author: Mr. Justice Aleases

text:
    Edward J. Cullinan, Appellant, v. Richard A. Cullinan, Appellee.
    Gen. No. 8,934.
    Opinion filed April 17, 1936.
    William A. Potts and Robert H. Allison, both of Pekin, for appellant.

      George Z. Barses, of Peoria, for appellee.
   Mr. Justice Aleases

delivered the opinion of the court.

Edward J. Cullinan, plaintiff appellant, brought suit against Bichard A. Cullinan, defendant appellee, in the circuit court of Tazewell county to the May term, 1930, said suit being filed on April 10, 1930. In this suit plaintiff claimed that he had sold to the defendant II, 252.8 cubic yards of gravel at 20 cents per cubic yard, for which he had not been paid. The case was tried before a jury at the February term of said court, 1932, and a verdict was returned for the defendant. Judgment was entered on the verdict, from which judgment the plaintiff appealed to this court. The judgment was reversed and the case remanded for a new trial on account of errors shown upon the record. (269 Ill. App. 664.) A new trial was had before a jury in December, 1934, and on December 6, 1934, the jury returned its verdict finding the issues for the defendant. A motion for a new trial was made on behalf of the plaintiff and argued before the court, and on December 31, 1934, the motion for new trial was denied and judgment was entered on the verdict. From this judgment of December 31,1934, the plaintiff has prosecuted this appeal to this court, assigning* many errors relied upon for reversal. None of these is set out inasmuch as they will have no bearing upon the decision in this case, except the eleventh assignment of error which will be hereafter discussed. The defendant filed in this court a motion to dismiss the appeal, or to strike the cause from the docket, together with suggestions in support of said motion. The plaintiff filed suggestions in opposition to the defendant’s motion to dismiss the appeal. Counsel for both plaintiff and defendant in their briefs, and plaintiff more particularly in his reply brief, have discussed the merits of. this motion at great length, although most of the discussion is a repetition of the suggestions previously'filed as mentioned herein. This motion of defendant to dismiss plaintiff’s appeal, or to strike the same from the docket, was taken with the case.

The motion is based upon the following facts: Final judgment was entered in this case on December 31, 1934; plaintiff, filed his “Notice of Appeal” with the clerk of the circuit court of Tazewell county on January 18, 1935. Proper notice was served on appellee, and appellee entered a notice of appearance in said appeal on January 28, 1935. On February 4, 1935, plaintiff filed his praecipe for record, requesting, among other things a “report of the proceedings” of the trial. No “report of the proceedings” or record or stipulation of facts material to the controversy were presented' or filed in the court within 60 days after the filing of the “Notice of Appeal.” And no extension of time was asked for or granted by the court within said 60 days. On April 16, 1935, defendant filed his motion in the trial court to dismiss the appeal as set forth in the “Notice of Appeal” of January 18, 1935. A hearing was had on said motion on April 20, 1935, and the circuit court of Tazewell county dismissed the appeal.

In the meantime plaintiff filed a second “Notice of Appeal ’ ’ within 90 days from the rendition of the final judgment against him, on March 23, 1935, and a praecipe for record on March 25, 1935. On April 20, 1935, defendant filed a motion to strike from the files the second “Notice of Appeal” filed on March 23,1935, and the praecipe for record filed two days thereafter, which motion was on that day allowed, and the said second “Notice of Appeal” and praecipe issued thereafter were stricken from the file. Plaintiff, disregarding the order of April 20, 1935, dismissing the appeal and striking the second.“Notice of Appeal” and the praecipe filed thereunder has brought the record of this case to this court for the purpose of review by this court of all the proceedings had in the trial court. This report of proceedings was presented to the trial judge on the 16th day of May, 1935, and was signed and sealed by him on the 21st day of May, A. D. 1935, and was filed in this court on June 20, 1935.

It is contended by the plaintiff that the trial court erred in striking the second “Notice of Appeal” and praecipe for record filed by the appellant, and the eleventh error relied upon for reversal is to the same effect. No complaint is made of the order of the circuit court of Tazewell county dismissing the appeal based on the first “Notice of Appeal” filed January 18,1935. In fact, plaintiff did not resist the motion and concurred in it, claiming that the appeal had been abandoned.

It is the plaintiff’s contention that he could abandon the appeal based on the “Notice of Appeal” filed January 18, 1935, and as a matter of right file a second “Notice of Appeal” within 90 days from the rendition of judgment, totally disregarding* the “Notice of Appeal ’ ’ previously filed. We have been favored by counsel for both sides with lengthy argument concerning the construction to be placed upon appeals prosecuted under the.Civil Practice Act. Citations from various texts, and from other jurisdictions, have been called to the court’s attention. However, the courts of our own State have twice passed upon this matter, and we believe we are bound to follow these decisions.

In the case of Corrigan v. Von Schill College of Chiropody & Pedic Surgery, 277 Ill. App. 350, where a defendant filed a second notice of appeal, Mr. Presiding Justice O’Connor said: “There is no provision in the rules of court for allowing a second notice of appeal, so that the second notice of appeal filed by defendant was a nullity.” Recently, in the case of Lanquist v. Grossman, 282 Ill. App. 181, a situation almost identical with the case at bar was presented to our Appellate Court for the First District. In an exhaustive opinion written by Mr. Justice Sullivan, which sets out in detail all of the provisions of the Civil Practice Act which pertain to appeals, this matter is discussed at great length. Practically the same arguments were presented by the appellant in that case as are presented here. In that opinion the court points out under subdivision 2, section 76 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ft 204, “An appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court,” and quotes from the opinion of Mr. Justice O’Connor in the case of Corrigan v. Von Schill College of Chiropody & Pedic Surgery, 277 Ill. App. 350, and then says, concerning a second notice of appeal, “The trial court, however, should have sustained defendants’ motion to dismiss what purported to be a notice of appeal filed by plaintiff July 17, 1934, because there was no leg'al sanction for filing same under the act or the rules of court. ’ ’

It is true that section 4 of article 1 of the Civil Practice Act declares that it shall he liberally construed, so that controversies may be speedily and finally determined according to the substantive rights of the parties, but we believe that provision did not contemplate a total or even a partial disregard of the rules established by the Supreme Court for orderly and convenient procedure in the prosecution of appeals.

For the reasons set-out herein it is our opinion that the trial court properly struck the second “Notice of Appeal” and the praecipe issued thereafter, and that defendant’s motion to dismiss this proceeding purporting to be an appeal should be allowed, and that this proceeding should be dismissed.

Proceeding dismissed.


source: Caselaw Access Project

author: Mr. Justice Allaben

license: Public Domain

text:
    Webster Grocer Company, Appellant, v. Edward C. Gammel and James A. Foster, as Executor of the Last Will and Testament of W. C. Lewman, Deceased, Appellees.
    Gen. No. 8,971.
    Opinion filed April 17, 1936.
    Jones, Grant & Jones, of Danville, for appellant.
    Acton, Acton & Baldwin, of Danville, for appellees ; W. M. Acton, of counsel.
   Mr. Justice Allaben

delivered the opinion of the court.

On October 25,1934, a judgment was entered by confession in open court, at the October term, in the circuit court of Vermilion county, Illinois, for $8,201.92, in favor of plaintiff appellant, Webster Grocer Company, a corporation, and against Edward 0. Gammel and W. 0. Lewman. No further action was taken during that term of court. The January term, 1935, intervened, and during the May term, on, to wit, July 18, 1935, defendants appellees filed a motion supported by affidavit to vacate and set aside the said judgment as being void. The affidavit filed with the motion showed that W. C. Lewman, one of the judgment debtors, died on November 7, 1934, and that James A. Foster was appointed executor. The affidavit did not deny the debt, but asserted that the judgment was premature in time, for the reason that the note, according to its terms, fell due on September 29, 1936, and the warrant of attorney had been altered so that the words “at any time hereafter” were scratched out, and therefore, that judgment could not be confessed upon said note until the due date thereof.

Plaintiff appellant filed a motion to strike the motion of the defendant appellee on the theory that the court had no authority or jurisdiction to set aside and void a judgment entered in open court at a former term thereof. The circuit court denied this motion, and allowed the motion to vacate the judgment, and entered an order vacating and voiding said judgment of October 25, 1934. From a final order vacating the judgment this appeal is prosecuted to this court.

It is contended by the appellant that since the judgment in this case was entered in open court in term time that the presumption of jurisdiction of the court to enter the judgment is conclusive. In support of this contention the appellant cites a number of cases, which we do not feel substantiate its position. In the case of Roche v. Beldam, 119 Ill. 320, where the grounds for vacating a judgment were that it was not entered in open court, and that said circuit coiirt" was not in session at the time it was entered, and at the time judgment was entered no execution had been issued, and where it was later shown that the court was in fact in session, the Supreme Court in its opinion said: “Thus, it is seen, the court in regular session had jurisdiction of the person of defendant and of the subject matter of the suit, and no reason appears on the face of the record why the judgment rendered against defendant is not regular and valid.” In the case of Alton Banking & Trust Co. v. Gray, 347 Ill. 99, the motion was filed to vacate a judgment entered by confession, motion being filed on behalf of certain guarantors on the note who claimed that they did not sign the power of attorney authorizing the confession of judgment. The power of attorney and note were not made a part of the record by the bill of exceptions, and the question raised on appeal did not involve a showing on the record as to whether the court had jurisdiction or not. Appellant also cites the case of Osgood v. Blackmore, 59 Ill. 261. In this case it was claimed that the notes described in the warrant of attorney were different from the note on which suit was brought. In that case the court said: “Had the power of attorney left it clear that the note produced was not that referred to in the warrant, then the power could not have been exercised. But, in this case, no doubt can exist that this is the note upon which the attorney was authorized to confess the judgment. ’ ’ And in connection with the presumption of jurisdiction in this case the court further said: “The presumption which the law in-

dulges in favor of its jurisdiction can only be overcome, in a collateral proceeding, when the record itself shows there was no jurisdiction, and there is nothing in the record of the confession in this case which tends in the slightest degree to contradict the presumption. ’ ’ We believe there is no question that the rule in favor of upholding the jurisdiction of the court is followed in those cases where the record does not disclose any lack of jurisdiction, but where the record does disclose some infirmity in the court’s jurisdiction,.a judgment entered without such jurisdiction is void, and can be set aside on motion at a subsequent term.

