text:
    Mary Coultry, Administratrix of the Estate of Martin D. Coultry, Deceased, Plaintiff-Appellant, v. Yellow Cab Company and David Lizawetsky, Defendants-Appellees.
    Gen. No. 33,098.

      Opinion filed April 17, 1929.
    Harry D. Knight, for appellant.
    Samuels, Costello & Greenberg and William C. McHenry, for appellee Yellow Cab Company.
   Mr. Justice Wilson

delivered the opinion of the court.

Plaintiff Mary Coultry, administratrix of the estate of Martin D. Coultry, deceased, filed her declaration in the circuit court, charging that Martin D. Coultry, deceased, had come to his death by reason of personal injuries sustained through the negligence of the defendants, Yellow Cab Company, a corporation, and David Lizawetsky. To this declaration defendants filed pleas of the general issue and special pleas denying that, at the time of the injury, they were the owners or in control of the automobile alleged to have caused the injury.

May 11,1927, the cause appears to have been reached for trial and dismissed at plaintiff’s costs for want of prosecution. May 25, 1927, said order dismissing said cause for want of prosecution was vacated and the cause reinstated. June 4, 1927, on motion of the defendants, the order of May 25,1927, vacating the order of May 11, 1927, dismissing the suit for want of prosecution was vacated. June 9, 1928, the defendants renewed their motion to vacate the order reinstating said cause of action and, thereupon, an order was entered in said cause, vacating the order of May 25, 1927 and June 4, 1927, and ordering said proceedings expunged-from the record. Prom this last order plaintiff prays this appeal.

Prom the record it appears that the suit was dismissed for want of prosecution by the circuit court at the April term and judgment entered for costs in favor of the defendants and against the plaintiffs to be paid in the due course of administration.

The order reinstating said cause on May 25, 1927, was entered at the May term following. It is insisted on behalf of the defendants that the suit having been dismissed at the April term, the court lost jurisdiction at the end of that term and was without power or authority to enter the orders of reinstatement at the term following.

It does not appear to be questioned in the briefs filed herein but that the court had lost jurisdiction after the entry of the judgment and the expiration of the term, and that the proceedings thereafter were void unless the matters presented to the court upon the motion heard May 25, 1927, were such as to bring the matter under paragraph 89, chapter 110 of Cahill’s Revised Statutes of Illinois, 1927. This section is as follows:

“The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.”

Thé affidavit filed in support of the motion to reinstate said cause, made May 25, 1927, stated that the affiant is the duly authorized attorney of record for the plaintiff and that said cause “through the many judges already assigned to hear Calendar Number 6 and for this cause alone he overlooked this case and did not know that same had been reached for trial.”

This order was vacated on June 4,1927, on the affidavit of counsel for the defendants that no proper notice had been served and, on cross-motion of attorney for plaintiff, the cause was again reinstated and placed on the trial call.

From the record it is apparent that the only ground upon which the original order of May 25,1927, to reinstate was based, was the affidavit of attorney for plaintiff hereinbefore set forth. Nothing appears from the record or the bill of exceptions showing any ground upon which the court based its second order of June 4, 1927. Apparently the second order reinstating said cause, which was entered June 4,1927, was made while the parties were ,in court' and after the order of May 25th had been set aside for failure to give proper notice. Assuming the second order was based upon the affidavit filed in support of the first motion, in which counsel, as affiant, stated that because of the many judges assigned to hear Calendar Number 6, he had overlooked the case, nevertheless, this was not a sufficient ground upon which to predicate a motion in order to bring it within section 89 of the Practice Act, Cahill’s St. ch. 110, fí 89. If the second reinstatement was based on an oral motion then there is nothing in the record upon which to base the action of the court.

While, by reason of the statute, the writ of error coram nobis has been dispensed with and the relief granted by motion, nevertheless, the reasons for the granting of such a motion are the same as those that were required by the writ of error coram nobis.

The Supreme Court of this State in the case of Marabia v. Mary Thompson Hospital of Chicago for Women and Children, 309 Ill. 147, in its opinion, said:

‘ ‘ The practice upon the motion which has been substituted for the writ of error coram nobis has received consideration in a number of cases in this court, among them Mitchell v. King, 187 Ill. 452, Cramer v. Illinois Commercial Men’s Ass’n, 260 id. 516, People v. Noonan, 276 id. 430, and Chapman v. North American Life Ins. Co., supra. These cases announced the rule that while a statute has substituted a motion for the writ, the essentials of the proceedings upon the motion are the same and it is governed by the same practice as upon the writ. The errors of fact which could be made the basis of such a writ and can now be made the basis of a motion were not errors upon such questions of fact as arose upon the pleadings in the original case, or questions of fact averred in the pleadings upon which issue might have been taken, or such questions of fact as constituted the basis of the cause of action or defense upon the merits of the case or might have been pleaded as a defense to the merits. They were questions of the character mentioned in the cases. or by the text-writers where the writ has been discussed as a means of correcting errors in the same court, and referred to the disability of parties, the incapacity of the plaintiffs to sue or the disability of the defendants to defend, such as infancy, coverture, death of one or more of the parties, death of a joint party, insanity. Any of these facts, if known to the court, would prevent the entry of a judgment, and it is to error arising out of lack of knowledge by the court of such facts that the writ of error coram nobis, or the motion which is its substitute, applies, and not to lack of knowledge on the part of the court of facts constituting a cause of action or a defense to it.”

The basis of such a motion are facts which, if known to the court, would have prevented the entry of the judgment and are necessarily of the kind and character enumerated in the case of Marabia v. Thompson Hospital, supra. The fact stated in the affidavit filed by counsel for plaintiff in support of his motion, is not such a fact as brings the case at bar within the rule. The judgment order dismissing the suit is not rendered void by reason of any lack of knowledge of any fact which would have prevented the court from rendering the judgment that was rendered in this case. The motion is not addressed to the equitable powers of the court and not intended to relieve the party of the consequencos of his own negligence. Loew v. Krauspe, 320 Ill. 244.

