author: Mr. Justice Matchett

text:
    Sarah R. Nudelman, Appellee, v. Samuel Mayer Haimowitz and Rose Y. Haimowitz, Appellants.
    Gen. No. 41,878.

      Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed April 20, 1942.
    Rehearing denied May 5, 1942.
    Gtilruth & Beck, of Chicago, for appellants.
    Urion, Bishop & Sladkey, of Chicago, for appellee; Jerome J. Sladkey, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Defendants Haimowitz (also known as Homan) appeal from a decree of foreclosure entered February 5, 1941. Nicholas Nudelman, codefendant, does not appeal. Plaintiff, Sarah Nudelman, is a sister-in-law of Nicholas.

Nicholas Nudelman and Homan on June 8, 1925, were copartners and co-owners of the premises. "On that date they executed and delivered the trust deed to secure three notes, two for $2,500 each, one for $45,000. The notes for $2,500 each have been paid. June 9, 1930, time of payment was extended. The $45,000 note was to be paid in instalments, the last June 9, 1935. Neither principal nor interest has been paid. The owner transferred the note and trust deed to the First National Bank of Chicago. At different times Homan and Nicholas Nudelman negotiated with the bank to acquire the note at a discount. Neither was at first successful. Nicholas Nudelman again tried through Samuel Salmon. October 19, 1932, he made a contract to acquire the securities and on July 13, 1937, became the owner and secured possession at a cost to him of $12,977.65.

August 18, 1937, Nicholas Nudelman sold the note and mortgage to plaintiff, Sarah R. Nudelman, his sister-in-law. She testified she paid $12,500 — $5,000 in cash and $7,500 by her note to the order of Nicholas Nudelman. Neither the interest nor principal of her note has been paid. She began this suit to foreclose against the Homans and her brother-in-law, Nudelman, February 25, 1939.

The cause was heard on exceptions to the report of a master. The decree finds the indebtedness of defendants on the note to be $79,584.76, directs sale of the premises, and the court retains jurisdiction to enter a deficiency decree and appoint a receiver pending the period of redemption.

As the hearing progressed new facts were brought to light and the pleadings of defendants were from time to time amended. In substance two defenses were interposed: first, that the suit was not filed in good faith but pursuant to an unlawful conspiracy between Nicholas Nudelman and his sister-in-law for his own benefit at the expense of his partner; and secondly, that the note was in fact discharged July 13, 1937, when Nicholas Nudelman obtained title and possession of it. (Smith-Hurd’s Ann. Stats., ch. 98, § 118, par. 140 [Jones Ill. Stats. Ann. 89.140].)

Nicholas Nudelman and the bank made tan agreement March 25, 1935, by which the amount to be paid to the owner bank was set at $20,000 — $8,000 in cash and the collateral note of Nicholas Nudelman for the balance. Homan was notified that Nicholas Nudelman had purchased the note for $20,000 and an offer was made to him to share benefits upon contributing his share- — one half of the amount. He declined the offer. The final deal was concluded July 13, 1937, when Nicholas Nudelman obtained the securities for $12,977.76. Homan was not asked to share on that basis. The facts with reference to this settlement were never disclosed to Homan, and he was never offered the benefits. August 18, 1937, the transfer of the note and trust deed was made by Nicholas Nudelman to plaintiff, Sarah E. Nudelman. She testifies she paid $5,000 and gave her note for $7,500 — a consideration of $12,500. Neither her note nor any interest on it has been paid.

Plaintiff disclaims any contention that she took the note as a holder in due course within the meaning of section 52 of the Negotiable Instruments Act (SmithHurd’s Ann. Stats, ch. 98, p. 165 [Jones Ill. Stats. Ann. 89.072]). She suggests she may be regarded, however, as such a holder standing in the shoes of the First National Bank under section 58 of the Negotiable Instruments Act (Ill. Rev. Stat., ch. 98, par. 78, p. 2183 [Jones Ill. Stats. Ann. 89.078]). Plaintiff is not entitled to the benefits of that section. If she has any title she takes it from Nicholas Nudelman. The alleged purchase by her was made about seven years after the maturity of the note, and she is charged with notice of all equities.

Plaintiff contends that at any rate she is an innocent purchaser for value and says that the question of whether she is a bona fide holder within the meaning of the statute is wholly immaterial. She says there is no defense to the note on the merits since defendants obtained cash for it, and there is no failure of consideration for fraud. She says the only defense interposed arises out of extraneous and collateral circumstances and that such defense may not be urged as against an innocent purchaser for value. She cites Daniels v. Carr, 233 Ill. App. 531, and Schultz v. Sroelowitz, 191 Ill. 249. The defense here, interposed is that the note of Nudelman and Haimowitz was paid by Nicholas Nudelman to the First National Bank. Defendants contend (if we understand aright) that when Nicholas Nudelman purchased the note it was paid and Homan’s obligation as comaker and copartner arose to pay to Nudelman one half of the amount Nudelman paid in taking up the note, and since plaintiff took after maturity, when the note had been paid, and with the intention to obtain an unconscionable advantage, she cannot maintain this suit. These are not defenses arising out of extraneous circumstances, as in the cases cited.

We have no doubt this suit between Sarah Nudelman and Nicholas Nudelman is by design on their part. There are many suspicious circumstances connected with the purchase of the note and their conduct seems to point to this conclusion. We have read plaintiff’s testimony carefully. The undisputed facts that she is the sister-in-law of Nicholas Nudelman, that she took the note seven years after it matured, that Nicholas Nudelman seems well content to let plaintiff have a judgment against him and his cotenant for $79,584.76, based on a note purchased from him by plaintiff for $12,500 ($7,500 of which was her own note, which has not been paid and on which no interest has been paid), are only a few of many facts which lead to this conclusion. The deal between these relatives cannot reasonably be explained on any theory other than the desire to obtain an unjust advantage over the Homans for their own benefit.

When Nicholas Nudelman acquired the note and trust deed from the First National Bank he took paper on which he and the Homans were primarily liable. Homan was a joint maker of the note, a cotenant of the land covered by the trust deed and the partner in the premises with Nicholas Nudelman. Both were bound at all events to pay the note. Either one who paid it was entitled to contribution from the other. There was nothing voluntary about this. Homan’s obligation to pay his share of the cost of taking up the note was absolute. His right to share in the benefits of any discount obtained by his partner was also absolute. Titsworth v. Stout, 49 Ill. 78; Carabelli v. Carabelli, 266 Ill. App. 453. In the Carabelli case this court said at pp. 460, 461: ‘ ‘ The right of contribution rests upon the principle that where all are equally liable for the payment of a debt all are bound equally to contribute to that purpose. (Sledge v. Dobbs, 254 Ill. 130, 133); and where one tenant in common had removed an incumbrance from the common estate the other tenants must contribute to the extent of their respective interests, and to secure such contribution an equitable lien upon their interest of the same character with that which has been removed will be enforced by a court of chancery. The redeeming tenant in common, in order to secure contribution, is substituted to the same lien which he has redeemed (Titsworth v. Stout, 49 Ill. 78, 80), and the principle is equally applicable to the judgment creditor of a tenant in common. (Fischer v. Eslaman, 68 Ill. 78, 83.) ”

Section 118 of the Negotiable Instruments Act (Smith-Hurd’s Ann. Stats., ch. 98, par. 140 [Jones Ill. Stats. Ann. 89.140]) states the law as to the manner in which makers of negotiable instruments primarily liable may be discharged. Section 118 (4) declares such discharge takes place “when the principal debtor becomes the holder of the instrument at or after maturity, in his own right.” Plaintiff says this provision is not applicable here because there were two makers. She construes the word “debtor” as making the provision applicable only to a case where a single debtor takes up his own paper. We do not think it necessary to decide this point. Prudential Ins. Co. of America v. Bass, 357 Ill. 72, 78. Equity would, we hold, if such were the intention of the parties, keep the note and mortgage alive and subrogate Nicholas Nudelman to the rights of the bank in so far as necessary to protect his right of contribution from Homan for one half the amount paid to the bank. Plaintiff says Homan and Nicholas Nudelman had each conveyed their one-half interest in the premises and that thereby a triple surety relationship existed which made them only secondarily liable on the note, and that section 120 (Smith-Hurd’s Ann. Stats., ch. 98, par. 142 [Jones Ill. Stats. Ann. 89.142]) ivhich provides in substance that where an instrument is paid by a party secondarily liable, it is not discharged but he may strike out his own and subsequent endorsements and again negotiate the instrument, except in cases named, is applicable.

The facts here are unlike those in any of the cases relied on in that the Homans did not convey their interest in the premises. They executed two trust deeds subordinate to the one here foreclosed. Nicholas Nudelman did not convey his one-half interest for a valuable consideration. He transferred it to a member of his family. No grantee of either Homan or Nudelman assumed or agreed to pay this incumbrance, nor was any conveyance made by either of them under circumstances from which such a promise to assume and pay could be applied.