As stated in the case of Berlin v. Udell Printing Co., 271 Ill. App. 464: “The power to confess a judgment must be clearly given and strictly pursued, and a departure from the authority conferred will render the confessed judgment void. Wells v. Durst Chevrolet Co., 341 Ill. 108; Keen v. Bump, 286 Ill. 11. The warrant in the instant case was to confess judgment for the amount due upon these bonds prior to their regular maturity date, only in the event there had been a default and an election as provided in the paragraph preceding the power of attorney and upon giving 30 days ’ notice of such default and election. The pleadings do not disclose that this provision was complied with and were insufficient therefore to support the judgment entered and appellee exceeded the authority conferred upon her by the provisions of this warrant of attorney and the judgment so entered is void.” Citing White v. Jones, 38 Ill. 159; Baering v. Epp, 247 Ill. App. 51.

In the case of White v. Jones, supra, the court in its opinion said: “The confession being* unauthorized at the time it was made, the question arises whether it was merely erroneous, or absolutely void. As a rule of general, if not uniform, application, a judgment is void for all purposes, unless the court had jurisdiction of the person of the defendant and of the subject matter of the suit.” As in the White case, so in the instant case, if jurisdiction was obtained of the defendants, it was only obtained by the entry of their appearance and as such authority appears from the power of attorney, nothing which appears in the record can give any authority for entering a judgment other than the warrant of attorney on the note in the form in which it stood with the words “at any time hereafter” scratched out which words were stricken before the note was executed. Therefore, we do not believe that the court had any jurisdiction to enter' judgment until the due date, and since the note had not yet matured at the time the said judgment was entered by the trial court, the said judgment so entered by the trial court is void.

For the reasons given we believe that the trial court properly allowed the motion to vacate the judgment, and properly entered an order vacating, and voiding said judgment, and said order entered by the circuit court is hereby affirmed.

Order affirmed.


author: Mr. Justice Fulton delivered

text:
    Annie Dilatush, Executrix of the Estate of Frank V. Dilatush, Deceased, Appellee, v. Roland Salyers, Executor of the Estate of John A. Salyers, Deceased, Appellant. William Dighton et al., Appellees. J. R. Drake, Receiver of the First National Bank of Monticello, Appellee and Cross Appellant.
    Gen. No. 8,940.

      Opinion filed April 17, 1936.
    W. A. Doss and B. E. Morgan, both of Monticello, for appellant.
    Frank J. Thompson and Robert F. White, both of Sullivan, for cross appellant J. R. Drake.
    E. J. Ha weaker, of Monticello, and O. B. Dobbins, of Champaign, for appellee Annie- Dilatush.
   Mr. Justice Fulton delivered

the opinion of the court.

On May 22, 1933, the appellee, Annie Dilatush, executrix of the estate of Frank V. Dilatush, deceased, filed a bill in the circuit court of Piatt county, asking for discovery, an injunction and relief against John A. Salyers, William Dighton, William Steele, Frank Hetishee,. the executor and executrix of the estate of George B. Noecker deceased, the First National Bank of Monticello and Jacob Drake, conservator. The defendants Dighton, Steele, Hetishee and the executor and executrix of the estate of George B. Noecker are not interested in this appeal. Later on Jacob Drake, conservator, succeeded himself as receiver of the First National Bank, John A. Salyers became deceased and his executor, Roland B. Salyers, was substituted. These last two named persons in their official capacity are each separate appellants from the decree rendered in the circuit court in favor of the appellee, Annie Dilatush, as executrix.

Demurrers were sustained to the original bill and the appellee filed an amended and supplemental bill of complaint alleging substantially the same state of facts and attaching specific interrogatories to be answered by various defendants touching the transactions complained of in the amended bill. The prayer for relief contained in the amended bill was that the defendants make full, true and complete discovery of the several matters inquired of; that John A. Salyers be restrained, by injunction, from further proceeding at law in the county court of Piatt county on his claim filed against the Frank V. Dilatush estate, and for general relief. Answers were filed to the original bill by William A. Steele, Frank Hetishee, and the executor of the. estate of George B. Noecker, deceased, denying that the appellee was entitled to the relief prayed for and said answers were extended to the amended bill. After a demurrer, filed to the amended bill by John A. Salyers, was overruled, he answered and defaults were taken as to all other defendants not answering. Shortly after the filing of the bill a temporary injunction for a limited time was issued by the court which restraining order expired before the entry of a decree and no permanent injunction was granted. The cause was referred to a special master in chancery upon the amended bill and the answers. The testimony heard before the master was substantially as charged in the amended bill and there was little controversy over all the material facts relating to the matters complained of, except as to the charge by appellee that John A. Salyers had knowledge of the transaction between the bank and William Dighton, Frank V. Dilatush and other directors and that the bank claimed some interest in the ownership of the note in question.

The testimony reported by the master and the admitted facts in the pleadings show that from the year 1914 to 1920 there was operated in the City of Monticello the Farmers State Bank. John A. Salyers was president of that bank. On June 19, 1920, the assets of the Farmers State Bank were purchased by the First National Bank of Monticello and were duly indorsed and transferred to the latter bank. It also assumed the liabilities of the Farmers State Bank. John A. Salyers then became a stockholder in the First National Bank of Monticello. In June, 1923, there were some undesirable notes among the assets of the First National Bank which the directors desired to liquidate. In order to do this, $6,000 was borrowed from John A. Salyers and for this money William Dighton and Frank V. Dilatush signed and delivered to Salyers their personal note for said sum of $6,000, payable December 31, 1923, and bearing* interest at the rate of six per cent per annum. The aggregate amount of principal and interest due on the three undesirable notes amounted to $6,374.11. $374.11 was charged off by the bank to profit and loss. William Dighton was the president of, and owner of the majority of the capital stock in, the First National Bank of Monticello. Frank V. Dilatush was a director and stockholder in said bank. John A. Salyers maintained a checking account in the bank and the sum of $6,000 was on the date of the note drawn from his account and by his check paid to the makers of the note and the proceeds thereof paid by the makers of the note to the bank to retire the said undesirable notes then held among* the assets of the bank.

On the same date as the note five of the nine directors of the bank, including the said Dighton and Dilatush, signed a statement on a letterhead of the bank, agreeing that the $6,000 note to John A. Salyers, signed by Dighton and Dilatush, would be liquidated and paid, principal and interest, from the earnings or otherwise of the First National Bank of Monticello. On March 22, 1930, William Dig*hton signed a notation on this letter to the effect that the note was still in force and unpaid and the agreement was still in effect. On the first day of June in each year, after giving said note, for nine years John A. Salyers, the payee and owner of the $6,000 note in question, presented the original note at the bank and received the annual interest due on the same. The interest was paid at the bank by one of its officers and charged to the profit and loss account of the bank from year to year. During all of this time William Dighton remained the president and managing officer of the bank and Frank V. Dilatush remained a director. No record concerning the note or the agreement of the five directors pertaining to the same ever appeared on the minutes of the directors’ meetings on the books of the bank or its corporate records.

Frank V. Dilatush died April 27, 1932, and appellee was duly appointed executrix of his will. The letter or agreement, signed by the five individual directors of the bank, was found among his papers and effects. John A. Salyers thereupon filed his claim on the said $6,000 note against the estate of Frank V. Dilatush, in the county court of Piatt county, claiming the full amount of principal and interest due thereon to April 21, 1933, aggregating* the sum of $6,320. John A. Salyers had continuous possession of this note from the date it was delivered to him and kept the same in his safety deposit box at the bank. At no time was the note ever listed among the assets or the liabilities of the First National Bank of Monticello. On March 4, 1932, the First National Bank of Monticello was closed and J. B. Drake became conservator of said bank. At the time of the closing of the bank, John A. Salyers was indebted to said bank on his promissory note in the sum of $2,000, dated January 2, 1933, and bearing interest at six per cent. He was also the owner of 10 shares of the capital stock of said bank upon which an assessment of $100 per share was later levied. He had on deposit in the bank a checking account with a balance of $886.79. On August 12, 1933, Salyers voluntarily paid the balance remaining due on his note after deducting the amount of his deposit balance as an offset. The exact amount he paid was $1,163.18, which included $49.97 as interest on the note. William Dighton, one of the makers of the $6,000 note, was adjudicated a bankrupt on June 12, 1933, and John A. Salyers filed a claim on the note against the bankrupt estate and later received a dividend on said claim amounting to $739.76. John A. Salyers died in May, 1934. In his conclusions the special master found that the amended bill failed to set forth grounds for equitable relief and that the bill should be dismissed for want of equity.

