author: Mr. Justice Matchett

text:
    Sylvia R. Gerson, formerly Sylvia R. Mathes, Appellee, v. Sam A. Mathes, Appellant.
    Gen. No. 33,116.

      Opinion filed May 20, 1929.
    Sidney Neuman, for appellant; W. Clyde Jones, Jr., of counsel.
    Frank B. Teed, for appellee; Marlow J. Madden, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Sylvia R. Mathes brought suit for divorce against her husband, Sam A. Mathes, in the circuit court of Cook county. On August 28, 1925, a decree was entered in her favor. The marriage was dissolved and the care, custody and control of the minor children of the parties were given to the defendant father with right of visitation by the complainant .mother. Said decree further provided:

“It is also ordered, adjudged and decreed that the said defendant be and he is hereby released and discharged from the payment of any alimony or solicitor’s fees to the complainant herein, and that no costs be taxed against the said defendant.”

Thereafter, on June 13, 1927, upon petition of the mother, the court entered an order which in part provided :

“It is ordered that the complainant have the care, custody and control of the two minor children of the parties hereto, without interference on the part of the defendant, from the 25th day of July, 1927, until the 25th day of August, 1927, and that said complainant ' shall have the privilege of taking said children to the State of New York or the vicinity thereof, and that complainant return said children on the aforesaid date.
“It is further ordered that complainant advise the defendant, at least once a week, during the aforesaid period, as to the whereabouts of the said children,
“It is further ordered that the question of an allowance to the complainant for solicitor’s fees in prosecuting this petition be and it hereby is continued for hearing, to the 24th day of June, 1927.”

The father, Sam A. Mathes, prayed an appeal from this order to this court, which was allowed. This court affirmed the order — 248 111. App. 643. On September 6, 1927, thereafter, the complainant mother filed a petition, setting up these proceedings, this order and defendant’s appeal therefrom. She represented that she was without means of her own to defend the appeal; that in order to defend the appeal properly it was necessary to employ counsel, which she was unable to do, because she was without means of her own. The petition prayed that an order might be entered requiring defendant to pay complainant the necessary solicitor’s fees and costs to defend said appeal.

The defendant father demurred to the petition, and on November 17, 1927, the court entered a nunc pro tunc order as of October 7, 1927, sustaining the demurrer and denying the prayer of the petition. On January 26, 1928, another order was entered overruling the demurrer of the defendant and requiring him to plead or answer. He filed an answer, in substance denying that his former wife was without means and averring that she was precluded from claiming payment of solicitor’s fees by the divorce decree formerly entered. The answer averred that she was remarried to one Gerson, a man of financial ability, who was obligated to support her. The answer denied that there was any obligation, either legal or moral, requiring defendant to pay legal expenses and solicitor’s fees of complainant.

On June 1, 1928, the chancellor entered a decree finding the facts with reference to the legal proceedings as hereinbefore set forth; that the father was well able to contribute to the complainant to enable her to defend his appeal; that a reasonable allowance under the circumstances was $500, which it was adjudged the defendant pay within ten days. This appeal is prosecuted from said order.

It is contended in behalf of the husband that an order for solicitor’s fees is based primarily on the relation of husband and wife; that the decree of divorce severed that relationship and that therefore there is no basis upon which such an order may rest; that the common law does not authorize a court to compel a husband to pay his divorced wife solicitor’s fees for services rendered after a final decree of divorce which is unappealed from has been entered. The power and authority to make such an order rest upon section 15 of the Divorce Act, Cahill’s St. ch. 40, If 16, which presupposes the existence of the marriage relation and the dependence of the wife upon the husband but does not authorize that the allowance of solicitor’s fees for services be rendered in connection with an appeal from an order which does not affect the marital relation.

In Smith v. Smith, 249 Ill. App. 633 (334 Ill. 370), the question of whether a court of chancery had power to enter an order compelling a divorced husband to pay solicitor’s fees towards defraying the expense of a wife who had petitioned to have the alimony allowed to her by the decree increased, was considered. There the chancellor entered a decree increasing the alimony but disallowing the solicitor’s fees. The defendant husband appealed and the wife assigned cross-errors. We repeat here what was said in that opinion upon this subject:

“That there has been conflicting language in the opinions of courts of review of this state in passing upon the question may be conceded. However, it is settled that in the absence of specific statutory authority a court may not require one party to pay the solicitor’s fees of another. Section 15 of the Divorce act makes such specific provision for the wife in suits for divorce. This is not a suit for divorce. That suit was terminated by the original decree, and the status of husband and wife was severed by that decree which stands unmodified. Both on principle and authority, we think solicitor’s fees should not be allowed. Lake v. Lake, 194 N. Y. 179; Lehmann v. Lehmann, 225 Ill. App. 513; McQuien v. McQuien, 61 How. Pr. (N. Y.) 280. See also 19 Corpus Juris 228. However, allowance of counsel fees to a complainant for resisting a motion to reduce her alimony was approved in Stillman v. Stillman, 99 Ill. 196, without the citation of authority, and following that decision in Czarra v. Czarra, 128 Ill. App. 430, the Appellate court approved of an order allowing solicitor’s fees to a complainant prosecuting a contempt proceeding for failure of the defendant to pay alimony. In Gehlbach v. Gehlbach, 219 Ill. App. 503, allowance of solicitor’s fees to a complainant prosecuting a petition to modify the original decree for alimony by increasing the amount was reversed because of lack of proof that the fees were reasonable, customary and usual, the court intimating on the authority of Stillman v. Stillman, supra, and Czarra v. Czarra, supra, that the order would have otherwise been upheld. However, the interests of minor children were involved in that case, which distinguishes it from the case before us. Thomas v. Thomas, 233 Ill. App. 488, is also distinguishable upon the same ground. At any rate we are not disposed to hold under all the facts which appear in this case, that the court abused its discretion in this respect.’.’

One of the judges of this court specially concurred, stating that he did not agree with all that was said in the opinion of the court.

It may (as the foregoing review of the cases discloses) be regarded as an open question in this State whether an allowance for solicitor’s fees may be made to a divorced wife in such case. However divergent the views of this court may be upon that subject, we are agreed that the facts of this case do not bring it within the provisions of section 15 of the Divorce Act, which authorize orders for payment of solicitor’s fees. The petition of the mother asking for the temporary custody of her children was primarily for her own pleasure rather than in their interest. The petition was not filed upon the theory that the interest of the children required the order. Its prayer was for the benefit and pleasure of the wife. We are agreed that section 15 of the statute, under the most liberal interpretation of it possible, does not justify this order. The interest of the divorced mother rather than the interest of the children of the divorced parents is involved in this proceeding, and the reasons urged upon us for a liberal construction of the statute cannot prevail.

For the reasons indicated the decree is reversed.

Reversed.

O’Connor, P. J., and McSurely, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Domicele Czesna, Plaintiff in Error, v. Lietuva Loan and Savings Association, Defendant in Error.
    Gen. No. 33,255.

      Opinion filed May 20, 1929.
    Slakis & Spence, for plaintiff in error.
    Otto H. Beutler, for defendant in error; Clyde C. Fisher, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by the plaintiff below from a judgment in favor of the defendant entered upon the finding of the court. The suit was in assumpsit for the amount of a deposit made in the defendant association, for which, a certificate was issued to plaintiff and her husband Joseph jointly.

The facts are practically undisputed. On July 19, 1921, the defendant association issued to Joseph Czesna and Domicele Czesna, his wife, a certificate of matured stock to the amount and value of $1,000. The certificate represented money theretofore deposited with defendant and drew interest at the rate of 4 per cent per annum.

On November 7, 1922, Joseph Czesna deserted his wife and has ever since continuously persisted in such desertion and abandonment. On the morning of the day on which he disappeared he handed this certificate with other papers to plaintiff, stating: ‘‘ These will be yours and I am going away, you won’t see me any more.” Shortly thereafter the plaintiff presented the certificate to the secretary of the defendant at its office and requested payment of the same to herself, saying that her husband. Joseph had deserted her and the family. The secretary informed her that payment could be made only to both Joseph and herself as joint owners.

On November 15, 1922, plaintiff caused a written notice to be served on the defendant at its office, as follows: f_

“You and each of you are hereby notified to restrain from paying any part of the sum of One Thousand and ($1000.00) Dollars deposited with your association under certificate No. 41, Series 19, and dated 19th day of July, 1921, issued to Joseph Czesna and Domicele . Czesna.
Domicele Czesna.”

Plaintiff handed this paper to defendant’s secretary and told him that “they should not pay that money out to anybody without me.” Defendant’s secretary told plaintiff that she “should file suit in court.” On July 19,1922, and January 19,1923, the interest which had accrued on the certificate was paid by the defendant to the plaintiff. Mr. Sturbis, the secretary of the defendant corporation, told plaintiff to get some lawyer to go to court and then she would get the money. Plaintiff told him that she had no money to hire a lawyer, and, as she says, he told her to get any kind of a lawyer and that he “will see that the money will be paid to me when I was present in court.” Plaintiff then hired a lawyer named J. C. Wolon, to whom she delivered this certificate and told him that defendant wanted her to get a lawyer and that defendant would pay it only by her filing a suit in court. She testifies: “I told him that he should file that paper in court and have me there in court because the secretary of the Building Loan Association told me that I must be personally present. I handed him the certificate at that time.” Plaintiff says she went to Wolon because he was a Lithuanian; that she heard he was a Lithuanian and she could speak his language.

On October 24, 1923, Wolon caused a judgment by confession to be entered in the municipal court of Chicago in favor of Kazimer Kmittek and against Joseph and Domicele Czesna upon a note alleged to have been made by them. In the suit he appeared as attorney for the plaintiff; thereafter, on October 25, he caused an execution to be issued on the judgment and on October 26 he signed and delivered to the municipal court a statement in writing to the effect that he had caused a diligent search and inquiry to be made to learn if the judgment defendants had any real or personal property subject to execution and believed and stated that they had not any property in the city subject to execution and therefore a demand would be unavailing; that if the bailiff believed that nothing could be realized and in the exercise of his discretion would return the execution nulla bona, plaintiff Kmittek would waive damages and protect the bailiff as if the bailiff had held the execution for 90 days. The bailiff made return as requested.