Citing the same cases and in particular Albers v. Westberg, 299 Ill. App. 41, plaintiff contends that the acquisition of the note by Nudelman did not discharge it because it appears, as the master found, that it was the intention of the parties as shown by all the circumstances not to extinguish the indebtedness but to keep it alive. That this is the general rule in equity subject to the application of equitable principles is unquestioned. We applied it not only in Albers v. Westberg but in Kazunas v. Wright, 286 Ill. App. 554. We do not question the right of Nicholas Nudelman to subrogation to the rights of the holder of the mortgage in so far as it is necessary to the enforcement of his right of contribution from Homan, his partner and cotenant. Nicholas Nudelman does not ask this or any other relief.

The decree will therefore be reversed and. me cause remanded with directions to dismiss the complaint of plaintiff for want of equity.

Reversed and remanded with directions.

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


source: Caselaw Access Project

license: Public Domain

text:
    Charles H. Soelke, Appellee, v. Chicago Business Men’s Racing Association, Appellant.
    Gen. No. 41,912.

      Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed April 20, 1942.
    Rehearing denied May 4, 1942.
    Payton J. Tuohy, of Chicago, for appellant.
    Alex Koehn, of Chicago, for appellee; Joseph P. Loewy, of Chicago, of-counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action for attorney’s fees plaintiff filed a complaint of two counts, the first claiming that under the terms of a written contract made by the incorporators of defendant, and afterwards approved by its officials, defendant was obligated to pay to plaintiff a retainer of $2,000 annually, irrespective of whether services were or were not rendered by him. It is alleged defendant paid $1,000 on account for the year 1938 but nothing whatever for the years 1939 and 1940, and that there was due the balance with interest at 5 per cent, because of vexatious withholding of payment. A second count declared for services rendered on a quantum meruit. Defendant answered denying the averments as to the retainer and alleging all legal services rendered by plaintiff to defendant had been upon a quantum meruit basis for which plaintiff had been paid $1,000 in full satisfaction.

Plaintiff made a motion for summary judgment under section 57 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.057] and Rule 15 of the Supreme Court. In support of the motion he submitted his own affidavit and that of Mr. Yogelwede, to which were attached a number of exhibits. Defendant made a motion to strike plaintiff’s motion for judgment and in support submitted the affidavit of Krutckoff, president of the defendant association during the years for which compensation is claimed. He also attached a number of exhibits. The court denied defendant’s motion to strike plaintiff’s motion, granted the motion of plaintiff and rendered judgment for him for $5,250. From that judgment this appeal is taken.

The trial judge did not avail himself of the opportunity given by the statute to place in the record the reasons persuading him to this decision. It is elementary that a motion under section 57 of the Civil Practice Act is not intended to be used as a means of trying an issue of fact. When there is such an issue defendant has the constitutional right to have it tried by a jury. Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523; Dwan v. Massarene, 199 App. Div. 872, 192 N. Y. S. 577; Wrobel v. Call, 142 Misc. 610, 255 N. Y. S. 258 , Piedmont Hotel Co. v. A. E. Nettleton Co., 263 N. Y. 25, 188 N. E. 145; People’s Wayne County Bank v. Harvey, 268 Mich. 47, 255 N. W. 436; and Gliwa v. Washington Polish Loan & Building Ass’n, 310 Ill. App. 465.

The proceeding under the statute and the rule is in the nature of an inquisition to determine whether there is an issue of fact to be tried. The pleadings, while important, are not controlling. Affidavits for plaintiff are to be construed strictly; for defendant liberally. Gliwa v. Washington Polish Loan & Building Ass’n, 310 Ill. App. 465, 470. If so considered, the defense is “ arguable,” “apparent” and made in “good faith” it should be submitted to a jury. Affidavits must state only facts which, if called as a witness, the affiant might state on trial. Mere conclusions will not avail. The procedure is intended to be applied only to cases that are simple in their nature. These rules and others are stated in the authorities cited.

Applying these rules, we hold there are two issues of fact presented on this record. First, whether there was an agreement between the parties for the payment of a yearly retainer irrespective of services performed, and secondly, whether on this theory, or on the theory of a quantum meruit, there is anything due plaintiff. The affidavit of Krutckoff is to the effect that the $1,000 (which it is admitted by everybody was paid) was in full for everything due. While the first count proceeds upon the theory defendant is obligated to pay an annual retainer of $2,000, irrespective of services rendered, under the terms of clause 10 of a written contract between the parties, who subsequently caused the defendant company to be incorporated, and which it is said was afterwards approved in writing by officers of the defendant company. The written exhibits attached in support of the motion do not use the word ‘ ‘ retainer ’ ’ and negative a construction that a retainer as distinguished from actual services was intended by the parties. Under the terms of the contract it is stated to be agreed that throughout the term of the lease and all extensions and renewals thereof, Albert Sabath, representing parties of the first part, and Charles H. Soelke, representing parties of the second part, ‘ ‘ shall be and are hereby employed as the attorneys for said enterprise, race track and leasehold estate, and shall be paid a like and equal sum as fees, either per diem or per annum, as may be hereafter determined by the parties hereto and accepted by said Sabath and Soelke, in consideration for legal services hereafter to be rendered by them for or on behalf of said leasehold estate and race track and business, and that their fees in that regard shall be treated as part of the operating expenses of the business; it being understood and agreed, however, that in the event the party of the first part purchases the interests of the parties of the second part in said enterprise or vice versa, that the relations of the respective attorneys aforesaid representing them as aforesaid shall terminate.”

Krutckoff was president of defendant during the years for which plaintiff claims. He denies under oath that any agreement for a retainer was made, and further says that the $1,000 paid was in full for services rendered by plaintiff.

We hold under the rules already stated that there was presented in apparent good faith defenses which should be submitted to a jury. The judgment will therefore be reversed and the cause remanded for trial.

Reversed and remanded.

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


text:
    Weightstill Woods, Appellant, v. First National Bank of Chicago, as Executor of Will of Clara H. Tollerton, Deceased, Appellee.
    Gen. No. 41,991.

      Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed April 20, 1942.
    James Gr. McConaitghy, of Chicago, for appellant.
    Nat M. Kahn, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Woods sued Clara H. Tollerton and filed a verified complaint with exhibits attached. He claimed $1,153.80 with interest for delay, as provided by the statute. Defendant was served with summons October 4, 1940. November 4, 1940, a stipulation was filed, signed by plaintiff and defendant’s attorney, that the time of defendant to file her sworn answer should be extended to November 14, 1940, and that a copy be served on plaintiff. An order as stipulated was entered November- 4. November 14 (apparently without notice) plaintiff filed a motion for default for want of an answer and judgment. The same day defendant moved for leave to file her motion to strike plaintiff’s complaint and accounting papers filed with it for insufficiency, and to dismiss plaintiff’s suit. Specific reasons for striking the complaint and dismissing the suit were attached to the motion, and in support there was filed an affidavit by defendant’s attorney who said the process was returnable Monday, November 4,1940, at which time the answer or other pleadings was due ; that for weeks prior to November 4, 1940, and continuously after, he had been engaged in extended arguments on objections to the report of a special master and also had been engaged in various appeal matters; that when the stipulation of November 4 was entered into, affiant had not examined plaintiff’s complaint; that since that time he has done so and was of the opinion that the complaint did not state a cause of action and was insufficient in many respects; that he requested plaintiff’s consent to the filing of the motion November 14, 1940, but plaintiff refused. The affiant therefore requested an order granting leave to file instanter her motion.

January 25,1941, defendant died. February 3, 1941, her executor was substituted. On February 27, 1941, the motion of defendant to strike the complaint and dismiss the suit was granted. Plaintiff elected to stand by Ms complaint, his suit was dismissed and he appeals.

It is earnestly urged that because of the order entered by stipulation the granting of the motion for leave to strike was in violation of article 1, section 10 of the Constitution of the United States." Plaintiff also says: “By such stipulation and order, defendant surrendered all right to plead generally, and abandoned and waived all question as to the sufficiency of the complaint. As matter of law any agreed order as to pleading or fact is irrevocable without consent of all parties to the agreement.” Numerous authorities are cited in support of this novel proposition. It is said the rule was recently applied by this court in Riggs v. Barrett, 308 Ill. App. 549, and 308 Ill. App. 671 (Abst.). In the case cited the court had before it a final consent decree. The order here is one that simply involves procedure looking toward the disposition of the case on the merits. The enforcement of such a stipulation is always within the discretion of the court, and the word “answer” is broad enough to cover a demurrer or a motion to strike. Universal Rim Co. v. General Motors Corp., 20 F. (2d) 966, 31 F. (2d) 969; Steele v. Moss, 69 Wis. 496, 34 N. W. 237. Moreover, the affidavit of defendant’s attorney not denied (which plaintiff did not see fit to abstract), discloses a situation where the matter of the enforcement of the order was wholly within the discretion of the court. In 60 C. J. 94, notes 34, 35 and 36 is said: “Stipulations are under the control and subject to the direction of the court, which has power to relieve the parties therefrom upon proper application at a - showing of sufficient cause, on such terms as will meet the justice of the particular case.”

