text:
    The People of the State of Illinois ex rel. Matthew Campbell, Appellee, v. John W. Kapp, Jr. et al., Appellants.
    Gen. No. 9,093.
    Opinion filed April 20, 1938.
    Hugh J. Dobbs, of Springfield, for appellants.

      Gillespie, Burke & Gillespie, of Springfield, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

On June 28, 1937, Matthew Campbell, relator, filed his petition in the circuit court of Sangamon county, for a writ of mandamus against John W. Kapp, Jr., as mayor, C. F. Nuess, as superintendent of police, Bay E. Simmons, as comptroller, Charles A. Schuppe, as city treasurer, Harry B. Luers, as commissioner of accounts and finances, and John P. Snigg, Edward W. Lartz and J. O. Holland, as civil service commissioners of the city of Springfield, Sangamon county, Illinois. Upon a trial of said proceeding the People’s peremptory writ of mandamus was awarded as prayed for in the petition.

John W. Kapp, Jr., as mayor of the city of Springfield, Bay E. Simmons, as comptroller of the city of Springfield, Charles A. Schuppe, as city treasurer of the city of Springfield, and Harry B. Luers, as commissioner of accounts and finances of the city of Springfield, appealed from said judgment.

The petition alleges that the relator, Matthew Campbell, was a member of the police department of the city of Springfield for a number of years, and that during all of his years of service he faithfully and efficiently performed the duties of the office, and that he was illegally and wrongfully discharged from his office and from the service of the city of Springfield.

That the city of Springfield is a municipal corporation and, after it adopted the commission form of municipal government, the city council distributed and assigned the various departments of the municipal government to the mayor and the several commissioners, and that the police department was assigned to and under the supervision of the department of public affairs, and the general supervision and oversight of the police department was, at all times material herein, and is now vested in the mayor of said city as commissioner of public affairs, and that John W. Kapp, Jr., has been and now is mayor of said city.

That in 1909 an ordinance was passed by the council of said city, providing that the police department shall consist of a superintendent of police, who shall be ex officio chief of police, and such other officers including patrolmen as the city council may from time to time provide.

It further alleges the existence of the offices and the names of the appellants occupying the same and the duties of each, and also alleges the fact that relator had been suspended from his office as a police patrolman on or about June 22, 1935, and that on December 30, 1935, relator filed his petition in the circuit court of Sangamon county for the writ of certiorari against the civil service commission and its members and that the record of the proceeding of said commission was quashed, and further sets out a copy of a written demand served upon the city of Springfield and respondents on May 29, 1937, demanding that the salary appropriated for the position of police officer of said city from March 5, 1936, be paid to him.

Petitioner prays that a writ of mandamus issue, directed to and against the defendants appellants, and C. F. Nuess, superintendent of police, and John P. Snigg, J. O. Holland and Edward W. Lartz, civil service commissioners, commanding O. P. Nuess, as superintendent of police, to forthwith assign relator to duty as police patrolman, and said civil service commission to certify to the mayor and superintendent of police that relator is by law a police patrolman, and defendants appellants in their representative capacities to place relator upon the pay rolls of the city of Springfield and to pay to relator the salary provided for the office of police patrolman from March 5, 1936, and thence forth until he is retired or removed.

Defendants appellants made a motion to strike certain portions of the petition, which was denied by the court, and although such action of the court is relied upon as one of the grounds of reversal, such alleged error is waived, as no citation of authorities or argument in support thereof is contained in the brief and argument of appellants.

Appellants answered said petition and after neither admitting or denying the allegations of certain paragraphs, and admitting some of the allegations contained in certain paragraphs of the petition, say, that the fiscal years of the city of Springfield begin on March 1 of each year and end on the last day of February of the succeeding year, and that the city council is required by law to adopt an annual appropriation ordinance the first quarter of each fiscal year; that there is no ordinance of the city of Springfield specifying the salary, or rate of pay of any police patrolman of the city, and the salary or rate of pay during any period is his aliquot part of the revenue available for compensating all police officers during such period; that no specific appropriation was made for the payment of salary to relator or any other police officer for the fiscal years, commencing on March 1,1935, 1936, or 1937; that by ordinance for the fiscal year beginning March 1, 1936, there was appropriated for salary of police officers, $85,680; for the fiscal year beginning March 1, 1937, a like sum; that the appropriations for police officers for the fiscal year beginning March 1, 1936, and for the fiscal year beginning March 1, 1937, for the months of March, April, May, June and July, 1937, have been expended in the payment of salaries of police officers actually performing police services, and that there is not available in the appropriation for payment of police officers during said fiscal period any sum in addition to those needed for the payment of officers actually performing police services and no appropriation for the payment of compensation to relator for the prior fiscal year, or any portion thereof, or for the months of March, April, May, June and July, 1937.

Petitioner moved the court in writing to strike from the files in this cause the answer of the defendants and to enter judgment therein, and for grounds‘of said motion among other things shows:

2. That the said answer is substantially insufficient in law and does not state facts showing that the said defendants, or either of them, have a legal defense to petitioner’s cause, or any part thereof. Upon a hearing of said motion the court sustained the same, and thereupon entered judgment. Appellants rely upon the alleged error of the court in striking their answer on the merits to said petition, and in entering judgment upon the petition in favor of petitioner and against appellants.

In their argument appellants say the gist of the matter is, that they are without power or authority to pay relator his back salary, and there are available no funds for such purpose; that the judgment of the circuit court cannot of itself confer power or authority to expend money contrary to law upon appellee. In addition to the lack of power on the part of appellants to perform the act sought to be coerced the right of relator has not been determined or fixed in such a way that appellants can pay such back salary. The appropriations for the preceding fiscal year, which were exhausted, and the appropriation for the current fiscal year, to pay the aggregate salaries of all the policemen, obviously do not fix the amount of monthly compensation payable to relator. Want of funds is a complete answer to a petition for mandamus to compel an officer to draw a warrant in a case of this character.

Appellants neither admit nor deny the allegations contained in paragraph 17 of the petition, which alleges that the judgment of the circuit court of Sangamon county in said certiorari proceeding is still in full force and effect, and that under such judgment relator was entitled to the office of police patrolman of the city of Springfield, and entitled to the salary and emoluments of said office, but in answer thereto they say that an appeal was taken from said order of the circuit court of Sangamon county within the time permitted by law and to the first term of the Appellate Court of the Third District, to which an appeal could be perfected, and that a petition for leave to appeal will be filed in the Supreme Court of the State of Illinois for the review of said decision of the Appellate Court of the Third District at the October Term, 1937, in the said Supreme Court, which is the first term of the court at which such petition may be submitted.

A writ of certiorari was issued upon the order of Honorable L. E. Stone, one of the judges of the circuit court of Sangamon county, and in response to said writ the civil service commission filed its return including the charge and findings and order of said commission. Upon a hearing upon the motion of the petitioner, Matthew Campbell, to quash the record of the proceedings, the court on March 4, 1936, entered an order quashing the record of the proceeding filed in said cause. This judgment of the circuit court in the certiorari proceeding was self-executing and required no process of any kind to enforce it. The law is, in the absence of a special statute to the contrary, that an appeal or supersedeas bond, or writ of error will not operate to suspend such a judgment. From the date of the entry of the order of the circuit court of Sangamon county on March 4,1936, in the certiorari proceeding, quashing the record of the civil service commission, the right of relator to the office of police patrolman was found and determined.

Although appellants allege in their answer that the appropriations for the fiscal years commencing March 1, 1936, and March 1, 1937, for the months of March to July, inclusive, have been expended in the payment of salaries of police officers and that there is not available in the appropriations for payment of police officers any sums in addition to those required for the payment of police officers actually performing services to the city of Springfield, there is no contention or claim in their answer that the salary due to relator was paid to some de facto policeman who discharged the duties of the office of relator for the time he was wrongfully prevented from discharging the same.

It not appearing from the record that the appropriation for the salary of his office has been paid to any one performing the duties of his office as police patrolman, relator is entitled to recover. It is immaterial that the appropriations for the police department of the city of Springfield for the fiscal years, 1935, 1936 and 1937, are exhausted. If exhausted it was without authority, so far as concerns the relator’s salary, as it does not appear to have been paid to any person who, without warrant of law, held relator’s office and performed his duties. Chicago v. Luthardt, 191 Ill. 516, 61 N. E. 410.

Relator was suspended on June 22, 1935, and on March 4, 1936, the record of the proceedings of the civil service commission was quashed in the certiorari proceedings and he was adjudged a de jure police patrolman and said judgment had not been reversed or modified up to the filing of the petition herein. The annual appropriation ordinances for the fiscal years beginning March 1, 1935,1936 and 1937, making appropriations for salaries of police officers were duly passed by the council of the city of Springfield and in each of which the annual salary of relator was provided.

We are of opinion that the right of relator has been determined and fixed in such a way that appellants can pay such back salary. The judgment commands the superintendent of police, C. F. Nuess, to forthwith assign relator to duty as police patrolman of the city of Springfield and commands appellants to place relator upon the pay rolls of said city of Spring-field, “and to pay the said Matthew Campbell the salary provided for the office of police patrolman from the fifth day of March, 1936, and thence forth until the said Matthew Campbell is retired or removed as provided by law from his said office as police patrolman, in such installments and at such times as may be provided by law. ’ ’

The amount to be paid as back salary in accordance with the writ issued, being the salary paid to a police patrolman, from March 5, 1936, to this date, to wit: the date of the writ, August 4, 1937, is certain. The person required to make payment, to wit: the city of Spring-field, and the person to whom payment is due is certain, and it was rendered by the circuit court of Sangamon county, a court of competent jurisdiction, and contains all the necessary elements of a valid judgment. Cooney v. Sweitzer, 205 Ill. App. 597.

