text:
    Richard V. Randolph, Appellant, v. City of Chicago, Appellee.
    Gen. No. 42,151.

      Heard in the first division of this court for the first district at the February term, 1942.
    Opinion filed June 1, 1942.
    Rehearing denied June 16, 1942.
    Wolfberg & Kroll, of Chicago, for appellant; C. A. Caplow, of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, for appellee; James A. Velde and L. Louis Kartor, Assistant Corporation Counsel, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action by plaintiff to recover damages on account of injuries sustained October 17, 1938, when he fell into a coal hole in the sidewalk in front of 451 East 35th street, Chicago, plaintiff obtained a verdict with damages assessed at $2,500. The City made a motion for judgment in its favor notwithstanding the verdict, which was denied. It then made a motion in writing for a new trial for 15 alleged reasons. This motion was allowed. The plaintiff by leave under section 77 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.077] appeals to this court.

The court stated its reason in these crisp words: “I consider there is insufficient evidence in the record to prove either actual or constructive notice to defendant. I will therefore allow and grant the defendant’s motion for a new trial.”

In Wagner v. Chicago Motor Coach Co., 288 Ill. App. 402, at page 405, this court stated the rule applicable in an appeal of this kind, as follows: “The action of the trial court in granting or denying a motion for new trial based on the alleged insufficiency of the evidence to sustain the verdict is within the discretion of the court and is not subject to review except where there has been an abuse of discretion, and this fact clearly appears. . . . Where a new trial is granted on the ground of insufficiency of evidence, a stronger case is required to secure a reversal than where it has been denied; and the action of the trial court in granting a new trial will not be disturbed unless the evidence palpably supports the verdict. (See also Tone v. Halsey, Stuart & Co., Inc., 286 Ill. App. 169, and Gavin v. Keter, 278 Ill. App. 308.)

“In the Tone case, where we allowed an appeal from an order granting a new trial and affirmed such order, we said (p. 171): ‘No Illinois case construing this provision of the Civil Practice Act (§77) is cited, but many decisions of courts where similar statutes have been enacted are cited to the effect that only where the trial court has abused its discretion or proceeded upon some clear or manifest misapprehension of a supposed controlling rule of law, will an order for a new trial be reversed. Even in such cases, decisions indicate courts are reluctant to reverse, and their power to do so is seldom exercised. ’ Citing cases from Kansas, California, Iowa, Oklahoma, Florida, Pennsylvania and Washington.”

The only evidence introduced by the City at the trial was a photograph of the place where the accident occurred.

For the plaintiff, Harold Adams testified that he knew of the condition of the hole before the accident happened; that when folks would step on the cover of the hole it would rattle; it was loose. He looked at it after the accident and found a chip was broken off the cover, a piece off the edge. There was a chip off the ledge and a chip off the cover. Every time anybody would step on the thing it would start to rattle. He said he went over the sidewalk “a lot of times” before the accident. He had stepped on it and heard it rattle.

John Hill testified that he looked at the hole after the accident, and that the concrete around it was in bad condition and it had a hole in the lid. The hole looked like a piece was cracked off. He looked inside the hole; the concrete was loose in the hole and the lid was broken off. He also said he had observed the condition of the manhole before the accident; had once- before walked over it. He lived in the neighborhood all his life. He visited the paper stand on the corner every day. He went by or walked over the hole about seven or eight months before the accident happened. The concrete needed to be fixed, and the lid needed a new one on top of the hole. On cross-examination he said that he saw the need of a new lid seven or eight months before the accident. He could also see it needed new concrete. He could see it from the paper stand. Anybody walking along there could see it needed a new lid, as he noticed it.

John.B. Henry operated a newspaper stand about 15 feet from the hole. He testified that he had been there about three years; that he saw the hole before the accident; that there was a lamp post near there; he would sit there and automatically and unconsciously put his foot in the lid and it would rock; that was during the summer before the accident. When people walked on the sidewalk and on the hole the lid would give a rattling sound, a rattling noise. As often as anybody walked across it it would rattle. This witness also said that he reported this to the Stanton avenue police station, which was directly across the street from his paper stand. In particular he remembered that he told Policeman John Rose that something should be done because the lid on the top of the hole was so loose somebody might fall through it. He says Rose said he was going to report it. He spoke also to other officers in the police station. They would come over to buy papers, and he Would call their attention to it. He saw the hole after plaintiff had departed after the accident. He saw a few inches broken off of the surface of the top of the hole — the lid of it. There were a few inches broken from the side. He guessed about three inches around the side, a circle like or half circle. The inside groove that holds the cover on was broken at several places. The lid was rusted and had been for some time.

This positive evidence is uncontradicted. Policeman John Rose was not called by the City as a witness, nor is his absence accounted for. The statement of the trial judge to the effect the evidence was insufficient to show either actual or constructive notice indicates to this court that he must have been of the opinion, as a matter of law, that notice to the police is not notice to the City. As authority for this view the City in its additional brief cites Reid v. City of Chicago, 83 Ill. App. 554, 556. The opinion in that case was by Justice Shepard, filed July 11, 1899. The opinion does not mention the case of Lundon v. City of Chicago, 83 Ill. App. 208, filed at the same term on June 9, 1899, delivered by Presiding Justice Freemaw of the same court. In that case the plaintiff in an action of this character sued the City, and the trial court instructed the jury that in order to find the defendant guilty of negligence the jury must believe from a preponderance of the evidence that the City had direct notice of the dangerous conditions “given to its officer having charge or oversight of the place in question, ’ ’ or that the unsafe condition had lasted long-enough so that in the exercise of reasonable care the City should have known. There was a verdict for defendant with judgment. With reference to this instruction the opinion states: ‘1 The record does not show that the city has any such officer, nor indicate where he could be found. The city has no right to claim exemption upon the ground that some particular officer has not been notified of the dangerous condition of a sidewalk. It is the duty of the city’s representatives — as, for example, its police or other employes —to notify the proper officer, whose duty it is to repair such places and keep them in order, and meanwhile to take proper precautions to warn people of the danger and prevent accident; and notice to such officers is notice to the city. ’ ’

The judgment was reversed and the cause remanded for another trial.

In the later case of Mareck v. City of Chicago, 89 Ill. App. 358, the case was against the City for permitting the accumulation of ice in ridges and holes on the streets so as to render passage over the same dangerous. There was a verdict of not guilty with judgment. The opinion was by Presiding Justice Sears. In two instructions the jury had been told in substance that in order to find the City guilty it must believe not only that the obstruction existed at the time and place of the accident but also that the City either had direct notice of the obstruction given to one of its officers having charge or oversight of the place in question, or that the place had been so obstructed for a time sufficiently long for the City of Chicago, in the exercise of reasonable care, to have discovered it and removed it before the accident. The opinion states that the substance of the instruction had been considered in Lundon v. City of Chicago, 83 Ill. App. 208, where it had been held that any limitation of direct notice as stated in the instruction was erroneous. The opinion then quotes with approval the statement already recited from the opinion in the Lundon case and states that for the error in giving these instructions the judgment is reversed and the cause remanded.

We have examined City of Joliet v. Looney, 159 Ill. 471 (affirming the same case in 56 Ill. App. 502) but do not find the law as there stated inconsistent with Lundon v. City of Chicago.

We are reluctant to reverse an order by a trial judge granting a new trial. Ordinarily this is entirely within his discretion. However, upon the whole record here, we think it apparent the trial judge must have misapprehended the rule of law applicable in this jurisdiction as to the materiality of notice given, under circumstances such as here appear, to a police officer of the City. There is no conflict in the evidence, and in our opinion it was sufficient to show both constructive and actual notice. The law being as stated, we hold it was an abuse of discretion to allow defendant’s motion for a new trial. For this reason the order will be reversed and the cause remanded with directions to overrule the motion of defendant for a new trial. Scott v. Freeport Motor Casualty Co., 379 Ill. 155.

Reversed and remanded with directions.

0’Commit, J., concurs.

McSttrely, P. J., dissents.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Arthur T. Galt et al., Appellees, v. City of Chicago, Appellant.
    Gen. No. 41,994.

      Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed June 1, 1942.
    Rehearing denied June 16, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde and Robert J. Nolan, Assistant Corporation Counsel, of counsel.
    Leonard C. Mead, of Geneva, Ill., and D’Ancona, Pelaum & Kohlsaat, of Chicago, for appellees; Tolman & Megan and Howard B. Bryant, all of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

April 7, 1939, Arthur T. Galt filed his complaint in chancery and • afterward it was amended by adding Louise Rothermel and Ernest Freeman additional parties plaintiff. The basis of the suit was that defendant, City of Chicago, had collected certain special assessment funds which it did not distribute pro rata in payment of special assessment bonds owned by plaintiffs. They prayed for an accounting and that a decree be entered for the amount found due. Some of the facts were stipulated, other evidence was introduced, and a decree entered in plaintiffs ’ favor against defendant for $125,362.16. Defendant appeals.

The record discloses that plaintiffs’ claim is based on the fact that they owned special assessment bonds issued in about 164 separate special assessment proceedings brought under the Local Improvement Act of 1897 and amendments thereto; that collections of the assessments were made from time to time by the defendant City and prior to 1933, such funds were disbursed by the City by paying some of the bonds presented in full on the theory that the City had the right to do this — to pay bonds in the order of their presentation. This method of disbursing special assessment funds was held to be improper by our Supreme Court in an opinion filed October 22, 1932, rehearing denied December 7, 1932, Rothschild v. Village of Calumet Park, 350 Ill. 330, which affirmed the judgment of another division of this court, 262 Ill. App. 96.