To the same effect are 25 R. C. L. 1099, note 8; John E. Burns Lumber Co. v. W. J. Reynolds Co., 148 Ill. App. 356; Humphries v. Shapiro, 187 App. Div. 96, 175 N. Y. S. 426, citing the earlier case of Van Nuys v. Fitsworth, 57 Hun. 5, 10 N. Y. S. 507. Moreover, even if defendant had filed her answer to plaintiff’s complaint it was within the discretion of the court to permit her to withdraw the answer and then file a motion to strike plaintiff’s complaint. People v. McDonald, 208 Ill. 638, 640; Hackman v. City of Staunton, 190 Ill. App. 545; and Waxenberg v. J. J. Newberry Co., 302 Ill. App. 128, 142. We regard the law as well settled against plaintiff’s contention.

The real question on this appeal is whether it was error to strike plaintiff’s complaint. In considering that question the complaint is construed most strongly against the plaintiff. Klein v. Chicago Title & Trust Co., 295 Ill. App. 208; Leivis v. Continental Assurance Co., 289 Ill. App. 114, 119. Exhibits which are inconsistent with the allegations of the complaint negative and control the allegations. Awotin v. Abrams, 309 Ill. App. 421; Bunker Hill Country Club v. McElhatton, 282 Ill. App. 221; Lyons v. 333 North Michigan Ave. Bldg. Corp., 277 Ill. App. 93. Of course, plaintiff cannot avoid the effect of his election to stand by the complaint as it is and decline to amend it. It is true, however, that well pleaded allegations are admitted by the motion to strike. Leviton v. Board of Education of Chicago, 374 Ill. 594.

Section 42 of the Civil Practice Act (ch. 110, par. 166, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.042]) provides: “. . . if any pleading is insufficient in substance or form, the court may order a fuller or more particular statement, and if the pleadings do not sufficiently define the issues the court may order other pleadings prepared. ’ ’

Section 45 of the same act (ch. 110, par. 169, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.045]) abolishes demurrers and requires objections to pleadings to be raised by motion.

Defendant claims the pleadings and exhibits attached thereto are subject to the objection that they are neither clear, explicit or definite. The items of account making up the sum claimed appear on page 4 of the abstract. One of these is a balance on account stated December 1934, for $203.80. The account is attached and shows extended dealings from 1932 up to 1934 between plaintiff and the Clara H. Tollerton Trust. Just who was the trustee from whom the account became due, the pleadings do not state. It might be true that while Mrs. Tollerton was living she would have knowledge of what her relationship to the trust was, but she is dead and was at the time the motion was passed on. Her executor was entitled to have a clear statement as to what this balance of account, made years before the suit was brought, was based on, and who were the parties liable, if any. The account shows many.fees for legal services were included in the statement. Apparently the relationship of attorney and client existed. As between an attorney and client, mere allegations of a stated account, when strictly construed, are not sufficient to allege a liability of the client to his attorney on account of fees. The burden is always on an attorney to show in the first instance that any agreement he has made with his client is fair, just and reasonable. American Jurisprudence, vol. 5, § 189, p. 375; Elmore v. Johnson, 143 Ill. 513; Hopkinson v. Jones, 28 Ill. App. 409; Henry v. LeMoyne, 219 Ill. App. 313; Henry v. Park Fire Proof Storage Co., 222 Ill. App. 317; Comerford v. Loewenbein, 227 Ill. App. 321. Moreover, the Civil Practice Act requires that pleadings shall state specific facts. Sections 31 (1), 33 (1), 40 (1) and 42 (1) [Jones Ill. Stats. Ann. 104.031, 104.033, 104.040,104.042].

The other items included in the amount said to be due seem to be for unliquidated damages plaintiff claims by reason of a suit brought against him by Clara Tollerton in the circuit court of Morgan county, Missouri. The suit was in attachment and filed October 11, 1934. Ajpril 22, 1935, it was dismissed by the Missouri court for want of jurisdiction. It was again dismissed on mandate of the Appellate Court of Missouri on April 27,1936, and the attachment was released at the April Term. The exhibits show that the action was for $427.60, claimed to be due from Woods to Clara Tollerton ; that an attachment bond was filed, the writ issued to the sheriff, who levied it upon certain lands in Morgan county, Missouri. The order of April 27, 1936, shows that a motion in writing filed by Woods, praying the attachment be quashed and dissolved and the suit dismissed, was resisted by plaintiff, and that the court having the mandate and opinion of the Kansas City court of appeals before it heard evidence and decreed that the motion in writing of Woods had not been proved by the evidence, and with other things “that this suit be and is hereby dismissed for want of jurisdiction, and that Weightstill Woods go hence without day; and said Weightstill Woods doth freely and voluntarily withdraw and dismiss his counterclaim herein.” It further ordered that the plaintiff should pay the costs and that execution issue therefor, and that the judgment for costs is paid and satisfied in open court. This unexplained, would seem to justify an inference the suit was settled.

As items of damages plaintiff claims for traveling expenses from Chicago to Versailles, Missouri, April 1935 and 1936, to attend circuit court and to Kansas City, Missouri, to attend Appellate Court to defend against the attachment suit, $100; to printing and reporting expenses for the brief on appeal by Clara H. Tollerton in the Kansas City court of appeals, $50; “To damages and slander of title to real estate owned by Weightstill Woods in Morgan County, attached by said wilful and wrongful proceedings, October 1934 to April 1936 inclusive — $500.00”; to attorney’s fees incurred and paid to Richard H. Woods, resident at Versailles, Missouri, attorney of record in defense of said wrongful and unlawful and wilful attachment suit in the circuit court of Morgan county, Missouri, January and April Terms, 1935, and April Term, 1936, and Kansas City court of appeals, October Term, 1935, $300; a total of $950 expenses incurred in connection with the suit which involved only $427.60.

These items for the most part are stated as bald conclusions. We hold the court was justified in sustaining the motion to strike and requiring a fuller and more complete statement of plaintiff’s cause. The judgment will be affirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    Bess Goldberg, Appellee, v. Capitol Freight Lines, Ltd. et al. Bluebird System, Inc. and Bluebird Coach Lines, Inc., Appellants.
    Gen. No. 41,883.

      Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed April 20, 1942.

      Hinshaw & Culbertson, of Chicago, for appellants; Oswell G-. Treadway, of Chicago, of counsel.
    Ryan, Sinnott & Miller, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants to recover damages for personal injuries claimed to have resulted from their negligence. During the trial plaintiff dismissed as to defendants, Lloyd Gisinger and Arthur J. Gisinger. There was a verdict in plaintiff’s favor against the three remaining defendants for $85,-000. The court required a remittitur of $25,000, judgment was entered for $60,000 and two of the defendants, Bluebird System, Inc., a corporation, and Bluebird Coach Lines, Inc., a corporation, appeal.

The record discloses that plaintiff, a young woman about 22 years of age, lived at 1618 S. Homan avenue and was employed downtown as a stenographer. About 8:20 o’clock on the morning of May 17, 1939, she left her home for her place of employment, downtown, walked south on the west side of Homan avenue intending to take a downtown street car on Ogden avenue, a street extending northeast and southwest. She started across Ogden avenue on the south cross-walk and when she was somewhere near the first street car rail was struck by a bus of the Bluebird System then being-driven southwesterly in Ogden avenue. The accident was caused by a collision between the bus and a truck belonging to defendant, Capitol Freight Lines, Ltd., which was being driven by defendant, Lloyd Gisinger, northeasterly in the easterly street car track and which turned to the left into Homan avenue.

Ogden avenue at this point is a “through” street, 110 feet wide from curb to curb and 160 feet wide from building line to building line. There were two street car tracks in Ogden avenue, which occupy a space of 18 feet 9 inches in the center of the street. The tracks are 8 feet 6 inches apart. The trolley poles are located between the two tracks and have cross bars on them to which the power wires are attached. The pavement from the street car track to the curbs is more than 45 feet. There are two safety islands in Ogden avenue on each side of its intersection with Homan avenue, one of them outside the southeastern rail of the downtown street car track and the other outside the northwesterly rail for street cars going in the opposite direction. Homan avenue is 30 feet 3 inches wide from curb to curb and runs north and south. The street is 66 feet wide. Both streets are well paved with asphalt and concrete except the two street car tracks and the space between them in Ogden which are paved with brick.

The bus was being driven from somewhere in downtown Chicago to Joliet. The morning was bright and the streets in good condition.

Plaintiff testified that as she started across Ogden avenue she saw an automobile and the bus coming down Ogden avenue. The automobile apparently passed behind her and she stopped to let the bus which she said was coming “very fast” pass in front of her, when suddenly the bus turned sharply to the right, collided with the truck which had turned into Homan avenue, and struck her. The evidence shows she was dragged southwesterly by the bus, to where it stopped on the sidewalk, a distance of about 60 or 70 feet, on the southwestern side of Ogden and Homan avenues. She was taken from underneath the bus back of the front wheel. The left front of the bus collided with the right front of the truck, and the pictures in the record indicate that the vehicles came together with a great deal of force. Plaintiff’s evidence is further to the effect that the bus was being driven southwesterly in Ogden avenue some distance from the street car track, while evidence on behalf of the Bluebird Company is to the effect that the bus was being driven southwesterly in the street car track.

