text:
    Paul Leahy, Appellant, v. Robert Perry and Lucius B. Phelps, Appellees.
    Gen. No. 37,983.

      Opinion filed November 20, 1935.
    James D. Murphy, of Chicago, for appellant.
    Arthur A. Basse, of Chicago, for appellee Lucius B. Phelps.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court in favor of the defendant in a suit in assumpsit for the rent of a building located at 25th street and Michigan avenue in Chicago, Illinois. The plaintiff, Paul Leahy, sued Robert Perry and Lucius B. Phelps, defendants. Perry was not served.

From the record it appears that on November 6, 1919, one Arthur T. Aldis and others, as trustees, and owners of the premises in question, entered into a written lease with Robert H. Perry and Harry Newman, as lessees to the premises in question. The lease provided for a monthly rental of $900 and was to run until 1940. February 17, 1920, Robert H. Perry and Harry Newman subleased the premises in question to the Kelly-Springfield Motor Truck Company, an Ohio corporation, to begin June 1, 1920 and end May 27, 1940. The rental was to be $1,300 per month. At the time this sublease was entered into between Robert H. Perry and Harry Newman and the Kelly-Springfield Motor Truck Company, a deposit was made by the sub-lessees in the amount of $15,600 to secure the performance of the terms of the lease and was to be considered as the rental for the last year of the term.

July 23, 1920 the Kelly-Springfield Motor Truck Company subleased the premises in question to the Western Motor Car Company, an Illinois corporation. This sublease was for a term, commencing on the first day of October, 1920, and ending on the 26th day of May, 1940, at a rental of $1,300 per month.

In the year 1926, Harry Newman, one of the original lessees, became indebted to Lucius B. Phelps for an amount aggregating $19,250 and gave a note for said sum in which reference is made to the assignment of this lease.

On March 24,1924, the owners of the fee of the property sold the same to one Maurice Leahy, subject to the lease to Robert H. Perry and Harry Newman. Subsequently, Maurice Leahy died and Paul Leahy, his son, became the owner in fee simple, subject to the aforesaid lease.

The lease dated November 6, 1919, from Aldis et al. to Robert H. Perry, contained this provision:

“It is further covenanted and agreed by and between the parties hereto that all the covenants, agreements, conditions and undertakings in this lease contained shall extend to and be binding upon the heirs, executors, administrators, successors and assigns of the respective parties hereto and their several interests respectively, the same as if they were in every case named and expressed, and that the same shall be construed as covenants running with the land; and wherever in this lease reference is made to any of the parties hereto, it shall be held to include and apply to the successors, heirs, legal representatives, and assigns of such parties respectively, the same as if in each and every case so expressed.”

It appears that at the time the lease was given by Harry Newman to Lucius B. Phelps, on December 4, 1920, as security for the debt of Newman to Phelps, the former assigned to Alfred G-. Brile, a clerk in the office of Charles A. Phelps, a brother of defendant, a one-half interest in the aforesaid lease, and, thereafter, Brile assigned the same to said Charles A. Phelps. It subsequently appears that these transactions were all for the benefit of Lucius B. Phelps and he was the real party in interest. Subsequently, a consent decree was entered in a suit in the superior court (Abst. pp. 22, 23) in which the rights of all the parties thereto are set forth including defendant in this case. Such finding in favor of the defendant in that suit would not be binding on plaintiff Leahy in the instant case as he was not a party thereto.

The plaintiff here contends that the assignment was complete so as to make defendant liable and the defendant contends that he merely had a conveyance of the rent accruing under the said lease in payment of his debt.

A branch of this case was before this court for consideration at the time Perry and the defendant Lucius B. Phelps sued the Western Motor Car Company for rent for these premises, entitled Perry v. Western Motor Car Co., 279 Ill. App. 195. In stating the facts in that case for this court’s consideration, plaintiff Phelps in his brief stated as follows:

“In the year 1926, Harry Newman, one of the sub-lessees from the owner of the fee and one of the sub-lessors to the Kelly-Springfield Motor Truck Company, assigned all his interest in and to said lease to Robert H. Perry and Lucius B. Phelps.”

As a result of the position taken by Phelps in that case, a decision was rendered in his favor, and in doing so this court found the following:

“In the year 1926, Harry Newman, one of the sub-lessees from the owner of the fee and one of the sub-lessors to the Kelly-Springfield Motor Truck Company, assigned all his interest in and to said lease to Robert H. Perry and Lucius B. Phelps.” Certiorari was denied by the Supreme Court, making the decision of this court final. In that case Phelps had taken possession of the premises here involved, acting as the owner and suing a lessee for the rent.

We do not believe we need go further so far as finding that Phelps was the assignee of Newman. He stated it himself in no unmistakable terms in the case of Perry v. Western Motor Car Co., 279 Ill. App. 195, which, as we have said, was before this court for consideration and wherein this court held that he was the assignee. Certainly he should not now expect us to follow him in such an inconsistent attitude when he chooses to deny it. We are bound by the former finding of this court and we think defendant should be also.

Thereafter Perry and Phelps, the defendants in this case, purchased from Pearl A. Lewis, receiver of the Kelly-Springfield Motor Truck Company, all the interest of the Kelly-Springfield Motor Truck Company in the said lease and secured an assignment, which assignment runs directly to Perry and Phelps, and which covenant contains the following clause: “that all the covenants, agreements, conditions and undertakings in this sublease contained shall extend to and be binding upon . . . assigns of the respective parties . . . the same as if they were in every case named and expressed, and that the same shall be construed as covenants running with the land.”