There being a clear right to the payment of the amount wrongfully withheld and the only dispute or contention being as to the power and .authority of appellants to pay relator his back salary because of lack of available funds, mandamus is a proper and adequate remedy. A judgment awarding a writ of mandamus to compel re-instatement in office may include a command to pay salary. The relator was clearly entitled to be paid his salary from March 4, 1936, the date of the judgment of the circuit court in the certiorari proceeding, and was entitled to the writ to compel payment of the same. People ex rel. v. Thompson, 316 Ill. 11, 146 N. E. 473; Hittell v. City of Chicago, 327 Ill. 443, 447, 158 N. E. 683.

‘ ‘ The legal right to the office carried with it the right to the salary or emoluments of the office. The salary follows the legal title. This doctrine is so generally held by the court that authorities hardly need be cited. ’ ’ Chicago v. Luthardt, supra.

The relator in this proceeding is only seeking to recover back salary from March 5, 1936, to August 4, 1937, the date of the writ of mandamus, and the judgment of the circuit court only commands appellants to pay such salary for that period of time. The relator was, on March 4, 1936, adjudicated a de jure police patrolman of the city of Springfield by the judgment of the circuit court of Sangamon county in the certiorari proceeding, and as such is entitled to the salary as the same follows the legal title to the office. Appropriations were made for each of the fiscal years, commencing on March 1, 1936, and March 1, 1937, in the sum of $85,680, included in which appropriations was the compensation for salary to which the relator was entitled for those years, and if such appropriations are exhausted it is without authority, so far as concerns relator’s salary, as he during that time was a de jure police patrolman of said city, and as such his salary was due him, payable out of said appropriations, and the same could not legally be expended for any other purpose. Chicago v. Luthardt, supra.

The answer of defendants appellants, not having set forth facts constituting a defense to the granting of the petition of relator, the circuit court properly sustained the motion of relator to strike the same, and it did not err in entering judgment. We are of opinion that the judgment of the circuit court of Sangamon county should be affirmed, and the same is affirmed accordingly.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Davis

license: Public Domain

text:
    Paul W. Busse, Administrator with Will Annexed of Estate of Ernest Weppler, Deceased, Appellee, v. F. E. Muller and Elizabeth Muller, Appellants.
    Gen. No. 9,097.
    Opinion filed April 20, 1938.
    Rae C. Heiple, of Peoria, and C. L. Conder, of Pekin, for appellants.

      Ralph Dempsey, of Pekin, and P. A. D’Arcy, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

A judgment was entered by confession on May 3, 1937, in the circuit court of Tazewell county, in the sum of $1,179.67, in favor of Paul W. Busse, administrator with the will annexed of the estate of Ernest Weppler, deceased, plaintiff appellee, and against F. E. Muller and Elizabeth Muller, defendants appellants.

The judgment was entered upon a note for $1,000, drawing six per cent interest, payable to Ernest Weppler, with power of attorney to confess judgment. On June 1, 1937, appellants filed in the office of the clerk of said circuit court a motion to vacate said judgment, supported by the affidavit of F. E. Muller, one of the appellants. Upon a hearing on said motion and affidavit, on June 30,1937, the court upon motion of appellants granted them 15 days additional time in which to file additional affidavits in support of their motion to vacate said judgment and for leave to answer.

There was filed on July 13, 1937, the affidavit of Charles C. Nutty, in support of such motion.

In his affidavit F. E. Muller set forth that he was the same person who signed the note for $1,000, against whom judgment was rendered on May 3, 1937, for $1,179.67; that the payee, Ernest Weppler, was an uncle of his and on January 2,1920, he decided to make arrangements with his uncle to pay the principal and interest on said note, but was informed by his uncle that he preferred that affiant continue to pay only the interest on the note at that time; that affiant was in the grocery business and informed his uncle it would be an assistance to him, in paying the principal, if he would buy his groceries of him; that at the end of each year he would take credit for the sum on the principal of the note and would continue to pay him $60 cash as he had been paying until both principal and interest were paid; that his uncle agreed to this arrangement, and from that time until the death of his uncle he bought groceries, and a yearly settlement was made between affiant and his uncle; that affiant used the “McCaskey” system of accounts for all customers who bought their groceries on credit, making out a list of articles bought, in duplicate, on the sale slip, together with the prices therefor, the duplicate he gave to the customer and retained the original in the case in his store, provided for the same; from January, 1928, until January 1, 1936, he made yearly settlements with his uncle; that his uncle departed this life on January 31, 1936, and after his death he continued to deliver groceries to the widow up until the time of her death on May 30, 1936; that when making settlement on January 1, 1936, he took credit for $100, to apply on the principal of the note, for groceries sold and delivered to his uncle, and at that time he was indebted for both principal and interest on said note in the total sum of $37.71.

That he did not have possession of the note, nor did his uncle indorse, in his lifetime, any of the credits on the same so far as affiant knows; and that he did not know that his uncle failed to give him credit for the period of time from 1929 to 1936, inclusive, and no demand for payment of said note was made until after the death of his uncle and his widow.

Charles C. Nutty, in his affidavit, set forth that he was a resident of the city of Washington, and had been for a number of years; and that at the present time was employed at the Caterpillar Tractor Company in East Peoria; prior to securing work there he was engaged as clerk in the grocery and meat market operated by F. E. Muller; that he was so employed about two years, and started in the summer of 1933 and continued until the spring of 1935; that he knew Ernest Weppler in his lifetime, and frequently waited on him and sold and delivered groceries to him from the store of said F. E. Muller; that during all of the time that he worked for F. E. Muller the said Muller used what was known as the “McCaskey” system of accounts ; that he was instructed by Mr. Muller to charge to the account of Ernest Weppler groceries bought by him, and each time affiant sold groceries to Weppler he made out a list of the articles purchased on the “Mc-Caskey” sales slip with the prices and dates thereon, and delivered the duplicate copy thereof to Ernest Weppler, the original of which was kept in the case, so arranged that each account was readily accessible; at the expiration of each year an annual settlement was made between Muller and Weppler, and that on about January 1,1934, a yearly settlement was made for groceries bought during the year, 1933, and the statement was made out showing groceries in the amount of $100, to be credited on the $1,000.00 note, of which F. E. Muller and Elizabeth Muller were makers and Ernest Weppler the payee; that Weppler did not pay cash for the' same, but the sum of $100 was to apply on said note herein before referred to; that $60 was also paid Weppler in cash, or its equivalent, a copy of which statement so made, on the day and date indicated, is attached to and marked Exhibit A; that on January 1, 1935, Ernest Weppler came into the store to make a yearly settlement with F. E. Muller for groceries bought during the year 1934, and there was made out a sales slip, the duplicate of which was delivered to Ernest Weppler, wherein it stated “Groceries to apply on note, $100.00, plus int. $60.00”; that interest on said note was paid by Mr. Muller in cash to said Ernest Weppler; that there has been exhibited to him all of the sales slips, on which a credit was given for groceries sold and delivered to Ernest Weppler, which are as follows: “Exhibits A, B, C, D, E, F, G and H,” respectively; that said exhibits are identical and true copies of the originals which he saw during the time he was employed as clerk in said store, and which were kept in an envelope in the safe in said store, and were accessible to affiant.

Rule No. 26 of the Rules of Practice and Procedure of the Supreme Court is as follows:

“A motion to open a judgment by confession shall be supported by affidavit in the manner provided by Rule 15 for summary judgments, and if the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of the plaintiff’s demand, the court shall set such motion down for hearing. The plaintiff may file counter affidavits. If at the hearing upon such motion it shall appear that the defendant has a defense on the merits to the whole or a part of the plaintiff’s demand, and that he has been diligent in presenting his motion to open such judgment, the court shall then sustain the motion either as to the whole of the judgment, or as to such part thereof as to which a good defense has been shown, and the case shall thereafter proceed to trial and the complaint, motion and affidavit and counter affidavits shall constitute the pleadings unless the parties or either of them shall ask leave to file further pleadings.”

Rule No. 15 of the Rules of Practice and Procedure of the Supreme Court is, in part, as follows:

“Rule 15 (1). The affidavits in support of a motion for summary judgment shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the plaintiff’s cause of action is based; shall have attached thereto sworn or certified copies of all papers upon which plaintiff relies ; shall not consist of conclusions but of such facts as would be admissible in evidence; and shall affirmatively show that the affiant if sworn as a witness, can testify competently thereto. If all the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used.”

On August 2, 1937, the court having heard said motion, overruled the same and refused to vacate the judgment and to permit appellants to answer.

The court rightfully held that F. E. Muller, being a party to the suit, and the adverse party having sued as the administrator with the will annexed of the estate of said Ernest Weppler, deceased, he could not testify competently to the matters alleged in his affidavit, and further held that the affidavit of Charles C. Nutty did not set forth facts to show that defendants had a defense on the merits to the whole or a part of the plaintiff’s demand.

It does not appear from the affidavit of Charles C. Nutty that the defendants have a defense on the merits to the whole or a part of the plaintiff’s demand. Even though F. E. Muller sold groceries to Ernest Weppler, and that at the end of each year made out a statement showing groceries to the amount of $100 were credited on the $1,000 note in question, yet there is nothing in the facts set forth in the affidavit that shows that Ernest Weppler consented or agreed to have the amount he owed F. E. Muller for groceries credited upon the $1,000 note held by him.