After the master’s report was filed the conservator of the bank sought to have the defaults theretofore entered against him set aside and for leave to answer the amended bill which was denied. Later the conservator of the bank became the receiver and was then given leave to file an intervening petition. After the death of John A. Salyers, his executor filed a cross-bill against Annie Dilatush, executrix, and asked the court to render a judgment in favor of the executor of the Salyers’ estate and against the executrix of the Dilatush estate for the amount of the note in question and the interest thereon. The objections filed by appellee to the report of the special master urges affirmative relief in the form of a money judgment against the First National Bank of Monticello. The court entered a decree for a money judgment in favor of Boland Salyers, executor of the estate of John A. Salyers and against Annie Dilatush, executrix of the estate' of Frank V. Dilatush in the sum of $5,043, being the amount of his claim less the amount of cash paid by Salyers to the bank in satisfaction of the $2,000 note and the further sum of $739.76 paid to Salyers as a dividend from the bankrupt estate of William Dighton. The sum of $5,043 was brought into open court and tendered by the appellee to the executor of the Salyers estate and by him refused. Thereupon the court rendered judgment in favor of the appellee and against the receiver of the First National Bank of Monticello in the sum of $5,043 to be paid in due course of administration of said bank.

The only question presented by the appeal of Salyers’ executor is whether or not the court entered judgment for the proper amount. The question presented by the appellant receiver is whether or not the court had equitable jurisdiction to properly enter judgment against him as such receiver to pay the Dilatush estate in due course of administration the same amount for which the court had entered judgment against the Dilatush estate.

It is contended by the bank receiver that the amended bill for discovery set forth no grounds for equitable relief, nor was any cause for equitable relief as against the bank or its receiver supported by the evidence in the case. The only grounds for equitable relief set forth in the amended bill of complaint was for discovery to the end that appellee might be better able to properly defend the claim on the said note filed against the estate of Frank V. Dilatush and in order to prove that the $6,000 note, held by Salyers, was really an obligation of the First National Bank, and that Salyers had knowledge of that fact. There is nothing in the testimony which adds any new or additional proof to that disclosed by the pleadings as to the facts concerning the controverted transaction and in order to obtain equitable relief it is necessary that a complainant must establish the facts supporting such claim by clear and convincing evidence. Equity has no jurisdiction to enforce pure legal demands in the absence of special circumstances. To maintain a decree it is necessary that facts be averred requiring equitable relief and that the facts be proved. If not averred and established at the hearing the bill must be dismissed for want of equity. Hogg v. Hohmann, 330 Ill. 589. In this case, even though the note be construed to be an obligation of the bank as a corporation, it would be first necessary for the appellee to show the payment and the discharge of the decedent’s personal liability to John A. Salyers before she would have any right of action against the bank. There is nothing in the testimony which discloses a defense to the claim of John A. Salyers on the note and none is alleged in the amended bill. There is no evidence of any knowledge on the part of Salyers of the transaction within the bank or between the directors as to the retirement of the note by the bank. There is no defense to the payment of the note disclosed by the pleadings or the evidence which the appellee could not have presented in the county court in "defense of the claim. In case the estate was compelled to pay the claim of John A. Salyers, based on the note, and it was construed that such note was an obligation of the bank, which is at least debatable, then the appellee might have a common law action against the bank for money had and received. To hold that because the estate was liable upon the note of John A. Salyers and thereby appellee had a right of action against the bank, and that therefore the rights and liabilities of the respective parties could be determined in an equitable proceeding is an unwarranted extension of equitable jurisdiction. In support of the decree the appellee asserts that because the receiver was not an original defendant in the suit but only became a party in such capacity by filing* an intervening petition in the nature of a cross-bill, therefore it cannot now be heard to question the jurisdiction in chancery of the entire matter. The intervening petition of the receiver was not in fact a cross-bill but more in the nature and form of an answer and only prayed for the approval of the report of the special master in chancery and for a dismissal of the cause for want of equity. In the cases cited in support of appellee’s contention there was no doubt about the jurisdiction of the court to hear and find equitable relief. The principle that one who invokes the jurisdiction of chancery with respect to a particular subject matter cannot challenge the jurisdiction of such court with respect to such subject matter does not apply here. In the case of Chapman v. American Surety Co., 261 Ill. 594, where the question was presented as to whether a court of equity could by injunction stay proceedings in a probate court, instituted to compel an accounting by a guardian, it was clear that the probate court had no jurisdiction to determine whether a guardian had power to invest funds of a ward in real estate, or to ratify or confirm such investment made by a guardian, and therefore it was proper to file a bill in equity to restrain further proceedings in the probate court. The facts in this case do not set forth any such reasons for resorting to a court of chancery. In the Chapman case it was stated that the court has frequently said that the probate court has a sort of equitable jurisdiction over claims presented to it for allowance and that in the allowance of claims against an estate the county court may adopt the forms of proceedings in equity.

We see no reason why appellee could not have full, adequate and complete remedy at law. This suit having been started in May, 1933, pleadings filed and hearings had prior to January 1, 1934, under Bule One of the Supreme Court, it is not governed by the Civil Practice Act. We are convinced that the circuit court was without authority and jurisdiction to enter a decree granting affirmative relief not supported by any equitable grounds alleged in the amended bill for discovery, and that the chancellor should have dismissed the bill for want of equity. It is therefore not necessary to discuss the other questions argued in the briefs of counsel. The decree of the circuit court of Piatt county is reversed and the cause remanded with instructions to enter an order dismissing the appellee’s bill for want of equity.

Reversed and remanded with instructions.


author: Mr. Justice Fulton

text:
    C. E. Healey & Son, Appellee, v. The Stewardson National Bank, Appellant.
    Gen. No. 8,965.

      Opinion filed April 17, 1936.
    John J. Baker, of Shelbyville, for appellant.
    John N. Zimmerman, of Effingham, and TJ. G-. Ward and Philip L. Turner, both of Shelbyville, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an action at law brought by appellee against appellant bank to recover on an alleged guaranty by the appellant for the payment of a portion of a check given by one Floyd Whitacre to the appellee. By agreement of parties jury was waived and cause tried by the circuit court of Shelby county.

The complaint, as amended, charges in substance, that the appellant, the Stewardson National Bank, was duly incorporated under the laws of the United States and engaged in the banking business in the Village of Stewardson, Illinois; that on November 30,1933, Floyd Whitacre made his personal check for the sum of $1,274.21, payable to the order of appellee, which check was drawn on the appellant bank; that thereupon, on November 29, 1933, in consideration that appellee, at the request of the appellant, would accept the said check, the appellant, by telegram, at the request of the DuQuoin State Bank, of DuQuoin, Illinois, guaranteed the payment of the said check up to the amount of $700 and promised to pay appellee the same, if the said Floyd Whitacre should not pay the said check; that the appellee relied upon the undertaking of the appellant and accepted the check from the said Floyd Whit-acre ; that the said Floyd Whitacre has not paid said check or any part of the same; that appellee after-wards presented the said check to the appellant hank for payment but payment was refused.

Attached to the complaint under the caption of “copy of instruments sued on” appears the following:

Floyd Whitacre Cream, Poultry and Eggs

N. P. No. 14621 70-371

Stewardson, Ill., Nov. 30,1933.

Pay to the

Order of C. E. Healey & Son $1247.21

Twelve Hundred Seventy-four 21/100 Dollars

Floyd Whitacre By: Ben Brown.

To the Stewardson National Bank 70-968 Stewardson, Ill.

Western Union

November 29, 1933

To DuQuoin State Bank

Street and No...........

Place DuQuoin, Illinois.

We guarantee Floyd Whitacre check up to Seven Hundred Dollars to Healey at their request.

Stewardson National Bank Stewardson, Illinois.

The answer of the appellant was in substance a general denial of all the material facts alleged in the complaint and while other matters are set up in the answer, the main ground of defense urged by appellant was that the act or contract of guaranty set forth in the complaint was ultra vires and beyond the charter powers of a national hank such as the appellant corporation.

There was no serious controversy over the facts and from the stipulation and testimony it appears that the appellee is a partnership consisting of 0. E. Healey and Flora B. Healey and that they were engaged in the wholesale and retail poultry and egg business. M. A. Palmer was manager of a plant operated by them at DuQuoin, Illinois. Floyd Whitacre resided at Stewardson, Illinois, and was engaged in the wholesale poultry and eggs and general merchandise business. He was, and had been for some time prior thereto, a customer of the appellant bank. Ben Brown was a poultry buyer in the employ of Whitacre. On November 29, 1933, Palmer, acting for appellee, called Whit-acre on the telephone and asked him what he would give for a load of poultry. Whitacre offered 16 cents per pound for hens, which would make a carload of such poultry worth about $700. Palmer told Whitacre he could have the poultry on the following day, provided Whitacre would have his bank send to the bank at DuQuoin a guaranty of the payment of a check for the load of poultry. Palmer further testified that he told Whitacre to be sure and have his bank wire the bank at DuQuoin that such check would be paid and that he told Whitacre that there would be a carload of poultry to which Whitacre replied “all right.” After banking hours, on November 29, 1933, appellant wired the DuQuoin State Bank that they would guarantee Floyd Whitacre’s check up to $700, payable to appellee. On the following* day a quantity of poultry was weighed up, loaded on trucks and delivered to Ben Brown, acting for Whitacre, and at the same time he made, executed and delivered to Palmer a check for $1,247.21, the copy of which was attached to the complaint. The weight, the kind of poultry and the amount delivered to Brown for Whitacre were all determined after the telegram in question was communicated to appellee. The check given appellee was deposited with the DuQuoin State Bank and sent through its regular correspondence until it reached the appellant bank. At the time it reached the appellant bank, Whitacre had absconded and had not sufficient funds in the appellant bank with which to pay the check. The check was marked by appellant “Returned Unpaid. N. S. F.” and returned to the DuQuoin State Bank. Later the check was presented to the appellant bank by agents of the appellee for payment which was again refused. There was no claim that appellant received any consideration for the alleged contract of guaranty.

