author: Mr. Presiding Justice Niehaus

text:
    Madeleine R. Lockett, Executrix of the Estate of Leonard B. Lockett, Deceased, Appellant, v. Mamie L. Lockett, Appellee.
    Gen. No. 8,574.
    Opinion filed May 11, 1932.
    Rehearing denied October 4, 1932.
    Costigan & Wollrab, for appellant.
    Whitmore & Whitmore, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This is an appeal from the order of the circuit court of McLean county allowing a claim of Mamie L. Lockett, amounting to the sum of four thousand two hundred dollars ($4,200), against the estate of Leonard B. Lockett, deceased. The claimant was a former wife of the deceased, and her claim against the estate is for an alleged “balance due under the terms of a settlement contract and trust deed.” The probate court disallowed the claim but on appeal from the probate court to the circuit court, it was allowed, to be paid in due course of the administration of the estate.

The settlement contract, whibh is the basis of the claim, was executed September 20, 1916, by the deceased who was then the husband of the claimant but was living' separate and apart from the claimant; and the settlement contract was "executed to satisfy the legal obligation of the deceased, to provide proper support and maintenance and alimony for his wife; and to settle the respective property rights of the parties. The settlement contract is as follows:

“This agreement, entered into and executed on this 20th day of September, 1916, between Leonard B. Lockett, hereinafter mentioned as the husband, and Mamie L. Lockett, hereinafter mentioned as the wife, witnesseth:

“That the wife has separated from the husband because of the fault and misconduct of the husband and for other lawful justifiable cause.

“That because of the commission of said fault and misconduct by the husband and on account of said other justifiable cause, the parties hereto, said husband and wife, are both convinced that it will hereafter be impossible- for them to live and co-habit together as man and wife.

“Recognizing these conditions, and desiring that the obligation of the husband to furnish suitable support for the wife be fully discharged, and desiring to settle her inchoate rights in his property, real and personal, the husband makes the provision hereinafter set forth, for the support of the wife and for the settlement of her inchoate dower and other rights in his property, real and personal, and the wife accepts the said provisions in full settlement of all her claims as a wife, to support by her said husband, and of her rights in his said property, real and personal.

“First: The husband agrees to and does, execute simultaneously with the execution of this agreement, a deed of trust to A. E. DeMange as trustee, conveying to him the said A. E. DeMange as trustee, and to his successor in trust, for the execution of the trust hereinafter mentioned, the following described real estate, to-wit:

“The northeast quarter (NE^), the Northwest quarter (NW$4), and the north half (N%) of the Southeast Quarter (SE%), of Section sixteen (16) Township Nineteen (19) north, Range eight (8) east of the Third Principal Meridian, in Lee County, Illinois, containing four hundred (400) acres, more or less.

solely for the carrying out of the said trusts hereinafter set forth, and for no other purpose.

“Second: The husband represents and states that the title to the said four hundred acres of land is in him in fee simple, subject only to a mortgage of Twelve Thousand Dollars ($12,000) to the Franklin Life Insurance Company of Springfield, Illinois.

“.Third: That he, the husband, will pay off, discharge, and cause to be released, the said Twelve Thousand Dollar mortgage, principal and interest,, on or before August 4th, 1917.

“Fourth: The conveyance by the said husband of the said real estate to said trustee, to have expressed therein that said conveyance is to secure to the wife the payment to her of an annuity quarterly in advance, commencing October 1st, 1916, and continuing during her natural life, of the sum of Twenty-four Hundred Dollars ($2400.00) per year, out of the rents and profits of the said land. The said trustee, out of the said rents, to pay also the annual taxes assessed against the said land, and all necessary insurance premiums for the protection of the improvements thereon, and also his own reasonable charges and expenses.

“Fifth: The husband binds himself, personally to pay said Twenty-four Hundred Dollars ($2400.00) each year in said quarterly payments, during the life of the wife, out of his own funds or income other than said rents and profits of said land, regardless of what the income of the said land may be, but the said rents and profits from the said land and the land itself, shall stand as security for the payment of the said Twenty-four Hundred Dollars ($2400.00) annuity.

“Sixth: The husband further agrees to pay to the wife, in addition to all other provisions herein embodied, five (5) per cent semiannual interest on the sum of Seven Thousand Dollars ($7,000.00); said interest to commence March 1st, 1917; and in case the wife desires it and notifies the husband to that effect in writing ninety days (90) before she desires it, he, the husband, shall pay her, out of the said Seven Thousand Dollars, Two Thousand Dollars ($2,000.00) cash. Provided, that the husband shall not be required to pay said Two Thousand Dollars prior to March 1st, 1918. And upon like notice, the husband shall pay to the wife the remaining Five Thousand Dollars ($5,000.00) of said sum. Provided, the husband shall not be required to pay said last mentioned sum of Five Thousand Dollars before January 1st, 1919. The said four hundred acres of land hereinabove described and its yearly rents and income shall stand as security for the payment of said interest in this paragraph mentioned and of the said principal of the said Seven Thousand Dollars.

“Seventh: The husband agrees to furnish an abstract of title to said four hundred acres certified down to the date of the execution and delivery of the agreement, showing clear title in him to the said four hundred acres of land; the abstract for the lands to be delivered to the trustee.

“Eighth: The husband agrees to give and deliver to the wife forthwith after the execution of this agreement, the new Hudson coupe motor car, for her own separate property now owned by him and in his possession.

“Ninth: In the event that the wife survives the husband, the said trustee, A. E. DeMange, shall by quitclaim deed convey the said four hundred acres of land to the wife for her life with remainder in fee simple to the son, Leonard B. Lockett, Junior, without power of alienation of the said four hundred acres of land before he, the said son, reaches the age of thirty-five (35) years.

‘ ‘If the said son survives both his mother and father, the said trustee shall likewise convey the said four hundred acres to the son with the same restriction on the alienation of the same. If the said son survives the mother and not the father, the trustee, in that event, shall convey the said four hundred acres to the father for his life, with the remainder to the son, with a like restriction on the alienation of the same.

“If the father survives both the said wife and son, then and in that event, the said trustee shall convey said four hundred acres of land, by quitclaim deed, to the father.

“If the wife survives both the husband and son, then the said trustee shall convey the said four hundred acres of land to the wife in fee simple.

“Tenth: The wife agrees to and does hereby release all of her dower, homestead, and other rights as wife in and to all of the husband’s other real estate wherever located, except the four hundred acres of land hereinabove described, and she agrees to release such rights by quitclaim deed or otherwise, whenever called upon to do so by the husband. Provided, the husband shall not sell his Dakota land now owned by him and shall not call for the wife to release her dower interest therein until he has paid the Twelve Thousand Dollar mortgage on the said four hundred acres of land hereinabove described.

“Eleventh: The husband agrees at his own expense, .to properly educate the only child of the parties hereto, Leonard B. Lockett, junior, now of the age of five (5) years, and when he arrives at suitable age, to send him to college, paying all of his necessary expenses ; the said son to choose any college course which he may then desire.

“Twelfth: The wife shall have the custody, control and education of the said Leonard B. Lockett, Junior, subject to reasonable visits at suitable times to and with the husband, his father.

“Thirteenth: The husband agrees to pay for the legal services of A. E. DeMange rendered in giving legal counsel to both parties and in the preparation of this contract and trust deed herein mentioned, so that no obligation therefor will rest upon the wife.

“Fourteenth: The husband agrees to pay the Twenty-four Hundred Dollars hereinabove provided for, quarterly in advance, to A. E. DeMange, the trustee hereinabove mentioned, promptly on the 1st day of each quarter; to be paid by the said trustee to the wife, either direct or to be by the trustee deposited in bank for the wife, as she may elect and prefer; and in default of the payment of the husband of any quarterly installment at any time when such installment is due, the said trustee is authorized, empowered and directed to pay the same out of any income received by him from the said four hundred acres of land.

“Fifteenth: The husband by this agreement, releases all of his rights as husband, inchoate or otherwise, in and to any separate property, real or personal, owned by the wife or which she may hereafter acquire, and agrees to release the same by deed whenever called upon to do so.

“Sixteenth: The parties hereto declare, the husband for himself, and the wife for herself, that they have taken legal advice as to their respective rights and interests and that they have a full understanding of the meaning, construction, purport and consideration of this contract and that they have read and understand the said trust deed to A. E. DeMange; and they each of them declare that they execute and deliver the said contract, each to.the other, in the light of such understanding, having in view the fact that it is impossible for them to again live and cohabit together as man and wife, and to forever settle under any and all contingencies their respective dower, homestead and marital rights.

“Seventeenth: The husband agrees to and does on the execution of this agreement, pay to the said wife, receipt of which is acknowledged, the sum of Two Hundred ($200) Dollars, for her immediate needs and for her own separate use until the payment to her on October 1st, 1916, of the first quarterly payment due to her under this contract.

Leonard B. Lockett (Seal)

Mamie L. Lockett (Seal) ”

At the February term, 1917, after the execution of the contract, the circuit court of Cook county granted the claimant a decree of divorce which dissolved the marriage relation between the parties; and concerning the matter of alimony, the decree makes the following provision:

“It is further ordered, adjudged and decreed by the Court that the written agreement of September 20, 1916, between the Complainant and the Defendant, providing a settlement of a certain amount in lieu of alimony be made a part of this decree, and that a copy of said agreement be attached to the certificate of evidence in this cause.”