The important question here seems to be whether or not the various assignments of these leases and subleases have created a liability on the part of Lucius B. Phelps to Paul Leahy, plaintiff herein. In Taylor’s Landlord & Tenant, sec. 260, it is said:

“Covenants in a lease are either personal, or run with the land. If they extend to a thing in esse, parcel of the demise, and touch or concern the estate, as to rebuild or repair, they run with the land and every part thereof, and bind not only the covenantor and his personal representatives by privity of contract, but also the assignee, though not named, and every other person who is in of any estate created by, or growing out of the original demise, by privity of estate. . . . ”

In Sexton v. Chicago Storage Co., 129 Ill. 318, at page 326, the court said:

“The general principle, as held by all the authorities, is, that where the lessee assigns his whole estate, without reserving to himself a reversion therein, a privity of estate is at once created between his assignee and the original lessor, and the latter then has a right of action directly against the assignee on the covenants running with the land, one of which is that to pay rent; . . . The relations of landlord and assignee of a term, however, it has been seen, do not result from contract, but from privity of estate, and, therefore, when the original lessee has divested himself of his entire term, and thus ceased to be in privity of estate with the original landlord, the person to whom he has transferred that entire term must necessarily be in privity of estate with his original landlord and hence liable as assignee of the term. ’ ’

It is not necessary that the assignee occupy the premises. In Babcock v. Scoville, 56 Ill. 461, at page 464, the court said:

“With this much of authority in support of the doctrine, laying out of view the case of an assignee by operation of law, so far as has come under our examination we do not find it elsewhere laid down in any reported case, or by any legal writer of approved authority, that, in the case of an absolute assignee in fact of a term of years, an entry by the assignee is necessary, in order to subject him to a liability for the rent, but the whole tenor of authority is to the contrary.”

From a review of this case, this court has come to the conclusion that the defendant Phelps was the assignee of the leases which by their terms under the law there was established a privity of estate between Phelps the defendant and the owner of the fee. This being true, the trial court should have so found and was in error in finding the issues for the defendant.

It, therefore, follows that the judgment of the circuit court should be and the same is hereby reversed and the cause is remanded for a new trial in accordance with the views herein expressed.

Judgment reversed and cause remanded.

Hall, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Justice Denis E. Sullivan

license: Public Domain

text:
    Andrew C. Garvy, Appellant, v. Frances R Garvy, Appellee.
    Gen. No. 37,998.

      Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    Packard, Barnes, McCaughey & Schumacher, of Chicago, for appellant; Bussell J. McCaughey, of counsel.
    Charles J. Trainor, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a decree of the circuit court dismissing the bill of divorce of the plaintiff Andrew C. Garvy for want of equity and granting to defendant and cross plaintiff Frances R. Garvy her prayer for separate maintenance on her cross-bill. The bill asked for relief on the ground of desertion for one year and the cross-bill asked for relief on the statutory ground that she was living separate and apart without fault on her part.

The evidence shows that the plaintiff in the original bill for divorce was a doctor residing at 6000 Sheridan Road, Chicago, Illinois. At the time of his marriage with the defendant in 1924, he was the father of 10 children, ranging from 6 to 20 years of age who resided with him. His first wife died about four years previous to his second marriage. Andrew C. Garvy, plaintiff, and Frances R. Garvy, defendant, lived together until July, 1932, when she left their home and did not return thereto until November 1, 1933.

The evidence shows that both of the parties to this suit are middle aged people, being upwards of 50 years. The real cause of the dissension between them is not very clear. Plaintiff says that his wife neglected the household and care .of the children, quarreling with some of them at times, and lack of affection. Defendant claims lack of affection and regard and states that she was compelled to work at the household work and that there was too much for her to do; that she never had a vacation or rest; that the children were annoying and made fun of her.

On the date of the wife’s departure there had been an altercation between the plaintiff and defendant, at which time defendant’s eyeglasses were broken, she saying that plaintiff struck her, and plaintiff saying that defendant was making a great deal of noise, calling him a coward, etc., and that he merely raised his hand to prevent her from making such a disturbance as to attract the attention of the neighbors. Thereafter the two lived separate and apart, evidently by mutual agreement as he commenced paying her $12 per week for support and maintenance. The next conference between them was just prior to Thanksgiving Day, 1932, when the cross complainant went to the office of the plaintiff about 8:30 o ’clock in the evening and waited until his patients had left and said that she had come to go home with him and he replied, “Well, you can’t go tonight. We are painting on the third floor, the beds up there are down and there would be no place for you to sleep. . . . He said, ‘You left me or left the house,’ and I said ‘Well, not intentionally and not willingly staying away, you gave me occasion to leave by striking me. ’ ’ ’ She then asked him to drive her home and he told her she could get a cab. From this offer of reconciliation nothing resulted and the parties continued to live separate and apart.

No evidence has been offered by either side as to how the arrangements were made for the doctor to pay $12 per week for the support of his wife while living separate and apart from him. A living separate and apart to constitute desertion must be against the will of the party claiming desertion .and where parties live separate and apart by mutual agreement it does not constitute desertion on the part of either and neither of said parties is entitled to a divorce on the ground of desertion. Lyons v. Lyons, 231 Ill. App. 568, 580.

Again on St. Valentine’s Day, 1933, the defendant wrote the plaintiff stating that she desired to return and resume her place in the home, which letter is referred to as the St. Valentine’s Day letter, expressing her affection and reviewing their troubles and pleading to try living together again as husband and wife. To this letter the doctor sent a reply indulging in charges that she had killed the love that once was hers and telling her that she could not come back. This condition continued until November, 1933, when she returned to her home and told him that she had come to stay. Whereupon the plaintiff took his coat and hat and left the house and did not return until he had commenced suit for divorce and obtained an injunction restraining the defendant from occupying the premises, whereupon in obedience to said court order, the defendant left their home.

In reading this record it is easy to see that both are to blame in this controversy. The Illinois Revised Statutes 1935, ch. 40, ¶ 1, provides that where a wife or husband “has wilfully deserted or absented himself or herself from the husband or wife, without any reasonable cause, for the space of one year; . . . it shall be lawful for the injured party to obtain a divorce and dissolution of such marriage contract.” The separate maintenance statute, Illinois Revised Statutes 1935, ch. 68, ¶ 22, provides: “That married [men or] women who, without their fault, now live or hereafter may live separate and apart from their [wives or] husbands, may have their remedy in equity, in their own names respectively, against their said [wives or] husbands in the Circuit Court of the county where [the wife or] the husband resides, for a reasonable support and maintenance while they so live or have so lived separate and apart; ...”

