text:
    Paul H. Trimble, administrator of the estate of Trurie Trimble, deceased, appellee, v. Aubrey C. Sturtevant, administrator of the estate of Clayton R. Johnson, deceased, appellant.
    Gen. No. 8,619.
    Opinion filed July 12, 1934.
    Ward, Ward & Scheineman, for appellant. MeOalmont, Ramsay & Little, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Huffman

license: Public Domain

text:
    The People of the State of Illinois, defendant in error, v. Fred C. Albrecht, plaintiff in error.
    Gen. No. 8,799.
    Opinion filed July 12, 1934.
    R. W. Marrow, for plaintiff in error. C. W. Reed, State’s Attorney, for defendant in error; Russell W. Keeney and William E. Hooper, Assistant State’s Attorneys, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Per curiam.

text:
    John Kenney and Sons Contracting Company, Inc., appellee, v. P. A. Whitney, appellant.
    Gen. No. 8,615.
    Opinion filed July 12, 1934.
    MeOalmont, Ramsay & Little, for appellant. No appearance for appellee.
   Per curiam.


author: Mr. Presiding Justice Wolfe

text:
    Walter Rodholm, appellee, v. George O. Ashman, appellant.
    Gen. No. 8,801.
    Opinion filed August 3, 1934.
    Rehearing denied September 11, 1934.
    DeGoy B. Ellis and Paul M. Hamilton, for appellant. A. B. Litow and Charles G. Seidel, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    George Martin, appellee, v. Firemen’s Insurance Company of Newark, New Jersey et al., appellants.
    Gen. No. 8,573.

      Opinion filed August 3, 1934.
    Rehearing denied September 11, 1934.
    Silber, Isaacs, Silber & Woley, for appellants; Herbert W. Hirsh and Norman A. Miller, of counsel. D. R. Anderson, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Hazel Peters, defendant in error, v. Harold Reuter, plaintiff in error.
    Gen. No. 8,751.
    Opinion filed August 3, 1934.
    Henry Kneller and George W. Hunt, for plaintiff in error. John E. Cassidy, for defendant in error.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Herman Lichthardt, appellant, v. Louis A. Backhaus, appellee.
    Gen. No. 8,779.
    Opinion filed August 3, 1934.
    Rehearing denied and additional opinion filed August 23, 1934.
    Thoma, Linden & Hutchinson, for appellant; George W. Thoma, of counsel. Weseott & Brennan, for appellee; L. A. Wescott, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    The First Trust Company of Ottawa, appellee, v. Laura M. Kiner et al., defendants. Laura M. Kiner, appellant.
    Gen. No. 8,604.
    Opinion filed August 3, 1934.
    Arthur H. Shay, for appellant. Duncan & O ’Conor, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    First Trust and Savings Bank of De Kalb, appellee, v. Leone Langford et al., appellants.
    Gen. No. 8,627.
    Opinion filed August 3, 1934.
    Fred B. Shearer and Samuel J. Andalman, for appellants. Poust, Fisk & Moudry, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, auditor of public accounts of the State of Illinois, v. The La Moille State Bank. In re Claim of Edd Bower, appellee, v. William L. O’Connell, appellant.
    Gen. No. 8,813.
    Opinion filed August 3, 1934.
    Paul D. Perona, for appellant. J. L. Spaulding, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    George W. Cummings, appellee, v. City of Waukegan, appellant.
    Gen. No. 8,791.
    Opinion filed August 24, 1934.
    Rehearing denied February 5, 1935.
    William R. Behanna, Corporation Counsel, for appellant; Charles L. Whyte, Jr., of counsel. MeGilvray, Barnes, Vaughan & Tilley, for appellee; Franklin E. Vaughan, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    H. Stanley Antrim, appellee, v. George Dick et al., appellants.
    Gen. No. 8,790.
    Opinion filed August 24, 1934.
    Robert M. Brand, Harry Typer and Henry O. Warner, for appellants. George F. Korf and Seyster & Fearer, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Estelle M. Milne, appellant, v. Charles E. Whitmer et al., appellees.
    Gen. No. 8,768.
    Opinion filed August 24, 1934.
    Opinion modified October 2, 1934.
    North, Gibboney & North, for appellant. Shelby E. Hood, for certain appellees. Frank E. Maynard, for certain other appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Somonauk State Bank et al., appellants, v. Bartel B. Hagen et al., appellees.
    Gen. No. 8,558.
    Opinion filed September 18, 1934.
    Rehearing denied February 5, 1935.
    Robert O. Carr, W. I. Hibbs and M. Dale Morahn, for appellants. Butters & Butters, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    N. E. Cederholmes, plaintiff in error, v. Peoples Trust and Savings Bank, defendant in error.
    Gen. No. 8,770.
    Opinion filed September 18, 1934.
    Burrel Barash, for plaintiff in error; Louis Gard, of counsel. Nelson, Neagle & Gustafson, for defendant in error.'
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Murphy

text:
    Fourth District.
    Margaret H. Williams, appellee, v. The Prudential Insurance Company of America, appellant.
    Opinion filed May 16, 1934.
    Kramer, Campbell, Costello & Wieehert, John C. Roberts and Warnock, Williamson & Burrows, for appellant. Cullen, Fauntleroy & Edwards and M. R. Sullivan, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


author: Mr. Presiding Justice Edwards

text:
    Bettie Davis, appellee, v. East St. Louis and Suburban Railway Company, appellant.
    Opinion filed June 27, 1934.
    Farmer, Klingel & Baltz, for appellant. Preston K. Johnson, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Stone

text:
    Elizabeth Brown, administratrix of the estate of Sylvester Brown, deceased, appellee, v. H. A. Grabbe, trading as H. A. Grabbe Construction Company, appellant.
    Opinion filed July 7, 1934.
    C. C. Ellison, for appellant. No appearance for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    William B. McIlwain, appellee, v. Otto Kloth et al., appellants.

      Opinion filed September 6, 1934.
    Wm. G. Juergens and J. Fred Gilster, for appellants. Wm. H. Schuwerk, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.


text:
    D. W. Bates, appellant, v. Board of Education of Frankfort Community Consolidated School District No. 68 et al., appellees.
    Opinion filed September 6, 1934.
    Layman & Johnson and George E. Dodd, for appellant. Frank E. Trobaugh and W. F. Dillon, for appellees; Stephen E. Brondos, of counsel.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    Violet Ann Lewis, administratrix of the estate of Benjamin F. Lewis, deceased, appellee, v. Illinois Terminal Company, appellant.
    Opinion filed September 6, 1934.
    E. Bentley Hamilton and Terry, Gueltig & Powell, for appellant. Wilbur A. Trares, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Addison J. Throop, Plaintiff in Error.

      Opinion filed September 6, 1934.

      Philip G. Listeman, for plaintiff in error.
    Otto Keener, Attorney General, J. J. Neiger, Assistant Attorney General, and Louis P. Zerweck, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

On April 28, 1933, an indictment was returned into the circuit court of St. Clair county, charging that Addison J. Throop, plaintiff in error, and Arthur O’Leary and Frank McKane, as members of the board of review of said county, together with Charles Melvin, a member of the board of assessors, on July 7, 1932, conspired with each other and with one Edward J. Delmore, for the purpose of doing an illegal act injurious to the public morals, and knowingly solicited and obtained from divers persons and corporations sums of money upon the promise to reduce the assessed valuation of the real estate owned by such persons and corporations. On January 8, 1934, plaintiff in error, attended by his attorney, pleaded guilty to the indictment, and the cause, upon motion of the State’s attorney, was by the court continued until the first of March following, for the purpose of sentence.

On January 27, 1934, plaintiff in error, now represented by different counsel, moved the court to withdraw the plea of guilty, and to enter a plea of not guilty. The motion, which was verified by affidavit of plaintiff in error, set forth that he was not guilty of the charge in the indictment; that he had a valid defense to same; that he entered the plea of guilty because he was fearful, afraid and confused, made so by statements of the State’s attorney, and agreed to by his own counsel, that if he failed to plead guilty to the charge of conspiracy he would be prosecuted for perjury in connection with testimony he had given before the grand jury; that he was not advised that there was no charge of perjury against him, and that no such accusation could be brought against him in connection with the pending indictment; and that he did not understand the nature of the plea.

Later, on March 1, 1934, he filed, under oath, his supplemental suggestions to the motion, in which he averred that among* other defenses which he could interpose to the indictment, was that the conspiracy, if such there was, terminated on and prior to September 29, 1931, and that more than 18 months had elapsed between such date and the return of the indictment. There was a hearing before the court upon the motion, and certain proofs introduced by defendant in error, which will be hereafter discussed. Following the hearing, the court overruled the motion and sentenced plaintiff in error to pay a fine of $2,000 and be imprisoned in the State penitentiary for a term of not less than one nor more than five years, and to pay the costs. To reverse which sentence and judgment, this writ of error has been sued out.