In order to carry into effect the trust provisions of the settlement contract after A. E. DeMange, the original trustee, had resigned, the deceased made a conveyance in trust on March 21, 1918, to the People’s Bank of Bloomington, which is as follows:

“This Indenture Witnesseth: That I, Leonard B. Lockett of the City of Bloomington, County of McLean and State of Illinois, party of the first part, and grantor, for and in consideration of the sum of One Dollar to me paid, the receipt of which is hereby acknowledged, and for other good and valuable consideration, do hereby convey and warrant to the People’s Bank of Bloomington, Illinois, trustee, a corporation organized under the laws of the State of Illinois, and duly qualified under the laws of the State of Illinois, to act as trustee in all matters of trust, party of the second part and grantee, and to their successors in trust, for the uses and purposes hereinafter set forth, all of the following described real estate, to-wit:

“The Northeast Quarter, the Northwest Quarter, the North half of the Southeast Quarter, of Section Sixteen (16) Township Nineteen (19) North Range Eight (8) East of the 3rd P. M. containing four hundred acres more or less, situated in the County of Lee in the State of Illinois,

in trust nevertheless and for and during the' natural life of Mamie L. Lockett. In case of the inability or refusal at any time hereafter of the aforementioned grantee to act as. trustee, then and in that event the said Leonard B. Lockett and the said Mamie L. Lockett shall agree upon some other person or corporation to act as trustee, and in the event that said parties cannot agree upon some person to act as successor in trust that then the Circuit Court of McLean County, upon proper application by either of said parties or the aforementioned grantee shall appoint some suitable person or corporation to act as successor of said trustee.

“The trusts for the carrying out of which this deed is executed are as follows:

“1. The grantee, trustee herein, shall keep the improvements on said land insured for their reasonable insurable value, in a reliable insurance company or companies and out of the rents and profits of said land pay the premiums thereon.

“2. The trustee shall before said land is offered for sale for delinquent taxes, each year out of the rents and profits derived from said land, pay the said taxes.

“3. The trustee shall keep said land rented to as good tenants as by reasonable business diligence it may be able to procure, and it shall make all reasonable efforts to collect the rents and profits of said land when the same shall accrue, and under the lease or leases therefor.

“4. After the payment of the said insurance premiums and taxes, the trustee shall devote so much as may be necessary of the rents and profits by it collected to the payment of the sum of Twenty-Four Hundred Dollars per year to Mamie L. Lockett in quarterly payments, commencing April 1, 1918, and also five per cent semiannual interest on the sum of $7,000 from March 1, 1918, and until the principal sum of $7,000 is paid to the said Mamie L. Lockett by the grantor, which said $7,000 the grantor has agreed to pay on or before March 1, 1919.

“5. After the payment of said insurance premiums, taxes and the said annuity to the said Mamie L. Lockett, and the reasonable charges of the trustee for its services, and all necessary expenses incurred in the collection of said rents and profits, if any, the said trustee shall pay the balance if any, that remains of said rents and profits in its hands at the end of each year after October 1, 1918, to the grantor herein Leonard B. Lockett, provided that only so much of said rents and profits shall be paid to the said Mamie L. Lockett as may be necessary to keep the quarterly installments of said annuity and said five per cent semiannual interest on said $7,000 aforesaid paid promptly when due and if the grantor shall pay all of said installments and interest as and when they' come due, then all of said rents and profits shall be paid over by the said trustee to the grantor, Leonard B. Lockett, within a reasonable time thereafter.

“6. Upon the joint written request of said grantor herein Leonard B. Lockett and the said Mamie L. Lockett, during the lifetime of the said Mamie L. Lockett under their hands and seals, duly acknowledged before a Notary Public or other officer authorized by law to take acknowledgments, and the payment to the grantee of its reasonable charge and expenses, the grantee herein shall reconvey by quitclaim deed the above described premises to the grantor herein. In the event that Mamie L. Lockett, the former wife of Leonard B. Lockett, survives him, the trustee shall by quitclaim deed convey the said described premises to the said. Mamie L. Lockett for her life with remainder in fee simple, to their son, Leonard B. Lockett, Jr., without power of alienation of the said premises before their said son reaches the age of thirty-five years. If the said Leonard B. Lockett, Jr., survives 'both his mother and father, the trustee in that event shall likewise convey the said premises to said son with the same restrictions on the alienation of the same. If their said son survives the mother and not the father, the trustee in that event shall convey the said premises to the father, Leonard B. Lockett, for his life with remainder to the said Leonard B. Lockett, Jr., with a like restriction on the alienation of the same. If the said Leonard B. Lockett survives both his said wife and son, then in that event the trustee shall by quitclaim deed convey the said premises to the said Leonard B. Lockett, the grantor.

“If the said Mamie L. Lockett survives both her said husband and her said son, then said trustee shall convey said premises to Mamie L. Lockett, in fee simple.

“7. The grantee assumes no responsibility or liability except for reasonable diligence in the discharge of the trust herein specified and shall not be held for any act or default of any agent, attorney or employee selected by it with reasonable discretion. In the event that it becomes necessary to employ counsel or attorney in any matter appertaining to said trust or in any litigation that may arise by reason thereof, then said trustee shall be reimbursed out of said trust for all reasonable attorney’s fees expended by it, it being understood that during the lifetime of said grantor all such expenses shall be paid by him.

“Dated this 21st day of March, A. D. 1918.

Leonard B. Lockett (Seal) ”

After the divorce had been granted to the claimant, the deceased married again. He died on October 25, 1929. His second wife and a daughter by the second wife survived him and are the sole beneficiaries under his will which also contained the following provision concerning his former wife:

“My former wife, Mamie L. Lockett, and my son, Leonard B. Lockett, by my former wife, have been taken care of by an agreement held in trust by the People’s Bank of Bloomington, Illinois, and cannot come in for any more property or money, as this agreement was a final settlement for both.”

From the foregoing recitation of facts which are disclosed by the record, it is clear that the claimant has no claim upon the estate of her former husband, unless such claim arises from the provisions of the settlement contract herein set forth, and the only clause in the settlement contract which has reference to the claim of the appellee is the sixth clause. The sixth clause is as follows:

“The husband agrees to pay to the wife, in addition to all other provisions herein embodied, five (5) per cent semiannual interest on 'the sum of Seven Thousand Dollars ($7,000.00); said interest to commence March 1, 1917; and in case the wife desires it and notifies the husband to that effect in writing ninety (90) days before she desires it, he, the husband, shall pay her, out of the said Seven Thousand Dollars, Two Thousand Dollars ($2,000) cash. Provided, that the husband shall not be required to pay said Two Thousand Dollars prior to March 1, 1918. And upon like notice, the husband shall pay to the wife the remaining Five Thousand Dollars ($5,000.00) of said sum. Provided, the husband shall not be required to pay said last mentioned sum of Five Thousand Dollars before January 1, 1919. The said four hundred acres of land hereinabove described and its yearly rents and income shall stand as security for the payment of said interest in this paragraph mentioned and of the said principal of the said Seven Thousand Dollars. ’ ’

This clause provides for the payment of five pér cent interest on the sum of $7,000 in addition to the other payments to be made to the claimant for her support and maintenance, but no part of the $7,000 is payable to the claimant unless the claimant should desire it to be paid to her in two parts, and upon the express condition that she notify her husband in writing to that effect, namely, for the payment of a sum of $2,000, and thereafter for the payment of a sum of $5,000, 90 days before she desires such payment to be made. There is no evidence in the record that the claimant at any time during the lifetime of the deceased gave any notice in writing as required by this clause, that she wanted the deceased to pay her the $2,000 or the $5,000 which constituted the $7,000-obligation referred to. We conclude, therefore, that the deceased never became legally obligated under the terms of the settlement contract to pay the $7,000 in question, or any part thereof; that no liability to pay the same arose during the lifetime of the deceased and none therefore existed against the estate at the death of the deceased.

We conclude therefore that the claim should have been disallowed and the judgment allowing the claim is therefore reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Justice Fulton

license: Public Domain

text:
    Gulla Harrison, Appellee, v. Arthur Bingheim, Appellant.
    Opinion filed February 1, 1932.
    Louis Klingel and Wm. E. Gentry, for appellant.
    P. K. Johnson, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Grulla Harrison sued to recover damages for personal injuries which she sustained in a collision between her automobile and that of appellant. The declaration, consisting of one count, charged negligence in general terms to which appellant pleaded the general issue.

At the close of all of the evidence appellant moved for a directed verdict, which was denied. On motion of appellee, the court gave a peremptory instruction to find the appellant guilty and directing the jury to assess her damages. There was a verdict for $6,000, motion for new trial denied and judgment was entered on the verdict.