In that case it was held that where special assessment bonds are made payable out of a particular installment some of which assessment had been collected, the funds should be distributed pro rata among the bondholders who held bonds payable out of the same installment and that where the City had failed to follow this method but had paid some bonds in full, it was liable to the bondholders who had not been paid their pro rata share of the funds. The Supreme Court there said: “We have held that the proceeds of special assessments are trust funds for the payment of the bonds issued for the cost of the improvement. (Conway v. City of Chicago, 237 Ill. 128.) ... If for any reason the full collection of an installment is not made the deficiency must.fall upon the bondholders, and equity requires that the loss shall be borne ratably by each bondholder. Therefore, when the bonds of any year become due and the collection from the installment of that year is insufficient to pay them, the bondholders are entitled to the amount collected, and it is the duty of the trustee — the municipality— to pay upon each bond issued against the installment its share, pro rata, of that amount.”

After the decision of the Rothschild case, the method there pointed out of disbursing special assessment funds collected by the City was followed, although in the instant case a witness testified that the interest collected by the City in special assessment proceedings was not pro rated. But his testimony is so meager that it is of little value and is not important here.

The evidence further shows that prior to July 1, 1927, the bonds, which are the basis of plaintiffs’ suit, were owned and held by the State Bank of Chicago. That about July 1, 1927, the Foreman Trust & Savings Bank acquired the bonds for a valuable consideration and owned and held them until June 8, 1931. On that date the First Union Trust & Savings Bank acquired the bonds from the Foreman Bank for a valuable consideration and owned and held them until July 17, 1933. On the latter date the First National Bank of Chicago, for a valuable consideration, acquired the bonds and owned and held them until April 20, 1936, when they were purchased by a syndicate consisting of plaintiffs, Arthur T. G-alt, Louise Bothermel, Ernest Freeman and Walter Freeman and on June 27, 1938, plaintiffs purchased all interest of Walter Freeman in the bonds.

The face value of the bonds purchased by plaintiffs was about $580,000 for which they paid fifty cents on the dollar for the amount remaining unpaid on the bonds at the time of the purchase, April 20,-1936. But the amount due on the bonds at that time does not appear. We think it further appears that the bonds owned by the four banks, above mentioned, and by the plaintiffs, constituted but a part of the bonds issued— that the bonds did not represent all the bonds of any one issue.

The stipulation, of facts further shows that during the period when each of the banks owned the bonds “numerous payments in excess of the pro rata share of collections applicable in payment thereof were made to each of said banks. . . . The amount of funds necessary in the various warrants and installments to pay the pro rata share of bonds involved in this litigation has been withdrawn from the installments of said warrants to pay to the prior owners of the bonds now sued on, amounts in excess of their pro rata share . . . and the parties hereto agree that in each instance the amount of overpayments to the assignors of the plaintiffs equal or exceed the amount due the present plaintiffs upon a pro rata basis.”

Counsel for plaintiffs in their brief say that the decree entered in the instant case recites that during the period the four banks owned the bonds “numerous payments in excess of the pro rata share were made to the banks and other bondholders. ... It is also recited that overpayments were also made to other bondholders than the banks out of the special assessment funds involved in this litigation, since the banks do not own all of the bonds issued in each respective installment. From this it follows, contrary to the assumption of appellants, that not all of the diversion of funds were to the banks which at one time held the bonds now owned by plaintiffs.” But we think the fact that excess payments were made to bondholders by the City other than the bonds held by the banks, some of which are involved in the instant suit, is immaterial for the reason that it is stipulated the amount of the overpayments made to the four banks equals or exceeds the amount due plaintiffs on a pro rata basis — that the amount of overpayments made to the banks equalled or exceeded the amount awarded plaintiffs by the decree appealed from.

Counsel for defendant contends that “The banks which owned the bonds before the plaintiffs could not have recovered from the defendant for failure to make pro rata payments because they received the overpayments.” This is conceded by counsel for plaintiffs. They say: “It is true that if the banks had sued and had profited by the overpayment they could not recover the amount overpaid to them. Here however the bonds were acquired by the plaintiffs without any knowledge of such payments on other bonds or any of the other transactions. The plaintiff was [plaintiffs were] buying the particular bonds. The record shows that they examined the bonds carefully. They had no notice of any of the outside transactions. If the principle of law claimed by the appellants [defendant] were applied to special assessment bonds the bonds would be practically worthless because no one buying them would know what latent defenses the city might have on other transactions.”

It being conceded that the banks could not maintain suit based on the bonds in suit, the questions remain: Are plaintiffs in a better position and did they do all that was required of them before purchasing the bonds? Special assessment bonds such as are involved in the instant case are not negotiable and the holders of them have no greater rights than the contractor who did the work to whom the bonds were issued. Northern Trust Co. v. Village of Wilmette, 220 Ill. 417.

Charles F. Eothermel, called by plaintiffs, testified he was the husband of Louise Eothermel, one of plaintiffs ; that he had been in the real estate business for 27 years; that he was present at the negotiations leading up to the purchase of the bonds from the First National Bank; that “I made inquiries regarding these bonds prior tq their purchase. I checked the face amount still due on the bonds, spent some time looking at the real estate secured by the special assessments, and checked the validity of the bonds.” On cross-examination he testified: “The negotiations for the purchase of the bonds took place long after the bonds had matured.” That the checking of the bonds “was done with the First National Bank, who were the sellers of the bonds. I asked the seller of the bonds whether they had value. The price paid for these bonds was Fifty cents on the dollar. . . . Being in the real estate business I checked the properties and checked the various neighborhoods. I did not ask the opinion of any attorneys nor did I make any inquiry in the office of the Comptroller of the City of Chicago as- to whether or not these bonds were being honored.” The testimony of this witness, that he checked the properties and the various neighborhoods, is of little or no probative value. The assessment was against each separate piece of property; 164 of these assessments are involved. By checking the properties and the neighborhoods no information could be obtained as to whether the assessment on specified properties had been paid and unless this were done, any information as to the value of the bonds obtained from such checking would be of little or no value.

In Silverman v. Bullock, 98 Ill. 11, which was a suit to foreclose a mortgage, the court in holding that equitable defense might be interposed, said: “Persons dealing in such securities can, without difficulty, inquire of the makers if any defenses exist against them, but more than that it is not practicable to do. Of course, it would not be possible to discover, even by the utmost diligence, all persons that might have equitable rights in the subject matter of the assignment, and the adoption of a rule that would let in latent equities to prevail against the assignee, would be to ensnare dealers in such securities.”

Iii the instant case we think that plaintiffs, about to purchase the special assessment bonds, could without difficulty, have inquired of the City Comptroller or other proper official as to the collections made and how the funds had been disbursed, and ascertained whether overpayment had been made on the bonds about to be purchased. This they did not do and we think they were not innocent purchasers for value. In these circumstances, the City has the right to interpose the same defense that it could have interposed against the banks, and it follows that plaintiffs are not entitled to recover. And we are of opinion that the facts involved in the case of Getz v. City of Harvey, 118 F. (2d) 817, cited -by plaintiffs, are so dissimilar from the facts in the case at bar that they are not applicable.

In that case the City of Harvey had issued water works certificates payable solely from the water fund secured by a mortgage. It wished to refinance the certificates and certain brokers agreed to obtain them arid deliver them to the City at the price for which the brokers acquired them. The brokers paid seventy cents on the dollar for some of them but were unable to procure all of the certificates required. Afterward the brokers sold them and, after several intermediate transfers, they were purchased by plaintiff Getz at par. In the meantime the City had received collections in the fund from which the certificates were to be paid but used the money for another purpose. Getz sued the City for an accounting. The City contended it had the right to receive the certificates at seventy cents on the dollar by reason of its contract with the brokers. This contention was sustained by the trial- court but on appeal to the Circuit Court of Appeals such holding was reversed. In that case the mortgage securing the payment of the certificates provided that “. . . any purchaser before maturity of the certificates, . . , shall not be required to inquire into the title of the respective holders thereof, or to take any notice of any trust relating thereto, or, except by express notice thereof, be affected by the right, title or claim of any other person . . . , it being the intention . . . that the purchaser in good faith for value and before maturity . . . , shall not be affected (unless he shall have actual knowledge . . .) by any notice, facts or things that may at any time affect the relations between the City and pay prior holders or owners of said certificates.”

There is no provision in the special assessment bonds involved in this case as that just quoted from the mortgage in the Getz case. In the Getz case the money was used not to pay the certificates but for another purpose, while in the instant case the money was used to pay special assessment bonds but through a misinterpretation of the law it was not applied pro rata on the outstanding bonds. In the Getz case the court further held there was no equity in favor of the City of Harvey, while in the instant case there is an equity in favor of the City of Chicago. Moreover, Getz paid par for the certificates and purchased all or most of them before maturity, while plaintiffs in the instant case paid fifty cents on the dollar and bought all of the bonds long after they were overdue.

Plaintiffs, by inquiring of the City Comptroller, could have ascertained that the City had not disbursed the funds collected pro rata in payment of the bonds. They were not negotiable instruments in the sense that promissory notes are. In these circumstances we think it cannot be said that plaintiffs acquired the bonds in good faith for a valuable consideration without notice of prior overpayments.

The judgment of the superior court of Cook county is reversed.

Judgment reversed.

McSurehy, P. J., and Matchett, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Jim Smith and Robertson Smith, Plaintiffs in Error.
    Gen. No. 42,000.
    Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed June 1, 1942.
    Coburn & Coburn, of Chicago, for plaintiffs in error ; Louis T. Herzon, of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Nathan Kinnally and John J. Phillips, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

An information was filed charging Jim Smith, the father, and Robertson Smith and John Smith, his sons, with the violation of the Illinois Securities act in that they sold and offered to sell shares of stock ■ in the Jim Smith, Incorporated, an Illinois corporation, without compliance with the provisions of that act. There was a trial before the court without a jury and during the hearing the case was nollied as to John Smith. The other two defendants were found guilty and sentenced to jail for a period of 90 days and they prosecute this writ of error.