The most that can be said is, that it establishes that the defendant, F. E. Muller, has a cross-demand against the estate of Ernest Weppler, deceased, for the amount due him for the groceries sold and delivered to Ernest Weppler in his lifetime.

A defense upon the merits is one which depends upon the inherent justice of the defendant’s contention, as shown by the substantial facts in the case, as distinguished from one which rests upon technical objections or some collateral matter. Black’s Law Dictionary, Third Edition.

A counterclaim or cross-demand, whether in the nature of a ’ set-off, recoupment, cross-bill in equity or otherwise, is not a defense on the merits to a demand of one or more plaintiffs against one or more defendants, and, for that reason, a judgment will not be opened up to permit a defendant to file a counterclaim.

We are of opinion that the circuit court of Tazewell county did not err in refusing to open up the judgment with leave to plead and the action of the court in overruling the motion is affirmed.

Affirmed.


text:
    W. A. Doss, Appellee, v. F. E. Sievers, Appellant.
    Gen. No. 9,100.
    Opinion filed April 20, 1938.
    C. E. Corbett and N. E. Hutson, both of Monticello, for appellant.
    Roy C. Freeman, of Urbana, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

On May 25, 1937, W. A. Doss, an attorney, as plaintiff, caused a judgment to he entered against F. E. Sievers in the sum of $155.76, in the county court of Piatt county. This is an appeal from a judgment of said court entered on August 16, 1937, denying a motion of defendant appellant, F. E. Sievers, filed in said cause on August 11, 1937, with affidavit in support thereof, to open up said judgment and for leave to plead to the complaint, previous motions having been made and dismissed by the court on motion of appellee, W. A. Doss, with leave to appellant to file an additional motion by August 12, 1937.

On August 11, 1937, W. A. Doss, plaintiff appellee, filed a motion, supported by his affidavit, to strike the motion filed by appellant, in which he set forth many grounds for the granting of said motion, among which are, that the motion was not supported by a proper affidavit, and that the statements, matters and things set up in the motion and affidavit of appellant, in the main, are not statements of facts properly pleaded but merely conclusions of the pleader, and strictly forbidden by the new Practice Act of Illinois, and many other argumentative reasons that are entirely irrelevant on a hearing of such a motion, and covering over seven typewritten pages in the record filed in said cause.

Rule 26 of the Rules of Practice and Procedure of the Supreme Court points out the procedure to be followed in opening up a judgment by confession. The motion shall be supported by affidavit in the manner provided by Rule 15 for summary judgments, and if the motion and affidavit disclose a prima facie defense on the merits, the court shall set such motion down for hearing, and plaintiff may file counter affidavits. If, at the hearing upon such motion, it shall appear that the defendant has a defense on the merits, the court shall then sustain the motion.

There is no provision for the making of a motion to strike, but the matter is heaid solely upon the motion and affidavits of the defendant and the counter-affidavits filed by plaintiff, and appellee, W. A. Doss, having failed to file any counter-affidavit in defense of his judgment, the matter came up for hearing in the county court of Piatt county upon the motion of the defendant and an affidavit in support thereof.

It appears from the affidavit of appellant, F. E. Sievers, that the note, upon which the judgment by confession was rendered, was not given for any good and valuable consideration and that W. A. Doss, acting as attorney for the Moore State Bank of Monticello, Illinois, instituted a suit upon a $500 note, payable to said bank, and a judgment by default was obtained on April 14,1932, against F. E. Sievers and his wife, Ellen Sievers. This note was one of a series of notes, payable to the Moore State Bank which were secured by a trust deed.

In May of 1932, a conference was had at the law office of W. A. Doss, in Monticello, concerning the collection of this judgment and the collection of the remaining notes due the bank, which were in the hands of Doss for collection. At this conference W. A. Doss, while representing the Moore State Bank as its attorney in the collection of this judgment and these notes, told appellant, Sievers, that he, Doss, was at the same time looking after the interests of appellant and his wife, Ellen Sievers, in the matter of the collection of the notes and judgment.

Doss said to appellant that he and his wife owed him an attorney’s fee for such services as he had performed for them in the matter of handling the collection of the notes due said Moore State Bank, and that a reasonable attorney’s fee for the services alleged to have been performed, amounted to $200, but that he would cut said fee in half and settle with appellant and his wife for $100, and, after appellant stated he had no money to pay any such fee, Doss told Sievers that he would take his note for said fee of $100. Appellant, Sievers, acting upon the representations made by W. A. Doss, and under the erroneous belief that Doss had actually performed legal services for appellant and his wife, Ellen Sievers, and acting under the mistaken belief that he and his wife were legally indebted to said Doss for the services alleged to have been performed, and being induced by such representations made by Doss as aforesaid, appellant then and there executed said $100 note, which has been placed in judgment. Appellant, Sievers, learned after he had executed the note that W. A. Doss never performed any services for himself and wife in the matter of the collection of said notes due the Moore State Bank, and that Doss never at any time performed any services for him and his wife, and that the only services Doss performed in the matter of such collections was for the Moore State Bank in filing suit on said $500 note and in taking judgment thereon.

It appears that Doss, while acting as attorney for the Moore State Bank in the matter of the collection of the notes in his hands, signed by appellant and his wife, informed appellant that he was representing appellant and his wife as their attorney and looking after their interests in the matter of the collection of the notes and the judgment he had obtained, and that they owed him $200, attorney’s fees, and took the note for $100 from appellant on that claim.

From the record in this proceeding it appears the $100 note was procured from appellant, Sievers, by W. A. Doss by false representations and without any consideration whatever, and the county court of Piatt county erred when it overruled the motion of appellant for leave to open up such judgment and permit appellant to file an answer to the complaint, as it appears that appellant has a defense on the merits to the whole of appellee’s demand.

The judgment of the county court of Piatt county, overruling the motion of appellant, F. E. Sievers, to open up judgment and for leave to answer, entered in said court on August 16, 1937, is reversed and said cause is remanded to said court with directions to enter an order opening up said judgment and permitting the defendant, Sievers, to answer the complaint filed in said cause, and staying further proceedings on said judgment until the further order of the court, and ordering that said original judgment stand as security.

Reversed and remanded with directions.


text:
    Ray M. Cook, Receiver of First National Bank in Mt. Olive, Illinois, Appellee, v. City of Staunton, Appellant. Trust Company of Florida, Appellee, v. City of Staunton, Appellant. First National Bank of Livingston, Illinois, Ray M. Cook, Receiver, Appellee, v. City of Staunton, Appellant. C. W. Weis, Appellee, v. City of Staunton, Appellant.
    Gen. No. 9,113.
    Gen. No. 9,114.
    Gen. No. 9,115.
    Gen. No. 9,116.

      Opinion filed April 20, 1938.
    Rinaker & Smith, of Carlinville, for appellant.
    Alvin G. Whitehouse, of Gillespie, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

The Trust Company of Florida instituted its action in assumpsit in the circuit court of Macoupin county to the September Term, 1928, thereof, and filed its declaration, by the first count of which it alleged that the defendant, the city of Staunton, a municipal corporation, on October 1, 1917, executed and delivered to the plaintiff six certain bonds, in the principal sum of $500 each, bearing interest at the rate of 5 per cent per annum from date, payable annually, all payable to bearer, and falling due on October 1, 1927; that said bonds were a part of a bond issue for a certain local improvement in said city, known as “Sidewalk Improvement Number 1,” and each of said bonds were payable out of the seventh instalment of the special assessment levied for that purpose; that neither the bonds nor the-interest thereon have been paid; that the city collected the seventh instalment levied to pay these obligations; that the money so collected was diverted for other corporate purposes, and that by reason thereof the defendant is liable to pay plaintiff the amount of said bonds with interest.

The second count of the declaration alleges the execution and delivery of seven other bonds of Series 8, in the sum of $500 each, with 5 per cent interest, falling due October 1,1928. The third count alleges the execution and delivery of 20 other bonds of Series 9, in the sum of $100 each, with 5 per cent interest, falling due October 1,1929. The fourth count consists of the common counts, for money had and received.

The defendant demurred to the declaration, which demurrer was overruled by the court, and the defendant thereupon filed a plea of the general issue to which plea the plaintiff filed its replication. Since the institution of the suit said bank became insolvent, and M. A. Smith was appointed liquidator thereof and was substituted party plaintiff.

The First National Bank of Livingston instituted its suit against the city of Staunton, Illinois, to the June Term, 1929, of the circuit court of Macoupin county, and filed its declaration, to which a plea of the general issue was filed and replication by plaintiff thereto; that since the filing of this suit the First National Bank of Livingston became insolvent, and Ray M. Cook was appointed receiver and was substituted as plaintiff. On November 17, 1937, after the city of Staunton filed its notice of appeal in said cause on October 11, 1937, and after appellee, First National Bank of Livingston, filed its notice of cross appeal on October 16, 1937, a stipulation was entered into whereby the plaintiff sold to John Augustine, Jr., all its interest in said cause of action and substituted said John Augustine, Jr., as plaintiff (appellee and cross appellant). No order of this court has been entered substituting said John Aug’ustine, Jr., as party plaintiff and the First National Bank of Livingston, Bay M. Cook, receiver, is appellee and cross appellant in said canse.