The bill of exceptions filed in a cause is presumed to contain all of the evidence which the one perfecting the appeal desires to present to the court and he is precluded from relying on the fact that there may be other matters which the court considered which would justify the action of an inferior court when the matter is presented to a court of review for reversal, based upon the bill of exceptions prepared by him. The rule is otherwise when the person who does not take the appeal relies upon the fact that it may appear from the bill of exceptions that all the matters and things considered by the court do not appear to be contained in said bill of exceptions.

The motion, as in a writ of error coram nobis, is the starting of a new suit and facts must appear from which this court can determine whether the trial court erred in entering the judgment contained in the record. Nothing is preserved by the bill of exceptions showing upon what the court based its order of June 4,1927.

The Supreme Court in the case of Domitski v. American Linseed Co., 221 Ill. 161, says:

“It was held in Mitchell v. King, 187 Ill. 452, that, although this section of the statute abolished the writ, yet ‘it did not abolish the essentials of the proceeding, which, in nature, remains the same’; that the motion is the commencement of a new suit in which new issues are made up, upon which there must be a finding and a judgment, and that the motion stands in the place of the declaration. It follows from this construction of the statute that the proceeding is one at law, and is independent of the proceeding in which the judgment sought to be set aside was rendered, and that unless an issue of law is made upon the motion in the trial court the question there passed upon is a question of fact, viz., whether the court in the former proceedings committed any error in fact.
“Plaintiff in error contends that the motion in the case at bar did not, on its face, disclose any error in fact, and that the court therefore erred in assuming jurisdiction of the motion. If plaintiff in error desired to present to this court the question whether the motion showed any cause for annulling the former judgment, which is a question of law, he should, under the rules of practice applicable to suits at law in which declarations are filed, have saved that question in some appropriate way recognized by law.”

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

Judgment affirmed;

Holdom, P. J., and Ether, J., concur.


source: Caselaw Access Project

author: Mr. Justice Wilson

license: Public Domain

text:
    Cicero Trust & Savings Bank and North Side Sash & Door Company, Appellees, v. Kathryn Marie Schermann, Appellant.
    Gen. No. 33,170.

      Opinion filed April 17, 1929.
    Jacob Levy, for appellant; James M. Gwin, of counsel.
    Cheney, Evans & Peterson, for appellees; Albert Peterson, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

The Cicero Trust & Savings Bank, a corporation, filed its bill of complaint in the superior court of Cook county to set aside a conveyance of real estate made by John Schermann and Mary Schermann, his wife, to their daughter, Kathryn Marie Schermann, the defendant in this action.

The bill charges that the conveyance was made to defraud creditors and that at the time of. the conveyance the said John Schermann was involved and unable to pay his debts; the bill further charges that the said John Schermann died intestate and that Mary M. Schermann, his wife, was appointed administratrix of his estate; charges further that the complainant had filed its claim in the probate court, which had been allowed in the sum of $3,507.29, but that no part of same had been paid and that the property of the estate would be insufficient to pay the creditors. The bill prays that the deeds from the said John Schermann and his wife, to the defendant, be set aside and that the property be subjected to the indebtedness of the complaint. Certain minor amendments were made to said bill without changing its effect. The defendant answered admitting the conveyance to her, but charged that the same was made for a valuable consideration and denied that the said John Schermann was rendered insolvent by the conveyance and called for strict proof of the allegations in the bill of complaint.

The North Side Sash & Door Company, a corporation, joined as appellee in this appeal, filed its intervening petition, setting forth that it had a claim against John Schermann for the sum of $1,640 and interest, and asking to be made a party to the suit and praying the same relief as if a party complainant to the bill and entitled to its proportionate share of any assets which might be discovered and distributed by the court. In accordance with the prayer of the intervening petition the North Shore Sash and Door Company was permitted to become a co-complainant in the proceeding.

Mary M. Schermann, individually and as administratrix of the estate of John Schermann, filed her answer denying that the conveyance of the real estate in question had been made for a nominal consideration and denying further that at the time of the conveyance the said John Schermann was indebted in a large sum of money to creditors and denying that the conveyance was made for the purpose of defrauding them.

The cause came on for hearing before the chancellor and a decree was entered in said cause finding that the conveyance to the defendant by John Schermann, deceased, was a fraudulent conveyance and declaring it to be null and void as to the complainants and directing the defendants, or some of them, to pay the complainants the amount found due in the decree and, upon failure so to do, directing the sale of the property by a special master in chancery for the purpose of satisfying said claims, the balance, if any, remaining after said sale and after satisfying the claims of complainants to be paid to Mary M. Schermann as administratrix of the estate of John Schermann, deceased.

It is a rule well established in this State that, before a creditor can file a bill in equity, for the purpose of setting aside a conveyance and discovering assets, that he must first exhaust his legal remedies for the purpose of satisfying his claim. It became a matter of material importance under this rule, that the complainants should show that they had filed their claims in the probate court and that the same had been allowed and that there were not sufficient assets in the estate out of which to satisfy them. In order to sustain this issue of fact, the complainants offered an affidavit signed by one Earl E. Schultz from which it appears that he was an employee in the office of the attorneys for complainants; that he had examined the files and records of the probate court in the estate of John Schermann and that the following was a true and correct copy of the claims filed in said estate and, among others, setting forth the claim of the complainants, together with the date of allowance and the amount found due thereon. Objection was made to the admissibility of this affidavit on the ground that it was not a proper compliance with the statute.

Section 18 of the Evidence Act, Cahill’s St. ch. 51, U18, provides as follows:

“Any such papers, entries, records and ordinances may be proved by copies examined and sworn to by credible witnesses.”

This section has reference to certain previous sections in the Evidence Act, just preceding it.