No advantage could be had in reciting the voluminous evidence. In chancery cases, where the evidence is conflicting and heard in open court, the error in finding as to fact should be clear and palpable to authorize a reversal. Elmstedt v. Nicholson, 186 Ill. 580, 584. We realize that a reviewing court would have no right to disturb the findings of the chancellor who has heard the witnesses in open court and has seen them upon the witness stand, unless it can be said that the finding of the trial court is manifestly against the weight of the evidence. A review of the evidence in this case shows an effort on the part of each of the principals to blame the other for a condition which both helped to create.

Desertion in this State must, as'the statute provides, be for the period of one year and must be wilful and without reasonable cause. The incident in the home when defendant’s eyeglasses were broken by the plaintiff is claimed in the defendant’s brief to have been her reason for leaving. On this subject the defendant says: “I can truthfully say when I went out of the house with my brother I had no intention of remaining away. The fact the doctor struck me is not the reason I left the house. In a way it was, I had no intention of going away to dinner.” And again, the defendant says: “The reason I left was that the doctor did strike me. I didn’t intentionally leave. The question why I left is pretty hard to answer. . . . I didn’t have much desire to see him at all, he had plenty of chances to apologize but didn’t do so.”

To justify desertion — that is the wife or husband leaving the other — a mere indignity suffered is not sufficient reason, but there must be such conduct upon the part of the offending one as to make the maintenance of the marriage relation practically impossible.

It is quite plain from the evidence that the plaintiff was quite willing to grasp this opportunity to be separated from his wife, realizing either from his own knowledge or from legal advice, that the wilful abandonment by the wife for a period of one year without reasonable cause would be a ground for divorce. It is quite apparent that this thought entered his mind immediately after the departure of his wife for as witness G-ould, his neighbor, stated when on the witness stand: “The doctor came over and told me that he had had some sort of fuss with Frances, and that she was no longer at his house, and that he would like to have me see a lawyer . . . The doctor said he neyer wanted to see her again ... I have tried to be a go-between between both of them and got both of them sore at me.” This conversation took place shortly after her departure. Gould further stated that he never spoke to plaintiff on a subsequent occasion about a reconciliation between plaintiff and his wife.

Much of the time during 1932 and 1933 was taken up by conferences with various clergymen looking to a reconciliation, but apparently nothing came of it.

When a wife or a husband deserts the other, and at any time within a year in good faith offers to return, if the husband or wife refuses to receive them and cohabit with them and resume the marital relation, then the husband or wife so refusing becomes the deserting party and the statute ceases to run against the husband or wife who first left the other.

The doctor’s statement to the witness Gould which is uncontradicted, that he never wanted to see his wife again, outweighs any statement made by him that the door was always open and the latch string was out, etc. It was quite evident that he did not wish her to return.

The evidence of the defendant, the wife, is just as inconsistent with the good faith as that of the doctor. The law is that the offer to return to a husband by the wife must be sincere and whilst her evidence tended to convey the impression that she was a long suffering wife, yet she suffered no hardships beyond that which could be expected as the head of a large household.

In the dissolution of the marriage relation or in securing separate maintenance, the circumstances must be as the statute prescribes — without fault on her part or on his part. No one can-go over this record and help but find that both the plaintiff and the defendant here have attempted to magnify trivial everyday incidents to undue proportions. Counsel for defendant insists that his client is entitled to leave her husband because of the atmosphere which the plaintiff had created. Whilst incompatibility of temperament does not tend to establish the most harmonious home conditions, yet the record here shows that both contributed to this situation and the legislature of this State has not as yet made incompatibility of temperament a ground for divorce or a ground for separate maintenance. The public policy of the State is for the maintenance of the home and the sustaining of the marriage relation and a few insignificant differences cannot be construed as being a justification for breaking the family tie. Johnson v. Johnson, 125 Ill. 510. The record here shows that both are to blame.

It has been suggested by plaintiff that it would be satisfactory to him if a divorce was granted and at the same time allow alimony in favor of his wife. The function of a court is to decide the rights of litigants under the law and not attempt to exercise paternalistic care and solicitude looking to the future welfare of litigants. The suggestion cannot be entertained.

We think the trial court was right in finding that there was no cause for divorce by the plaintiff against-the defendant, but we do think that an error was committed when the court found that the wife was living separate and apart without fault on her part. Protestation of love and affection, if made in good faith, and the statement that said defendant could not live without the plaintiff, if believed, entirely nullify the charges which she claims as a basis for leaving the doctor in the first place. The rule in equity that both equities being equal, the law will prevail, operates in this case and where both are to blame the law will leave them as it finds them. We cannot find that the defendant has shown by a preponderance of the evidence that she is living separate and apart without fault on her part and we are, therefore, of the opinion that the trial court erred in granting separate maintenance on the cross-bill and, consequently, the decree of the circuit court dismissing plaintiff’s bill for divorce for want of equity is hereby affirmed and the cross-bill of the defendant is hereby reversed with directions to the circuit court to dismiss the same for want of equity.

Decree affirmed in part and reversed in part with directions.

Hall, P. J., and Hebel, J., concur.


text:
    Lillian Dawn Gaskill, Guardian of the Estate of John Elmer Duff, a Minor, Appellee, v. Ignatius Nesselroth and Rose Nesselroth, Appellants.
    Gen. No. 38,030.

      Opinion filed November 20, 1935.
    James H. Christensen, of Chicago, for appellants.
    Deming, Jarrett & Muleinger, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the municipal court for the sum of $5,042.15, in favor of the plaintiff and against the defendants. The suit in this case was brought by a guardian for the benefit of her minor, John Elmer Duff. To the affidavit of claim filed by the plaintiff there was filed an affidavit of defense by the defendants, setting forth among other things that the plaintiff had no power or right to declare the principal note due; that plaintiff had no right to commence the suit; that defendants had an agreement with plaintiff’s lawyer to extend the time, etc., and that receiving interest at times other than that specified in the note amounted to a variance of the terms of said principal note and further that no demand had been made upon them or notice given to require defendants to pay the interest; that the notes are secured by a trust deed as a first lien upon the real estate and that the real estate is ample security for the indebtedness.

The first affidavit of merits was stricken on motion of the plaintiff and 10 days given the defendants within which to file an amended affidavit of merits. The amended affidavit of merits contained no different defense than that set forth in the original affidavit of merits, and on motion of the plaintiff, it was stricken and judgment by default entered against the defendants.