On the night of September 14, 1930, at about 10:30 o’clock, appellee was driving her Ford coupe eastward along East Main street in Belleville. The street is about 44 feet wide between the curbs and there is a single street car track with rails about five feet apart in its center. The space between the rails and about one foot on the outside of each rail is paved with brick and the rest of the street is paved with concrete. Amy Jane Harrison, a niece of appellee, was riding in the seat with her. It was Sunday night and the traffic heavy. Cars were parked at the curb on both sides of the street and between the rows of parked cars there were two continuous streams of traffic, one going east and the other west. The appellee was in the line of traffic going east, following another car and about a foot or a little more south of the south rail of the street car track. It had been raining hard that evening and the street was wet and slippery and driving conditions bad. She was driving at a speed of from 15 to 20 miles an hour. At or about the same time, appellant was driving his automobile in a westerly direction on the same street, but on the north side and about a foot from the nearest street car rail, and at a speed of about 12 to 15 miles per hour. Appellee testified that when both cars were about in the center of the block between Church and Jackson streets, appellant’s car turned across the street car track and struck her car. She did not see appellant’s car until it was almost immediately in front of her and about to crash with her car. Appellant testified that when he reached about the center of the block one of the cars parked along the north side of Main street suddenly and without warning pulled out from the curb. He blew his horn and applied his brakes but the car kept coming and he turned sharply to the left to avoid a collision. On direct examination appellant said the parked car started to pull out from the curb when only five feet ahead of him, but on cross-examination he stated that this other car was about 10 feet from him when he blew his horn and at least 10 or 12 feet ahead of him when it straightened out. In turning to the left he drove into the space occupied by the street car track and upon the rails; that he then first saw the headlights of appellee’s car about 10 feet in front of him; that the car in front of him had in the meantime straightened out and gotten out of the way; that he then turned his front wheels to the right but after traveling about eight feet in the rails he hit some hard substance and skidded across the street car track and collided with appellee’s car south of the south rail of the track. Appellee was thrown forcibly forward against the steering wheel and severely injured.

The evidence is clear and almost undisputed. There is nothing in the record to show contributory negligence on the part of appellee and no merit in the contention of appellant that Mrs. Harrison was injured as the result of a mere accident and without negligence on the part of appellant. It was the duty of the appellant to have his ear under such control as to avoid collision with cars pulling out from the curb. He was bound to anticipate that the cars parked along the curb might turn into the street. Sullivan v. Ohlhaver Co., 291 Ill. 359.

It clearly appears that the injury was due to the negligent driving of appellant whereby he caused his automobile to get out of the line of westbound traffic and into that of the eastbound traffic and without due regard to the rights of other automobile drivers in the use of the street. In our opinion there is no basis upon which reasonable minds could disagree as to that conclusion and therefore the court did not err in giving the peremptory instruction. Richardson v. Moore, 254 Ill. App. 511.

The judgment of the circuit court will be affirmed.

Affirmed.


author: Mr. Justice Edwards

text:
    David Dashney, Appellee, v. Thomas J. Hayes, Jr. et al., Appellants.

      Opinion filed June 24, 1932.
    Rehearing denied August 4, 1932.
    Chester H. Farthing, for appellants.
    F. E. Merrills and Baker & Lesemann, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court. ,

The parties, by their briefs and arguments, have conceded that the City of East St. Louis, in 1919, adopted the commission form of government; that a city court was established in 1875 for said city; that in 1930, Silas Cook and William F. Borders were elected judges of said court for the term of six years; that on August 17, 1931, Judge Cook died, creating a vacancy in one of such judgeships, and that the unexpired term was in excess of one year.

Appellee, as a citizen and taxpayer of East St. Louis, filed his bill in the circuit court of St. Clair county, against appellants, members of and chief clerk of the board of election commissioners of said city, alleging that the circuit court of said county did, by its order in a mandamus suit, require the mayor and com missioners of Bast St. Louis to call a primary election to nominate candidates for the election to fill such vacant judgeship, and an election for that purpose to follow such primary election; that the said city council, pursuant to such order, by resolution, did call an election as required thereby, but failed to call or provide for the holding of a primary election to nominate candidates to be voted for at such election.

It is further charged that appellants, as such members of and chief clerk of the board of election commissioners, are about to conduct an election pursuant to the resolution of the city council, without first calling or holding a primary election to nominate candidates to be voted for at such election, and will incur expense incident thereto, to be defrayed out of the city treasury; that such election cannot be lawfully held, for the reason that the Commission Form of Government Act, Cahill’s St. ch. 24, ¶ 323 et seq., under which the City of Bast St. Louis is operating, requires that all officers of the city, including judges of the city court, to be elected by popular vote, must be first nominated at a primary election, before their names can be placed upon the ballots, to be voted for at any election, where such officers are chosen.

Allegations are also made that appellants have failed, since the general election of 1928, to redistrict the city into voting precincts, each containing approximately 400 electors, and that some of such precincts now contain about 600 electors; that appellants have not been furnished, by the clerk of the circuit court, the clerk of the city court, nor the clerk of the United States court for the eastern district of Illinois, with lists of electors of said city, who have been convicted of criminal offenses punishable by imprisonment in the penitentiary; that there are such persons whose names are still carried on the lists of registered voters, and that they will attempt to vote, and will vote at such election; also, that appellants have not been furnished, by the officer having charge of the vital statistics of said city, with lists of electors of said city who have died; that there are such persons whose names are still carried upon the registered voters’ lists, and that corrupt persons are thereby enabled to deceive the election officials, and to cast illegal votes at such election.

For all of which reasons, the bill charges that an election, so held, would be void; that no person could be thereat lawfully elected as judge of the city court of said city, and that the public funds, expended to defray the cost of such election, would be wasted, to the prejudice of appellee and other taxpayers.

The prayer of the bill was that the resolution of the city council, calling such election, be held null, and that appellants be restrained from proceeding with any arrangements looking to the conduct of said election, or from expending any funds of the City of East St. Louis therefor, or from contracting any obligations on account of the same. Whether a vacancy in the office of judge of the city court, in a city which operates under the Commission Form of Government Act, Cahill’s St. ch. 24, ¶ 323 et seq. shall be filled according to- the provisions of such act depends upon the interpretation of the statutes providing for the election of such city judges, and those regulating the holding of elections in cities which are under the commission form of government.

Cahill’s St. ch. 37, ¶ 369 (sec. 337, ch. 37, Smith-Hurd R. S. 1931), referring to the election of judges of city courts, requires, among other things, that the judges “shall be elected by the qualified voters of such city, in the same manner that the city officers of such city are elected, but not at the same time, "and shall hold their offices for the term of six years, and until their successors are elected and qualified.” Said section further provides that “Vacancies in such office shall be filled for the unexpired term at a special election to be called and held by the same authority and in the same manner that other city elections may be held.”

The election of officers in cities which have adopted and operate under the Commission Form of Government Act is regulated by Cahill’s St. ch. 24, ¶¶ 331-341 (sections 273 to 283 of chapter 24, Smith-Hurd R. S. 1931). Section 273 (Cahill’s St. ch. 24, ¶ 331) requires the election of a mayor and four commissioners, and does not provide for the popular election of any other officials. Section 276 (Cahill’s St. ch. 24, ¶ 334) specifies that “all candidates to be voted for at all general municipal elections at which a mayor and four commissioners are to be elected under the provisions of this Act shall be nominated by a primary election from the city or village at large, and no other names shall be placed upon the general ballot at the general municipal election, except those selected in the manner hereinafter prescribed.” Following which are the provisions for nomination of such candidates at a primary election, and the manner of conducting both such primary and the general election to follow.

It has been held that city court judges are city officers; Franklin v. Westfall, 273 Ill. 402; and in determining the purpose of the general assembly in its enactments regulating the manner of electing such judges, the legislative intent should be ascertained from the language of the act itself, if such be possible, and where several sections bear upon the subject, they should be taken and construed together, in determining such intention. Cummings v. People, 211 Ill. 392, at page 405. Hence it is necessary to consider the provisions of said section 337, chapter 37 (Cahill’s St. ch. 37, ¶ 369), relating to the election of city court judges, in conjunction with sections 273 and 276, chapter 24 (Cahill’s St. ch. 24, ¶¶ 331, 334), in arriving at the intention of the legislature as to how city court judges, in cities under the Commission Form of Government Act, should be elected. It will be noted that the only officers which the latter act requires to be elected by popular vote are the mayor and commissioners, and that they must be first nominated at a primary election; and that section 337, chapter 37 (Cahill’s St. ch. 37, ¶ 369), provides that judges of city courts “shall be elected by the qualified voters of such city, in, the same manner that the city officers of such city are elected.”

The command of said section 337 (Cahill’s St. ch. 37, ¶ 369), that the judges be elected in the same manner that the city officers of “such city” are elected, is a mandatory limitation upon the method of electing city court judges, and requires that they be selected in the same way that the other elective city officers of the city are chosen. Restricting, as it does, the mechanics of their election, to the same manner as the election of other elective officers in such city, it excludes any inference or purpose that they should be elected in any different way; hence it follows that judges of the city court of East St. Louis, which is operating under the Commission Form of Government Act, should be elected, whether at regular or special elections, by the same mode as the other elective city officers of such city, to wit, the mayor and commissioners, are chosen, after being first nominated at a primary election.

Appellants contend that the words, “in the same manner that the city officers of such city are elected,” refer to the mode of election in force at the time the city court is established. With this we do not agree. It seems clear that the phrase of the statute quoted refers to the manner of election in effect in the city at the particular time the city court judge is to be elected. Moreover, it has been held in People v. Olson, 245 Ill. 288, at pages 296 and 297, that a city court is of legislative creation, and being so, it is competent for the general assembly to alter the manner of election of the court officers. People v. Lippincott, 67 Ill. 333. We are of opinion that the legislature, in providing for the commission form of government, intended that the mode of electing, the officers of a city court, in a municipality which should adopt the act, should be the same as for the general officers of such city, who are chosen by popular vote.

