author: Mr. Justice Huffman

text:
    Irene Grewenig, Appellee, v. American Baking Company, Appellant.
    Gen. No. 9,241.

      Opinion filed February 15, 1938.
    Donovan, Bray & Gray, of Joliet, for appellant.
    Pence B. Ore, of Joliet, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Suit was commenced by appellee against the Mariner Baking Company, an Illinois corporation, in April, 1932. Praecipe for summons was filed by plaintiff directing the clerk to issue summons in the case against the Mariner Baking Company, to the damage of the plaintiff of $5,000. Pursuant thereto, summons was issued under date of April 22, 1932. This summons was returned by the sheriff showing service on the defendant through George Mariner, vice-president. The declaration was filed on April 22,1932. It charged the defendant with being engaged in the manufacture and sale of bread to the public and to retail stores for the purpose of general distribution; that the defendant had negligently caused a certain loaf of bread to be manufactured and sold to a retail dealer for the purpose of resale to the public, which contained broken particles and fragments of glass; that the plaintiff not knowing the character of the loaf of bread, purchased same, and while at all times in the exercise of due care, suffered injury from attempting to eat a portion of said bread.

Demurrer was filed to the declaration, which was sustained. Subsequently, the plaintiff filed an amended declaration on August 4, 1932, against the same defendant. Demurrers to this declaration were overruled. On December 7, 1933, the defendant filed the general issue and three special pleas. The special pleas disclosed that the Mariner Baking Company was not engaged in manufacturing bread at the time in question and approximately 16 months prior to the time of the alleged injury, had sold its business to the American Baking Company, a Delaware corporation (appellant herein), and that appellant had made and sold the bread upon which the complaint was based. On April 23, 1934, plaintiff joined issue on the general issue and filed motion to strike the special pleas. This motion was denied. On April 25, 1934, plaintiff obtained leave to amend the declaration by interlineation and by adding the appellant as an additional party defendant. A request for summons was filed and summons issued against appellant. This summons was served on appellant on April 27, 1934, by the sheriff through George Mariner as the registered agent for appellant. On May 5, 1934, plaintiff filed replications to the special pleas of the Mariner Baking Company, to which replications said company filed its demurrer. On June 6, 1934, appellant filed motion to dismiss the complaint as to it, and also filed pleas of the statute of limitations. Subsequently, and on December 6, 1934, the plaintiff made motion to withdraw the amendments to the declaration made under leave granted April 25, 1934, whereby appellant was made an additional party defendant, and to cancel and vacate the summons issued, together with the return thereon, and all pleadings filed pursuant thereto. At this time, plaintiff asked leave to amend the original summons issued on April 22, 1932, and the sheriff’s return thereon, by writing therein “American Baking Company” wherever the name of the original defendant “Mariner Baking Company” appeared, and also for leave to likewise amend the declaration. In accord with this motion by plaintiff, the court on December 8, 1934, entered its order vacating the summons issued pursuant to the order of April 25, 1934, and ordered stricken all pleadings which had been filed by app el-' lant following the service had upon it under the aforesaid summons. The Mariner Baking Company was dismissed from the case and appellant retained as the sole defendant by virtue of the above order of the trial court permitting the original summons of April 22, 1932, to be amended by inserting therein the American Baking Company in lieu of the defendant, the Máriner Baking Company.

Appellant then entered its limited and special appearance for the purpose of questioning the jurisdiction of the court, and filed its plea in abatement to such effect. The plaintiff demurred to the plea in abatement, which demurrer was sustained. The cause was tried by jury and a verdict for $500 returned in favor of plaintiff. The defendant filed its motion in arrest of judgment, among other things setting up that it appeared from the record that service of process was never had upon it under the summons of April 22,1932, and therefore it was not in court and not subject to the jurisdiction of the court. This motion was overruled, and judgment entered on the verdict in favor of plaintiff. The defendant prosecutes this appeal.

This case comes to this court solely upon the common law record. Appellant urges that when appellee on April 25, 1934, first obtained leave of court to amend her declaration by adding it as a new party defendant, procured an order for a summons, and obtained service upon appellant thereunder, that upon service of this summons appellant for the first time was brought into this case. It then urges that these acts of plaintiff not occurring until more than two years after the injury complained of, came too late, and that plaintiff is barred by the statute of limitations. Appellant filed pleas to this effect. After these pleas were.filed, the plaintiff seeking to retract from her position resulting from the order of April 25, 1934, obtained the leave of court above mentioned, to withdraw the first amendments to the declaration, to cancel and vacate the order for issuance of summons, to vacate the summons and return thereon, and to strike all pleadings filed pursuant to process issued, by virtue of the order of the court of April 25, 1934. Plaintiff obtained leave to effect these changes by her motion filed on December 6, 1934.

Appellant urges that the above action of plaintiff taken on December 6, 1934, in dismissing it from the suit as a defendant under the summons obtained by the order of April 25, 1934, and the attempt to bring it in as a party defendant by substituting its name for that of the Mariner Bating Company, in the original summons issued on April 22, 1932, was an attempt to evade the force and effect of the statute of limitations, and to unlawfully confer jurisdiction of appellant upon the court. Appellant urges that the order of the court granting such leave was erroneous. It can fairly be said that appellant bases this appeal upon such action of the court, and challenges the right of appellee to have it substituted in the original summons and the return, in lieu of the defendant which was named therein.

It is almost a universal rule, at law as well as in equity, that a court may allow other persons than those before the court, to come in or to be brought in as parties, to the end that substantial justice may be done. A new party defendant may be brought in under compulsion, while a new party plaintiff usually must come in voluntarily. The right to bring in new parties is in many States governed by statute. Statutes of the different jurisdictions are in varying terms. However, their purpose is that new parties may be added as justice may require in order that a determination of the controversy may be fully and finally made. Section 149, ch. 110, Smith-Hurd 1935; Ill. State Bar Stats. 1935, ch. 110, ft 153; Jones Ill. Stats. Ann. 104.025, provides for the bringing in of new parties defendant. The mode generally prescribed for bringing in new parties, after the court has made an order to such effect, appears to be by amending the complaint by adding the new parties together with such other amendments with respect to the allegations thereof as are necessary, and unless such new parties defendant enter an apppearance, to serve them with summons in the manner prescribed by statute. An amendment bringing in new parties defendant, must be considered with a view to the pending litigation. Failure to join parties defendant in a tort action is not the same as omitting the name of a defendant by mistake or inadvertence, who is a joint obligee on a contract declared upon in an action ex contractu. Ordinarily in tort actions against one defendant where the tort may have been committed by several, the defendant cannot plead the nonjoinder of the others either in abatement or in bar, as the plaintiff has the right to sue any one or more joint tort-feasors. As a general rule, a party cannot be brought in as a party defendant in a tort action, where the statute has run in his favor at the time of application to add him, notwithstanding the fact that the action against the original defendant was commenced within the prescribed time. And in this respect the rule is well settled that as against new parties defendant, the statute of limitations continues to run in their favor until they are thus made parties. Hacken v. Isenberg, 288 Ill. 589, 595, 124 N. E. 306; Glover v. Insull, 213 Ill. App. 268; Proctor v. Wells Bros. Co., 181 Ill. App. 468 (aff’d 262 Ill. 77, 104 N. E. 186); Bennett v. Wilmington Star Min. Co., 119 Ill. 9.

Appellee relies upon the case of the Pennsylvania Co. v. Sloan, 125 Ill. 72. This was an action where the plaintiff brought suit against the Pittsburgh, Fort Wayne & Chicago Railroad Company, and later obtained leave of court to amend by substituting the Pennsylvania Company in place of the Pittsburgh Company. It appears that the Pennsylvania Company was operating the Pittsburgh, Fort Wayne & Chicago Railroad Company, and appeared by its attorneys and without pleading in abatement pleaded to the merits. It was said in that case (p. 77) that, “where the real party in interest and the one intended to be sued is actually served with process in the cause, even though under a wrong name, he must take advantage of the misnomer by plea in abatement in such suit; and, if he does not, he will be concluded by the judgment or decree rendered the same as if he were described by his true name. ’ ’

Appellee urges that by amending her declaration, the original summons of April 22, 1932, together with return thereon, by writing therein the American Baking Company in lieu of the Mariner Baking Company, pursuant to leave of court had on December 8, 1934, that by such amendments she was merely substituting the correct name of the defendant. She urges advantage of the rule that where suit is brought against and service had upon the right defendant but by a wrong name, an amendment substituting the defendant’s correct name, does not amount to substituting a new defendant. In support of this contention appellee relies upon the case of the Pennsylvania Co. v. Sloan, supra, and Ferenc v. Walden W. Shaw Auto Livery Co., 210 Ill. App. 340.

