. When I noticed the south half of the stairway was being boarded up I told Maurice that as manager of the Liggett Company I wanted to know why they were boarding it up and he would have to ask the Liggett Company about it and that he should wait until I heard from them. He told me he would be financially benefited to the extent of $50 a month by putting that over the south stairway and I asked him not to do it until they had heard from the Liggett Company as to whether they wanted it to be placed there or not. I did say that the odors from the pop-corn wagon were offensive. In our store the air is not the best in the world. We have just one entrance and just one little window and a lot of odors coming in cause comment. * * * I have not consented as manager to the closing up of the stairway. The company did not have any knowledge. * * * This stairway is on the outside of the building. It is still open from the north and you can still go down to the basement from the north side. The only connection between the pop-corn machine and the building is the light wire where they got the electricity.” The appellant Maurice Strum, who was a witness, testified on cross-examination: “We did close up the south side of the stairway. No one can use it to get in or out of. Mr. Dean did not pay me any money but he did pay my dad. I believe he has paid him $25 all told. We also furnish electricity, which is included in that amount. * * * I did not ask for permission from the Liggett Company to put this pop-corn wagon there. * * * There is only one door way leading into the store and both north and south stairs stop in front of that door. ’ ’ The appellant R. H. Dean testified: “I run a pop-corn stand at 5th and Monroe Street on the east side of the Liggett store on Fifth Street. * * * I put the wagon there about the 13th of December. * * * I use gasoline to operate the wagon. I got a 10 gallon can there now. ’ ’ This witness, on being recalled for appellee in rebuttal, also testified as follows: “I pay a little for the privileges. I pay anywhere from $15 to $25. I paid $25 last month. * * * I use gasoline for fuel to operate the machine. I keep that gasoline down in the basement under the stairway in the Strum Bros, part there. I got a ten gallon can there now. I kept it there since I began operating. I keep the can full of gasoline.” Elward Alexander, who was called as a witness for appellee, testified as follows: “I work in the Liggett’s Drug Store as a clerk. I have worked there a year the 16th of January 1926. This is the same Liggett Drug Store in Springfield, Illinois, of which Mr. Wallace * * * is manager. I didn’t hear any conversation or anything said by Maurice Strum to anyone at the time of the boarding up of the stairway. About Monday morning around the store Maurice Strum said that he was going to get $50 a month from the renting this stairway and therefore it would help him pay his $150.00 rent. * # * Maurice Strum further said that after the pop-corn machine had been put in the place that it was going to stay there and he would like to see anyone get it out from there.”

From the testimony of the witnesses above quoted, it appears that the appellants Maurice Strum and Nathan Strum, who are the lessees of the appellee of the part of the basement of the building in question for the storage and sale of shoes at retail, underlet one of the two stairway leading to the entrance of their basement store, and which was designed to be used for the purposes of ingress and egress to or from their place of business, to the appellant H. B-. Dean for a valuable consideration, and to be occupied by Dean in placing thereon a pop-corn machine wagon for the manufacture and sale of pop corn; that the popcorn machine is a mechanical device in the wagon operated by the use of gasoline, and in conducting this business the appellant Dean kept gasoline stored in 10-gallon quantities in a can upon the premises; that the manufacture of the pop-corn resulted in the creation of unwholesome or noisome odors which permeated the place of business of the appellee, and annoyed the appellee’s employees and its customers as well as the tenants of the appellee residing in the building; that the underletting in question by the appellants Maurice and Nathan Strum was in- violation of the covenants of their lease, by which they had agreed not to underlet any part of the premises without the appellee’s written consent, and that the storing of gasoline upon the premises was a violation of another covenant of their lease by which they agreed not to suffer any act to be done or omitted on the premises which would increase the rate of insurance thereof. It is a matter of common knowledge that the storing of an inflammable and explosive substance like gasoline in the quantity shown by the evidence would necessarily result in an increase of the insurance rates. The right to an injunction for violation of the negative covenants of a lease is well settled. Van Sant v. Rose, 260 Ill. 401; Andrews v. Kingsbury, 212 Ill. 97; Hursen v. Gavin, 162 Ill. 377; Consolidated Coal Co. of St. Louis v. Schmisseur, 135 Ill. 371.