The record discloses that the Smiths were engaged in the advertising business and February 3, 1937, incorporated under the laws of the State of Illinois as the “Jim Smith, Incorporated” with offices at 20 North Wacker Drive, Chicago. The purpose of the business, as stated in the articles of incorporation, was to conduct a general advertising agency. The number of shares of stock was to be 1,000 of no par value. The three men were conducting the business at 20 North Wacker Drive and some time in 1935, defendant Robertson Smith was in Minneapolis and became acquainted with Lucille Anderson, who lived in St. Paul, with her mother. He courted her and „ afterward they became engaged to be married. She and her mother, Ida Anderson, visited the Smiths who lived in Grlen Ellyn, a suburb of Chicago. The evidence is to the effect that the father, Jim-Smith, stated the advertising business was promising but that it lacked capital and suggested that Mrs. Anderson might invest some of her savings in the stock of the company. Afterward Mrs. Anderson bought 15 shares of stock in the Jim Smith, Incorporated and April 12, 1937, gave her check on a Minneapolis bank where she kept her account, for $1,500 payable to the order of Jim Smith, Incorporated. The stock certificate for those shares was enclosed in a letter written at Chicago addressed to her at St. Paul, Minn., by Jim Smith, Incorporated, and signed by defendant, Jim Smith. On this letter the letterhead is printed as follows “Jim Smith, Incorporated, Advertising, 20 North Wacker Drive, Chicago.” Smith said: “Dear Mrs. Anderson: Enclosed is Certificate No. 7 for fifteen (15) shares of our stock. This certificate is made out to Ida and/or Lucille J. Anderson; which is the way I understand you desire. Know you can rate this as one of your good investments — one that you can be sure of. And I know it will do all of us a lot of good. You may have your dividends semiannually or quarterly and if you will tell us which you prefer we shall set up accordingly. Will you please sign the enclosed receipt; and when you are here you can sign the stock book. Yours truly, Jim Smith Incorporated. Jim Smith.” (Lest we might seem to approve the wording of this letter see Tarjan v. National Surety Co., 268 Ill. App. 232; City Nat. Bank & Trust Co. v. Davis Hotel Corp., 280 Ill. App. 247.)

Afterward Mrs. Anderson bought 15 more shares of stock for $1,500 in payment of which she made her check on the Minneapolis bank dated May 5, 1937, payable to the order of Jim Smith, Incorporated, and received a certificate of stock for shares of stock in Jim Smith, Incorporated. The first certificate for 15 shares is signed by Jim Smith, President, and Robertson Smith, Vice-President, and the second certificate is signed by Jim Smith, President, and John Smith, Secretary.

Afterward Jim Smith, Incorporated was still hard up and in need of funds and this fact was told to Mrs. Anderson and her daughter by defendants. November'4, 1937, Mrs. Anderson loaned the company $1,000 and gave her check on a Chicago bank (she and her daughter having in the meantime moved to Grlen Ellyn) payable to the order of Jim Smith, Incorporated, and December 16, 1937, another check drawn in the same manner for $1,500. These two latter sums were loans to Jim Smith, Incorporated. She never received any dividends or any repayment of the $2,500. The engagement between the daughter and Robertson Smith was broken and afterward the matter was called to the attention of the State’s Attorney of Cook county. The stock was never registered as required by the Illinois Securities act.

The evidence is clear that the stock was not class “A” security and that before it could lawfully be sold compliance should have been made with the Illinois Securities act. The stock was wholly worthless as shown by the facts above mentioned and as appears from the records of the bank where Jim Smith, Incorporated did business.

Robertson Smith testified he worked for .the company and his salary was about $9 a week over a period of time and that his brother, John, the other defendant who was dismissed out of the case, also worked for the company and his salary was less over a considerable period of time. There is evidence that the father’s salary was about $50 a week.

Defendants contend the burden was on the People to prove beyond a reasonable doubt that the stock sold to plaintiff was not class “A” or class “B” stock and they further contend that the stock was not sold to Mrs. Anderson or her daughter but that the money was loaned by Mrs. Anderson to Jim Smith, Incorporated and that the certificates of stock were given to Mrs. Anderson as security only, as testified to by defendant, Jim Smith. They also contend that paragraph 2 of § 5 of the 111. Securities law which provides “Securities of a corporation, when sold or distributed by it among its stockholders, without the payment of any commission or expenses to agents, solicitors or brokers, and without incurring any liability for any expenses whatsoever, in connection with the distribution thereof,” [ch. 121%, § 5, par. 100, 111. Rev. Stat. 1937; Jones Ill. Stats. Ann. 13.05] exempts the 30 shares of stock in question from the provisions of the Illinois Securities Law. That the stock was owned by Jim Smith personally and therefore the act did not apply. The trial judge obviously did not agree that the stock was put up as security, or that it belonged to Jim Smith personally, and we think no other sensible view could be taken of the evidence. As stated, we think the evidence showed the stock was not class “A” and if the stock were class “B” within the meaning of the statute, the burden of proving such a fact was on defendants. People v. Wilson, 375 Ill. 506.

Defendants further contend the evidence fails to show that the sale of the stock was made in Cook county, Illinois. Without going into detail we think the evidence shows that when Mrs. Anderson and her daughter called at defendants’ place of business, 20 North Wacker. Drive, Chicago, it was practically agreed Mrs. Anderson would buy some of the stock. The evidence further shows that shortly thereafter, when she returned to Minnesota, Bobertson Smith called at her home. She there gave him the check for $1,500 and a short time thereafter received the certificate for the 15 shares of stock mailed by defendant, Jim Smith, from 20 North Wacker Drive, Chicago. We think this was sufficient to show the sale of the stock was made in Cook county. Obviously the court will take judicial notice that Chicago is in Cook county.

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

Judgment affirmed.

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


text:
    M. H. Stein, Trading as Stein Motors, Appellee, v. Midway Chevrolet Company, Appellant.
    Gen. No. 42,009.
    Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed June 1, 1942.
    Archie Schimberg, of Chicago, for appellant; Harold J. Finder, of Chicago, of counsel.
    Egbert E. Cherry, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action to recover $175 claimed for rent due for the month of April, 1941. The lease was attached to and made a part of plaintiff’s statement of claim. There was a trial by the court without a jury, finding and judgment in plaintiff’s favor for the amount of his claim, and defendant appeals.

The material facts are not in dispute. In short compass they are that plaintiff was the lessee of 5 lots located on Stony Island avenue between 76th and 77th streets. Three of these lots were owned by one party and the other two by another. Plaintiff had two separate leases from the owners. March 26, 1940, plaintiff sublet the 5 lots to defendant for a period of 32 months beginning April 15, 1940 and ending December 31, 1942, at a rental of $175 per month, payable in advance. At the time of the making of this lease there was a mortgage on three of the lots which afterward was foreclosed, plaintiff as lessee having been made a party. At the expiration of the period of redemption, March 16, 1941, a master’s deed was given to Dorothy M. Sneath for the three lots. Shortly after the delivery of the deed Dorothy M. Sneath served written demand on defendant to surrender possession to her of the three lots. Defendant agreed to vacate within a reasonable time, the 5 lots being used by him for the parking and sale of automobiles. April 30, 1941, defendant vacated the 5 lots; May 7, following, plaintiff brought the instant suit based on the sublease to defendant, as stated.

There is evidence that defendant offered to pay Dorothy M. Sneath the reasonable value for the use and occupancy of the 3 lots from the time he received her notice demanding possession, until he was able to move, and at the same time offered to pay plaintiff the reasonable value for the use and occupancy of the other 2 lots. There-is considerable argument in the briefs about what purport to be findings of fact by the trial court June 2, 1941, when the case was being tried, and, after the record was filed in this court, an order was entered by the trial judge purporting to expunge such findings of fact on the ground they were improvidentially entered. But we think this is of no importance.

There is also considerable argument by counsel for plaintiff as to the sufficiency of the so-called assignments of error. On the other side, counsel argues that they were sufficient to raise the errors complained of. The argument is wholly immaterial. If counsel would read Buie 7 of this court, no assignments of error in the technical sense are required. Assignments of error were only required by rule of court, Ditch v. Sennott, 116 Ill. 288. They never served any purpose but only to throw one out of court without passing on the merits. The assignments of errors required are those argued in the brief. Those are the points to be decided and the mere adding of meaningless sentences such as, “The court erred in the admission of evidence,” “The court erred in excluding evidence,” “The court erred in instructing the jury,” ‘ ‘ The verdict and judgment are contrary to the law, ’ ’ “The verdict and judgment are contrary to the evidence,” etc. etc., are of no assistance to the court and any procedure that requires or gives any consideration to such technical nonsense ought to be disregarded. A great lawyer and statesman, the late Elihu Boot said: “Justice is entangled in a net of form.” Obviously this ought not to be. The purpose of a law suit is to ascertain the facts of the matter in controversy so that the merits may be passed upon by the court — “the realities considered rather than that the matter be decided on mere technicalities.” People ex rel. Wilmette State Bank v. Village of Wilmette, 294 Ill. App. 362. Courts have the right, power, and it is their duty to eliminate such frivolous suggested rules which have no purpose except to confuse, to defeat justice, and justly tend to bring the courts into disrepute. It is such procedure that in part, at least, accounts for the great number of administrative bodies. More than 6 years ago the 9 judges of this court, in a supplemental opinion, passed on this point. Trust Co. of Chicago v. Iroquois Auto Ins. Underwriters, 285 Ill. App. 317. Although this case is cited by counsel for plaintiff on another point, he apparently overlooked the supplemental opinion, as did counsel for defendant. See also Travelers’ Ins. Co. v. Wagner, 279 Ill. App. 13; Chicago Title & Trust Co. v. County of Cook, 279 Ill. App. 462.