It is urged that if such judges are held to be subject to the provisions of the Commission Form of Government Act, it cannot be determined whether they shall be elected by popular vote, or by the city council, as are the city clerk, city treasurer and city attorney. The sufficient answer to this contention is that said section 337 (Cahill’s St. ch. 37, ¶ 369) requires that judges “shall be elected by the qualified voters of such city.” This clearly excludes any suggestion that they may be elected by the city council.

Appellants further argue that, if such election is subject to the provisions of sections 273-276, chapter 24 (Cahill’s St. ch. 24, ¶¶ 331-334), it cannot be known how many candidates should be nominated at the primary election, whose names should go on the official ballot, to be voted for at the election to be thereafter held.

By analogy, and upon reason, it seems clear that the act intends there • shall be nominated two candidates for each office to be filled by election. A mayor and four commissioners are elected at the general city election. At the preceding primary election, there are nominated two candidates for mayor and eight candidates for commissioners. At the election, the candidate for mayor, receiving the higher vote, is declared elected, and the four candidates for commissioners, polling the highest votes, become the commissioners.

The judges of the city court being elected “in the same manner” as said city officers, we are of opinion that in the primary election to nominate candidates, to be voted for at the special election to fill the vacancy caused by the death of Judge Cook, that there should be nominated two candidates, if there be more than one candidate and that the one polling the higher vote at the election to follow should be declared elected.

The determination of the foregoing proposition decides the case, and it is unnecessary to discuss the other grounds for relief set forth in appellee’s bill of complaint. It is our conclusion that the court rightly overruled the demurrer.

The decree will be affirmed.

Decree affirmed.


author: Mr. Presiding Justice Barry

text:
    C. E. Joyner, Trustee for Estate of W. L. A. Wiedemann, Deceased, Defendant in Error, v. George W. Mitchell et al., Plaintiffs in Error.

      Opinion filed September 19, 1932.
    H. E. Lightfoot, for plaintiffs in error.
    Kane & Scott, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Defendant in error filed a bill to foreclose a real estate mortgage. The mortgage covered premises upon which there was a house and a machine shop. Plaintiffs in error filed an answer in which they averred that the mortgage did not cover certain articles in the machine shop. The articles in question are as follows: One lathe of the weight of about 2,000 pounds; another of the weight of 6,000 pounds, and another of about 400 pounds; a milling machine, 4,900 pounds; a drill press, 2,500 pounds; a planer, 6,000 pounds; an air compressor, 1,500 pounds; a hydraulic press, 5,000 pounds; a shaper, 800 pounds. The court heard the evidence and entered a decree finding that all of the articles aforesaid were fixtures and were covered by the mortgage.

Plaintiff in error, H. E. Mitchell, was not a party to the mortgage and claimed to own all of the machinery aforesaid by virtue of a bill of sale from his brother George W. Mitchell, a plaintiff in error. George W. Mitchell and his wife, Lillian Mitchell, executed the real estate mortgage and they, together with H. E. Mitchell, sued out this writ of error and have assigned errors jointly.

Where errors are assigned jointly they must be good as to all those joining in the assignment or they will not be good as to any of the persons assigning errors. Department of Public Works and Buildings v. Epperson, 333 Ill. 313. Lillian Mitchell is in no way interested in the errors assigned, and George W. Mitchell has no interest other than- the fact that he executed to his brother a bill of sale for the machinery in question. In that situation we might very well decline to consider the errors assigned.

However, we have carefully considered the question as to whether the machinery is covered by the mortgage. The machinery is in no way fastened to the floor of the building. It is attached to beams in the roof of the building by means of belts, pulleys and shafts. No useful purpose would be served in discussing the matter in detail. The mortgage in question was executed in 1925. The building used as a machine shop had been used for several years for that purpose prior to the execution of the mortgage and was so used at the time of the trial. It was fitted up as a machine shop and so far as the evidence shows it contained all of the machinery in question which was used in the operation of the shop.

If machinery is intended for permanent use in carrying on the business for which the building was erected or is used, and as a permanent accession to the realty, it becomes a part of the realty on being installed thereon, and if such was the intention, it is immaterial that the machines may be removed and used elsewhere, and that they may be removed without injury to the building. This rule has special application to heavy machinery intended for the building and not intended to be moved from place to place, though resting in position by its own weight, and to machinery which is a constituent part of a factory or shop and indispensable thereto, though not actually fastened. 11 R. C. L. 1086; 26 C. J. 661; Planter’s Bank v. Lummus Cotton Gin Co., 132 S. C. 16, 128 S. E. 876.

That doctrine is recognized by the courts of this State in a very large measure. Fifield v. Farmers’ Nat. Bank, 148 Ill. 163; Owings v. Estes, 256 Ill. 553; Otis v. May, 30 Ill. App. 581; Calumet Iron & Steel Co. v. Lathrop, 36 Ill. App. 249.

The undisputed evidence shows that the machinery in question was placed in this building more than 20 years ago with the intention that the machinery and. the building should be permanently used and operated as a machine shop and it has been so used for all of that time. Under the law and the evidence the machinery is included in the mortgage and the decree is affirmed.

Affirmed.


text:
    First National Bank of Flora, Illinois, Appellee, v. H. J. Cunningham et al., Appellants.

      Opinion filed September 19, 1932.
    Donovan D. McCarty, for appellants.
    Smith & Smith and Creighton & Thomas, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee, a judgment creditor of H. J. Cunningham and his son Boy Cunningham, filed its bill in aid of execution to set aside certain deeds executed by H. J. Cunningham to his son Theodore Cunningham and Zelma Cunningham, the wife of Boy Cunningham, and to subject the land to the payment of the judgment. Binard Banking Company, also a judgment creditor of the same parties, filed a similar bill to set aside other deeds made by H. J. Cunningham to the same grantees. The bills were answered by H. J. Cunningham and Zelma Cunningham, but not by Theodore. The cases were heard together and the court entered a decree in each case finding' that the conveyances were made without consideration and granting the relief prayed. Theodore Cunningham did not appeal from either decree.

The bills called upon appellants to answer under oath as to the consideration for the deeds made to Zelma Cunningham. They filed verified answers in which they averred that in 1921, after the death of his wife, H. J. Cunningham made a contract with Zelma Cunningham that if she would provide him with clothes, board and room and would nurse and care for him, he would pay her $5 per week, payment to be made by a conveyance of land; that she performed her part of the contract and nursed him through two serious sick spells; that the services rendered constituted the consideration for the deeds in question which were executed and delivered in 1930 and 1931. The undisputed evidence supports the answers in that regard. When the contract was made H. J. Cunningham was 69 years of age.

Appellants insist that there was ample consideration for the deeds to "Zelma Cunningham and that the court erred in finding that they were made without consideration. Appellee does not deny the making of the contract, or that the services were rendered. It makes no claim that the land was worth more than the reasonable value of the services. It seeks to sustain the decree on the theory that the consideration for the deeds was an agreement for the future support of the grantor and that by reason thereof the conveyances were fraudulent and void as to creditors under Lawson v. Funk, 108 Ill. 502, and similar cases. In all of those cases the deeds were made before the rendition of any services and the consideration, in whole or in part, was an agreement to provide future support for the grantor. The contract in the case at bar was made in 1921 and was not for the future support of the grantor for life but only by the week so long as the services were rendered. The contract gave Zelma Cunningham no right, title or interest in or to any land and the court is not at liberty to say that her rights must be determined on the same basis as if the deeds had been executed on the day the contract was made.

Zelma Cunningham had rendered services for about 10 years before the deeds were executed. The consideration for the deeds was such past services and not the future support of the grantor. There is no evidence, that, before the execution of the deeds, anything was said by the grantor or the grantee about any services to be rendered after the execution of the deeds.

Services previously rendered by a grantee to her grantor constitute a legal consideration for the deed. First Nat. Bank of Peoria v. Rhea, 155 Ill. 434; Jones v. Jones, 213 Ill. 228; Legate v. Legate, 249 Ill. 359. An existing debt is a valuable consideration for a deed. 8 R. C. L. 962. A conveyance by a debtor to his creditor in payment of an antecedent bona fide debt will be sustained if the amount of the debt is not materially less than the fair and reasonable value of the land. 27 C. J. 535.

A debtor has a right to prefer a creditor, when he acts without fraud, leaving nothing for his other creditors to resort to. There must be evidence to show a fraudulent intent before a conveyance made upon a valuable consideration may be held fraudulent as to creditors. Third Nat. Bank of Mt. Vernon v. Norris, 331 Ill. 230. The general rule is that where property is transferred in payment of a debt, fraud cannot be imputed to the creditor thus preferred because of his knowledge that the debtor is insolvent, or that the transfer is of all the debtor’s property. 27 C. J. 629. We find no evidence in the record of a fraudulent intent. The decree, in so far as it affects the rights and interests of Zelma Cunningham, is reversed.

jReversed.


text:
    Clara Beasley, Appellee, v. Nealy Pashea et al., Appellants.