On October 24, 1923, Kasimer Kmittek filed an affidavit in the usual form asking that defendant, Lietuva Loan and Savings Association, might be summoned as garnishee. The summons issued on November 6, 1923, and was served on November 7 thereafter. On November 13, 1923, the defendant corporation answered the garnishment summons orally, and the court upon said oral answer entered a judgment against the association for $1,027.30. The judgment was entered in the name of Joseph and Domicele Czesna for the use of Kazimer Kmittek. On the same day Wolon, as attorney for Kazimer Kmittek, entered a satisfaction in writing of the judgment in full of record, to which was attached his affidavit stating that he was the attorney of record for the plaintiff in whose favor the judgment was rendered and that he had authority to execute the satisfaction of judgment; that plaintiff was still alive and still the owner of the judgment. An execution thereafter issued against the defendant corporation, and while the judgment was still in full force and effect the defendant paid out the amount of the judgment rendered against it as garnishee to Joseph C. Wolon and received from him the satisfaction of judgment as attorney of record for Kazimer Kmittek, the plaintiff in that suit. At the same time the defendant corporation received from Wolon the certificate of matured stock which was marked paid. Wolon did not pay any part of the amount so received to the plaintiff Domicele Czesna but apparently has absconded. Plaintiff being unable to locate Wolon, again applied to the defendant for payment and was advised by one of the officers of the defendant corporation that the moneys due under the certificate had been paid in court.

She then retained another attorney who learned from one of defendant’s officers that the money represented by the certificate had been paid in garnishment proceedings; that a judgment by confession had been entered in favor of the plaintiff therein and against defendants. The note upon which said confession of judgment was based was exhibited to plaintiff, Domicele Czesna, who claimed that the signatures, which were both by the mark “X,” were the forged signatures of herself and her husband.

On March 13, 1924, the attorney for plaintiff in behalf of herself and her husband presented a motion to set aside the judgment by confession entered in the municipal court on October 24, 1923. In her petition she stated that the judgment was obtained without notice of any kind to Joseph Czesna and herself, defendants; that she had first received information of the proceedings on March 3,1924; that the defendants had a good and meritorious defense in that neither of them had ever signed the note sued on or authorized any one to sign the note, or any note, for them or either of them; that defendants never saw the note sued on; that neither defendant ever at any time received any consideration whatsoever or anything of value for said note or on account thereof; that the same did not represent any indebtedness of any kind by either defendant to anyone; and that the names and signatures on the note were not the names and signatures of the defendants. On July 8, 1925, upon the hearing of said motion, it was ordered by the court that the judgment by confession of October 24, 1923, should be vacated and set aside.

Upon the foregoing facts the trial court was of the opinion that, the rule of law that where one of two innocent parties must suffer through the wrongful act' of a third party, the loss must fall on him who by his conduct put it in” the power of the third party to cause the injury, was applicable and, applying that rule, made a finding for the defendant and entered judgment for costs against the plaintiff.

Plaintiff contends that defendant as garnishee was bound to disclose all matters that would have prevented judgment against it, and that it was its duty when garnisheed to notify the plaintiff of the pend-ency of the garnishment suit in order that she might defend and protect her interest in the fund. Gorham v. Massillon Iron & Steel Co., 209 Ill. App. 606; 12 Ruling Case Law, p. 832; Corpus Juris, vol. 28, par. 361, p. 264; par. 626, p. 398; par. 627, pp. 399, 400.

She further contends that the judgment entered upon the forged note is void; that the court was therefore without jurisdiction and that payment by the garnishee would not protect it, citing with other cases, Mulligan v. Alsen, 222 Ill. App. 615; McCormick v. McCormick, 243 Ill. App. 55, and Baering v. Epp, 247 Ill. App. 51.

These legal propositions are not questioned by defendant, but it insists that the same are not applicable; that Wolon was the authorized agent and attorney for the plaintiff at the time the money was paid to him, and that since he had authority to receive his client’s money, defendant would be protected by payment to him although he appropriated the money to his own use and absconded.

There is no doubt of the general rule that a client is bound by the acts of his attorney within the apparent scope of his authority to the same extent that a principal is bound by the acts of his agent; and this is the sum and substance of the cases cited by the defendant. Ruckman v. Alwood, 44 Ill. 183; Custer v. Agnew, 83 Ill. 194; Monacelli v. Traeger, 239 Ill. App. 30; Fish v. Bloodworth, 36 Okla. 586, 129 Pac. 32; Johnston v. Horowitz, 139 N. Y. App. Div. 800, 124 N. Y. Supp. 689; Burstein v. Sullivan, 134 N. Y. App. Div. 623.

The evidence does not establish the authority of Wolon to bring the proceeding which he brought. He was authorized to sue defendant if necessary and, if possible, to obtain a judgment against it for the amount due under the certificate, but he was not authorized to bring a suit in the name of Czesna for the use of Kmittek. Much less did he have the right to make use of a forged note in connection with such proceeding. There is no doubt of the general rule that where one of two innocent parties must bear the loss it should fall upon the one who by his conduct put it in the power of a third party to cause the injury. The basis of that rule is, of course, an estoppel. It is not applicable to this record as we view it, for the reason, as we think, that upon the uncontradicted evidence defendant cannot be held to be an innocent party. It knew of the inconsistent position of Wolon in bringing a suit against his own clients. It knew that plaintiff was not skilled in the language in which court proceedings were conducted, and plaintiff’s evidence to the effect that defendant’s secretary agreed to notify her so that she could be present when the money was paid is not contradicted. If she had been notified as agreed, the loss, it may be assumed, never would have occurred. Irrespective of .this, it was the undoubted duty of defendant as garnishee to inquire into the validity of the judgment upon which the garnishment proceedings were based. Having been negligent in these respects, the rule applied by the trial court was not applicable to the facts, and the finding should have been for the plaintiff. The judgment of the trial court will therefore be reversed with a finding of facts and judgment for the plaintiff here.

Reversed with a finding of facts and judgment here.

0 ’Connor, P. J., and McSurelt, J., concur.

Finding of facts. We find as facts that the plaintiff is the owner of a certificate of membership for ten . shares of stock of the defendant corporation which had matured and which is of the value of $1,000, with interest since the date of the last payment of interest thereon at the rate of 4 per cent per annum, amounting to the further sum of $253.44; that there is now due from the defendant to the plaintiff under the terms of said certificate the sum of $1,253.44, for which judgment should he entered in this court,


text:
    Mary L. Pillsbury, Appellant, v. Patrick H. Early, Administrator with the Will Annexed of John Early, Deceased, Appellee.
    Gen. No. 33,285.

      Opinion filed May 20, 1929.
    Rehearing denied June 6, 1929.
    Earl J. Walker, for appellant.
    James F. Burns, for appellee; Ferdinand J. Pirnat, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by the petitioner from an order of the circuit court dismissing her petition in which she prayed that the administrator with the will annexed of the estate of John Early, deceased, should pay to her a bequest of $2,000 as directed by the will. The prayer of the petition was granted by the probate court, but upon appeal to the circuit court (upon a hearing without a jury) the trial judge arrived at a contrary conclusion, sustained the appeal of the administrator and dismissed the petition.

There is practically no controversy as to the facts. On June 10,1910, John Early executed a will devising to his niece, Olive Early, the daughter of his brother, Patrick H. Early, “all my real estate and the appurtenances thereto, said real estate being situated in and at the Village of Franklin Park in the County of Cook and State of Illinois.” By the third clause of the will he devised to petitioner, Mary L. Pillsbury, who was then Mary L. Bock, “the sum of Two Thousand ($2000.00) Dollars,” also “my horse known as ‘Teddy’ with buggy harness and accessories.” John Early died January 20, 1920, and his will was admitted to probate on March 17, 1920.

On May 3,1920, petitioner filed her bill of complaint in the superior court of Cook county, alleging that in 1907 John Early entered into a parol agreement in substance that if she would go and live on his farm in Franklin Park and take care of his elderly parents and himself, the farm would be given to her at his death, and that in addition she would receive one-half of the stock and the produce of the farm. The bill alleged she went to Franklin Park and took care of John Early and his parents until his death. The bill further averred the execution of the will in which John Early devised his farm to one of his nieces and bequeathed $2,000 to herself. It prayed that the parol agreement be specifically performed and the farm conveyed to complainant. The executor and legatees were made defendants and answered, denying the parol agreement.

The cause was put at issue, and after a trial upon the merits a decree was entered dismissing the bill for want of equity. •

Mrs. Pillsbury prosecuted an appeal to the ^Supreme Court where the decree dismissing her bill was affirmed. Pillsbury v. Reidy, 304 Ill. 420.

• On July 26, 1921, Mrs. Pillsbury filed her claim against the estate in the probate court of Cook county, declaring upon the common counts for work done and services performed and claiming damages in the sum of $15,000. Upon a nominal hearing the claim was allowed in the probate court in the sum of $100, and upon appeal to the circuit court there was a trial by jury and verdict in favor of claimant in the sum of $7,500, upon which the court entered judgment. Upon appeal to this court this judgment was reversed on the theory that the former suit for specific performance being based upon the same contract as that relied upon in the prosecution of the claim was res -adjudícala as between the parties. Pillsbury v. Early, 240 Ill. App. 419. A petition for certiorari by the claimant to the Supreme Court was allowed, and the judgment of this court was reversed. Pillsbury v. Early, 324 Ill. 562. The cause was remanded to this court with directions to reconsider the same on the merits. The cause was reconsidered by the third division of this court and the judgment affirmed upon remittitur of $1,000. 245 111. App. 617.