What we have said is in accordance with the holding of our Supreme Court in Taylor v. City of Berwyn, 372 Ill. 124, where the court was considering the question of the claimed “inadequacies in the statement of errors relied upon for reversal.” The court there said: (p. 132) “Section 76 of the Civil Practice act, (Ill. Rev. Stat. 1937, chap. 110, par. 200, p. 2410,) so far as relevant, provides: ‘An appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court. After being duly perfected no appeal shall be dismissed without notice, and no step other than that by which the appeal is perfected shall be deemed jurisdictional. ’ Notice of appeal was filed by Bartunek and the city in the office of the clerk of the circuit court within the prescribed period of time. Since the statute ordains that no step other than notice of appeal is jurisdictional the determination of whether the method of stating and arguing the issues sufficiently presents them for decision rests in the discretion of the reviewing court.”

It seems to be conceded that the decree of foreclosure which ripened into a master’s deed terminated plaintiff’s lease to the 3 lots and this being the fact, obviously no suit could be predicated on that lease as was sought to be done by plaintiff. But counsel for plaintiff says that on the trial of the case counsel for defendant offered to prove by the witness Frank Lytle that he had obtained a lease from Mrs. Sneath for the 3 lots and that Lytle agreed to lease the 3 lots to Stein, but counsel for plaintiff objected to this evidence and it was excluded. But we think this is wholly immaterial because if such were the fact, it would not revive the lease which is the basis of this suit. Such lease having been terminated, obviously no suit could be predicated on it.

The judgment of the municipal court of Chicago is reversed.

Judgment reversed.

McSurelt, P. J., and Hatchett, J., concur.


text:
    In re Estate of John J. Muldoon, Deceased. Ellen Muldoon et al., Appellants, v. Margaret T. Mul-doon and Albert N. Charles, Appellees.
    Gen. No. 42,019.
    Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed June 1, 1942.
    Charles R. Barrett, of Chicago, for appellants.
    Alfred F. Beck, of Chicago, for certain appellee.
    Willis B. Wood, of Chicago, for certain other ap-pellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Margaret T. Muldoon and Albert N. Charles as executors, were administering the estate of John J. Muldoon, deceased, in the Probate court of Cook county. They filed their account. Ellen Muldoon, Mary Muldoon and Esther 0 ’Rourke, who are legatees named in the will of the deceased, filed objections to items aggregating $3,529.50, for which the executors sought credit, having paid the real estate taxes for 1928 and 1929 on property owned by the deceased at the time of his death. The objections were overruled and the account approved by the Probate court. The case was taken to the Circuit court with a like result and the objectors appeal. Pending the appeal in the Circuit court Margaret T. Muldoon died and Evan W. Edwards, executor of her estate, was substituted.

The material facts as stipulated are that the testator, John J. Muldoon, died August 22, 1929, and his will was admitted to probate by the Probate court of Cook county October 11, 1929. The estate “consisted of, among other items, three (3) parcels of improved real estate” in Chicago and one parcel of unimproved real estate in Cook county, outside the City. The properties were unencumbered and the title to the real estate was in the testator until his death. The “tax books” for the year 1928 bn the real estate outside the city came into the hands of the County Collector for collection May 9,1930, and on the property located in the city May 21, 1930. For the year 1929 the tax books on the parcel outside the city came into the hands of the County Collector March 18, 1931, and for the property located within the city April 13, 1931.

The taxes on the real estate for 1928 and 1929 were paid by Mrs. Muldoon, the co-executrix, in installments the first being May 5,1930 and the last August 6,1935. No order of the Probate court of Cook county had been obtained authorizing such payments.

Counsel for both parties seem to agree that under the statute the taxes in question are a personal liability of the owner of the real estate. Counsel for the objectors says: “The sole question presented ... is whether taxes on real estate of the deceased John J. Muido on were a proper claim against his estate when the taxes become due and payable after his death. ’ ’ Continuing counsel says: ‘ ‘ The taxes became due and payable only from the time that the books were placed in the hands of the County Collector for collection.” On the other side the position of counsel for the executors is that Dr. Muldoon, the testator, became liable for the tax on the real estate in question April 1, 1928, and for the next year on April 1, 1929, and that since he did not die until August 22, 1929, the executors were authorized and it was their duty to pay these taxes. In support of this contention counsel say that section 8 of the Revenue Act of 1898 (Smith-Hurd Ill. Rev. Stat. 1927, ch. 120, § 287) provides that: “All property subject to taxation shall be listed by the person at the place and in the manner required by law, and assessed at the place and in the manner required by law with reference to the ownership, amount, kind and value on the first day of April in the year for which the property is required to be listed including all property purchased on that day. The owner of property on the first day of April in any year shall be liable for the taxes of that year.

“The purchaser of property on the first day of April shall be considered as the owner on that day.”

In People v. Winkelman, 95 Ill. 412, and Biggins v. People, 96 Ill. 381, it was said that an action in debt might be maintained against the person who owned real estate on May 1, where there has been a forfeiture for failure to pay taxes. These cases have been cited many times by our Supreme Court and nothing we have been able to find has in any way changed the law as announced in the two cases except that under the statute now, the date is the first of April and not the first of May. We are of opinion that the date fixed by the statute, April 1, is controlling and not the time when the tax books are delivered to the County Collector.

Counsel for the objectors cite Mercy Hospital v. Wright, 213 Ill. App. 634; Vol. 1, Horner on Probate Practice and Estates, § 553, p. 560; Sexton v. Sikking, 90 Ill. App. 667; and Shaw v. Camp, 56 Ill. App. 23. We think none of these is controlling here. In the Wright case, Haines, the testator, named Wright as executor, and bequeathed to the testator’s mother all the net income from his entire estate, real, personal and mixed, for the term of her natural life. The executor was authorized by the will to hold all of the estate intact during the life of the mother and to pay her the net income. Mercy Hospital and others were named as residuary legatees. Wright qualified as executor and administered the estate. The mother of the testator died and the executor filed his account in the son’s estate. The residuary legatees objected to the amount allowed the executor’s attorney, and other items. The court said: “It is apparent from the proofs made concerning the character and value of the services rendered by the several parties that they relate principally to the trust estate created by the terms of the will, and practically all the duties which are imposed by the terms of the will on the appellee Wright also pertained to the trust estate; and all matters pertaining to a trust estate are within 'the exclusive jurisdiction of a court of equity. While it is true that the will calls upon the executor to perform these duties, nevertheless, he could only perform them in his capacity as trustee; and the fact that he is called executor instead of trustee does not in any manner change the character of the duties.” The court then held the judgment should be reversed, to ascertain the amount that should be charged to the executor, and the cause remanded. Continuing the court said that objection was made to the claimed credit for taxes for 1914. “These taxes were assessed against the real estate of the deceased testator, and were not due or payable until 6 months after the death of the testator; they never became, therefore, a personal obligation against him, nor a debt against his personal estate. Sexton v. Sikking, 90 Ill. App. 667.” In the Wright case it appeared that the testator died July 24,1914, but no reference was made to § 8 of the Revenue Act above quoted which provides that the owner of the property on the first day of April shall be liable for the taxes of that year.

In the section cited from Horner on Probate Practice and Estates the author says, (p. 560): “An executor or administrator is not bound to pay the taxes falling due after the death of the testator, as they never became a personal obligation against him.” This in no way defines when the taxes on real estate became a liability of the owner of the property.

In the Sexton case, [90 Ill. App. 667] the administrator sold real estate and a dispute arose between the purchaser and the administrator as to whether or not the administrator had offered the real estate for sale subject to unpaid taxes or clear of such taxes. The court said: “There is no definite finding in the record upon this issue . . . , but we infer from the first proposition held for appellee, that the court found that the administrator had not agreed to pay the tax.” This was sufficient for the court to have affirmed the judgment, but the court went on to say: “Susan Calvert died September 19, 1898. The taxes on her real estate did not become due until the tax books came into the hands of the collector, which is on the 20th of December. Starr & Curtis, Chap. 120, Sec. 135; People v. Ryan, 116 Ill. 75. [73]

“A tax due at the death of the deceased is properly regarded as a debt against the deceased, to be paid by the executor or administrator, but taxes accruing after such death are to be paid by the heir or devisee. Shaw v. Camp, 56 Ill. App. 23.”

§135 referred to in that opinion provides: “The respective county clerks shall, on or before the twentieth day after the first day of December, annually, or as soon thereafter as the collectors are duly qualified, deliver to them the books for the collection of taxes; and it shall be the duty of the collectors, within such time, or as soon thereafter as they are qualified, to call at the clerk’s office and receive said books.” Nothing is said in the section as to when the taxes became due. The Ryan case there cited [116 Ill. 73] was a petition for a writ of mandamus to compel the County Clerk to issue a tax deed to the purchaser at a tax sale. A plea was filed to the petition which, in substance, averred that the certificates of purchase were null and void for the reason that the property had been redeemed from the tax sale, which money had been tendered to the petitioner. The petitioner demurred to the plea which the court overruled. The petitioner elected to stand by its demurrer and the petition was dismissed. The judgment was reversed by the Supreme Court holding that the plea contained no averment in regard to the payment of subsequent taxes and for that reason it was bad. The court then said: “Section 135 of the Revenue law requires the books for the collection of taxes to be delivered by the county clerk to the collectors on the first of December, or within two days thereafter, or as soon thereafter as the collectors are qualified. Under this section of the statute the taxes may be regarded as due as early as the tenth day of December, annually, and as the taxes for the year 1880 were due and payable when the attempted redemption was made, on the first day of April, 1881, defendant was bound to aver, in his plea, that the taxes, and interest thereon, were deposited with the county clerk, in addition to the amount of the bid and fifty per cent penalty, or aver that the taxes were paid by the person making the redemption.” It will be noticed that no reference was made to the statute which there provided that the one who owned property on the first day of May was liable for the taxes levied against the property for that year.