      Opinion filed September 19, 1932.
    J. B. Harris, for appellants.
    No appearance for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee recovered a judgment before a justice of the peace on November 13, 1929. Appellants filed their appeal bond with the clerk of the circuit court on December 2, 1929, and the same was approved. A supersedeas was issued and served upon the justice of the peace. No summons was issued or served upon appellee and she never entered her appearance in the circuit court. On March 17, 1931, at the March term of the circuit court, which was the sixth term of the court after the filing of the appeal bond, the court of its own motion entered the following order: “On this day appeal dismissed. Writ of procedendo ordered issued.”

On the following day, March 18, appellants, moved the court to set aside the order dismissing their appeal and to reinstate the cause upon the docket. The motion set out that the appeal was taken by filing an .appeal bond in the office of the clerk of the circuit court; that the bond was approved by the clerk and a writ of supersedeas issued and was served upon the justice of the peace; that no summons had ever been served upon appellee; that there had not been two returns nihil upon a summons and alias summons issued against appellee nor had appellee, 10 days before the March term, A. D. 1931, entered her appearance in writing in this cause.

Appellant contends that under the situation presented the court was without jurisdiction to dismiss the appeal or to make any order in the case adversely to either party. They cite and rely upon seven decisions of the Appellate and Supreme Courts. In each of the cases cited, the appellee had not been served, had not entered his appearance 10 days before the term of court at which the appeal was dismissed, and there had not been two returns nihil. In all of the cases cited, except one, the appeal was dismissed on motion of the appellee and the courts held that it was error to dismiss the appeal on motion of the appellee because he was not in a position to entitle him to make such a motion. The excepted case is Sutherland v. Lawrence, 60 Ill. App. 331. In that case the court dismissed the appeal of its own motion and the Appellate Court held it was error, but based the decision upon a case where the motion was made by appellee.

Appellants’ contention is that the court could not dismiss the appeal because it had not acquired jurisdiction of the appellee in either of the modes provided by the statute. In a case begun in the circuit court the suit may be dismissed for want of prosecution where there has been no service upon the defendant. Lapka v. Chicago City Ry. Co., 139 Ill. App. 133; Sheehan v. Supreme Lodge Knights of Pythias, 237 Ill. App. 530.

Courts have the inherent power, in the interest of justice, to dismiss suits for want of prosecution. Daly v. City of Chicago, 295 Ill. 276. For six terms of court after appellants filed their appeal bond, they failed to have a summons issued and served upon appellee. In an action at law begun in the circuit court, the statute makes it the duty of the clerk to issue a summons, but that does not relieve the plaintiff from responsibility in the matter. He should see to it that a summons is issued and served if he would avoid a dismissal for want of prosecution. We think the same rule should apply in a case like the one at bar. We cannot say that the court erred in dismissing the appeal of its own motion under the circumstances presented by this record. The judgment is affirmed.

' Affirmed.


text:
    Margaret Clare, Appellee, v. The Bond County Gas Company, Appellant.

      Opinion filed September 19, 1932.

      C. E. Davidson and J. G. Burnsides, for appellant.
    Meyer & Meyer, for appellee; Stanford S. Meyer, of counsel.
   Mr. Justice Edwards

delivered the opinion of the court.

On October 31, 1931, appellee, the owner of a Vanity-Fair Shop in the City of Greenville, in which she sold gifts and ladies’ apparel, applied to appellant, a corporation furnishing natural gas to the inhabitants of such city for heating and lighting purposes, for gas service in her place of business.

The building, in 1906, had been piped for gas by the then owner, at his own expense, and connection made with the mains of appellant in the street. The president of appellant loaned to appellee a gas stove for her use; advised her to get a plumber to make the necessary connections, and install a meter. This she did. There was, at once, an odor of gas, which she reported to appellant’s president, who made visits to the store, and suggested various ways to overcome same. The methods were tried, but the gas odor persisted. After an inspection, a plumber employed by appellee informed the president that in his opinion the gas was escaping somewhere between the meter and the gas main in the street.

On December 1, 1931, a young man, temporarily in charge of the shop, while looking for a screw driver in a closet in one corner of the storeroom in which the meter was located,- — the closet being somewhat dark,— lighted a match, and there was an instantaneous explosion which wrecked the building, and practically destroyed appellee’s stock of goods and fixtures.

It is conceded that appellant owned none of the pipes in the building, and that after the accident, the pipes running from the meter down to the ground, to connect with the main in the street, were found to have been rusted and corroded, and in at least one spot, near an elbow, to have been split open, which would permit of escaping gas.

There was a trial; appellee had a verdict for $850, upon which the court entered judgment, and from which this appeal is prosecuted.

The declaration consisted of four counts, the first and third of which averred that appellant had the custody and control of the pipes and connections, with a right of inspection over same; that it had the duty to use a high degree of care to prevent the escape of gas, and that it neglected its obligation in such behalf, by permitting the pipes to become rusted. The fourth count set out that the gas company, having control and custody of the pipes, with access to same, negligently failed to repair a leak in such pipes; while the second count charged the negligence consisted of so carelessly installing the meter, at its connections, that a leak was thereby occasioned; and that appellant had the management and control of same, with right of access thereto for the purpose of examination and repair.

Appellee, having alleged specific acts of negligence, could only recover upon proof of such, and not for any negligent conduct, shown by the evidence, which was not averred in the declaration. Her case must be tried upon the allegations which stated her grounds for action, and not upon some extraneous theory or outside matter. Buckley v. Mandel Bros., 333 Ill. 368.

That appellee departed from this established rule is evidenced by her statement of position on page 17 of the argument, where she says: ‘ The facts in this case are so outspoken against appellant that we do not believe there is much need to argue to the court. They had notice of the escaping gas, and we contend that it was the duty, under all the circumstances .in this case, even if the pipes had not belonged to them, and even if they had not-assumed charge of and custody of them, to shut off the gas until the pipes were repaired.”

That appellant would have been under such duty, if the same were properly pleaded, appears to be_sustained by the current of authority, as held in Southern Indiana Gas Co. v. Tyner, 49 Ind. App. 475, 97 N. E. 580; Windish v. People’s Natural Gas Co., 248 Pa. 236, 93 Atl. 1003; Schmeer v. Gas Light Co. of Syracuse, 147 N. Y. 529, 42 N. E. 202; 12 Ruling Case Law, page 909, sec. 49. No such duty, or the breach of same, was set forth in the declaration, and hence was not a proper issue in the case.

Appellee, however, invoked this doctrine, and the court, at her instance, directed the jury, in appellee’s given instruction number six, that although they found appellant was under no duty to repair or maintain the service pipes, yet if it knew, or by the exercise of ordi-' nary care could have known, they were in an unsafe condition, it was under the obligation of causing them to be repaired by the person whose duty it was to do so, or to shut off the gas until same was done, and if it failed therein, such failure constituted negligence.

This was a departure from the specific negligent acts which were averred in the declaration, and injected into the case a variety of neglect which was not in issue. It directed the minds of the jury away from the case actually being tried, and permitted them to find appellant guilty of negligence not declared upon. The effect of the instruction was to charge-relative to a failure to perform a duty not alleged in any count of the declaration, and no breach of which was pleaded.

Instructions in actions for negligence should be confined to the specific neglect averred in the declaration, and if they charge with reference to a failure to perform a duty, where the pleading does not set out such breach, the giving is error. Wabash, St. L. & P. Ry. Co. v. Coble, 113 Ill. 115; Chicago & Alton R. Co. v. Rayburn, 153 Ill. 290.

' Given instruction number one, for the appellee, contained the same legal principle, in reference to the same acts, as constituting negligence. These instructions, for the reasons stated, should not have been given.

Appellee’s fifth given instruction was as follows:

“The court instructs the jury that if you find from a preponderance of the evidence in this case that the defendant has not used the degree of care and diligence required, as explained in these instructions, and that the plaintiff, at and immediately before the explosion, was exercising due care and caution for her own safety, and the safety of her said property, and that plaintiff suffered damages as charged, then your verdict should be for the plaintiff.”

This instruction directed the jury to return a verdict for appellee if they found certain facts. Being in its nature peremptory, it must necessarily require a finding of all the elements which authorize the verdict directed. DeStefano v. Associated Fruit Co., 318 Ill. 345; Pardridge v. Cutler, 168 Ill. 504.

To warrant a recovery for appellee, it was essential that the injury be shown to have been proximately caused by the negligence of appellant. Hartnett v. Boston Store, 265 Ill. 331; Chicago & Alton R. Co. v. Becker, 76 Ill. 25. The instruction, it will be observed, did not require the jury to find such necessary fact. Being peremptory in character, and lacking one of the elements requisite to a finding for appellee, its giving was error, and prejudicially so, in as much as one of the controverted questions in the case was whether the explosion was caused by the negligence of appellant, or through the contributory carelessness of appellee, and by authorizing a recovery for appellee, without a finding that the injury was proximately caused by neglect of appellant, its effect was to deny the latter a substantial defense.

The parties were- entitled to have the jury correctly charged as to the issues in the case. It was further their right that they should not be instructed in relation to extraneous matters or questions not proposed by the pleadings, and which were not before the court or jury for determination.

For the errors enumerated, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Walter Sarkosian, Appellee, v. American Constitution Fire Assurance Company, Appellant.

      Opinion filed September 19, 1932.
    Taylor, Chasnoff & Willson and Louis Klingel, for appellant.
    Philip Gf. Listeman, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

This is an action in assumpsit upon a fire insurance policy, to recover for loss by fire of the property insured.