It appears in the case of Proctor v. Wells Bros. Co., supra, that the appellant was made a new party defendant after the statute of limitations had tolled, and the suit dismissed as to the original defendant. The new defendant filed the general issue and pleas setting up the statute of limitations. It was there held that the latter pleas were a bar to recovery. Although the two different corporations in that case had similar names, yet it was there held that where one of them was named as defendant and duly served with summons, the suit was not thereby commenced against the other so far as the statute of limitations was concerned, until such other corporation was brought in by summons in due course, and that it was immaterial that the plaintiff intended to sue such other corporation in the first instance, as the circumstances disclosed that it was a case of mistaken identity as to the proper defendant. We thus see that the rule urged by appellee of amending process and pleadings by substituting a new defendant in place of the one named, upon the theory that the proper defendant was intended to be sued, but was sued by wrong name, is subject to application according to the facts in the particular case.

Appellee further urges sec. 4 of the Amendments Act (ch. 7, Ill. State Bar Stats. 1935, Ü4; Jones Ill. Stats. Ann. 107.029), which provides that returns by the sheriff may be amended in matter of form according to the truth of the matter. It appears that the sheriff’s return to the summons issued under date of April 22, 1932, spoke the truth, as it showed service upon the defendant named therein. It necessarily follows that the sheriff served the defendant that he intended to serve. There is no similarity between the names of the two corporations involved in this case. They were separate corporate entities. The fact that George Mariner was an officer of the Mariner Baking Company, an Illinois corporation, and served as the registered agent for the American Baking Company, a Delaware corporation, should not alter the case. We know of nothing to prevent the same individual from serving as the registered agent of more than one corporation, or from being an officer in more than one corporation.

Appellee had notice by pleas filed by the Mariner Baking Company that it was not engaged in the manufacture of bread at the time in question, and that it had sold its business to appellant. It was not until April 23, 1934, that appellee replied to these pleas by joining issue on the general issue and filing motion to strike the special pleas. After her motion to strike the special pleas was denied, appellee obtained the order of April 25, 1934, to amend the declaration by adding appellant as an additional new party defendant, and filed a request for summons for appellant as an additional party defendant. This summons was issued and served on appellant on April 27, 1934, through its registered agent. The appellant thereupon filed its motion to dismiss the suit as to it, together with pleas going to the statute of limitations. Appellee during all this time retained the Mariner Baking Company as a defendant in the case. It was not until December 6, 1934, that appellee made motion to withdraw the amendments to the declaration under leave of court granted April 25, 1934, whereby appellant had been made an additional party defendant, and on the same day secured leave of court to vacate the amendments and summons which had brought appellant into the case as an additional party defendant, and also obtained leave to amend the original summons of April 22, 1932, and return, by changing the name of the defendant named therein, from the Mariner Baking Company, to that of appellant, American Baking Company. As previously stated, pursuant to this leave granted appellee, the court vacated its order of April 25, 1934, vacated all process issued thereunder, and struck all pleadings which had been filed following the bringing in of appellant by virtue of such order. Whereupon appellee dismissed the Mariner Baking Company from the case and sought to retain appellant as the sole defendant.

We are of the opinion that the case of Proctor v. Wells Bros. Co., supra, is controlling in this case. The circumstances are quite similar in many respects. With reference to the position of the plaintiff in that suit, it is stated on p. 80 of the opinion, “when the plea was filed denying that the defendant was in possession or control of the premises, machinery, appliances or persons alleged in the declaration, the plaintiff in error continued to insist that the defendant was in such possession and control and was the company by which he was employed. . . .” The appellee in this case continued to insist that the Mariner Baking Company was the defendant that manufactured and sold the bread. She joined issue on the general issue and filed motion to strike the special pleas, which set out that the appellant owned and was operating the business at the time complained of. Appellee obtained leave of court to make the appellant an additional party defendant. Appellant was duly brought in as a new party defendant» by the service of summons in the manner prescribed by statute. The Mariner Baiting Company was retained in the case as codefendant. It was not until after appellant had filed its pleas to the statute of limitations that appellee sought to substitute it as the defendant in the original summons, which had issued nearly three years before. Under the circumstances in this case, we do not consider that appellee is in a position to avail herself of the rule urged. There is an inherent incompatibility between the position actually taken by appellee and that which she claims she intended to take. Her acts as reflected by the record do not indicate that she intended in the first instance to sue appellant. As in effect stated in the Proctor v. Wells Bros. Co. case, supra (p. 80), the appellee may have been clearly mistaken as to the proper defendant’s identity, but she was just as clearly insisting on such defendant’s liability. She did not retreat from this position until after appellant had been brought in as an additional party defendant in the manner provided by statute, and had filed its pleas to the statute of limitations.

To permit a plaintiff to sue a named defendant in a tort action and to insist upon such defendant’s liability until a time when the statute of limitations had run, and then to bring in an entirely new defendant, by substituting such new defendant’s name in the original summons in lieu of the old defendant, would be to render nugatory the statute with respect to the limitation of actions.

Since the original defendant, the Mariner Baking Company, was dismissed from the suit more than two years after the bringing of the action, and since the statute of limitations appears by the record to have tolled with respect to appellant, the judgment of the court herein is reversed.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Clair Coleman, Appellee, v. Edwin Hait, Appellant.
    Gen. No. 9,260.
    Opinion filed February 15, 1938.

      Castle & Anderson, of Sycamore, for appellant.
    Alexander J. Strom and Owen M. Johnson, both of Belvidere, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This is a personal injury suit brought by appellee against appellant for injuries to person and property, growing out of a collision between a truck driven by appellee and a passenger car driven by appellant. The case was tried before the court without a jury, and resulted in a finding in favor of appellee, assessing $1,000 damages for his personal injuries and $500 for his property damages. Judgment was entered against appellant for $1,500. He brings this appeal therefrom and assigns two errors: First, that the evidence shows contributory negligence on the part of plaintiff, and second, that the court erred in admitting in evidence plaintiff’s exhibits 1 and 2.

The accident happened on July 1, 1935, at about five o’clock in the afternoon, at the intersection of two gravel roads. Appellee was driving east and approaching the above intersection. Appellant was driving-north and approaching said intersection. Appellee was engaged in transporting- peas to the Sycamore Preserve Works. He was driving a truck weighing 6,200 pounds, which was loaded with approximately 6,000 pounds of peas. Harry B. Wessell was riding with appellee. He was sitting- to the right of appellee, which was on the side from which appellant was approaching. The truck, and the Chevrolet automobile driven by appellant, collided in the intersection of these two roads. The impact rolled the truck over and turned it end for end. The appellee sustained head injuries, a concussion of the brain, fracture of the fourth vertebra, and fractured ribs, together with various other cuts and bruises such as usually are incident to accidents of this character. In addition to the personal injuries received were those to the truck.

There were no witnesses to the accident except appellant, appellee, and the man who was riding with him. According to the testimony on behalf of appellee, appellant’s car was approximately 350 feet south of the intersection at the time appellee’s truck approached same; that the truck was being, operated at 20 miles an hour; that there was no obstruction to the view of either appellant or appellee; that the truck entered the intersection and was proceeding across same; that appellant’s car was traveling between 60 and 65 miles per hour and continued at such rate of speed until it reached the intersection where it collided with appel-lee’s truck, after the truck had passed the center line of the road upon which appellant was traveling. It further appears from the evidence offered on behalf of appellee that at the time of the collision the front portion of his truck had reached the east fence line and the rear end of his truck was four or five feet east of the center line of the road upon which appellant was traveling. Appellant confined his testimony solely to the question of speed, stating that at no time did he operate his automobile faster than 35 miles an hour. There was no evidence concerning the accident except that of appellee and Mr. Wes sell.

Appellant relies upon the statutory provision regarding cars approaching from the right, to establish appellee’s contributory negligence (ch. 95a, Cahill’s Ill. St. 1933, U 34). The rule that one approaching the intersection of highways may assume that persons approaching such intersection from his left will observe the law and respect his right of way, is subject to a reasonable application. One may not invoke this rule in defense of his own wrongful conduct. Therefore, the rule has been generally recognized as being subject to application according to the facts and circumstances appearing in the particular case. Salmon v. Wilson, 227 Ill. App. 286; Darling & Co. v. Yellow Cab Co., 238 Ill. App. 326; Riddle V. Mansager, 254 Ill. App. 68. Thus, the situation resolves itself into one of fact. Darling Co. v. Yellow Cab Co., supra; Heidler Hardwood Lumber Co. v. Wilson & Bennett Co., 243 Ill. App. 89; Schwartz v. Lindquist, 251 Ill. App. 320.

Appellant’s first assignment of error which raises the question of contributory negligence on the part of appellee by not yielding the right of way, presents a question of fact. Whether appellee was in the exercise of due care, and whether appellant was guilty of negligence, are questions growing out of the situation of the parties immediately prior to and at the time of the accident. These were matters for the consideration and determination of the trial judge. They included the question whether appellant’s car was far enough away from the intersection when appellee entered same, so that if appellant had operated it with due care no collision would have occurred. From an examination of the record we cannot say that his finding in favor of appellee on these questions is against the manifest weight of the evidence.