The court found the issues in favor of the appellee and entered judgment for the sum of $756.80 against the appellant, the amount being the $700 mentioned in the telegram, plus interest.

It is the contention of the appellant bank that it guaranteed an obligation of Floyd Whitacre, in the event he, Whitacre, did not pay the obligation, which constituted a contract of guaranty and was therefore ultra vires and void. The appellee, in answer to the position assumed by the appellant, urges that the appellant bank would not be permitted to set up its unauthorized act as a defense to a suit, brought by a party who had no actual knowledge of the scope of the powers of the appellant bank and also that the appellant was estopped because of the doctrine that one cannot profit by his own wrong and where one of two parties must suffer the one who gave the power to do the wrong must bear the burden of the consequences. In support of these principles they rely chiefly upon the case of People’s Bank v. Manufacturers Nat. Bank, 101 U. S. 181, and Farmers & Merchants Nat. Bank v. Illinois Nat. Bank, 146 Ill. 136. In the former case a national bank in transferring promissory notes guaranteed the payment thereof through its duly authorized agents which was one of the powers given under the National Banking Act, reading as follows: “To exercise by its Board of Directors, or duly authorized agents, all such incidental powers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange and other evidences of debt, by receiving deposits,” etc. To transfer negotiable instruments by indorsement and guaranty is a common mode of transacting banking business and therefore there was nothing ultra vires of the act of the bank in that case.

The other case seems to be authority for the position taken by the appellee in this case. The facts are strikingly similar to the evidence in this case and the court held that it was not ultra vires for the defendant bank to promise to honor a draft upon which suit was subsequently instituted. However, under a long line of federal cases and in a recent Appellate Court case from the First District, a general rule seems to have been well established that a national bank has no power, under the National Banking Acts, to guarantee, merely for the accommodation of another, the performance of obligations in which it has no interest and from which it derives no benefit. Bowen v. Needles Nat. Bank, 94 Fed. 925; First Nat. Bank v. National Produce Bank, 239 Ill. App. 376. It is also well established that the powers of a national bank organized under the laws of the United States are essentially matters for federal construction and interpretation, and that State courts must yield to the decisions of the federal courts construing the powers of such banks under the National Banking Act. In the present case the telegram sent by the appellant to the DuQuoin State Bank stated:

“We guarantee Floyd Whitacre’s check up to $700.00 to Healey.” We cannot see how the language of this telegram can be construed to mean other than a contract of guaranty. If the undertaking on the part of the appellant was one of guaranty, then we believe that the defense of ultra vires was properly interposed in this case according to the overwhelming weight of authorities in both the federal and State courts. One of the cases cited with approval in First Nat. Bank v. National Produce Bank, supra, was the First Nat. Bank v. American Nat. Bank, 173 Mo. 153, which in part recites as follows:

“This law has undergone thorough and exhaustive adjudication in the courts of the United States, and, briefly stated, the rule declared is that a national bank has no power, either with or without a sufficient consideration, to agree or bind itself that a draft of A. upon B. will be paid; that such agreement is a mere guaranty and is not within the powers conferred upon such banks; and that, when sued upon such a contract, the bank can successfully interpose a defense of ultra vires,” citing a number of federal decisions and quoting at length from the opinion in Commercial Nat. Bank v. Pirie, 82 Fed. 799. The opinion adds that “this rule of the Federal Courts has been yielded to and enforced in State Courts,” citing Thilmany v. Iowa Paper Bag Co., 108 Iowa 357, and Groos v. Brewster (Tex.), 55 S. W. 590, and concludes that the contract is void and the plaintiff is not entitled to recover.

Appellee attempts to distinguish the case of First Nat. Bank v. National Produce Bank, 239 Ill. App. 376, by stating that both the plaintiff and defendants in that case were national banks and the plaintiff in receiving- the guaranty would know the scope of power of a national bank to enter into such a guaranty. However, it is our understanding that one dealing with a banking corporation, having limited and delegated powers, is chargeable with notice of those powers and their limitations and cannot plead ignorance of their existence. Appellee was chargeable with notice that the appellant bank was without power to make a contract of guaranty. Knass v. Madison & Kedzie State Bank, 354 Ill. 554.

It is our judgment that the testimony in this case does not support a cause of action on the part of the appellee. Their claim was based upon a contract of guaranty on the part of the appellant which was outside the charter powers of the bank and the defense of ultra vires was a complete defense to appellee’s claim. The judgment of the trial court must be reversed.

Reversed.


text:
    The Illinois Joint Stock Land Bank of Monticello, Appellant, v. Harvey G. Terry et al., Appellees. Harvey G. Terry, Appellee, v. The Illinois Joint Stock Land Bank of Monticello, Appellant.
    Gen. No. 8,972.

      Opinion filed April 17, 1936.
    Green & Palmer, of Urbana, and Egbert Shonkwiler, of Monticello, for appellant; Henry I. Green, Enos L. Phillips, Oris Barth and Claudia E. Stone, of counsel.
    Acton, Acton & Baldwin, of Danville, for appellee; W. M. Acton, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

Harvey G. Terry, one of the appellees, was the owner of 386 acres of farm land in Vermilion county, Illinois. On March 27, 1926, he and Libbie J. Terry, his wife, executed a mortgage on said land to secure the payment of a note in the principal sum of $33,000, payable to the order of appellant, the Illinois Joint Stock Land Bank of Monticello, a corporation. The note bore interest at the rate of 5% per cent per annum, payable semiannually, on the amortization plan. There had been a default in the payment of the instalments on the note and mortgage since October 1, 1931, and on December 30, 1932, the appellant filed its original bill in the circuit court of Vermilion county. The cause was referred to the master in chancery who took testimony on August 9, 1933, and made a report to the court, recommending* a foreclosure of the mortgage. Exceptions to the master’s report were overruled by the court on November 23,1934, blit no decree was entered at that time.

On July 8, 1935, the appellee, Harvey G-. Terry, was given leave and filed his counterclaim or cross complaint in this cause. Further testimony was heard before the court on August 2, 1935, so that the issues were tried upon the original bill and also upon the counterclaim, together with the answers thereto. On August 21, 1935, a decree was entered in favor of the appellee, Terry, which restrained the further prosecution of the foreclosure suit until the further order of the court, retained jurisdiction of the proceeding, and provided for a decree of specific performance on the counterclaim, requiring the appellant to carry out an agreement that it made with the said appellee to accept bonds of the Federal Land Bank of St. Louis and certain cash in satisfaction of the mortgage. During the pendency of the foreclosure proceedings appellee arranged with his creditors to scale down his obligations so that he might secure a new mortgage on the property and make settlement with the appellant. He had also filed a debtor’s petition under the Frazier-Lemke Act and the federal court had issued a restraining order against the further prosecution of the foreclosure suit.

Beginning with the fall of 1933, and all through the year 1934, there were negotiations between counsel for the appellant and the appellee concerning an adjustment or settlement of the mortgage indebtedness. It is the contention of the appellee, and so found by the decree of the court, that these negotiations terminated in an offer of settlement being made by the appellant in a letter dated January 22, 1935, and that that offer was accepted in writing by the appellee in a letter dated February 4, 1935, and that such offer and acceptance constituted a binding contract for the discharge of the indebtedness due the appellant from the appellee upon the terms and conditions set forth in the letter of January 22nd. The said letter was directed to Green & Palmer, attorneys for appellant, and reads as follows:

“January 26th, 1935.

“Attention: Mr. Enos L. Phillips

“In re: H. G. Terry — L. B. 797

“Dear Mr. Phillips:

“Pursuant to the information which you gave to me today, settlement seems to have been effected with Mr. Terry upon the following conditions:

“(1) The payment to this bank of $32,500 as of the 6 day of Dec. 1934.

“ (2) The payment to this Bank of interest at 5%% per annum upon the $32,500 from the 6 day of Dec. 1934 until the Bank receives the money.

“ (3) This Bank to accept Federal Farm Mortgage Corporation bonds at market value, and not at par. They are slightly in excess at par now.

“ (4) This Bank to dismiss the foreclosure proceedings at its cost, and to pay all attorney fees and expenses thereof.

“(5) The Bank to receive the net proceeds of the receivership, except as to the 1934 crop of corn, which we have agreed, shall be Mr. Terry’s individual property. This includes all crops, pasture rent, and proceeds of the land up to this date, with the exception of the 1934 crop of com, as stated. Of course, the receiver fees and the fees of the attorney, and the court costs of the receivership are to be taken out of the sum due this Bank from the receiver.

“(6). The Bank to. expedite the procedure of dismissal, so that same will be ready within 30 days of the date stipulated, by which this settlement is completed.

“ (7) In addition, Mr. Terry shall pay whatever fee you charge this Bank for your work occasioned by the commencement by Mr. Terry of the procedure under the Frazier-Lemke Law. The Bank agreed to pay you $250.00 for the defense of this law, and the procedure against Mrs. Terry, and whatever fee you require up to the $250 must be paid by Mr. Terry.