In the case of Star Brewing Co. v. Primas, 163 Ill. 652, the court said: “Equity will interpose by injunction to prevent the breach of an express negative covenant annexed to leases or deeds. The prohibition of their breach is indirectly an enforcement of their specific performance. Equity will interfere by injunction to prevent the breach of an express negative covenant, even though no substantial injury is caused by such breach. It will also so interfere, even though the damages, if any, may be recoverable at law. The reason is, that the owner of land selling or leasing it may insist upon just such covenants as he pleases touching the use and mode of enjoyment of the land. He has a right to define the injury for himself, and the party contracting with him must abide. by the definition. (Stewart v. Winters, 4 Sandf. Ch. 587; 2 High on Injunctions 3d Ed. Secs. 1142, 1158; Consolidated Coal Co. of St. Louis v. Schmisseur, 135 Ill. 371.) ” Furthermore, the appellants expressly agreed in one of the covenants of their lease that in addition to any other remedies which the appellee might have, it might apply for and obtain an injunction to enforce its rights under the lease or any of them. It is however contended by the appellants that the stairway in question was not a part of the premises leased to the appellants Maurice and Nathan Strum. There is no merit in this contention. It clearly appears that the stairway was the means of ingress and egress to their place of business which they occupied under the lease, and was essential to the proper use and enjoyment of the premises leased by the appellants for their business, and that it was contemplated by the parties at the time of the lease that both stairways were to be used for that purpose. By implication the stairways were therefore a part of the premises leased. Alexander v. Tolleston Club of Chicago, 110 Ill. 65; Patterson v. Graham, 140 Ill. 531; Vinissky v. Lazovsky, 155 Ill. App. 596; Thompson on Real Property Vol. 2 Sec. 1107. In Alexander v. Tolleston Club, supra, the rule involved is pointedly referred to: “It is the rule that whenever a thing is granted, all and every easement necessary to its beneficial enjoyment will pass.” Moreover, the appellants Maurice and Nathan Strum treated and used the stairways in question as a part of the premises leased from the appellee by subletting one of them to the appellant Dean, and are therefore estopped to deny that the stairways were not included in nor a part of the leasing, and not involved in the covenants of the lease.

For the reasons stated, the decree granting the injunction is affirmed.

Decree affirmed.


text:
    Mildred Storm, Appellee, v. Louis J. Ahlering, Appellant.
    Gen. No. 8,186.
    Opinion filed February 8, 1928.
    Gillespie & Gillespie, for appellant;. Rearick & Meeks, of counsel.
    Acton, Acton & Snyder, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case an appeal is prosecuted by the appellant Louis J. Ahlering from a judgment rendered against the defendant for $500 in the circuit court of Vermilion county at the January term, 1927, in favor of the appellee Mildred Storm. The appellee moves to affirm the judgment because the transcript of the record in the case was not filed within the time required by section 100 of chapter 110 of -the Practice Act, Cahill’s St. ch. 110, IT 100, in force at that time.

The record shows that the term of court at which the judgment was rendered adjourned in due course on the 26th day of March, 1927. The April term of this court to which the appeal was taken convened on April 5, 1927. The section of the statute referred to provides:

“Authenticated copies of records of judgments, orders and decrees appealed from any court to the appellate courts shall be filed in the office of the clerk of the appellate court on or before the second day of the succeeding term of said court: Provided, twenty (20) days shall have intervened between the last day of the term at which the judgment, order or decree appealed from shall have been entered and the sitting of the court to which the appeal shall be taken, but if ten (10) days and not twenty (20) shall have intervened as aforesaid, then the record shall be filed as aforesaid, on or before the tenth (10th) day of said succeeding term, otherwise the said appeal shall be dismissed.”

Counsel for the appellant contend, that the word “intervene” in determining the time within which the transcript should be filed should be construed to mean that both the last day of the term of the circuit court at which the judgment was rendered and the first day of the term of the Appellate Court should be excluded. This construction would leave only nine days in between the two days mentioned. It has been repeatedly held, however, that the proper rule for the computation of time where based on days intervening is to exclude the first day which in this instance would he the last day of the term of the circuit court, and include the last day which in this instance would be the first day of the term of this court. Vairin v. Edmonson, 5 Gilm. (Ill.) 270; People v. Hatch, 33 Ill. 9; Harper v. Ely, 56 Ill. 179; Forsyth v. Warren, 62 Ill. 68; Roan v. Rohrer, 72 Ill. 582. According to this rule, 10 days intervened between the last day of the term of the circuit court and the first day of the sitting of this court. The transcript should have been filed on or before the tenth day of the last term of this court. It was not filed however until September 14, 1927. It is apparent therefore that the appellant did not file the transcript of record in this case within the time required by the statute. In Gibson v. Vail, 248 Ill. 432, it was distinctly held: “The statute is imperative that the appeal shall be dismissed where the transcript is not filed as required.”