Four reasons are assigned, in the statement of plaintiff in error, why the judgment cannot be sustained, namely: 1st. The trial court did not comply with the statute, in admonishing him of the consequences of the plea of guilty. 2nd. Because the court heard and considered improper evidence and affidavits upon the part of the People, upon the hearing of the motion of plaintiff in error for leave to withdraw the plea of guilty. 3rd. The court erred in denying the motion of plaintiff in error for leave to withdraw the plea of guilty and file in lieu thereof a plea of not guilty. 4th. Because the court did not, before passing sentence, hear evidence in aggravation and mitigation of the offense.

Plaintiff in error has failed to discuss or refer to, in his brief and argument, the second assignment of error. It is the established law of this State, where no argument is presented in support of an assignment of error, the presumption obtains that such assignment has been waived and abandoned, and the court is under no obligation to consider it: International Harvester Co. v. Industrial Board of Illinois, 282 Ill. 489; City of Mt. Carmel v. Howell, 137 Ill. 91. The situation coming squarely within the rule as stated, we will not inquire into the assignment, but will treat it as having been waived.

As to the first ground, claimed as error, the record shows that plaintiff in error was present in open court, in person and represented by counsel; that he was arraigned, furnished with a copy of the indictment and list of jurors and witnesses, and advised of the crime with which he is charged; that “Addison J. Throop pleads guilty. He is admonished of the consequences of such plea by the court, and still persists in pleading guilty.” Plaintiff in error insists that the record must show that the admonition of the court, as to the consequences of the plea of guilty, must precede the entry of the plea, and that it is not sufficient to admonish him as to such consequences, after plea has been entered.

Section 4 of Div. 13 of the Criminal Code, Cahill’s St. ch. 38, ¶ 756, provides: “In cases where the party pleads ‘guilty,’ such plea shall not be entered until the court shall have fully explained to the accused the consequences of entering such plea; after which, if the party persist in pleading ‘guilty,’ such plea shall be received and recorded, and the court shall proceed to render judgment,” etc.

The phrase, “such plea shall not be entered,” etc., as used in the section, has reference to a record to be made of the plea, by the clerk of the court, and not merely to an oral announcement of same by the accused or his attorney. Blatchford v. Newberry, 100 Ill. 484, 489; 20 Corpus Juris, 1266. The very words of the section imply that before the court may admonish as to consequences of the plea of guilty, the accused, personally, or by attorney, shall declare his purpose so to plead; whereupon the court shall fully explain the consequences and effect of the plea, and after which, if he persist in such plea, it shall be entered of record. The phrase, “after which, if the party persist in pleading ‘guilty,’ such plea shall be received and recorded,” presupposes that a plea of guilty must be announced, before the court shall explain the consequences of same; otherwise, how could he persist in such plea, if he had not previously made one. The word “persist” means to continue or persevere in some course of action especially in spite of remonstrance or opposition. 48 Corpus Juris, 1037. Surely, he could not “persist” in pleading guilty unless he had first made such a plea. We think the statute intends that while the accused, in person or by counsel, may declare or state to the court that he pleads guilty, yet no entry of such plea, in the sense that same is made a matter of record, shall be accomplished, until the court shall have duly admonished him as to the consequences of the same, after which, if he persist therein, it shall be received and recorded.

The record affirmatively shows that plaintiff in error was duly arraigned, announced that he pleaded guilty, was admonished by the court as to the consequences of the plea, after which he persisted in pleading guilty. Where such is true, it is a sufficient compliance with the statute. People v. Harney, 276 Ill. 236; People v. Walker, 250 Ill. 427; People v. Pennington, 267 Ill. 45; People v. Conrad, 299 Ill. 473.

Thirdly, it is contended that the court erred in overruling the motion asking for leave to withdraw the plea of guilty, and enter in lieu of same a plea of not guilty. The grounds argued in support of such assignment are that plaintiff in error pleaded guilty, not understanding the nature or the consequences of such plea, and that he did so because he was confused and fearful, in consequence of the representations of the State’s attorney and his own counsel that he would be guilty of perjury, and would be charged with such crime, if he pleaded not guilty to the indictment for conspiracy. Also, that the People failed to answer the ground of defense set forth in the supplemental suggestions, that the conspiracy charged, if it ever existed, had terminated over 18 months prior to the finding of the indictment.

The hearing was upon the verified motion and supplemental suggestions, on the part of plaintiff in error; while on behalf of the People there was introduced a statement of plaintiff in error, under oath, relative to the facts of the offense charged, which was as complete in detail as it was astounding in character, and which clearly showed plaintiff in error to be guilty. Also, affidavits of others that plaintiff in error had admitted his guilt and expressed his willingness and desire to plead guilty. These were supplemented by affidavits of the State’s attorney, and the counsel for the accused, to the effect that no threats were made to him to induce such statements, nor that he was told that he would be prosecuted for perjury unless he pleaded guilty.

As we have seen, the record showed that plaintiff in error had had explained to him, and understood, the nature of the plea of guilty and its consequences. The preponderance of the evidence submitted upon the proposition as to whether plaintiff in error was told that unless he pleaded guilty to conspiracy, he would be prosecuted for perjury, was that no such statements were made to him.

As to whether there was proof that the last act in furtherance of the alleged conspiracy, occurred within the period of limitation, it appears from the statement of plaintiff in error that in November, 1931, he talked with Delmore and asked for money received as a result of the conspiracy. This was an act in pursuance of, and in furtherance of, the alleged conspiracy, and was within 18 months of the return of the indictment. Plaintiff in error, though present, did not deny or qualify the statement, either by affidavit or by oral testimony; hence the court was justified in believing it to be the truth. The statute of limitations runs only from the date of the last overt act in furtherance of the common design. People v. Drury, 335 Ill. 539; People v. Walsh, 322 Ill. 195. We think the court was warranted in holding that the proof showed an act, in furtherance of the alleged conspiracy, occurred within 18 months of the finding of the indictment, and that the statute of limitations, upon the showing as made, would not have been a defense to the charge of conspiracy.

Whether pleas of guilty will be permitted to be withdrawn rests largely in the discretion of the trial court, and should always be granted where it will best serve the ends of justice. When, however, it is made to appear that an accused person has understandingly pleaded guilty, freely and of his own volition, not being surprised nor subjected to outside influence, and that justice, will not be promoted by granting such leave, the court may properly overrule such motion. We think that upon the showing made, the court was justified in denying leave. People v. Stamatides, 297 Ill. 582.

Lastly, it is urged that the court was guilty of error in not hearing evidence in aggravation and mitigation of the offense before pronouncing sentence. Said section 4, Div. 13 of the Criminal Code, Cahill’s St. ch. 38, ¶ 756, requires, “in all cases where the court possesses any discretion as to the extent of the punishment, it shall be the duty of the court to examine witnesses as to the aggravation and mitigation of the offense.”

In People v. Pennington, 267 Ill. 45, in construing such section, the court stated the rule which governs to be that the provisions of the section are mandatory, and it is requisite that the court make such an examination when requested or desired either on the part of the People or the accused; that it is a privilege which may be waived by the parties, and the information supplied to the court in some other way, and that the failure or refusal of the court to perform its duty in such behalf, or, if it should be contended that the sentence was more severe than warranted, such matters must be presented for review by bill of exceptions, as every reasonable intendment not negatived by the record will be indulged in support of the judgment; and further, that it is not necessary that the record show affirmatively that the court heard witnesses in aggravation and mitigation of the offense. To the same effect are People v. Gerke, 332 Ill. 583; People v. Popescue, 345 Ill. 142, 155.

Here the record showed that after denying the motion for leave to withdraw the plea of guilty, the court asked plaintiff in error if he had aught to say why sentence should not be pronounced, and to which he answered “no.” He did not, though it is manifest he had full opportunity therefor, by himself or through counsel, — though both were present — ask leave to offer evidence in mitigation of the offense. This was a privilege of which he might avail himself, or which he might waive, as he preferred. People v. Pennington, supra. There is nothing in the bill of exceptions showing that he claimed the privilege, and that the court denied him the right to make such proof. Hence it will be presumed that he made no such claim,—People v. Popescue, supra, and the failure to claim such right amounts to a waiver of same. People v. Crooks, 326 Ill. 266, 273.

The court had before it the evidence heard upon the motion for leave to withdraw the plea of guilty, which was sufficient to advise the court as to the circumstances and character of the crime. Manifestly, both the accused and the People were content to have the court pronounce sentence with the knowledge gained from the evidence submitted upon such hearing, as it does not appear from the bill of exceptions that either asked the privilege of presenting any other proofs or calling any witnesses as to circumstances of aggravation and mitigatiorE.

The record not showing that the court failed in its duty in this regard, it will be presumed that the accused made no request for such hearing, but on the contrary waived same. People v. Gerke, supra; People v. Ellsworth, 261 Ill. 275.

We find no reversible error in the record, and the judgment will be affirmed.

Judgment affirmed.


text:
    Johnston City State Bank of Johnston City, Appellee, v. J. R. Sowell et al., Defendants. Dora G. Peterson, Appellant.