Defendant Lloyd Gisinger, a young man about 26 years of age, who lived at Cisco, Illinois, was driving the truck and his uncle, Arthur J. Gisinger, a defendant, was in the bunk back of the driver’s seat of the truck. They were bringing a load of ammunition and brass which they picked up the evening before at East Alton, Illinois, and were to make delivery at 1401 Fulton Street at the corner of Ogden avenue, about 3 miles further on from the place of the accident. The approximate weight of the tractor was 6,200 pounds, the trailer unloaded was 9,000 pounds and they had a load of about 17,000 pounds. The testimony of Lloyd Gisinger was that he and his uncle took turns at driving and on the morning in question he had driven from Pontiac to the place of the accident; that just before the accident he was driving northeasterly in the street car track at a speed of about 15 to 20 miles per hour; that he and his uncle were both familiar with driving on Ogden avenue, in Chicago; that they had been hauling loads of merchandise over this street for some time prior to the accident. He further testified that when he was about a block from Ploman avenue, where the accident occurred, a small, red delivery truck was being driven to his right northeasterly in Ogden avenue, and just before it reached Homan avenue cut in to the left in front of him and suddenly stopped at Homan avenue, that to avoid running into this small delivery truck he turned sharply to the left into Homan avenue and the collision occurred.

The evidence of the Bus Company is to the effect that the bus was not being driven fast; that the speed was about 20 to 25 miles per hour and when the bus had reached a point near the street intersection, the truck turned abruptly to the left in front of the bus and the driver of the bus, in an endeavor to prevent a collision, turned sharply to the right. The driver testified he did not see plaintiff at all.

There is a great deal of other evidence in the record. A number of physicians were called by plaintiff and testified at considerable length, some of them as to the treatment they administered to plaintiff. Some others answered hypothetical questions, and the testimony is that plaintiff was very severely and permanently injured.

Counsel for the Bus Company contend the court erred in refusing to direct a verdict in its favor at the close of plaintiff’s evidence and again when it renewed its motion at the close of all its evidence.

The motion made by the Bus Company at the close of plaintiff’s evidence could not be renewed after the Bus Company put in evidence, and the motion could not be reserved, as the court attempted to do. When defendants put in evidence after making their motion at the close of plaintiff’s case, for a directed verdict, that motion was out of the case for all time. It could not be reserved and it could not be renewed. Popadowski v. Bergaman, 304 Ill. App. 422; Kahler v. Marchi, 307 Ill. App. 23; Hirshman v. National Mineral Co., 311 Ill. App. 169.

In the.Popadowski case we said: “Where a defendant makes a motion at the close of plaintiff’s case for a directed verdict, if he desires to save his point, he must introduce no evidence. But if he puts in his evidence and desires a directed verdict, he must make a second motion for a directed verdict. The court in passing on the second motion, must do so in view of all the evidence. (Cook v. Aevermann, 244 Ill. App. 644 (Abst.); Joliet A. & N. Ry. Co. v. Velie, 140 Ill. 59; Fowler v. Chicago & W. I. R. Co., 182 Ill. App. 123.) Some opinions inaccurately state the law to be that where a defendant moves for a dirécted verdict at the close of plaintiff’s case and the motion is overruled and defendant then introduces his evidence, he must ‘renew’ his motion at the close of all the evidence. In such case the motion made at the close of plaintiff’s case cannot be renewed. It is out of the case for all time and, as stated, if defendant desires to have the court of review pass on the question whether plaintiff has made out a prima facie case, at the close of all the evidence, he must make a second motion based on all the evidence.”

We are further of opinion that the court did not err in overruling the Bus Company’s motion for a directed verdict at the close of all the evidence. The question was for the jury. We are also of opinion we'would not be warranted in holding that the verdict is against the manifest weight of the evidence on the ground that plaintiff was guilty of contributory negligence or that the Bus Company was guilty of no negligence, as counsel for the Bus Company contend. Plaintiff was faced with a sudden emergency and whether she stepped in the wrong direction just before she was struck, her “act is not to be viewed in the light of after events but judged under all the circumstances by the standard of what a prudent person would have been likely to do under the same circumstances.” Skala v. Lehon, 258 Ill. App. 252 (aff’d 343 Ill. 602); Barnes v. Danville St. Ry. Co., 235 Ill. 566; Wesley City Coal Co. v. Healer, 84 Ill. 126. We think in view of all the evidence in the record, these questions were also for the jury.

In addition to the evidence above mentioned, as to the physical facts, the evidence shows there was at the northeasterly curb on Ogden avenue a signboard about 20 feet northeast of Homan avenue, on which was printed the words 11 Slow Danger. ’ ’ The surroundings show there was considerable traffic at the intersection —two safety islands, two street car tracks, another signal post southwesterly of the intersection on which were also printed the words “Slow Danger.” •

Counsel for plaintiff say there was no small delivery truck which stopped in front of the truck at the intersection — that it was a phantom truck — that no one who testified saw the truck except the two Gisingers. On the other side, on the oral argument, counsel for the Bus Company, in answer to a question put to him as to his theory why Gisinger suddenly turned the truck to the left, replied that the driver must have momentarily fallen asleep. In view of all the evidence we think whether the driver of the bus was guilty of negligence which proximately contributed to plaintiff’s injury, was for the jury. We are unable to say that its finding in favor of plaintiff is against the manifest weight of the evidence.

The Bus Company further contends the verdict and judgment are grossly excessive; that the trial judge in his opinion said: “I believe the verdict to be excessive beyond anything that any man with experience as a' lawyer and trial judge could possibly permit to stand.” And counsel contend the excessiveness was not cured by the court requiring a remittitur of $25,000. The evidence shows plaintiff was 22 years old at the time of the accident and employed as a stenographer. The testimony of the doctors and the X-ray pictures disclose, as stated by counsel for plaintiff, and as borne out by the record, that plaintiff suffered a 1 ‘ Compression fracture of the fifth lumbar vertebral body, showing a wedging and considerable deformity with a posterior protrusion of a large bony mass into the spinal canal for a distance of five mm. Fractures of the left third and fourth transverse processes of the lumbar vertebrae the fragments being partly displaced and deformed. Fracture of the upper lateral portion of the left wing of the sacrum. Arthritic changes in the lumbar spine, . . . Tilting of the entire spine over towards the right side.” After the accident she was taken to a hospital and it was found she was unable to move her feet or legs below the knee. She was given blood transfusions and injections of glucose, etc. Her attending physician called a number of specialists. They found her unable to urinate, the bladder was distended and the intestines and lower limbs paralyzed. At the time of the trial, which was about 17 months after the accident, she was still unable to control her bladder and bowels and had to wear a rubberized pad and sleep on rubber sheets. She was attended by a nurse at the trial and could walk by using a cane on level surfaces and we think the evidence shows that she was almost totally and permanently disabled. Although she was considerably paralyzed she suffered great pain. It is impossible to measure the damages which plaintiff has sustained, and will continue to sustain, as a result of her injuries. Under the law she is entitled to be compensated for the loss she has sustained, including pain and suffering. In view of all the evidence, we are unable to say the judgment is so excessive as to warrant interference on our part. Princell v. Pickwick Greyhound Lines, 262 Ill. App. 298. In this case there was a verdict for $100,000 and upon remittitur of $25,000, judgment was entered for $75,000. See also Parnell v. Holland Furnace Co. (App. Div.), 234 N. Y. S. 567.

Counsel for the Bus Companies also contend that the court erred in permitting the witness, Dr. Oldberg, called by plaintiff, to testify to subjective complaints of plaintiff. A number of doctors were called from time to time to examine plaintiff, among them Dr. Pollock, who examined her to determine whether a certain operation would be necessary. He decided the operation was not necessary and his advice was followed. After a hypothetical question ivas put to him as to the possibility of plaintiff’s further improvement, etc., Dr. Oldberg was called as an expert. He testified that he obesrved plaintiff’s manner of walking and that it could not be simulated. This testimony was objected to by counsel on the ground that the doctor’s testimony was in reference to subjective symptoms. The objection was overruled. It seems to be admitted that the doctor was an expert and his testimony was that the symptoms concerning which he gave an opinion were objective and not subjective.

In passing on the question of defendants’ motion for a new trial the trial judge said: ‘ ‘ Counsel for defendants argue that improper evidence was admitted in the testimony of Dr. Louis Pollock and Dr. Eric Oldberg, in that subjective symptoms formed the basis for their conclusion. Both of these men are very eminent neurologists. They both understand fully the distinction between subjective and objective symptoms. Dr. Pollock had been consulted by the plaintiff’s attending physician and surgeon and had advised a course of treatment long before the suit. Dr. Oldberg examined the plaintiff a few days before the trial. He stated and explained in considerable detail that the plaintiff’s manner of walking could not be simulated, and that from it and other tests which he made that are not dependent upon any control by plaintiff he was able to establish causal relationship between plaintiff’s present injuries and the accident. ... I do not feel competent to overrule the statement of such eminent neurologists as Dr. Pollock and Dr. Oldberg as to what constitute symptoms that cannot be simulated against the tests which they applied. They undertook to state what were the objective symptoms and did so in a manner sufficient, in my opinion, to justify their testimony.” We agree with the trial judge and hold that the testimony of the doctors was properly admitted.