We conclude, therefore, that while the motion to affirm the judgment should be denied, the appeal should be dismissed; and it is therefore ordered that the appeal be dismissed.

Appeal dismissed.


author: Mr. Presiding Justice Barry

text:
    Lizzie Lee, Appellee, v. James J. Meredith, Appellant.

      Opinion filed January 20, 1928.
    Rehearing denied February 28, 1928.
    Philip Gr. Listeman, for appellant.
    W. E. Knowles, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee’s husband, Sylvester Lee, procured a loan of $2,800 from appellant. To secure the payment thereof, Lee and his wife conveyed certain real estate to appellant and took a bond for a deed for the same premises. By the terms of the bond Lee was to pay the $2,800 in monthly payments of $40, beginning on September 13, 1903, with interest at the rate of 7 per cent per annum payable semiannually on the whole sum remaining from time to time unpaid. Lee died in 1905 and his children conveyed their interest in the premises to appellee. For about three years payments' were made monthly but not always for the full amount and only on one occasion was more than $40 paid. Payments gradually dropped off each year until but one payment was made each year during the years 1914, 1915, 1916 and 1917. The total payments made on the contract until the fall of 1917 amounted to $2,377.

In the fall of 1917 appellant went into possession of the premises with the consent of appellee, made some repairs and collected rent. While he was in possession appellee filed her bill of complaint to the January term, 1921, of the city court, in which she averred that by reason of the payments made on the contract and the rents collected by appellant he had received a large sum of money over and above the amount that was actually due him. She prayed for an accounting, that the appellant be required to pay any balance due her and to reconvey the premises. Two amended and supplemental bills were later filed and issues being joined the cause was referred to a special master in chancery. During the pendency of the suit appellant conveyed the premises in question to appellee. The master found that up to September 18,1917, there had been paid on the contract the sum of $2,387. He allowed interest to appellee on that sum at the rate of 7 per cent from September 18, 1917, to December 7, 1926, $1,560. He found that appellant had collected rents, $2,886, and allowed interest thereon from the date of collection to December 7, 1926, $1,139.01. He found that rents were lost through a failure to keep the property in a tenantable condition to the amount of $712, and allowed interest on that, $345, making a total credit to appellee of $9,029.91. On the other hand, he found that appellee should be charged with the amount borrowed, $2,800. He figured interest on that amount to September 18, 1917, on balance from time to time at 7 per cent, which amounted to $1,391.23. He then figured interest on $413, which was the difference between the original loan and the amount of the payments thereon, and he found that interest to be $136.08. He also found that appellant had made repairs and had been to expense while in charge of the property to the amount of $945.67. He found that the total amount with which appellee should be charged was $5,272.98, and deducting that amount from the $9,029.91, he found that there was due appellee the sum of $3,756.93, and recommended a decree therefor. Both parties filed objections which were overruled by the master and the same were allowed to stand as exceptions before the court. The court sustained the findings of the master in all respects except as to the item of rents found to have been lost through the failure to keep the property in repair and the interest thereon, the total amount of which was $1,057, and appellant was decreed to pay to appellee the sum of $2,699.03, with interest at the rate of 5 per cent from December 7, 1926.

It is quite evident that the law in regard to the computation of interest was wholly ignored. The law is well settled that where the account due consists of principal and interest, partial payments made on account will be applied first to the payment of interest already due and then to the payment of principal. If interest is due on the account it should be calculated to the time when the partial payment is made and the partial payment applied to the discharge of the interest. If the payment exceeds the interest due, the balanee should be applied to diminish the principal. If the payment is less than the amount due for interest, the balance of the interest is not to be added to the principal but is to be set apart, to be paid, together with other accumulated interest by the next payment. McFadden v. Fortier, 20 Ill. 509; Heartt v. Rhodes, 66 Ill. 351; In re Cunningham’s Estate, 311 Ill. 311.

To. calculate interest on the whole to the date of trial and add the same to the principal, and then deduct from this the payment, with the same interest thereon to the date of the trial, is not the proper mode of computation. Heartt v. Rhodes, supra. Upon a bill to redeem, if the rents and profits received by the mortgagee exceed the amount expended in repairs, the excess will be applied from time to time to the payment of interest accrued, before any part is applied to the reduction of the principal. Reed v. Reed, 10 Pick. (Mass.) 398.