It is not disputed that the estate is solvent and financially able to pay the legacy, and it is agreed that no part of it has at any time been paid. The defense set up by the administrator is that by the prosecution of her suit for specific performance of. the alleged oral agreement on the part of the testator to convey the specific property devised in his will to his niece, Olive Beidy, and by the further prosecution of her claim for services, Mrs. Pillsbury elected to take against the will and that she is now estopped to claim her legacy under it.

It is apparent from the ruling of the court on propositions of law submitted the theory of the court was that defendant’s claim to the legacy was barred by her suit for specific performance brought in the superior court of Cook county which she unsuccessfully prosecuted to the Supreme Court of the State, and the questing. here to be decided is whether the unsuccessful attempt of claimant to defeat the will of John Early by bringing a suit to secure the specific conveyance to herself of the real estate devised by another clause of the will to his niece, Olive Reidy, will prevent her successful prosecution of her claim to receive a specific legacy bequeathed to her.

The doctrine of election as applied to wills is one which at an early date was adopted into our jurisprudence from the • Roman law. Pomeroy’s Equity Jurisprudence, vol. 1, 4th ed., see. 463. It is based upon the theory that a court of equity will imply a condition, where none is expressed in the will, that the acceptance of a bounty of the testator as provided in one provision shall not be permitted to prevent the realization of the intention of the donor as expressed in another provision. In equity it applies to all instruments of donation and is based upon "the maxim of equity that “He who seeks equity must do equity.” The subject is quite fully discussed by Professor Pomeroy in volume 1, 4th ed., sec. 2, of his work on Equity Jurisprudence, and a statement covering substantially the same ground is found in Story’s Equity Jurisprudence, 14th ed., vol. 3, ch. 33. These authors acknowledge their indebtedness to the note in Dillon v. Parker, 1 Swanst. 400.

It appears from an examination of these authorities that the doctrine is purely equitable, is not generally applied in courts of law, and that the rules of law requiring an election between inconsistent remedies in actions at law, while in some respects analogous, are not similar. Indeed, equitable principles are applied to the extent that where one donee has by his election disappointed another, a court of equity will usually refuse to forfeit the estate of the refractory donee bub will seize upon and sequester it for the purpose of compensating the disappointed donee. It may be added that this equitable doctrine of election, in the absence of an express declaration to that effect in the will or deed, is not at all applicable to the case of creditors. Kidney v. Coussmaker, 12 Ves. Jr. 154. This doctrine of election in equity as applied to wills was adopted and applied in Illinois in the early case of Wilbanks v. Wilbanks, 18 Ill. 17, and has been consistently followed by the Supreme Court of this State in later cases.

In Brown v. Pitney, 39 Ill. 468, the Supreme Court, in an opinion by Mr. Justice Lawrence, stated the doctrine thus:

“The doctrine of election, as between inconsistent rights has been long established. Although founded on a principle that is just everywhere, its most frequent practical application has been to devisees and legatees in wills. As applied to them it means simply, that he who would accept the bounty of another must do so upon such terms and conditions as the donor may choose to impose. The beneficiary under a will cannot insist that the provisions in his favor shall be executed and those to his prejudice annulled. He must accept the instrument, in its entirety or not at all. This is a doctrine founded upon so clear a principle of natural equity that it must necessarily be recognized in every system of enlightened jurisprudence.”

In Gorham v. Dodge, 122 Ill. 528, the complainant, who sought to maintain a bill for specific performance of an alleged contract with the executor to convey certain lands devised by the will, had accepted a bequest made under the will. The court held that by accepting the legacy the complainant confirmed every other part of the will and therefore could not maintain his suit.

In Fishburn v. Green, 291 Ill. 350, Edward Fishburn filed a bill to contest the will of his brother Eugene, of whom he was the sole heir. The bill was dismissed and he sued out a writ of error. The defendants in error filed a plea of release of errors. The plea averred that the executors with the knowledge and consent of plaintiff in error, after the decree had been rendered, paid the full amount of a legacy bequeathed to him under the will amounting to $756.94, and that the trustee receipted therefor and the money had been retained and appropriated. The court said in substance that if a party accepted the benefits of a decree, such acceptance might be pleaded as a release of errors ; that one who accepted a provision for his benefit under a will was precluded from attacking other lawful provisions of the same will; that by accepting its benefits he admitted the instrument to be the will of the testator and that he could not both take under it and make a claim against its terms. The opinion of the court there distinguishes Ward v. Ward, 134 Ill. 417, upon the ground that the widow, who it was there claimed was precluded, had taken under a statutory right which did not put her to an election.

These and other cases which might be cited do not give a.precise answer to the question arising upon this record. Unlike the cases cited, the claimant here has not taken anything against the will. She tried to do so, but she did not succeed. She brought a suit but she lost it. Does the prosecution of this suit-to a final adjudication, by which she took nothing, now preclude or estop her from taking that which the testator clearly intended she should have? The question must be solved by the application of equitable rules.

In Carper v. Crowl, 149 Ill. 465, where it was contended that a widow by reason of her acceptance of the provisions of a will was put to her election and could not thereafter claim an estate derived, as claimed, from another than her deceased husband, but devised by him, the court in substance said that where one had-an election between several inconsistent courses, he would be confined to the one first adopted and that any decisive act done with knowledge of his rights and of all the facts determined his election and estopped him from asserting to the contrary, but that it was requisite in order to bind a party by election that it be made with full knowledge of all the facts and if made by mistake or misapprehension or ignorance of the facts or rights of the parties, it would not be conclusive. Pratt v. Douglas, 38 N. J. Eq. 516; Williams v. Thornburg, L. R. (10 Ch. App.) 329; Spread v. Morgan, 11 H. L. Cas. 588, with other cases which we have already cited are referred to as sustaining this doctrine, and the court said:

“Where the rights of third persons have not intervened, an election made in ignorance, or under misapprehension of the effect of the act or the extent of the party’s rights, is not binding, and may be revoked.”

The court also said that Mrs. Growl sought and obtained advice from reputable attorneys to the effect that failure to renounce the will would not in anywise affect her title to the land in question, and that she acted upon such advice; that it was clear she did not understand she was electing to abandon title to her land, and that title therefore remained in her.

In the Estate of Julia E. Downing, 236 Ill. App. 168, Helen F. Downing filed a claim against the estate of her mother, Julia, for 14/45ths of the estate left by a deceased brother, Thomas F. Downing. She averred in her claim that at the request of the mother she had transferred to the mother shortly after the death of this brother all her right in the estate on the condition and in consideration that her mother would return the said estate upon her death. The will of Julia Downing, after providing for the disposition of certain personal effects and bequeathing $500 for masses, gave all the rest of her estate to the Harris Trust & Savings Bank in trust, to be divided in equal parts and one-half paid to her daughter Helen so long as she should live, and upon her death, leaving issue, to such issue. Helen Downing accepted this bequest and received thereunder the sum of $7,824.40, for which she receipted to the executor. It was urged that she had thereby elected to take under the will and was estopped from enforcing her claim against the estate; but this court, while holding that the probate court had equitable powers to apply the doctrine of election, distinguished that case from Burns v. First Nat. Bank of Joliet, 304 Ill. 292, and held that Helen Downing was simply a creditor of her mother’s estate and that she was not put to her election. The judgment was reversed in Downing v. Harris Trust & Savings Bank, 318 Ill. 323, but for reasons which have no bearing upon this question.

In Scheible v. Rinck, 195 Ill. 636, Mrs. Scheible died testate leaving her husband surviving but no child, children, nor descendants thereof. The will devised to her husband an estate for life in all of her real property without expressing any intention as to whether the devise should bar the dower of the husband. He thereafter filed a bill in chancery to contest the will of the wife on the ground that she was lacking in mental capacity to execute the instrument and on the further ground that it was obtained. through undue influence, fraud and compulsion. The contest ended in a decree which established the validity of the will. More than a year having in the meantime expired, he filed a written renunciation and election to take dower in lieu of the property bequeathed to him by the will, and later filed a bill for the partition of the real estate, claiming an undivided one-half thereof. A general demurrer to his bill was sustained and the bill dismissed. The court said that an unsuccessful attempt to break the will would not deprive him of his right as a devisee; that the law. attached no such penalty to an attempt to set aside a will; that an unsuccessful contest of a will established the validity of the provisions and the devisees and bequests therein provided would control the disposition of the property of the maker of the will; that one might seek to overthrow a will without any intention of renouncing a devise therein in his favor in case the will was held to be valid; that consequently the institution of a proceeding to contest the validity of a will was not equivalent to a renunciation of a devise in the will. The decree was affirmed.

In Hanson v. Clark, 246 Ill. App. 496, it appeared that Hanson died leaving a will providing for the payment, with other legacies, of one to his widow and the remainder to residuary legatees. He left no child nor descendant of a child surviving him. His widow filed in the probate court her renunciation of the legacy provided by the will and elected to take her legal share of the estate, which she claimed to be one-half of the real and personal estate after the payment of debts. The residuary legatees contended that upon renouncing she was entitled to only one-third of the property. The probate court found that she was entitled to one-half, and upon appeal to the circuit court a similar order was entered, the court holding that section 12 of the Dower Act, Cahill’s St. ch. was applicable. .The residuary legatees appealed to the Supreme Court which reversed the judgment and remanded the cause for further proceedings. The widow then contended that since section 12 of the Dower Act had been held inapplicable, her renunciation became a nullity and that she was entitled to take under the will. Propositions of law were submitted, and the trial court held against her contention and entered an order finding that she had elected to take in lieu of the bequest of the will her legal share of the estate and that she was bound thereby. The widow appealed to this court, and after reviewing the authorities we held that her election had been made under a mistake and misapprehension as to her antecedent and existing private legal rights, and that the court erred in denying her motion for leave to apply to the probate court to withdraw her renunciation. Certiorari was denied by the Supreme Court.