Defendants’ defense seems to be based upon a rather novel theory. He contends:

“1. That after condition broken the minor became the owner in fee of the real estate securing the notes in suit, and such notes embrace an interest in'a minor’s real estate on which suit may be maintained only in the minor’s name by his guardian or next friend upon approbations of the Probate Court first had.

“2. That after condition broken as between the mortgagor and mortgagee, the fee to the security is in the latter; that under the law and terms of the note and trust deed, only the minor by his guardian or next friend, on approbation of the Probate Court, could accelerate the maturity of the debt by demand and notice or suit.

“3. That a guardian has no power to substitute a judgment, or compound for the debt, evidenced by the notes, without the approbation of the Probate Court first had.

“4. That plaintiff’s promise not to sue, or to accelerate the maturity of the note, after condition broken, before maturity, without notice and demand for that purpose, was on valid consideration, but consideration is not necessary.

“5. That plaintiff by accepting interest in amounts and at times varying from the terms of the notes and trust deed, and by promise to do so, without suit, until maturity of the principal note, extended the unpaid interest to maturity of the principal note and waived the interest default terms of the notes and trust deed until such maturity.

“6. That the statement of claim shows the action to be on a mortgage debt, owned by a minor, after condition broken, and it was error to enter judgment without the court first appointing a guardian ad litem.’’

As to point 1, where a note is secured by a trust deed,, the debt is the primary thing and the mortgagee is not confined to the land for payment of the debt. He may elect to sue on the note, foreclose the mortgage lien, or file suit in ejectment. Lucas v. Harris, 20 Ill. 165; Vansant v. Allmon, 23 Ill. 30.

As to points 2 and 3, Cahill’s Ill. Rev. Stats. 1933, on Guardian and Ward, chapter 64, section 17, authorizes the guardian to sue in his own name without leave of the probate court. Independent Order of Mutual Aid v. Stahl, 64 Ill. App. 314; Muller v. Benner, 69 Ill. 108. It was the intention of the statute to give the guardian full power to protect the rights of his ward. It is only where the guardian intends to compound a debt, thereby causing a possible loss to the minor, he must first secure approval of the probate court. Princeton Loan & Trust Co. v. Munson, 60 Ill. 371; Hoodless v. Reid, 112 Ill. 105.

As to points 4 and 5, regarding the promise not to sue and varying the terms of the note by accepting money at times other than the due date, the statute, section 17, chapter 64, Cahill’s Ill. Rev. Stats. 1933, forbids the compounding of demands due the ward without the consent of the probate court.

As to point 6, we again refer to the above statute which provides that when a guardian is appointed he shall look after the interests of his ward in every way. The appointment of a guardian ad litem was not necessary.

When judgment is entered on a note it is not a change in the rights of the owner of said note, it is merely a change in the form of the debt. Wayman v. Cochrane, 35 Ill. 152; Flower v. Elwood, 66 Ill. 438.

Complaint is made that the court erred in striking the affidavits of merits filed. Rule 61 of the municipal court reads as follows:

“Rule 61. Particulars to Be Given When Necessary. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may he necessary, particulars with dates and items, if necessary, should be stated in the pleading. ’ ’

Note 3 under said rule reads:

“Note 3. Agreement. An agreement should not be alleged in general terms. It is not enough to state iperely, ‘It was agreed between the plaintiff and defendant that, etc.’ The pleading should state the date of the alleged agreement, the names of all parties to it, whether it. was made verbally or in writing, in the latter case identifying the document. ’ ’

The affidavit of defense filed by defendants did not comply Avith the above rule and, consequently, the court committed no error in striking it and entering judgment.

We have carefully considered the points made by the defendants and we are of the opinion that no harmful error was committed by the trial court. Consequently, the judgment of the municipal court is affirmed.

Judgment affirmed.

Hall, P. J., and Hebel, J., concur.


text:
    In re Estate of Nellie Kelly, Deceased. Martin Carney, Appellant, v. Anna Quinn, Appellee.
    Gen. No. 38,045.
    Opinion filed November 20, 1935.
    Patrick T. Harrington, of Chicago, for appellant.
    Augustine J. Bowe and William J. Bowe, both of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

■ This is an appeal from an ex parte order entered in the circuit- court, declaring the alleged will of Nellie Kelly, deceased, to be the last will and testament of said Nellie Kelly. The cause came to the circuit court on an appeal from the probate court. At the time of the hearing in the circuit court on July 10, 1934, the attorney for Carney, the party objecting to the admission of the will, was not present in the court. Carney, the plaintiff, was present and asked for a continuance. The record shows that the trial judge notified his bailiff to call the office of the absent lawyer and waited for some time for him to appear; that thereafter the court proceeded with the trial and entered an order declaring the will to be the last will and testament of Nellie Kelly, deceased. The following day counsel for Carney filed a petition in the trial court in which he recited his reasons for not being present at the time of the hearing. The affidavit sets forth that on the 10th day of July, 1934, he was actually engaged in the trial of a case for the City of Chicago, entitled Sophie Goldberg v. City of Chicago, before his Honor, Judge Stanley Klarkowski, in which a jury was out and deliberating on its verdict; that thereafter he was actually engaged in the trial of a case for the City of Chicago, entitled City of Chicago v. Berrara, before his Honor, Judge McLaughlin in the circuit court of Cook county. The affidavit further shows that upon receiving notice that his case was reached for trial in Judge Trade’s courtroom, and being notified to go to the courtroom immediately, he sought his superiors and received their permission to try the case; that within 20 minutes he arrived at Judge Trade’s courtroom where he learned that the case had been called for trial and had been heard by the court and the appeal dismissed. He further sets forth in his affidavit that he has a defense to the admission of said instrument to probate.