It appears from the declaration that appellant issued its policy of fire insurance, .in the sum of $1,000, upon the household goods and personal effects of appellee, on February 10, 1931, in consideration of a single premium of $12.50. On April 23, 1931, the goods insured were totally destroyed by fire. The policy contained a provision that “This entire policy . . . shall be void ... if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage.”

To the declaration appellant pleaded the general issue and several special pleas, to which appellee replied ; after which they were withdrawn, and appellant, by leave of court, then filed an additional special plea, which set up the provisions of the policy just quoted. This plea averred that appellee, in violation of such covenant, had caused and permitted a chattel mortgage, in the sum of $65, to be and remain a lien upon a portion of the insured property; that such incumbrance existed when the policy was issued, and remained thereon at the time of the fire; that the total value of the goods insured was $1,500; that appellant had no knowledge of the existence of the chattel mortgage, until after the fire, when, upon learning of same, it tendered back to appellee the premium paid by him, with interest from the date of the policy to the time of tender; that appellee, as a consequence, has no cause of action upon said contract of insurance.

To this plea there was filed a general demurrer, which the court sustained. Appellant elected to abide by its plea. Judgment was rendered for appellee in the sum of $935 (being the difference between the face of the policy and the amount of the chattel mortgage) and costs, and appellant seeks, by this appeal, to reverse such judgment.

Appellant’s position is stated thus: “The insurance policy involved in this suit expressly provides that ‘this entire policy . . . shall be void ... if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage. ’ Appellant’s additional special plea sets up this clause, and then charges that in violation thereof appellee caused a chattel mortgage to be and remain a lien upon a substantial portion of the insured personal property without the knowledge or consent of appellant. Does this allegation present a good defense to appellee’s declaration*? That is the only question in this case.”

Appellant contends the policy is entire and indivisible, and that the chattel mortgage voids the entire policy, and brings the case within the rule established by the Supreme Court in the recent case of Capps v. National Union Fire Ins. Co., 318 Ill. 350, in which a policy of fire insurance had been executed, for a single premium, upon a dwelling house, in the amount of $1,200, and upon the furniture contained in said dwelling, in the like sum of $1,200. The policy contained a clause to the effect that the entire policy should be void if the interest of the insured, should be other than sole and unconditional ownership. The insured owned the furniture, but did not have title to the dwelling. The court, after an extensive citation of authorities, declared the rule to be that if the property insured is so circumstanced that any change of risk, on one item, cannot be accomplished without affecting the hazard on the remaining items, the policy should be taken as entire, and not subject to division. If, however, the situation of the property was of the character that the risk on the different items insured was distinct from the others to the extent that affecting* the risk on one would not alter the risk on the others, the policy should be regarded as severable, as to the items insured. The court held, under the facts of such case, that the risk was common; that the breach with reference to the title to the building increased the moral hazard of the risk on the furniture contained in the dwelling; that therefore the contract was indivisible, and the breach of the condition as to ownership prevented a recovery on any item of the property covered by the policy.

The parties apparently are of the opinion that the doctrine so announced governs the instant case. Appellant, on page eight of its brief and argument, states that “The rule laid down in the Capps case is the law of this case. Under that rule, if the policy of insurance is severable as to the items of property insured, a chattel mortgage on a part of the property only voids the insurance on the part so mortgaged. If, on the other hand, the policy is indivisible, the mortgage, even though only on a part of the property, invalidates the policy as to the whole of it.” Appellee, while admitting that same is controlling, contends that appellant,- by its plea, has not brought itself within the rule announced.

Both parties .having invoked the doctrine of said case as sustaining their respective contentions, we shall test the plea by the rule thus declared, to determine its sufficiency as a defense.

It is obvious that before appellant can be absolved from liability, within the requirement as declared in the Capps case, two elements must concur. First, there must have been a chattel mortgage placed upon a portion of the .goods insured, in violation of the terms of the contract; and, second, its consequence be that it affect or increase the risk on the other items of property insured, but not mortgaged. The first element is averred; the second is wholly omitted from the plea. In Illinois Fire Ins. Co. v. Stanton, 57 Ill. 354, at page 358, the court, in discussing a plea of this nature, in a situation analogous to the case at bar, held that forfeitures of insurance policies are not regarded with favor by the courts, and that a party who relies, for defense, upon the forfeiture of a contract, must plead every fact necessary to show the forfeiture, upon which reliance is placed, and that if any material element of the same is lacking, the plea is substantially defective, and fails to state a defense; and to the same effect is 26 Corpus Juris, 500.

The plea, tested by the requirement of the rule in the Capps case, failed to state a material and necessary averment. It should, by apt allegations, have charged that the mortgaging of a portion of the chattels insured increased or affected the risk on the remaining items of personalty which were covered by the policy, but not included within the mortgage. Lacking in this essential element, it was substantially defective, and properly attacked by appellee’s demurrer. Mutual Accident Ass’n v. Tuggle, 138 Ill. 428.

The ruling of the court was right, and the judgment will be affirmed.

Judgment affirmed.


text:
    C. W. Mundell et al., Defendants in Error, v. Ruby Jane Cravens et al., Plaintiffs in Error.

      Opinion filed September 19, 1932.

      D. F. Moore, Eovaldi & Eovaldi and Charles C. Murrah, for plaintiffs in error.
    Thurlow Gr. Lewis, A. D. Morgan, Layman & Johnson, Moses Pulverman and Wm. W. Hart, for defendants in error.
   Mr. Justice Fulton

delivered the opinion of the cohrt.

This is a suit in chancery instituted by C. W. Mun-dell, C. H. Davis and Fred Phillips, on behalf of themselves and all other creditors of the Illinois Bank and Trust Company, seeking to enforce the constitutional and statutory stockholders’ liability against each of the shareholders of said bank and praying also for a receiver to collect and disburse said fund.

General and special demurrers were filed by the plaintiffs in error and numerous other defendants, which were overruled and the plaintiffs in error and many other defendants filed joint and several answers to said bill. After answers were filed, four cross-bills were also filed.

The Illinois Bank and Trust Company of Benton, Illinois, was organized under the general banking laws of this State on March 20, 1930, and conducted a general banking business until September 25, 1930, when, by resolution of the board of directors, it placed its affairs in the hands of Oscar Nelson, auditor of public accounts of the State of Illinois.. On October 23, 1930, R. P. Blake was appointed receiver for the purpose of liquidating the assets of the bank, and duly qualified and went into possession of all the affairs of the said bank.

The four cross-bills filed were as follows:

One by Tena Thompson, charging that she became a stockholder by reason of fraudulent representations made by W. W. McCreery and certain other codefendants, and that she had been cheated and defrauded by them in purchasing said stock. The cross-bill further alleged that the Illinois Bank and Trust Company was merely a continuation of the Benton State Bank and was organized by the officers and directors of the Benton State Bank, aided and abetted by the stockholders of said bank for the purpose of relieving themselves from the legal liabilities incurred from the insolvent condition of the Benton State Bank. The prayer of the cross-bill asked that the court cancel the stock held by her and that her claim against the Benton State Bank be restored to her.

Another cross-bill filed by Andrew Zadrozony and others averred that the Benton State Bank was a banking organization which failed on October 19, 1929, and that the Illinois Bank and Trust Company was organized to take over the assets of said Benton State Bank, and that a fraud was perpetrated upon each of them and that said stock was wholly worthless and that cross complainants should be relieved of their stockholders’ liability by reason of said fraud, that their stock should be canceled and certain of their codefendants be required to repay them their purchase money.

The other two cross-bills, one filed by D. L. Wood et al., and one filed by Grace B. Arnold et al., allege and charge the same general averments with some slight variation in the facts and pray for the same general relief. General and special demurrers were filed by defendants in error and others to each of said cross-bills and on a hearing were sustained, whereupon said cross-bills were dismissed for want of equity.

Plaintiffs in error rely upon the statement of our Supreme Court made in Hollom v. Kepner, 297 Ill. 332, and many other cases, that when it is necessary to bring all equities of all parties fully before the court in order that even and complete equity may be done as well in favor of the defendant as of the complainant, it becomes necessary to file a cross-bill. However, in this case the provisions of section 6 of article 2 of the constitution and section 6 of the Banking Act, Cahill’s St. ch. 16a, 1Í 6, fix a liability upon all stockholders of any bank in favor of its creditors. It is a liability imposed upon a stockholder not for his own debt but for the debts and liabilities of the bank. A special remedy is provided by our statute for the enforcement of such liability.

A cross-bill is a mode of defense. Roby v. South Park Com’rs, 252 Ill. 575. It is no defense to a stockholder’s liability that he or she was induced by fraud to enter into the organization and stock subscription of any bank or that because fraud was used in inducing them to purchase stock they have a cause of action against the parties guilty of such fraud. If the issues presented by these cross complainants were permitted in an action to enforce stockholders’ liability it would impede, obstruct and defeat the very purpose of section 6 of the constitution and the act of the legislature.