The second point urged by appellant for reversal is the admission in evidence of plaintiff’s exhibits 1 and 2. These were X-ray pictures taken of his spine going to show a fracture of the fourth cervical vertebra. Appellant complains of the admission thereof on the ground that, no sufficient foundation was laid therefor. These exhibits tended to show only the nature and extent of a part of appellee’s injuries, and were corroborative of the doctor’s testimony, to which no objection was made. They had to do with the question of damages. Appellant makes no complaint that the damages awarded are excessive. Neither do we find any objection to the introduction of the exhibits, appearing in the abstract. One who seeks a' reversal should by the abstract fully present the errors relied upon. Village of Barrington v. Lageschulte, 323 Ill. 343; O’Meara v. Chicago, M., St. P. & P. R. Co., 367 Ill. 82. Under such circumstances the alleged error is not open for review. Welch v. City of Chicago, 323 Ill. 498, 501, 502. Furthermore, where a cause is tried before the court, without jury, the court is presumed not to have considered any incompetent evidence that might have been received. Maton Bros., Inc. v. Central Ill. Pub. Serv. Co., 356 Ill. 584; Knight v. Collings, 227 Ill. 348. There is sufficient competent evidence in the record here to sustain the judgment rendered.

The trial court heard the witnesses and had the opportunity to observe them while testifying. It is not within the province of a court of review to substitute its findings of fact for that of the trial court, unless such findings appear to be manifestly against • the weight of the evidence. Hall v. Pittenger, 365 Ill. 135; Alton Banking & Trust Co. v. Alton Bldg. & Loan Ass ’n 289 Ill. App. 177, 186.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Hebei

text:
    First District.
    In re Estate of Catherine McKeogh, deceased. Anna Atkinson, appellee, v. Michael J. Kilbride, appellant.
    Gen. No. 39,411.
    Opinion filed December 15, 1937.
    Rehearing denied December 28, 1937.
    Charles P. R. Macaulay, for appellant.
    Hubert L. Steed and Werner H. Sommers, for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Trust Company of Chicago, administrator of estate of Clarence Hawkins, deceased, appellant, v. Frank McDermott, trading as McDermott Brewing Company et al., appellees.
    Gen. No. 39,463.
    Opinion filed December 15, 1937.
    Zedrick T. Braden, Houston H. Hall and George S. Barnes, for appellant.
    Rosen, Francis & Rosen, for appellees;
    Ralph Rosen and Frederic L. Goff, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Mary S. Hight et al., appellees, v. City of Chicago, appellant.
    Gen. No. 39,555.
    Opinion filed December 15, 1937.
    Barnet Hodes, Corporation Counsel, for appellant;
    John W. McCarty, Alexander J. Resa and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
    James W. Breen, for appellees.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Jesse W. Coleman et al., appellees, v. Clyde F. Swanson et al., appellants.
    Gen. No. 39,585.
    Opinion filed December 15, 1937.
    Earl B. Dickerson, for appellants.
    No appearance for appellees.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    Lammert and Mann Company, appellee, v. Individual Towel and Cabinet Service Company, appellant.
    Gen. No. 39,353.
    Opinion filed December 15, 1937.
    Hector A. Brouillet, for appellant;
    Abraham Miller, of counsel. Loeseh, Scofield, Loeseh & Burke, for appellee;
    Clement L. Harrell, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. Myron S. Willens, appellant.
    Gen. No. 39,414.
    Opinion filed December 15, 1937.
    Levinson & Levinson, for appellant. Barnet Hodes, Corporation Counsel, for appellee;
    Joseph F. Grossman, First Assistant Corporation Counsel, Alexander J. Resa and Arthur Chittiek, Assistant Corporation Counsel, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Morton Kallis, appellee, v. Universal Guide Corporation, defendant below. Sol D. Golby and John N. Vogelsang, appellants.
    Gen. No. 39;467.
    Opinion filed December 15, 1937.
    Benjamin J. Schultz aild Wind & Wind, for appellants;
    Benjamin J. Schultz, of counsel.
    Albert B. Fritzshall, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice Denis E. Sullivan

text:
    Samuel Kersten, trading as Eskay Valve Company, appellee, v. James B. Clow and Sons, appellant.
    Gen. No. 39,524.
    Opinion filed December 15, 1937.
    Rehearing denied December 28, 1937.
    Frisch & DeHaan, for appellant;
    Samuel J. Nordorf, of counsel. Sonnensehein, Berkson, Lautmann, Levinson & Morse, for appellee;
    Jesse H. Brown, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Friend

text:
    Stella Mitchell, appellant, v. William A. Wyrzkowski et al., defendants. Cicero Trust and Savings Bank and Charles H. Albers, appellees.
    Gen. No. 38,933.
    Opinion filed December 31, 1937.
    Earl J. Walker, for appellant. Schnackenberg, Hansen & Towle, for appellees;
    Elmer J. Schnackenberg and Roland Towle, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    A. W. Froehde, appellant, v. George Hopfner et al., defendants. Belmont Realty Company, appellee.
    Gen. No. 39,728.
    Opinion filed December 31, 1937.
    Albert W. Froehde, for appellant.
    Downs, MeGoorty & Howe, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    Thomas Croppe and Joseph Malin, plaintiffs, v. Central Illinois Produce Company, defendant. Joseph Malin, appellee, v. Central Illinois Produce Company, appellant.
    Gen. No. 39,628.
    Opinion filed December 31, 1937.
    Guy C. Guerine, for appellant.
    Thomas M. Morris, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    John Filko, trading as F and B Manufacturing Company, appellee, v. De Graff, Ltd., appellant.
    Gen. No. 39,648.
    Opinion filed December 31, 1937.
    Clarence W. Shaver, for appellant;
    Louis E. Levinson, of counsel.
    Louis J. Jacobson, for appellee;
    Frank Friedman, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Louis M. Proesel, appellee, v. Commercial Casualty Insurance Company, appellant.
    Gen. No. 39,666.
    Opinion filed December 31, 1937.
    Cochrane & George, for appellant.
    Hayes & Bemus, for appellee;
    William J. Bemus, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Norris Ward Coal Company, appellee, v. Louis M. Proesel, appellant.
    Gen. No. 39,668.
    Opinion filed December 31, 1937.
    Hayes & Bemus, for appellant;
    William J. Bemus, of counsel.
    Cochrane & George, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Ralph Isham et al., appellees, v. Charles Keer, appellant.
    Gen. No. 39,743.
    Opinion filed December 31, 1937.
    Folsom, Grossberg, Butler & Brill, for appellant.
    Adams, Adams & White, for appellees;
    J. Thompson White, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice John J. Sullivan

text:
    Nahigian Brothers, Inc., appellant, v. Rug Service, Inc. et al., appel-lees.
    Gen. No. 39;214.

      Opinion filed December 31, 1937.
    Gariepy & Gariepy, for appellant;
    Fred A. Gariepy, Victor P. Frank and Owen Rail, of counsel. Butz, Von Ammon & Marx, for appellees;
    Frederic E. Von Ammon, Frederick Z. Marx and Robert J. Colson, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    Harriet Musser, appellee, v. City of Chicago, appellant.
    Gen. No. 39,592.
    Opinion filed January 10, 1938.
    Rehearing denied January 24, 1938.
    Barnet Hodes, Corporation Counsel, for appellant;
    Alexander J. Rosa, Arthur Chittiek and Adam E. Patterson, Assistant Corporation Counsel, of counsel. Francis J. Gariepy, for appellee;
    Charles E. Mallon, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellee, v. Adolph Cohen et al. Mark L. Landeker, appellant.
    Gen. No. 39,620.
    Opinion filed January 10, 1938.
    Aaron Soble, for appellant;
    Max Chill, of counsel.
    Miller, Gorham, Wescott & Adams and D ’Ancona, Pllaum & Kohlsaat, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    In re Estate of Andrew Leonard Johnson, deceased. Helen W. Johnson, appellant, v. Joseph O. Grant, appellee.
    Gen. No. 39,712.
    Opinion filed January 10, 1938.
    Rehearing denied January 24, 1938.
    Robert H. Holmes, for appellant.
    Arthur Abraham, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice O ’Connor

text:
    People of the State of Illinois, defendant in error, v. Ben Stein, plaintiff in error.
    Gen. No. 39,742.