The First National Bank of Mt. Olive instituted its suit against the city of Staunton, to the June Term, 1929, of the circuit court of Macoupin county and filed its declaration and amendment thereto. Since such suit was filed the bank was consolidated with the First National Bank in Mt. Olive and the bonds owned by it were delivered to said First National Bank in Mt. Olive and subsequent to such consolidation Bay M. Cook was appointed receiver of said bank and was substituted by order of court party plaintiff.

The declaration filed in the suits of the First National Bank of Livingston, Illinois v. The City of Staunton, Gen. No. 9,115, and the First National Bank of Mt. Olive, Illinois, and Bay M. Cook, receiver, Gen. No. 9,113, were all in effect similar to the declaration in the case of Trust Company of Florida, Gen. No. 9,114, and the same issues were raised by the pleadings as in said case Gen. No. 9,114, the declarations differing in the amounts and number of the bonds sued upon and the instalment or instalments of the special assessment out of which they are payable.

It was stipulated and agreed by the respective parties to the above entitled causes that O. W. Weis is the holder of certain bonds, of the same kind and character as those held by plaintiffs in said above mentioned causes; that he has not instituted suit against the city of Staunton, but that the city is desirous of securing a determination upon all of the bonds of said improvement now outstanding; that for this purpose said C. W. Weis is to be considered as having filed his suit upon the bonds held by him (as of March 1,1932); that he is to be considered a party in this matter and have his rights as a holder of certain of said bonds the same as if he had actually instituted a suit in assumpsit, or filed his complaint in law against the city of Staunton; that to the suit or claim of said C. W. Weis the city of Staunton desires to raise the question of the statute of limitations, and for such purpose there may be filed, if desired, a plea or answer of said city raising all specific legal questions proper to be raised under a plea of the statute of limitations.

No such plea was filed and the rights of said C. W. Weis was determined along with the other parties to said suits, and notice of appeal served upon him, and he served and filed a notice of appearance and cross appeal from the judgment of the circuit court in like manner as the plaintiffs in the other suits, and no question is raised by any of the parties in any of said proceedings as to his rights to have his claim adjudicated and to file a cross appeal from the judgment of the circuit court. It was stipulated by the parties to said causes, and consented to by the court, that said four suits be consolidated for the purpose of trial and that the court enter separate judgments in each of the suits, and that the original documents offered in evidence on the trial of said causes be made a part of the record in the case of Ray M. Cook, receiver of the First National Bank in Mt. Olive, Illinois, v. City of Staunton and transmitted to the Appellate Court, Third District, in lieu of copies of the same; and that said original documents may be taken and received by the Appellate Court in said causes.

In the record filed in each of said separate causes, including the cause of C. W. Weis, the following appears: “Now on this 29th day of March, A. D. 1937, this cause coming on to be heard by the court, plea of defendant and replication of plaintiff thereto filed. Cause submitted on stipulation and exhibits filed in law, 1402, (Trust Company of Florida v. City of Staunton), and taken under advisement by the court. Briefs to be submitted.”

On September 22, 1937, the court found the issues in favor of each of the respective plaintiffs and against defendant and entered a separate judgment in each of said causes in favor of plaintiff and against defendant. Separate notices of appeal to the Appellate Court of Illinois, Third District, were served and filed in each case on October 11, 1937; and the respective plaintiffs in each case served and filed notice of appearance and cross appeal. On January 4, 1938, an order was entered by the Appellate Court consolidating said cases and ordering that the abstract, briefs and arguments filed in the case of Ray M. Cook, receiver of the First National Bank in Mt. Olive, Illinois, Gen. No. 9,113, be taken and considered by the court as if the same had been filed in each of said causes.

Appellant, the city of Staunton, Illinois, makes no complaint as to the amounts of the judgments rendered, but contends that the judgments were contrary to the law and evidence in the case for the reason that the plaintiffs were not entitled to prorate in the collections made by the city unless they can first show that the bonds were issued in compliance with the statute.

Appellees say that the plea of the general issue was the only plea filed by the defendant and no question of the invalidity of or irregularity in the bonds can be raised under such a plea. The authority of the city of Staunton to issue bonds is granted by statute, and if there is authority to issue bonds a municipality may, by levying and collecting taxes for their payment or paying part of the principal thereof or interest thereon, become estopped to deny that they are binding obligations because of irregularities or defects in their issuance or in the proceedings preliminary thereto.

Appellees in their notice of cross appeal contend that the court erred in failing and refusing to include in the judgments for plaintiffs interest on the amounts found to be due from the day of the filing of the suit or collection of the money by the city as shown by the evidence.

It is contended by appellant that the bonds were issued in direct violation of the provisions of the Local Improvement Act, and that the judgments should be reversed for the reason that the obligation of a trustee cannot be imposed upon the city when predicated upon a bond issue which violates the plain provisions of the statute.-

In support of its contention appellant advances three reasons : the first of which is that under the provisions of the statute each series of bonds shall become due at sometime in the year in which the corresponding instalment will be actually collected, and that the bonds issued against the respective instalments do not mature during the calendar year in which the respective instalments become due and payable. The second contention is that the bond issue violates the plain provisions of the statute for the reason that bonds could only be legally issued against the second and succeeding instalments. Series 1 of the bonds was payable out of the first instalment, and succeeding series were payable out of their respective succeeding instalments. Another reason advanced is, that the aggregate amount of bonds issued were in excess of the amount of the assessment spread and confirmed by the county court.

These suits were instituted prior to the adoption of the Civil Practice Act and were in assumpsit and to the declarations pleas of the general issue were filed. No special pleas and no answers containing new matter by way of defense or counterclaim were filed and the affirmative defense now raised by appellant not having been specially pleaded and no answer having been filed containing such new matter by way of defense to the action, it would appear that the question of the legality of the bonds was not an issue in these cases.

The discrepancies in the issuing of the bonds and the failure to comply strictly with the provisions of the statute, as pointed out by appellant, are at most irregularities which might be taken advantage of by one against whose property a special assessment was levied, but not by the city issuing the bonds that wilfully or negligently failed to apply toward the discharge of its obligations the funds collected by it for that purpose. There is a distinction between contracts which are ultra vires and contracts which are within the power of the city to make but which have been irregularly or illegally made but have been performed in good faith. Notwithstanding such irregularities in the issuing of the bonds the city has collected the assessments levied with which to pay said bonds and interest thereon, and paid in full all of the bonds of the first six series, and none are outstanding, and is es-topped to set up as a defense in a suit instituted for the collection of such bonds as are outstanding its own irregularities in the execution of a power clearly granted it. McGovern v. City of Chicago, 281 Ill. 264, 118 N. E. 3.

In Rothschild v. Village of Calumet Park, 350 Ill. 330, 183 N. E. 337, it is said, in substance: The proceeds of special assessments are trust funds for the payment of the bonds issued for the cost of the improvement. The bonds issued against each instalment of the assessment, together with the interest, are payable as such instalment and the interest on it are collected and under the provisions of the statute, and by the express terms of the bonds themselves the instalments are the only source of payment of the bonds, and when they are collected by the municipality the money received becomes a trust fund for the payment of the bonds to the holders, without preference among them. When the bonds of any year become due, and the collection from the instalment for that year is insufficient to pay them, the bondholders are entitled to the amount collected, and it is the duty of the trustee — the municipality — to pay upon each bond issued against the instalment its share, pro rata, of that amount.

It is also contended by appellant that it received the sum of $81,535.90, and paid out all but 96 cents of that amount on account of the bond issue and interest. The evidence discloses that a part of this money, that the city admits having received, was money collected for the payment of the bonds issued ag’ainst the seventh, eighth, ninth and tenth instalments of the assessment, and as such could only be used in the payment of such bonds, and the use of such funds for the payment of any other bonds would be an illegal application of the same and no defense to the actions of appellees.

In People ex rel. Anderson v. Village of Bradley, 367 Ill. 301, it is said: “The village could not lawfully appropriate any part of those funds to other corporate uses. The withdrawn funds are treated as still in the custody of the village for the purpose of paying the liability imposed by its contract for the improvement. To permit the village to say it no longer has the money, or is unable to pay, would be to place municipalities in a position to defeat the lawful claims of contractors who have, in good faith, fulfilled their undertakings for the construction of, or the furnishing of materials or labor for, local improvements. The law will not countenance the evasion by a village of its debts, by either its wilful or negligent failure to apply towards the discharge of that obligation funds collected by it for the specific purpose of meeting such demand. ’ ’

The city of Staunton, having received the money levied for the purpose of paying the bonds and interest thereon, payable out of the seventh, eighth, ninth and tenth instalments, it cannot be heard to say that it has paid the same out for other corporate purposes, and we are of opinion that the circuit court rightfully determined that appellees could recover against the city.

This is an action of assumpsit, under the common counts, for money had and received, and is an appropriate remedy to enforce the equitable obligations arising from the receipt of money by one person which belongs to another, and which in equity and justice should be returned. The action is in form ex contractu, but the alleged contract being purely fictitious, the right to recover does not depend upon any principles of privity of contract between the plaintiff and the defendant and no privity is necessary. The right to recover is governed by the principles of equity, although the action is at law. Highway Commissioners v. City of Bloomington, 253 Ill. 164, 97 N. E. 280.

In Conway v. City of Chicago, 237 Ill. 128, 86 N. E. 619, it is said: “While appellee’s ownership of past due bonds issued in anticipation of this special assessment is a necessary element in his right to recover in this case, still this is not a suit upon the bonds in the tenor and effect of the instruments but it is essentially a suit against the city for money had and received to the use of appellee, which in good conscience ought to be paid to him. ’ ’ It will, therefore, be seen that under this action, equitable in its nature, the city may be compelled to carry out the trust reposed in it for the benefit of the bondholders.