A further contention is made that the court erred in permitting certain medical witnesses to answer improper hypothetical questions and to give testimony that invaded the province of the jury. The argument is that after certain of such questions were objected to, various amendments were made to the questions and that the court assisted counsel for plaintiff in shaping up the questions. We have considered the argument made and are of opinion we would not be warranted in holding that anything occurred which in this connection was reversibly erroneous.

A further point is made that the court erred in refusing defendants’ motion to withdraw a juror and to declare a mistrial when on the cross-examination of defendant, Lloyd G-isinger, it was brought out that defendant Capitol Freight Lines, Ltd., was no longer in business. The record discloses that after a somewhat lengthy cross-examination of this witness by counsel for plaintiff, the following took place: “Mr. Ryan: Are you still working for the Capitol Freight Lines? A. No, sir. Q. When did you quit ? A. At the time of the accident. Q. That company is not in business any more, is it? A. No, sir. Q. When did they go out of business? A. I don’t know the exact date. It was about two months after the accident. Q. Your tractor was all smashed up, wasn’t it, Mr. G-isinger? A. Yes, sir. Q. Have you ever seen these pictures of your equipment? A. I have seen pictures of it. Q. Well, have you seen similar pictures to these? I will ask you to look at Plaintiff’s Exhibit 16 here which is a picture of the tractor. Is that your tractor? A. Yes, sir. Q. Does that correctly portray it? Mr. Hinshaw: I would like to be heard on a matter before we go further. ’ ’ The court and counsel then went into chambers and Mr. Hinshaw moved the court to withdraw a juror and declare a mistrial because counsel for plaintiff deliberately went into the question of whether the Capitol Freight Lines was still in business, which had no bearing on the issues involved. The matter was discussed at some length by court and counsel. The court observed: “Why didn’t you object to the question? I looked for an objection. I looked right over there. Mr. Hinshaw: Judge, if we object — the witness answers right away, if we object under these circumstances it only emphasizes it. The Court: I would have stopped the witness in a second if you had indicated any objection.”

Counsel say that what took place was highly prejudicial because the jury would be sympathetic to plaintiff on account of her injuries and that she would have little chance of recovering unless the Bus Company was held liable, and in support of this cite Clancy v. Richardson, 302 Ill. App. 99 (Abst.) and other cases. In the Clancy case suit was brought against the receivers of the street car company; a cartage company and two individuals. Plaintiff was a passenger in a westbound street car which was struck by a southbound truck and trailer (belonging to the cartage company in charge of the two individual defendants) as a result of which plaintiff was injured. The question was, whether plaintiff was injured through the negligence of the man in charge of the street car or those in charge of the truck, or- both. During the trial plaintiff voluntarily dismissed as to the cartage company and the two men in charge of the truck, leaving the street car company as the only defendant. There was a verdict and judgment in plaintiff’s favor against the street car company for $3,500 and on appeal it was argued that the finding of the jury was against the manifest weight of the evidence. The court discussed the evidence and held the contention must he sustained. The court further said that the receivers of the street car company “were prejudiced by the action of plaintiff in voluntarily dismissing the case as to defendants Globe Cartage Company, Inc., Clarence Clark and Charles Seng. Plaintiff voluntarily dismissed the cause as to the said defendants at the conclusion of plaintiff’s evidence, when no motions had been made by any defendants. Plaintiff had made out a prima facie case of gross negligence against the driver of the motor truck, and while she had a right to dismiss her cause as to any of the defendants, we are forced to the conclusion that her action in that regard unduly influenced the jury in determining the material question of fact in the case. It is conceded, of course, that plaintiff was not guilty of any.negligence; and that she was at least entitled to a verdict against the Surface Lines or the defendants who owned or controlled the motor truck is beyond dispute. When three of the defendants were dismissed from the cause, if the jury found the Surface Lines not guilty plaintiff, with a clear right of action against one or more of the original defendants, would have lost her suit as to all defendants. With such a situation confronting them the jury would be prone to consider the evidence in a light favorable to plaintiff. ’ ’ The judgment was reversed and the cause remanded for a new trial, the court refraining from discussing the evidence on the ground there would be a retrial.

In the instant case the suit was dismissed as to the two Gisingers but not as to the Capitol Freight Lines and the verdict and judgment went against that defendant as well as the Bus Company. Counsel for plaintiff say “Whether the Capitol Freight Lines was still in business was a proper subject for inquiry. In any event, defendants failed to make seasonable objection to this line of inquiry, and are in no position to urge the alleged error in this court.” And continuing they say the situation is clarified by an affidavit which appears in the record made by Edmund M. Sinnott, one of the attorneys for plaintiff, in which he swears that the Capitol Lines had offices in Springfield, Illinois, and St. Louis, Missouri, etc., and that certain officers had in their possession books and records of the Capitol Freight Lines which he was informed and believed would show the destination of the merchandise on the truck at the time of the accident, and that the driver of the truck had a reason for turning north in Homan avenue to make delivery of some of the load. That counsel had been unable to locate such books or records, etc. We think the affidavit was insufficient. But we agree with the trial judge that the objection by counsel was not made in apt time. We are also of opinion there was no error in permitting the witness, McQuillan, to testify in rebuttal concerning the number of pictures which he took shortly after the accident, of the bus, tractor and the neighborhood in question. The matter was within the discretion of the court.

Complaint is also made of the giving of instructions Nos. 1, 3, 30, 31 and 42, at plaintiff’s request; 45 instructions were given and 8 refused. Instruction No. 1 told the jury that plaintiff’s complaint was in one count, and then set forth most of the allegations of that count, and concluded by telling the jury that if they believed from a preponderance of the evidence, and under the instructions of the court, plaintiff had proved that defendants were guilty of one or more of the particular acts of negligence as set forth in the instruction, and that such negligence caused or proximately contributed to cause the accident, they should find the issues for plaintiff. We disapproved of the giving of a somewhat similar instruction in Cooney v. Hughes, 310 Ill. App. 371, but we did not reverse the judgment on that account, but said so far as we were informed, a judgment had not been reversed by a court of review in this State on account of the giving of a similar instruction. We there also said: “We think the jury here was not misled. The facts were simple, the issues easily understood. We do disapprove instructions of this character,” and we are still of the same opinion but when such an instruction is given, the court, in passing on its propriety, must keep in mind whether a number of adverbs are used or other coloring given to the allegations of the complaint. (Compare West Chicago R. R. Co. v. Lieserowitz, 197 Ill. 607; Lisha v. Chicago Rys. Co., 318 Ill. 570.) In the instant case we think the jury understood the issues involved. They were not so complicated as to confuse jurors who have the qualifications required by the law. Moreover, the court, at the request of the Bus Company, advised the jury that the complaint was an unsworn statement and did not tend to prove anything, and further, that the burden of proof was on plaintiff and not on defendant to prove the misconduct charged in the complaint.

By instruction No. 3 the jury were told that on the day of the accident there was in force a statute which required a vehicle to yield the right of way to a pedestrian crossing the roadway, and it is contended that the giving of this instruction was error because the statute “has no application to the facts or to the plaintiff’s theory of her proof.” But this was contrary to defendants’ position on the trial because at their request the court submitted an interrogatory to the jury, viz., “Do you find that the driver of the motor bus, which is alleged to have caused injury to the plaintiff, failed to grant a right of way to the plaintiff through carelessness or negligence on his part?”

Instructions Nos. 30 and 31 are complained of. Instruction No. 30 told the jury that if they believed from a preponderance of the evidence and under the instructions of the court that the Bus Company was guilty of one or more particular acts of negligence alleged in the complaint which proximately contributed to cause the accident and that plaintiff was in the exercise of ordinary care for her own safety, then they should find the Bus Company guilty. By instruction No. 31 the jury were told that if they found from a preponderance of evidence under the instruction of the court, that both defendants were guilty of negligence as charged in the complaint and defined in the instructions and that plaintiff was in the exercise of due care for her own safety, then defendants were jointly and severally liable for the whole amount of damages, if any, sustained by plaintiff and such damages might not be apportioned between defendants.

It is argued these instructions were both wrong because they referred the jury to the complaint to determine what are the charges. But we think this is not borne out by the record because an examination of the two instructions shows that the jury was to consider charges made in the complaint as defined in the instructions. We think there was no error in giving these instructions. We are also of opinion that instruction No. 31 was not peremptory. Murphy v. Illinois State Trust Co., 375 Ill. 310. Furthermore, the jury were told that the instructions given “constitute one connected body and series and should be so regarded and treated by the jury, that is to say, they should apply them to the facts as a whole, and they must not detach or separate any one instruction from any or either of the others. ’ ’ See Central Ry. Co. v. Bannister, 195 Ill. 48; Chicago City Ry. Co. v. Bundy, 210 Ill. 39.