We think the court properly dismissed the cross-bills for want of equity. There is in this case a serious question as to whether defendants in error have proven the material allegations of their bill by competent legal evidence. In American Nat. Bank of Mt. Carmel v. Holsen, 331 Ill. 622, in a similar action, the court said on page 627, “The two facts essential to sustain the decree are that the plaintiffs in error were creditors of the State Bank, and that the defendants in error were stockholders.” Competent evidence was submitted by producing records of the bank to show who were stockholders. The only evidence offered to sustain the allegation that defendants in error were creditors of the bank was an inventory prepared under the supervision of the receiver disclosing among other facts a list of the depositors of the Illinois Bank and Trust Company. This exhibit was admitted over the objection of the plaintiffs in error. “Inventories are competent evidence against the party making them but they are not evidence against any other person.” Monroe v. Becker, 283 Ill. 42. We know of no rule of evidence which is authority for saying that the proof offered and admitted in this case over objection is competent legal evidence and of the character required by our courts to prove the material and essential fact, that defendants in error were creditors of the Illinois Bank and Trust Company, at the time of the filing of the bill, even though it is conceded that the bank was insolvent and its affairs in the hands of a receiver.

For the reason assigned the decree is reversed and the cause remanded to the circuit court of Franklin county.

Reversed and remanded.


text:
    Herman L. Whipkey, Appellee, v. Ed Ashbaugh, Appellant.

      Opinion filed September 19, 1932.
    Rehearing denied October 21, 1932.
    Shaw & Huffman, for appellant.
    Sumner & Lewis, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Herman L. Whipkey, appellee, recovered a judgment against Ed Ashbaugh, appellant, in the circuit court of Lawrence county, in the sum of $1,400 for personal injuries sustained by him," occasioned through the operation and driving of an automobile of appellant, by Stella Ashbaugh, his wife, and from which judgment appellant prosecutes this appeal.

The declaration consisted of three counts, each of which averred the management, operation and control of appellant’s car by Stella Ashbaugh, wife of appellant, with his knowledge and consent, and as agent of appellant.

The first count charged general negligence in driving of appellant’s car, thereby causing a collision with car of appellee.

The second count contained substantially the same allegations of negligence except that it alleges the car of appellant was operated in reverse or backing up at the time of the collision.

The third count is quite similar to the second count except that it does not allege any collision of the cars but charges that the appellant’s car was negligently and carelessly driven in such a manner as to run into and strike with great force and violence the appellee.

To the declaration the appellant pleaded the general issue with two special pleas, one denying the ownership, possession, operation and control of the car and the other denying the same things together with denial of the agency of the said Stella Ashbaugh.

The testimony showed that Stella Ashbaugh, wife of appellant, was operating the car of her husband on the night of June 9, 1931, taking their 15-year-old daughter to a party; that while she was driving the car in a westerly direction upon Jefferson street, which runs along the south side of the Court House Square, in the City of Lawrenceville, she stopped her car at the intersection of this street with 12th street, which street runs north and south and intersects Jefferson street at the southwest corner of the public square; that a traffic signal is located at the intersection and that Stella Ashbaugh drove appellant’s car out into the intersection about nine or ten feet and stopped with the changing of the lights.

Appellee was driving his car immediately behind the Ashbaugh car and stopped eight or ten feet behind it when the traffic lights turned red. As he slowed up he signaled with outstretched arm his intention to stop to cars following in his rear. He turned his front wheels slightly to the right intending to drive north on 12th street. Stella Ashbaugh then put her car in reverse and backed up sufficiently to collide with the car of appellee, thereby striking his arm and breaking it.

A number of reasons are assigned for a reversal of the judgment.

Appellant offered a motion for directed verdict at the close of plaintiff’s evidence and again at the close of all of the evidence, both of which were refused.

Appellant urges that this is an action of trespass and that while section 36 of the Practice Act, Cahill’s St. ch. 110, Ti 36, abolished the distinction between trespass and case, it did not modify or change the distinction existing between them at common law with respect to the proof necessary for each, and that the distinction between negligence and wilfulness is fundamental; that proof sufficient to support case will not support trespass, and that the proof in this case is not sufficient to support trespass. No charge of wilful and wanton conduct is set forth in any of the counts of the declaration and no motion was made to direct a verdict as to any particular count,- so that where the proof sustains any of the counts charging negligence it was proper for the court to refuse a motion for a directed verdict which was general. Smoot v. Hollingsworth, 265 Ill. App. 447. In this case the evidence fully supports the charge of general negligence.

It is next insisted that appellee did not prove by a preponderance of the evidence that appellant was the owner of the car in question. Martha Egleson, a domestic employed in the Ashbaugh home at the time of the accident, testifies positively that the car was owned by appellant and that she heard Mr. and Mrs. Ashbaugh discussing the fact after the accident in which conversation it was stated by appellant that the papers and insurance concerning the car were in appellant’s name. Appellee testified it was appellant’s car and in the final cross-examination of appellant he told about purchasing the car in 1926, and it is a fair inference from his statement that he was the owner. The ownership was amply proven.

The appellant also urges there is no sufficient proof of the agency of Stella Ashbaugh. The witness Martha Egleson testified on direct and also on cross-examina-' tion that as an employee she heard the family conversation at the supper table the evening of the accident and that appellant told his wife to take the daughter Janis to a party and that he would go after her. The appellant and his daughter both testify that they did' not remember hearing any such conversation and appellant further said that he did not give his wife any orders or instructions about the car that evening. Under this state of the proof it was a question of fact for the jury to determine and if they believed the testimony of the witness Egleson it would be sufficient proof of agency under the holding in the case of Smoot v. Hollingsworth, supra. In that case a minor son was directed by his father, the owner of the car, to take two out-of-town guests of the family to the theater. An accident occurred on the way to the theater and it was held that the son was at that time engaged in the father’s business and was the servant of his father.

Much is said by appellant about contributory negligence on the part of appellee and his ability to have avoided the accident through the exercise of ordinary care and caution. However, it is undisputed that the appellee drove up to the proper place and stopped his car when he found the lights against him; that he extended his arm out of the window to stop the cars following him to the rear; that he was in a spot where he had a perfect right to be. He had no reason to anticipate that the automobile of appellant would be suddenly driven back against him when standing there in plain sight. With such testimony in the record the question of contributory negligence was for the jury to determine.

The appellant complains of the court’s ruling on the given instructions for appellee. We have examined the instructions with reference to the argument and the objections urged by appellant but find no substantial error. The instructions are substantially correct and there was no reversible error in the giving of the same.

It is further urged that appellant’s wife should have been permitted to testify regarding the statements that appellee was permitted to prove that she made at the doctor’s office following the accident. Under the holding in Foster v. Shepherd, 258 Ill. 164, and Chicago City Ry. Co. v. Bundy, 210 Ill. 39, that is true and if Stella Ashbaugh had been offered for that purpose it would have been error to exclude her testimony. However the record shows the following:

Q. State your name, please.

A. Stella Ashbaugh.

Q. Are you the wife of the defendant, Ed Ashbaugh?

A. Yes, sir.

Q. I wish to direct your attention to the evening of June 9,1931, with reference to whether or not you were operating an automobile on that evening. Were you driving a car that evening?

A. Yes, sir.

Q. Who, if anyone, was in the car with you?

Mr. Sumner: We object.

Court : Objection sustained.

Mr. Huffman: Do you object to the witness testifying on the ground she is the wife of the defendant?

Mr. Lewis : Unless you say she is his agent.

Mr. Huffman : That is all.

In the case of Kirman v. Hutchinson, 254 Ill. App. 469, it was held that a "wife driving her physician husband’s car to carry him and a friend to visit sick relatives was not engaged in her husband’s business when the car struck and killed a pedestrian, so as to be competent to testify for her husband under section 5 of the Evidence Act, Cahill’s St. ch. 51, IT 5, and therefore the objection to the wife’s testimony in general in this case was properly sustained. The offer to introduce testimony on the part of the wife to explain statements made by her and placed in evidence by the appellee was not properly presented to the court and no error was committed by the court in sustaining the objection to the wife’s testimony.

In our opinion there is no reversible error in the record and the judgment of the trial court is affirmed.

Affirmed.


text:
    S. J. Gee, Trustee, Interpleader, v. Geo. C. Hoeppner et al., Appellees, v. First National Bank of Lawrenceville, Illinois et al., Appellants.

      Opinion filed September 19, 1932.
    Shaw & Huffman, for appellants.
    Linderman, Ramsdell & King and Sumner & Lewis, for appellees.
    Fred W. Gee, for S. J. Gee, trustee.
   Mr. Justice Fulton

delivered the opinion of the court.

S. J. Gee, trustee, filed a bill of interpleader in the circuit court of Lawrence county against two sets of defendants. He had been the holder of certain oil and gas leasehold estate's as trustee for the benefit and protection of two classes of creditors. ' One set of creditors held several notes, secured by trust deed, which was a first lien on the premises and this class of creditors is designated in this opinion as “noteholders.”

The other set of creditors held a number of bonds secured by another trust indenture, which was in effect a second mortgage, and this class of creditors is designated herein as “bondholders.”

The trustee had sold these properties and had in his hands for distribution the sum of $17,024.87, which sum was claimed by both the noteholders and the bondholders. The bill of interpleader was brought by the trustee to determine the rights of the conflicting parties in the fund remaining in his hands.