The Supreme Court of this State in the case of Judson v. Freutel, 266 Ill. 24, in its opinion says:

“Appellee claims that it was proper to offer in evidence the sworn copies of the records of said deeds under section 18 of chapter 51 of Hurd’s Statutes. Chapter 51 is the chapter on evidence, and provides by section 13 how court records, papers and entries may be proved. Section 14 provides the manner in which papers, entries, records and ordinances of a city or other municipality may be proved. Section 15 provides how the papers, entries and records of any corporation may be proved, and section 16 refers to the form of the certificate in such cases. Section 17 provides the manner in which proceedings and judgments before justices of the peace may be proved by certified copy. Section 18, relied on by appellee, is as follows: ‘Any such papers, entries, records and ordinances may be proved by copies examined and sworn to by credible witnesses. ’
“Appellee cites the case of Glos v. Holmes, 228 Ill. 436, in support of his contention that sworn copies of the record of the deeds in question were properly offered in evidence. In that case it was held that it was proper to offer in evidence sworn copies of the original records and papers in the county clerk’s office of Cook county in proceedings upon which the said tax deeds sought to be canceled were based. Such records, however, come clearly within section 18 of the Evidence act. It was held in Chicago, Wilmington and Vermilion Coal Co. v. Moran, 210 Ill. 9, that section 18 of the Evidence act relates only to papers, entries and records mentioned in the previous sections of the act which we have referred to.”

The Supreme Court of this State in the case of Glos v. Holmes, 228 Ill. 436, referred to in the preceding-opinion, held that the admission of sworn copies was proper, but added that the copies of the records and papers offered in evidence were sufficiently proven and, therefore, properly admitted. This opinion was based upon the authority of Glos v. Boettcher, 193 Ill. 534, but an examination of that case shows that a witness was upon the stand who testified that he had examined the records and that he had compared the same and that the copy offered in evidence was a true copy. In the case at bar no witness was produced and placed upon the stand to testify as to the correctness of the copy of the records of the probate court contained in the affidavit.

Section 18 of the Evidence Act, Cahill’s St. ch. 51, If 18, relied upon by counsel for the complainant, does not provide that papers, entries, records and ordinances may be proved by affidavit, but expressly states that it may be proved by copies examined and sworn to by credible witnesses. If the affidavit alone was admissible in evidence there would be no means of ascertaining whether the witnesses were credible or otherwise. According- to the ordinary interpretation of the word “witness, ’ ’ it would signify a person sworn and examined under oath in open court.

Section 13 of the Evidence Act, Cahill’s St. ch. 51, 1f 13, provides that papers, entries and records of courts may be proved by a copy thereof certified under the hand of the clerk of the court having the custody thereof, together with the seal of the court or by the judge of the Court if there be no clerk. If any person were permitted to subscribe to an affidavit attached to a copy of a court record or proceeding, the solemnity of the certification of a clerk with the seal of the court may as well be dispensed with,

It was evidently the intention of section 18, Cahill’s St. ch. 51, 1J18, to provide a manner of proof, in addition to that provided in the preceding sections but only on the production of a witness, present in court and subject to examination. In this manner a court and jury would be able to ascertain whether or not he was a competent and credible witness and capable of swearing to the instrument or document prepared by him and offered in evidence.

The Supreme Court of Connecticut in the case of Dibble v. Morris, 26 Conn. 416, in its opinion says:

“Nor were these copies admissible as examined copies, for no legal evidence of their examination was produced. By the ‘credible witnesses'’ mentioned in the statute, and authorized in certain cases to verify copies of record, are doubtless intended witnesses giving testimony under the sanction of the witnesses’ oath, and who may be cross-examined as to the existence of the record and the accuracy of the copy.”

See also West Jersey Traction Co., etc. v. Board of Public Works of City of Camden, 57 N. J. L. 313, wherein the court in its opinion, said:

“The third kind of authenticated copy is an examined or sworn copy, which if proved by producing a witness who has compared the copy with the original record, word for word, or who has examined the copy while another person read the original.”

See also 22 Corpus Juris, sec. 943; 1 Greenleaf on Evidence, Ed. 13, sec. 508.

It is insisted on behalf of counsel for complainants that the answer of the administratrix file.d in said cause admitted that the claim of the complainants had been filed and allowed in the probate court, but we cannot see that this admission is in any way binding on the real defendant. Proof of allowance of the claim of the complainants in the probate court was a matter material to the issue on which the entire cause of action was predicated and, failure to make proof in that regard in a proper manner, was error requiring the reversal of the cause for further proceedings in that regard. The allowance of the claim in the probate court was a judgment entered by a court of competent jurisdiction. Ford v. First Nat. Bank, 201 Ill. 120.

The decree provides that in the event there shall be any surplus remaining after the sale of the property and the making of the disbursements provided for in said decree, the balance, if any remaining, shall be paid to Mary Schermann, as administratrix of the estate of John Schermann, deceased. This was error. It is a well settled principle of law as between the parties to a fraudulent conveyance, that the "deed is valid and binding and the grantor retains no legal or equitable interest in the property conveyed.

The right of an administrator to bring an action to set aside the conveyance of real estate on the ground that it was fraudulently conveyed by his intestate, has never been recognized in this State. Such being the rule, it necessarily follows that the grantor having no interest in the real estate, after the conveyance, his administrator stands in the same position.

The Supreme Court of this State in the case of Sifford v. Cutler, 244 Ill. 234, in its opinion, says:

“Under our statute an administrator or executor can petition only to sell the real estate to which the decedent ‘had claim or title’ at the time of his decease. (In re Estate of Stahl, 227 Ill. 529.) It is a well-settled principle of law that as between the parties to a fraudulent conveyance the deed is valid and binding and the grantor retains no legal or equitable interest in the property conveyed. It is only creditors who can question the fairness of the transaction. The right of an administrator to bring an action to set aside the conveyance of his intestate on the ground that it was fraudulent has never been recognized in this State. As to such a conveyance the administrator stands in the shoes of his intestate, and it cannot be contended that the deceased could have maintained such an action in his lifetime.”

In view of the fact that it becomes necessary that said cause be retried, this court has refrained from discussing the questions of fact involved in the record as it is onow before us.

For the reasons stated in this opinion, the decree of the superior court is reversed and the cause remanded for a new trial.

Decree reversed and cause remanded.