In Gilbert v. McCreary, 87 W. Va. 56, 12 A. L. R. 1172, 104 S. E. 273, the testator’s will divided a piece of property between his daughter by a former marriage and his widow, the stepmother of the daughter. The daughter brought suit, claiming title to the whole property upon the theory that she had inherited the same from her mother and alleging that the property belonged to her mother because the purchase of the same was with her mother’s money. She failed in her suit and a decree was entered against her. She after-wards filed a bill for an injunction and to remove the cloud upon her title, and it was urged that by bringing the first suit she had elected not to take under the will and that election was a bar to her suit. The court said:

“Nor does it bar this suit as proof of an election not to take under the will. The plaintiff did not have two rights between which to elect. Under a misapprehension of right and upon an untenable claim, she brought a suit which availed her nothing. That fruitless effort is not indicative of intention to give up or relinquish any right vested by the will. To make the conduct of the plaintiff in that suit bar her right under the will, it must appear that the suit was brought with intention to elect. 2 Pom. Eq. Jur. sec. 515. An election made by a party, under a mistake as to the nature of his right, is regarded as a mistake of fact and does not bind him. Tolley v. Poteet, 62 W. Va. 231, 57 S. E. 811; Waggoner v. Waggoner, 111 Va. 325, 30 L. R. A. (N. S.) 644, 68 S. E. 990; Spread v. Morgan, 11 H. L. Cas. 588, 562, 11 Eng. Reprint, 1461, 13 L. T. N. S. 164, 6 New Reports, 269.”

In Harber v. Harber, 153 Ga. 274, 123 S. E. 114, 33 A. L. R. 598, it appeared that the testator by his will bequeathed to May Harber (who was his second wife) during her lifetime or widowhood only, the income or interest from $12,000 and directed that at her death or marriage the principal was to revert to his children.. The will stated this bequest was to be in full of all claims of every kind that she might have against his estate in the way of dower or a child’s part. It also contained a provision that if his children or wife should contest the will, anyone so trying to break it should not receive the amount given. The testator had conveyed certain landed estate by deed to the children of his first wife. The widow, claiming that these conveyances were made to defeat her right to dower in the land and that they were merely color-able, filed her petition in which she sought to have dower set apart to hep in these lands. The case was • heard on its merits and a nonsuit granted without dower being awarded to the widow. She thereafter filed her petition to recover the legacy bequeathed to her by the testator and set up these facts as to the former suit. The executors demurred to the petition upon the ground, among others, that with full knowledge of the facts, pertaining to her rights thereunder she had elected not to take the legacy provided in the will and that in law and equity she was bound by the 'election; that in seeking dower she pursued a remedy inconsistent with her claim under the will. It appeared that she had prosecuted her claim to dower to the Supreme Court. The court said:

“It is taking, and not an abortive attempt to take, which requires the legatee to give effect to all the provisions of the will. The doctrine of election is based upon the salutary principle, that ‘he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing any right inconsistent with it.’
“The mudsill of this principle is that the testator must bestow by his will a benefit upon another, and the latter must accept the benefit. Until acceptance of the benefit, this doctrine does not come into play against the legatee. Furthermore, a case of election only arises when a person is entitled to one of two benefits, to each of which he has the legal title, but to enforce both would be unconscientious and inequitable to others having claims upon the same property or fund. Civ. Code 1910, sec. 4609; Lamar v. McLaren, 107 Ga. 591, 34 S. E. 116. In this case the widow was not entitled to one of two benefits, for the simple reason that her husband had died seized and possessed of no lands of which she was dowable, but had conveyed all of his lands by deed to his children. Undoubtedly, if the testator had died seized and possessed of these lands, so that his widow could have obtained dower therein, then she would have been compelled necessarily to elect between her right to dower and the legacy given to her in the will of her husband. Worthen v. Pearson, 33 Ga. 385, 81 Am. Dec. 213. Inasmuch, however, as she was not entitled to dower, because her husband died seized and possessed of no lands, her election to take dower was not conclusive. Her misconception of her rights in this matter and her attempt to secure dower, did not constitute an election which would bar her from her election to recover upon an inconsistent right. The fact that a party misconceives his right, or through mistake attempts to exercise a right to which he is not entitled, or prosecutes an action based upon a right which he erroneously supposes he has, and is defeated because of such error, does not constitute a conclusive election, and does not preclude him from thereafter prosecuting an action based upon such inconsistent right. 20 C. J. 21, sec. 17. An election can exist only where there is a choice between two or more inconsistent remedies actually existing at the time the election was made. Zimmerman v. Harding, 227 U. S. 489, 57 L. ed. 608, 33 Sup. Ct. Rep. 387; Bistline v. United States, 144 C. C. A. 6, 229 Fed. 546; Todd v. Interstate Mortg. & Bond Co., 196 Ala. 169, 71 So. 661; Capital City Bank v. Hilson, 64 Fla. 206, 60 So. 189, Ann. Cas. 1914B, 1211. The proper remedy of a party is not waived where, in fact or in law, only one remedy exists and a mistaken remedy is pursued. American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942, 16 Ann. Cas. 1054. The doctrine of election applies only when the party in fact has two or more remedies. If it be determined that there is but one, his adoption of another is not held to be an election. Wells v. Western U. Tel. Co., 144 Iowa, 605, 24 L. R A. (N. S.) 1045, 138 Am. St. Rep. 317, 123 N. W. 371; Thomas v. Zahka, 99 Misc. 333, 164 N. Y. Supp. 193.”

In the annotation to this case the author says:

“The few cases which have discussed the question agree with the reported case (Harber v. Harber, ante, 598) in holding that the unsuccessful assertion of a claim under or against a will does not amount to a conclusive election for or against it.”

In view of these authorities (and there is none to the contrary) we are constrained to hold that Mrs. Pillsbury’s ineffectual prosecution of her suit in equity for specific performance did not constitute such election as would prevent her acceptance of the legacy given by the will; that her prosecution of that suit was based on a misapprehension of her legal rights — a mistake analogous to a mistake of fact.

Petitioner claims that she should be allowed interest under sections 112-114 of the Administration Act, Cahill’s St. ch. 3, fifí 114-116. Section 112 provides that executors shall present their accounts for settlement at the first term of court after the expiration of one year after the date of their letters and in like manner every twelve months thereafter, or sooner if required by the court. Section 114 in substance provides that moneys, bonds, etc., which an executor may have in his possession or control as assets of the estate, at a period of two years and six months from the date of his letters, shall bear interest, and the executor shall be charged with interest thereon from said period at the rate of 10 per cent. We do not regard this section as applicable to the facts which appear here. In the absence of statute, an executor was at common law chargeable with interest for deferring distribution an unreasonable time. The facts already recited show that this petitioner has been strenuously and continuously in litigation against this estate practically from the time the will was admitted to probate. If she had taken her legacy she would have been estopped from maintaining her bill for specific performance. Burns v. First Nat. Bank of Joliet, 304 Ill. 292.

We must assume that the executor defended against all her claims, including this demand, in good faith. There is nothing in the record to indicate to 'the contrary. An executor ought not to pay a legacy where he in good faith believes he has a meritorious defense to its payment. . If it were made to appear that the money in his hands had earned interest, petitioner might equitably be entitled to it. There is no proof of such earnings. There has been no unreasonable delay in the payment of this legacy, and there is no proof that the money out of which it should be paid, in the hands of the executor, has earned interest. The claim of petitioner in this regard therefore cannot be sustained.

The judgment of the circuit court is reversed and the cause remanded with directions to enter an order according to the prayer of the petitioner and consistent with this opinion.

Reversed a/nd remanded with directions.

O’Connor, P, J., and McSurely, J., concur.


author: Mr. Presiding Justice Holdom

text:
    First District.
    Nathan Sampson, appellee, v. Alfred Bodo Schweinsberg and Louise Schweinsberg, appellants.
    Gen. No. 32,836.
    Opinion filed February 27, 1929.
    Rentner & Meyer, for appellants; Otto C. Rentner, of counsel. Daniel A. Uretz, for appellee; Joseph H. Platt, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Max Stuhlfaut, appellee, v. James W. Owens, appellant.
    Gen. No. 32,848.
    Opinion filed February 27, 1929.
    George D. Anthony, for appellant. Nicholson, Crandall & Snyder, for appellee; Russell Greenacre, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Robert J. Green appellee, v. Frank Di Cristofaro, appellant.
    Gen. No. 32,857.
    Opinion filed February 27, 1929.
    Rehearing denied March 19, 1929.
    Alex H. Rosenbaum, for appellant. Levisohn & Levisohn, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    John Baumgartner, appellee, v. Stefan Krzyzak, appellant.
    Gen. No. 33,029.
    Opinion filed February 27, 1929.