“(8) The 1934 tax to be paid by Mr. Terry. As soon as we receive a definite statement from Mr. Terry that he is accepting our proposition, we will notify you to forward the abstract to Mr. W. H. Rohrer, Acting Secretary of The Vermilion County NFLA, Danville, Illinois.

“With kindest regards, we are Yours truly, “jwaielm J. W. Ayre, Executive Manager.”

The above letter was mailed to Mr. William Acton, counsel for appellee, at Danville, Illinois, by Mr. Phillips, stating that he would be glad to be informed as soon as counsel had received word from Mr. Terry. After conferring with his client and on February 4, 1935, Mr. Acton wrote Phillips, of the firm of G-reen & Palmer, as follows:

“Your letter received with copies of offer of the Illinois Joint Stock Land Bank of Monticello to Harvey G-. Terry. Mr. Terry has accepted the same, and is rushing matters with the Federal Land Bank to close the matter up.” Thereupon, the appellee, through the Vermilion County National Farm Loan Association, made an application to the Federal Land Bank of St. Louis for a loan upon the lands on which appellant held said mortgage, expended $50 for an appraisal fee, and other moneys for a continuation of the abstract of title. The Federal Land Bank caused the land to be appraised on March 25,1935. On April 9, 1935, the Federal Land Bank notified the Vermilion County National Farm Loan Association of the fact of said appraisal having been made and the approval of the application for a loan of $32,500, and requested the appellant to sign form 101-B consenting to accept the Federal Land Bank bonds.. No reply was made by the appellant to this request until May 7, 1935, on which date it signed form 101-B and stated it was advising its attorneys Creen & Palmer to forward the abstracts. In the same communication, appellant put in a provision that the bonds were to be delivered within 45 days from May 7, 1935. As this date would expire on June 21,. 1935, the Federal Land Bank wrote a letter to the secretary of the Vermilion County N. F. L. A. asking that appellant sign a new form 101-B. No response was received from appellant until on June 24th, when it wrote a letter to appellee Terry stating that the 45 days from May 7th had passed and - abrogating the settlement solely because of the time limitation set forth in their letter of May 7th. On the hearing of the cause in August, there was testimony by the officers of the Vermilion County N. F. L. A. that it would take about three more weeks in which to close this loan and that the average time in which loans of this kind could be closed after the receipt of the first application was about six months.

The appellant urgently contends that the letters above quoted did not constitute an offer and an acceptance ; that the letter by appellants to its lawyers stating that it was willing to negotiate, upon certain conditions, did not in any sense make an offer. It further asserts that all of the correspondence, during the year 1934, should be considered in determining whether or not an agreement had been reached; that all of the letters, written by appellant, merely were an accommodation to the appellee Terry; that because of the stipulations in prior correspondence limiting the date for settlement and the failure of appellee to meet with said stipulations, there was no definite offer made on the part of appellant which was within the power of appellee to accept. It seems clear to us that if it had been in the contemplation of appellant that they had not made an offer of settlement and that the same had not been accepted by the appellee that there would have been some response to the so-called acceptance letter under date of February 4, 1935. Furthermore, we cannot understand why appellant should-have signed form 101-B, or given instructions to its attorneys to forward the abstract of title for the purpose of assisting in the securing of the new loan if they did not consider that terms of settlement had been agreed upon on the terms specified in their letter. The exact terms and conditions were contained in their letter without reference to previous negotiations or correspondence to which the appellee sent an unqualified acceptance. The appellant had been engaged in the business of making farm loans and was fully acquainted with the time necessary for closing deals of the character contemplated. It is our judgment that the court was fully warranted in finding that it was the mutual intention of the parties to make a binding contract for the discharge of the indebtedness due appellant from appellee upon the terms and conditions of said written offer.

It is further claimed by appellant that specific performance could not be decreed in any event because the contract failed to provide the date of payment of the mortgage debt. Under the circumstances of this case it is our judgment that the contract was understandable by both the parties and that it was not so indefinite as to be void because no time for performance was specified. In a situation like this one it is implied that performance will take place within a reasonable time. Willhite v. Schurtz, 294 Ill. 309; Hamilton v. Scully, 118 Ill. 192. After appellant had entered upon the contract it was not within their power, by a subsequent communication, to limit the time of performance to 45 days and to declare the contract canceled because of appellee’s failure to perform within that period.

Appellant also complains that there was no consideration, on the part of appellant, for the contract but where, as in this case, there is a suit pending and negotiations carried on between the parties with reference to a settlement and an agreement to accept payment by bonds, the general rule that the payment of a smaller sum in satisfaction of a larger is not a good discharge of a debt does not apply.

Appellant further urges that the record shows conclusively that the appellee was hopelessly insolvent and unable to take care of his outside indebtedness so that it would have been impossible for him to perform the contract upon the conditions named. While there is room for speculation as to whether or not the appellee Terry would be able to perform, there is nothing in the testimony which positively proves that it would be impossible for him to do so and appellant’s repudiation of the contract was not based upon any reason of that character.

The fact that the market value of the bonds of appellant had increased in value had nothing* to do with the agreement between the parties and is not material to the defense of appellant to the cross complaint in this case.

We believe it was commendable on the part of the appellant and its attorneys to negotiate with and give the appellee an opportunity to refinance his loan which they were under no legal obligation to do but after dealing* with him and making the suggestion and offer contained in their letter of January 22nd, which was rather promptly accepted by the appellee, it was not within their power to change the terms of the contract, especially after appellee had gone to considerable trouble and expense in attempting to perform the contract upon the exact terms agreed upon. The provision of the decree allowing the appellee 60 days as a reasonable time within which to perform the contract and reserving jurisdiction of the proceeding was a wise and equitable feature of said decree. We believe, with the trial court, that the agreement in this case was fairly made; that the failure to complete the said contract was not caused by any' refusal or act of the appellee and that the action of the appellant in canceling the contract was unfair, inequitable and unjust under the circumstances of this case.

The decree of the trial court should therefore be affirmed.

Affirmed.


text:
      J. T. Duncan, Appellant, v. The National Bank of Decatur, Appellee.
    Gen. No. 8,977.

      Opinion filed April 17, 1936.
    Martin & Hutchens, of Decatur, for appellant.
    Bedmon, Bedmon & Bodman, of Decatur, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

The appellant J. T. Duncan was a resident of the city of Decatur, having no particular profession or occupation outside of looking after and caring for his own property. On May 11, 1933, a man, representing his name to be Marshall, called upon the appellant at his home. The appellant and Marshall entered into a business transaction for the exchange of certain securities. As a part of the contract the appellant delivered to Marshall certain securities and two checks representing the difference in value between the securities to be exchanged. In return for the securities and checks received from the appellant, Marshall, of the company he claimed to represent, was to send appellant certain other securities. These securities were never received by appellant.

The two checks in question were signed by the appellant and made payable to L. H. Van Leer. The appellant testified that he did not know whether or not there was such a person but that he did make the checks. Both of these checks were presented to the appellee, the National Bank of Decatur, where they were certified by the bank on May 13, 1933, as to the amount and as to the signature of the maker only. The testimony does not disclose who presented the checks for certification but they were not presented by appellant. One check was later cashed at the Drake Hotel in Chicago, after having been indorsed with the names L. H. Van Leer and H. B. Marshall. It was paid by appellee on May 16, 1933, coming to the appellee from the First National Bank of Chicago, Illinois.

The other check was cashed at the Whitehall Hotel in Chicago after having been indorsed with the names L. H. Van Leer and A. G-. Saunders. It was sent to the appellee bank, passing through the Lake Shore Trust and Savings Bank, the First National Bank of Chicago and the Federal Beserve Bank. These two checks were paid by appellee and aggregated the sum of $1,002 and were then regularly deducted from appellant’s account.

On May 1, 1934, the appellant presented a check to the appellee in the amount of $2,636.08. Payment was refused and the check marked, “N. S. F.,” meaning not sufficient funds. On the same date and after the demand was made upon the appellee for the sum of $2,636.08, appellant cashed a check for $25 which was deducted from his account. After this check for $25 was cashed, the deposit of the appellant on the books was shown to be the sum of $1,609.08; thus it appears that the amount of appellant’s balance on May 1,1934, was the sum of $2,636.08, providing the two checks had not been charged to his account. It is the contention of the appellant that the amount of the check and the demand was for the correct balance. Appellant then brought suit against the appellee to recover the sum of $2,636.08 as his deposit in the bank. The cause was tried by the court without the intervention of a jury and judgment was entered in favor of the appellee hank from which judgment this appeal was taken.

The brief of appellant sets forth several errors relied upon for reversal but in his argument asserts that there is only one question involved in the case, namely: “Who had the burden of proving the genuineness of the endorsement of the payee on the two checks, marked Defendant’s Exhibits A and B and their proper certification?” The appellant urges that because in his reply to the answer of appellee he denied by affidavit the indorsement of the payee on each of the checks, that thereby he prevented the admission of the two exhibits unless the appellee, by proper proof, established the genuineness of the indorsements of the payee. Appellant offered no proof in support of the invalidity of the indorsements and his affidavit of denial was based upon information and belief, as follows :

‘ ‘ That he is informed and believes, and so states the fact to be upon such information and belief that the purported signature of L. H. Van Leer placed upon the back of defendant’s exhibit A and defendant’s exhibit B, attached to the defendant’s amendment to answer filed in said cause on November 13, 1934, are not the signatures of L. H. Van Leer and were not signed by him or by any person at his request or authorization,” This affidavit does not conform to the statute requiring that “The allegation of execution or assignment of any instrument in writing shall be deemed admitted unless denied by a pleading verified by oath,” etc.