Holdom, P. J., and Ryhbr, J., concur.


text:
    Willard C. Lindsay and Leslie P. Green, Appellants, v. Goodwin Garst, trading as Garst Manufacturing Company, Appellee.
    Gen. No. 33,396.

      Opinion filed April 17, 1929.
    B. M. Shaffner, for appellants.
    Rosenthal, Hamill & Wormser, for appellee; Willard L. King, Herman L. Ellsworth and Sidney L. Robin, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an interlocutory appeal from an order en-, tered in the circuit court January 26, 1929. A motion to dismiss the appeal on the ground that the order from which the appeal was prayed was not an appeal-able order, was reserved to the hearing. An examination of this order discloses the fact that its effect was to dissolve an injunction, in part, as to Gfoodwin Garst, defendant and cross-complainant, and to modify an injunctional order entered July 11,1928, as to Lindsay and Green, complainant and cross-defendants.

Chapter 110, paragraph 122, Cahill’s 111. Revised Statutes of 1927, provides that an appeal may be taken from any interlocutory order or decree entered in any suit pending in any court in this State, from an order (a) granting an injunction; (b) overruling a motion to dissolve an injunction; (c) enlarging the scope of an injunctional order; and' (d) appointing a receiver or giving other or further powers or property to a receiver already appointed.

An examination of the order appealed from in this cause discloses the fact that it does not come within any of the classes of interlocutory orders from which an appeal may be taken under the foregoing legislative enactments. It is insisted, however, on behalf of the complainant that the order appealed from was an order of February 1, 1929, and that the recital in the bond of the order of January 26, 1929, was an error. The order of February 1, 1929, was an order denying a motion to dissolve an injunction entered July 11, 1928, over six months prior thereto. The act referred to provides that an appeal from an interlocutory order, as described in said act, shall be taken within 30 days from the entry of such interlocutory order or decree and perfected in the Appellate Court within 60 days from the entry of such order or decree.

The statute having provided for such appeals and fixing the time and conditions, it necessarily follows that it must be strictly construed. There is no bond before us providing for an appeal from any order other than that of January 26, 1929. An examination of the record shows and the counter-suggestions filed herein admit that such is the case.

The bond cannot be amended so as to be effective as to the order of February 1,1929, because there is nothing in the bond relating to any such order. The statute expressly provides as to the time and manner of its filing and it is not ambiguous, and an amendment would be, in effect, permitting the filing of a new bond, which would be contrary to the spirit of the statute. Sidway v. American Mortg. Co. of Scotland, 67 Ill. App. 24.

That it was the purpose of the complainants to appeal from this particular order is evidenced by the fact that it is set out in haec verba in the abstract. We find no order in the abstract which purports to have been entered on February 1, 1929. There is a short reference to an order denying a motion to dissolve an injunction pending against Lindsay and Green, but the date does not appear in the abstract nor is the order set out in full.

For the reasons stated in this opinion, the motion of the defendant and cross-complainant to dismiss the appeal is allowed and the appeal is dismissed.

Appeal dismissed.

Holdom, P. J., and Ether, J., concur.


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

text:
    Mathilda Pralle, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 33,013.

      Opinion filed April 22, 1929.
    Hoyne, O’Connor & Rubinkam, for appellant.
    Earl J. Walker, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action to recover $10,000 which she. claimed was due her under an oral contract of insurance entered into between her husband, John H. Pralle, and the defendant Insurance Company. There was a verdict and judgment in her favor for $11,197.25 being the full amount she claimed, with interest.

August 21, 1925, plaintiff filed her declaration in which she alleged that on April 15/1925, the defendant Insurance Company orally promised to insure John H. Pralle, her husband, against accidents “until and pending acceptance or rejection by it (defendant) of an application for insurance . . . and until the issuance of a policy by said defendant or until said application has been rejected by said defendant”; that on April 25, 1925, John H. Pralle was accidentally run over by a motor vehicle and killed. The common counts were added. On December 22, 1926, plaintiff by leave of court filed an amended declaration in two counts, each of which contained allegations setting up the contract of insurance substantially as in the original declaration. A number of pleas and replications were filed, but it is unnecessary to refer to them here. The case went to trial on December 7,1927, and during the trial, December 9, 1927, plaintiff filed an additional count in which it was alleged that John H. Pralle, her husband, on April 14, 1925, entered into an oral contract of insurance with the defendant through its agent, Ernest Webber, who had apparent authority to make such contract; that the contract provided that the defendant Insurance Company would pay plaintiff $10,000 in case John H. Pralle was accidentally killed at any time within one year from that date; that John H. Pralle accepted the proposition and paid the annual premium of $63. Afterwards and during the trial, December 12, 1927, plaintiff filed another additional count wherein she alleged the making of the insurance contract between her husband John H. Pralle and defendant, through its agent Webber; the agreement or contract being that in consideration of Pralle paying the annual premium of $63 defendant “would write up and deliver within a -reasonable time a policy dated and taking effect for one year”; that the agent at that time presented to John H. Pralle a form of application which Pralle signed but did not read and did not know the contents thereof.

On December 17, 1927, the jury returned its verdict in favor of plaintiff and against the defendant, fixing the damages as above stated. On February 24, 1928, upon motion of plaintiff an order was entered restoring lost instructions which the court had given to the jury, and on March 30, 1928, the record discloses the court entered an order stating that the matter came on to be heard upon the defendant’s motion for a new trial, and after argument of counsel and due deliberation by the court the motion was overruled and defendant excepted, whereupon defendant entered its motion in arrest of judgment, which motion also was overruled and the defendant excepted, and thereupon the court entered judgment on the verdict and the defendant’s prayer for an appeal was allowed.