In the case at bar, the parties stipulated that the interest should be paid semiannually on the whole sum remaining from time to time unpaid. That being true, the interest should be computed on the $2,800 for the first six months. Interest should be computed on each payment made during that six months’ period from the time the payment was made until the end of that period. The interest on the several payments, as well as the total amount.of the payments, should be deducted from the amount of the loan with the six months’ interest added thereto. The balance remaining would draw interest for the next six months and the payments with interest thereon should be deducted as before and so on for each six months’ period. If during any six months ’ period the payments made during that period are not sufficient to pay the interest, the payments should not be deducted but the interest should be figured until such a time as the payments would equal or exceed the interest, and then be deducted. That method of computation was not adopted. After appellant took possession of the premises, the rents collected, less the reasonable and necessary repairs and expenses, should have been treated as payments made on the contract and the interest calculated on the partial payment plan as above indicated. This was not done.

If we figure the interest on the contract in accordance with the law and on the most favorable basis possible to appellee, there was still due on the contract in September, 1917, about $2,300. The master and the court found that appellant collected rents to the amount of $2,886, and that he paid reasonable repairs and expenses of $945.67. That would leave the net amount of rents to be credited to appellee, $1,940.33. There is no finding as to the dates when the several amounts of rent were collected. If we assume that the same amount of rent was collected during each six months’ period while appellant was in possession of the premises, the rent for each six months’ period would be about $129. Taking the amount due on the contract in September, 1917, which was about $2,300, and calculating the interest and giving credit for the rents on the basis mentioned, it will be found • that appellant has not received all that is due bim. He is not claiming, however, that he should have a money decree against appellee and he has reconveyed the premises to her.

Appellee has filed an additional abstract purporting to show that she has assigned cross errors in which she claims that the court erred in not finding that appellant was indebted to her in a much larger sum; that the court erred in finding that the rents collected only amounted to $2,886; that the court erred in finding that appellant was entitled to any credit for repairs and expenses. No cross errors have been assigned upon or attached to the record. It is not sufficient that the abstract of the record shows' an assignment of errors or cross errors which is not written upon or attached to the record. Rule 15 of this court provides that the assignment of cross errors must be written upon or attached to the record. The cross errors cannot properly be considered. McAllister v. Weber Motor Car Co., 243 Ill. App. 530. If the cross errors have been written upon or- attached to the record, appellee has failed to point out in her brief and argument where the evidence may be found, if any, showing that a greater amount of rents was collected by appellee. The same is true in regard to the claim that appellant should not receive credit for reasonable repairs and expenses. The evidence before the master covers 363 typewritten pages. The court cannot be expected to search the record in "order to ascertain whether or not an assignment of error or cross errors is well taken. The decision of the trial court is presumed to be correct. When a litigant insists that error has been committed it is his duty to point out where the evidence in support of his contention may be found in the abstract. It has not been shown that there is anything due appellee and for that reason the judgment is reversed without remanding.

Reversed.


text:
    Ludwig Tykalowicz, Appellee, v. Metropolitan Life Insurance Company, Appellant.

      Opinion filed June 1, 1928.
    Whitnel & Browning, for appellant.
    Beasley & Zulley, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee recovered a verdict and judgment upon a policy of insurance. He averred in his declaration that on December 22, 1925, appellant issued a policy of insurance in words and figures as follows: “Metropolitan Life Insurance Company hereby insures the life of Kunegunda Tykalowicz, herein called the insured, in accordance with the terms of this policy, No. 4571953C; and promises to pay at its home office in the City of New York, One Thousand Dollars to Ludwig Tykalowiez, husband, beneficiary, upon receipt of due proof of the death of the insured and upon the surrender of this policy. The right on the part of the insured to change the beneficiary, in the manner hereinafter provided, is reserved.

“This policy is issued in consideration of the application therefor, copy of which application is attached hereto and made part hereof, and of the payment for said insurance on the life of the above named insured, of $2.00 and____Cents (which maintains this policy in force for a period of one month from its date of issue, as set forth below) and of the payment hereafter of a like monthly premium on each fourth day of every month (hereinafter called the due day) until the death of the insured. The provisions and benefits printed or written by the company on the following pages are a part of this policy as fully as if recited over the signatures hereto affixed..

“In witness whereof, the Metropolitan Life Insurance Company has caused this policy to be executed this 4th day of January 1926, which is the date of issue of this policy.

Jas. S. Roberts, A. Cox, Haley Fiske

Secretary Policy Registrar President.”

He also set out the first eleven questions and answers contained in the application, all of which are on the first page of the policy immediately following the portion above quoted. He also averred that the insured was his wife and that she died in April, 1926; that he gave appellant due notice thereof and furnished it with proof of death and that appellant thereby became liable to pay him $1,000, etc.

Appellant demurred to the declaration on the ground that it was apparent therefrom that it did not contain all of the alleged contract. The demurrer was overruled and thereupon appellant filed the general issue and several special pleas. The trial resulted in a verdict and judgment for $1,000.