In Ingram v. Reiman, 81 Ill. App. 123, cited by appellant, there was a positive denial of the execution of the note sued upon.

When appellant was called to the stand by the appellee, he testified that he did not know whether the signature claimed not to be genuine was genuine or not. As we understand the law, it is not necessary for a bank to prove that it exercised care in paying a check until it is proved that the indorsement is not genuine. Cooper v. Peoples Trust & Savings Bank, 219 Ill. App. 447. It is further a presumption of law that every holder of a negotiable instrument is presumed to be a holder in due course and that in the absence of evidence to the contrary every indorsement appearing upon a bill or note will be presumed to be valid. Owens v. Nagel, 334 Ill. 96. While there is considerable doubt as to whether the affidavit of appellant, based upon information and belief, is sufficient, still it would not be considered as evidence in any event and the testimony of the appellant that he knew nothing about the genuineness of the indorsement coupled with the presumptions of law in favor of the holder of a bill or note in due course surely overcomes the denial of the indorsement in such an affidavit. Contrary to the assertion of the appellant, it is our judgment that a presumption exists, that when the name of a payee appears on the back of a bill or note it is the indorsement of the payee, providing there is no evidence of any kind offered to rebut it.

In this case the check was certified two days after it was delivered to Marshall, who claimed to be the agent of the payee, and the appellant dealt with him as such. Where a check is certified at the instance of the payee the drawer is discharged and the drawee is liable to the payee. McCarty Bros. v. Ft. Dearborn Nat. Bank, 208 Ill. App. 282 (Abst.). In all of the cases cited in appellant’s brief where a bank has been held liable for payments made on a forged indorsement, it was clear that in each case the indorsement was admitted to be forged. In this case the forgery is denied and there is no proof of any kind that it was a forgery.

It is our opinion that the judgment entered in this case was fatally defective. It recited as follows:

“Parties appear by attorneys, and this cause having been heard at a former term of this court, and taken under advisement, and the Court being now well and sufficiently advised in the premises, enters his finding herein for and in favor of defendant National Bank of Decatur, a corporation, and against plaintiff J. T. Duncan for costs.

“It is therefore, ordered and adjudged by the Court that said defendant, National Bank of Decatur, a corporation, do have and recover of and from plaintiff, J. R Duncan, the costs incurred herein, and that it have execution therefor.”

It has been repeatedly held in this State that a judgment for costs only is not a proper judgment and from which an appeal will lie. Town of Magnolia v. Kays, 200 Ill. App. 122.

A proper judgment order would have been as follows :

“Therefore, it is considered by the Court that the plaintiff take nothing by his suit and that the defendant go hence without day and that the defendant do have and recover of, and from the plaintiff his costs and charges, in this behalf expended and have execution therefor.”

While we believe the trial court was correct in finding the issues for the appellee, still there was no valid final judgment, and the appeal must therefore be dismissed.

Appeal dismissed.


author: Mr. Presiding Justice McSurely

text:
    In re Estate of John Lussem, Deceased. Henry J. Lussem et al., Heirs, etc., of John Lussem, Deceased, Appellees, v. Edward N. Mohrdieck, Executor of the Estate of John Lussem, Deceased, Appellant.
    Gen. No. 38,795.
    Opinion filed May 11, 1936.
    Rehearing denied May 25, 1936.
    P. B. Flanagan, of Chicago, for appellant.
    Edward H. Morris, John J. Coburn, George N. Kotin and J. M. Camelon, all of Chicago, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal by Edward N. Mohrdieck from an order of the circuit court revoking Ms appointment as executor under the last will and testament of John Lussem, deceased.

In September, 1924, John Lussem executed Ms will and appointed Ms wife, Minnie Lussem, and Edward N. Mohrdieck, Ms nephew by marriage, co-executors. Lussem died January 14,1933, and letters testamentary were issued to the named executors. Lussem left a considerable estate consisting of mortgage bonds and real estate; the total value was estimated at from $800,000 to $1,000,000; he had been married twice, with no issue by either marriage. Before his second marriage he and his intended wife executed an antenuptial agreement which provided that in the event of his death before that of his wife she would take only a certain part of his estate. Harry H. Felgar, an attorney at law at this Bar, was the attorney for Lussem before his death and continued to act as attorney for the estate. Shortly after letters were issued a dispute arose between the executors, Mohrdieck claiming that his co-executor, Mrs. Lussem, had secreted some of the assets of the estate; she claimed that the antenuptial agreement had been canceled during the last sickness of her husband and claimed the bonds and mortgages she had taken as a gift from her husband comsa mortis. There was considerable controversy between the executor, heirs and legatees on the one side and the widow on the other. At a hearing in the probate court the judge held that the antenuptial agreement had been canceled, but because of certain testimony removed the widow, Minnie Lussem, as co-executor; an administrator de bonis non with the will annexed was appointed who served only a short time, thus leaving Mohrdieck sole executor of the estate.

October 4, 1934, a contract of agreement was signed by all the heirs and the widow,. Minnie Lussem; by this all the parties agreed to settle all their controversies upon the terms set forth in the agreement; Mohrdieck, the executor, also signed this agreement, agreeing to carry into effect its terms and execute the documents necessary to carry out the terms of the agreement.

In October, 1935, a petition was filed in the probate court seeking the rémoval of Mohrdieck as executor. The burden of the petition was that Felgar had filed a claim against the estate for attorney’s fees totaling approximately $62,000; that the. executor had said such a claim ought not to be allowed; that under the terms of the contract settling the controversies between the parties it was agreed that Mohrdieck should receive $5,000 in addition to moneys previously paid to him, in full of his services, including his services in closing the estate, but that after having received this sum the executor demanded additional money, threatening that unless he received it he would not co-operate with the widow and heirs in defending the fraudulent claim of Felgar but would, on the contrary, assist Felgar in his attempt to support his claims. The petitioners alleged that they feared that if the executor were permitted to go through with his program he would abet Felgar in the prosecution of his claims because of the refusal of petitioners to pay any of the unlawful demands of the executor.

To this petition Mohrdieck filed an answer, denying specifically that he had ever done anything toward delaying a settlement, denying that he had ever discussed the claim of Felgar with any of the heirs or legatees, denying that he ever claimed he was entitled to more compensation, denying he had ever stated to anyone that he would refuse to co-operate in the settlement of the estate unless he received more compensation, denied he ever told anyone that he would assist Felgar in his claim against the estate; the answer asserted that during all the litigation he had endeavored to discharge honestly and fearlessly his duties as executor, but had been hampered and harassed in the management of the estate owing to the great number of lawyers employed.

The record shows that upon the petition and the answer, without hearing any evidence, the probate judge found that Mohrdieck “has acted with gross incompetency while acting as executor of the above estate and that the conduct of the said executor in connection with his dealings with a certain claim filed by one Harry H. Felgar is not in the interests of the estate and is not in keeping with the duties owed by the said executor to this estate.” It was ordered that Mohrdieck be removed as executor.

An appeal from that order was taken to the circuit court where, after the hearing of evidence, the circuit court found that Mohrdieck had been incompetent and negligent as executor and had acted so as to endanger the securities and the rights of the petitioners, and it was ordered that he be removed as such executor. An appeal from that order was taken to this court.

Par. 31, ch. 3, Administration of Estates, Ill. State Bar Stats. 1935, states the ground which gives the court jurisdiction to revoke letters testamentary. This statute reads:

‘ ‘ The county court may revoke all letters, testamentary or of administration, granted to persons who become insane, lunatic or of unsound mind, habitual drunkards, are convicted of infamous crimes, waste or mismanage the estate, or who conduct themselves in such manner as to endanger their co-executors, co-administrators or securities, in all which cases the court shall summon the person charged to be in default or disqualified, as aforesaid, to show cause why such revocation should not be made. When revocation is made, the reason therefor shall be stated at large upon the record.”

In Munroe v. People, 102 Ill. 406-410, the court held that only the existence of any of these causes confers power upon the county court to remove an administrator, saying, “Until some one of the causes mentioned in the statute is placed before the court for action, the court has no power to act at all in this regard, — has no jurisdiction to act.” In that case the petition seeking the removal" of the administratrix alleged that she had failed to pay a creditor the amount of his allowed claim although the estate was solvent and all other allowed claims had been paid. The court held that ‘ ‘ The statute nowhere gives jurisdiction to the county court to remove for any such cause.” In Clark v. Patterson, 214 Ill. 533, it was urged as ground for revocation of his letters testamentary that one executor would not co-operate with his co-executors in the discharge of the affairs of the estate because of hostility or lack of harmony between them based upon substantial ground. The court held that the legislature had not conferred on the courts unrestricted power to revoke letters of executorship; that it was only when one or more of the causes mentioned in the statute are properly brought before the court for judicial action that the court has jurisdiction to revoke letters of administration.

We have examined the evidence heard in the circuit court to ascertain whether the court was justified in concluding that there was statutory ground justifying the removal of the instant executor. It seems to be conceded that the only thing remaining unsettled in the Lussem estate is the claim of attorney Felgar. It is stated that this was allowed to the amount of $12,000 in the probate court and that both Felgar and the heirs of the estate have appealed from that order to the circuit court where the appeal is still pending.