In the Shaw case [56 Ill. App. 23] the executor had paid taxes levied against real estate belonging to the deceased in his lifetime. This was objected to but the objection was overruled and on appeal the judgment was affirmed. The court there said: ‘1 The taxes paid by the executor had been assessed upon property owned by the testator on the first day of May, 1890, and were due and payable at the date of his death, which occurred on the 12th day of January, 1891. Taxes so assessed and due, may, we think, be properly regarded as a debt against the deceased, and as such, paid by the executor or administrator. . . . Taxes accruing after the death of the owner stand upon a different footing and are to be paid by the heir, legatee or devisee.” The court further said: “Sec. 232, Chap. 220, R. S., entitled Eevenue, authorizes county authorities to institute and maintain an action of law against the owners of lands forfeited for non-payment of taxes, costs, etc. This remedy is to be employed against the person who owned the land on the first day of May in any year for which the taxes were assessed. If the executor had not allowed and paid this claim for taxes a judgment under the provisions of this statute might, had the lands become forfeited, have been awarded against the estate upon the proper application of the county authorities. This being true, payment without litigation ought to be regarded as within the power of the executor and he entitled to credit therefor.”

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

Judgment affirmed.

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


author: Mr. Justice O’Connor Mr. Justice Matchett

text:
    Gustave Weigend et al., Appellants, v. B. M. Hulsh, Trading as Trojan Products and Manufacturing Company, and William J. Nelson, Appellees.
    Gen. No. 42,029.
    Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed June 1, 1942.
    Rehearing denied June 16, 1942.
    B. M. Steiner, of Chicago, for appellants.
    Fred L. Steers, of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

This action is brought by five plaintiffs each one claiming to have an individual, separate and independent cause of action against the two defendants to recover damages based upon a conspiracy entered into by the two defendants to defraud plaintiffs out of their money. The complaint was in six counts. Defendants moved to strike the several counts and to dismiss the suit on a number of grounds, the first of which was that “There is a misjoinder of plaintiffs because the several causes of action do not arise out of the same transaction, or a series of related transactions, hut, on the contrary, are separate and distinct, and neither plaintiffs nor the transactions have any relation with one another.” The court sustained the motion and struck counts 1, 2 and 5 and ordered that the action as to four plaintiffs, viz: Hurwitz, Ross, Schwartz and Dvorak be dismissed at plaintiffs’ costs, and that counts 3 and 4 be dismissed as to defendant Nelson. It was further alleged that the remaining plaintiff, Weigend, file his answer to defendants’ counter claim within 10 days. It is from this order that all plaintiffs appeal.

The substance of each cause of action is that defendants conspired to cheat and defraud plaintiffs out of large sums of money by inducing them to enter into separate agreements for the resale by them of certain merchandise which they bought from defendants. That defendants falsely represented that the value of the merchandise sold plaintiffs, which was to be resold by them, was much greater than its actual value and that the profits which plaintiffs would receive for the resale of the merchandise and the ease with which it might be resold were knowingly false.

The substance of the first count is that plaintiffs at different times entered into agreements with defendant, B. M. Hulsh, doing business as Trojan Products and Manufacturing Co., to act as distributors in the sale and distribution of products manufactured by the company. By each of the five agreements each plaintiff was given a certain territory in which he was to act as exclusive distributor; that the five contracts were entered into on the following dates: Hurwitz, November 9, 1939, Weigend, November 29, 1939, Dvorak, March 9, 1940, Schwartz, April 5, 1940, and Ross, May 21, 1940.

It is further alleged that prior to the execution of these contracts defendants, Hulsh and Nelson, entered into a conspiracy to cheat and defraud plaintiffs and other persons ont of large sums of money and in furtherance of the conspiracy, inserted advertisements in daily papers in Chicago, one of which was: ‘1 Help wanted with investment. If unemployed $150.00 invest. can make you $5.00 to $15.00 daily. No mdse, selling. Address FJ143 Tribune.” That plaintiffs responding to the advertisement, called at defendants’ office and were induced by various misrepresentations and false statements to negotiate and execute agreements with defendant, B. M. Hulsh, doing business as Trojan Products and Manufacturing Co., which would require substantial investments of money from each plaintiff, in consideration of which each plaintiff became a distributor of defendant Hulsh’s products in particular territories. The count then alleges 10 misrepresentations made by defendants, the substance of which is that Trojan Products Company was a well established and responsible concern with a great many distributors throughout the United States; that many of the distributors were selling on an average of 50 gallons of shampoo (one of defendants’ many products) to wholesale cleaning and dyeing concerns a week; that the distributors were selling large quantities of defendants’ products to schools and universities, one of such distributors being named who had sold some of defendants’ products for $2,000 to Purdue University. That there was great demand for a person to be assigned to a particular territory which was, of great value; that each distributor had employed from 5 to 10 men, on the basis of 50 per cent commission and that such employees were each averaging $10 a day “in cleaning or shampooing rugs or carpets with the use of said defendants’ ‘Bug-O-Vator’ machine.” That defendants ’ products were advertised extensively by radio, including W. M. A. Q., and others; that defendants ’ products■ were uniformly priced; that defendant, Hulsh, had invented or created, as a result of extensive experiments, a new compound to be used in cleaning or shampooing rugs, which contained no soap, which could he used with one of defendants’ machines to great advantage; that the value of the territory assigned to each plaintiff, as distributor, was worth from $2,000 to $5,000, but that if each plaintiff would purchase from $1,000 to $3,000 worth of merchandise it would be unnecessary to pay defendants any sum for exclusive territory.

It was further alleged that each plaintiff relied upon the representations made by defendants, as a result of which plaintiff, Weigend, was induced to give Hulsh $3,000 for merchandise and to be assigned to the State of Minnesota; that he expended other large sums of money in an endeavor to sell and distribute the merchandise but to no avail, and claimed $3,500 damages. That plaintiff, Hurwitz, paid defendant, Hulsh, $1,800 to have himself and M. W. Johnson assigned to Chicago and Evanston, and for certain merchandise and equipment to be resold in such territory; that he expended other large sums of money in an endeavor to sell and distribute the products, without success, and his damages were laid at $3,000; that plaintiff, Ross, was induced to pay Hulsh $1,000 for certain of defendants’ products and was assigned to portions of Kentucky and Indiana; expended other large sums of money and he claimed $2,000 damages; that plaintiff, Schwartz, paid defendant, Hulsh, $1,000 for certain merchandise and equipment for resale in Oak Park, River Forest, Forest Park, Maywood and Melrose Park and expended other sums of money in an endeavor to sell and distribute the products. His damages were laid at $2,000. That plaintiff, Dvorak, was induced to pay Hulsh $600 for merchandise and equipment for resale in Will county, Illinois; that he expended other large sums of money in a vain effort to dispose of the goods, and his damages were laid at $1,600.

Counts 2, 3 and 4, adopted by reference substantially all of count 1 and had to do particularly with plaintiff, Weigend’s, claim, going into more detail in reference to Ms claim than did count 1; and in count 3 the written agreement entered into between Hulsh and Weigend was attached to and made a part of the count. Count 5 purports to set up plaintiff, Hur-witz’s, cause of action based on the contract entered into by defendant, Hulsh, with Hurwitz and Johnson. Attached to and made a part of this count was a written contract entered into between the Trojan Products Company, by William J. Nelson, general sales’ agent, and plaintiff, Hurwitz, and M. W. Johnson, which contract, among other things, is to the effect that the products company had theretofore sold some of its products to a number of persons and concerns in and about Chicago and that it would continue to sell other goods to them, but on which Hurwitz and Johnson would be entitled to a certain commission. The total commission claimed under this special agreement was $849.40. It was further alleged that upon the execution of this contract, plaintiff, Hurwitz, and Johnson, became partners in the sale and distribution of defendants’ products. That afterward, July 19, 1940, the partnership was dissolved and the proceeds became the property of Hurwitz; that he was entitled to have paid to him such commissions, and his damages in that count are laid at $3,000.

Count 6 adopted practically all of count 1 and was in reference to the claim of plaintiff, Schwartz. He claimed $2,000 damages.

The right to join the five plaintiffs in one suit is claimed by virtue of section 23 of the Civil Practice Act (ch. 110, Ill. Rev. Stats. 1941 [Jones Ill. Stats. Ann. 104.023]). That section provides: “Subject to rules, all persons may join in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons had brought separate actions any common question of law or fact would arise; Provided, that if upon the application of any party it shall appear that such joinder may embarrass or delay the trial of the action, the court may order separate trials or make such order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for the relief to which he or they may be entitled.