If appellant thought the declaration was so defective that it would not support the judgment, that question could have been presented to this court by a proper assignment of error even though a demurrer to the declaration was overruled and appellant had pleaded to the merits. Chicago, R. I. & P. Ry. Co. v. People, 217 Ill. 164-172; People v. Wallace, 316 Ill. 120-122. No such error has been assigned. The legal sufficiency of a declaration is not raised by a motion for a directed verdict. Swift & Co. v. Rutkowski, 182 Ill. 18; Klofski v. Railroad Supply Co., 235 Ill. 146.

While it may be better and more common practice to set out a written instrument in full or to declare upon it according to its legal effect, yet we are not prepared to say that the declaration is fatally defective. In fact, appellant does not so contend. The policy, with the conditions annexed, constitute an entire contract, and, in declaring upon the contract, it, or a sufficient portion of it to show a right of recovery, must be set out, either in terms or in substance. In a case of this character, the money only being payable upon the assured performing certain acts, all such precedent acts should be set out, and their performance averred. But all conditions subsequent to the right of recovery, and all acts to be done by the company in discharge of their liability, may be omitted and left to be set up as a defense. Rockford Ins. Co. v. Nelson, 65 Ill. 415; Feder v. Midland Casualty Co., 316 Ill. 552. In order to avoid prolixity, so much of the contract as is essential to the cause of action should be set forth and no more, and this may also be stated according to its legal effect. 13 C. J. 719; Stanwood v. Scovel, 4 Pick. (Mass.) 422.

We are of the opinion that appellee set out in his declaration a sufficient portion of the policy of insurance to show a right of recovery, having' averred the performance of the only condition precedent contained in the policy.

Upon the trial appellee offered in evidence that portion of the policy of insurance which we have above quoted, but he did not offer the questions and answers contained in the application and which are set out in his declaration. . For that reason appellant insists that there was a fatal variance. The questions and answers aforesaid did not in any way qualify appellee’s right to recover. Under the authorities above cited, the declaration would have been good if those questions and answers had been omitted. They could have been stricken as surplusage without impairing the legal effect of the declaration. When such is the case there is no variance. Barnes v. Northern Trust Co., 169 Ill. 112.

When appellee was about to read in evidence that portion of the policy above quoted, counsel for appellant objected on the ground that it varied from the policy set out in the declaration. The court inquired if there were any allegations in the declaration that were not contained in the portion of the contract about to be read and counsel for appellant said that in the declaration appellee set out certain parts of the contract which he has not offered in evidence. The court then inquired as to what those parts were. Counsel for appellant then stated that on pages 2 and 3 of the declaration a part of the application is set out and the policy, or the front page of it, as set out in the declaration states that the provisions and benefits written or printed by the company on the following pages are a part of the policy as fully as if recited over their signatures, and yet he is offering only the first page and leaving out the rest of the contract. It will be observed that appellant did not undertake to point out specifically the alleged variance now insisted upon but was contending that appellee should be required to offer the entire policy.' It is not sufficient to simply object on the ground that there is a variance between the declaration and the proof. Libby, McNeill & Libby v. Scherman, 146 Ill. 540-549.

After appellant filed the general issue and several special pleas it then moved the court for a rule on appellee to file a complete copy of the policy sued on, and the motion was overruled. Appellant does not contend in this court that the declaration does not state a cause of action. As before stated, we think it states a cause of action under the authorities cited. That being true, the court did not err in denying the .motion for a rule on appellee to file a complete copy of the policy sued on. In any event, we do not see how appellant could have been prejudiced by the court’s ruling in that regard, as appellant was permitted to offer in evidence all of that part of the policy which appellee failed to offer.

Appellant filed a verified plea denying the execution of the policy set out in the declaration. In its original brief and argument appellant did not contend that the execution of the policy was not proven. When appellee offered in evidence that portion of the policy relied upon to make out his case, appellant made no objection whatever on the ground that there was no proof of the execution of the policy. The objections made clearly show that appellant was making no contention that the policy was not executed by it, but was insisting that appellee should offer the entire policy in evidence instead of a portion thereof. Appellant is in no position to contend that the execution of the policy was not proven. Petershagen v. Star Clothing Co., 188 Mo. App. 581, 176 S. W. 466.