There were $14,000 in unpaid notes bearing interest since July 15, 1922, and $18,500 in unpaid bonds, so that in either case there was not enough funds to pay either class of claimants in full. On August 21, 1928, the circuit court of Lawrence county rendered a decree which in effect was in favor of the “bondholders” and denied any participation in the fund on the part of the “noteholders.” The “noteholders” prayed an appeal from this decree but failed to prosecute the same and it was dismissed by this court on December 24, 1928, with procedendo. Several months later the so-called “noteholders” prosecuted a writ of error to this court without procuring a supersedeas or stay order of any kind, and were successful in securing a reversal of the decree of the circuit court entered on August 21, 1928. In effect, this court, by its order, directed that the “noteholders” as a class were entitled to the fund and that the “bondholders” were not entitled to participate in the same. The remanding order directed the circuit court to enter a decree ordering the trustee, Gee, to pay certain costs and compensation to himself as trustee, “and that the balance of said fund be paid to the holders of the five notes with interest in order of their maturity, less any amount shown to be paid on any of such notes, provided that if such balance is not sufficient to pay all of said notes with interest, then that he distribute said balance pro rata among the owners of said notes; that if a balance remains in his hands after paying said notes in order of their maturity, as aforesaid, that he distribute such latter balance among the bondholders pro rata.”

When the cause was reinstated in the circuit court and before any action was taken to carry out the remanding order, the trustee, S. J. Gree, asked for leave to file a supplemental bill for the purpose of calling the attention of the court to matters which had transpired since the entry of the original decree on August 21, 1928, and praying for additional relief. The material allegations of the supplemental bill set forth that after the appeal had been prayed for from the original decree* by the “noteholders” and after the dismissal of the same with procedendo by this court on December 24, 1928, the “bondholders,” including the present appellants, demanded that the trustee carry out the decree of the circuit court; that the trustee had done so and disbursed the entire fund and paid it into the hands of the “bondholders,” all of whom were parties to the suit; that the court should require each of the persons who had benefited by the erroneous decree to make restitution in order that the parties rightfully entitled to the fund might receive the- benefits therefrom. Appellants and appellees all objected to the filing of the supplemental bill, but the same were overruled and the supplemental bill filed. Proofs were taken and a new decree entered from which appellants have prosecuted this appeal and cross errors have been assigned by appellees.

The new decree which appellants now seek to reverse ordered the appellants to make restitution of the amounts which they had erroneously received and to pay the same in to the hands of the clerk of the circuit court; that the clerk of the circuit court should enter into bond conditioned that he would hold the money until such time as it might be paid over to the parties to whom this court had ordered it paid. The proofs sustained the allegations of the supplemental bill

Appellants urge that the whole procedure taken in this case, after the mandate of this court was filed in the circuit court, has been so widely at variance with the specific directions, of this court that the'decree as it now stands should be reversed. They insist that the court has erred in granting the trustee leave to file the supplemental bill, to take additional evidence and to enter a new and original decree. The authorities cited by counsel, Trustees of Schools v. Hoyt, 318 Ill. 60, and Smith v. Dugger, 318 Ill. 215, hold that where a cause is reversed and remanded with specific directions as to what decree shall be entered by the trial court, it is the duty of that court to follow such directions and the trial court cannot lawfully do otherwise. In the Hoyt case the cause was remanded with directions to dismiss a petition for condemnation, the court having found that the statutory conditions authorizing the exercise of eminent domain did not exist. On the reinstatement of the case the petitioners made a motion for leave to amend the petition and for another hearing, but the court held the only judgment the lower court had power to enter was an order dismissing the petition.

In the Dugger case which was a bill for specific performance, after the cause was remanded with directions to grant the relief prayed in the bill and the cause reinstated, the lower court permitted the filing of a supplemental answer, alleging the existence of various judgments against one of the vendors which were liens on the land prior to the first decree, also .o.ther matters that existed during the pendency of the suit in the lower court. The Supreme Court held it was too late to raise those questions after final judgment in that court.

In neither of these cases did the amended petition or the supplemental answer set up matters that had occurred since the entry of the original judgment or decree. In the present case, the supplemental bill did not raise any question that had been passed on by the circuit or the Appellate Court or any question that could have been raised on that hearing. It did not submit nor ask to relitigate any of the issues determined on the hearing of the- original bill. It called the attention of the court to matters only that had happened since the entry of the original decree and we believe it was within the discretion of the court and that he properly permitted the filing of the supplemental bill. Green v. City of Springfield, 130 Ill. 515; West v. Douglas, 145 Ill. 164; Dinsmoor v. Rowse, 211 Ill. 317.

Appellants further insist that the new decree is entirely different' in the essential elements from the decree specified by this court. First, because it orders appellants to pay the various sums of money to the clerk of the circuit court instead of to S. J. Gee, trustee, and because it is ordered that the money be paid out by the clerk in shares of one-fourteenth each instead of pro rata to the “noteholders.” While we believe it would have been better to have appointed the trustee to have collected in and disbursed these funds, it was apparent from the testimony that he had no part of the fund remaining in his hands and we believe that this was not such, a departure as to invalidate the decree. The division into fourteenths was equivalent to dividing pro rata among the “noteholders” and is not a substantial variance.

Appellants contend that the remanding order provided that the balance, if any, after paying off the “noteholders” in full should be pro rated to the “bondholders” and that because this provision was not inserted in the new decree, it was a material variance from the directions of-this court. The evidence discloses that the fund was not sufficient to pay the claims of the “noteholders” and therefore the circuit court was not required to provide for useless terms in its decree.

The appellees who are “noteholders” assign cross errors and complain that the court erred in not ordering the trustee, S. J. Gi-ee, to pay them the amount found to he due upon the notes, and also in relieving the trustee from liability for the said amount found to be due them.

The record discloses that the appeal of the appellees was dismissed by this court on December 24, 1928; that they had been advised by letter from Justice Edward Barry of this court that they must secure a supersedeas if they desired to stay proceedings under the decree they were complaining about. Being fully advised, they neglected to protect their interests and cannot now complain because in the interim between the dismissal of their appeal with procedendo and the prosecuting of a writ of error, the trustee proceeded to distribute the fund in his hands to the “bondholders” in obedience to the terms of the decree of the circuit court, entered on August 21, 1928, which at that time was in full force and effect.

The decree in this case carries out substantially the orders and directions of this court in its opinion of February 12, 1930, and should be affirmed.

Affirmed.


text:
    Minnie Rode and Ed Rode, Appellees, v. Peter Eftimoff and Frances Eftimoff, Appellants.

      Opinion filed September 19, 1932.
    O. M. Hill and Thos. P. Moore, for appellants.
    M. R. Sullivau, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

This was a suit in chancery by appellees against appellants to cancel a contract for the sale of two lots sold to appellants by appellees under contracts on monthly payments.

The contracts were dated July 24, 1926, and May 3, 1927, and the bill alleges that after the execution of the contracts a survey was made of the lots and it was ascertained that a triangular piece, containing .046 of an acre did not belong to appellees; that title to same could not be conveyed and prayed that the contracts of sale .be canceled by the court and the equities between the parties adjusted.

After answer was filed, the cause was referred to the master in chancery, proofs taken, report filed, exceptions overruled and a final decree entered on December 30, 1930, which was one of the days of the October Term A. D. 1930 of the circuit court of Madison county.

No appeal was prayed or prosecuted from the entry of this decree. By the terms of said decree the appellees were required to pay appellants the sum of $330 with interest, the same being the amount paid by them upon said contracts of purchase and that appellants be required to remove their improvements from the premises within 30 days at the expense of the appellees.

During the January Term, 1931, of said court no orders appear to have been entered in said cause until the 6th day of March, A. D. 1931, when a hearing on citation was continued. On April 27, 1931, which was during the March Term of said court the record shows the following:

“And now on this day motion to set aside judgment argued and denied. Hearing on citation. It is ordered that Peter Eftimoff and Frances Eftimoff, comply with court order to remove building instanter or be committed to the county jail for contempt of court.”

On May 7, 1931, an attachment for contempt was issued by the clerk against both Peter Eftimoff and Frances Eftimoff and delivered to the sheriff, who placed appellants in his custody.

The record includes a return to citation signed by the solicitors for appellants but it is unsworn and without any file marks on the part of the clerk.

On May 13, 1931, the court entered a further order committing appellants to jail for contempt and also attempting to modify original decree by providing that if appellants would accept the sum of $600 for the buildings on the premises in question and execute a bill of sale to appellees for same, they would be purged of contempt but otherwise the order of commitment should remain in full force and effect.

It was from this last order that an appeal was prosecuted by appellants.

Many objections are urged to the terms of the original decree but that was a final order adjusting the rights of the parties and a disposal of the subject matter of the suit.

It would now be necessary for appellants to sue out a writ of error to obtain any relief from the terms of that decree.

There was no warrant or authority for the entry by the court of the modification of the original decree entered by it on May 13,1931. A court of chancery loses jurisdiction over its decrees after the lapse of the term of entry. Cigler v. Keinath, 167 Ill. App. 65; Tosetti Brewing Co. v. Koehler, 200 Ill. 369.

Neither was the court authorized or warranted in entering on April 27, 1931, the order committing appellants to the county jail for contempt of court. The acts alleged to have been in contempt of court were all committed outside the presence of the court and no petition or interrogatories were filed and no proper proceedings had upon which such an order could be based. Hake v. People, 230 Ill. 174.

The order modifying the decree under date of May 13, 1931, and the order of commitment of appellants for contempt and all proceedings thereunder were entirely void and of no force and effect and as to those orders the case should be reversed and appellants will have to sue out a writ of error if they seek to complain of the terms of the original decree of December 30, 1930.

Reversed.