“If any one who is a necessary plaintiff declines to join, he may be made a defendant, the reason therefor being stated in the complaint.” This section of our Practice Act, except the first three words, “Subject to rules,” is identical with section 209 of the Civil Practice Act of New York. That section was construed by the courts of New York in Akely v. Kinnicutt, 238 N. Y. 466, affirming 208 App. Div. 487 (203 N. Y. S. 741). The court in beginning its opinion said: “This case involves the interpretation of a new and rather revolutionary provision of the Civil Practice Act.” The trial court, the Appellate Division and the Court of Appeals of New York all held that 193 plaintiffs might join in one action, “each one claiming to have an individual, separate and independent cause of action against the defendants for damages caused by the fraud of the latter.” And continuing the Court of Appeals said: “The substance of each cause of action is that the defendants, with others, conspired to organize a corporation and then to float its stock at much more than its actual value; that in pursuance of this conspiracy they caused to be prepared a prospectus which was widely circulated throughout the country and which was intended to induce those who read it or learned of its contents to buy the stock at a price much higher than its actual value, and that this prospectus thus issued was intentionally false and fraudulent and misrepresented the value of the stock; that the plaintiff (in each cause of action) either seeing and relying upon the truthfulness of the prospectus or relying upon the advice of some one who had seen and believed it was induced to buy at a given date a certain number of shares of the stock in question at a price far in excess of its actual value and each alleged cause of action seeks to recover from defendants the damages thus suffered. ’ ’ The court then quoted § 209 of the Civil Practice Act of that State, and continuing said (p. 472) “The statute before us is substantially a copy of a provision in the English Practice Act and of course its purpose is to lessen the delay and expense of litigation by permitting the claims of different plaintiffs to be decided in one action instead of many when, although legally separate and distinct, they nevertheless so involve common questions and spring out of identical or related transactions that their common trial may he had with fairness to the different parties. The statute is a remedial one in promotion of the purpose in these times so insistent and widespread that the delays and expenses of litigation shall be lessened where possible and as such it is to be liberally construed. . . . It is “ earnestly argued by counsel whether the causes of action which have been joined in - this complaint do involve such a common question of law or fact as justifies the court in permitting them to be united in one complaint. It is necessarily admitted by the defendants that they do involve some common questions of law and fact but it is insisted that these common questions when compared with all of the questions which must he determined in each case are not of such comparative weight or importance as to justify the union which is being attempted. We are not able to agree with this view. We do not need to hold that the presence in each cause of action of some common but inconsequential or theoretical issue would be a sufficient reason for assembling in one complaint nearly two, hundred causes of action. We shall assume in this:" pase that such common questions must be of substantial importance as compared with all of the issues and that the question of the comparative freight and importance of common and separate issues involved in each cause of action is quite largely a matter of judgment. But even on that theory we do not think that it can be said by us as a matter of law in this case that there are not present in each cause of action common issues which amply satisfy the test of the statute. The common issues are basic and would seem to be the ones around which must revolve the greatest struggle and to which must be directed the greatest amount of evidence. These are in the ones in substance whether the defendants conspired to organize a corporation and float its stock at much more than its real value and whether in pursuance of this conspiracy they fraudulently issued a prospectus showing the stock to be much more valuable than it really was, and whether they did this with the deliberate intent to cheat and defraud the public into buying the stock at an unconscionable value. These questions are common to every cause of action. The separate issues which must be tried in each instance will be in the main whether the plaintiff saw the prospectus or learned of its representations, was influenced thereby and at a certain date bought a certain amount of stock at a certain price in advance of its real value in reliance thereon. While these latter may equal in number the common ones it seems from the face of the complaint, by which we must decide the question, that the majority of them cannot involve much evidence or lengthy dispute, but that the trial of them will yield in contentious importance and difficulty to the questions which have been first suggested and that, therefore, this is a case which comes well within the meaning of the statute so far as relates to common questions. . . .

“. -. . Each cause of action is based upon a purchase of stock at a fictitious value in reliance upon representations, as alleged, of defendants in respect of the value of that stock which were untrue and fraudulent and made for the purpose of inducing the public including plaintiff to make such purchases. The transaction in respect of or out of which the cause of action arises is the purchase by plaintiff of his stock under such circumstances, and such purchases conducted by one plaintiff after another respectively plainly constitute a series of transactions within the meaning of the statute. The purchase by a plaintiff of his stock is not robbed of its character as a ‘transaction’ because, as appellants seem to suggest, the transaction was not a dual one occurring between the plaintiff and the defendants, and the many purchases by- plaintiffs respectively do not lose their character as a series of transactions because they occurred at different places and times extending through many months.”

That case was décided on the pleadings as is the case at bar and we think what is said by the New York Court of Appeals is in point and applicable to the facts as alleged in the complaint before us. The section construed by the New York court and § 23, of our Civil Practice Act are identical. Here five plaintiffs .at different times, each entered into a contract with defendant, Hulsh, doing business as Trojan Products and Manufacturing Co. It is alleged that false representation was made by defendants to each plaintiff. For this reason the court erred in holding there was a misjoinder of parties plaintiff. See also Baker v. Healy Co., 302 Ill. App. 634. The purpose and spirit of our Civil Practice Act must be kept in mind when construction of it is involved. Section 1, of the Act provides that it shall be applicable “to all civil pro-, ceedings, both in law and in equity, unless their application is otherwise herein expressly limited.” By § 4, it is provided, ‘ ‘ This Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act or to the rules made pursuant thereto.” And'section 31 provides, “Neither the names heretofore used to distinguish the different ordinary actions at law, nor any formal requisites heretofore appertaining to the manner of pleading in such actions respectively, shall hereafter be deemed necessary or appropriate, and there shall be no distinctions respecting the manner of pleading between such actions at law and suits in equity, other than those specified in this Act and the rules adopted pursuant thereto.” Section 33 provides, “All pleadings shall contain a plain and concise statement of the pleader’s cause of action.” By section 40 the general issue is abolished and it is provided that allegations of pleadings shall be specific. Section 42 provides, “No pleading shall be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet.

“All defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived.” And by section 44 it is provided, “Subject to rules any plaintiff or plaintiffs may join any causes of action, whether legal or equitable or both, against any defendant or defendants; . . . But the court may, in its discretion, order separate trials of any such causes of action or counterclaims if they cannot be conveniently disposed of with the other issues in the case. Legal and equitable issues may be tried together where no jury is employed.”

Having in mind the purpose of our Practice Act, we agree with what the New York court said in the Akely case that: “The statute is a remedial one in promotion of the purpose in these times so insistent and, widespread that the delays and expenses of litigation shall be lessened where possible and as such it is to be liberally construed.”

Counsel for defendants contends that count 5 is insufficient because it alleges that Hurwitz and Johnson entered into an agreement with defendant, Hulsh, and that by reason thereof, Hurwitz and Johnson were entitled to certain commissions and that later it is alleged that Hurwitz and Johnson dissolved partnership and that Hurwitz is entitled to recover the commissions, but counsel points out that there is no allegation that Hurwitz and Johnson complied with section 22 of the Civil Practice Act. We think this section has no application. Bank of Montreal v. Page, 98 Ill. 109; Heartt v. Walsh, 75 Ill. 200.

The order of the superior court of Cook county appealed from is reversed and the matter remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

McSurely, P. J., concurs.

Mr. Justice Matchett

specially concurring: I think the first count stated independent causes of action which could be properly joined under section 23 of the Civil Practice Act. It was error to dismiss the suits as to the four plaintiffs. It was in the discretion of the- court to order separate trials and make such order as may be expedient. See sections 23 and 44 of the Civil Practice Act.


author: Justice Dove.

text:
    Clarence E. Bachellor and Thomas E. Robinson, Appellees, v. Albert Dockterman et al., Appellants.
    Gen. No. 9,717.
    Heard in this court at October term, 1941;
    original opinion filed January 14, 1942;
    modified opinion filed and rehearing denied June 8, 1942.
    Ben A. Stewart, for certain appellant; Morris D. Coppersmith, for certain other appellants; Ben A. Stewart, of counsel; Murphy & Murphy, for appellees.
   Opinion by

Justice Dove.

‘ ‘Not to be published in full.”


author: Presiding Justice McSurely.

text:
    National Builders Bank of Chicago, Administrator of Estate of Julia Goldberg, Deceased, and Valerie Winnick, Appellants, v. Kaspar American State Bank, Appellee.
    Gen. No. 41,932.

      Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942;
    rehearing denied June 16, 1942.
    Irving G. Zazove, for appellants; Hinshaw & Culbertson, for appellee; Oswell G. Treadway, of counsel.
   Opinion by

Presiding Justice McSurely.

“Not to be published in full.’’


text:
    Chicago Title and Trust Company, Trustee, Appellee, v. 1146 Milwaukee Avenue Building Corporation et al., Appellees. Don F. Fabis, Appellant.
    Gen. No. 41,943.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942.
    McKinley, Price & Quindry and Harold Rivkin, for appellant; Kelly & Cohler, for certain appellee; Pritzker & Pritzker and A. E. Peterson, for certain other appellee.
   Opinion by

Presiding Justice McSurely.

“Not to be published in full.”


text:
    John Gyurky, Appellee, v. Pullman Railroad Company, Appellant.
    Gen. No. 41,975.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942.
    Knapp, Allen & Cushing, for appellant; Joseph L. Earlywine and Harlan L. Hackbert, of counsel; Owens & Owens, for appellee; Thomas L. Owens, of counsel.
   Opinion by

Presiding Justice McSurely.

“Not to be published in full.’’


text:
    Belle Baron, Appellee, v. Prudence Life Insurance Company, Appellant.
    Gen. No. 41,985.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942.
    Barney L. Hollowick,
    for appellant; Bert L. Luskin and Benjamin J. Schultz, for appellee.
   Opinion by

Presiding Justice McSurely.