The evidence shows that John H. Pralle, on April 15, 1925, and for some time prior thereto, was in the wholesale milk business at Crete, Illinois; he was 44 years old and lived with his family at 216 South Main street, Crete, Illinois; that the defendant Insurance Company maintained a district office at that time in Roseland, Chicago, Illinois; that Ernest Webber was employed by the defendant in the Roseland district and canvassed Crete, Steger, and other suburbs south of Chicago, and on the evening of April 15,1925, he went to Pralle’s home in Crete to solicit him for accident insurance. The evidence further shows that Webber had talked to Pralle on the subject a number of times prior to that date; that Pralle agreed with Webber to take $10,000 accident insurance in the defendant company; that Webber then produced a blank application which contained 30 printed questions and Webber testified that he asked Pralle all of the questions and wrote down the answers that Pralle gave and that Pralle then signed the application; that Webber then took the application and in due course of business turned it over to another representative of the defendant, whose duty it was to make an inspection, as was the custom where persons apply for such insurance, and to report the same. The evidence further shows that Albert A. Lupian, assistant manager of the defendant in the Roseland district, whose duty it was to make the inspection, testified that he got the application on Saturday, April 18th, and proceeded to make the inspection, as he was the one who did such work in a number of the suburbs in that vicinity; that he made three trips to Crete to see Pralle to verify the date of Pralle’s birth, his occupation, and the other answers appearing* in the application; that this was the usual custom followed where the application was for accident policies and the amount was $5,000 or more; that he was unable to see * Pralle on either of the occasions; that after the three trips, although he had not seen Pralle, he completed his inspection and filled out the blank report on the back of the application; that he had known Pralle by sight for some time; that he completed his report of inspection on April 25th but did not forward the application, as was the custom, to the home office in New York for acceptance or rejection because on that day he learned that Mr. Pralle had been accidentally killed by being run over by one of Pralle’s motor trucks which was used in his milk business. Pralle having died, the policy was not issued.

Harold and Mildred Pralle, son and daughter of plaintiff and John Pralle, the deceased, and Otto Hecht, a neighbor, gave testimony to the effect that they were at the Pralle home on the evening of April 15, 1925, when Webber, defendant’s representative, called on John H. Pralle in reference to the insurance; that they heard the conversation between Pralle and Webber; that Webber told Pralle to sign the blank application and that Webber would later fill out the answers to the questions, and that if Pralle would pay the annual premium, $63, at that time, he could be covered by insurance “from that time on”; that Pralle agreed to this, made out his check for the $63 and gave it to Webber who left with the application and the check ; that during the conversation between Webber and Pralle, Webber stated that he knew how to answer all the questions in the application except Pralle’s age, that thereupon Pralle asked his wife how old he was, as the matter had slipped his memory at that time, and Mrs. Pralle replied that he was 44 years old. Webber testified that he had known the Pralle family for some time and had written insurance for some of them since the death of John H. Pralle; that he was friendly with the family; that when he called at the Pralle home on April 15,1925, after again taking the insurance matter up with Pralle, he asked Pralle all the questions; that Pralle made answer to each of them and that the witness wrote down the answers as given by Pralle except the answer to question 29, where he inadvertently wrote the answer “No” when the answer given was “Yes.” He further testified that a blank receipt was attached to the bottom of the application; that he tore it off, the paper being perforated, filled out the receipt and gave it to Pralle. A copy of it is in the record. By it defendant acknowledged receipt of $63 from Pralle “on account of application made this date to the Metropolitan Life Insurance Company. Said amount to be applied on account of the policy, if one be issued as applied for, or to be returned if the application is declined. ... No insurance is in force upon the application unless and until a policy be issued thereon and delivered in accordance with its terms.” This receipt was signed by Webber and is dated April 15, 1925. Plaintiff’s son testified that after his father’s death he searched through all his father’s papers but was unable to find any receipt such as Webber testified he gave to the deceased at the time the application was signed. Webber further testified that he did not tell Pralle that he would be covered by insurance from that time but on the contrary had explained to Pralle that the application must be acted upon by the defendant company, and further testified that no one was present at the time the application was filled out but Pralle and himself. There is further evidence in the record, but we think it unnecessary to refer to it here. No contention is made that any of the answers written in the application are not true, except the answer to question 29 above referred to.

Upon a careful examination of the application and of all the evidence in the record, we are clearly of the opinion that the answers to the questions as written in the application were the answers given by John H. Pralle to Webber as testified to by the latter, because it is obvious that the answers could not have been made by Webber. We will refer to some of them. The answers give Pralle’s place of birth as Beecher and the date as May 23, 1881; that he was 5 feet 11 inches in height and weighed 180 pounds; that he was proprietor of a wholesale milk business and that he carried life insurance in the defendant company and in the International Life Insurance Company. Then follows a number of other questions and answers usually found in similar applications and they are of such a character that we are of the opinion the answers could only have been made by John H. Pralle, as Webber testified. We are therefore of the opinion that the finding of the jury in favor of plaintiff is against the manifest weight of the evidence.

We are also of the opinion that the court should have directed a verdict at the close of all the evidence in favor of the defendant as it requested, for the reason that the evidence without dispute shows that Pralle knew he was signing an application for insurance; and the application states that no insurance would be in force “unless and until this application is approved at the Home office of the Company and a policy is issued.” And therefore the parol agreement as testified to by witnesses for the plaintiff, if there were such an agreement, was void. Ivie v. International Life Ins. Co. 217 Ala. 559, 117 So. 176. Nor does the evidence offered by plaintiff, showing the rules and instructions given by the defendant to Webber and other agents, authorize the conclusion that Webber had authority, real or apparent, to enter into binding insurance contracts on behalf, of the defendant. This evidence only tends to show that Webber and similar agents were instructed to give “binding receipts” to persons making applications so as to bind such persons, but it is obvious that he could not bind the defendant company because it had to pass on all applications before any insurance was written. On the other hand, plaintiff cites a number of authorities holding that an oral contract of insurance entered into between a person and a representative of an insurance company is valid and binding. Undoubtedly this has been held to be the law as applied to fire insurance and automobile insurance, but we think it is not applicable under the facts disclosed in the instant case. We are also of the opinion that oral contracts of insurance are valid in Illinois and that the statute of June 29, 1915, Cahill’s St. ch. 73, if 467 et seq., is inapplicable to such contracts. That statute deals with written policies of insurance and there was no policy in the instant case.