The trial judge in his statement of the reasons for his decision indicated that he had disregarded the claims of the several plaintiffs for interest upon the amount found due them respectively for the reason he was unable to satisfy himself as to the date the funds were received by defendant.

The evidence discloses that there was collected by the city on instalments seven, eight, nine and ten of the special assessment levied in connection with said improvement, and paid into the city treasury the following sums: Seventh assessment instalment, — $7,303.85. Eighth assessment instalment, — -$7,375.96. Ninth assessment instalment, — $7,267.97. Tenth assessment instalment, — $7,284.17. Said amounts above set forth 9-re of the principal only, and in 9ddition thereto there was collected by said city the sum of $7,183.36 as interest on the various instalments, 10 in number.

It further discloses that after the approval of the assessment roll the city of Staunton proceeded to collect and did collect the amounts above set forth and in addition thereto the first six assessrnent instalments for the purpose of retiring the bonds in payment of this local improvement and interest thereon, and the amounts so collected were paid over to the city treasurer, but, notwithstanding collection of the amounts above set forth in instalments numbered seven to ten respectively, and a demand by the respective parties for the amounts so collected and interest thereon, failed to apply such collections toward the retirement of these bonds when and as they became due on each of them, except as to certain payments of interest.

Cross appellants say it is well settled that a municipality is liable for interest on amounts collected for the payment of special assessment bonds and wrongfully withheld from the persons entitled thereto; that the trial court recognized this rule but allowed no interest, and for that reason the appellees served notice of appearances and cross appeal.

The liability of appellant for interest in these cases is not based upon its. undertaking to pay interest, the suits not being upon the bonds in the sense that recovery must be according to the tenor and effect of the instruments, but are actions of assumpsit for money had and received and interest is allowed in such actions under section 2 of the Interest Act [Ill. Rev. Stat. 1937, ch. 74; Jones Ill. Stats. Ann. 67.02] on money had and received to the use of another and retained without the owner’s knowledge. Rothschild v. Village of Calumet Park, supra.

While municipalities as a general rule are not liable on their contracts for interest in the absence of an express agreement to pay, yet, when money is wrongfully obtained or when it is lawfully obtained and unlawfully and wrongfully withheld, the municipality is liable for interest to the same extent as a private person. It is admitted by appellant that it received the money and used it to retire bonds other than those for which it was levied and collected. Appellees’ right to demand interest of appellant accrued when they became entitled to demand and receive the funds under these bonds. Conway v. City of Chicago, supra.

Although the evidence fails to disclose the exact time when the city received the money payable under instalments numbered seven to ten, inclusive, yet it is certain that at the several dates upon Avhich the suits were instituted, the respective plaintiffs were entitled to demand and receive the funds collected for the payment of the bonds sued upon, appellant admitting that prior to said dates it had misappropriated the funds collected for the payment thereof.

We are therefore of opinion that the several plaintiffs other than C. W. Weis are entitled to recover interest at the rate of five per cent per annum from the dates of the institution of their respective suits and C. W. Weis from March 1, 1932, the date he was considered to have filed his suit, upon the respective amounts found due them by the trial court, to the date of the entry of judgments therein, and that the trial court was in error in not awarding interest upon said amounts found due the respective parties.

The judgments of the circuit court of Macoupin county in said respective suits are reversed and said causes remanded with directions to enter judgments for the respective plaintiffs and against the defendant, the city of Staunton, for the several amounts found due them by the court, together with interest at the rate of five per cent per annum upon said respective amounts from the dates of the institution of their respective suits as to said plaintiffs other than O. W. Weis, and as to said C. W. Weis from March 1, 1932.

Reversed and remanded with directions.


author: Mr. Justice Biess

text:
    Eldo F. Beery et al., Appellants, v. W. S. Hurd et al., Appellees.
    Gen. No. 9,055.

      Opinion filed April 20, 1938.
    W. A. Doss, of Monticello, John B. Fitzgerald, of Decatur, and Arnold Sievers, for appellants.
    Reed & Reed, of Monticello, for appellees Martha Hurd, Lillian Hurd and W. S. Hurd.
   Mr. Justice Biess

delivered the opinion of the court.

Plaintiff appellants, as judgment creditors, filed a verified bill of complaint in chancery under the former Practice Act, praying discovery of assets of defendant appellee Walter S. Hurd alleged to be held by Martha Hurd or Lillian Hurd and seeking to set aside two certain deeds from said defendants Walter S. Hurd and Lillian Hurd, his wife, conveying to Martha Hurd, his mother, all interest in a residence property in Decatur, Macon county, and in and to 320 acres of farm land, being the north half of a certain Section 36 in Piatt county, on the ground that the deeds were fraudulent, made without consideration, and given to hinder and delay creditors. The bill of complaint was dismissed for want of equity at the cost of complainants and an appeal from that order was taken to this court.

Verified answers were filed by said defendant appellees Martha Hurd, Walter S. Hurd and Lillian Hurd denying that said deeds were given without adequate consideration or were either fraudulent or made to hinder or delay creditors and averring that they were given in part payment and satisfaction of a bona fide pre-existing' indebtedness due from Walter S. Hurd to Martha Hurd for moneys borrowed from and advanced by her to him and for unpaid cash and crop rentals due her for use and tenancy of part of the premises conveyed in said deeds.

Defendant Walter S. Hurd is a son of said Martha Hurd and of Henry Hurd, who departed this life in 1919. The Hurd family, consisting of Henry Hurd and Martha Hurd, his wife; their son, Walter S. Hurd, and Lillian Hurd, his wife, and Pauline Hurd, daughter and only child of Walter S. and Lillian Hurd, who later married one Turner Hearing, lived together in the residence property in controversy in the city of Decatur, from the year 1907 until the death of said Henry Hurd in 1919 and so continued to reside therein at all times thereafter.

In 1916, Henry Hurd and Martha Hurd, his wife, conveyed a life estate in the northwest quarter of said Section 36, being 160 acres of land in Piatt county, to Walter S. Hurd and Lillian Hurd with the remainder in fee simple to the heirs of their bodies and also reserving to themselves a life interest therein during the life of Henry Hurd. Said grantors Henry Hurd and Martha Hurd at that time also conveyed the northeast quarter of said Section to Walter S. Hurd in fee simple, reserving unto themselves and to the survivor a life estate therein and further providing that at the death of the survivor, Walter S. Hurd should pay the sum of $6,000' to his brother, Oscar Hurd.

Upon the death testate of Henry Hurd in 1919, his will was duly probated in the county court of Macon county, in which he bequeathed a personal estate consisting of notes, grain, bank stock and other personal property of substantial value to his said widow, Martha Hurd. Walter Hurd thereafter continued to farm all of the lands in Piatt county, and in 1926 and subsequent years, the same was so farmed by Walter Hurd under a renewed written lease from Martha Hurd.

On April 4, 1932, all interest of Walter S. Hurd and Lillian Hurd to the Decatur residence property and the half section of 320 acres of farm lands in question were conveyed by two quitclaim deeds to Martha Hurd, and the deeds, each reciting a consideration of $4,000 “and other valuable considerations,” were delivered and filed for record on that day.

At the time of the conveyance of the Decatur residence property, a mortgage lien of $2,000 was held against the same by the Millikin Trust Company as trustee; Martha Hurd held the homestead interest therein of the value of $1,000, and a judgment lien existed against the same in the sum of $2,320 by virtue of a judgment taken in the circuit court of Macon county by one J. E. Chapman on March 29, 1932, and thereafter duly assigned to Turner Nearing, which lien remained in full force and effect at the time of the conveyance of said property on April 4, 1932. It also appears that on April 11, 1932, Walter S. Hurd had conveyed a certain 10 acre tract in Macon county to his brother, Oscar B. Hurd, for money advanced to him and that this conveyance, not in controversy herein, was made in payment of said indebtedness.

On March 28, 1932, Walter S. Hurd executed without request a chattel mortgage on his livestock and implements to Ms mother, Martha Hurd, to secure a promissory note of that date for $3,260 due two years after date, which mortgage was not recorded nor foreclosed, and the property was subsequently levied upon and sold at public vendue by judgment creditors of Walter Hurd.

At the time of the transfers of the above real estate, Walter Hurd was indebted to several of the plaintiff appellants and judgments were thereafter taken by them against him between the dates of June 27 and July 28, 1932, on which judgments executions were issued to the sheriff of Piatt county, duly served and returned “No Property Found,” and said judgments in excess of $7,000 remain unsatisfied. Lena S. Lugg, an original party defendant, recovered judgment on July 23, 1932, in the circuit court of Macon county, against both Walter S. Hurd and Mrs. Walter S. Hurd, being’ Lillian Hurd, the wife hereinabove referred to, in the amount of $3,069.20 on an indebtedness existing before said transfer was made; execution issued thereon and was duly returned “No Property Found.” A transcript of said Lugg judgment was filed in the office of the circuit clerk of Piatt county on September 15, 1934, and execution issued thereon, but said judgment has not been paid.

Under prayer for discovery, defendants produced and plaintiffs and defendants offered in evidence numerous books of account, records of bank deposits and pass books, itemized records of sales of crops and products of the farm between the years 1921 and 1932, inclusive; numerous notes executed by Walter S. Hurd to Martha Hurd and to other parties hereto and 69 exhibits were so admitted for the plaintiff and 14 exhibits for the defendant, together with voluminous oral testimony preserved in the record herein, some of which oral evidence was of a contradictory and controversial nature.