The complaint to instruction No. 42 is as to what the jury should take into consideration on the question of damages. It is said that the use of the word “should” has been repeatedly condemned. There are some cases where language is used which says it is not proper to tell the jury in instructions what they “should” take into consideration but what they “may” take into consideration, but we think the language is inaccurate. The jury has no option as to what evidence they should consider. The court rules on the admissibility of evidence and it is the duty of the jury to consider all the evidence admitted by the court and not that they “may” consider it if they see fit. Meyer, v. Mead, 83 Ill. 19; Posch v. Chicago Rys. Co., 221 Ill. App. 241, and cases there cited; Walters v. Checker Taxi Co., 265 Ill. App. 329; Chicago City Ry. Co. v. Gemmill, 209 Ill. 638; Donk Bros. Coal Co. v. Thil, 228 Ill. 233; Walsh v. Chicago Rys. Co. 303 Ill. 339.

It is also contended the court erred in refusing to submit to the jury two interrogatories requested by the Bus Company. By one the jury were asked if the driver of the motor bus carelessly or negligently drove or operated it; and by the other they were asked if the driver of the bus, through carelessness or negligence on his part omitted to slow down or stop the bns before the collision. The Bns Company submitted five interrogatories, three of which were given. By the three interrogatories the jury said that the driver of the bus negligently failed to give plaintiff the right of way (2) that the driver of the bns negligently drove it at a greater speed than was reasonably proper and the jury said in its answer to the third interrogatory that the driver of the bns negligently failed to decrease the speed of the bus upon approaching the intersection. We think these were sufficient and the refusal of the other two by the court is not reversibly erroneous.

The judgment of the Superior court of Cook county is affirmed.

Judgment affirmed.

McSurely, P. J., and Hatchett, J., concur.


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    Scott R. Tiedman et al., Appellees, v. Edmund K. Jarecki, Judge of County Court of Cook County, et al Paul H. Reis, Acting Judge of County Court of Cook County, Appellant.
    Gen. No. 41,893.

      Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed April 20, 1942.
    Adamowski, Sallemi & Crowley, of Chicago, for appellant; James V. Sallemi and Joseph B. Crowley, both of Chicago, of counsel.
    James V. Kenny and Markman, Donovan & Sullivan, all of Chicago, for certain appellees; W. W. Kriebel, Jr., of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, arid Martin H. Foss, Assistant Corporation Counsel, for certain other appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs filed a petition in the Superior court of Cook county, against defendants praying that the common law writ of certiorari issue directed to the defendants commanding them to certify the record of a proceeding had in the County court of Cook county to contest the validity of an election held November 5, 1940, to determine whether the sale at retail of alcoholic liquor was to be prohibited in the 1st Precinct of the 39th Ward in the City of Chicago. Defendant Paul H. Reis, Acting Judge of the County court of Cook county, filed his written motion to dismiss the petition. The motion was overruled and judgment entered quashing proceedings of the County court. Judge Reis prosecutes this appeal.

The record discloses that November 22, 1940, five legal voters of the 1st Precinct of the 39th Ward of Chicago, filed their petition “to contest the validity of election and for recount of ballots.” The election was held November 5, 1940, and a number of matters are alleged as grounds for holding the election invalid. The prayer was that the court decree the election was improperly held and was therefore null and void. A further prayer was that th e ballot boxes be opened and the ballots recounted. Simultaneously with the filing of the petition, the petitioners presented their bond for costs and it was at that time filed and approved by Judge Albert E. Islet, Acting Judge of the County court of Cook county. Summons was issued, served, and afterward, November 29, 1940, an order was entered granting leave to 9 residents of the precinct to intervene and defend. They filed an intervening petition which was afterward amended, and moved to strike the petition, which was denied, and it was ordered that the intervening petition, as amended, stand as their answer.

The record of the County court proceedings which was filed in the Superior court as a return to the writ, further disclosed that February 21, 1941, Judge Reis, who was at his home in Belleville, St. Clair County, Illinois, was Judge of the Probate court of St. Clair County, of which we take judicial notice. He wrote a letter to the Deputy Clerk of the County court of Cook county in the election contest matter then pending which had been heard by him as acting judge of the County court of Cook county, in which he stated that he had received briefs and arguments of both parties, and having considered them, directed the clerk to enter the following order on the docket: “ ‘The Court finds the allegations in the “Petition to Contest-the Validity oe Election and eor Recount oe Ballots ’ ’ duly proven. ’

“It Is Therefore Ordered, Adjudged and Decreed that the prayer of the Petition be granted and that the alleged Election held on November 5th, 1940 on the Ballot designated as ‘Official Liquor Proposition Ballot’ in Precinct One (1) of Thirty Ninth (39th) Ward, of the City of Chicago, County of Cook, State of Illinois, be declared null and void and of no effect. ’ ’

Three days later, February 24, the following order appears in the record of the County court of Cook county in the case: “Order of Election of November 5,1940, held null and void and of no effect. (See Written Opinion.)” Three days thereafter, February 27, the intervening defendants filed their written motion for a new trial, specifying a number of reasons, one of which was that the judgment order on its face shows that the order was executed in Belleville, St. Clair county, Illinois. A number of other specifications are then made. April 26th, following, an order was entered by Judge Reis, as Acting Judge of the County court of Cook county, overruling defendants’ motion for a new trial, their motion in arrest of judgment and continuing: ‘ ‘ Therefore, It Is Ordered and Adjudged by the Court, in accordance with the finding heretofore entered herein that the election of November 5th on the Official Proposition Ballot in Precinct One of Ward Thirty-nine. (39) of the City of Chicago, be and it is hereby declared null and void, and the petitioners pay the costs of this proceeding.” Five days thereafter, May 1,1941, the petition for writ of certiorari in the instant case, was filed in the Superior court of Cook county.

June 30, 1941, the order, from which the appeal in the instant case was taken, was entered. It recites the matter came on for hearing on the motion of Judge Reis, Acting Judge of the County court of Cook county, to dismiss the petition; that the record of the proceedings in the County court was duly certified and presented to the court, and the court “having heard and considered the arguments of counsel for petitioners herein and for said defendant, Paul H. Reis, and having examined and considered the said record of the County Court” finds that it had jurisdiction of the subject matter and of the parties.

“That the said County Court of Cook County was without jurisdiction in the said cause of Abraham J. Role, et al. vs. Ludwig G. Schreiber, etc., et al., Case No. 96729 [being the election contest proceeding in the County court] because the bond filed in said proceedings is one with personal surety and there is no stipulation of the parties or order for good cause shown of record in said proceedings waiving a compliance with Section 1 of Rule 22 of the County Court of Cook County as set forth in the petition herein;

“That the purported order entered in said cause on February 24th, 1941 is void for want of jurisdiction;

“That the petition filed in said proceeding ‘to contest the validity of election and for recount of ballots ’ is irregular as to content and not in proper form in that the County Court had and has no jurisdiction in the matter of a recount of ballots in an election contest under the provisions of the Illinois Liquor Control Act.” It was ordered that the motion of Judge Reis to dismiss the petition and to quash the writ be denied, and that all other proceedings in the County court in the election contest be quashed and held for naught.

In Brown v. VanKeuren, 340 Ill. 118, it was held: “the circuit court may award the common law writ of certiorari to the county court to review its proceedings in statutory proceedings where its decision is final and where the legislature has failed to provide for a review of its decision.

£ £ The -only office which the common law writ of certiorari performs is to bring before the court the record of the proceedings of an inferior tribunal for an inspection by a superior tribunal. The superior tribunal, upon an inspection of the record, alone, when the writ is sufficient and the writ has been properly issued, determines whether the inferior tribunal had jurisdiction of the parties and of the subject matter, and whether it has exceeded its jurisdiction or has otherwise proceeded in violation of law.”

The proceeding in the County court to contest the election is authorized by par. 182, § 17, ch. 43, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 68.090]. The material part of that section is: “Any five legal voters of any political subdivision, district, precinct ... in which an election shall have been held as provided for in this Act, may within ten days after the canvas of the returns of such election and upon filing a bond for costs, contest the validity of such election by filing a verified petition in the County Court of the county in which such political subdivision, district, precinct . . . is situated.” The section then provides for summons, etc., and the hearing of the case and continues : £ The County Court shall have the final jurisdiction to hear and determine the merits of such cases” and that any legal voter of the precinct may apr pear in defense of the validity of the election. Section 1 of Rule 22 of the County court of Cook county which the Superior court held had been so violated as to deprive the County court of Cook county to hear the case provides:

“Unless the Court, by order entered upon stipulation of the parties or upon good cause shown, shall otherwise direct, no bond with personal surety shall be approved by this Court until the person or persons offered as surety shall have subscribed and sworn to a schedule substantially in the following form:” Then follows a form of the conventional schedule to be signed by the personal sureties.