      Opinion filed September 6, 1934.
    George W. Pillow, G. Glenn Pillow and David A. Warford, for appellant.
    Denison & Spiller, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

In 1917, J. R. Sowell and Susie Sowell, his wife, became the owners, as tenants in common in equal parts, of a brick dwelling house and lot in Johnston City, which they afterwards occupied as their home. Appellant, Dora G. Peterson, and Lon Peterson, her husband, parents of Susie Sowell, resided in Florida, but would spend the summer months at the Sowell home, where they had a room fitted for their occupancy.

On July 18, 1930, the Sowells borrowed from appellee, Johnston City State Bank, the sum of $2,980, for which they gave their joint judgment note, due on demand. Appellee, at various times thereafter, requested payment of this obligation, which, however, was permitted to run along until the spring of 1932, when appellee began to insist upon its satisfaction, and was informed by Sowell that he would fix it up. On June 30, 1932, Wm. Huck, the cashier of appellee, called Sowell to the bank, demanded that the debt be taken care of, and Sowell replied: “It’s been worrying me; I’ve got to do something about it; we want to fix it up some way.”

The very next day the Sowells conveyed the property to appellant, Dora G. Peterson, for a stated consideration of $10 and other valuable considerations. The deed was filed for record on the same day, and the following day the fact of its execution and recording was accidentally discovered by Huck. On July 5, 1932, the note was placed in judgment by confession; execution was issued and returned unsatisfied. On July 28, 1932, this suit was instituted to set aside the deed as in fraud of appellee’s rights, and as an obstruction to the levy of execution on said judgment.

It appears, at the time the note was executed, that the house and lot were worth $5,000, and that the loan was made upon the faith that the Sowells owned the property unincumbered. The place had depreciated in value, and on July 1, 1932, was worth only about $2,500. The conveyance on the last mentioned date left the Sowells insolvent and with no property except some chattels of little value. They continued to occupy the dwelling the same as they previously had done, without payment of rent, while the Petersons followed their custom of occupying a single room therein during the summer months.

Appellee’s position is that the transfer was voluntary and without consideration, for the purpose of placing the property beyond the reach of the Sowells’ creditors; while appellant contends that it was in satisfaction of a debt which Rowell owed her, growing out of the fact that in 1925 she paid a debt at appellee’s, evidenced by a note of something over $4,000, signed by J. R. Sowell, and with Mrs. Peterson’s husband as surety thereon.

The cause was referred to the master in chancery, who took the proofs and reported in favor of appellee. The chancellor overruled appellant’s exceptions to the report, and rendered a decree setting the deed aside as fraudulent, from which appellant has perfected this appeal.

After closing the proofs before the master, and prior to the rendition of his report, appellant moved to open the case and for leave to introduce newly discovered evidence, to the effect that prior to July 18, 1930, Sowell owed appellee divers notes, none of which was signed by his wife, and that the note of said date was made and taken by the bank in place of such several prior notes of Sowell; that Mrs. Sowell received no consideration for signing such note, and was not indebted to appellee prior to July 18, 1930; further, that appellant had no knowledge of such facts until after the hearing before the master. The motion was overruled.

The bill of complaint charged that Mr. and Mrs. Sowell executed the note in question, and that it evidenced a valid indebtedness. Appellant, living with Mrs. Sowell at the time suit was started, and both being defendants to the cause, was necessarily thrown into close association with her daughter, who testified for her on the hearing, and she should, and could, have ascertained from the latter all the facts incident to the execution of said note, and the consideration therefor. The motion did not disclose any reason why she failed to do this, nor did it show any diligence on her part to be advised as to such facts. The motion was properly overruled.

Decision largely turns upon the nature and effect of the payment of the note of Sowell and Lon Peterson in 1925. Appellant testified that it was discharged by the payment of money which she had derived from the sale of some property which she had owned in Florida, and that her husband, with her authority and acting for her, made the payment.

The proof on the part of appellee,—both the oral testimony of its agent, and the bank records,—shows that on September 9, 1925, Lon Peterson came to the bank, said that he had sold some property in Florida, had the money to discharge the debt, and desired to do so; that the interest was computed, and Peterson gave his personal check, upon a bank in Miami, for the full amount, whereupon the note was surrendered to him. He stated that it was retained by them, and later lost in the Florida hurricane of 1926.

Peterson, upon the stand, testified that he paid the note August 15, 1925, with his wife’s money, that she had received from the sale of property in Florida; that he made a record of the transaction, which he had in a book at home. He, however, did not produce the book. It is significant that he admitted he told the cashier he had come in to pay the note himself, and also that he did not deny that he had said he had sold some Florida property and had the money wherewith to pay the debt. This justifies the belief that he, in fact, made such statement, and at variance with his testimony in the case.

It further appears that even if this created the relation of debtor and creditor between Sowell and appellant, she did not ask him for a note or any written memorandum of the debt, nor that he ever paid her interest thereon, though nearly seven years passed between September 9, 1925, when it was paid, and July 1, 1932, when the deed in question was executed.

Bert Peterson, son of appellant, stated that Sowell, several years before, said that he would like to have the payment for some work he was doing for appellant, applied upon the debt; that in December, 1931, he expressed a willingness to deed the property in issue to appellant in satisfaction thereof; that the witness communicated with appellant in January, 1932, and advised Sowell that she was willing to receive the deed in payment of the indebtedness; and that Sowell then stated there was no hurry, and he would wait until his wife returned from Florida, in order that she might join in the instrument.

It appears that nothing further was done until July 1, 1932, when the deed was executed and recorded. Sowell testified that he did not know where appellant was when the deed was drawn. It seems strange that with a transaction of such importance, he could not recall the presence of the grantee, if such were the fact, and from it may be reasonably inferred that the deed was hurriedly drawn, following the demand of appellee for payment of its debt, without the presence or knowledge of appellant.

Mrs. Sowell testified that the conveyance was made because her mother wanted a settlement. She did not, however, explain why or how appellant allowed the matter to run for seven years, with no written evidence of indebtedness, and no demand by her for payment, until appellee began to insist that the Sowells’ debt to it be discharged. Nor did she explain how she came to deed away her undivided one-half interest in the property, when she was not indebted to her mother. This would indicate that the deed of her interest, made without any consideration, — a purely voluntary conveyance, — was prompted by a desire to place her interest in the property where the bank could not subject it to satisfaction of the debt which she, with her husband, owed to it.

The conveyance, so far as .the interest of Mrs. Sowell was concerned, was voluntary, and founded upon no consideration. As a result thereof, though she was indebted to appellee, she was rendered insolvent. Wher.e this is true, the grantor has the burden of disproving the implication of fraud, as against pre-existing creditors, which the law raises, from the fact of making such conveyance. Dillman v. Nadelhoffer, 162 Ill. 625; Moritz v. Hoffman, 35 Ill. 553. There is nothing in the record to dispel or overcome such implication of fraud upon the part of Mrs. Sowell.

While relationship of the parties to such a transaction is not, of itself, a controlling fact, it is one which may excite suspicion, and is one to be taken into account in connection with all the other circumstances in the case, bearing upon the question of fraud. American Hoist & Derrick Co. v. Hall, 208 Ill. 597, 601; Rindskoph, Stern, Lauer & Co. v. Kuder, 145 Ill. 607.

No memorandum of the debt, from Sowell to appellant, if one existed, had ever been prepared, though seven years had elapsed; no interest had been demanded or paid, and no effort whatever had been made to collect same. This is not the method usually employed in business where a valid and subsisting debt is in existence. Frank v. King, 121 Ill. 250, 254. It is a circumstance which casts suspicion upon the good faith of a conveyance, not made until another creditor has indicated his purpose of collecting his debt from the grantor.

The foregoing enumerated circumstances, coupled with the further facts that Mrs. Sowell, under no legal obligation to, and not indebted to appellant in any way, was willing to, and did, make her a gift of her undivided one-half interest in the property, which left Mrs. Sowell, though indebted to appellee, insolvent; the unsatisfactory character of the testimony of Lon Peterson as to the payment of the note, made in September, 1925; the celerity with which the Sowells, on July 1, 1932, executed the deed in question, after hearing but the day before that appellee was about to seek enforcement of its demand against them; the uncertainty of whether the grantee was present or knew of its execution, as evidenced by' the testimony of Sowell, and the close and intimate relationship of the parties, justified the master in finding, and the chancellor in decreeing, that the deed was made for the purpose of placing the property where it could not be subjected to the payment of appellee’s claim, and, as a consequence, was fraudulent.

Decree affirmed.


text:
    Albert Jones, Appellee, v. Stoneware Pipe Company, Appellant.

      Opinion filed September 6, 1934.

      Green & Verlie, for appellant; Karl King Hoagland, of counsel.
    Wm. P. Boynton, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

About the year 1884, plaintiff, who is appellee, became employed by defendant, the appellant herein, the latter being engaged in the manufacture and sale of vitrified tile and pipe.