The special master, to which the cause was referred, reported the testimony and made findings and conclusions recommending the relief prayed for in the bill, to which objections were filed by defendant appellees, overruled by the special master, stood as exceptions, and when so heard by the trial court, were sustained, and a decree was entered dismissing the suit for want of equity at the cost of complainants.

It appears from the evidence that in 1916, Martha Hurd and Henry Hurd had reserved a life interest in the northwest quarter of said Section 36 in Piatt county upon which the buildings were located for and during the life of Henry Hurd only. Henry Hurd having died in 1919, Martha Hurd appeared to have no further interest therein.

The book accounts showing itemized yearly records of the gross income from crops for the years 1921 to 1932, inclusive, with bank deposit accounts and oral evidence offered, showed the income from crops to have been kept in one account covering such income from the entire north half of said Section 36 and aggregated somewhat in excess of $50,000; the greater proportion approximating four-sevenths thereof was, however, shown to have come from the northeast quarter, wherein Martha Hurd had reserved a life interest and was entitled to all rents and profits accruing therefrom, being an amount in excess of $17,000 on the basis of rentals payable under the written lease thereof, as renewed in 1926. The credits of rents and taxes paid to or for Martha Hurd by Walter Hurd, as shown by the books and oral evidence, were $5,562.23, and although it appears from the evidence that Martha Hurd repeatedly asked for and insisted upon settlement by Walter Hurd and that some of the above payments were so made at intervals and promises made by him to make settlement of the remainder, there still remained due and unpaid on April 4, 1932, rents and profits in an amount in excess of $11,000.

It also appears from the evidence, notes and exhibits, that Walter Hnrd was indebted to Martha Hurd on two promissory notes: one for $2,500 dated in 1924 for bona fide cash loans deposited in bank for purposes shown in the evidence, upon which two years interest had been paid, and the other note for $3,500 dated July 1, 1926, for moneys which she had advanced to him to meet liability for assessments on bank stock owned by him.

All of these claims, aggregating in excess of $17,000, principal, on which interest was also chargeable, were in the nature of a pre-existing bona fide indebtedness due from Walter Hurd to Martha Hurd at the time of the execution and delivery of the deeds to the real estate in question and constituted a valuable consideration as recited in the deeds. There was considerable conflict in the testimony of a number of witnesses as to the fair cash market value of the premises conveyed to Martha Hurd; the farm lands being estimated by plaintiffs’ witnesses at valuations ranging from $150 to $175 per acre and by defendants’ witnesses, which included men who were making valuations for purposes of loans for financial institutions in that vicinity, at $85 to $90 per acre. The evidence showed that at the time of this transfer in 1932, few if any sales of real estate were being made in that vicinity and that values in the real estate market were at a low ebb.

By the conveyances from Walter Hurd and Lillian Hurd to Martha Hurd in 1932, their life interests only in the northwest quarter passed to Martha Hurd and their interest in fee simple in the northeast quarter was so conveyed and merged with the life estate already vested in Martha Hurd, and subject to the further payment of a $6,000 lien to Oscar Hurd upon the death of Martha Hurd as provided in the original deed. The Decatur residence property was so conveyed subject to the homestead rights of Martha Hurd and to the judgment lien of $2,300 held by Turner Nearing and a $2,000 mortgage lien held by the Milli kin Trust Company. It was also shown that Martha Hurd had contributed about $4,000 in money to the construction of the residence building thereon. The fair cash market value of this property was estimated as being from $6,000 to $8,500.

Each of the two quitclaim deeds conveyed all interest of Walter S. Hurd and Lillian Hurd to these properties reciting a consideration of $4,000 “and other valuable considerations.” It thus appears that these conveyances were based upon adequate valuable consideration as between the parties thereto.

It is contended by the plaintiffs that a portion of the claims of Martha Hurd covering unpaid rentals prior to 1927 were barred by the statute of limitations, and that the bar of the statute could not be waived as against the claims of other creditors. The defense of the statute of /limitations has been held by the courts of review of this State to be a personal one as between the debtor and the creditor and to be availed of can only be pleaded or taken advantage of by the debtor or someone standing in his place or stead and cannot therefore be availed of by creditors of Walter S. Hurd who held no judgment or other lien against the premises at the time of conveyance. Woodford County Nat. Bank v. Conklin, 292 Ill. App. 53, 10 N. E. (2d) 864; Fish v. Farwell, 160 Ill. 236, 43 N. E. 367; Emory v. Keighan, 94 Ill. 543; Roberts v. Tunnell, 65 Ill. App. 191; Cartwright v. Cartwright, 68 Ill. App. 74; Manchester v. Tibbetts, 121 N. Y. 219, 24 N. E. 304.

The fact that Martha Hurd lived in the family relation with Walter Hurd did not destroy her rights' to demand or receive payment of any bona fide indebtedness due to her from her son, Walter, nor was she required to bring suit or place her claims in judgment, as contended by plaintiffs, before accepting payment thereof by a bona fide conveyance of real estate. While the fact that the grantor and grantee were members of the same family subjects the transaction to closer scrutiny than if the parties were strangers, this fact does not of itself attain the dignity of proof of fraud as to third persons, since one relative may protect another who is his creditor if the transaction is in good faith; nor does the fact that the parties are so related create a presumption that there was not a bona fide indebtedness. Byerly v. Byerly, 363 Ill. 517, 2 N. E. (2d) 898; Woodford County Nat. Bank v. Conklin, supra; American Hoist & Derrick Co. v. Hall, 208 Ill. 597, 70 N. E. 581.

Fraud is never to be presupposed, but must be established by convincing proof and by the greater weight of the evidence, as men are presumed to be honest and their dealing’s with one another are assumed to be just and without taint. Byerly v. Byerly, supra; Woodford County Nat. Bank v. Conklin, supra; Third Nat. Bank of Mt. Vernon v. Norris, 331 Ill. 230, 162 N. E. 829; American Hoist & Derrick Co. v. Hall, supra; First Nat. Bank of Flora v. Cunningham, 267 Ill. App. 430.

The fact that a conveyance would render the debtor insolvent or that the same was made at a time when the grantor was being pressed to make payment of demands to other creditors would not render the same fraudulent or void as to creditors when based upon such adequate consideration and in payment of a bona fide pre-existing indebtedness. A debtor has a right to prefer a creditor, when he acts without fraud, even thoug’h he devotes all of his property to the preferred creditor, leaving nothing for his other creditors to resort to. Third Nat. Bank of Mt. Vernon v. Norris, supra; Woodford County Nat. Bank of Conklin, supra; First Nat. Bank of Flora v. Cunningham, supra; 27 C. J. 629.

The book accounts kept by the defendant Walter S. Hurd of rents and proceeds of sale of crops and products of the farm and of all payments of taxes, insurance, repairs or credits on rentals were offered in evidence together with pass books and documentary evidence offered by the respective parties of a voluminous nature, all of which were duly considered by the trial court and by this court upon review, and we hold that the decree of the trial court finding as above is amply sustained by the evidence. While we cannot undertake to recite in detail or analyze the voluminous evidence offered herein, this court is of the opinion that the trial court did not err in decreeing that the transfer of all interest of Walter S. Hurd to Martha Hurd in the real estate in question was not shown to be fraudulent, without adequate consideration nor made to hinder or delay creditors.

Subsequent to making the above conveyance, the defendant Lena S. Lugg secured a judgment in Macon county against both Walter S. Hurd and Lillian Hurd upon a promissory note in the sum of $3,069.28. In her answer, she sets up this judgment and asks “that the rights and interest of all the parties may be determined herein as though they had filed a cross bill in this behalf, and that upon a hearing thereof that an order may be had in this behalf compelling Defendants, or some of them, to satisfy judgment against the said Walter ,S. Hurd and Mrs. Walter 8. Hurd and that the Defendant may have such other and further relief as equity may require and to your Honor shall seem meet and just. ’ ’

After the decree was entered, a stipulation was entered into by the parties and an order entered by the court to the effect that a cross-bill or counterclaim might be filed by her setting up her alleged counter action and asking for affirmative relief, but for some reason the same was not filed and does not appear in the record. It does not affirmatively appear from the pleadings or evidence that the conveyance by Lillian Hurd to Martha Hurd rendered the former insolvent nor that the conveyance was made to fraudulently hinder or delay her creditors. The original bill was filed and sought relief only for the creditors of Walter Hurd. By failing to set up her alleged counter action against Lillian Hurd in a cross-bill or counterclaim with appropriate prayer for relief and to sustain the allegations thereof, the defendant Lugg is now in no position to insist in this court upon a reversal of the decree rendered in the court below. Lewis v. Lewis, 316 Ill. 447, 147 N. E. 411; Rolinitis v. Rolinitis, 335 Ill. 260, 167 N. E. 68.

In Higgins v. Higgins, 219 Ill. 146, 153, 76 N. E. 86, 89, the court said: “It is a primary rule, always enforced and sustained by numberless decisions, that the allegations of the bill, the proof and the decree must correspond; that facts disclosed by the evidence which would warrant relief will not sustain a decree where the facts are not alleged in the bill. (Dorn v. Geuder, 171 Ill. 362.) ... In such a case the court will permit the complainant to amend the bill so as to correspond with the proofs; but the bill was not amended, and the court by the decree found a different state of facts from those stated in the bill.”