George 1ST. Kotin, who is the attorney of record for most of the heirs, testified on the hearing in the circuit court that when he paid Mohrdieck $5,000 on account of his services as executor, Mohrdieck objected, saying in substance that unless he received more or was assured of his continuing as executor for six or seven years he would assist Felgar in his claim. Mohrdieck testified he had known the deceased for about 40 years and worked for him; he testified at some length that he had difficulties growing out of the claims of the widow; he asserts that it was through his efforts that the estate obtained over $300,000 worth of bonds; the witness denied categorically that he told Mr. Kotin that if he did not agree to witness’s terms he would keep the estate in the probate court for years; he denied ever having tried to block any settlement and never said that unless he got more money the contract of settlement would not be carried out; the witness said he had never considered what amount should be paid Felgar; that he was “going to leave that entirely to the Judge”; the witness testified that he did object to an attorney’s fee for Kotin of $60,000; that this “was too much, as he came into the picture when practically the hardest fight was over.” The evidence discloses that the executor was extremely zealous in attempting to gather into the possession of the estate all of the property left by Lussem, and also was objecting to the amount of fees claimed by attorneys.

The decisive question is whether the evidence showed that Mohrdieck, executor, demanded an increased allowance for his services under a threat of supporting the claim of Felgar. We are of the opinion that this charge failed of proof. It is more reasonable to accept the executor’s statement that he would leave the settlement of Felgar’s claim to the court, which of course he was bound to do in any event. Even if the executor had an honest opinion that Felgar had rendered services entitling him to payment of a larger amount than was allowed by the probate court this would not come within the statutory ground justifying the revocation of his letters.

The trial court, as shown by the record, was moved in part to his conclusion by the opinion in Edwards v. Lane, 331 Ill. 442, but that case presents decidedly different facts. There, in an estate of approximately $12,000, the husband of the executrix filed a baseless claim for $10,000; the executrix consented to the allowance of this without notice to any of the parties in interest. This was an obvious intent to loot the entire estate, and the court removed the executrix.

In the instant case, as we have said, the evidence tends to show great zeal on the part of the executor to add to the assets of the estate and anxiety over the litigation involved and the fees of the attorneys; this was commendable. There is no suggestion of mismanagement. His attitude toward the claim of Felgar is neutral. The claim of Felgar can be quickly determined and probably is by this time. As his counsel upon the trial and in this court stated, a final report can be made very shortly and the estate wound up.

There was no justification for the removal of the executor. The order of the circuit court is therefore reversed and the cause is remanded with directions to vacate the order appealed from.

Reversed and remanded with directions.

Matchett and O’Couhor, JJ., concur.


author: Mr. Justice O’Connor

text:
    The Trust Company of Chicago, Administrator of the Estate of James Juzang, Deceased, Appellant, v. Iroquois Auto Insurance Underwriters, Inc., Appellee.
    Gen. No. 38,706.

      Opinion filed May 11, 1936.
    Rehearing denied and supplemental opinion filed May 27, 1936.

      Houston H. Hall and Zedrick T. Braden, both of Chicago, for appellant.
    Beverly & Klaskin, of Chicago, for appellee; Samuel T. Klaskin, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant on a casualty insurance policy dated August 10,1933, issued by it to Walter Roach, predicating its right to recover on the provisions of the Act of May 11, 1933, ch. 73, H 466, Ill. State Bar Stats. 1935. Defendant filed an affidavit of merits denying liability; the court entered judgment in favor of defendant and plaintiff appeals.

By the terms of the policy defendant company insured Walter Roach against “Loss or damage from' liability imposed by law upon the Assured for damage on account of bodily injuries, fatal or nonfatal, accidentally suffered, ... by any person, or persons, by the reason of ownership, maintenance or use of the automobile.” Liability was limited to $5,000.

In its statement of claim plaintiff alleged the issuance of the policy; that on or about June 14, 1935, a judgment for $3,000 was rendered by the superior court of Cook county against Walter Roach, the insured, in favor of plaintiff, which was unpaid and is still in full force and effect; that the cause of action in that case was based on the wrongful death of James Juzang, as the result of an accident which occurred on or about January 13, 1934, through the negligence of assured, Walter Roach, in driving the automobile covered by the policy. The policy was attached to and made a part of the statement of claim.

Defendant, by its attorneys, entered its appearance in the following words: “We hereby enter the appearance of the Iroquois Underwriters Inc., a corp., as attorney-in-fact for the subscribers of the Iroquois Auto Insurance Underwriters, and inter-insurance éxchange, defendant, and ourselves as its attorneys in the above entitled cause. ’ ’ It filed an affidavit of merits in which the issuance of the policy was admitted. It was alleged, “that the said policy or contract of insurance is one of indemnity and the said Walter Roach, . . . has suffered no loss or damages imposed by law as required by the said policy,” to create a cause of action against the defendant; that the policy also provided, “No suit or action on this policy or for the recovery of any claim hereunder shall be sustainable in any court of law or equity unless the Assured shall have fully complied with all the foregoing requirements, nor unless commenced within twelve (12) months next after the happening of the loss, . . . Nor unless the liability or loss shall have been actually sustained and paid in money by the Assured.” And it was further averred that the action had not been brought within 12 months and that Walter Roach, the assured, had not sustained any loss because he had not paid the judgment.

Counsel for both parties appeared before us and admitted the issuance of the policy as alleged in the statement of claim; that defendant, by its counsel, appeared and defended the personal injury suit brought against Roach; that the judgment had been entered in that case by the superior court; that it was still unpaid, and that no evidence was offered in the instant case on the hearing before the municipal court.

The Act of May 11, 1933, which plaintiff claims authorized it to sue defendant, provides: “All policies hereinafter issued by any insurance carrier organized or doing business under the laws of this State insuring or indemnifying any person against loss or liability for the death or for any injury to the person or to the property of another shall be deemed and construed to contain a provision that the carrier shall be liable to the person entitled to recover for such death or for any such injury to the person or property when caused by the insured in the same manner and to the same extent that such carrier is liable to the insured. Such liability may be enforced by the person entitled to recover by an action against the carrier which may be commenced at any time after the rendition of final judgment in favor of such person against the insured. ’ ’

Defendant contends that, “Under indemnity policies, the liability is contingent on the payment by the insured of the judgment rendered against him,” and since the policy expressly provides that no suit or action on the policy will lie unless and until the assured, Roach, pays the judgment, no recovery can be had, and the judgment of the court dismissing the suit should be affirmed.

In the absence of the statute above quoted, defendant’s contention would be sustained. Kinnan v. Globe Indemnity Co., 233 Ill. App. 451. And counsel for both parties agree that the Act of May 11, 1933, so far as they are advised, has not been construed by a court of review in this State.

Counsel for defendant have cited a number of authorities from other States construing the statutes of those States which have to do with casualty insurance policies. We have considered these cases, but are of opinion that it would serve no useful purpose to discuss them here because the statutes there involved and the contentions there made are not "substantially the same as the statute and the point involved here.

Obviously any provision of the policy which is contrary to the statute is ineffective and void, the policy having been issued after the Act of May 11, 1933, became effective. The policy provides that no suit or action can be maintained on the policy, “unless the liability or loss shall have been actually sustained and paid in money by the Assured.” — (Roach.) But the statute provides that “All policies hereafter issued . . . insuring or indemnifying any person against loss or liability for the death or for any injury to the person or to the property of another shall be deemed and construed to contain a provision” that the insurance company shall be liable to the person entitled to recover for such death or injury when caused by the insured “in the same manner and to the same extent that such carrier is liable to the insured.” And it further provides that “Such liability may be enforced by the person entitled to recover by an action against the carrier which may be commenced at any time after the rendition of final judgment in favor of such person against the insured. ’ ’ By this statute the injured person may at any time, after he has obtained a judgment against the person causing the injury, maintain an action on the policy. There is no limitation in the statute to the effect that the injured person cannot maintain an action on the policy until the assured has paid the claim or judgment.

If plaintiff could not maintain a suit on the policy until his judgment had been paid by the assured, then the statute as to him would be wholly ineffective. If his judgment were paid, obviously there would be no basis for his suit on the policy. This provision of the policy is contrary to the statute and therefore ineffective and void as to plaintiff.

The provision of the statute requiring a policy of insurance to contain a provision that the insurance company shall be liable to the person entitled to recover for death or injury when caused by the insured “in the same manner and to the same extent that such carrier is liable to the insured,” refers to defenses that may be interposed by an insurance company, such as the provision requiring that notice be given by the insured to the company of any claim or suit by an injured person, etc., but has no application to the question involved in the instant case. "Where a suit is brought by the injured person against the insurance company, it is free to contest its liability under the policy except where the policy contravenes the statute.

Defendant contends that the suit was not “commenced within twelve months next after the happening of the loss,” as the policy provides, and therefore the action is barred. And in support of this it is said that the automobile mentioned in the policy ran down and struck the deceased, James Juzang, on January 13, 1934, and the present suit was not instituted until July 20, 1935, over 18 months later. The contention cannot be sustained. The “happening of the loss” occurred not when plaintiff was run down and struck by the automobile on January 13, 1934, but when the damage resulting from that casualty was fixed by the judgment of the superior court, which was June 14, 1935 (Lorando v. Gethro, 228 Mass. 181) and the instant suit was brought a little more than a month thereafter, July 20, 1935, which was within the time limited by the policy.

For the reason that a motion for a new trial is neither required nor authorized by law or the rules of practice, there is no merit in defendant’s contention that because a motion for a new trial is not in the bill of exceptions or report of the proceedings of the trial, the judgment should be affirmed. Climax Tag Co. v. American Tag Co., 234 Ill. 179. But, as above stated, since there was no evidence heard the contention is wholly inapt.