Counsel for plaintiff in this connection cites the case of Massachusetts Bond & Ins. Co. v. Vance, 74 Okla. 261, 180 Pac. 693; 15 A. L. B. 981; but in that case the application was not signed. The court there said that if an application had been signed, “an entirely different proposition would be presented. ’ ’

Counsel for plaintiff contends that the sufficiency of the evidence to sustain the verdict is not before the court, because “the bill of exceptions contains no motion for a new trial, order overruling the same, nor objection to such order,” and that it is not sufficient that a recital in the common-law record shows that the motion for a new trial was made and overruled and an exception taken to such order. Since the amendment of 1911 to section 81 of the Practice Act, Cahill’s St. ch. 110, ff 81, it is unnecessary to incorporate a formal exception into the record to preserve the rulings of the trial court for review. Miller v. Anderson, 269 Ill. 608. We think the point is not well taken. The judgment order itself obviously is a part of the common-law record and from it, it appears that a motion for a new trial and a motion in arrest of judgment were made and overruled, and we think the court ought not to be so blind as to be unable to see this in the record. In fact we have never seen a record in a court of review where a motion for a new trial and á motion in arrest of judgment were made and overruled, that these facts did not appear in the judgment order. It is and has been the universal practice for a great many years. The clerk of the court writes into the record the orders that are given by the court. The merits of a controversy ought not to be decided on such technicalities. But in any event, the defendant by leave of court has filed in this court a supplemental record showing that a motion for a new trial had been made and overruled.

The judgment of the superior court of Cook county is reversed, but since we hold that there should have been a directed verdict at the close of all the evidence in favor of defendant, the cause will not be remanded.

Judgment reversed.

McSurely, J., concurs.

Me. Justice Matchett

specially concurring: I agree with the conclusion but not that a motion for a new trial need not be preserved by bill of exceptions. Perhaps it ought to be so, but I understand Colbert v. Holland Furnace Co. 241 Ill. App. 583; People v. Levin, 318 Ill. 227, and cases there cited to hold otherwise.


author: Mr. Presiding Justice O’Connor

text:
    Dixmoor Golf Club, Inc., Appellee, v. Charles Evans, Jr., et al. S. K. Wheeler, Appellant.
    Gen. No. 33,105.

      Opinion filed April 22, 1929.
    John A. Bussian, for appellant; Edward I. Debolt and Walter Boland, of counsel.
    Dennis J. O’Toole, for appellee; Albert G. Kaiser, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendant, S. K. Wheeler, seeks to reverse a decree of the superior court of Cook county, modifying a former decree of that court pursuant to the mandate and opinion of the Supreme Court of Illinois. The opinion is found in Dixmoor Golf Club v. Evans, 325 Ill. 612.

The contention of Wheeler is that the chancellor did not follow the mandate and opinion of the Supreme Court in modifying the decree, in that all of the eight defendants should have been held jointly and severally liable, while by the modified decree only three of the defendants, viz., Alfred J. Kendrick, Henry Weinberger and S. K. Wheeler, were decreed to be jointly and severally liable. The complainant, the Dixmoor Golf Club, Inc., agrees with defendant Wheeler in his contention. We are, however, of the opinion that the contention cannot be sustained. The record discloses, and it also appears from the opinion of the Supreme Court, that the Dixmoor Golf Club, Inc., filed its bill to compel the defendants Charles Evans, Jr., Raymond W. Beach, Alfred J. Kendrick, Clarence C. Upham, Frank C. Wells, Henry Weinberger, Charles L. Hays, Jr., and S. K. Wheeler to account for secret profits made by them while directors and in the management and control of the Golf Club. After the issues were made up the cause was heard before the chancellor and a decree entered holding each of the defendants to account for the amount they severally received from the Golf Club. From this decree three of the defendants appealed to the Supreme Court. Touching this question the Supreme Court said (p. 614): “S. K. Wheeler, Henry Weinberger and Alfred J. Kendrick, three of the defendants, have appealed from the decree.” In its opinion the facts are stated with considerable detail and particularity, and after discussing the law applicable thereto the opinion concludes: “but it was error not to hold the defendants jointly liable, as well as severally, for the amounts with which they are charged. The decree is therefore reversed and the cause remanded to the superior court, with directions to that court to modify the decree by holding the appellants jointly and severally liable in accordance with this opinion, and to re-enter the decree as so modified. ’ ’ From the decree as modified the defendant Wheeler alone prosecutes this appeal.

The mandate of the Supreme Court contained the following: “the decree of the Superior Court of Cook county ... be reversed, annulled, set aside and wholly for nothing esteemed, and this cause be remanded to the Superior Court of Cook County with directions to that court to modify the decree by holding the appellants jointly and severally liable in accordance with the views expressed by the court in their opinion filed herewith, and to re-enter the decree as so modified.” It will be noted that the Supreme Court in its opinion and mandate expressly directed the superior court of Cook county to modify its decree by holding appellants S. K. Wheeler, Henry Weinberger and Alfred J. Kendrick jointly and severally liable. No language could be more plain and specific. In its opinion the Supreme Court expressly named these three parties as having appealed from the original decree. It is clear that the chancellor followed the specific instructions of the Supreme Court.

Moreover, five of the defendants were not before the Supreme Court on the appeal, and since the liability of each of these five defendants as fixed by the original decree was severable and each of them was willing to abide by the decree as to them it was final, and not to be disturbed on the appeal. Norris v. Downing, 196 Ill. 91; Hartman v. Pistorius, 248 Ill. 568; Hewes v. Glos, 170 Ill. 436; Glos v. Woodard, 202 Ill. 480; Gillett v. Chicago Title & Trust Co. 230 Ill. 373; Walker v. Montgomery, 236 Ill. 244; Hammond v. People, 164 Ill. 455.