Appellant filed several special pleas in which it averred that while it did not execute the policy set out in the declaration it did issue a policy on the life of appellee’s wife, which, in addition to that part set out in the declaration, also included other pages of words and figures entitled “provisions and benefits” and other pages of words and figures entitled “application,” the whole of which constituted the sole and only policy of insurance issued by appellant on the life of appellee’s wife. The pleas set out, in substance, that in the application signed by the insured she answered questions to the effect that at the time of the application her health was good; that she had never been sick; that she had never left her work for more than one month on account of her health; that she had no physical defect or infirmity; that she had not had any surgical operation or serious illness; that she had no usual medical attendants; that she had never had any diseases known as cancer or other tumor; that she had not been attended by a physician during the five years prior to the malting of the application; that she had not had any treatment at any dispensary, hospital or sanitarium within the last five years. The pleas further averred that each and every of the answers aforesaid; contained in said application aforesaid, were warranted to be true and that said answers and each of them were false and untrue and that by reason thereof the said policy of insurance is null and void, etc.

To the said special pleas appellee replied, in substance, that the insured was a woman of foreign birth, unable to speak, read or write, or to understand the American language; that the said application referred to in the pleas was filled out and the answers therein were written by the agent of appellant and its medical examiner, without any statement on the part of the insured on which to base the said supposed answers or any of them; that the insured,' at the time of the signing of the application, did not know and had no means of knowing what was written in said application; that she attached her signature thereto at the request and by the direction of appellant’s agent; that at the time of the making of the said application appellant had due notice that the said supposed answers . contained therein were false and untrue, etc., and that by reason thereof the said policy was in full force and effect, etc. Appellant joined issue on the replications to its pleas.

Appellant does not undertake to show that the evidence in the record does not support the replications to its pleas. Its contention is, that the answers were false and were material to the risk. The replications conceded as much and sought to avoid the effect thereof. When issue is joined upon replications and decided against a defendant, he will not be heard to say that such replications did not constitute a legal answer to his pleas. Murgic v. Fort Dearborn Casualty Underwriters, 245 Ill. App. 361; Chicago Great Western R. Co. v. People, 179 Ill. 441-446. Appellant is in the position of having admitted that if the facts averred in the replications are true they are a complete answer to its pleas.

Appellant’s medical examiner, who filled out the application by writing in the answers to the several questions, had no recollection of the facts or circumstances incident thereto. The evidence on the part of appellee is undisputed and is to the effect that the insured did not speak or understand the English language; that she was not asked the questions set out in the application and did not make the answers thereto. Appellee testified that he told the medical examiner that his wife had been sick and that Dr. Stanton had waited on her and that he would have to ask Dr. Stanton as to what her trouble was, that he did not know himself and that the medical examiner stated he would talk with Dr. Stanton. We are of the opinion that there is ample evidence in the record to support the averments of the replications to appellant’s pleas.

Appellant suggests that if the medical examiner was so informed and that he wrote the answers to the questions in the application, without any information from the insured, then there was fraud and collusion between the medical examiner and the insured and that appellant should not be bound by the conduct of its medical examiner. We think it sufficient to say that if appellant desired to present that question it should have been presented as a rejoinder to the replications.

Appellant insists that appellee’s first and second instructions were erroneous, because they did not place upon appellee the burden of establishing a waiver by a preponderance of the evidence and because they failed to include the element of lack of collusion between the insured, the beneficiary and appellant’s medical examiner. The objections are not well taken. The instructions required the jury to find the facts from the evidence; this they could not do unless the evidence prepondered in favor of appellee. As to the other objection, the question of collusion was not an issue in the case, nor was there any evidence tending to prove such an issue.

Appellant further suggests that the court erred in refusing its first refused instruction. That instruction stated, in substance, that even though the medical examiner knew that one or more of the answers in the application were untrue, still, if the insured knew of the falsity of the answers and knew they were calculated to deceive the company and induce it to issue the policy, that then the medical examiner ceased to be the agent of the company and became her agent. There is no evidence in the record tending to show that the insured had any knowledge of the falsity of any of the answers written in the application by the medical examiner. No reversible error having been shown, the judgment is affirmed.

Affirmed.

Mr. Justice Newhall took no part in rendering this opinion.


text:
    Hattie Lawler, Plaintiff in Error, v. Joseph C. Schilling et al., Defendants in Error.
    Opinion filed June 1, 1928.
    Egbert Ferdinand Tunnell, for plaintiff in error.
    McHale & McHale, for defendants in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error will be referred to as complainant, and defendants in error as defendants. Complainant filed a bill to foreclose a mortgage upon certain real estate in St. Clair county. The bill averred that on April 13, 1910, Harry Atwood was indebted to the complainant in the sum of $500 and that he executed his note therefor payable in one year after date with interest at 6 per cent, and that on August 8, 1910, he executed a mortgage on the said premises to secure the payment of the said note. The original bill made Atwood and his wife defendants thereto. The bill was afterwards amended by averring upon information and belief that Joseph C. Schilling and Mary E. Schilling claimed to have some interest in the premises, or some part thereof, which interest, if any, has accrued subsequent to the lien of the mortgage, and the said Schillings. were made, defendants to the bill as amended.