About 1893, plaintiff, while so employed, sustained an injury resulting in the loss of one hand just above the wrist. Later, on December 24, 1895, the parties entered into a written contract, by the terms of which it was provided that in consideration of the release by plaintiff of any claim for damages which he had, or might have, against defendant because of such injury, the latter would give him continuous employment so long as he desired it and was able to properly perform the duties thereof, at the rate of not less than $2.50 per day of 10 hours each, same to be paid for the time plaintiff should be actually employed as heretofore, plaintiff to perform his duties in a good and proper manner, and to be at all times sober and industrious; to hold his employment so long as he desired and was able to perform his proper duties; defendant not to have any right to discharge him, or dispense with his services, except as above stated.

Then followed a provision that if, during the first 10 years after the execution of the contract, defendant should become insolvent, make an assignment for the benefit of creditors, or shut down the plant for an indefinite term, the plaintiff should be entitled to the sum of $450 per year for each then unexpired year of such 10-year term; after which time plaintiff should only have the right of continuous employment at the rate of $2.50 per day.

Plaintiff thereupon re-entered the employ of defendant, and so continued until 1931, when, because of the general industrial depression, defendant ceased its production of tile and pipe, and only continued selling same, both the stock which it had on hand, of a considerable quantity, and some 20 cars of pipe, of the size of 6 inches or less, which it purchased from competitors for resale to its customers. It laid off all its employees, including plaintiff, with the exception of a bookkeeper, a stableman and two watchmen, whose duties will be hereafter discussed.

Plaintiff brought suit upon the contract to recover for 116 weeks’ services, at $2.50 per day. There was a verdict in his favor and judgment for $1,740, from which defendant has appealed.

Four principal grounds are assigned by defendant for a reversal of the judgment, the fourth one of which is that plaintiff was under obligation of seeking other employment in order to mitigate the damages against the defendant, and that the record shows he made no effort to find employment elsewhere. This is true. However, the law is that what plaintiff might have earned by working for others, could have been claimed by defendant, only as a set-off, and the burden of proving what he earned, or might have earned, is upon the defendant, as held by this court in School Directors v. Orr, 88 Ill. App. 648; School District No. 4 v. Stilley, 36 Ill. App. 133; Brown v. Board of Education, 29 Ill. App. 572; School Directors v. Crews, 23 Ill. App. 367; as ruled by the Appellate Court for the First District in Fisher v. Massillon Iron & Steel Co., 209 Ill. App. 616; and as decided in Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802. There is nothing to this contention.

It is also urged, secondly, that under this particular contract, the parties did not contemplate that the plaintiff should have any rights in the event of a general shut-down, after the expiration of 10 years following the execution of the agreement. We do not think this is available to defendant as a ground of reversal, upon the record as made in this case.

The trial court, at the instance of defendant, gave the only instruction which it tendered, and which, in substance, was that if the jury believed the defendant’s plant was shut down for an indefinite period, by reason of outside causes, and not for the purpose of making necessary repairs, and remained closed due to such outside causes, and that since the date of closing defendant had no work which plaintiff was able to perform, then the jury should find for the defendant.

It will be observed that the instruction required the jury to find that since the date of closing, defendant had no work which plaintiff was able to perform, in order to absolve defendant from liability, which of course means that if it had such work, then defendant was bound to give it to the plaintiff. The instruction was therefore inconsistent with defendant’s second contention, for which reason it is not available as a defense upon review, as a party cannot, upon appeal, seek to avoid liability upon a theory inconsistent with instructions which such party caused to be given upon the trial; as decided in Shields v. J. H. Dole Co., 168 Ill. App. 362.

There is another reason why the contention is not timely. A theory of defense, to be interposed upon appeal, must first be embodied in instructions which the party tenders in the trial court, otherwise it is not available. Mystic Workers of the World v. Troutman, 113 Ill. App. 84. No such theory was presented by defendant’s instruction. For these reasons, in our opinion, the defendant is precluded from urging such defense, upon review.

The contract in question was based upon the release, by plaintiff, of his claim for damages, hence was grounded upon a valid and sufficient consideration. Such a contract for employment, so long as the employee desires it, and is able to perform the proper duties, as provided by the instant contract, is one in the nature of permanent employment.

Defendant insists that the rule of law governing in such cases is that the employer is only required to furnish employment so long as he has work which the employee is willing and able to perform. With this contention we are in accord. The rule, as claimed, is supported by reason and common sense, and is sustained by the weight of authority. Carnig v. Carr, 167 Mass. 544, 46 N. E. 117; Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802; Jackson v. Illinois Cent. R. Co., 76 Miss. 607, 24 So. 874; Rape v. Mobile & Ohio R. Co., 136 Miss. 38, 100 So. 585; Perry v. New England Casualty Co., 78 N. H. 346, 100 Atl. 605.

Defendant further urges that such being the rule, there was no evidence proving that during the time in question defendant had work which the plaintiff could perform.

A consideration of this contention requires an analysis of the proof. Plaintiff testified that after he returned to work, following the execution of the contract, he worked in a supervisory capacity in the production of pipe, stating: “I worked all over the plant; made pipes, junctions and fittings; sometimes I worked in the kilns where they burn the tile, and when they were short of men, I would go in and help them out all I could. I sometimes helped to load cars.” He further testified: “In the past 20 years I have sometimes assisted in loading and unloading pipe. I could handle up to the ten inch tile alone. I think I could have unloaded the tile which they had been shipping in there to supply their customers.” None of this testimony is disputed, and from which it appears that while plaintiff’s service was largely supervisory in its nature, it was, in addition, one of general utility, performing, as occasion required, any work incident to the operation of the plant which he was able to do.

The concern did not shut down completely. It ceased production, but still continued its sales service, disposing of the large stock which it had on hand when production terminated, and in addition purchased from competitors some 20 cars of tile, practically all of the size of 6 inches or less, which it resold to its customers. For the maintenance and limited operation of its plant during such time, and for such services, it employed four men, — a bookkeeper, a stableman who cared for the horses and mules and did other work about the yards, and two watchmen who were charged with keeping out trespassers, preventing fires by means of the use of small extinguishers, to be inverted and held in one hand while the hose attached thereto should be operated by the other, and in addition they were required to help unload the tile which was shipped in, pile same in the yard and assist in loading when a sale was made.

That all of these were employments incident to the limited operation of the plant, and were of the character that plaintiff could have been required by the defendant to perform if he were able to do so, seems clear; hence the converse is necessarily true, that plaintiff, under his contract, would have been entitled to discharge such duties, if he desired, and had the ability necessary therefor.

The contract provided that plaintiff should retain his position with defendant “so long as such employment is desired by him and he is able to perform his proper duties.” The declaration alleges that plaintiff was able to properly perform such services, proof of which was an integral and essential part of plaintiff’s case, and he had the burden of establishing same by the greater weight of the evidence. 39 Corpus Juris, p. 101, sec. 119.

Whether plaintiff had the ability to perforin any of the duties thus required, during such period, was a question of fact. There is no evidence tending tp show that he could, or could not, have cared for the horses and mules under the circumstances; nor whether, at his age and condition of health, he could have evicted a trespasser from the premises. Neither does it appear that he could, or could not, with the stump of his arm, have grasped the fire extinguisher and held it while he operated the hose with his one hand. There is therefore no basis in the evidence for a recovery predicated upon such services.

As to the work of loading and unloading tile, the situation is different. Plaintiff testified, and is not contradicted, that he could have done so; in fact had done so in the past. The proof shows there were two methods of unloading, one by skidding the tile down a chute, and the other by running wheelbarrows into the car, loading with tile and then running the barrows to the ground, where the tile was placed in piles. During the period in question, the latter method was used. However, if the plaintiff could unload by either described method, as he testified he had theretofore done, and same was a reasonable way of performing the work, we think he had the right of such services. Whether such was the case, was a question of fact, and the jury’s finding thereon we would not be warranted in disturbing. However, there is no proof of how many days or hours were required to unload the 20 cars of tile. Obviously it did not take 116 weeks, the period of time for which the jury allowed plaintiff $1,740, or $2.50 per day for each day of such time.

It is thus manifest that the jury’s award, upon the record as made, was not warranted by the proof, for which reason the judgment is reversed, and the cause is remanded.

jReversed and remanded.


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    Marvel Golliday, Respondent, v. City of Alton, Petitioner.
    Opinion filed September 6, 1934.
    Wm. P. Boynton, for petitioner.
    Karl King Hoagland, for respondent.
   Mr. Justice Murphy

delivered the opinion of the court.

Marvel Golliday, hereinafter referred to as appellee, filed her suit in the city court of Alton against the City of Alton, hereinafter referred to as appellant, to recover damages for personal injuries.

The case was tried in November, 1933, resulting in a verdict for appellee in the sum of $79. Upon the return of the verdict, appellee filed her written motion for a new trial. It was argued before the court and taken under advisement until February 7, when an order was entered setting aside the verdict and granting a new trial. After the lapse of more than 30 days from the entry of the order and on March 27, appellant filed its petition in this court asking leave to appeal from the order granting the new trial.

Appellee has filed a motion to dismiss appellant’s petition and in support thereof urges two grounds, viz., First. This cause of action accrued in 1932; suit was filed in 1933; a trial was had, verdict returned and motion for new trial was made prior to January 1, 1934, the date the Civil Practice Act, Cahill’s St. ch. 110, ¶ 129 et seq., went into effect. Secondly, the petition for leave to appeal was not filed within 30 days from the date the order granting a new trial was entered.