      Opinion filed January 10, 1938.
    Louis Steinberg and Reuben Freedman, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice O ’Connor

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Anna R. Leslie, appellant, v. A. R. E. Wyant and Louise H. Wyant, appellees.
    Gen. No. 39,626.
    Opinion filed January 10, 1938.
    Heber T. Dotson, for appellant.
    Raymond A. Kinzie, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Jan Blaha, appellee, v. Matthew J. Turk, appellant.
    Gen. No. 39,635.
    Opinion filed January 10, 1938.
    Walter True, for appellant.
    William S. Kleinman, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Vehon Building Corporation, appellant, v. Homer S. Warren, appel-lee.
    Gen. No. 39,660.
    Opinion filed January 10, 1938.
    Rehearing denied January 24, 1938.
    Kelly & Collier, for appellant;
    James J. Kelly, J. Robert Cohler and Ellsworth E. Richardson, of counsel.
    Louis T. Herzon, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Joe Kaminskas et al., appellees, v. Frank Cepauskis et al., appellees. Appeal of George B. Archer, appellant.
    Gen. No. 39,679.
    Opinion filed January 10, 1938.
    George Gillette, Charles F. Grimes and Samuel Petersen, for appellant.
    Olis, Vas alíe & Lapinskas, for appellee Anna Cepauskas.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Fred C. Strigl, appellant, v. Ciro Landise et al., appellees.
    Gen. No. 39,709.
    Opinion filed January 10, 1938.
    Marx Loehwing and G. A. Buresh, for appellant.
    Jaffe & Green, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. Adam Boczkowski, for and on behalf of Albert Boczkowski, minor, appellant, v. Stanley Bogdan and Mary Boczkowski Bogdan, appellees.
    Gen. No. 39,730.
    Opinion filed January 10, 1938.
    Grenville Beardsley, for appellant.
    MeClanahan & MeClanahan, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    City of Evanston, appellee, v. Al Ware, appellant.
    Gen. No. 39,739.
    Opinion filed January 19, 1938.
    Erwin F. Stolle, for appellant.
    Edward T. Arnold, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Rehearing denied January 24, 1938.
    Rehearing denied January 24, 1938.


text:
    Leo Daracius, administrator of estate of Leon Daracius, deceased, appellee, v. Alzbieta Klimowicz, appellant.
    Gen. No. 39;786.
    Opinion filed January 19, 1938.
    John B. Borden, for appellant;
    Clarence T. Morse, of counsel.
    No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    John M. Hoffman, trading as Hoffman Electric Company, not Inc., appellant, v. Lake View Avenue Building Corporation et al., appellees.
    Gen. No. 39,579.

      Opinion filed January 10, 1938.
    Rehearing denied January 24, 1938.
    A. M. Fitzgerald and Harold V. Snyder, for appellant;
    Harold V. Snyder, of counsel.
    Pruitt & Grealis and MeNab, Holmes & Long, for appellees;
    Allan W. Cook and Lorentz B. Knouff, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Mary McLaughlin, appellee, v. S. S. Kresge Company and R. E. Sieber, appellants.
    Gen. No. 39,595.
    Opinion filed January 10, 1938.
    Robertson, Crowe & Spence, for appellants;
    Burt A. Crowe, of counsel.
    Perry B. Brelin, for appellee;
    Floyd E. Britton and George Landon, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Alexander Sparks et al., v. Chicago Surface Lines. People of the State of Illinois, defendant in error, v. Robert Reeves, plaintiff in error.
    Gen. No. 39,614.
    Opinion filed January 10, 1938.
    Maurice R. Kraines, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Matchett

delivered the opinion of the court.


author: .Mr. Justice Matchett

text:
    William J. McCarthy for use of Margaret M. McCarthy, appellee, v. Chicago Title and Trust Company et al., defendants below. Appeal of William J. Fortune, appellant.
    Gen. No. 39,623.
    Opinion filed January 10, 1938.
    Rehearing denied January 24, 1938'.
    McCarthy & Toomey, for appellant;
    John E. Toomey and James C.
    O’Brien, Jr., of counsel.
    Sidney J. and Arthur Wolf, for appellee Margaret M. McCarthy.
   .Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    John Kemper, appellee, v. Celina Fournier, executrix of estate of Palite Gadbois, deceased, appellant.
    Gen. No. 39,667.
    Opinion filed January 10, 1938.
    Trainor & Trainor, for appellant;
    John C. Trainor, of counsel.
    No appearance for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Steve Gembala, appellant, v. St. Floryan Building and Loan Association, appellee.
    Gen. No. 39,727.
    Opinion filed January 10, 1938.
    Albert Martin, for appellant.
    Peden, Melaniphy, Ryan & Andreas, for appellee;
    John C. Melaniphy and Gerald Ryan, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. John S. Rusch, appellee, v. Joseph Esposito et al., appellants.
    Gen. No. 39,810.
    Opinion filed January 31, 1938.
    Joseph T. Harrington and John T. Dempsey, for appellants;
    Joseph T. Harrington, of counsel.
    Thomas J. Courtney, State’s Attorney, for appellee;
    John E. Cashen, Jr., of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    Milton W. Brown and Martha G. Brown, appellees, v. A. C. Woodcock, appellant. Hattie Woodcock and A. C. Woodcock, appellants, v. Milton W. Brown, appellee.
    Gen. No. 39,617.
    Opinion filed January 31, 1938.
    William C. Greatman, for appellants;
    Abraham W. Brussell, of counsel.
    John A. Bloomingston, for appellees.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. John S. Rusch, appellee, v. Salvatore Montesano et al., appellants.
    Gen. No. 39,798.
    Opinion filed January 31, 1938.
    Rehearing denied February 14, 1938.
    Edward A. Biggs, Jr. and Joseph A. Fenton, for appellants.
    Thomas J. Courtney, State's Attorney, for appellee;
    John F. Cashen, Jr., of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    John L. Mulroy, appellee, v. Prudential Insurance Company of America, appellant.
    Gen. No. 39,736.
    Opinion filed January 31, 1938.
    Hoyne, O'Connor & Rubinkam, for appellant;
    Nathaniel Rubinkam and William S. Allen, of counsel. H. Kay George, for appellee;
    G. A. Buresh, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court


text:
    William Capesius, appellant, v. William B. Moulton et al., appellees.
    Gen. No. 39,813.
    Opinion filed January 31, 1938.
    Rehearing denied February 14, 1938.
    William Capesius, pro se.

    Tolman, Chandler & Dickinson, for appel-lees;
    Frederick Dickinson, Howard B. Bryant and Alex Bison, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Board of Education of City of Chicago, appellant, v. Clarence E. Beck et al., appellees.
    Gen. No. 39,546.
    Opinion filed February 1, 1938.
    Richard S. Folsom, Frank S. Righeimer, Edward R. Johnston, Albert E. Jenner, Jr., and Samuel W. Block, for appellant.
    Sonnensehein, Berkson, Lautmann, Levinson & Morse and Downer McCord, for appellees;
    Isaac E. Ferguson, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Board of Education of City of Chicago, appellant, v. Macey Securities Company, appellee.
    Gen. No. 39,547.
    Opinion filed February 1, 1938.
    Richard S. Folsom, Frank S. Righeimer, Edward R. Johnston, Albert E. Jenner, Jr., and Samuel W. Block, for appellant.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse and David H. Brill, for appel-lee;
    Isaac E. Ferguson, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Board of Education of City of Chicago, appellant, v. Rosalie Cavanna et al., appellees.
    Gen. No. 39,548.
    Opinion filed February 1, 1938.
    Richard S. Folsom, Frank S. Righeimer, Edward R. Johnston, Albert E. Jenner, Jr., and Samuel W. Block, for appellant.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellees; Isaac E. Ferguson, of counsel.
    David H. Brill, for certain appellees.
    D’Ancona, P-flaum & Kohlsaat and Kirkland, Fleming, Green, Martin & Ellis, for certain other appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Samuel Montgomery, appellant, v. First National Bank of Chicago et al., appellees.
    Gen. No. 39,502.
    Opinion filed February 2, 1938.
    Friedeman, Cohn, Howard & Jonesi, for appellant.
    Winston, Strawn & Shaw and Cassels, Potter & Bentley, for appellees;
    Frank B. Gilmer, Albert W.- Potts and George C. Bunge, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Harry Goldstine Realty Company, appellant, v. Edgar Crilly and George Crilly, appellees.
    Gen. No. 39,517.
    Opinion filed February 2, 1938.
    Weinrob & Feldman, for appellant;
    Alec E. Weinrob and Hyman Feldman, of counsel. Clifford R. Edmister, for appellees;
    Edward L. Hoyer, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Koller and Koller, Inc., appellant, v. Josef Wagner, trading as Wagner Dairy, appellee.
    Gen. No. 39,544.
    Opinion filed February 2, 1938.
    Lefkow & Lefkow, for appellant.
    Grablowski & Kanak, for ap-pellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Capitol Dairy Company and Milk Wagon Drivers’ Union of Chicago, Local 763, appellants, v. Herman Meyer, appellee.
    Gen. No. 39,566.
    Opinion filed February 2, 1938.
    Robert Mendelson and David A. Riskind, for appellants.
    Francis Heisler, for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    William Wedel, Jr. et al., appellants, v. Mrs. James (Annette) Callo-way, appellee.
    Gen. No. 39,575.
    Opinion filed February 2, 1938.
    Benjamin R. Williams, for appellants. Hinshaw & Culbertson, for appellee;
    Oswell G. Treadway, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Sadie Ascher, appellee, v. William C., sometimes called William Currier Lamoreaux, appellant.
    Gen. No. 39,591.
    Opinion filed February 2, 1938.
    Harry M. Ehrlich, for appellant.
    Newmann & Sideman, for ap-pellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    William E. Renz, appellee, v. Mabelle E. Renz et al. Appeal of Mabelle E. Renz, appellant.
    Gen. No. 39,600.
    Opinion filed February 2, 1938.
    Nicholas A. Socrates, Benjamin B. Davis and Louis L. Cohen, for appellant;
    Nicholas A. Socrates, of counsel. Joseph F. Elward, for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Pioneer Trust and Savings Bank, v. Jacob M. Best et al. Michael Fashing, appellant, v. Pioneer Trust and Savings Bank, appellee.
    Gen. No. 39,483.
    Opinion filed February 2, 1938.
    Shulman, Shulman & Abrams, for appellant;
    Meyer Abrams, of counsel. Castle, Williams & McCarthy, for appellee;
    Emmett J. McCarthy and Robert R. Hanley, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Harry Rush, appellee, v. Adolph C. Radefeld et al. Appeal of Adolph C. Radefeld, appellant.
    Gen. No. 39,496.
    Opinion filed February 2, 1938.
    Clarence W. Shaver, for appellant;
    Louis E. Levinson, of counsel. W. B. Steinberg, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Chicago Daily News Printing Company, appellee, v. Joyce-Watkins Company, appellant.
    Gen. No. 39,520.
    Opinion filed February 2, 1938.
    Bull, Lytton & Olson, for appellant;
    Norman A. Broholm, of counsel. Bell, Boyd & Marshall, for appellee;
    Wm. N. Haddad and Victor M. Harding, Jr., of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Clara Turro, administratrix of estate of Ernest Miller, deceased, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 39,530.
    Opinion filed February 2, 1938.
    Hoyne, O’Connor & Bubinkam, for appellant;
    Nathaniel Bubinkam and William S. Allen, of counsel.
    Mortimer A. Bothstein and Alexander Bothstein, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. Edward J. Barrett, Auditor of Public Accounts of State of Illinois, plaintiff, v. West Side Trust and Savings Bank of Chicago, defendant. L. H. Heyman et al., ap-pellees, v. William L. O’Connell, respondent. Appeal of Mario J. Ardito et al., appellants.
    Gen. No. 39,549.
    Opinion filed February 2, 1938.
    Shulman, Shulman & Abrams and Bosenfeld & Bromberg, for appellants;
    Meyer Abrams, of counsel. John M. Lee and Carl M. Loos, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    John W. Bennett and Edward M. Colbach, trading as Bennett and Colbach, appellants, v. Mrs. Grace M. Forschner, appellee.
    Gen. No. 39,578.
    Opinion filed February 2, 1938.
    Bennett & Colbach, pro se-,