Accompanying the said affidavit of the petitioning attorney, Patrick T. Harrington, is the joint affidavit of James Finn, Florence Blaney, Anna Gallagher and Margaret Arbogast, who were present when the said alleged will was signed. The affidavit sets forth that at the time of the making of the alleged will, Nellie Kelly was lying in bed in the parlor of her home; that she had a very high fever; that she did not speak to anybody in their presence; that some person who represented himself to be a lawyer handed a paper to the sick woman and at the same time saying to her: “Ask him to sign it,” meaning James Finn, one of the affiants. James Finn signed the paper and then walked into the dining room; that someone else wrote on the same paper signed by James Finn; that Finn was not told at the 'time he signed the paper that it was the last will and testament of Nellie Kelly, since deceased, nor were the other persons who were in the room told ; that at the time Nellie Kelly, the deceased, signed her name she was not told in their presence that she was signing her last will and testament.

If the facts set forth in the petition and- affidavits are true, and we must construe them as such, then a defense seriously contesting the validity of the said will appears.

We are inclined to believe that counsel for Carney showed due diligence. He was notified that the case had been reáched for trial while, he was actually engaged in a trial for his client, City of Chicago. His client Carney was in Judge Trade’s courtroom and asked for a continuance. Within a short time after notice was received he appeared in Judge Trade’s courtroom, but the case had been disposed of as heretofore stated.

In cases of this kind, in order to set aside an ex parte order, it is necessary to show due diligence and also that there is a meritorious defense. Harrington’s affidavit showed that he was a very busy lawyer and actually engaged in the trial of a case in another courtroom. Another affidavit on its face appears to show a meritorious defense. In a large county with many courts functioning at the same time, it is sometimes difficult for counsel to be present promptly when his case is actually reached for trial because of his engagements in some of the other courts. Of course, if the business pending in the courts is to be disposed of, it is necessary for the trial judge to diligently insist upon a hearing when cases are called before him for trial. While the lawyer for Carney did not appear promptly when the case was called for trial, still his client was present and sought a continuance. We believe that when the affidavits were filed the next day and showed a diligent effort to be ready for trial and also a meritorious defense, the order should have been vacated and the petitioner Carney given an opportunity to be heard on the merits of the.cause. This court said in the case of Crystal Lake Country Club v. Scanlan, 264 Ill. App. 44:

“In the present case there was apparently no desire to avoid the trial and an earnest effort was made to. so arrange the engagements for that day that defendant’s counsel could be present to try the case. We are inclined to think that the situation called for the exercise of liberality with reference to the motion to vacate and not for a too critical attitude towards defendant’s counsel. Upon condition that plaintiff’s attorney be compensated for his time and services and also for the expenses incident to the attendance of plaintiff’s witnesses, the court might well have vacated the judgment and set the case down for trial. ’ ’

We are of the opinion that in the furtherance of justice the trial court should have vacated the order.

For the reasons stated the order of the circuit court is reversed and the cause is remanded for a new trial.

Order reversed and cause remanded.

Hall, P. J., and Hebel, J., concur.


text:
    In re Estate of Samuel H. Weiss, Deceased, Appellant, v. Abe Berkovitz, Appellee.
    Gen. No. 38,110.
    Opinion filed November 20, 1935.
    Bernard J. Brown, of Chicago, for appellant.
    Kamfner, Halligan & Marks, of Chicago, for appellee ; Samuel M. Lanoff, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order entered in the circuit court of Cook county, allowing the claim of Abe Berkovitz for $3,358.17, against the estate of Samuel H. Weiss, deceased, on an appeal from the probate court of Cook county, where said claim had been disallowed. The above judgment was entered on an ex parte hearing under the following circumstances:

When the case was reached for trial on the 13th day of November, 1934, as appears from the petition of the West Side Trust and Savings Bank, executor of the estate of Samuel H. Weiss, the attorney for the claimant and for the estate, represented to the court that Mr. Brown, the attorney for the defendant estate, was actually engaged in a matter before Judge Mc-Goorty in the superior court; that at 2:45 p. m. on the said day an assistant to the attorney for the defendant represented to the court that he had an agreement with counsel for the estate that he would not proceed with a hearing of the cause until the disposition of the case before Judge McGoorty; that said assistant of the attorney for the plaintiff here, went to Judge Mc-Goorty’s courtroom and reported back that Mr. Brown was still actually engaged in a trial before Judge Mc-Goorty. The court, however, directed the claimant to proceed with his case, which he did, and at the conclusion of his case Mr. Brown, the attorney for plaintiff here, came into the courtroom. The court asked that he cross-examine the witness which he declined to do as he had not heard the testimony in chief. It is further alleged in the affidavit that there is a good defense to the said claim in that said Abe Berkovitz has no valid claim against said estate.

A motion was made in this court to strike the additional transcript of record for the reason that it was filed after the time allowed by statute. The motion was reserved to the final hearing. Judgment was entered in the circuit court on the 14th day of November, 1934, and thereafter on the 10th day of December, 1934, the petition of the defendant was filed in which it is set forth that the attorney for the petitioner was actually engaged in another trial at the time judgment was rendered; that counsel was unable to be present until after the evidence had been heard for the plaintiff and that petitioner has a complete defense to the said cause of action. The petitioner further asked that the judgment heretofore rendered and the allowance of said claim be vacated and set aside, which was on December 10, 1934, denied. From this order the appeal was prayed and perfected. Thereafter on April 22, 1935, some four months later, there was filed in the clerk’s office a purported amended report of proceedings signed by the trial judge. The limit of time for filing the report of proceedings is fixed at 60 days or such further time as may be granted by order entered within the said 60 days. Section 36 Supreme Court Rules. No order was entered extending the time for the presentation of the report of proceedings.

The purported additional transcript of the record and the purported additional abstract of record in this court are hereby on motion of the plaintiff stricken at defendant’s costs.

This leaves for consideration the sole question as to whether there was an abuse of discretion on the part of the trial judge in going to trial and hearing evidence in the unavoidable absence of counsel who was actually engaged in another court.

No denial is made that counsel for claimant agreed not to proceed until counsel for the estate had concluded the hearing before Judge McGroorty.

In order that the business of the courts may be disposed of, the vigilant efforts of the trial judge are required to insist on trial except where a continuance is justifiable.-

Rule 26 of the circuit court provides:

“Rule 26. Passing Causes. Sec. 1. When, upon a cause being reached for trial, the sole attorney or solicitor of record or the attorney or solicitor specially charged with the trial is ill or actually engaged in the trial of a cause in another Court, or another branch of this Court, the Court on motion will, in its discretion, pass the cause for the time being without prejudice, where there is made to appear to it by affidavit or otherwise:

“(a) The fact of such illness or engagement, and

“(b) The fact that the moving party has used due diligence to be ready for trial and would have been so ready but for the illness or engagement so appearing.