By section 77 of the Civil Practice Act, Cahill’s St. ch. 110, ¶ 205, an order granting a new trial is, under the conditions therein set forth, made an appealable order.

The Supreme Court pursuant to the provisions of said Act did on December 22,1933, adopt certain rules of procedure of which Rule 1, 355 Ill. 13, provides that “All provisions of the Civil. Practice Act with respect to review in civil proceedings by the Supreme or Appellate Courts shall apply to orders, determinations, decisions, judgments or decrees entered by trial courts on or after January 1, 1934.”

It will be observed that by this rule, the application of the Civil Practice Act to appealable orders is fixed by the date on which the order appealed from is entered. The date of filing the suit, the return of the verdict or the making of the motion for a new trial have no bearing on the question.

The order granting a new trial, entered February 7, 1934, was an appealable order under the Civil Practice Act and Rule 1 of the Supreme Court and reviewable in this court, if appellant had complied with the act and rules of the Supreme Court in reference to making-application for leave to appeal.

The Civil Practice Act does not give an absolute right of appeal from an order granting a new trial. By section 77, which regulates the matter of appeal from such an order, it is provided that no appeal may be taken in such a case except on leave granted by the reviewing court, or by a judge thereof in vacation. The further restriction in said section upon the right of appeal is that leave to appeal can only be granted by the reviewing court or a judge thereof in vacation within 30 days from the date after the entry of the order. By the second paragraph of Rule 30, 355 Ill. 30, the Supreme Court has made provision whereby the reviewing court or any judge thereof in vacation may extend the time for filing transcript of record, abstract and for granting leave to appeal but under said rule such extension cannot be granted except upon notice, and motion made in the reviewing court within 30 days after the entry of the order granting the new trial.

In our opinion the right of appeal from an order granting a new trial is controlled by section 77 and Rule 30 and the other sections of the act in reference to the time for perfecting appeals generally and Rule 29 of the Supreme Court which provides that petitions for leave to appeal shall be filed within one year after the entry of the order have no application to an appeal from an order granting a new trial.

Appellant did not file motion for extension of time and did not present his petition for leave to appeal within 30 days after the entry of the order.

The right to have a case reviewed on appeal was unknown at the common law and exists only by virtue of statutory enactment. Anderson v. Steger, 173 Ill. 112; Ziegler v. Gilliatt, 263 Ill. 587. The right of appeal is conferred by statute and is not a constitutional right. Union Drainage Dist. No. 6 v. Dupuis-Granger Drainage Dist. No. 11, 313 Ill. 37; Drainage Com’rs of Town of Niles v. Harms, 238 Ill. 414.

The legislature in making provision for this right of appeal had the right to prescribe the terms upon which it could be taken and the time within which application for leave to appeal should be made and a party who wishes to avail, himself of such right must conform to the terms prescribed-by statute and rules of court adopted pursuant to such statute. Coal Belt Electric Ry. Co. v. Kays, 207 Ill. 632; Conklin v. Tobey, 224 Ill. App. 142; Berkel v. Schmitt, 244 Ill. App. 437.

For the reasons assigned, appellant’s petition for leave to appeal will be dismissed.

Petition dismissed.


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    C. C. McMahel, Appellee, v. Jacob T. Smith, Appellant.

      Opinion filed September 6, 1934.
    M. J. White, for appellant.
    Frank Fornoef, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Appellee brought an action in debt in the circuit court of Wabash county against appellant to recover the statutory penalty of one-third the value of personal property alleged to have been sold by appellant under a chattel mortgage in which appellee was mortgagor and appellant mortgagee, the basis of the action being the alleged failure of appellant, as mortgagee, to comply with the provisions of section 2, Cahill’s 1933 Statutes, ch. 95, ¶ 28.

This case was before this court at a previous term and reversed and remanded on questions of pleading. 258 Ill. App. 53.

The case went to trial upon the second and third counts, referred to in the former opinion, and the general issue. At the close of all the evidence, on motion of appellee, the court directed the jury to return a verdict for one-third the value of the property as they found such value from the evidence. The verdict was for $1,333.33, judgment was entered on the verdict and this appeal followed.

Appellant’s grounds for reversal are that the court erred in directing a verdict for the reason that there was a controverted question of fact for the jury as to whether appellant’s taking possession of the property and making a sale thereof was a foreclosure under the powers contained in the mortgage, and that certain statements made by appellee to appellant at the time of the surrender of the property to appellant constituted a waiver by appellee of all rights given him, as mortgagor, including the right to have notice and report as provided by said paragraph 28. Appellant admits that he did not give notice or make report in accordance with said section.

The property described in the mortgage consisted of equipment used in the operation of a bakery. The mortgage contained the following covenants, “said mortgagor to keep said property insured for benefit of mortgagee” and provided that “until default in the performance of said conditions said mortgagor may retain possession of said goods and chattels, but if such default be made, or said mortgagee, or assigns, with or without apparent cause, feel insecure then said mortgagee may without suit take possession of said goods and chattels, wherever found, and sell the same at public auction or private sale, retain the amount of said note and all expenses, and pay the surplus to said mortgagor. ’ ’

Appellee breached the mortgage by his failure to keep the property insured. On January 25, 1929, appellant, accompanied by the sheriff, went to appellee’s shop and appellant then told appellee that he had come to take possession. Appellant’s testimony is that appellee then said to him, “What’s the matter with you that you are getting after that? — I don’t understand,” to which appellant replied, “I can’t help it. I mean what I am telling you. ’ ’ Nothing further was said, and by agreement they were to meet later that same evening. Appellant returned about 7 p. m. with a Mr. Beck. Appellee testifies that appellant then said, “I have brought Mr. Beck in here to watch things tonight.” Appellant’s version of this conversation is as follows: “He (appellee) said, ‘What do you mean by this anyhow?’ I said, ‘I mean just what I told you. I have to do this. I can’t put up with this any longer.’ He said, ‘Well, if you hadn’t been so easy on me, I might have paid you. I will just turn this over to you and you may do what you please with it.’ He then turned around. Mr. Beck and I walked to back part. Mr. Beck stayed there and I went home.”

The following.morning a Mr. Ballard came to the shop and demanded the keys. Appellee refused and told Ballard that Smith was the only one he would deliver the keys to. Ballard left and in a few minutes returned accompanied by appellant. Appellee’s version of the conversation that then followed, is: “Are you (appellant) taking over this equipment in complianee with the terms of the chattel mortgage ? He said, ‘Yes.’ I said, ‘Well, I guess I will have to give you the key.’ I shoved it over the counter to him and he shoved it to the other man.” Appellant’s testimony is, “ When I went up there the next day McMahel said to me, ‘Did you sell this to Ballard?’ I said, ‘He will be in charge from now on,’ so he turned the keys over to him and I walked out. He did not inquire of me if I had taken the property under the terms of the chattel mortgage. He said nothing to me about it.”

We have quoted at length all the evidence as to what was said in all the conversations. In considering the error assigned it will be necessary to look at the evidence in its most favorable light to appellant and to grant him all reasonable inferences that can be drawn therefrom. Walldren Express & Van Co. v. Krug, 291 Ill. 472; American Art Works v. Chicago Picture Frame Works, 264 Ill. 610; Vail v. Graham, 259 Ill. App. 172.

There can be no recovery under said paragraph 28 unless there has been a sale under a power contained in the mortgage, and the burden of proving such fact rested upon appellee. McMahel v. Smith, 258 Ill. App. 53.

The first step necessary for appellant to take to foreclose his mortgage was to obtain possession, and the uncontradicted evidence is that he went to appellee’s shop for that purpose. He was then exercising his rights under the mortgage. On cross-examination he said, “The only right I had to this property was the fact that I had a chattel mortgage on it. I went up there with the sheriff to take possession under my chattel mortgage.”

It is uncontradicted that on the first visit of the afternoon appellant made a demand for possession of the property, and when he returned in the evening he brought with him Mr. Beck who was, as he says, to watch the property. The length of time Beck was there, or what he did in reference to assuming custody of the property, is not disclosed by the evidence. The evidence shows that on the following morning appellee was in possession and still retained the keys to the room where the property was located. When appellant, in the presence of Ballard, made demand for the keys he testifies that appellee asked him if the property had been sold to Ballard, and he replied, “He will be in charge from now on.” By this answer appellant did not answer appellee’s question as to whether there had been a sale to Ballard. Under the answer it was reasonable for appellee to assume that there had not been a sale, but merely a taking of possession pursuant to the negotiations of the preceding day.

From these facts we' conclude that when appellee finally surrendered possession, the act which he said he would do the evening before, he did not have knowledge of the fact that appellant had then sold the property to Ballard, and without knowledge of such fact there could not be a waiver by appellee.