In the Norris case it was held that where only one of the • cross-complainants appealed from a decree dismissing the cross-bill, the assignments of errors must be treated as his only and if the decree was right, it must be affirmed. The court there said (p. 94): “The only person complaining in this court of the action of the trial court in dismissing said cross-bill for partition is Ella Norris, as only parties to the suit who have appealed have a right to assign errors upon the record, and one appellant may not assign errors on behalf of a party who does not appeal. (2 Ency. of PI. & Pr. 931: . . .) If the complainants in the cross-bill for partition, other than Ella Norris, were dissatisfied with the ruling of the court in dismissing said cross-bill, they should have joined with her in praying and perfecting an appeal or should have obtained a severance and perfected an appeal.” The court then refers to section 70 (now section 97) of the Practice Act, Cahill’s St. ch. 110, K 97, and continuing says: “This section and the practice recognized allow one party to use the names of all as plaintiffs in suing out a writ of error, but the right ‘to use the names of all said persons, if necessary,’ does not, in the opinion of the court, enable one party to appeal in behalf of all. . . . neither can Ella Norris assign errors on their behalf.”

And in the Hartman case (248 Ill. 568) it was held that an appeal by a part of the defendants to a foreclosure proceeding operates as a severance from the other defendants. The court said (p. 573): “The plaintiffs in error alone appealed to the Appellate Court, which operated as a severance from the other defendants in the circuit court, and the Appellate Court erred in not sustaining their assignments of error. The judgment of the Appellate Court affirming the decree against plaintiffs in error is reversed and the decree of the circuit court as to them is also reversed. The cause is remanded to the circuit court, with directions to dismiss the bill as to the plaintiffs in error.” In that case it will be noted that although there was error in the decree appealed from, the Supreme Court ordered the bill dismissed only as to the plaintiffs in error who were not all of the defendants in the trial court. In the Hewes case (170 111. 436) some of the defendants in a chancery proceeding were defaulted. The others answered. A decree was entered against all. The defendants who had not been defaulted appealed to the Appellate Court, which, upon consideration, ordered the bill be dismissed as to all the parties. On a further appeal to the Supreme Court this was held to be error; the court holding that the suit should have been dismissed only as to those appealing. It is there said (pp. 441, 442): “It is objected, however, that the Appellate Court dismissed the bill absolutely as to all the parties, although other defendants than appellees had been defaulted and a decree had been taken against them to which they made no objection. Doubtless that fact was not noticed or brought to the attention of the Appellate Court, but as to the defendants who had defaulted and did not appeal the decree should have been permitted to stand. The judgment of the Appellate Court will be modified so as to dismiss the bill at the cost of complainant, the appellant in this court, as against the defendants who appealed and are appellees in this court.”

To the same effect is the Hammond case (164 Ill. 455), where an attempt was made by one of the defendants to perfect an appeal on behalf of all of the defendants. The court quoted from section 70 (now 97) of the Practice Act, and said (p. 457): “This section and the practice recognized allow one party to use the names of all as plaintiffs in suing out a writ of error, but the right ‘to use the names of all of said persons, if necessary, does not, in the opinion of the court, enable one party to appeal in behalf of all.” In the other cases cited the same rule is announced.

Finding no error in the decree of the superior count of Cook county, as modified, it is affirmed.

Affirmed.

HcSurely and Hatchett, JJ., concur.


text:
    Charles E. Corcoran and Leon R. Ploche, Appellants, v. Harry Witz et al., Appellees.
    Gen. No. 33,249.
    Opinion filed April 22, 1929.

      Gustav E. Beerly, for appellants.
    Kampfer, Horwitz, Halligan & Daniels, for appellees; Max Daniels, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal complainants seek to reverse an order of the circuit court of Cook county making distribution of rents collected by a receiver appointed in a foreclosure proceeding.

The record discloses that complainants filed their bill to foreclose a mortgage on real estate given to secure an indebtedness to a building and loan association, which mortgage and the bond evidencing the indebtedness were owned by complainants. The bill of foreclosure was filed February 14, 1924, and six days thereafter, on motion of complainants, a receiver was appointed who took possession of the premises. This receiver continued to act until July 17, 1925, at which time another receiver was appointed and he continued to act until May 26, 1928. It further appears that the latter receiver had in his hands $1,348.40, being the proceeds of rents collected by him from the property covered by the mortgage. May 26, 1928, on motion of the solicitor for complainants, due notice having been given to all parties, it was ordered that the suit be dismissed at complainants’ costs, and it was further ordered that the' receiver file his final account within twenty days. The court retained jurisdiction for the purpose of settling the receiver’s account.

The receiver filed his account and a decree or order was entered approving it. From the order of approval it appears the court directed the receiver to retain for himself, in payment of his services, $473, to pay his solicitor $150, and to turn over the balance of $725.40 remaining in his hands to Witz, the defendant, the owner of the equity. It is from this order or decree that complainants appeal.

The trust deed, by virtue of which complainants seem to base their claim for the moneys in question, provided that upon filing a bill to foreclose the trust deed the court might appoint a receiver with power to collect the rents. And in complainants’ petition filed, in which they claimed the rents in the hands of the receiver, they alleged that they had a valid and first lien upon the rents in the hands of the receiver because the mortgage provided that it should be lawful for the mortgagee, its successors or assigns, in case of default to enter into and take possession of the premises and to collect and receive all rents, issues and profits thereof.

Since complainants, on their own motion, had the bill of foreclosure dismissed at their costs, this established the fact that complainants have no right to the rents. The owner of the mortgaged premises was entitled to the rents unless, upon a bill filed on account of some default, a receiver was appointed who might collect and hold the rents and pay them to complainants in case there was a deficiency; but in case there were no deficiency, the rents belong to the owners of the equity. Davis v. Dale, 150 Ill. 239. But as was said in that case, no cross-errors have been assigned and no complaint is made that the receiver and his solicitor were paid out of. the rents collected by the receiver. Of course where a receiver is wrongfully appointed, all costs incurred must be paid by the party who induced the court to make such appointment, but as stated, no question was raised in the trial court or in this court on that point. Complainants having no claim to the rents in the hands of the receiver, the order appealed from is affirmed.