      Isidore Fried and Edward Horchler, for appellant; Bernard A. Stol, of counsel. Louis J. Du Rocher, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Ryner

text:
    Paulus F. B. Koenig, appellee, v. Edward C. Carrington, appellant.
    Gen. No. 32,978.
    Opinion filed February 27, 1929.
    Alden, Latham & Young, for appellant; Hobart P. Young, of counsel. Deneen, Healy & Lee, for appellee; John J. Healy, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.


author: Mr. Justice Wilson

text:
    Esther Joy, plaintiff-appellee, v. City of Chicago, defendant-appellant.
    Gen. No. 32,984.
    Opinion filed February 27, 1929.
    Samuel A. Ettelson, Corporation Counsel and William D. Saltiel, City Attorney, for appellant; Charles M. McDonnell, Assistant City Attorney, E. Marshall, Amberg and Roy S. Gaskill, Assistant Corporation Counsel, of counsel. James H. Turner and Irwin M. Baker, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Anton M. Butchas, appellant, v. Frank L. Savickas, defendant. Metropolitan State Bank, garnishee, appellee.
    Gen. No. 33,016.
    Opinion filed February 27, 1929.
    Rehearing denied March 19, 1929.
    Pines, Morse & Stein, for appellant; Clarence T. Morse, of counsel. Frank A. Ramsey, for appellee; Ernest Saunders, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Jacob Ashkenazy, appellee, v. Sam Brown, appellant.
    Gen. No. 33,024.
    Opinion filed February 27, 1929.
    Rehearing denied March 19, 1929.
    Gallagher, Shulman & Abrams, for appellant. L. A. Sherwin, for appellee; Harry A. Biossat, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    B/G Sandwich Shops, Inc., appellant, v. A. R. Price, trading as Price Drug Company et al., appellees.
    Gen. No. 33,047.
    Opinion filed February 27, 1929.
    Lee Walker, for appellant. No appearance for appellees.
   Mr. Justice Wilson

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    Fullerton Plumbing & Heating Company, defendant in error, v. Eli Metcoff and Leslie L. Hecht. Eli Metcoff, plaintiff in error.
    Gen. No. 32,890.
    Opinion filed March 11, 1929.
    Gallagher, Shulman & Abrams, for plaintiff in error. A. S. and E. W. Froehlich, for defendant in error.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Herbert A. Durr, appellee, v. Richard E. Schmidt et al., appellants.
    Gen. No. 32,979.
    Opinion filed March 11, 1929.
    Rosenthal, Hamill & Wormser, for appellants; Lessing Rosenthal, Charles H. Hamill, Leo F. Wormser and Willard L. King, of counsel. Judah, Willard, Wolf & Reichmann, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Antonio Balsamo, appellee, v. Cesare Nutini et al., appellants.
    Gen. No. 33,060.
    Opinion filed March 11, 1929.
    William Schulze, for appellants. Julius S. Neale, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr, Presiding Justice O’Connor

text:
    B. F. Andrews, trading as B. F. Andrews and Company, appellant, v. James Lovett, appellee.
    Gen. No. 33,191.
    Opinion filed March 11, 1929.
    Babcock, Worthy & Gilruth, for appellant; Charles H. Chapman, of counsel. No appearance for appellee.
   Mr, Presiding Justice O’Connor

delivered the opinion pf the court.


author: Mr. Justice McSurely

text:
    Elsie C. Moore, appellee, v. Mutual Construction Company et al., on appeal of Crowe Brothers, appellants.
    Gen. No. 33,057.
    Opinion filed March 11, 1929.
    Rehearing denied March 25, 1929.
    Monahan & Monahan, for appellants. Earl J. Walker, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Channing M. Wells et al., appellees, v. George W. Durst Chevrolet Company, appellant.
    Gen. No. 33,075.
    Opinion filed March 11, 1929.
    Levinson, Rein & Fink, for appellant; Theodore E. Rein and Sigmund A. Fink, of counsel. John A. Burke, for appellees; Joseph D. Daly, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Frank Niedospiel, defendant in error, v. Catherine Niedospiel et al., plaintiffs in error.
    Gen. No. 33,151.
    Opinion filed March 11, 1929.
    Stephen A. Thieda, for plaintiffs in error; Charles A. Williams, of counsel. Myer H. Gladstone, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Ole N. Olsen, administrator of the estate of Minnie Olsen, deceased, plaintiff in error, v. Riverview Park Company, defendant in error.
    Gen. No. 33,270.
    Opinion filed March 11, 1929.
    Rehearing denied March 25, 1929.
    James C. McShane, for plaintiff in error. Eugene P. Kealy and Murphy O. Tate, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Overia Barringer, individually and as administratrix of the estate of Phillip Barringer, deceased, plaintiff in error, v. Patrick Collins et al., defendants in error.
    Gen. No. 32,964.

      Opinion filed March 11, 1929.
    Morris, Cashin & Dickerson, for plaintiff in error. D. Ryan Twomey, for defendants in error.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Arthur G. Rathje, defendant in error, v. Fannie Harris et al., plaintiffs in error.
    Gen. No. 33,166.
    Opinion filed March 11, 1929.
    Gallagher, Shulman & Abrams, for plaintiffs in error. Rathje, Wesemann, Hinckley & Barnard, for defendant in error.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Karoline Seidel et al., defendants in error, v. Margaret Holcomb et al., plaintiffs in error.
    Gen. No. 33,174.
    Opinion filed March 11, 1929.
    Joseph E. Winterbotham, for plaintiffs in error. Jacob G. Grossberg and Harold A. Fein, for defendants in error.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Frank Mallick, defendant in error, v. H. L. Hagerman, trading as Hagerman Construction Company, plaintiff in error.
    Gen. No. 33,185.
    Opinion filed March 11, 1929.
    D. W. Parker, for plaintiff in error. William L. Reed, for defendant in error.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Per curiam.

text:
    Veneta H. McBeath, complainant and appellee, v. George McBeath et al., defendants, on appeal of Elizabeth McBeath et al., defendants and appellants.
    Gen. No. 32,196.
    Opinion filed March 21, 1929.
    Follansbee, Shorey & Schupp, for appellants; Mitchell D. Follansbee and Paul D. Miller, of counsel. Juul & Both, for appellee; Alanson C. Noble, of counsel.
   Per curiam.


author: Mr. Presiding Justice Gridley

text:
    Eugene Lee, for the use of Morris Feldman et al., appellants, v. John Ricketts, garnishee, appellee.
    Gen. No. 33,049.
    Opinion filed March 26, 1929.
    Abraham Feldman, for appellants. No appearance for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Peter Zonca and Petronella Zonca, appellees, v. John Jankowski, appellant.
    Gen. No. 33,058.
    Opinion filed March 26, 1929.
    Rehearing denied April 9, 1929.
    Leesman, Roemer & Schnell, for appellant. Morris K. Levinson, for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Paul Schulte, appellant, v. Joseph Bristow, Jr., appellee.
    Gen. No. 33,076.
    Opinion filed March 26, 1929.
    Robert D. Melick, for appellant. D. W. Parker, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    John Zidek, appellant, v. John Podmajersky, appellee.
    Gen. No. 33,085.
    Opinion filed March 26, 1929.
    Rehearing denied April 9, 1929.
    Frank T. McDermott, for appellant; Frank A. Ramsey, of counsel. Charles J. Michal, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    D. C. Ketchem, appellee, v. Troy and Company, appellant. E. H. McMichael, appellee, v. Troy and Company, appellant.
    Gen. Nos. 33,106-33,107.

      Opinion filed March 26, 1929.
    Newby & Murphy, for appellant; Harry A. Newby, John K. Murphy and Geo. M. Burditt, of counsel. James Hamilton Lewis, Archie H. Cohen and Frank C. Leviton, for appellee; James Hamilton Lewis, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    E. H. McMichael, appellee, v. Troy and Company, appellant.
    Gen. No. 33,107.
    Opinion filed March 26, 1929.
    Newby & Murphy, for appellant; Harry A. Newby, John K. Murphy and Geo. M. Burditt, of counsel. James Hamilton Lewis, Archie H. Cohen and Frank C. Leviton, for appellee; James Hamilton Lewis, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Frank Trysko, appellant, v. M. Erens, appellee.
    Gen. No. 33,115.
    Opinion filed March 26, 1929.
    Frank P. Sadler, for appellant. Maxwell Landis, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Harry Abrams, appellee, v. R. J. Dwyer, appellant.
    Gen. No. 33,125.
    Opinion filed March 26, 1929.
    Schwartz & Cooper, for appellant. Harold A. Fein, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    C. V. Raiser, appellee, v. Teller Corporation, appellant.
    Gen. No. 33,134.
    Opinion filed March 26, 1929.
    Robert F. Kolb and Charles E. McGuire, for appellant. Good, Childs, Bobb & Wescott and Adams & Adams, for appellee; Asa G. Adams and Walter E. Beebe, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Edwin Thurston and Amanda Thurston, appellees, v. Merrill L. Hawkins et al., appellants.
    Gen. No. 33,143.
    Opinion filed March 26, 1929.
    Rehearing denied April 9, 1929.
    Arthur H. Jones, Perry B. Brelin and Floyd E. Britton, for appellants. P. F. Murray, for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    C. H. Teneyck, appellee, v. J. B. Swanson, appellant.
    Gen. No. 33,046.
    Opinion filed March 26, 1929.
    Geo. D. Anthony, for appellant. Paul R. Conaghan, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Henry J. Karch, appellee, v. Henry Schrik, appellant.
    Gen. No. 33,064.
    Opinion filed March 26, 1929.
    Koven & Perlman, for appellant. Earl J. Walker, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Messinger Paper Company, appellant, v. Equity Printing & Typesetting Company, appellee.
    Gen. No. 33,073.
    Opinion filed March 26, 1929.
    Rehearing denied April 9, 1929.
    Stephen A. Cross and H. B. Cross, for appellant. Giuseppe Zaffina, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Samuel Patrowich, appellee, v. Irving System Clothes Company, appellant.
    Gen. No. 33,082.
    Opinion filed March 26, 1929.
    Harold D. Feigenholtz, for appellant. Schwartz & Cooper, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Theodore Weinshank, appellee, v. Federal Life Insurance Company, appellant.
    Gen. No. 33,122.
    Opinion filed March 26, 1929.
    Loucks, Eckert & Peterson, for appellant. Maurice T. Weinshenk, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr, Justice Barnes

text:
    S. G. Geiger, appellee, v. Marquardt Motor Co., appellant.
    Gen. No. 33,131.
    Opinion filed March 26, 1929.
    Erwin J. Hasten, for appellant; B. M. Shaffner, of counsel. Otto Baer, for appellee.
   Mr, Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Joseph Mathy, appellee, v. Louis Pfau et al., defendants. Rovnost Homestead Association, appellant.
    Gen. No. 33,018.
    Opinion filed March 26, 1929.
    Rehearing denied April 9, 1929.
    Charles A. Churan, for appellant. Ewart Harris, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Teller Corporation, appellee, v. L. J. Leon Manufacturing Company, appellant.
    Gen. No. 33,070.
    Opinion filed March 26, 1929.
    Maximilian J. St. George, for appellant. Charles E. McGuire, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: . Mr. Justice Scanlan