    James B. MeKeon, of counsel.
    Bosen, Francis So Bosen, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Mildred L. Rocca, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 39,552.
    Opinion filed February 2, 1938.

      Hoyne, O’Connor & Rubinkam, for appellant;
    Nathaniel Rubinkam and William S. Allen, of counsel.
    Guy C. Guerine and Stebbins, McKinley & Price, for appellee;
    L. A. Stebbins and Paul E. Price, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Jim Brooks for use of Minnie Seiden, appellant, v. Hartford Accident and Indemnity Company of Hartford, Connecticut, appellee. Jim Brooks for use of Louis Seiden, appellant, v. Hartford Accident and Indemnity Company of Hartford, Connecticut, appellee.
    Gen. No. 39,611.
    Opinion filed February 2, 1938.
    Leopold Saltiel, for appellant.
    Eckert & Peterson, for appellee;
    A. R. Peterson and Walter W. Ross, Jr., of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    John Kern, appellant, v. Mid City Electrical Service, Inc., appellee.
    Gen. No. 39,622.
    Opinion filed February 2, 1938.
    Henry W. Kenoe, for appellant;
    Harold A. Tepper, of counsel. Braun & Brodie, for appellee;
    Morton A. Mergentheim, Jr., of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    National Lead Company, appellee, v. Norlipp Company, appellant.
    Gen. No. 39,792.
    Opinion filed February 2, 1938.
    Kirkland, Fleming, Green, Martin & Ellis, for appellant;
    Joseph M. Taussig, of counsel.
    England, O’Toole & Kays, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Gertrude M. Schuler, appellee, v. Leah G. Beezley et al., defendants. Appeal of Albert M. Wolf et al., appellants.
    Gen. No. 39,940.

      Opinion filed February 10, 1938.
    Herrick, Vette & Peregrine, for appellants.
    E. A. Ribal and 0. O. Rundall, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Industrial Refuse Disposal Company, appellee, v. City of Chicago, appellant.
    Gen. No. 39,312.
    Opinion filed February 15, 1938.
    Barnet Hodes, Corporation Counsel, for appellant;
    John W. McCarthy, Alexander J. Resa and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
    P. J. Lueey and William K. Tell, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Telegraphers National Bank of St. Louis, Missouri, appellee, v. O. A. Rawlins et al., appellants.
    Gen. No. 39,513.
    Opinion filed February 15, 1938.
    Stevens & Carrier, for appellants;
    George M. Stevens and George M. Stevens, Jr., of counsel;
    Leon T. Wilson, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    People of the State of Illinois, appellant, v. Joyce Pangos, appellee.
    Gen. No. 39,661.
    Opinion filed February 15, 1938.
    Thomas J. Courtney, State’s Attorney, for appellant;
    Edw. E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Trust Company of Chicago, administrator of estate of Raymond Budrick, deceased, and Eugene Sheehan, minor, by his father and next friend, John Sheehan, appellants, v. City of Chicago, appellee.
    Gen. No. 39,777.

      Opinion filed February 15, 1938.
    Lloyd T. Bailey, for appellants;
    Joseph W. Bailey and Clarence M. Dunagan, of counsel.
    Barnet Hodes, Corporation Counsel, for ap-pellees;
    Alexander J. Resa and Arthur Chittiek, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Lillian M. Anderson et al., appellants, v. William Oscar Olsen et al., defendants. Mabel A. Olsen and Hortense M. Olsen, appellees.
    Gen. No. 39,401.
    Opinion filed February 15, 1938.
    O’Connor & Conroy, for appellants;
    Vincent H. O’Connor, of counsel. Eckert & Peterson, for appellees;
    A. R. Peterson and Walter W. Ross, Jr., of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Ignatius Chap and West Thirty-First State Bank, appellants, v. Lithuanian National Catholic Church of America et al., defendants. Lithuanian National Catholic Church of America, appellee.
    Gen. No. 39,518.
    Opinion filed February 15, 1938.
    William J. Flaherty, for appellants;
    Geo. H. Mason and Donald H. Haider, of counsel.
    Harold O. Mulks, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Reginald A. Woodall, appellee, v. MacRae’s Blue Book Company, appellant.
    Gen. No. 39,602.
    Opinion filed February 15, 1938.
    Rehearing denied March 1, 1938'.
    Thomas A. Walpole and Edgar B. Elder, for appellant.
    Adams, Hawxhurst, Hawley & White, for appellee;
    Francis P. Linneman and Melvin M. Hawley, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Second District.
    J. A. Kyler, appellee, v. L. W. Loptien, appellant.
    Gen. No. 9,261.
    Opinion filed December 2, 1937.
    Eehearing denied January 10; 1938.
    Castle & Anderson, for appellant.
    Boss E. Millet and John J. Faissler, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Nelle Sisney, appellee, v. Minnie Wallk, trading as Wallk’s Furniture House, appellant.
    Gen. No. 9,242.
    Opinion filed December 2, 1937.
    Rehearing denied January 10, 1938.
    Hunter, Kavanagh & McLaughlin, for appellant.
    Champion & Gaskins, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Presiding Justice-Dove

text:
    Clara Reid, appellee, v. City of Belvidere, appellant.
    Gen. No. 9,245.
    Opinion filed January 21, 1938.
    Albert S. O ’Sullivan, Corporation Counsel, for appellant.
    Alexander J. Strom and Owen M. Johnson, for appellee.
   Mr. Presiding Justice-Dove

delivered the opinion of the court.


author: Mr. Presiding Justice Dove

text:
    Ina Bain, appellee, v. Fred Bain, appellant.
    Gen. No. 9,249.
    Opinion filed January 21, 1938.
    Karl C. Williams, for appellant;
    Burrell & Burrell and J. Phillip Dunn, of counsel.
    North Gibboney & North, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. Oscar Nelson, appellee, v. Farmers and Merchants State Bank of Leland, defendant. Clarence Newton and Clyde Newton, appellants.
    Gen. No. 9,251.