“In the exercise of its discretion the Court will at all times take into consideration the particular situation presented and the possibility of substantial injury being occasioned to the rights of the party by denial of the motion.

“Sec. 2. No cause will be passed a second time for either of the reasons above mentioned.

“Sec. 3. The foregoing provisions so far as applicable shall extend to and govern the passing of causes upon the law and chancery contested motion calendars and upon the calendar of motions for new trial.”

We are fully aware that many times excuses are offered to the court that are without merit, but in the instant case the absent attorney was actually engaged in a trial in another courtroom and really wanted to try this case. We are of the opinion that it would be a nearer approximation of justice if the court would have so arranged his call that the lawyer for the estate could present his defense and be heard at a subsequent time. As this court said in the case of Crystal Lake Country Club v. Scanlan, 264 Ill. App. 44:

“In the present case there was apparently no desire to avoid the trial and an earnest effort was made to so arrange the engagements for that day that defendant’s counsel could be present to try the case. We are inclined to think that the situation called for the exercise of liberality with reference to the motion to vacate and not for a too critical attitude towards defendant’s counsel. Upon condition that plaintiff’s attorney he compensated for his time and services and also for the expenses incident to the attendance of plaintiff’s witnesses, the court might well have vacated the judgment and set the case down for trial.”

For the reasons herein set forth the judgment of the circuit court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded. Hall, P. J., and Hebel, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Ira Salbar, Plaintiff in Error.
    Gen. No. 38,147.

      Opinion filed November 20, 1935.
    H. E. Baker and J. Both, both of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth, John T. Gallagher, Richard H. Devine, John E. O ’Hora and William J. Lancaster, Assistant State’s Attorneys, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This case comes before us on a writ of error from the municipal court brought by one Ira Salbar to review an order and judgment of that court finding him guilty of contempt and sentencing him to a term of five days in the county jail. The order of commitment grew out of the appearance of the contemnor, Ira Salbar, before a criminal branch of the municipal court, known as Branch No. 34, 4802 Wabash avenue, Chicago, Illinois, for alleged misconduct on his part occurring wdiile said court was in session and engaged in the hearing of motions on certain cases as set forth in the commitment order, for which he was adjudged guilty of contempt.

No bill of exceptions or report of the proceedings are included in the record. Counsel for contemnor attempts in their brief and argument, under a heading “Statement of Facts” to bring before the court certain facts which are not of record, which they cannot and should not do. We shall, therefore, disregard such facts as outside the record.

The order of contempt entered March 14, 1935, is as follows:

“Defendant present in open Court.

“Finding defendant guilty of contempt of Court because this day while the Court was in open session and in the hearing on motion in Cases No. 3423590,3423591, 3423592, 3423593, entitled City of Chicago versus Geo. Nieldoff, James Balanoff, John Nicola, Jos. Vukilich, in Branch Court No. 34, 4802 Wabash Avenue, Chicago, Illinois, said defendant did say to the Court, This court is unfair, it is impossible to obtain a fair trial in this Court, ’ and when warned by the Court to discontinue said remarks did use boisterous and improper language before the Court, all of which conduct of said defendant did thereby tend to impede the proceedings and lessen the dignity of the Court.

“Judgment on finding defendant guilty of contempt of Court.

“Defendant sentenced to county jail for a term of five days.” (Abst. 1 and 2; Rec. 2.) Such order, committing one for direct contempt in the presence of the court, should be a full, certain and complete recitation of all the material facts occurring at the time and constituting the offense so that the reviewing court may be able to determine whether or not the same amounts to a contempt. As was said in the case of Rawson v. Rawson, 35 Ill. App. 505, 510:

“Where the contempt is in the presence of the court, the proceeding is in the highest degree summary; the judgment and punishment is usually immediate, and upon the spot; the commitment is a commitment in execution. There need be, and usually is, no counsel acting for the accused person, to advise .him, or take proper steps to protect his rights. A bill of exceptions in such a case is impracticable, and to hold that unless the facts were preserved, as by such a pleading, the judgment general in form should be held conclusive, would be introducing into a summary proceeding a technical pleading, not for the purpose of promoting justice, but to embarrass the citizen in obtaining relief from what may be an unjust imprisonment. ... We hold the reasonable and just rule to be, that the order of commitment should state the facts or conduct constituting the contempt, and that where no statement as to the nature of the acts or words of the defendant is made in the order, the same should be reversed. In other words, where a direct review of such a summary judgment is given by law, it is the duty of the court that makes the order, said order constituting the entire record, to set out fully in the commitment in what the contempt consisted, in order that the Appellate Court can see from the order, whether the judgment is warranted. ’ ’

The instant case is a criminal contempt wherein the punishment is imprisonment, and a strict interpretation of the language of the order must be invoked and no presumptions can be indulged in its favor.

It does not appéar in the order whether the contemnor was appearing in court as a lawyer in a trial of any one of the cases which the court was hearing, or appearing as a witness, an interloper, or otherwise. From the order presented for our consideration, this court cannot visualize the circumstances and the scene presented at the time.

Apparently the trial court did not consider the remarks of the contemnor, “This court is unfair, it is impossible to obtain a fair trial in this court” as-being contemptuous, because the order further says: “and when warned by the Court to discontinue said remarks did use boisterous and improper language before the Court.” What the boisterous and improper language was, we are not permitted to know. Evidently, it was the latter which caused the court to feel that the contemner intended to interfere and impede justice in the court. The statement that the language was boisterous and improper was a mere conclusion.

This court in the case of People v. Bain, 268 Ill. App. 192, at page 195, said: “The order must set forth the facts so fully and certainly as to show that the contempt was actually committed.” Citing People v. Hogan, 256 Ill. 496.