The evidence does not disclose that there was any conversation relative to the amount remaining due on the notes, or as to what credit appellee would receive from the property. The notes were not surrendered, but retained by appellant and destroyed by his attorney when the case was on trial at a previous hearing. A waiver is the relinquishment of a known right, and there must be both knowledge of the existence of the right, and an intention to relinquish it. Perin v. Parker, 126 Ill. 201; First Lutheran Church of Pontiac v. Rooks Creek Evangelical Lutheran Church, 316 Ill. 196. In Ferrero v. National Council of Knights & Ladies of Security, 309 Ill. 476, the court said: “To constitute a waiver it is essential that there is an existing right, benefit or advantage, knowledge, actual or constructive, of its existence, and an intention to relinquish it, and the burden of proof is upon the party claiming a waiver to prove that the, one charged to have waived the. right knew of the fact that entitled him to the right, and the facts upon which he relies for such waiver.” We find that appellant has not proved, by the evidence in this case, that the appellee knew the facts of the sale to Ballard, and, not knowing such facts, his statements would not amount to a waiver.

The motion to direct a verdict for appellee did not, as to the matter of a waiver, raise any question for a jury. Whether certain facts had been proved, or not, must be ascertained by the jury, but whether or not they amount to a waiver, when proved, the court must decide. Winnesheik Ins. Co. v. Schueller, 60 Ill. 465. Appellee’s motion for a directed verdict admitted, as true, the facts relied upon by appellant as constituting a waiver, and it therefore became a matter of law to be determined by the court. Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179.

The court did not err in holding, as. a matter of law, that there was no waiver, and since appellant admits that the steps he took towards acquiring possession of the property were under and pursuant to his' rights under the mortgage it must be assumed that he rilade a private sale to Ballard, pursuant to the power given by the mortgage. There was no error in the granting of appellee’s motion for a directed verdict, and the judgment of the circuit court is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Stowe

text:
    Marie Schornick, Appellee, v. The Prudential Insurance Company of America, Appellant.

      Opinion filed September 6, 1934.
    Kramer, Campbell, Costello & Wiechert, for appellant.
    Beasley & Zulley, for appellee.
   Mr. Justice Stowe

delivered the opinion of the court.

This is an appeal from the city court of Bast St. Louis, wherein appellee recovered judgment against appellant in the sum of $780.15. The suit was brought on three insurance policies on the life of George Schornick, appellee’s son. The first policy was Company No. 11102567 and was for the sum of $188; the second policy was Company No. 32892384 and was for the sum of $148; the third policy was Company No. 34057536 and was for $222.

Bach policy provided for the payment to deceased’s executors or administrators unless payment was made under the facility of payment clause. By virtue of its circular which is in evidence as plaintiff’s Exhibit D, appellant bound itself to pay, in addition to any other sums due under the policies, accidental death benefits equal to the face amount of the policies upon receipt of due proof that the insured had sustained bodily injury, solely through external, violent and accidental means.

On proofs of death being furnished appellant paid to appellee the sum of $743.96 under the facility of payment clause in the policies. This suit arises out of the claims for payment on account of accidental death of deceased pursuant to said Exhibit D.

On December 6, 1932, deceased came home about 2 o’clock in the afternoon with a rabbit. He cleaned it, fried it and ate a portion of it. Later in the evening’ he ate the balance. Prior to this time, deceased was strong and healthy.

That night deceased took sick and remained sick until December 8th when a doctor was called. The doctor found that deceased was bloated over the abdomen; his pulse was very high, he had high fever, diarrhea and was vomiting dark blood. The doctor treated deceased until he died. He determined that deceased died from the effects of eating spoiled or poisoned rabbit meat.

Another doctor examined deceased on December 11th. He testified that deceased was at that time dying with terminal pneumonia, that both lungs were affected and he could not determine whether or not there was any evidence of ptomaine poisoning.

Appellant offered no evidence in the case and at the close of appellee’s evidence, the court on motion of appellee peremptorily instructed the jury to find the issues for appellee and to assess, her damages at $780.15. Such a verdict was returned and judgment was entered thereon after the overruling of a motion for a new trial.

Appellant brings the case here, under the Civil Practice Act, Cahill’s St. ch. 110, ¶ 129 et seq.

It is urged by appellee that this appeal should be dismissed because appellant’s counsel did not comply with the provisions of the Civil Practice Act in perfecting said appeal; that they failed to give notice of appeal within five days after filing notice of appeal with the clerk; that they did not within five days make proof of service of notice and that they did not comply with the notice feature of the act in regard to filing their appeal bond. On the way to the clerk’s office to file their notice of appeal, counsel for appellant stopped at the office of counsel for appellee, gave them a copy of their notice, took their receipt therefor and immediately filed the original notice together with said receipt. This disposes of the first two objections. We do not think it can be seriously contended that this did not comply with the notice of appeal as prescribed by the act. The best proof of service of notice which can be had of any instrument is a receipt for a true copy thereof signed by the party upon whom service is required. This act was enacted to assist litigants in having their cases tried — not to keep them from trying their cases. We do not anticipate any of the disasters prophesied by counsel for appellee in the approval of this service. If any of those dire things should come to pass they will be dealt with as occasion warrants. As to the fixing of the bond, counsel for appellee were present when the court fixed it and provided for its approval, surely they were not injured by not having other notice, nor was violence done to the Practice Act. We are not inclined to indulge in highly technical interpretations of this act — especially until it is generally and uniformly understood. Counsel for appellee in her cross-appeal were guilty of errors equally unimportant and equally technical as those complained of in counsel for appellant. The trial court did not err in refusing to award execution on the judgment.

Appellant contends that this suit was improperly brought by appellee and claims that it should have been brought in the name of the personal representative of deceased". This would be true had appellant not estopped itself to raise that question. Appellant availed itself of its facility of payment plan in paying to appellee the amount claimed to be due for the loss of life of deceased. It thereby recognized her as the proper person to receive the money due under the policies. That was an overt act in which it exercised its option. It cannot now be heard to raise this question. McDaniels v. Western & Southern Life Ins. Co., 332 Ill. 603.

It is urged that the allegations of the declaration were not proved. It was definitely established that deceased ate a rabbit, that he took violently sick a very short time afterward; that prior to that time he had been strong and healthy. The doctor after describing the symptoms said, “I knew in the beginning that the sickness was due to the rabbit poisoning. ’ ’ This statement in the ordinary treatment of and consultation over human ailments would leave no doubt in the minds of anyone concerning the cause of deceased’s sickness. It is positive. It is a conclusion based upon symptoms which fully warrant it. It is proof that deceased died from the effects of eating poisoned rabbit meat. It is uncontradicted by fact or circumstances. Neither court nor jury could have arrived at any other conclusion. The court was fully warranted in giving the instruction.

It is next claimed that the verdict is excessive. When appellant settled with appellee it paid her all that was then due under the proofs for the loss of the life of her insured. This payment included such items as the face amount of the policies. Paid up additions and advanced premiums were returned and were in full compliance with the policies had it not been for the double indemnity provision. The instrument providing for this recites that under proper conditions therein enumerated, it will pay “an accidental benefit equal to the face amount of insurance” stated in the policy. The face amounts stated in the policies amount to $558. Adding to this amount interest from December 14, 1932, the date proofs of loss were furnished to November 28th, the date of the trial and verdict, we have the sum of $584.66. This is the amount appellant owes appellee. We therefore conclude that the judgment is excessive to the extent of the difference between $780.15 and $584.66 or $195.49. It is urged by appellee that this question was not raised on the trial. It was raised on the motion for a new trial and the court there had a chance to correct it. This it should have done.

If appellee will, within 30 days from the filing of this opinion, enter a remittitur to the extent of $195.49, the judgment will be affirmed, otherwise the cause will be reversed and remanded to the city court for a new trial.

Affirmed on remittitur; otherwise reversed and remanded.


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    Henry Duppe, Appellant, v. A. M. Duncan, Appellee, and Stegmeyer-Woolard Drug Company and Chapman Doak Company, Defendant Garnishees and Appellees.
    Opinion filed September 6, 1934.

      D. F. Moore, for appellant.
    Frank E. Trobaugh, for appellee. .
   Mr. Justice Stone

delivered the opinion of the court.