text:
    Jim di Rosa, appellee, v. Isom Smith, appellant.
    Gen. No. 33,088.
    Opinion filed March 26, 1929.
    Walter M. Farmer, for appellant. C. Helmer Johnson and Bernard P. Barasa, for appellee.
   . Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Lu-Mi-Nus Signs, Inc., appellee, v. Western Premium Company, appellant.
    Gen. No. 33,100.
    Opinion filed March 26, 1929.
    Harry G. Wexler, for appellant. Schoen & Green, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. John J. Blumer, appellee, v. G. F. Waldvogel et al., respondents. G. F. Waldvogel, appellant.
    Gen. No. 33,128.
    Opinion filed March 26, 1929.
    Edward J. Carmody and Thomas M. Zasadil, for appellant. No appearance for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Joseph Johnson, appellee, v. Elgin, Joliet & Eastern Railway Company, appellant.
    Gen. No. 33,140.
    Opinion filed March 26, 1929.
    Knapp & Campbell, for appellant; Joseph L. Earlywine and Paul R. Conaghan, of counsel. Joseph D. Ryan and Davis & Michel, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Charley A. Kufahl, appellee, v. Edward O. Spurlin and Hallie Spurlin, appellants.
    Gen. No. 33,146.
    Opinion filed March 26, 1929.
    Henry C. Ferguson, for appellants. Morris K. Levinson, for appellee; Sidney Rothblatt, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Irving Busch, appellant, v. Portis Bros. Hat Company, appellee.
    Gen. No. 33,176.

      Opinion filed April 1, 1929.
    Rehearing denied April 13, 1929.
    Sissman & Sissman, for appellant; Jesse Sissman, of counsel. Berthold L. Goldberg, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    James Foley and Margaret Foley, appellees, v. Anton Mikaljunas and Anton Spaitis, appellants.
    Gen. No. 33,222.
    Opinion filed April 1, 1929.
    John T. Zuris and Lyman M. Paine, for appellants. Joseph F. Elward, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Henry J. Paschen, appellee, v. Material Cartage Company, appellant.
    Gen. No. 33,111.
    Opinion filed April 1, 1920.
    John A. Bloomingston, for appellant. J. B. Luse, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Effie Poe, appellee, v. Joseph Marciniak, appellant.
    Gen. No. 33,297.
    O’Connor, P. J., dissents.
    Opinion filed April 1, 1929.
    Rehearing denied April 13, 1929.
    Henry Pollenz, for appellant; Otto Ade Arnston, of counsel. James C. O’Brien, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Barney B. Libman, appellee, v. Irving I. Cohen, appellant.
    Gen. No. 33,330.
    Opinion filed April 1, 1929.
    Louis A. Sherman, for appellant; Maurice L. Lewis and Preston Clark, of counsel. Schimberg & Harrison, for appellee; Nathan Harrison, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Viloco Railway Equipment Company, appellant, v. Guilford S. Turner et al., appellees.
    Gen. No. 32,637.
    Opinion filed April 1, 1929.
    Rehearing denied April 13, 1929.
    Whitman, Miller & Coon, Keehn, Woods & Weisl and Whitman Taylor, for appellant. Moses, Kennedy, Stein & Bachrach and Silber, Isaacs, Silber & Woley, for appellees; Martin J. Isaacs, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    A. W. Jensen, appellant, v. Albert Grosby et al., appellees.
    Gen. No. 32,938.
    Opinion filed April 1, 1929.
    Rehearing denied April 13, 1929.
    Otto G. Ryden, for appellant; Gustav S. Andreen, of counsel. Samuel E. Davidson, for appellees; Harry P. Tuseher, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Gregory T. Van Meter, administrator of the estate of Michael Vanda, alies Wanda, appellee, v. Pere Marquette Railroad Company, appellant.
    Gen. No. 32,954.
    McSurely, J. dissents.
    Opinion filed April 1, 1929.
    Glennon, Cary, Walker & Murray, for appellant; Sidney C. Murray and Marvin A. Jersild, of counsel. H. H. Patterson and C. C. Bodenstab, for appellee; E. C. Maurer, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. John P. Kiely, plaintiff in error, v. Board of Education of City of Chicago, defendant in error.
    Gen. No. 33,033.
    Opinion filed April 1, 1929.
    Michael L. Igoe and Leesman, Roemer & Schnell, for plaintiff in error. James Todd, for defendant in error; Frank S. Righeimer, Ralph W. Condee and Wharton Plummer, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    S. T. Burtness, appellee, v. Smith, Hardy & Company, appellant.
    Gen. No. 33,213.

      Opinion filed April 1, 1929.
    Webster & Holmgren, for appellant; Elmer N. Holmgren, of counsel. Loucks, Eckert & Peterson, for appellee; W. W. Patterson, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    John Q. Woods, appellant, v. Frank Harris Sons Company, Inc., appellee.
    Gen. No. 32,876.
    Opinion filed April 17, 1929.
    Frederick A. Gariepy and Owen Rail, for appellant. Slottow & Leviton, for appellee; Charles Leviton and Wendell Carnahan, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Frank R. Hamilton, appellee, v. Erhard Westerberg, appellant.
    Gen. No. 32,981.
    Opinion filed April 17, 1929.
    Reuel H. Grunewald, for appellant. Edwin Hamilton, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    S. E. Chapin, appellee, v. Theodore M. Blumenthal, trading as Chicago Store Fixture Exchange, appellant.
    Gen. No. 32,990.
    Opinion filed April 17, 1929.
    Weissenbach, Hartman, Craig & Okin, for appellant; Harry Okin, of counsel. Harry C. Moran, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    George C. Lowe, appellee, v. Arthur H. Rance et al., trading as Prudential Realty Company, appellants.
    Gen. No. 33,044.
    Opinion filed March 17, 1929.
    Harold Engstrom, for appellants; Austin L. Wyman, of counsel. Ernest C. Reniff, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    William C. Diercks, plaintiff-appellant, v. Julius Weiss and Herman Schuessler, Jr., defendants-appellees.
    Gen. No. 33,059.
    Opinion filed April 17, 1929.
    William T. Pridmore, for appellant. F. J. Karasek, for appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    A. O. Chapin, appellee, v. E. H. Sheppley and G. W. Sheppley, trading as Sheppley Brothers, appellants.
    Gen. No. 33,072.
    Opinion filed April 17, 1929.
    Ninian H. Welch and Sol A. Hoffman, for appellants. Jacob Levy, for appellee; J. M. Givin, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Morris F. Kraus, appellee, v. Reliance Company, Inc., appellant.
    Gen. No. 33,086.
    Opinion filed April 17, 1929.
    Kamfner, Horwitz, Halligan & Daniels, for appellant. Stone, McLaughlin, Adams & Weil, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Samuel G. Alport, appellee, v. Atlas Assurance Company, Ltd., of London, England, appellant.
    Gen. No. 33,095.
    Opinion filed April 17, 1929..
    Rehearing denied May 8, 1929.
    Hicks & Folonie, for appellant. Perlman, Goodman & Scolnik, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Ryner,

text:
    Edward M. Willoughby et al., appellees, v. James W. Stevens, appellant.
    Gen. No. 32,966.

      Opinion filed April 17, 1929.
    Rehearing denied May 1, 1929.
    Cassels, Potter & Bentley, for appellant; Ralph F. Potter, of counsel.
    Chapman & Cutler, for appellees; Charles M. Thomson, of counsel.
   Mr. Justice Ryner,

delivered the opinion of the court.


text:
    Chicago Flexible Shaft Co., complainant and appellee, v. Metal Polishers, Buffers & Platers Union, Local No. 6 et al., appellants.
    Gen. No. 33,008.
    Opinion filed April 17, 1929.
    Rehearing denied May 1, 1929.
    Charles H. Craig, for appellants. Otto A. Jaburek, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    The Bell Oil & Gas Company, appellee, v. Indiana Harbor Belt Railroad Company, appellant.
    Gen. No. 33,023.
    Opinion filed April 17, 1929.
    Glennon, Cary, Walker & Murray, for appellant; L. Beers-Jones, of counsel. John A. Bloomingston, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Silver Creek Coal Company, appellant, v. Aetna Mortgage & Security Company, trading as Geneva Apartments, appellee.
    Gen. No. 33,039.
    Opinion filed April 17, 1929.
    Robert C. Fergus, for appellant. Julian J. Luster and Harold Marovitz, for appellee; Julian J. Luster, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Frederick F. Watson, complainant-appellee, v. Ad-Photoscope Company, petitioner C. H. Mitchell, appellant. Lee M. Kitchen et al., defendants.
    Gen. No. 33,074.
    Opinion filed April 17, 1929.
    Charles H. Mitchell, pro se. Gallagher, Shulman & Abrams, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Mary Dibbell, appellee, v. Checker Taxi Company, appellant.
    Gen. No. 33,004.
    Opinion filed April 17, 1929.
    Cook & Albert, for appellant; Clyde C. Fisher, of counsel. Philip Rosenthal and Stuart B. Krohn, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Helen M. Higgins, appellant, v. Albie C. Dejmek, appellee.
    Gen. No. 33,053.
    Opinion filed April 17, 1929.
    Daniel M. Healy and Lee D. Mathias, for appellant. Darrow, Smith & Cronson, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Walter J. Petesch, trading as Walter J. Petesch & Company, appellee, v. Christ L. Carson, appellant.
    Gen. No. 33,113.
    Opinion filed April 17, 1929.
    Loucks, Eckert & Peterson, for appellant; W. W. Patterson, of counsel. Edward Sager and Coburn, Kearney & Coburn, for appellee; Marshall V. Kearney, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Joseph Kominsky and Charles Ross, trading as Economy Plumbing & Heating Company, appellees, v. B. Bortz, appellant.
    Gen. No. 33,132.
    Opinion filed April 17, 1929.
    Louis R. Connell, for appellant; B. M. Shaffner, of counsel. Joseph J. Levin, for appellees; B. M. Steiner, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Mike Ercegovac, attorney in fact for Manda Benakovics, plaintiff-appellee, v. Bernatt Popovics, defendant-appellant.
    Gen. No. 33,141.
    Opinion filed April 17, 1929.