‘‘Hot to. be published in full.”


text:
    Mary Margaret Regan, Appellee, v. Francis Keating et al., Defendants. Appeal of Francis Keating et al., Appellants.
    Gen. No. 41,988.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942.
    Ekern, Meyers & Matthias, for appellants; Donald L. Thompson, Vernon A. Eorsberg and William G. Chorn, of counsel; Francis J. Gariepy, for appellee; Charles E. Mallon, Owen Rail and Andrew W. Bunta, of counsel.
   Opinion by

Presiding Justice McSurely.

‘‘Hot to be published in

full.”


text:
    Morticians’ Acceptance Company, Inc., Appellee, v. Interment Insurance Association, Appellant.
    Gen. No. 42,006.

      Heard in first division, first district, this court at December term, 1941;

    opinion filed June 1, 1942.
    Fithian, Spengler & Finnegan, for appellant; George S. Lavin, for appellee; Ira S. Kolb, of counsel.
   Opinion by

Presiding Justice McSurely.

“Hot to be published in full.”


text:
    Nicholas Z. Konstant, Appellee, v. Gust Maggos, Appellant.
    Gen. No. 42,036.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942;
    rehearing denied June 16, 1942.
    Adams, Emerson & Anderson and George A. Askounis, for appellant; Dudley R. Emerson and George A. Askounis, of counsel; Jetzinger & Quinn, for appellee.
   Opinion by

Presiding Justice McSurely.

“Hot to be published in full.”


author: Justice Matchett.

text:
    H. D. Cantin, Appellant, v. Joseph L. Aronson, Also Known as Joseph L. Arenson, Appellee.
    Gen No. 41,981.

      Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942;
    additional opinion filed and rehearing denied June 16, 1942.
    Soil J. Sehnitz, for appellant; Samuel Schmetterer, for appellee.
   Opinion by

Justice Matchett.

“Not to be published in full.’’


text:
    Elizabeth Winters, Appellee, v. Gray Line Sight Seeing Company of Chicago et al., Appellants.
    Gen. No. 42,015.
    Heard in first division, first district, this court at February term, 1942;
    opinion filed June 1, 1942.
    Miller, Gorham, Weseott & Adams, for appellants; Edward R. Adams and Herbert C. DeYoung, of counsel; Helman, Reilly & Silverman and Marion J. Hannigan, for appellee.
   Opinion by

Justice Matchett.

“Not to be published in full. ’’


text:
    Dorothy Moll, Appellee, v. Alida E. Menker et al., Defendants. Appeal of Vernon F. Bloom, Individually and as Executor of Estate of Alida E. Menker, Appellant.
    Gen. No. 42,022.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942.
    John E. Kelly and Edward J. Crawford, for appellant; Joseph A. Fenton, of counsel; Crahen, Sullivan, O’Toole & Sullivan and Mitchell Kilanowski, for appellee; John E. Crahen, of counsel.
   Opinion by

Justice Matchett.

“Hot to be published in full.’’


author: Justice O’Connor.

text:
    People of the State of Illinois ex rel. John F. Sweeney, Appellee, v. James P. Allman et al., Appellants.
    Gen. No. 41,945.

      Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942;
    rehearing denied June 16, 1942.
    Barnet Hodes, Corporation Counsel, for appellants; James A. Velde, Carl H. Lundquist and L. Louis Karton, Assistant Corporation Counsel, of counsel; Michael F.Byan, for appellee; Bichard F. MePartlin, Jr., of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.’’


text:
    Armin F. Hillmer et al., Appellants, v. Leopold E. Block et al., Appellees.
    Gen. No. 41,953.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942.
    Leonard & Leonard, Owens & Owens, Murphy & Pearson, and John A. Bussell, for appellant; Gordon McLeish Leonard and George Edward Leonard, Jr., of counsel; Matthews, Harmon, Karr & Springer, Mayer, Meyer, Austrian & Platt, and Thomas G. Deering, for appellees; Kenneth L. Karr, Frank D. Mayer and Edwin A. Bothsehild, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in fulL”


text:
    Elita E. Mallers, Appellee, v. Equitable Life Assurance Society of the United States, Appellant.
    Gen. No. 41,978.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942.
    Mayer, Meyer, Austrian & Platt, for appellant; Frederic Burnham and Miles G. Seeley, of counsel; McKinley, Price & Quindry, Lewis A. Stebbins and Robert B. Mullaney, for appellee; Paul E. Price and Lewis A. Stebbins, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in

full.”


author: Per Curiam.

text:
    P. J. Kohl and Company, Inc., Appellant, v. H. J. Blomgren et al., Appellees.
    Gen. No. 41,816.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed June 1, 1942.
    Baker, Holder & Hagstrom, for appellant; Joseph G. Hagstrom, of counsel; Leslie L. Lyons, for certain appellees; Leslie L. Lyons, of counsel; Kamfner & Halligan, for certain other appellee.
   Per Curiam.

“Not to be published in full.”


author: Mr. Presiding Justice Huffman

text:
    William Stade, Administrator of Estate of George Stade, Deceased, Appellee, v. Esther Stade et al., Appellants.
    Gen. No. 9,763.
    Heard in this court at the February term, 1942.
    Opinion filed May 14, 1942.
    Rehearing denied June 24, 1942.
    Robert J. Burdett, of Chicago, and Charles C. Donovan, of Chicago Heights, for appellants.
    Krusemark & Krusemark, of Joliet, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

George Stade died intestate. Appellee, a brother of deceased, was appointed administrator of the estate by the probate court of Will county. The estate was insolvent. The court found a deficiency of $4,678.05 to exist. The deceased owned a farm which was incumbered by a mortgage of $7,500. Appellee filed petition to sell the farm to pay debts. The court ordered him to make sale of the deceased’s interest therein as he found it, that is, subject to the mortgage indebtedness and liens pending against it. At the first sale, the greatest sum that any purchaser was willing to invest in the farm was $8,000. This was insufficient to discharge the debt and liens against the property. The county court refused to approve this sale, as it would in no way benefit the estate. The farm was offered a second time. At this sale a bidder was present who was willing to make a total investment of $9,040. This sum was $620.29 in excess of the debts and liens against the land. The sale was made to this purchaser, approved by the county court, and conveyance issued. Appellee as administrator received the sum of $620.29 and the purchaser proceeded to discharge the debts and liens.

Appellee was of advanced years and without any understanding or experience with the administration .of estates. His attorney prepared all papers in connection therewith. He was present with appellee at the sale and in fact acted for him in making same. The attorney also prepared the report of sale, which appellee signed at his direction. An error existed in the report of sale, in that, it indicated that appellee had sold the land for $9,040 and that such sum had come into his hands as the purchase price therefor. When appellee filed his final report, the attorney prepared same charging appellee therein with $620.29 from the sale of the farm. This produced an. irregularity between the report of sale and the final report, and resulted in this suit.

Appellant Esther Stade is an heir of deceased. The other two appellants are creditors of the estate. They filed objections to appellee’s final report as administrator, based upon the above irregularity between his final report and the report of sale. The probate court overruled the objections. Appellants took an appeal to the circuit court of Will county. On March 1, 1939, appellants took judgment against appellee as on default, without any setting of the case, and according to appellee and his attorney, without any notice to either of them. The judgment was taken before the Hon. Claude N. Saum, presiding judge of that court, and was for the full sale price of the land as represented by the report of sale. Upon the expiration of 30 days from the rendition of such judgment, appellee received a letter from appellants’ attorneys demanding payment. This was the first notice he had of the action taken in the circuit court.

Appellee thereupon instituted this suit in chancery to set aside and vacate the above judgment and for restraining order against appellants to enjoin them from taking any steps to enforce same. He set up in his complaint the facts regarding the sale of the land and an explanation of the discrepancy between the report of sale and the final report. He alleged that $620.29 was the only money that came into his hands as a result of such sale, and no dispute as to this fact appears to exist. He further sets up that he was ill and confined to his bed from February 14, 1939, to about April 1, 1939; that at no time was he ever notified of a hearing to be had upon the appeal in the circuit court for March 1, 1939, or for any other day; and that he had no notice of the judgment rendered against him on that day until more than 30 days had elapsed, when he received a letter from appellants ’ attorneys demanding payment of the judgment. He alleges that the judgment was obtained by fraud and misinformation given to the trial court, whereby appellants obtained a default judgment against him, by stating to the judge of said court that his attorney had been duly notified of the proposed hearing. He alleges such statement was erroneous and false, and made for the purpose of misinforming the court; that the court was thereby induced to consider the statement as true and that appellee had abandoned the suit and did not desire to appear at a hearing thereof. It is charged that the judgment was obtained through fraud, mistake and accident, and that due to the fact appellee was not advised thereof until more than 30 days after its entry, he was unable to secure adequate relief at law.

The testimony of appellee conforms to the allegations of the complaint. His attorney denies that he had any notice or knowledge of the intended action of appellants taken on March 1, 1939. Judge Satjm in his testimony stated that it was his impression that he asked Mr. Burdette, an attorney for appellants, if the estate was represented by counsel and if the executor had been notified. He says that he was placed under the impression by the statements of appellants’ counsel that the parties had either been notified or had decided to abandon the appeal. He says that had he known Mr. Bielfeldt was in the case as attorney for appellee, and that it was a contested matter, he would not have proceeded under any circumstances without giving notice to the attorney for appellee. He states that he was not aware of the seriousness of the case or he would not have proceeded with the hearing, and would not have entertained the matter without giving the interested parties a chance to be heard, and that if they had no lawyer, he would have had notice given to them in person.

The circuit court rendered its decree for appellee administrator, vacating the judgment of March 1,1939, and restraining appellants from taking any steps to enforce same. It is from this decree they prosecute this appeal.