It is the opinion of this court that the errors assigned by the appellants are not well taken and that the trial court did not err in dismissing complainants ’ bill for want of equity at the cost of complainants. The decree of the circuit court of Piatt county will therefore be affirmed.

Decree affirmed.


author: Mr. Justice Bless

text:
    Corn Belt Building and Loan Association, Appellant, v. Earl Grabe et al., Appellees.
    Gen. No. 9,076.
    Opinion filed April 20, 1938.
    Cotton & Nichols, of Tuscola, for appellant.
    Walden & Walden, for appellees Earl Grabe and Helen E. Grabe.

      Charles M. Borchers and James S. Baldwin, both of Decatur, for appellee Orlando G. Collins.
   Mr. Justice Bless

delivered the opinion of the court.

A decree in equity was entered in the circuit court of Macon county, wherein it was found that a certain real estate mortgage executed by the appellees Earl Grabe and Helen E. Grabe to one Laurence O’Mara and by him assigned in blank to the defendant appellee O. G. Collins, constituted a first or prior mortgage lien on the premises therein described, and that there was also due from said mortgagors to the plaintiff appellant, Corn Belt Building* and Loan Association, an unpaid balance of $993.23 on a certain subsequent mortgage lien on said premises in the sum of $4,144.47, after allowing a set-off of $3,151.24 on a counterclaim filed by said mortgagors. A decree of foreclosure and for sale of the mortgaged premises was entered accordingly, from which findings and decree, the appeal herein was taken.

On August 28, 1930, Earl Grabe and Helen E. Grabe had executed the above mortgage in the sum of $2,500 to said Laurence 0 ’Mara to secure the payment of five promissory notes of that date, four being for the principal sum of $300 each and respectively due in one, two, three and four years after date, and one note being for $1,300 due five years after date, each providing that $25 or more could be paid thereon at any time. These notes were made payable to the order of Laurence O’Mara, the mortgagee, and were indorsed by him in blank, without recourse, and delivered to Dr. O. G. Collins, one of the defendant appellees, together with the recorded mortgage to which was attached a written assignment in blank on August 30, 1930. The assignment of this mortg*age was not, however, recorded until April 8, 1934, the name of Collins having been inserted therein subsequent to the time of assignment qnd before the assignment was recorded.

In November, 1930, Grabe desired to obtain additional funds for the purpose of making repairs on his property and arranged through one M. L. Moyer of Decatur, Illinois, for such a loan, Moyer being at that time engaged in the business of making mortgage loans on real estate. Moyer submitted an application to the appellant Corn Belt Building and Loan Association on behalf of Grabe and his wife for a loan of $3,000, representing an increase of $500 over the existing mortgage loan of Laurence O’Mara.

After receiving this application, the appellant had the abstract of title to the property examined by an attorney and the mortgage lien appeared thereon. In the meanwhile, Moyer ascertained from James O’Mara, the father and business partner of Laurence O’Mara that the amount necessary to pay off the $2,500 mortgage loan previously made by Laurence O’Mara would be the sum of $2,543.75, and that the check should be made to the firm of James O’Mara and Son.

The appellant then made the loan applied for on the sixth day of November, 1930, and Bari Grabe and Helen E. Grabe executed the $3,000 mortgage, which was duly recorded on December 1, 1930, covering the same property described in the mortgage given to O’Mara and assigned in blank to O. G. Collins. The appellant then issued checks which were sent to Moyer, with instructions to get a release of the 0 ’Mara mortgage and a lien waiver from the Decatur Lumber Company. Moyer took the check issued by appellant payable to James O’Mara and Son, from whom he received a release of the $2,500 mortgage in question executed by Laurence O ’Mara, the mortgagee, and the same was duly recorded, and also procured the lien waiver of the lumber company. Certain other checks were sent to Moyer for distribution, including a check to Grabe for the net balance of $229.25 on the $3,000 loan, and from this balance, Moyer was paid a three per cent commission for procuring the loan.

In 1934, Grabe learned that there were apparently two claimants of mortgage liens on his property and stopped paying dues to the Corn Belt Building and Loan Association, and on April 5, 1935, said association filed a suit to foreclose its mortgage and recover on said indebtedness.

Appellee Collins filed his answer and counterclaim, setting up that he was the owner of the notes secured by the mortgage to 0 ’Mara, all dated August 28, 1930, and alleged that his mortgage constituted a first lien on the premises and asked for a decree of foreclosure thereon. Appellees Earl Grabe and Helen E. Grabe filed their answer and counterclaim, alleging the above payment and seeking for damages and recoupment thereof. Defendant R. H. Burns was a judgment creditor whose claim is not in controversy here, and the remaining defendant, J. S. McKinney, was a tenant who had in the meantime moved from the mortgaged premises.

No questions concerning the pleading’s are raised, hence their allegations need not be set forth In greater detail. The sole controversy concerns the existence, priority and amount of the above mortgage liens.

It appears from the evidence that James O’Mara had engaged in the business of making mortgage loans under the firm name of “Schoenle & O’Mara” from September, 1913, until May, 1929; that after May, 1929, he engaged in this business under the style of “James O’Mara and Son,” the firm consisting of James O’Mara and Laurence O’Mara.

Over a period of more than 15 years James O’Mara had loaned a large amount of money for Dr. O. G. Collins, the defendant appellee herein. The evidence shows that Collins and James O’Mara had known each other for more than 40 years, that Collins had purchased and negotiated loans through 0 ’Mara for many years prior to the Grabe loan in question, and that O’Mara had handled approximately 150 new and renewal loans for Collins aggregating more than $200,000. When a loan was purchased or negotiated by Collins, he signed an interest contract providing that O ’Mara should receive one per cent for collecting interest and handling the loan, and that if the loan was transferred by Collins, the interest contract should accompany the assignment. No loan was ever taken directly by or in the name of Collins, but was taken in the name of O’Mara and later assigned in blank. It was the practice of the parties to have O’Mara collect the principal and interest on Collins’ loans until he obtained sufficient money to make a new loan, which would then be made by O ’Mara, and Collins would give his check to O’Mara for the amount necessary to purchase or complete the loan.

Ordinarily, Collins was not notified when a loan was paid off until the money had actually been paid to O’Mara, whereupon Collins would take his notes and mortgage to O’Mara’s office, and O’Mara would execute the necessary release of the mortgage in his own name and have the same recorded. Principal and interest on all loans was so paid at O’Mara’s office, and never to Collins, who always received his money from O’Mara by the latter’s check and not by the check of the borrower. When Collins was out of the city, O’Mara would collect the principal and interest and hold it until his return. When the Grabes procured their loan from Laurence O’Mara, they did not know that Collins was in any way interested, and did not learn that he was the owner of the $2,500 mortgage until December, 1933. It is admitted by Collins that he had no dealings whatever with Mr. and Mrs. Grabe, and that no one but O ’Mara and Collins knew that the latter was the real owner of the notes and mortgage.

The evidence fails to disclose that the mortgagors, Grabe and his wife, or the appellant Loan Association had any notice of an assignment or change in the ownership of the mortgage and notes or in the manner of payment of the interest or principal dne thereon.

When appellant’s loan was made to Earl Grabe, the latter told Moyer that he wanted the 0 ’Mara note paid off and that Moyer should take up the canceled notes and mortgage at the time of the payment and return them to him or destroy them. Moyer paid to O’Mara the amount due on the notes and mortgage by check of the Loan Association to James O’Mara and Son, and the mortgage release by Laurence O’Mara was procured and duly recorded, but Moyer failed to take up the notes and mortgage. There is some conflict in the testimony as to whether Earl Grabe and Helen E. Grabe gave similar instructions to appellant. Whether or not Moyer demanded the notes and mortgage at the time he paid off and procured the release of the mortgage is not controlling in this case.

Prom a careful consideration of all the evidence in the record we find it to clearly appear from the manifest weight of the evidence and the law applicable thereto that James O’Mara and Son, Laurence O’Mara, were at the time of the execution of the Grabe mortgage, purchased by Collins, acting as the general agents for Collins in making, collecting and releasing mortgage loans generally for him, and that for a long period of years had been so collecting interest, receiving* the principal of loans and releasing mortgages for Collins, and that in making* the Grabe loan, collecting, interest, receiving payment thereof and in. releasing the mortgage, were so acting as the agents of Collins, the undisclosed principal upon whom such acts were binding. Consequently Collins, through his course of conduct, is now estopped from questioning such agency. Voelkner v. Ott, 197 Ill. App, 520; Linowiecki v. Wisniewski, 249 Ill. App. 474.

The general rule in Illinois is that a mortgage is not a negotiable instrument, but is a mere chose in action, and an assignee, to be protected against such payments by the mortgagor, must either have the assignment recorded, or the mortgagor must have notice of the rights of the assignee. Buehler v. McCormick, 169 Ill. 269, 48 N. E. 287; Freitag v. Buck, 279 Ill. App. 284; McAuliffe v. Reuter, 166 Ill. 491, 46 N. E. 1087.

As said in First Nat. Bank of Chicago v. Paris, 358 Ill. 378, at page 385, 193 N. E. 207, “One of the purposes of the Recording act is to give' notice to the public of the encumbrances against real estate and the amount, priority and ownership of the encumbrance thereon, and the public has the right to rely on and be protected by such record. In the absence of actual notice of facts effecting the title not disclosed on the public record, or of facts sufficient to put one on inquiry, strangers to the title who are interested in real estate have the right to rely upon the title as shown by the record.”