Joseph C. Schilling and Mary E. Schilling filed a plea to the effect that on,, March 6, 1914, a bill was filed in the circuit court of St. Clair county by one Louis Deppe, executor of the last will and testament of William Deppe, deceased, to foreclose a mortgage on the same property described in the complainant’s bill, naming Harry Atwood and Lulu Atwood, who are codefendants in this cause, and Hattie Kennedy, now Lawler, was served with process and appeared and filed her answer therein, wherein she disclaimed any interest, right or title of any kind whatsoever in the premises in question in said suit, either by a certain mortgage for $500 or otherwise; that a decree was entered in said cause, filed August 10, 1914, in which decree it was adjudged and found: “That the defendant, Hattie A. Kennedy, now Hattie A. Lawler, has no interest whatsoever in the premises herein described, either by reason of her mortgage for $500.00 executed and delivered to her or otherwise.” The plea proceeds to aver that the said decree was final and fully determined the rights of the said Hattie Lawler under and by virtue of the same mortgage upon the same premises herein mentioned and described in this suit and sought to be again foreclosed, and that said decree has remained in full force and effect, and defendants plead the same to the whole of the bill and demand the judgment of the court as to whether they ought to be compelled to make any further answer, etc.

The plea was set for hearing and the court held it was sufficient to present a complete defense and bar to the suit. Thereupon the bill was dismissed at complainant’s costs.,.

It will be observed that the Schillings were not parties to the foreclosure suit in which it is' alleged the said decree was entered, nor is there any showing that they were in privity with any person who was a party to that proceeding, nor is there any showing that any issue was made and determined between Hattie Lawler and the Atwoods in that suit.

The general rule is that parties to a decree are not bound by it in subsequent controversies between each other unless they are adversaries in the action wherein the decree was rendered. 15 R. C. L. 1013; Conwell v. Thompson, 50 Ill. 329; Renfro v. Hanon, 297 Ill. 353. But if coparties defendant form issues between themselves, and the court, by its- decree, settles their adverse interests, the decree will be res judicata in a subsequent suit between them. Baldwin v. Hanecy, 204 Ill. 281.

A partition suit is an adversary proceeding and an exception to the general rule above stated. In such a case the decree is binding upon all parties to the suit, even codefendants. Chapman v. Chapman, 256 Ill. 593; Renfro v. Hanon, supra. But in a foreclosure suit the only parties concluded by the decree are those who are adversary parties. To be such parties an issue must have been joined and a determination of such issues must have been made by the court before the decree will be res judicata. The decree will not have that effect upon codefendants who are not adversary parties. Gouwens v. Gouwens, 222 Ill. 223; Ryan v. Hayes, 190 Ill. App. 208; Youngquist v. Hunter, 227 Ill. App. 152. In the two cases last cited certiorari was denied by the Supreme Court.

The plea in question was a plea of former adjudication and under the authorities above cited it was insufficient and the court erred in its ruling thereon. The decree is reversed and the cause remanded for further proceedings.

Reversed and remanded


text:
    Stella Cory, Appellee, v. Walter P. Cory et al. United States Fire Insurance Company, Appellant.
    Opinion filed June 1, 1928.
    Elwyn R. Shaw, for appellant; Kenneth E. Pearce, of counsel.

      Conger & Elliott, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Stella Cory filed a bill against her husband and appellant in which she averred that her husband deserted her and has been continuously absent from her since December 20, 1925, without her fault and that since April, 1926, he has refused to provide for her; that he is an able-bodied man and capable of earning $150 per month.

The bill avers that when her husband deserted her he left her with certain live stock and household furniture, which was insured under policy No. 48857 of appellant on September 9, 1923, and that on March 26, 1927, a fire occurred and appellant became liable to pay the loss to the owner of the policy, as had been taken .out in the name of her said husband. The bill prayed that she may, by order of court, have assigned to her, in lieu of a money judgment for alimony, the legal title to said policy of insurance in order that she may be enabled to collect the same by agreement with appellant, to the end that appellant may bring said money into court and there abide the order of the court as to its disposition.

It appears that the husband was a nonresident at the time of the filing of the bill and was served by publication. Appellant was duly served and demurred to the bill. The demurrer was overruled and appellant elected to abide by its demurrer.