Henry Duppe, appellant, filed this suit against A. M. Duncan and others to the November Term 1931 of the circuit court of Franklin county. The action was for damages for negligence of Duncan and others as directors of the Mercantile Bank & Trust Company of Benton, Illinois, a closed bank. On September 28th he filed his affidavit for attachment in aid. An attachment was awarded him and by virtue thereof the sheriff levied upon certain real estate. By said attachment writ appellees Stegmeyer-Woolard Drug Company, a corporation, and Chapman Doak Company, tenants of the property levied upon, were summoned as garnishees. On February 4, 1933, the defendant-garnishee, Stegmeyer-Woolard Drug Company, a corporation, entered its motion to quash service of the writ of attachment on it on two grounds: (1) That said writ was issued without bond and that plaintiff was not examined under oath and the amount of damages indorsed by the presiding judge on the affidavit for attachment. (2) That said writ was issued and served upon Gr. S. Stegmeyer and F. W. Woolard, doing business as Stegmeyer-Woolard, a copartnership, and that service of said writ was made upon Ford Woolard as one of the copartners, when in truth and in fact Stegmeyer-Woolard Drug Company was a duly organized corporation and said Woolard was its secretary. No action was ever had on this motion until February 6, 1934, when defendant, A. M. Duncan, filed his motion to quash the writ of attachment and the service and return thereof and to strike the affidavit for attachment from the files and to release the property attaehed and discharge the garnishees on the ground that plaintiff did not apply to a judge of the court and be examined under oath concerning his cause of action prior to the time of issuing said writ; that said judge did not examine the plaintiff on oath concerning his cause of action and indorse on the affidavit for attachment the amount of damages for which the writ should issue; that no bond was given by the plaintiff prior to the issuance of such attachment as required by statute; and that the affidavit filed by the plaintiff in such proceedings does not show the right of the plaintiff to such attachment. The plaintiff filed his cross motion to strike the motion of A. M. Duncan from the files and by stipulation of attorneys in open court, said cross motion was extended to the motion of Stegmeyer-Woolard Drug Company, a corporation, filed February 4, 1932. On February 20, 1934, plaintiff filed his motion'asking the court to amend the affidavit for attachment by indorsing thereon, nunc pro tunc, the amount of damages for which said writ should issue. On March 1, 1934, the defendant, A. M. Duncan, filed his motion to strike from the files the plaintiff’s motion to amend, which sets out at length in 13 paragraphs covering eight pages of the record, reasons therefor, which motion is verified by the affidavit of Cairn a Gentry and supported by affidavits of Moses Pulverman and Frank E. Trobaugh and the garnishee, Stegmeyer-Woolard Drug Company, a corporation, by Moses Pulverman, its attorney, filed the same motion on behalf of Stegmeyer-Woolard Drug Company, a corporation, which is verified by the affidavit of Ford Woolard, secretary-treasurer of Stegmeyer-Woolard Drug Company, a corporation. The intervening paragraphs from one to thirteen, inclusive, are identical with the motion of A. M. Duncan. Such motion is also supported by the affidavits of Moses Pulverman and Frank E. Trobaugh, which are identical with the affidavits of the same parties in support of the Duncan motion. Bach of these motions and the affidavits in support of the same set out in substance that Stegmeyer-Woolard Drug Company, a corporation, is a third party whose rights have intervened since the issuance of said attachment in this: that pursuant to advice of counsel, it had paid the rent on said premises to the defendant, A. M. Duncan, and Rosella Duncan, his wife, notwithstanding said attachment; that Canna Gentry was an innocent third party whose rights had intervened since said attachment in this that on September 17, 1933, the said A. M. Duncan and Bosella Duncan had confessed a judgment in her favor in the circuit court of Franklin county for the sum of $2,451.61 on a promissory note dated December 1, 1932; that on the 16th day of December, 1933, she had sued out an execution on said judgment and delivered the same to the sheriff of Franklin county with directions to levy said execution on the interest of A. M. Duncan in the property attached with a purpose on her part of redeeming said property from the sheriff’s sale made on the Bailey judgment, provided she could do so free and clear of the lien of this attachment and for that reason desired the attachment quashed.

On the 2nd day of March, 1934, the court made an order denying the plaintiff leave to amend, quashing said attachment and striking from the files the affidavit for attachment, the attachment writ and releasing the garnishees and releasing the levy of the attachment on said property. The plaintiff duly excepted to said ruling of the court and filed his notice of appeal and has perfected the appeal within the time and manner required by law and now asks that said judgment denying his leave to amend and quashing said attachment and the levy thereof and releasing said property and said garnishees be reversed with directions to amend the affidavit by indorsing thereon the amount of damages for which said writ should issue.

Prior to the starting of appellant’s suit Mr. and Mrs. Charles Bailey, on March 22, 1932, recovered judgment against A. M. Duncan and others. Execution was issued on said judgment and levy made, and on December 8, 1932, the property upon which appellant’s attachment had been levied was sold to satisfy the Bailey judgment. The period of redemption was allowed to expire without any move by appellant toward redemption. A sheriff’s deed was afterward issued conveying all the land upon which said attachment had been levied.

On the 4th day of May, 1934, appellee, A. M. Duncan, died and his death has been suggested upon the record in this case.

This being an action on the case to recover damages for the negligence of appellee, Duncan, and the said Duncan having died during the pendency thereof we must, in following a long line of authorities, hold that such death abates this suit. Jones v. Barmm, 217 Ill. 381; Murphy v. Candor, 263 Ill. App. 226; Shedd v. Patterson, 312 Ill. 371; Cairo Meal & Cake Co. v. Estate of Brigham, 268 Ill. App. 510; Bradley v. Federal Life Ins. Co., 295 Ill. 381.

In Jones v. Barmm, supra, our Supreme Court said: “If the case comes under any provision of the statute it must be the one with reference to actions to recover damages for an injury to personal property. Taking into consideration the well known meaning of the term ‘personal property’ and the connection in which it is used in the statute, we are of the opinion that it was . . . intended to apply only to actions for damages to tangible articles and things movable.” The damages alleged in the declaration in this cause may not be construed to be damages to personal property within the interpretation of that term by the above authority. Neither do they come within any other provision of the statute.

Even if this case could be said to survive and proper parties were brought into court no possible relief could be given appellant by a reversal of this judgment. This is not a question of his cause of action; it concerns the means by which he purposed to collect his judgment should he get one. He lost every possibility of right to have satisfaction of a judgment out of the property levied upon under his attachment, by sitting idly by while a prior judgment creditor of Duncan sold the property and while the period of redemption passed by means of which the certificate of purchase at the sale ripened into the right to a deed to the premises. This record conclusively shows that state of facts. A court could no more put life and virtue into this attachment so far as the property upon which it was levied is concerned, than it could lawfully take property away from one citizen and give it to another. There is therefore nothing to decide. This is a moot question. The courts ought not to be called upon to decide, and will not decide such questions. People v. Village of Oak Park, 356 Ill. 154; Ebert v. Beedy, 113 Ill. 316; Tuttle v. Gunderson, 341 Ill. 36; People v. Sweitser, 329 Ill. 380; Wick v. Chicago Telephone Co., 277 Ill. 338; Purcell v. Bundesen, 265 Ill. App. 540.

The appeal in this cause should be and it is hereby dismissed.

Appeal dismissed.


text:
    W. S. Holmes, Appellant, v. Alice Burk and W. A. Arnold, Appellee.

      Opinion filed September 6, 1934.
    M. C. McCallen and W. S. Holmes, for appellant.
    Harold J. Taylor, for. appellee.
   Mr. Justice Stone

delivered the opinion of the court.

At the June Term 1933 of the circuit court of Effing-ham county — July 26, 1933, a decree was rendered in favor of appellant W. S. Holmes against Alice Burk for foreclosure of a mortgage on real estate. By the same decree the court found that appellee W. A. Arnold had a prior lien to appellant on the premises. Appellant undertook to appeal from this decree. He was given time to file an appeal bond and time to file a certificate of evidence. These instruments were filed within the respective times prescribed. The certificate of evidence was approved by the trial court on October 21,1933. The term of this court to which this record should have been filed opened February 27, 1934. The record should have been filed by February 6th unless the time was extended. This gave appellant from October 21st until February 6th in which to file his appeal here in compliance with rules. Thus 108 days intervened but no record was filed. This court would have been fully warranted in dismissing the appeal in pursuance of appellee’s motion therefor filed on February 5th. Instead we extended the time for appellant to file until March 20th. On March 19th appellant filed a supposed record which in no sense complies with the statute and the rules of this court.

The courts have gone to great pains to simplify their rules under the statute for the use and benefit of litigants. It is imperative that they be followed. Gibson v. Vail, 248 Ill. 432. Appellant has had more consideration from this court than the rules call for. The appeal is dismissed.

Appeal dismissed.


text:
    Marcus Biggerstaff et al., Plaintiffs in Error, v. W. H. Spaulding et al., Defendants in Error.

      Opinion filed March 10, 1934.
    Rehearing denied October 22, 1934,

      Chas. L. Rice, for plaintiffs in error.
    Charles E., Feirioh, for defendants in error.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

On November 28, 1931, the executors of the last will of William A. Lackey, deceased, filed their final report in the county court of Pulaski county, asking for the court’s approval of same as their final report; also for an order of distribution. Plaintiffs in error filed written objections thereto and a hearing was had thereon before the court, who overruled the objections and entered an order for distribution. Plaintiffs in error appealed therefrom, to the circuit court, as did also Lottie L. Lackey, widow of the testator.

The hearing upon the appeal was duly had.in the circuit court, where again the objections were overruled, as was likewise the contention of the said widow. The report was declared approved, and an order entered for distribution. Such order was dated March 16, 1932. Plaintiffs in error prayed for and were allowed an appeal to this court. Lottie L. Lackey, the widow, also prayed an appeal, which the court likewise granted. None of such parties perfected the appeal, but plaintiffs in error did, on March 10, 1934, sue out of this court a writ of error to review the judgment.