As above stated, the bond for costs was executed by the five legal voters of the precinct as principals, and by an individual as surety, and it is marked “approved” by Albert E. Isley, Acting County Judge of Cook county. It was filed at the time the petition was filed. Judge Reis, in his motion to dismiss the petition in the instant case, specifies a number of grounds, one of which was that the return to the writ, which showed the record of the case in the County court, failed to include the evidence adduced on the hearing in the County court, which was material to the issues there involved, and that such evidence would show that by agreement of parties, the court was authorized by them to enter the order of February 24,1941, in the manner above shown — by writing a letter to the deputy clerk of the County court of Cook county which included the form of the order entered. But whether this order, entered as it was, is valid, is wholly immaterial because afterward, April 26, 1941, when Judge Reis was sitting in the County court of Cook county, an order was entered overruling defendants’ motion for a new trial and their motion in arrest of judgment and it was ordered and adjudged that the election of November 5 be declared null and void. This order was valid and binding in every way.

We think the Superior court was in error in holding that the County court was without jurisdiction because it approved a bond for costs signed by an individual surety when the rule required that such surety should also file a schedule. There is no such provision in par. 182, ch. 43, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 68.090], from which we have above quoted. Moreover, the objection to the bond is hypercritical and unwarranted.

In People v. Davis, 357 Ill. 396, the court said: “Rules of court should he obeyed. This, however, does not imply such unswerving obedience as to preclude reasonable action thereunder. where no material harm is done to any litigant. ... We can perceive no reason why rules of court should be interpreted or construed more strictly than statutes in general. When we apply the well known canons of construction used in construing general statutes to the rules in question, the inescapable conclusion is that the rules have been -substantially complied with, judged by the reason for their existence and the results to be achieved by their operation. Such rules are not mandatory, for in a particular case, for good cause, they may be disregarded.” And as was said in Field v. Chicago D. & V. R. Co., 68 Ill. 367: “But if it were true the court had violated one of its rules, we would not for that reason alone reverse, unless it was apparent that injustice had been done, which does not appear in this case.”

But plaintiff contends the judgment of the Superior court is right and should be affirmed because the County court had no jurisdiction to recount the ballots —to determine the result of the election — that that function could only be performed by the Circuit court, that the County court’s jurisdiction was limited to passing on the validity of the election and not the result, and in support of this Mayes v. City of Albion, 374 Ill. 605, is cited. We think that case sustains the contention of plaintiffs. But from an examination of the record before us it is not at all clear that the ballots were counted in the proceeding in the County court. That court had jurisdiction to pass upon the validity of the election. It held that the election was null and void and therefore the counting of the ballots was an idle gesture — wholly immaterial.

For the error in holding that the County court had no jurisdiction because the surety did not file a schedule to the bond, the judgment of the Superior court of Cook county is reversed and the cause remanded with directions to sustain Judge Reis’s motion to dismiss the petition for writ of certiorari and to quash the writ.

Reversed and remanded with directions.

McSurely, P. J., and Hatchett, J., concur.


text:
    Elmer Forrest Herdien and Jennie M. Bodinson, Appellees, v. Walter L. Herdien, Sr. and Mabel Sharp Herdien, Appellants.
    Gen. No. 41,908.
    Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed April 20, 1942.
    Maurice Alschuler, of Chicago, for appellants.

      Samuel A. Einella, of Chicago, for appellees; Myer N. Eosengard, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

May 19,1941, plaintiffs filed their amended complaint against Walter Herdien, Sr. and Mahel Sharp Herdien, his wife, to foreclose a lien evidenced by a decree entered June 29,1939, in the Circuit court of Cook county, by which it was decreed' that defendant Walter Herdien, Sr., pay each plaintiff $2,459 which was decreed to be a lien on the undivided one-half interest of Walter L. Herdien in what is designated as the Sheffield avenue property. Defendants filed their answer to which plaintiffs ’ motion to strike was sustained and defendants electing to stand by their answer, a decree was entered as prayed for in the complaint and defendants appeal.

The record discloses that Peter Herdien, the father of plaintiffs, and Walter L. Herdien, Sr., who are brothers and sister, owned an apartment building in Chicago, referred to as the Sheffield avenue property. He died testate September 5, 1929. Afterward his widow, Martha, died September 23,1931.

March 9, 1936, a decree was entered in the Circuit court of Cook county, wherein Walter L. Herdien, Sr., and others were plaintiffs, and Elmer Forrest Herdien and others defendants. It was decreed that the Sheffield avenue property passed by deed from Peter Herdien, and wife, and that it did not pass under the provisions of his will. In that decree the court found the Sheffield avenue apartment building had been appraised at $70,000 for the purpose of distributing the trust estate among the beneficiaries, and at $62,500 by appraisers appointed by the County court of Cook county in fixing the inheritance taxes. It was further found “that the said property is free and clear of encumbrances” and it was decreed among other things, that the title to the property vested in Elmer F. Herdien by virtue of a warranty deed from his father and mother to him but that Elmer held the title in trust subject to the life estate of his father and to the life estate of his mother, Martha Herdien. That upon the death of the parents an undivided one-half interest in the property vested in Walter and the other half in Elmer. Elmer was ordered and directed to execute a deed conveying an undivided one-half to Walter in fee simple. It was also decreed that: “As to any other property, real or personal or mixed, held by the said Elmer Forrest Herdien and Jennie M. Bodinson, as Trustees, pursuant to1 the testamentary trust designated under the Last Will and Codicils of the said Peter Herdien, it is hereby ordered that they proceed to account therefor and make distribution and division, pursuant to the terms and provisions of said testamentary trust, and that for the purposes of said accounting and division, the matter be and it is hereby referred to Isidore Brown for the purpose of taking a full and true account in accordance with the testamentary provisions of the said Last Will and Codicils of the said Peter Herdien, and pursuant to the findings of Court expressed herein.”

Elmer and the other defendants . appealed from that decree to this court where the decree was affirmed, Herdien v. Herdien, 290 Ill. App. 606 (Abst.), opinion filed May 19, 1937, and leave to appeal denied by the. Supreme Court October 23,1937.

Afterward, in 1937, Elmer in compliance with the decree, conveyed an undivided one-half interest in the property to Walter, Sr.; July 11, 1938, Walter conveyed his interest in the property to his wife, defendant Mabel Sharp Herdien, in consideration of $10,202.85, which sum he was indebted to her.

On the rereference to the master for the accounting by the trustees of the testamentary trust, as designated in the last will and codicils of Peter Herdien, the master reported, and June 29,1939, another decree was entered in the Circuit court of Cook county, in which it was found that Walter L. Herdien, Sr., plaintiff in that case and defendant in the instant case, was indebted to his father, Peter, for $6,506.13, with interest at 5 per cent per annum from January 1, 1932. A credit of $1,400.13 was allowed and it was decreed there was due from Walter to the trustees under the will, $5,106 with interest at 5 per cent from January 1,1932; that that amount “is a lien from and after January 1, 1932 upon the undivided one-half interest of said Walter L. Herdien, Sr. in the property known and referred to as the Sheffield property,” and that of this last sum, $1,702 was to be distributed to Elmer and a like amount to his sister, Jennie, with interest from January 1, 1932.

No appeal was taken from that decree and in the instant case plaintiffs’ position is that they filed their complaint to foreclose the lien of the amount found due to each of them and that in default of payment the property be sold. It is from this decree that defendants appeal. Their contention is that since by the terms of the decree of 1936 it was found that Walter, Sr., was entitled to a conveyance of an undivided one-half interest of the Sheffield avenue property free and clear of all liens, and since that decree was affirmed by this court and leave to appeal was refused by the Supreme Court, and since Elmer, as trustee (after the refusal of the Supreme Court to review the case) executed a deed in accordance with the provisions of the decree of 1936, Walter’s undivided one-half interest could not be subjected to the lien in question.

On the other side, plaintiffs’ position is that the decree of 1936 was interlocutory; that the case was still pending in the trial court on a rereference to the master for an accounting and that any grantee of Walter took the title subject to the pendency of the suit. There would be some force in this latter contention although if sustained, it would in effect be permitting Elmer to stultify himself. He executed a deed in accordance with the provisions of the decree of 1936, conveying an undivided one-half interest to Walter, which clearly shows that he treated the decree as final and not interlocutory. But in any event, we are of opinion that the accounting on the rereference to the master did not involve the Sheffield avenue property for the reason that the decree of 1936, after decreeing that an undivided one-half ’ interest belonged to Walter and that it should be conveyed to him by Elmer, rereferred the matter of accounting “As to any other property, real or personal or mixed” belonging to the trust estate. By this, the Sheffield avenue property was expressly excluded from the accounting. It follows that the provisions of the decree of 1939, which purported to fasten a lien on Walter’s undivided one-half interest in the property was wholly unwarranted and void.

By way of suggestion we think we ought to say that it would have been much less expensive and more expeditious if an accounting had been had on the first reference to the master. The accounting apparently would not have been complicated or extensive and the matters could have been disposed of on the first appeal to this court. As a general proposition, it is only where the accounting would require a great deal of time and expense that an appeal should be taken before the accounting is had.

The decree of the Circuit court of Cook county is reversed.

Decree reversed.

HcSubely, P. J., and Hatchett, J., concur.


author: Presiding Justice Hayes.

text:
    Byron M. Dossett, Administrator of Estate of Dale Dossett, Deceased, Appellee, v. Robert Anderson, Appellant.
    Gen. No. 9,296.
    Heard in this court at October term, 1941;
    opinion filed February 24, 1942;
    rehearing denied May 5, 1942.
    Ralph Dempsey and P. A. D ’Arcy, guardian ad litem, for appellant; Cassidy, Knoblock & Sloan, for appellee.
   Opinion by

Presiding Justice Hayes.