Appellants urge that the decree for sale of the land authorized and directed sale only of the deceased’s interest therein, as the same existed, and that the administrator had no right to sell on other or different terms; that he is bound to account for the sum of $9,040, as the sale price of the farm according to his report of sale; that the order of the county court confirming same is res judicata, and appellee can not now be heard to dispute it.

Appellee urges it was by accident and mistake that the report of sale was made in a manner to indicate that the purchase price for the farm ($9,040) came into his hands; that the report was made by his attorney and he signed it as directed and was not aware that it reflected such a situation. It is his position that where an administrator or executor by mistake has charged himself in a report with too much or too little, that a court may correct the same according to the true facts and charge such executor or administrator with the amount he justly owes.

It is generally considered that where an administrator or executor by accident or mistake is charged in his report with too much or too little, a court is authorized to ascertain the true facts and correct the report as the facts may justify, and charge the administrator with the amount he justly owes. In this connection it has been said in the case of Millard v. Harris, 119 Ill. 185 at page 198, “In case of mistake or accident, by which the administrator or executor is charged in his report with too much or too little, the Court will be authorized to ascertain the true facts, and correct the report as the facts may justify and warrant, and charge the executor or administrator with the amount he justly owes.” On page 199 of the same case, we find the following expression: “Upon the presentation of the report by the executor in this case, if, upon the face of the report, it appeared, or by extrinsic evidence was shown, that the executor had charged himself with a sum not in his hands, or properly not chargeable, the Court had the power to ascertain the true facts, and charge the executor with the amount justly chargeable against him, and no more.” This case had to do with an executor selling land which was incumbered, wherein he charged himself with the full sum the land brought, when in fact he retained as executor only a small surplus remaining above the incumbrance. The above rule is also announced in Brandon v. Brown, 106 Ill. 519.

Concealment of facts which have induced a court to enter a judgment which it otherwise would not have rendered, may be proper grounds for equitable relief. This case was pending on appeal from the county court. No setting had been made, and it appears that no notice of the hearing was had by either appellee or his attorney. It is further apparent from the testimony of the judge who heard the case, that had he been advised of the facts, he would not have proceeded. The rule is well settled that a court of equity will grant relief against a judgment which is against conscience, or the justice of which can he impeached by facts, or on grounds whereby a party because of fraud, accident, mistake, or the act of the opposite party, was prevented from availing himself of his defense. Owens v. Ranstead, 22 Ill. 161, 168; Wilday v. McConnel, 63 Ill. 278; Gregg v. Brower, 67 Ill. 525; Simpson v. Simpson, 273 Ill. 90, 93.

The decree herein is affirmed.

Decree affirmed.


author: Mr. Justice Wolfe

text:
    People of the State of Illinois, Defendant in Error, v. Thomas R. Hennefent, Plaintiff in Error.
    Gen. No. 9,751.
    Heard in this court at the February term, 1942.
    Opinion filed May 14, 1942.
    Rehearing denied June 24, 1942.
    Harris & Harris, of Macomb, for plaintiff in error.
    G. Durbin Ranney, State’s Attorney, for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.

On November 20,1939, the State’s Attorney of Warren county, filed an information in the county court at Monmouth, Illinois, charging Thomas B. Hennefent with neglect and refusal to support his minor child, Chad Hennefent, who was alleged to be in destitute .and necessitous circumstances. The defendant appeared and entered a motion to quash the information. This motion was overruled. The defendant then entered a plea of not guilty. The case was tried before a jury in April 1941, which resulted in a verdict of guilty, and the court suspended sentence, and entered judgment against the defendant to pay $30 per month for a period of 12 months, said payments to be made to the clerk of said county for the use, and support of Chad Hennefent. The case is brought to this court for review by writ of error.

The evidence shows that Mildred Francis had been keeping company with the defendant, Thomas B. Hen-nefent, for several years; that the defendant resided on a farm in Warren county, Illinois; that on the evening of November 2,1936, said Hennefent was taken (probably by force), by a sister of Mildred Francis and several of her relatives, to the City of Galesburg, in Knox county, where a marriage license was procured for the marriage of Thomas B. Hennefent and Mildred Francis; that the parties proceeded to Knoxville, Illinois, where a marriage ceremony was performed; that after said ceremony, Mildred Francis went to her father’s home in Knox county, and the defendant, Hennefent, went to his home in Warren county, Illinois; that the next day, Mildred Francis Hennefent was taken to the home of Thomas R. Henne-fent in Warren county, and stayed at said home three or four days when she left, and went hack to her home in Knox county; that she left, as she claims, because her husband, Thomas R. Hennefent, left his home in company with another woman; that on January 25, 1937, the child, Chad Hennefent, was born in Galesburg, Knox county, Illinois; that following his birth, Mildred Francis Hennefent, took the child, and stayed for 17 weeks with her brother, John, in Warren county; that she and the child, Chad, then returned to Knox county, and have made their home in that county until the time of the trial.

It is insisted by the plaintiff in error that the court erred in denying the motion of the defendant at the close of the People’s evidence, and also in denying his motion at the close of all of the evidence, to exclude all the evidence from the jury, and direct the jury to return a verdict of not guilty, because there was no venue proven in Warren county, and that no legal marriage existed between Mildred Francis and Thomas R. Hen-nefent. There are other assignments of error, but they are practically the same as the first two assignments. The decision of one of these disposes of all of the other assignments of error.

The evidence conclusively shows that the child, Chad Hennefent, and his mother have lived in Knox county, Illinois, during the entire life of Chad Hennefent, and • also shows that plaintiff in error has lived in Warren county during the entire time. The question presented, is whether the county court of Warren county had jurisdiction of the case so that Thomas R. Hennefent could be prosecuted in that county for the neglect and refusal to support his minor child who resided in Knox county. In C. J. S., vol. 22, sec. 185, under the heading of venue and abandonment and nonsupport, we find the following: “The venue of a prosecution for abandonment or nonsupport of a wife or child is governed by the rules applicable to criminal cases rather than by the rules applicable to civil actions, and is dependent on where the omission of duty occurs. The general rule is that the venue is in the county in which the abandonment occurred, or the duty to support should have been performed, or as otherwise stated, in the county where the wife or children become dependent on others because of the accused’s delinquency; and this rule applies even though, during such time, the accused may have been in another county. In such case the rule stated supra sec. 183, that the presence of accused within the county where the offense was committed is not always essential, applies. There is authority, however, for the prosecution of accused in the county in which he resides, although the wife and children live elsewhere.”

In the case of State v. Gillmore, 88 Kan. 835, 129 Pac. 1123, the Supreme Court of Kansas, in passing upon a similar question held that the only place that the prosecution could be maintained, was in the State of Kansas, and in the county where the wife and child resided. In 47 L. R. A. (N. S.) 217, the case is also reported, and numerous cases from other States are reviewed. The general rule, of venue is stated to be as follows: “Where a man deserts or abandons his wife or minor child, and where he himself subsequently removes to another jurisdiction, or where he sends the wife or child to another jurisdiction, he is properly indicted and tried for the offense in the jurisdiction where the wife or child becomes dependent, regardless of his non-residence, for that is the place where the duty of support should be discharged, and consequently the place where the offense of failure to support is committed. This rule may, however, be affected by statute, and also by the application of the theory that the object of statutes prescribing punishment for such offenses is not only to prevent the wife or child from becoming a public burden, but also to punish the wrong as such, and to deter husbands from abandoning their families.”

In the case of Johnson v. People, 66 Ill. App. 103, this court had occasion to review a similar case, which is now presented. In the Johnson case, the husband and father lived at Pontiac in Livingston county, and his wife and children lived in Peoria county. They had formerly lived in Iowa, and had separated in that State. After the wife and children had established a residence in Peoria county, she went to visit her husband in Livingston county, and apparently a reconciliation was effected. The husband paid the wife’s railroad fare back to Peoria. The husband did not live up to the reconciliation agreement. An information was filed in the county court of Peoria county, charging the father with failure to support his children in Peoria county. The defendant was brought to Peoria county, and he there insisted that the prosecution could not maintain the suit in Peoria county, because he had never been in that county, and if the offense at all was committed, it was committed by him in Livingston county, and that was the only county in which he could be prosecuted. In passing upon this contention, the court used this language: “If the defendant can not be indicted and tried in Peoria county, he can not be punished anywhere. It may be conceded that under the laws of this State a defendant can only be tried in the county where the offense was committed. Hence, if the defendant in this case did not abandon his wife and children in Peoria county, he was improperly tried and convicted there. But it is to be observed that the personal presence of the offender is not always an indispensable element in fixing the local jurisdiction of a criminal offense. A crime is, in legal contemplation, committed in the place where the doer’s act takes effect, whether he is himself in such place or not; in this way one may even perpetrate an offense against a State or county upon whose soil he never set foot. 1 Bishop’s New Crim. Proc., 53; 1 Bishop’s New Crim. Law, 110-111.”

Both the plaintiff in error and defendant in error have cited numerous cases which they claim support their contention in regard to the venue in this case. We have examined all of the cases so cited, and others of our own volition, and we think the rule, as stated in our former opinion, and the above citations is supported by far the greater number of the decisions of other States. It is our conclusion that the suit could not be maintained in Warren county, but could only be prosecuted in the county where the dependent and neglected child resided.

The trial court held that there was a legal marriage of the parties. It is seriously insisted by the plaintiff in error that he was married under protest, and forcibly against his will, therefore, the marriage was illegal and void. We do not intend in any way to intimate whether the marriage was legal or not, as the trial court did not have jurisdiction to try this case, therefore, whether there was or was not a legal marriage between the parties, becomes immaterial.

The judgment of the trial court is reversed.

Judgment reversed.