      Opinion filed January 21, 1938.
    Hibbs & Pool and Harold R. Langer, for appellants.
    Geo. Y. B. Weeks, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Nellie MacAdam, appellee, v. John Bowen et al., appellants. Dorothy Smith et al., appellees. Herbert L. Bowen and John Bowen, appellants, v. Nellie MacAdam et al., appellees.
    Gen. No. 9,256.
    Opinion filed January 21, 1938.
    Jenkins & Kirkpatrick and Lee J. Quasey, for appellants.
    Thomas J. Welch, George W. Hunt, Martin E. O'Connor and Vera M. Binks, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Arthur T. Saltzgiver, executor of estate of Frank Saltzgiver, deceased, appellant, v. William McGrath et al., appellees.
    Gen. No. 9,263.
    Opinion filed January 21, 1938.
    Luther B. Bratton, for appellant.
    Yernon G. Butz, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Terry Lewis, appellee, v. Peter Niemann and Lester Niemann, appellants.
    Gen. No. 9,265.
    Opinion filed January 21, 1938.
    Albert H. Krusemark, for appellants.
    Pence B. Orr and Crow & Loeff, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Oscar Nelson et al., appellants, v. Savings Bank of Kewanee et al. Charles D. Terry, appellee.
    Gen. No. 9,246.
    Opinion filed February 15, 1938.
    Edwin J. Faull, for certain appellants.
    Sturtz & Ewan, for certain other appellant;
    Katherine Luecke and James N. Cummings, of counsel.
    James H. Andrews, Gregg A. Young and Harper Andrews, for
    appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. William M. Palzer, appellant, v. City of Kankakee et al., appellees.
    Gen. No. 9,253.
    Opinion filed February 15, 1938.
    Noel A. Diamond, for appellant.
    T. R. Johnston and Victor N. Cardosi, for appellees.
   Mr. Presiding Justice Dove

delivered the. opinion of the court.


author: Mr. Justice Huffman

text:
    Duralith Corporation, appellant, v. Faber-Musser Company, appellee.
    Gen. No. 9,254.
    Opinion filed February 15, 1938.
    Shurtleff & Niehaus, for appellant.
    Willard B. Gaskins and Fredric J. Lee, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Mr. Justice Davis

text:
    Third District.
    Jesse B. Parks, administrator of estate of Jesse T. Morrison, deceased, appellant, v. Henry C. Gott, appellee.
    Gen. No. 9,095.
    Opinion filed January 17, 1938.
    Oscar J. Putting, Julian Hutchens and Charles I. Coleman, for appellant.
    Gillespie, Burke & Gillespie, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


author: Mr. Justice Riess

text:
    Austin Six, appellee, v. Village of Bluffs, appellant.
    Gen. No. 9,068.
    Opinion filed January 17, 1938.
    L. T. Graham and Merrill H. Johnston, for appellant.
    Hardin E. Hanks, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.


author: Sir. Justice Biess

text:
    Fannie Fish, administratrix of estate of John Martin Fish, deceased, and Central Life Assurance Society, appellants, v. State Bank of Bement, appellee.
    Gen. No. 9,091.
    Opinion filed January 17, 1938.
    W. A. Doss and Arnold Sievers, for appellants.
    H. E. Hutson, for appellee.
   Sir. Justice Biess

delivered the opinion of the court.


text:
    John Folkers et al., Appellees, v. Glenn D. Butzer et al. Andrew Hussemann et al., Appellants.
    Gen. No. 9,250.

      Opinion filed February 15, 1938.
    Rehearing denied March 21, 1938.
    Frank Ortman, Hubert H. Edwards, John H. McFadden, H. Gr. Gtreenebaum, A. H. Fellheimer and Cyril A. Burns, all of Pontiac, for appellants.
    Baker, Niven & Crabtree, of Pontiac, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This was a suit by appellees, as taxpayers, to enjoin the payment of certain anticipation tax warrants.

Pursuant to U 117, ch. 121, Cahill’s Ill. St. 1933, a special tax was voted by Waldo township for a period of five years from 1930 to 1934, both inclusive, for the purpose of constructing and maintaining gravel roads in said township. It appears that following the election the highway commissioner filed with the town clerk and the county clerk a certificate of levy in the sum of 30 cents on each $100 assessed valuation of the taxable property in said town for the above years.

Nothing was done toward the construction of any road until in the spring of 1931, when it was decided to improve 14 miles of road in the township by grading, draining and graveling same. Following this, the commissioner entered into a contract with the Churchill Gravel Company to furnish the gravel and improve the roads selected, for the sum of $39,945.07. Upon completion of the work a cash payment was made to the contractor, which consisted of the money that had been collected up to that time from the special tax levy, and anticipation tax warrants were issued and delivered to him in payment of the balance due under the contract. These tax warrants were payable out of the funds to be derived from the special tax levy. In 1932 the township again paid to the contractor all of the money realized from the special tax and renewed the anticipation warrants. This was again done in the years 1933 and 1934. It appears that the assessed valuation of the property in the township had been steadily decreasing and that the rate of tax voted, as above indicated, was not producing enough money to pay the anticipation tax warrants that had issued for each particular year. On September 15, 1934, there still remained due to the contractor the sum of $27,562.55, for which amount six anticipation warrants were issued by the commissioner, five of which were for the sum of $5,000 each, and one for the sum of $2,562.55, as renewals of the anticipation warrants that had theretofore been issued and remained unpaid either in toto or in part.

This action was brought by appellees in March, 1935, to enjoin the payment of any money to appellants individually or to any of them as copartners doing business as the Churchill Gravel Company, by reason of the contract as made between the highway commissioner and the Churchill Gravel Company for the improvement of said roads. The position of appellees in this case is that no attempt was made to comply with the provisions of statute regarding the letting of the contract for doing the work in question, and that therefore the same was invalid and the anticipation tax warrants unenforceable against the town. The present outstanding warrants are renewals of former warrants which were issued against the special tax to be collected. The five-year period for which the special tax was voted, had already expired before the issuance and delivery of the anticipation tax warrants which are now outstanding. These warrants appear to be issued and payable out of the general road and bridge fund.

Paragraphs 324 et seq., ch. 121, Cahill’s Ill. St. 1933, has to do with the surveys, estimates, plans, bids, notice and opening of bids, with respect to contracts for such work as is under consideration herein. It appears that when the proposition for a levying of the tax has been duly carried, that it shall be the duty of the county superintendent of highways to cause to be surveyed the roads to be improved, and to prepare suitable maps, plans, specifications, and estimates of the cost of the proposed improvement. The work shall be divided into convenient sections, each of which shall be numbered. Upon the completion of the maps, plans, specifications and estimates, the county superintendent of highways shall file one copy thereof with the town clerk wherein the work is to be done, and one copy with the commissioner of highways of such town, and in case of State aid road construction, copies shall be filed with the department of State highways. It is further provided by If 125 that when such plans and specifications are completed, the commissioner or commissioners, as the case may be, shall advertise for sealed bids for such work, by publishing a notice thereof for at least three weeks, in some newspaper, and also by posting notices in at least 10 of the most public places in the town or road district. Paragraph 127 provides that the commissioners shall appear at the time and place designated, and shall open the bids and let the contract publicly to the lowest responsible bidder or bidders by sections, and that the bidders shall be required to separately state their bids for each class of work in such manner as the commissioners may provide.

It is undisputed that no advertisement for bids was made, no notice posted, and no plans, specifications or estimates filed in the office of the highway commissioner or of the town clerk. It is urged by appellees that there was not a sufficient compliance with the law in the letting of this contract to make the same legal and therefore it was void. In.the first instance, the determination of this question must rest with the interpretation of the statute relative to such contracts, that is, whether the provisions of the statute are to be considered mandatory or deemed merely directory.

Appellants rely upon the rule that where the power to do a particular thing exists, that a mere irregular exercise of such power will not permit of the defense of ultra vires where the corporation has received the benefits of the contract, urging that under such circumstances, the municipal corporation will be estopped from setting up such irregular exercise of a given power. In this respect they cite many cases to which we are unable to make any specific reference in this opinion. However, an examination of that line of cases will disclose that they are distinguishable from cases similar to the present one. They recognize the rule followed therein to be subject to the exception as stated in McGovern v. City of Chicago, 281 Ill. 264, at p. 280, “A municipal corporation as against persons who have acted in good faith and parted with value for its benefit, cannot, unless by virtue of some statutory provision, sót up mere irregularities in the exercise of power conferred. . . .”

It is a general and fundamental principle of law that all persons contracting with municipal or public corporations must at their own peril inquire into the statutory power of its officers to make the contract. In this connection it has been held in this State that commissioners of highways have no powers except such as are conferred by statute, and contractual obligations can be imposed by them on the municipality only so far as they are expressly authorized to incur same or such as are incident to those expressly conferred. Challacombe v. Central Township Highway Com'rs, 161 Ill. App. 115, 117; Euziere v. Rockville Highway Com’r, 346 Ill. 131, 134; American Mexican Refining Co. v. Wetzel, 264 Ill. App. 220. This principle is more strictly applied, and properly so, with respect to the powers of public officers than in the law of private corporations. It is the duty of those dealing with municipal corporations to take notice of limitations on its power to contract, as well, as any specific provisions of statute governing the letting of such contracts. One dealing with public officers who derive their powers from statutory enactments are bound to take notice of the law relative to such officers and their power to act. Ayers v. City of Jacksonville, 171 Ill. App. 129, 136; Green v. Mail, 362 Ill. 518.

A case quite similar to the present one was before this court in that of Brownell Improvement Co. v. Highway Commissioner, 280 Ill. App. 43. It was there held that requirements of statutes relating to hardroad construction and contracts let therefor, were mandatory and not directory. The contract in this case falls within the above classification and therefore the rule of estoppel urged by appellants against appellees is not available. Challacombe v. Central Township Highway Com’rs, supra; Rogne v. People, 224 Ill. 449, 451; Green v. Mail, supra.