In the case of People v. Hille, 192 Ill. App. 139, the court at page 149, says:

“Before a person can be found guilty of contempt of court it must clearly appear that in committing the offense complained of he was actuated by some malevolent intention to assail the dignity of the court, or to wilfully and knowingly interfere with its procedure or due administration of justice. There must be a union or joint operation of act and criminal intention. Consequently a person may purge himself of contempt by showing that he acted innocently or through ignorance and without any intention to wrongfully mislead or deceive the court. Powers v. People, 114 Ill. App. 323; Kanter v. Clerk of Circuit Court, 108 Ill. App. 287, 305.”

We cannot find that the order herein set forth states with sufficient clarity for us to determine what the boisterous and improper language was, as used before the court. We fully realize that it is necessary for courts to have and exercise the power to maintain and defend themselves against any untoward interference which tends to impede, obstruct or bring into contempt the administration of justice. At the same time it is necessary for a reviewing court to see, from an inspection of the record, that a citizen is not deprived of his liberty excepting under the forms prescribed by law.

As before stated there are not sufficient facts in the record to sustain the order of the trial court and, consequently, the order and judgment of the municipal court is reversed.

Judgment reversed.

Hall, P. J., and Hebel, J., concur.


text:
    In re Estate of Augusta Burdin, Deceased. Lillian Dibos et al., Appellants, v. Walter Burdin and Leo Burdin, Appellees.
    Gen. No. 38,156.
    Opinion filed November 20, 1935.

      Emanuel Morris and Morris J. Drezner, both of Chicago, for appellants; Emanuel Morris, of counsel.
    Frank F. Tollkuehn and Harold F. Tollkuehn, both of Chicago, for appellees; Harold F. Tollkuehn and Ambrose P. Finn, Jr., of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal asking to set aside the order of the circuit court because of its construction of items 2 and 3 of the will of Augusta Burdin, deceased. The paragraphs of the will are designated therein as “items” and we shall hereafter refer to them as such. The two items of said will which are the subject of this controversy, read as follows:

“Item Two: I do give, devise and bequeath unto my beloved grandchildren, Lillian Dibos, age twenty-two years, Amanda Deinhardt, age twenty years, and Ruth Dibos, age four years, the sum of Five Hundred ($500.00) Dollars each, and unto my beloved daughter, Lena Dibos, the sum of One Thousand ($1,000) Dollars.

“Item Three : I hereby give, devise and bequeath unto my beloved children, Lena Dibos, Oscar Burdin, Walter Burdin, and Leo Burdin, share and share alike, all the estate, real, personal and mixed, and property of all kinds whatsoever and wheresoever situated, of which I may die seized or possessed, or to which I may be entitled in possession, remainder, reversion or otherwise at the time of my death, remaining after the payment of my said debts and funeral expenses, in fee simple, their heirs and assigns forever. ...”

The probate court held item 2 to be valid and ordered distribution under that item and prior to item 3. In this respect the circuit court reversed the order of the probate court, wherein it was held that items 2 and 3 were both valid.

The only question to be decided in this case is Avhether item 2 of the will is valid and enforceable.

It appears from a reading of item 2 that the testatrix gave to her three grandchildren special bequests of $500 each and to her daughter, Lena Dibos, the sum of $1,000. In item 3 the testatrix gave to her four children, Lena Dibos, Oscar Burdin, Walter Burdin and Leo Burdin, share and share alike, all the estate, real, personal and mixed and property of all kinds whatsoever and Avheresoever situated that she might be possessed of at the time of her death.

Every Avord, clause or sentence in a will is presumed to have a meaning and purpose, and in construing a Avill all the provisions of the will should assist us so as to give full force and effect to the language employed therein.

In Levings v. Wood, 339 Ill. 11, the court at page 15, said:

“. . . there must be borne in mind the rule that all the clauses and words of the will should, if possible, be construed as intended to have some meaning and to have been used for some purpose and should be given effect in arriving at the intention of the testator. . . . ‘None can be arbitrarily rejected as meaningless or 'surplusage.’ ”

In Dickison v. Dickison, 138 Ill. 541, at page 545, the court said:

“The rule is well established in this State, as elsewhere, that when the clauses of a will are irreconcilable and the repugnance invincible, the later clause Avill generally prevail. ’ ’

Counsel for Lillian Dibos and the other beneficiaries under item 2, contends that the rule is that a specific bequest takes precedence over a general bequest, and for that reason item 2 should prevail over item 3. To this contention counsel for the beneficiaries under item 3 reply and say that all the property which the deceased owned was conveyed without reservation by item 3.

The general rule in the construction of wills is that the intention of the testator must be determined from the four corners of the will itself, by reading the language thereof, and that every word, clause or sentence in the will is presumed to have vitality, force and meaning and should be used to sustain said will when the same can be done by giving full force and meaning to the language employed therein.

In reading the clauses of this will — items 2 and 3— it will be found that they are diametrically opposed to each other. The first bequest provides for the payment to her daughter and grandchildren of an aggregate sum of $2,500, being $1,000 to Lena Dibos and $500 to each of her three grandchildren, Lillian Dibos, Amanda Deinhardt and Buth Dibos. The third item of the will provides that all of her property, real, personal and mixed and property of all kinds whatsoever and wheresoever situated that she has at the time of her death shall be given to her children, Lena Dibos, Oscar Bur-din, Walter Burdin and Leo Burdin, share and share alike. No reference is made in said item 3 to item 2. It does not purport to convey as a remainder or residue, but as an unqualified conveyance of everything she possesses which remains “after the payment of my said debts and funeral expenses, in fee simple, their heirs and assigns forever. . . . ”

In the case of Harris v. Ferguy, 207 Ill. 534, at page 539, the court in considering two irreconcilable clauses in a will, said:

“. . .as the rule is well established that if there be such repugnancy between two clauses of a will that the one or the other must fall, the later clause, being regarded as the last expression of the testatrix, must prevail. ’ ’

In the instant case there are two plain provisions of a will where, without ambiguity or equivocation, testator bequeathed and devised to different parties the same property. The familiar rule is that all provisions of a will should be upheld wherever possible to uphold it, yet where two clauses of a will are repugnant to each other, so that both of them cannot stand, then another rule of construction must be invoked and that is the rule of construction applied to written documents, that the last of two repugnant clauses must prevail as expressing the ultimate intent of the maker of the document.