The decree found that the husband deserted his wife and has been continuously absent since December. 20, 1925, without the fault of the wife and that he has failed to provide in any manner for her and that he is capable of earning $150 per month; that he had turned over to his wife the household furniture and personal property on the farm insured under the policy aforesaid, and also the said policy of insurance; that the wife was and is the equitable owner of said property-before it burned and also was the owner of the policy; that she is in possession of the policy and brings it into court and is entitled to the legal title thereof; that on March 26, 1927, the said property was destroyed by fire; that upon the making of due proof of loss an adjuster was sent by appellant to adjust the same and that he then and there assessed the value of the insured property destroyed by fire at the sum of $690; that the said sum, now in the hands of appellant, in equity and good conscience belongs to the wife and should be paid to her; that the court has jurisdiction of the title to the policy and has the power to change the same to the wife, and that in order to do complete justice and avoid a multiplicity of suits it has the power to enforce its payment in this cause.

The decree then orders and directs that the complainant have the legal title to said policy of insurance and that the interest of her husband in the same be canceled and held for naught; that appellant be decreed to pay to complainant the sum of $690 and the costs of suit.

It will be observed that the bill of complainant did not state a cause of action against appellant and did not pray for a money decree against it. The bill did not aver that the policy of insurance was in force at the time of the fire or that the property in question was destroyed by fire, or that proofs of loss were furnished within the time required. • The case was tried before the court without being referred to a master. What purports to be a certificate of evidence is signed by the court reporter but not by the judge who tried the cause. The case is in the same position as if the purported certificate of evidence was not in the transcript. In fact, it has no proper place in the record because of the fact that it was not signed by the judge.

In chancery cases the burden is upon the party in whose favor a decree granting affirmative relief is entered to preserve in the record the evidence upon which the decree is based, which may be done by a certificate of evidence taken on the hearing, by the evidence reported by the master, by. facts recited in the decree, or by depositions taken and filed in the cause. Van Meter v. Malchef, 276 Ill. 451; Ryan v. Sanford, 133 Ill. 291.

The decree contains findings of alleged facts not averred in the bill of complaint and grants relief which the complainant was not entitled to under the averments of her bill. The allegations of a bill, the proof and the decree must correspond, and the decree cannot give relief which the facts disclosed by the evidence would warrant where there are no averments in the bill to which the evidence can apply. Kelly v. Kelly, 293 Ill. 169.

Appellant contends that the court erred in entering any judgment or decree against it without first having obtained jurisdiction over the person of Walter P. Cory; that the situs of the alleged debt due from appellant to the said Walter P. Cory was in the State of Missouri where Cory resided. While a purely personal decree awarding alimony against a nonresident defendant who is notified of the proceeding by publication and who does not appear is not binding upon him, the proceeding will partake of the nature of a proceeding in rem where the complainant describes property of" the defendant within the court’s jurisdiction and prays that alimony and solicitor’s fees be made a lien on said property, and the decree may provide that in the event of the defendant’s failure to pay the sum fixed for alimony and solicitor’s fees within a stated time the property shall be sold to satisfy the decree. Wilson v. Smart, 324 Ill. 276. In that case the court was dealing with real estate within the jurisdiction of the court.

We see no reason why a court of equity may not reach a debt due a nonresident defendant and subject it to the payment of alimony under a proper bill where the court has jurisdiction over the party who owes the debt. Where a court of law has jurisdiction over a garnishee who is indebted to a nonresident, a judgment may be rendered against the garnishee. The situs of a debt is not material in such cases. Lancashire Ins. v. Corbetts, 165 Ill. 592.

We are of the opinion that if there is a debt due from appellant to Walter P. Cory it may be reached under a bill containing proper averments which would give the court jurisdiction. Without stating what those averments should be, we would call attention to the following cases: Cox v. Cox, 192 Ill. App. 286; Forrester v. Forrester, 155 Ga. 722, 29 A. L. R. 1363 and note 1381; Pennington v. Fourth Nat. Bank of Cincinnati, Ohio, 243 U. S. 269, L. R. A. 1917 F 1159.

In addition to the averments referred to in the cases above cited, and in the cases referred to in the note mentioned, the bill should contain proper averments to make a case in favor of Walter P. Cory against appellant the same as if he were suing on the policy. The present is wholly insufficient to state a case against appellant or to give the court jurisdiction over the money alleged to be due from appellant to Walter P. Cory. The court erred in overruling the demurrer and the decree is reversed and the cause remanded.

Reversed and remanded.