      McElroy, Rollo, Ehrhardt & Quigley, for appellant; Walter T. Quigley, of counsel. Paul R. Skala, for appellee; Clyde C. Fisher, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Josef Wandas, plaintiff in error, v. Morris Gerber, defendant in error.
    Gen. No. 33,162.
    Opinion filed April 17, 1929.
    F. W. Jaros, for plaintiff in error. Max Schoenberg and W. F. Ader, for defendant in error; B. M. Shaffner, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    James H. Hooper, plaintiff-appellant, v. Antoni Mazur, defendant-appellee.
    Gen. No. 33,236.
    Opinion filed April 17, 1929.
    Rehearing denied May 1, 1929.
    Harold O. Mulks, for appellant. Joseph F. Elward, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Selma Crawford, plaintiff in error, v. Sanger Brown et al., defendants in error.
    Gen. No. 33,216.
    Opinion filed April 22, 1929.
    Charles P. R. Macaulay, for plaintiff in error. Frederick A. Brown and Clinton Merrick, for defendants in error; Wm. G. Worthey and J. Colburn Hamilton, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    F. E. Monville and S. H. Larson, trading as Monville & Larson, appellees, v. Angelona Buoscio and Filomena Buoscio, appellants.
    Gen. No. 33,234.
    Opinion filed April 22, 1929.
    Swalwell & Buoscio, for appellants; Felix M. Buoscio, of counsel. Abram Z. Zietlein, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Philip Thullen, appellant, v. Joseph J. Kenstovitz and Kazimer Kenstovitz, appellees.
    Gen. No. 33,333.
    Opinion filed April 22, 1929.
    Nelson & Florence, for appellant. Clarence S. Piggott, for appellees; Frank W. Steel, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois, on relation of Robert E. Bassett, appellant, v. William Hale Thompson et al., appellees.
    Gen. No. 33,148.
    Opinion filed April 22, 1929.
    Rehearing denied and opinion modified May 6, 1929.
    James J. O’Toole, for appellant; McMahon & Graber, of counsel. Samuel A. Ettelson, Corporation Counsel and James W. Breen, First Assistant Corporation Counsel, for appellees; Cora B. Hirtzel, Assistant Corporation Counsel, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    A. J. Schindler, appellee, v. William G. McNulty and John P. McNulty, trading as Wm. G. McNulty & Bros., appellants.
    Gen. No. 33,228.
    Opinion filed April 22, 1929.
    Adams & Hawley, for appellants. Walter J. Miller, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Sarah Perlin, appellee, v. Chicago Railways Company et al., operating as Chicago Surface Lines, appellants, and Julius Charnowsky.
    Gen. No. 33,279.
    Opinion filed April 22, 1929.
    George W. Miller and Arthur J. Donovan, for appellants; Frank L. Kriete and John E. Kehoe, of counsel. Paul G. Annes and Charles C. Spencer, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Julius Oppenheimer, appellant, v. Theodore Dannis, appellee.
    Gen. No. 33,321.
    Opinion filed April 22, 1929.
    Mary Lee Colbert and Charles H. Pease, for appellant. Harry D. Knight, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Dennis J. Carroll, appellee, v. Thomas J. Houston, et al., appellants.
    Gen. No. 33,340.
    Opinion filed April 22, 1929.
    Rehearing denied May 6, 1929.
    Samuel A. Ettelson, Corporation Counsel, James W. Breen, First Assistant Corporation Counsel and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants; Francis J. Vurpillat, of counsel on the brief. Benjamin C. Bachrach, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    John Uridel, appellee, v. H. W. Miller, appellant.
    Gen. No. 33,225.
    Opinion filed April 22, 1929.
    West & Eckhart, for appellant; Paul Hassell and Joseph D. Bryan, of counsel. No appearance for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Emma Palmer, appellee, v. The John Hancock Mutual Life Insurance Company, appellant.
    Gen. No. 33,294.
    O’Connor, P. J., dissents.
    Opinion filed April 22, 1929.
    Hoyne, O’Connor & Rubinkam, for appellant. Oscar Thonander, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    General Highways System, Inc., appellant, v. Bartles-Maguire Oil Company, appellee.
    Gen. No. 33,303.

      Opinion filed April 22, 1929.
    W. H. F. Millar, Benjamin Levering and Elmer H. Heitmann, for appellant. Vose & Vose, for appellee; John D. Clancy, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    James T. Horton, appellant, v. William M. Lynch, appellee.
    Gen. No. 33,355.
    Opinion filed April 22, 1929.
    Willis B. Wood and John Bruckman, for appellant. No appearance for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    B. K. Gibson, appellee, v. Hostelry Company of Kankakee et al., appellants.
    Gen. No. 33,400.
    Opinion filed April 22, 1929.
    Defrees, Buckingham, Jones & Hoffman, for certain appellant. James M. Gillespie, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Andrew J. Highland and William H. Doherty, defendants in error, v. Clyde A. Blair, plaintiff in error.
    Gen. No. 33,177.
    Opinion filed April 30, 1929.
    Rehearing denied and opinion modified May 16, 1929.
    Kern, Stiefel & Stiefel, for plaintiff in error; Charles W. Stiefel, Jr., of counsel. Ossian Cameron and Edward H. S. Martin, for defendants in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    In re Estate of Jens C. Hansen. Mrs. O. L. Stangeland, for the use of Mount Olive Cemetery Association, appellant, v. Johanna H. M. Hansen, executrix of the estate of Jens C. Hansen, appellee.
    Gen. No. 33,186.
    Opinion filed April 30, 1929.
    Martin Piepenburg, for appellant. Pritzker & Pritzker, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court,


author: Mr. Presiding Justice

text:
    Harry J. Fireman, appellee, v. Oliver F. Smith, appellant.
    Gen. No. 33,381.
    Opinion filed April 30, 1929.
    Ossian Cameron and Edward H. S. Martin, for appellant. Wolfsohn & Fireman, for appellee.
   Mr. Presiding Justice

Gridley delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Rush, defendant in error, v. Frances Baroch, plaintiff in error.
    Gen. No. 32,445.
    Opinion filed April 30, 1929.
    Louis Greenberg and Tyrrell A. Richardson, for plaintiff in error. Charles Center Case, Special State’s Attorney, for defendant in error. Grover C. Niemeyer, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Harvey B. Cross, for the use of R. T. Brackett, plaintiff in error, v. Oliver J. Chambers, defendant in error.
    Gen. No. 33,156.
    Opinion filed April 30, 1929.
    Stephen A. Cross, for plaintiff in error. Samuel H. Gilbert, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Everts Wrenn, appellant, v. William C. Pfeiffer, alias Charles Pfeiffer, appellee.
    Gen. No. 33,183.
    Opinion filed April 30, 1929.
    Bennett & Colbach, for appellant. Robert R. Mix, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Madison Sash & Door Company, appellee, v. Frank Porter Lumber Company and Frederick L. Brown, trading as Frederick L. Brown Lumber Company, defendants, on appeal of Frank Porter Lumber Company, appellant.
    Gen. No. 33,192.

      Opinion filed April 30, 1929.
    Rehearing denied May 13, 1929.
    Philip H. Treacy, for appellant. Joseph B. Lawler, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Paul W. Herbert, appellee, v. Edward Starczynski, appellant.
    Gen. No. 33,202.
    Opinion filed April 30, 1929.
    Edward N. Sherburne, for appellant. No appearance for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    A. W. Jensen, appellant, v. David A. Kase and Jean Kase, appellees.
    Gen. No. 33,217.
    Opinion filed April 30, 1929.
    Otto G. Ryden, for appellant. No appearance for appellees.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Schwarz Paper Company, appellant, v. Charles F. Gazley, trading as Central Paper Company, appellee.
    Gen. No. 33,226.
    Opinion filed April 30, 1929.
    Allen, Ward & Gallagher, for appellant; William H. Gallagher, of counsel. William A. Peterson and Reuben Freedman, for appellee; Abraham Miller, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Rock Rapids Creamery Company, for the use of Alex Getz, defendant in error, v. The New York Central Railroad Company, plaintiff in error.
    Gen. No. 33,022.
    Opinion filed April 30, 1929.
    Glennon, Cary, Walker & Murray, for plaintiff in error; L. Beers-Jones, of counsel. Wolfsohn & Fireman, for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Joseph Houdek, appellee, v. John Sturz, appellant.
    Gen. No. 33,061.
    Opinion filed April 30, 1929.
    McInerney & Power, for appellant; Joseph A. McInerney, Jr., of counsel. Edward H. Sherburne, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. John Wach, plaintiff in error.
    Gen. No. 33,182.
    Opinion filed April 30, 1929.
    Rehearing denied May 13, 1929.
    Benjamin E. Cohen, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; Henry T. Chace, Jr., and Edward E. Wilson, Assistant State’s Attorney, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.'


text:
    Foreman Trust & Savings Bank, administrator of the estate of Lucille Karbowski, plaintiff, v. Albert Valkima et al., defendants-appellees, on appeal of Smith-Lawson-Coambs Company, appellant.
    Gen. No. 33,199.
    Opinion filed April 30, 1929.
    Lee, Phelps & Cleland, for appellant. Murphy O. Tate, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Max Ekelmann, appellant, v. Edwin L. Duncan, appellee.
    Gen. No. 33,223.
    Opinion filed April 30, 1929.
    Kelly & Murphy, for appellant. Ritchie, Colby, Meyer & Brisgall, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Bella Schiff, defendant in error, v. Sarah Stamler and Phillip Stamler, plaintiffs in error.
    Gen. No. 33,263.