Where by statute a public officer can only let contracts to the lowest bidder after advertisement, a contract made in violation of such requirements is illegal. Statutes of this character contemplate that the steps adopted by it with reference to the letting of the contract, shall be of such a nature and in such form as to invite competition. In order that persons desiring to bid upon such contracts may do so upon a uniform basis, such statutes invariably provide that plans and specifications for the improvement must be adopted by the body corporate prior to inviting the bids, which plans and specifications are in some way made public so that those desiring to bid may do so in a bona fide manner. Such plans and specifications are essential to competitive bidding, and it is only through their agency that the public has any reasonable assurance that all bidders are competing upon the same basis and without favoritism. By the above method we find that the bidders must submit their bids according to the plans and specifications decided upon by the body corporate, and not upon any scheme or plan of the bidder. Such a course as the latter would leave no definite basis for competitive bidding, as each bidder would have in mind the material and plan for the work to be done, according to his own bid. Therefore when viewed in light of the above, we find the reason for statutes of this character at once apparent, as well as ample cause for a due observance thereof.

The purpose of statutes requiring public letting and competitive bidding such as in this case is for the protection of those who will be called upon to pay for the work. Rogne v. People, supra, p. 452. Such statutes are entirely wholesome in their character and effect. Some of appellants claim to be holders for value, and without notice, of certain of the warrants. Instruments such as anticipation tax warrants, which are drawn upon a particular and specific fund, are not negotiable in character the same as notes. Morrison v. Austin State Bank, 213 Ill. 472, 487; National Bank of Monmouth v. Shunick, 228 Ill. App. 471, 477.

The decree of the trial court is affirmed.

Decree affirmed.


author: Mr. Presiding Justice O’Connor Mr. Justice Matchett, J.,

text:
    Carter H. Harrison, Appellant, v. Anna C. Deutsch, Executrix of Estate of Joseph Deutsch, Deceased, Appellee.
    Gen. No. 39,601.
    Hatchett, J., dissenting.
    Opinion filed February 28, 1938.

      James W. Morris, Assistant Attorney General, Sew-all Key and Clarence E. Dawson, Special Assistants to Attorney General, for United States; Michael L. Igoe, United States Attorney, David L. Bazelon and Raymond P. Drymalski, Assistant United States Attorneys, and Carl F. Perkins, Special Assistant to United States Attorney, of counsel.
    Ralph E. Brown, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Carter H. Harrison as Collector of Internal Revenue filed a claim in the probate court of Cook county May 7, 1935, for $32,796.33 against the Estate of Joseph Deutseh, deceased, for additional income taxes for the years 1929,1931 and 1932. No objection to the amount of the claim was made and it was allowed and ordered to be paid as a claim designated by the court as class “2a.” The Estate appealed to the circuit court of Cook county, where there was a trial de novo, the facts being stipulated. The claim was allowed as of the 6th class, to be paid only out of subsequently inventoried assets, if any, and the Collector prosecutes this appeal, contending that the claim should have been allowed as class 2a.

The material facts as stipulated are that Joseph Deutseh of Chicago died testate January 23, 1933; his will was admitted to probate in the probate court of Cook county, Illinois, and letters testamentary were issued to Anna C. Deutseh on March 8, 1933. April 11th following the executrix notified the Collector' of Internal Revenue in Chicago of the death of Deutseh. Afterward the executrix filed an inventory and a supplementary inventory of-the assets of the Estate, which were approved by the probate court. She also published notice for the adjustment of all claims, as provided by statute. Many substantial claims were filed against the Estate during the year following the issuance of the letters testamentary, which were allowed before May 7, 1935, as of classes i, 3, 5 and 6. The claims were classified pursuant to the' provisions of sec. 70, ch. 3, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 110.071]. One of these claims for $16,278.82 was allowed as of class 6, in favor of Anna C. Deutsch individually. It was further stipulated that the executrix had not sufficient funds on hand with which to pay all the claims, but has sufficient to pay in full all claims of the first and second class, and a substantial amount will be available to apply on claims falling below the second class.

Joseph Deutsch filed with the Collector of Internal Revenue income tax returns for the years 1929 and 1931, and paid the amount of tax computed. His executrix filed a similar return for 1932. The Collector of Internal Revenue, pursuant to the provisions of the United States Statutes, notified the executrix of claimed additional liabilities for 1929, 1931 and 1932. The executrix protested and afterward assessments of additional Federal income tax were made for each of the three years, principal and interest amounting to $32,796.33, and the Collector filed his claim in the probate court of Cook county against the estate, as stated.

By sec. 70, ch. 3, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 110.071], all demands against the estate of the deceased are divided into six classes: (1) funeral expenses and costs of administration; (2) widow’s award; (3) expenses attending last illness, etc.; (4) debts due the common school fund of township; (5) moneys received by the deceased in trust; and (6) all other debts and demands which shall be exhibited to the court within one year from the granting of letters by the probate court. The section further provides that all p.la.ims of whatever class and demand not exhibited to the probate court within one year from the granting of letters shall be forever barred as to all property of the estate which has been inventoried or accounted for by the executrix or administrator; and any claims filed after the year are to be paid only out of subsequent inventoried assets.

The position of the Collector is that his claim being for unpaid income tax, the one year limitation fixed for filing claims by section 70 of chapter 3 of our statutes, is not applicable and does not prejudice his right to have the claim allowed, to be paid after the claims of the first and second classes; while the executrix’s position is that since the claim was not filed until more than a year aftér the letters testamentary were issued, the judgment of the circuit court allowing the claim as of the 6th class, to be paid only out of subsequently inventoried assets, was proper.

Sec. 3466 Revised Statutes of the United States (U. S. C. Title 31, sec. 191) provides: “Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied.” And by sec. 3467 it is provided that ‘ ‘ Every executor, administrator, or assignee, or other person, who pays in whole or in part any debt due by the person or estate from whom or for which he acts, before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate for the debts so due to the United States, or for so much thereof as may remain due and unpaid. ’ ’ Taxes due the United States are debts within the meaning of sec. 3466. Price v. United States, 269 U. S. 492. In that case the court said (p. 499): “The word ‘debts’ as used in R. S. Sec. 3466 includes taxes.

“The claim of the United States does not rest upon any sovereign prerogative; but the priority statutes were enacted to advance the. same public policy which governs in the cases of royal prerogative; that is, to secure adequate public revenue to sustain the public burdens.”

In the early case of United States v. Backus, 6 McLean’s Reports 443 (24 Fed. Cas. No. 14491) suit was brought by the United States against the executors to recover balance due from the estate of the deceased. It was contended that the claim should have been filed against the estate in the probate court within the period provided by the statutes of Michigan, and since this was not done the claim was barred. The court rejected this contention and said: “The exclusive jurisdiction given to the Probate court, in the settlement of decedents’ estates, cannot affect the claims of the Government, however it may bear on private claims. The mode of proceeding in the Probate court, and the time given for the settlement of accounts, cannot regulate the claims of the government, nor affect the remedies given to it under its own laws. ’ ’

United States v. Hoar, 2 Mason’s Reports (26 Fed. Cas. No. 15373) was an action by the United States for money had and received against the administrator of an estate, and it was held that neither the general statute of limitations nor the Statute of Limitations of Massachusetts as to executors or administrators binds the United States in a suit brought in the U. S. Circuit Court.

No suggestion nor contention is made in the instant case that the claim was not filed in the probate court within the time fixed by any federal statute.

In United States v. Nashville, G. & St. L. Ry. Co., 118 U. S. 120, an action was brought by the Government on negotiable bonds made by defendant railroad company to the State of Tennessee. The bonds were owned and held by the United States. The Statute of Limitations of the State was interposed as a defense, but it was held that the statute did not run against the right of action of the United States. The court there said (p. 125): “It is settled beyond doubt or controversy— upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confined — that the United States asserting rights vested in them as a sovereign government, are not bound by any statutes of limitations, unless Congress has clearly manifested its intention that they should be so bound.”

Chesapeake & Delaware Canal Co. v. United States, 250 U. S. 123, was an action brought by the United States against the Canal Co. to recover the amount of three dividends which had been declared on shares of its capital stock owned by the G-overnment. The plea of the Statute of Limitations was rejected by the trial court, Circuit Court of Appeals, and the Supreme Court, and it was held that said Statute of Limitations and the doctrine of laches were not applicable to the government.

In Phillips v. Commissioner, 283 U. S. 589, a corporation had distributed all of its assets among its stockholders and then dissolved. Afterward the Commissioner of Internal Revenue made a deficiency assessment against it for income and profit taxes. The court said (p. 602): “It is contended that summary proceeding by the United States to enforce the liability for the tax is barred by the six months statute of limitations on suits against stockholders provided by the Pennsylvania statute. . . . The United States is not bound by state statutes of limitations unless Congress provides that it shall be.”

In Matter of Lincoln Chair & Novelty Co., 274 N. Y. 353, it was held that under sec. 3466 of the U. S. Revised Statutes (U. S. C. Tit. 31, sec. 191) claims of the United States upon a voluntary assignment of an insolvent debtor for the benefit of his creditors have preference over all other claims, including those of the State of New York. The court there said (pp. 356-357): “The State of New York has, as sovereign, a common law right of priority in payment of its claims out of the estate of an insolvent debtor, but that common law right of priority has been made subordinate to the statutory priority of the United States. No exception has been made by Congress in favor of the claims of the State or of wage-earners or other persons. Upon the voluntary assignment of an insolvent debtor, the mandate of the statute (sec. 3466) that out of the estate of the insolvent ‘the debts due to the United States shall be first satisfied’ is absolute. (Co. of Spokane v. U. S., 279 U. S. 80.)”