On May 11, 1934, defendant in error, administrator of the estate of Lottie L. Lackey, deceased, — she having died in the meantime, — filed his motion to dismiss the writ, on the ground that under section 124 of the Administration Act, Cahill’s St. ch. 3, ¶ 126, only appeals are allowed from judgments of the circuit courts, rendered upon appeal therein from orders of the county courts, upon matters arising under the Administration Act, as provided by said Act, and that writs of error do not lie to review such judgments; and did on the same day file herein his brief and argument. Defendant in error has also assigned cross errors upon the record.

The judgment sought to be reviewed was rendered prior to January 1, 1934, when the new Civil Practice Act, Cahill’s St. ch. 110, ¶ 129 et seq., became operative; hence the right to review must be tested by and determined under the rules of practice as.they existed prior to such date.

Plaintiffs in error ask that the motion to dismiss the writ of error be overruled, contending, first, that defendant in error, by filing brief and argument, assigning cross errors, and arguing the case upon its merits, thereby waived his right to insist upon a dismissal of the writ of error. The motion to dismiss challenges the jurisdiction of this court to entertain a writ of error to review the judgment complained of.

In Hursen v. Hursen, 110 Ill. App. 345, 346, where a similar motion was made after the filing of briefs, and it was contended the motion came too late, the court said: “The motion was in apt time, as a want of jurisdiction of the subject-matter of an appeal may be brought to the attention of the court at any time. The court may raise the question of its own motion.”

In Nigh v. Dovel, 84 Ill. App. 228, this court held, on page 231: “Want of jurisdiction of a subject-matter over which, under the law, a court has no jurisdiction, may be suggested to the court at any time and in any manner that will call the attention of the court to such fact, or if it occurs to the mind of the court at any stage of the proceedings, even without suggestion, then it is the duty of the court, whether moved to do so or not, to at once dismiss the casé.”

The court ruled, in City of Virginia v. Gipps Brewing Co., 136 Ill. 616, 618, that even though both parties assigned error, and neither questioned the jurisdiction of the court to review the case, yet inasmuch as no writ of error would properly lie in the case, the court, of its own motion, should dismiss the writ, notwithstanding the tacit acquiescence of the parties in its prosecution; and to the same effect is Brockway v. Kiser, 215 Ill. 188. This contention of plaintiffs in error is without force.

Plaintiffs in error contend, secondly, that section 124 of the Administration Act, Cahill’s St. ch. 3, ¶ 126, has been repealed and superseded by section 8 of the Appellate Court Act, Cahill’s St. ch. 37, ¶ 40, and section 91 of the Practice Act, Cahill’s St. ch. 110, ¶ 91 (App’x). Said section 124 provides: “Appeals shall be allowed from all judgments, orders or decrees of the county court, in all matters arising under this Act, to the circuit court, in favor of any person who may consider himself aggrieved by the judgment, order or decree of such cdurt, and from the circuit court to the Supreme Court, as in other cases, and bonds with security to be fixed by the county or circuit court, as the case may be.”

Said section 8 of the Appellate Court Act is: “ The said Appellate Courts created by this Act shall exercise appellate jurisdiction only, and have jurisdiction of all matters of appeal or writs of error from the final judgments, orders or decrees of any of the circuit courts, or the superior court of Cook county, or county courts, or from the city courts in any suit or proceeding at law, or in chancery other than criminal cases, not misdemeanors, and cases involving a franchise or freehold or the validity of a statute.”

Section 91 of the Practice Act provides: “Appeals shall lie to and writs of error from the Appellate or Supreme Court, as may be allowed by law, to review the final judgments, orders or decrees of any of the circuit courts, the superior court of Cook county, the county courts or the city courts and other courts from which appeals and to which writs of error may be allowed by law, in any suit or proceeding at law or in chancery. ’ ’

The law is now settled that said section 124, so far, and to the extent that it may conflict with either of said sections 8 or 91, is repealed, upon the theory that the latter two, being later enactments, operate to repeal the former, so far as repugnant to its terms. Lynn v. Lynn, 160 Ill. 307; Hannah v. Meinshausen, 216 Ill. App. 169; Pick v. Diecks, 218 Ill. App. 295.

Section 8 provides that the Appellate Court shall have jurisdiction to review by appeal or writ of error, all final judgments, orders or decrees of the inferior courts, in any suit or proceeding at law or in chancery, in all civil cases except those involving a franchise, freehold or the validity of a statute.

It will thus be seen that the purport of section 8 is to determine the court to which appeals or writs of error may be taken, and not to provide for the allowance of same. Section 124 authorizes appeals from the circuit court to the Supreme Court, while section 8 confers the right of review upon the Appellate Court in all civil cases except those which pertain to a freehold, franchise or the validity of a statute. Hence it seems clear that section 8 repeals section 124, by implication, only to the extent of providing that the appeals to be taken under section 124, shall go to the Appellate rather than to the Supreme Court, except in the quoted enumerated exceptions, and does not otherwise modify or supersede it.

If any statute grants the right of review by writ of error, of the judgment in the pending case, it is said section 91, an examination of which reveals that by it appeals and writs of error are allowed to review final judgments, orders and decrees of the inferior courts “in any suit or proceeding at law or in chancery.” The limitation thus confers the right of such review only “in any suit or proceeding at law or in chancery.” If the judgment sought to be reviewed was not rendered in a suit or proceeding at law or in chancery, then the said section confers no right of review by writ of error.

It thus becomes necessary to consider the character of the proceeding in which the judgment in question was entered. It was rendered pursuant to a hearing under section 114 of the Administration Act, providing for settlement of accounts by administrators and executors, which, with its various amendments, was part of the original Act of Administration, and the review of judgments rendered thereon is controlled by said section 124, unless it can be held that the hearing before the court upon the final report of the personal representative of the estate is a “ suit or proceeding at law or in chancery”; in which event it would be reviewable under section 91 of the Practice Act.

We necessarily must consider whether such hearing is a “suit or proceeding at law or in chancery.” In Sebree v. Sebree, 293 Ill. 228, it was held that the phrase “a suit or proceeding at law or in chancery,” as intended by said section 8, is a “suit or proceeding instituted and carried on in substantial conformity with the forms and modes prescribed by the common law.” The identical phrase was used in said section 91, in the same sense.

Various acts of procedure, under the Administration Act, have been the subject of interpretation as to whether they were suits or proceedings at law or in chancery. We will refer to a few. In Grier v. Cable, 159 Ill. 29, it was held: “We are of the opinion that the proceedings provided by law in this State for the presentation and allowance of claims against the estates of decedents, are in no proper sense suits or proceedings at law or in chancery, but purely statutory proceedings provided for the prompt and summary presentation, allowance and classification of all just claims against such estates.” The case of Nadig v. Turner, 291 Ill. 513, was an action in the county court where an administrator petitioned for authority of the court to carry out a contract of the decedent to convey land, under section 126 of the Administration Act, contending that the proceeding was one in equity. The court, however, ruled it was a purely statutory proceeding, and not a suit or proceeding at law or in chancery.

In Pick v. Diecks, supra, where proceedings in the county court were instituted against a surviving partner, under sections 86-89 of the Administration Act, it was decided that while somewhat equitable in character, yet considered as a whole, both as to substance and procedure, it constituted a special statutory proceeding and not a suit or proceeding at law or in chancery.

In Sebree v. Sebree, supra, where there was a hearing upon the petition of appellant for an order declaring her to be the widow of decedent, and as such entitled to share in the estate, the court held “the mere fact that an issue was made up and the trial conducted in the same way in which suits at law are held, cannot of itself have the effect of converting a merely statutory proceeding into a suit or proceeding at law. ’ ’

In the instant case, the hearing upon the final report of the executors was entirely regulated by statute. It was unknown to and bore no analogy to the legal procedure conducted according to the forms of the common law; no written pleadings were required. It was a summary, informal statutory proceeding, and hence, within the rule and reason of the cases cited, was not a “suit or proceeding at law or in chancery,” and upon appeal to the circuit court the proceedings would be of the same character as in the county court. Sebree v. Sebree, supra. Consequently, no right of review by appeal or writ of error was allowed to it by section 91 of the Practice Act.

Writs of error are, however, allowed to review final orders and judgments in purely statutory proceedings, without statutory authority therefor, to prevent a failure of justice, in instances where property rights or personal liberty are involved, and no right of appeal is given from such inferior courts to some higher tribunal. Haines v. People, 97 Ill. 161; Kingsbury v. Sperry, 119 Ill. 279. Such is not the case here, for plaintiffs in error were given an adequate right to have the judgments of both the county and circuit courts reviewed, as granted by said section 124 of the Administration Act.

From the authorities cited, we think it clear that the proceeding in question was purely statutory in character; that the statute conferred upon plaintiffs in error the right of appeal; and that the settled law is that where a statutory proceeding gives to the litigant one form of review, all others are excluded. Allerton v. Hopkins, 160 Ill. 448; Haines v. People, supra; Hart Bros. v. West Chicago Park Com’rs, 186 Ill. 470.

We are of the opinion that a writ of error does not lie to review the judgment complained of, and the same is dismissed.

Writ dismissed.