Much stress is laid by counsel for appellee Collins upon the fact that James O’Mara and Son were in the loan business and that,' therefore, appellee Grabe should have known that some third party had acquired the note and mortgage in question. We do not think this was at all a necessary consequence. Grabe had a previous loan from the O’Mara firm which was refinanced when the $2,500 loan was made. He had paid all of his interest direct to O’Mara and had secured a release of the former mortgage when the loan was refinanced. Obtaining a loan from a loan broker does not raise the presumption that it would be further negotiated. Sheldon v. McNall, 89 Ill. App. 138, 146.

Nor do we think a different rule applies to the appellant. under the facts in evidence. The attorney of the appellant had examined the abstract and found the mortgage of record in the name of O’Mara. No assignment thereof appeared upon record. They had a right to assume ownership by the record holder, unless some actual or constructive notice came to them of ownership, or claim of ownership, by a third party. They issued their checks for the amount due and requested Moyer to procure the release of the mortgage from such record holder, which was done. Moreover, we have held that the undisclosed relation of principal and agent existed between the O’Maras and appellee Collins.

The facts and principles controlling in the case of Siekmann v. Stanton, 251 Ill. App. 442, and other cases cited by the appellee are clearly distinguishable from and are not applicable to the facts in the case at bar.

In the case of McAuliffe v. Reuter, supra, cited in Sheldon v. McNall, supra, a note and mortgage were executed and the mortgagee sold and transferred them to a third party. Of this the mortgagor had no notice, and continued to deposit money with the mortgagee until the amount reached the sum which the mortgagor had received from the mortgagee when the latter failed, and the mortgagor then received notice for the first time that the mortgage and note had been assigned. The assignee of the mortgage had received his interest from the mortgagee, but had never had any communication whatever with the mortgagor. It was held that the assignee was bound by the payments to the mortgagee. It was further held that the mortgagor was not chargeable with negligence in not demanding the production of the note and mortgage when making deposits, when his action was justified by former dealings with the bank of the same nature.

In the recent case of First Nat. Bank of Chicago v. Paris, supra, at page 385 of the opinion of the court rendered by the late Chief Justice Lott Herrick, wherein certain holdings announced in previous cases were considered and distinguished, it was said that: 11 The record of the mortgage in question showed that the note was payable to the insurance company, the mortgagee. Amy lienor, encumbrancer or judgment creditor had a right to assume from the record of the mortgage that the insurance company was the owner of the note. The fact that the note was negotiable and had not matured was not sufficient to put the lumber company on inquiry as to the ownership of the note or to charge it with notice that the note might have been negotiated.

“It is a fundamental principle of equity that where one of two interested parties must suffer, he whose conduct has contributed in the bringing about of the condition which occasions the loss must suffer the consequences of his act, be the same negligence or otherwise. The bank had it within its power by recording such assignment to give notice to the world as to the true ownership of the note and mortgage. It failed to do this. There was nothing to put the lumber company upon notice of the rights of the bank. In that situation a court of equity will protect the lumber company as against the bank, which held the note and mortgage in secret, permitting the world to believe that the note and mortgage were owned by the insurance company. A party cannot lead a person into an erroneous belief of the ownership of a note or mortgage who relies upon the ownership thereof as shown by the public records, and then take advantage of his own act to the prejudice of the party relying upon the record, who by reason of such record has committed the error complained of.”

We hold that the principles announced in McAuliffe v. Reuter, supra, and in First Nat. Bank of Chicago v. Paris, supra, are applicable to and controlling under the facts disclosed by the evidence in this case. We hold the equities of this cause to be with the appellant Loan Association and the appellees Earl Grabe and Helen E. Grabe under the counterclaim filed by O. G. Collins and that the trial court erred in granting said Collins the equitable relief prayed for therein. We further hold that it was error to allow the same as a set-off against the mortgage lien of the appellant under the original complaint.

It is unnecessary, therefore, to further discuss the counterclaim filed by Grabe for the reason that if a decree is entered in favor of the appellant Corn Belt Building and Loan Association for the amount of its mortgage indebtedness, the counterclaim of the Grabes necessarily fails.

The decree of the circuit court of Macon county is reversed and the cause remanded with directions to the trial court to enter a decree in accordance with the decision of this court herein.

Reversed and remanded with directions.


author: Mr. Justice Eiess

text:
    Agnes Fromme, Appellee, v. City of Girard, Illinois, Appellant.
    Gen. No. 9,098.

      Opinion filed April 20, 1938.
    Samuel O. Smith, Jr., of Girard, for appellant.
    R. W. Gill and Leo J. Scott, both of Springfield, for appellee.
   Mr. Justice Eiess

delivered the opinion of the court.

Defendant appellant, city of Girard, Illinois, appeals from a judgment of the circuit court of Macoupin county in favor of plaintiff appellee, Agnes Fromme, in the sum of $1,750 for damages alleged to have been sustained by her by reason of falling upon a defective sidewalk in said city on the evening of April 19, 1933.

Statutory notice of the claim and injury was filed with the city attorney and city clerk of said city on June 6, 1933, and thereafter a complaint was filed on January 9, 1934, seeking recovery of damages. Trial was had, resulting in a hung jury. An amended complaint and answer were filed and by agreement of the parties, a jury was waived and a new trial had before the three judges of the Seventh Judicial Circuit, sitting en banc. A judgment for $1,500 was entered for the plaintiff, from which an appeal was taken to this court. The judgment was reversed and the cause remanded to the trial court for retrial, with directions “that the plaintiff should be permitted under her complaint to show the nature and extent of her permanent disabilities, if any, and for such other proceedings as are not inconsistent with this opinion.” (Fromme v. City of Girard, 285 Ill. App. 601, 3 N. E. (2d) 162 [Abst.].) Thereafter a trial upon its merits was again had before the three judges, sitting* en banc, and judgment was rendered in favor of plaintiff in the sum of $1,750, from which judgment the present appeal was taken.

In the former appeal, supra, the question of the sufficiency of the notice to the city under the requirements of chapter 70, section 7 of the Illinois Revised Statutes of 1931 [Cahill’s Ill. Rev. St. 1931, ch. 70, ¶ 7], was raised, and we there held that the place of the alleged accident was sufficiently stated in the notice to comply with the requirements of the statute. In that opinion we were unable to pass upon the question of the sufficiency of the residence address given, since no record and no abstract thereof was before the court and the proof of the actual address and residence of plaintiff did not appear. That part of the notice concerning* the residence address of the plaintiff reads as follows :

“1. My name is Agnes Fromme. 2. I reside at Girard, Illinois, near Village limits.”

■ It appears that Girard, Illinois, was a small city of about 1,500 inhabitants having no street numbers nor designated places of address; that plaintiff lived out one of the main streets of the city about five or six blocks from the center thereof; that this street continued to and over the city limits, and that plaintiff’s residence on this street lay immediately outside of the city limits, but within the built-up community of Girard, and that her postoffice address was Girard, Illinois; there being no street number or rural delivery at her home. It also appears that the mayor and city attorney, after receipt of said notice, visited her home on two occasions subsequent to the time she had sustained said injuries and before suit was filed herein.

In both the cases of Swenson v. City of Aurora, 196 Ill. App. 83, and Frey v. City of Chicago, 246 Ill. App. 172, cited by appellant, different street numbers or addresses were given than where the plaintiffs were actually living and, therefore, they were clearly held to be misleading and not to have given the plaintiffs’ proper address or place of residence. In the instant case, Girard, Illinois, appears to be the only designation and only place of address given, and we hold that under the particular facts of this case, the notice given was in compliance with the statute and gave the correct residence address of plaintiff and that the defendant suffered no prejudice in law or in fact thereby.

It appears from the greater weight of the evidence that on April 19, 1933, at about 7:30 p. m., the plaintiff, her sister and a property owner, who was taking them to see some property they contemplated renting, were walking along a public concrete sidewalk in an easterly direction in said city when plaintiff stumbled over a block or section of the concrete walk which was elevated from two and one-half to four inches above the level of the adjoining section, causing plaintiff to fall on the sidewalk and sustain a fractured patella, injuries to her left knee, a “colies fracture” of the right arm and a wrist injury; that she received hospital treatment at Carlinville and Springfield, and suffered serious disabilities, some of which were of a permanent nature. The sidewalk was raised by growing roots of trees which were placed between the sidewalk in question and the curb line in the city street. It was shown that officials of the city, including the street superintendent, knew of and had inspected this defect and the raised place in the sidewalk in question several months prior to the date of the injury, but that nothing was done to change the conditions. It further appears that at and near the point or place of injury, which was located about a block from the public square and a half block from the interurban street car station, the street was poorly lighted and that plaintiff was not familiar with the surrounding’s on the street where the injury occurred. A city is required to exercise reasonable care to keep its sidewalks in a reasonably safe condition for the amount and kind of travel which may fairly be expected upon them. Boender v. City of Harvey, 251 Ill. 228, 95 N. E. 1084; Simon v. City of Chicago, 279 Ill. App. 80.

The questions of due care and negligence proximately resulting in the injury complained of were clearly questions of fact which were passed upon by the presiding and two associate judges, sitting en banc, to whom the case had been submitted by waiver of a jury and agreement of the parties, and this court is of the opinion that the judgment of the trial court was in accord with the greater weight of the evidence. The evidence showing the nature and extent of the injuries sustained and expenses incurred by plaintiff fully justified the amount of the judgment entered and the same was in no wise excessive.

We have examined all further alleged errors assigned by the appellant and we find no reversible error in the record. The judgment of the circuit court of Macoupin county is therefore affirmed.

Judgment affirmed.