In New York v. Maclay, 288 U. S. 290, the United States filed its claim for additional taxes with the receivers of an insolvent corporation. The State of New York filed its claim for certain taxes. The court held that under sec. 3466 Rev. Stats., the debt owing the United States had preference over the debt owing to the State of New York in a distribution of the fund.

To the same effect is the holding in United States v. Knott, 298 U. S. 544.

But counsel for defendant says that sec. 70, ch. 3 of the statute of this State limiting the time within which claims must be filed against an estate, “is not a statute of limitations but merely classifies and states the period within which may be filed those claims and demands to which privileges are given in other sections of the act”; and that if the government would have its claim paid out of the inventoried assets of the Deutseh estate it must file its claim within one year from the granting of letters testamentary, as sec. 70 requires. And in support of this Pufahl v. Estate of Parks, 299 U. S. 217; Hulburd v. Commissioner of Int. Rev., 296 U. S. 300; Waughop v. Bartlett, 165 Ill. 124; People v. Small, 319 Ill. 437; United States v. Hailey, 2 Idaho 22; Brooks v. Federal Land Bank of Col., 143 So. 749, and other cases are cited.

In the Parks case, supra, Pufahl, as receiver of the Austin National Bank of Chicago, filed his claim in the probate court of Cook county, Illinois, against the estate of Parks, a former stockholder of the bank, to recover an assessment made by the Comptroller of the Currency against the stockholders of the bank. The claim was not filed within a year of the granting of letters testamentary; the claim was disallowed, and an appeal was taken to the circuit court of Cook county where there was a trial de novo. The claim was allowed as of the 6th class under sec. 70, ch. 3, to be paid out of any assets that might subsequently be inventoried. On appeal to the Appellate Court the judgment was affirmed—283 Ill. App. 95. The case was then taken directly to the Supreme Court of the United States, where the judgment was affirmed. The court there said: “In the absence of federal legislation giving priority to a claim for an assessment of stockholders’ liability over other debts, or a lien upon the assets of a deceased stockholder’s estate, or a special remedy, the claim is not entitled to distribution otherwise than as specified in a nondiscriminatory statute of the domicile.” We think it clear that case is not in point. The claim there made was not a claim by the government for itself but by the receiver of a National bank for the benefit of the depositors or creditors of the bank. There was no statute giving priority to the claim, while in the instant case the claim is made on behalf of the government for taxes which are a debt due to it, and under sec. 3466, “debts due to the United States shall be first satisfied.”

In the Hulburd case (296 U. S. 300) the facts are in no way analogous to the case before us. There, a claim was made before the Board of Tax Appeals after the estate had been closed and settled by the probate court of Cook county, and sec. 3466 was in no way involved. In the case before us the claim was filed in the probate court while the estate was still in process of administration by that court. The authorities from Illinois cited are to the effect that the provision of sec. 70, requiring claims to be filed in the probate court within one year from the date of the issuance of letters testamentary, is not a genera] statute of limitations, but is a specific act for the purpose of facilitating the early settlement of estates. But we think those cases are not in point here because the federal statute expressly provides that debts due the United States Government shall be first satisfied, and under the authorities which we have discussed, the payment of the claim was not limited to assets subsequently inventoried.

In the Hailey case (2 Idaho 22) it was held that “When the United States is compelled to come into court to enforce its rights it must come in as any other suitor (Mitchell v. United States, 9 Pet. 743.) And the proceedings in such action must be in accordance with local laws in force at the time.”

In the Brooks case (143 So. 749) the Supreme Court of Florida held in a suit brought by the Federal Land Bank of Columbia to foreclose a mortgage on Florida land, that a good defense was set up in the answer, which alleged that the claim had not been filed against the estate of the deceased mortgagor within the time required by the statute of Florida. And since the claim had not been filed within the two years provided by the local statute, it was barred. The court said (p. 752) : “It is contended that the note and mortgage sought to be foreclosed áre instrumentalities of the United States, therefore the statute of nonclaim does not operate against such note and mortgage. It is argued that the Federal Land Bank of Columbia, ereated by the Federal Farm. Loan Act enacted by Congress in 1916 (12 USCA sec. 641 et seq.) is a federal agency, and the act creating it expressly provides that first mortgages issued under the provisions of the act shall be deemed and held to be instrumentalities of the government of the United States, and that such instrumentalities of the United States are not affected by the statute of nonclaim.

“It is quite clear why any statute which seeks to define the duties and control the conduct of any United States’ governmental agency created for a public purpose, or a United States’ instrumentality existing pursuant to the activities of such an agency, would be considered to be invalid if such state legislation frustrated the purpose or impaired the efficiency of such instrumentalities or agencies; but such a doctrine is not applicable here. Even if it may be considered that the mortgage in this case and the note which the mortgage was given to secure are instrumentalities of the United States, it is difficult to perceive the force of the reasoning which seeks to hold such instrumentalities to be unaffected by state laws. A mortgage in this state is a mere lien upon the property mortgaged. Is the United States exempt from that state law if its bank takes a mortgage upon real estate 1 . . .

“Such agencies like the complainant came into the state in competition with local banks and other business enterprises. If it makes a contract with a married woman, may it ignore the law of this state as to her contractual incapacity? . . .

“Perhaps the line is drawn at statutes of limitation and taxes on United States’ property and activities of federal agencies in pursuit of a public purpose, which may be conceded. See Federal Land Bank of New Orleans v. Crosland, 261 U. S. 374.”

Whatever may be said of the holding in the Brooks case, it is not controlling in the instant case because the claim here is for taxes due the government. As said in the Phillips case, 283 U. S. 589, “The United States is not bound by state statutes of limitation unless Congress provides that it shall be. ’ ’ And no such federal statute has been pointed out. In the Brooks case the court referred to Federal Land Bank of New Orleans v. Crosland, 261 U. S. 374, where it was expressly held that a mortgage executed to a federal land bank is an instrumentality of the government and cannot be subjected to a State recording tax.

In Pond v. Dougherty, 92 Pac. 1035, it was held that the United States, being exempt from statutes of limitation, its claim against the estate of a deceased surety on a bond of the Collector of Internal Revenue was not barred because not presented as a claim against the estate under • the provisions of the California code, which requires claims to be filed in a specific manner.

For the reasons stated, the judgment of the circuit court of Cook county is reversed and the cause remanded with directions to allow the claim as ordered by the probate court of Cook county.

Reversed and remanded with directions.

McSurely, J., concurs.

Mr. Justice Matchett, J.,

dissenting: Because of the importance of the controlling question raised on this appeal I am constrained to dissent. The precise question arising on this record, as I see it, has not been decided. The right of the United States to a preference over other creditors on its claims for taxes (even over the State in whose courts it appears) is settled by decisions of the State and Federal courts as illustrated in Matter of Lincoln Chair & Novelty Co., 274 N. Y. 353, and Company of Spokane v. United States, 279 U. S. 80. Many similar cases might be cited. The Government frankly asks an extension of the rule announced in those cases. . By section 70 of chapter 3 of the Illinois Statutes the Legislature has provided that all claims of whatever class and all demands exhibited to the probate court within one year from the granting of letters shall be forever barred as to all property of the estate which has been inventoried or accounted for by the executrix or administrator, and any claims filed after the year are to be paid only out of subsequently inventoried assets. This statute is not a statute of limitations. It is an integral part of an act of the Legislature of Illinois designed to create positive property rights and titles in all estates of which the decedent was possessed or seized at his death. The Supreme Court of Illinois has so construed the act in Peacock v. Haven, 22 Ill. 23; Waughop v. Bartlett, 165 Ill. 124, and many other cases. Even the sovereign State of Illinois submitting its claim to the courts is bound by this statute to the same extent as the humble citizen. People v. Small, 319 Ill. 437. The Supreme Court of the United States has approved of this construction of the act in Hulburd v. Commissioner of Int. Rev., 296 U. S. 300, and Pufahl v. Estate of Parks, 299 U. S. 217. The question here is whether upon submitting its claim to the probate court against an estate the United States is bound by the law of the forum to which it has appealed. Its right to a preference is not questioned. Cases cited to that proposition are not in point. The State law was enacted pursuant to the powers reserved to the States under Article V, Amendment X of the Constitution of the United States. The United States may, by statute, create a preference for its own claims on account of taxes. It is not necessary to the" exercise of that power that it should disregard the legislation of the State of Illinois which determines the devolution of estates. The question is important — either directly or indirectly affecting all property within the State which now is or hereafter may be brought within the jurisdiction of the probate court or county court. If anything at all is left of the powers reserved under the Constitution to the States, it would seem the Government should be bound by the local law as is the State and its citizens. United States v. Hailey, 2 Idaho 22, is directly in point and (while distinguishable on the facts) the opinions of the Supreme Court of the United States in Hulburd v. Commissioner of Int. Rev., 296 U. S. 300, and Pufahl v. Estate of Parks, 299 U. S. 217, seem to be consistent with this view.