“Not to be published in full.”


text:
    Lillian Hepler, Appellee, v. Glen Morris, Appellant.
    Gen. No. 9,302.

      Heard in this court at October term, 1941;
    opinion filed February 24, 1942;
    rehearing denied May 5, 1942.
    Ralph Dempsey and P. A. D’Arey, for appellant; Rae C. Heiple, Wallace J. Black, Kenneth W. Black and J. M. Powers, for appellee.
   Opinion by

Presiding Justice Hayes.

“Not to be published in full.”


author: Justice Fulton.

text:
    P. M. McConathy, Appellee, v. W. L. McConathy, Executor of Last Will and Testament of Mary J. McConathy, Deceased, and Administrator pro tem of Mary J. McConathy, Deceased, Appellant.
    Gen. No. 9,301.
    Heard in this court at October term, 1941;
    opinion filed February 24, 1942;
    rehearing denied May 5, 1942.
    H. B. Tunnell, for appellant; Dennis J. Godfrey, for appellee.
   Opinion by

Justice Fulton.

“Not to be published in full.”


text:
    James A. Huddleston, Appellee, v. S. B. Ebert, Appellant.
    Gen. No. 9,313.

      Heard in this court at October term, 1941;
    opinion filed February 24, 1942;
    rehearing denied May 5, 1942.
    Thomas L. Jarrett, for appellant; Thornton C. Torrence, for appellee.
   Opinion by

Justice Fulton.

“Not to be published in full.”


author: Justice Riess.

text:
    John Koch, Appellee, v. Clara Barker, Appellant.
    Gen. No. 9,310.
    Heard in this court at October term, 1941;
    opinion filed February 24, 1942;
    rehearing denied May 5, 1942.
    Nelson & Gustafson, Ralph Dempsey and P. A. D’Arey, for appellant; Cassidy, Knobloek & Sloan, for appellee.
   Opinion by

Justice Riess.

“Not to be published, in full.”


text:
    Carrie M. Craig and Hazel I. Craig, Appellants, v. Lewis G. Coonrod, Receiver of First National Bank of Urbana, Illinois, and Don D. Richmond, Appellees.
    Gen. No. 9,315.
    Heard in this court at October term, 1941;
    opinion filed February 24, 1942;
    rehearing denied May 5, 1942.
    Carrie M. Craig and Hazel I. Craig, pro se; Dobbins, Dobbins & Thomas, for appellees.
   Opinion by

Justice Riess.

“Not to be published in full.’’


author: Presiding Justice Burke.

text:
    Julia Gibbons, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,918.
    Heard in third division, first district, this court at October term, 1941;
    opinion filed April 8, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Adam E. Patterson, Alphonse Cerza and John F. O’Malley, Assistant Corporation Counsel, of counsel; John F. Cusack and James J. Cusack, Jr., for appellee; Robert Irmiger, of counsel.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.’’


text:
    Louis Bojarski, Appellant, v. Everett G. Ballard, Appellee.
    Gen. No. 41,931.
    Heard in third division, first district, this court at October term, 1941;
    opinion filed April 8, 1942;
    rehearing denied May 7, 1942.
    George A. Bosomburg, for appellant;
    George E. Billett, for appellee.
   Opinion by

Presiding Justice Burke.

“Not to be published in full.”


author: Justice Hebel.

text:
    Henry Rokicki, Minor, by Joseph Rokicki, His Father and Next Friend, Appellant, v. Polish National Alliance of United States of North America, Appellee.
    Gen. No. 41,848.
    Heard in third division, first district, this court at October term, 1941;
    opinion filed April 8, 1942.
    Thaddeus C. Toudor and Irving L. Lansing, for appellant;
    Hinshaw
      & Culbertson, for appellee;
    Oswell G. Treadway and Raymond L. McClory, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.’’


text:
    Harry Wandke, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,961.
    Heard in third division, first district, this court at October term, 1941;
    opinion filed April 8, 1942;
    rehearing denied May 7, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, A. L. Schwartz and L. Louis Karton, Assistant Corporation Counsel, of counsel; Krohn & MacDonald, for appellee; Stuart B. Krohn and Ian P. MacDonald, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.’’


author: Justice Kilby.

text:
    Joseph F. Peacock, Appellee, v. Lucille A. Searles et al. Appeal of Lucille A. Searles, Appellant.
    Gen. No. 42,127.

      Heard in third division, first district, this court;
    opinion filed April 8, 1942.
    Nat M. Kahn, for appellant; Nathaniel H. Willis, for appellee.
   Opinion by

Justice Kilby.

“Not to be published in full.’’


author: Presiding Justice McSurely.

text:
    Mary B. Sevier, Administratrix of Estate of Albert E. Sevier, Deceased, Appellee, v. Charles M. Thomson, Trustee of Chicago and North Western Railway Company (Substituted for Charles P. Megan, Trustee), Appellant.
    Gen. No. 41,808.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942;
    rehearing denied May 4, 1942.
    Nelson J. Wilcox and I. C. Belden, for appellant; Hummer, Van Ness & Yowell, for appellee; John J. Yowell, of counsel.
   Opinion by

Presiding Justice McSurely.

“Not to be published in full.’’


text:
    Criterion Advertising Company, Inc., Appellant, v. Clemensen’s Florists and Decorators, Inc., Appellee.
    Gen. No. 41,846.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942.
    Culver & Mendelson, for appellant; no appearance for appellee.
   Opinion by

Presiding Justice McSurely.

“Not to be published in full.”


text:
    Mark D. Kalischer, Appellant and Cross Appellee, v. Ludwig Sussman et al., Appellees and Cross Appellants.
    Gen. No. 41,867.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942.
    Sabath, Perlman, Goodman & Rein, for appellant and cross appellee; Theodore E. Rein and Fay Warren Johnson, of counsel; Leslie L. Lyons, for appellees and cross appellants.
   Opinion by

Presiding Justice McSurely.

“Not to be published in full.’’


text:
    Herschel H. Campbell, Appellee, v. Chicago, Burlington and Quincy Railroad Company, Appellant.
    Gen. No. 41,888.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942.
    Martin, Ullmann & Brown and Kramer, Campbell, Costello & Wieehert, for appellant; S. R. Prince and H. O’B. Cooper, of counsel; Leo G. Hanna, for appellee; Samuel Cohen, of counsel.
   Opinion by

Presiding Justice McSurely.

“Not to be published in full.’’


text:
    Frank Klovas, Appellee, v. Steve Wedeskis, Appellant.
    Gen. No. 41,905.

      Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942.
    Anthony A. Slalds, for appellant; Theodore A. Spence, of counsel; Clarence M. Dunagan, for appellee.
   Opinion by

Presiding Justice McSurely.

“Not to be published, in full.”


text:
    American Export Lines, Inc., Appellant, v. First National Bank of Chicago, Appellee.
    Gen. No. 41,951.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942.
    Eugene P. Kealy, for appellant; Lederer, Livingston, Kahn & Adsit, for appellee; Harry H. Kahn and Sherman P. Cohen, of counsel.
   Opinion by

Presiding Justice McSurely.

“Not to be published in full.”


author: Justice Matchett.

text:
    Lake View Trust and Savings Bank, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,929.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Herbert M. Abrams and Barney Pagen, Assistant Corporation Counsel, of counsel; Pollock & Latchford, for appellee; George P. Latchford, Jr., of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.’’


text:
    Schlosser’s Bakeries, Inc. and Louis Schlosser, Appellants, v. Village of Oak Park et al., Appellees.
    Gen. No. 41,948.

      Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942.
    Ben A. Stewart, for appellants; John E. Tyrrell, for appellees.
   Opinion by

Justice Matchett.

“Not to be published in full.”


text:
    Anna S. Hopstein, Appellee, v. Joseph Hentschel, Appellant.
    Gen. No. 41,959.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942.
    Clifford D. Eiger, for appellant;
    Bernard A. Stol, of counsel;
    Harry J. Guyon, for appellee.
   Opinion by

Justice Matchett.

“Not to be published in full.”


author: Justice O’Connor.

text:
    Joseph Wagner, Trading as Wagner Dairy Products, Appellant, v. M. Okner, Appellee.
    Gen. No. 41,925.

      Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942.
    Grablowski & Kanak, for appellant; Harvey L. Cavender, of counsel; Isidore Pried, for appellee; Edward Horchler and Bernard A. Stol, of
    counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.’’


text:
    Virginia Martin, Minor, by Henry Martin, Her Father and Next Friend, Appellee, v. City of Chicago and Publix Furniture Company. City of Chicago, Appellant.
    Gen. No. 41,936.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed April 20, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Samuel Allen and L. Louis Hartón, Assistant Corporation Counsel, of counsel; Temple, Wimbish & McLendon, for appellee.
   Opinion by

Justice O’Connor.

“Not to be published in full.’’