For the reasons expressed in this opinion the judgment of the circuit court is affirmed.

Judgment affirmed.

Hall, P. J., and Hebel, J., concur.


author: Me. Justice Denis E. Sullivan

text:
    Thomas Davidson, Appellee, v. M. H. Loomis, Appellant.
    Gen. No. 38,324.

      Opinion filed November 20, 1935.
    Baeeett, Baeeett, Costello & Baeeett, of Chicago, for appellant; Chester D. Keen, of Chicago, of counsel.
    V. Bussell Donaghy and Leo G-. Hana, both of Chicago, for appellee.
   Me. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order of the superior court granting a new trial. The cause of action was brought by Thomas Davidson against M. H. Loomis for injuries claimed to have been sustained by the plaintiff when struck by an automobile being operated by the defendant near the corner of Western and Carmen avenues in the City of Chicago on August 27, 1933. A verdict was returned in favor of the defendant and thereafter a motion was filed by the plaintiff asking for a new trial, which after a hearing was granted.

The declaration filed consisted of four counts. The first count alleges, “the negligent operation by the defendant of his automobile, resulting in injury to- the plaintiff while in the exercise of ordinary care for his own safety . . . the second count was withdrawn by counsel for plaintiff on the trial; the third count alleges the “operation of the automobile through a closely built up business district of the City of Chicago at a speed in excess of fifteen miles per hour in violation of the statute”; and the fourth count alleges “negligent operation of the automobile without having given any reasonable warning of its approach and without having used every reasonable precaution to avoid injury to plaintiff, and without stopping said motor vehicle until it could safely proceed, upon approaching a person walking along a public highway contrary to the provisions of the Statute.”

Much evidence was heard on the question of the alleged negligence of the defendant as well as the contributory negligence of the plaintiff. The claimed injuries to plaintiff as a result of the accident consisted of a fracture of his left leg, which resulted in a shortening thereof, and other body bruises and it is alleged the injuries are permanent. On behalf of defendant evidence was heard that the car was operated carefully; that it was not going at excessive speed; that the brakes were in good condition and that the accident was caused by the plaintiff suddenly running in front of the automobile.

The contention of the defendant is that the verdict is not against the manifest weight of the evidence and that no prejudicial evidence was introduced. The contention of the plaintiff is that the verdict was against the manifest weight of the evidence and that the court did admit incompetent and prejudicial evidence.

We will consider the points in reverse order as to whether or not the court admitted incompetent and prejudicial evidence. During the trial, upon cross-examination of plaintiff by counsel for defendant, the following occurred:

“Q. Now, the Travelers Insurance Company paid your hospital and doctor bills, didn’t they?
“A. Yes.
“Q. All of them? A. Yes, they did.
“Q. And you returned to work when? A. I returned to work on the 26th of February, 1935.
“Q. And you have been working every day since?
A. I have, yes, sir.
“Mr. Hana: Just a minute. Step up here, Mr. Costello. What insurance are you talking about, insurance that was carried by the plaintiff or carried by the defendant?
“Mr. Costello: Insurance carried by the plaintiff, the Travelers Insurance Company.
“Mr. Hana: The plaintiff was not carrying insurance for the benefit of the defendant.
“Mr. Costello: I object to this remark.
. “Mr. Hana: May I have a ruling on my objection?
“The Court: You are a little late with your objection. The witness has already answered. Overruled.
“Mr; Hana: Your Honor, I am objecting now because this is the first time that I have discovered that he is talking about insurance that was carried by the plaintiff. I thought he was talking about insurance carried by the defendant. I move the answer be stricken.
“The Court: Overruled.”

It was claimed that the admission of this evidence was error.

In the case of Pittsburg, C. & St. L. Ry. Co. v. Thompson, 56 Ill. 138, which was an action on the case brought by Thompson against the ráilroad company, to recover for damages sustained by plaintiff while a passenger on the road of the defendants, the court in speaking of a situation similar to the one before us, where the plaintiff was insured against accident and was paid by the insurance company on account of the injury said: “If such sum was paid, it was not pro tanto a discharge of the railway company. The primary liability was on this company.”

In Illinois Cent. R. Co. v. Prickett, 210 Ill. 140, the court at page 144, in commenting upon the right of the defendant to have insurance accruing to the widow and next of kin considered in mitigation of plaintiff’s damages, stated:

“It was immaterial whether the widow and next of kin of the deceased engineer had been paid or were entitled to receive any sum of money as beneficiaries in a policy of insurance on the life of the husband and father. Any such mortuary benefit would accrue from a collateral source wholly independent of the appellant company, and would present no ground for an abatement of the pecuniary loss occasioned by the death of the appellee’s intestate to his widow and next of kin. Pittsburg, Cincinnati and St. Louis Railway Co. v. Thompson, 56 Ill. 138; 1 Sutherland on Damages, sec. 158.”

The calling of the attention of the jury to the fact that the plaintiff carried accident insurance and giving the name of the insurance company was prejudicial error. It had no place in the lawsuit. Defendant was not entitled to reduce his damages because of any insurance which the plaintiff might have had and defendant cannot excuse himself now by saying that the jury was not influenced thereby. It may well be that the jury formed the opinion that the hospital bills and doctor’s bills having been paid by the insurance company, the plaintiff sustained no damages for which hwas entitled to recover. As heretofore stated, defendant having brought this prejudicial fact to the attention of the jury and then insisting to the court that he had a right to introduce said evidence, thereby causing the court to commit this error, cannot now be heard to ask that we analyze or estimate how little or how great damage the error caused or say that no damage resulted therefrom. As appears from the abstract, the trial judge realizing that an error had been committed, so serious in its nature that it could easily affect the verdict of the jury, corrected the same by granting the plaintiff a new trial and in this we think he was correct. .

The second point made by the defendant is that the verdict is not, against the manifest weight of the evidence. Inasmuch as this case must be tried again, we refrain from passing upon the evidence or making any comments in relation thereto.

For the reasons herein set forth the order of the superior court granting to the plaintiff a new trial, is hereby affirmed.

Order affirmed.

Hall, P. J., and Hebel, J., concur.