      Opinion filed May 20, 1929.
    Rehearing denied June 6, 1929.
    Samuel Micon, for plaintiffs in error. Martin M. Gross, for defendant in error.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Frank Kantor, for the use of L. T. Ellis Company, appellee, v. Empire Lumber Company, appellant.
    Gen. No. 33,282.
    Opinion filed May 20, 1929.
    Abraham Redman, for appellant. William S. Kleinman, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice O ’Connor

text:
    Christine Oeness, appellant, v. Michael Lunde, appellee.
    Gen. No. 33,309.
    Opinion filed May 20, 1929.
    Frank Moland, for appellant. John J. Sonsteby, for appellee; Joseph O. McKiernan, of counsel.
   Mr. Presiding Justice O ’Connor

delivered the opinion of the court.


text:
    John W. Follmer et al., appellants, v. Bernard W. Snow et al., appellees.
    Gen. No. 33,316.
    Opinion filed May 20, 1929.
    Michael B. Roderick, for appellants. Aaron Soble and Jacob Kosbie, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Max Levin, appellant, v. Chicago City Railway Company et al., appellees.
    Gen. No. 33,343.
    Opinion filed May 20, 1929.
    Alex Meyerovitz, for appellant. George W. Miller and Arthur J. Donovan, for appellees; Frank L. Kriete and Thomas J. Symmes, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Anthony A. Slakis, appellee, v. Joseph J. Krasowski, appellant.
    Gen. No. 33,352.
    Opinion filed May 20, 1929.
    Israel S. Berkman, for appellant. Slakis & Spence, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. John R. Grudzein, plaintiff in error.
    Gen. No. 33,378.
    Opinion filed May 20, 1929.
    Louis H. Dembo, for plaintiff in error. John A. Swanson, State’s Attorney, for defendant in error; Edw. E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Clara Busecke, defendant in error, v. May Casey and James Casey, plaintiffs in error.
    Gen. No. 33,136.
    Opinion filed May 20, 1929.
    Rehearing denied June 6, 1929.
    Charles J. Jenkins, for plaintiffs in error. Smietanka, Rickard & Poulton, for defendant in error; John J. Poulton, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    John S. Crain, appellee, v. Chicago & Northwestern Railway Company, appellant.
    Gen. No. 33,188.
    Opinion filed May 20, 1929.
    Nelson J. Wilcox, Nelson Trottman and I. C. Belden, for appellant. Jacob Berg, for appellee; Clarence M. Shapiro, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    W. Moore Thompson and W. A. Newman Dorland, appellees, v. Jacob Grossman, appellant.
    Gen. No. 33,306.

      Opinion filed May 20, 1929.
    ' Herman Drezner, for appellant; Z. H. Kadow and A. L. Gettys, of counsel, Holland F. FlaHavhan, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    S. Baer, appellee, v. Metropolitan Petroleum Company and Nat Rue, appellants.
    Gen. No. 33,349.
    Opinion filed May 20, 1929.
    Rehearing denied June 6, 1929.
    Myron E. Wisch, for appellants; Sidney R. Tarkoff and Nathan Einhorn, of counsel. Harry Z. and Bernard Perel, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Edmund O. Bill and Albert Rosenfield, appellants, v. Isaac Gittler, appellee.
    Gen. No. 32,942.
    Opinion filed May 20, 1929.
    Gallagher, Shulman & Abrams, for appellants; Vincent G. Gallagher, Meyer Abrams, Daniel E. Dever and Moses H. Kamerman, of counsel, Kaplan & Kaplan, for appellee; Jacob Kaplan and Kenneth B. Hawkins, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    In re Estate of Edwin B. Jennings, deceased, v. In re Appeal of Edward C. Koester, petitioner.
    Gen. No. 33,002.
    Opinion filed May 20, 1929.
    Hector A. Brouillet, for appellant; Clyde C. Fisher, of counsel. Frank W. Swett, Campbell & Fisher, Edgar D. Mohan, Ringer, Wilhartz & Hirsch and Castle, Williams, Long & Castle, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Sylvia R. Gerson, formerly Sylvia R. Mathes, appellee, v. Sam A. Mathes, appellant.
    Gen. No. 33,117.
    Opinion filed May 20, 1929.
    Sidney Neuman, for appellant; W. Clyde Jones, Jr., of counsel. Frank B. Teed, for appellee; Marlow J. Madden, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Aetna Acceptance Company, appellee, v. J. N. Shampay, appellant.
    Gen. No. 33,337.
    Opinion filed May 20, 1929.
    B. M. Shaffner, for appellant. William S. Kleinman, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    Second District.
    Dorothy L. Brumbach, plaintiff in error, v. Illinois Power & Light Corporation, defendant in error.
    Gen. No. 7,928.
    Opinion filed January 25, 1929.
    Rehearing denied June 18, 1929.
    Gleim & Colwell and Butters & Butters, for plaintiff in error. Duncan & O’Connor, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Presiding Justice Jones

text:
    Sam Weisman, appellant, v. Charles Brady et al., appellees.
    Gen. No. 7,957.
    Opinion filed January 31, 1929.
    Rehearing denied June 18, 1929.
    Connelly, Weld, Walker, Searle & Crampton, Sweeney, Eagle & McNamara, for appellants. J. B. & J. L. Oakleaf, for appellees. Charles Brady and Fred H. Railsback. Kenworthy, Dietz, Shallberg, Harper & Bennett, for appellee Otto Hill.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


author: Mr. Justice Jett

text:
    Arthur F. Filkins, appellant, v. Louis Mueller, Mayor of the City of Peoria et al., appellees.
    Gen. No. 7,929.
    Opinion filed February 15, 1929.
    Rehearing denied June 18, 1929.
    Geo. B. Sucher and Geo. J. Jochem, for appellant. Harry C. Heyl, Corporation Counsel and Robert E. Kavanaugh, City Attorney, for appellees.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Charles H. Davis, appellee, v. William Terman et al., appellants. William P. Beckers, appellee, v. William Terman et al., appellants.
    Gen. No. 7,896.

      Opinion filed March 20, 1929.
    John A. Mayhew, for appellants. Harry S. Streeter, for appellee Charles H. Davis. John H. Beckers, for appellee William P. Beckers.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Albert C. Hakin, appellee, v. Hugo Karstens, appellant.
    Gen. No. 7,987.
    Opinion filed March 20, 1929.
    Opinion modified and rehearing denied June 18, 1929.
    George W. Thoma, for appellant; E. Marshall Amberg, of counsel. Samuel J. Howe, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Alexander R. Duncan et al., appellants, v. A. H. Bennett, appellee.
    Gen. No. 7,952.
    Opinion filed April 8, 1929.
    Rehearing denied June 19, 1929.
    Herbert J. Ferguson and Garrett & Fell, for appellants. R. E. Beckington, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Andrew Russell, auditor, appellee, v. Farmers State & Savings Bank (Robert B. Hammann, petitioner), appellant.
    Gen. No. 8,012.
    Opinion filed April 8, 1929.
    Hunter & Minor, for appellant. Harry S. Streeter, pro se and J. Bert Miller, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court,


text:
    Fritz Ellison and Esther Ellison, appellants, v. Erick Ellison, administrator et al., appellees.
    Gen. No. 7,951.
    Opinion filed April 22, 1929.
    Hall & Dusher, for appellants. Welsh & Welsh, for appellees.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Peter Crosetto, defendant in error, v. James Cherry, plaintiff in error.
    Gen. No. 8,013.
    Opinion filed April 29, 1929.
    Watts A. & Carey R. Johnson and Mann & Coleman, for plaintiff in error; Oliver D. Mann, of counsel. Paul D. Perona, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    A. H. Mammen, appellant, v. H. A. Millard et al., appellees.
    Gen. No. 8,018.
    Opinion filed April 29, 1929.
    Rehearing denied June 18, 1929.
    Schiepan & Watters, Ridgely So Ridgely and Charles Williams, for appellant. LeForgee, Black & Samuels, Miller, Elliott & Westervelt and Francis X. Busch, for appellees.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Dan Saltsman, appellee, v. The Home Insurance Company, appellant.
    Gen. No. 7,993.
    Opinion filed May 6, 1929.
    Woodward, Hibbs & Pool, for appellant; E. L. Snider, of counsel. Richolson, Armstrong & O'Meara, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Hal Campbell, appellant, v. Cologero Digiovanni, appellee.
    Gen. No. 7,965.
    Opinion filed May 6, 1929.
    B. A. Knight, for appellant. No appearance for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Frank P. Schmidt et al., appellants, v. Albert Randall, appellee.
    Gen. No. 7,977.
    Opinion filed May 6, 1929.
    J. W. Maple and Weil, Bartley & Weil, for appellants. Robert N. McCormick and Jack, Irwin & Jack, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Tador Kapinsky, defendant in error, v. Anna Hlawaty, plaintiff in error.
    Gen. No. 7,945.
    Opinion filed May 9, 1929.
    John J. Massieon and Butters & Butters, for plaintiff in error. J. E. Malone, Jr., for defendant in error.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Amos Cadwell, appellee, v. J. E. Maley, appellant.
    Gen. No. 7,988.
    Opinion filed May 9, 1929.
    Rehearing denied June 18, 1929.
    ' J. E. Maley, pro se and Marshall, Lewis & Thompson, for appellant; S. M. Meadows, of counsel. R. D. Robinson, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    John Freeman and Emma Freeman, appellees, v. Sinclair Pipe Line Company, appellant.
    Gen. No. 8,010.
    Opinion filed May 9, 1929.
    Robert E. Larkin, for appellant. Arthur H. Shay, for appellees.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Fourth District.
    Industrial Acceptance Corporation, appellee, v. Illinois Bond & Investment Company, appellant.
    Opinion filed February 1, 1929.
    Rehearing denied March 29, 1929.
    Holt & Holt, for appellant. Wilson & Wilson, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.