The judgment of the municipal court of Chicago is reversed and the cause remanded with directions to enter judgment in favor of plaintiff for the amount of its claim.

Reversed and remanded with directions.

McSurely, P. J., and Matchett, J., concur.

Supplement Opinion Upon Petition por Rehearing.

Defendant has filed a petition for a rehearing in which its counsel contend that they pointed out in their brief that plaintiff had ‘1 failed to assign any errors in its brief as required by the rules of this court and the rules of the Supreme Court” and that we failed to pass on this point in the opinion filed. This contention prompts some further observations.

The defendant is in error in the contention that there must be an assignment of error in the brief. The practice with respect to assignment of error has been altered by the Civil Practice Act and by rules thereunder. Before the coming into effect of that Act, rule 11 of the Supreme Court and rule 12 of this court required assignments of errors and of cross errors, and provided that such assignments “must be written upon or attached to the record.” As stated by this court in Travelers Insurance Co. v. Wagner, 279 Ill. App. 13 (1935), at p. 17, assignments of error were required by rule of court, not by statnte.

Before the coming into effect of the Civil Practice Act, the rules of the Supreme Court and of this court made two requirements: (1) that assignments of errors and cross errors be written upon or attached to the record; (2) Supreme Court Bule 15 required that the statement of the case in the brief show “the errors relied upon for a reversal,” and rule 19 of this court required, in the same language as present rule 7, that following the statement of the case in the brief, counsel should state the “points relied on [for reversal] with supporting cases.”

Compliance with the first of these requirements was regarded by the courts as essential to the consideration of the case. But the Civil Practice Act and rules thereunder have expressly abolished the first of these requirements, while preserving the second in the same form in which it had theretofore existed. Neither the Civil Practice Act nor the rules originally adopted by the Supreme Court thereunder contained any requirement of assignments of error, but in order to make clear that no such assignments were required, Supreme Court rule 36 was amended at the June term, 1935, by the insertion of the statement that “no assignment of errors or cross-errors shall be necessary, except the statement in the brief, at the conclusion of the statement of the case, of the errors relied upon for reversal, as required in rule 39.” Except for a slight change in phraseology and an express reference to cross errors inserted by amendment at the June term, 1935, Supreme Court rule 39 merely repeats the requirement existing before the Civil Practice Act that the statement of the case in the brief show “the errors relied upon for a reversal,” and this requirement was' not altered by being repeated in the new rule.

The clear purpose was that the errors should be indicated and argued in the brief, as under previous practice, without the necessity for a formal assignment of errors, and the purpose so aimed at is defeated if the view is adopted that the present rules require an assignment of error and “have merely changed the place where the same shall be set out.” Such a view has, however, been taken by the Appellate Court for the Second District in Farmers State Bank of Belvidere v. Meyers, 282 Ill. App. 549.

Assuming that the new act and the rules thereunder have accomplished the clearly intended purpose of abolishing the formal assignment of error and of preserving the requirement that the statement in the brief show “the errors relied upon for a reversal,” the question presents itself as to the sufficiency of such statement in the brief. Although the present language of rule 39 requires “a brief statement of the errors or cross-errors relied upon for a reversal or of the cross-errors submitted by an appellee not prosecuting a cross appeal,” this preserves as to the appellant the same requirement as theretofore that “the errors relied upon for a reversal” be shown, and it is clear that by the preservation of this language the court intended to retain the practice theretofore existing as to the sufficiency of a showing and preservation of errors in the brief. And under the practice that has always existed, and that is explicitly stated in rule 7 of this court, the statement of the case in the brief is supplemented and controlled by the points and authorities, and by the argument in the brief. Only those points made and argued in the brief are considered. A point made in the brief but not argued may be considered waived.

Defendant cites the case of Bender v. Alton R. Co., 284 Ill. App. 419 (1936), recently decided by the Appellate Court for the Third District. Under this decision, an appeal was dismissed because of absence of assignment of error in appellant’s brief, and the court said that the new practice requires not only assignments of error in the brief but also a formal joinder in error by defendant. An effort to abolish assignments of error and to simplify procedure thus becomes the basis for a more technical procedure, and a rule of the Supreme Court, continued in force substantially without change under the new act, is construed as reintroducing technical requirements clearly not within the intent of the general assembly or of the Supreme Court. In the Bender case the court says that the statement of errors and cross errors relied upon for reversal, required by Supreme Court rule 39, “takes the place of the assignment of error required prior to the adoption of the Civil Practice act.” This treats rule 39 as if it were a new requirement replacing an old, whereas the requirement of this rule is merely a continuation of a prior practice as to the brief, this and rule 36 making it clear that the formal assignment of error is abolished. The statement in rule 36, as amended, that “no assignment of errors or cross-errors shall be necessary, except the statement in the brief, ’ ’ does not require that the statement in the brief be an assignment of errors, but, on the contrary, prescribes that it shall be a statement “of the errors relied upon for reversal, as required in rule 39.”

Both Farmers State Bank of Belvidere v. Meyers and Bender v. Alton R. Co. take the view that an assignment of error is necessary and that such an assignment is jurisdictional, the court in the Belvidere Bank case saying that the “assignment performs the same function in the court of review as a declaration in the trial court.” Cases decided before the enactment of the Civil Practice Act support this view, but are no longer applicable. It is necessary now to consider not only the purpose to abolish formal assignments of error under the new procedure, but also the effect of certain provisions of the Civil Practice Act: Section 74, subdivision 1, provides that an appeal under the act “shall constitute a continuance of the proceeding in the court below”; and section 76, subdivision 2, provides that “An appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court . . . , and no step other than that by which the appeal is perfected shall he deemed jurisdictional.”

Review by writ of error was regarded as a new proceeding' and not as a continuation of the proceeding below. The theory of a new proceeding with an assignment of error as a new pleading had its basis in the nature of writ of error, and was extended to appeals, which were creatures of statute. The specific purpose of the Civil Practice Act was to provide for an appeal which was to be a substitute for the appeal and writ of error theretofore provided, and which in all cases was to be a continuation of the proceeding below. By rule, an assignment of error as a part of the record was expressly abandoned, and the errors relied upon are to be presented in brief and argument and not in pleadings in the court of review.

Under the rule requiring an assignment of error attached to the record, leave could he granted to assign errors during the term and at any time before the cause was submitted for consideration. McCormick v. Chicago & State Line Ry. Co., 219 Ill. 593 (1906). See Bender v. Alton R. Co., 284 Ill. App. 419 (1936), p. 420. But, under the old practice, errors preserved by assignment on the record were waived unless pointed out and argued in the brief. People v. Kozel, 303 Ill. 112, 114. Under the present practice, the formal assignment of error on the record is not necessary to preserve the error, but only the pointing out and arguing the error in the brief and argument. An error not so pointed out and argued is waived as heretofore.

The method by which the brief sets out and argues the points at issue is not jurisdictional, and does not constitute a basis for dismissing a case on appeal. By the terms of the statute no step other than that of notice of appeal is jurisdictional (Veach v. Hendricks, 278 Ill. App. 376 [Fourth District]; Wishard v. School Directors, 279 Ill. App. 333 [Fourth District]); and it rests in the discretion of the court to determine whether issues have been sufficiently presented in brief and argument for consideration by the court. This is borne out by City of Chicago v. Peterson, 360 Ill. 177 (1935), at p. 178, where it is said that an inadequate statement, attempting to comply with rule 39, is sufficient to prevent a dismissal of the appeal where appellant’s brief stated certain errors relied on for reversal. The Peterson case says that the statement of errors relied upon was insufficient to confer jurisdiction upon the Supreme Court, but this did not indicate that the statement of errors was jurisdictional, but only that the statement was insufficient to show that the case involved the validity of an ordinance so that a direct review by the Supreme Court could be had. The jurisdiction referred to was not the jurisdiction to review but the question as to whether the jurisdiction to review should have been in the Supreme or in the Appellate Court. The view of the Peterson case is borne out by Chicago Title & Trust Co. v. County of Cook, 279 Ill. App. 462 (1935), at p. 467, where this court said that the brief of appellant shall contain the errors relied upon for reversal.

If the issues of the case are adequately raised and presented in the brief and argument, the place where they appear is not jurisdictional.

Although the court of review has a discretion to determine whether issues have been properly preserved for review by brief and argument, this should not be construed as relieving counsel of the duty to present issues clearly and adequately. Counsel who do not comply strictly with the rules take the risk that their clients may suffer because issues are not raised and presented in such a manner as to be properly before the court. An examination of the briefs in Farmers State Bank of Belvidere v. Meyers, 282 Ill. App. 549 (1935), indicates that the issues were not presented so that the court could pass upon them; and the decision in that case can be supported without the need of relying upon the statements in the opinion regarding assignments of error.

The former practice of formal assignment of error attached to the record accomplished nothing in aid of the court, and this was the reason for its abolition; such an • assignment placed in a brief accomplishes nothing, and should not be employed. The new practice seeks to limit the errors presented to the court of review to those raised and argued in the briefs. Counsel should have no difficulty in presenting the issues of their case clearly and concisely.

The petition for rehearing is denied.

Petition for rehearing denied.

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

We have examined the foregoing supplemental opinion and are in accord with the views therein expressed.

Scanlan, P. J.,

Sullivan (John J.), J.,

Friend, J.

(Justices Appellate Court, First District, Second Division.)

Hall, P. J.,

Hebel, J.,

Sullivan (Denis E.), J.

(Justices Appellate Court, First District, Third Division.)