Affirmed.

McSurely and Hatchett, JJ., concur.


author: Mr. Justice McSurely

text:
    McGrath & Swanson Construction Company, Appellant, v. Chicago Railways Company et al., trading as Chicago Surface Lines, Appellees.
    Gen. No. 33,288.
    Opinion filed April 22, 1929.
    Nelson, Wilson & McFall, for appellant.

      George W. Miller, Arthur J. Donovan and W. I. Deffenbaugh, for appellees; Frank L. Kriete and Warner H. Robinson, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a proceeding under section 89, chapter 110, Illinois Statutes, Cahill’s St. ch. 110, if 89, whereby plaintiff sought to have vacated an order dismissing his suit for want of prosecution.

September 20,1928, this suit was dismissed. November 24, 1928, at a subsequent term, plaintiff’s petition to vacate this order of dismissal was filed, to which defendants demurred. Plaintiff then filed a motion for change of venue from Judge Brothers, who was the judge who had ordered the suit dismissed. This motion was denied and subsequently upon hearing the court sustained the demurrer to plaintiff’s petition, and it was ordered that the plaintiff take nothing. From this order it appeals.

Was the motion for change of venue properly denied? Plaintiff asserts the negative, predicating its argument upon cases holding that the motion under section 89, Cahill’s St. ch. 110, If 89, is in the nature of a writ of error coram nobis and is a new suit independent of and different from the original action. Harris v. Chicago House Wrecking Co., 314 Ill. 500; Reid v. Chicago Rys. Co., 231 Ill. App. 58. It is evident from an examination of the purposes and practice under the common-law writ of coram nobis that, while with respect to process, pleadings and judgment the writ may be considered as a new and independent action, yet it is not wholly so but is supplementary in its nature for the purpose of correcting errors committed in a preceding cause. It is impossible entirely to separate the writ of error coram nobis from an original proceeding, for its very nature and purpose relate to and affect such proceeding. The writ is to vacate a judgment in the court where it was rendered by bringing some fact to the knowledge of that court which was not previously known and which, if known, would have prevented the rendition of the judgment. Coram nobis means “before us” or quae coram nobis residant, which roughly translated is “which before us remain,” so called “from its being founded on the record and process, which are stated in the writ to remain in the court of the king before the king himself.” Bouvier’s Law Dictionary, vol. 1, p. 681. And the writ was directed to the same court which entered the judgment. Vol. 4, Words and Phrases," 2nd series, p. 1350, and cases there cited. In Holdworth’s History of English Law, vol. 1, p. 224, we find that:

“Certain errors in the process of the court, committed by the defaults of the clerks, or as to matters of fact, could be remedied by the court itself. The writ issued for this purpose was called a writ of error ‘coram vobis’ if the error was in the Common Pleas; ‘coram nobis’ if it was in the King’s Bench.”

And in a footnote the author says that:

“The difference in form results from the theory of the actual presence of the king in the King’s Bench.” In Black on Judgments, vol. 1, p. 377, referring to the writ of error coram nobis, the author says:
“This writ was so called from the technical words, which recited that error was alleged to exist in a certain record remaining ‘before us,’ that is, before the court which had pronounced the judgment.”

And in 34 C. J., p. 398, the rule is stated:

“The court which rendered the judgment and in which the record is has exclusive jurisdiction of a writ of-error coram nobis to vacate it.”

To the same effect is Chapman v. North American Life Ins. Co. 292 Ill. 179, where the court said:

“At common law the writ of error coram nobis could be sued out of the same court when a judgment at law" was rendered to reverse the judgment, and before the same judge who rendered the judgment, for an error of fact that, might be brought to the knowledge of the court that would be sufficient, of itself, to defeat the judgment. ’ ’

That the errors to be corrected under the writ were errors of fact would seem to require that the writ should be brought before the same judge who rendered the original judgment, for he only would know whether or not he was ignorant of the fact which if known would have prevented the judgment.

Section 89, chapter 110, Illinois Statutes, Cahill’s St. ch. 110, Ü 89, does not change this rule. This provides in part that:

“The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed.”

The same reasons which required the old writ to be presented to the same judge who rendered the original judgment also obtain under section 89 of the statute quoted, so that the provision of the statute that such errors of fact “may be corrected by the court in which the error was committed” is consonant with and follows the practice at common law.

It follows, therefore, that the statutory provision for a change of venue is not applicable to the instant proceedings and was properly denied. A similar question was involved in Gilman v. Donovan, 59 Iowa 76, where it was held, for reasons like those above expressed, that the statute authorizing a change of venue is not applicable. To the same effect was the conclusion in Christ v. Jovanoff, 84 Ind. App. 676.

The petition alleges that the case was number 64 on the calendar of Judge Brothers, and was on September 17, 1928, called with other cases on what is called the “first call” of eases, being the first one hundred cases on the calendar; that a representative of plaintiff’s attorneys had two or more other calls to attend to on that date, and before the instant case was called, upon the convening of court, asked Judge Brothers’ clerk to set said cause for trial on November 12, 1928, and the clerk stated he would have the case set for that time, and it was so reported to one of the attorneys for the plaintiff; that instead of setting the cause for trial November 12, 1928, Judge Brothers’ clerk, either through oversight or forgetfulness, made the ministerial error of marking the figures “20” on his calendar after said case; that thereafter said cause came on for trial on September 20, 1928, before Judge Brothers without notice to or knowledge of plaintiff or its attorneys, and that thereupon, when called for trial it was dismissed for want of prosecution; that on or about November 7th or 8th plaintiff’s attorneys called upon defendants’ attorneys and requested that the case be continued thirty days from November 12, 1928,'to which the latter consented; that November 12, 1928, was a holiday, being the Monday after Armistice Day, and there was no call of cases on the morning of November 12th, and that the case did not appear on the call of Judge Brothers for November 13th, the following day, whereupon plaintiff through’ its attorneys made an investigation as to why the case was not on the call for November 12th and then learned for the first time that the cause had been dismissed for want of prosecution on September 20th.

There is also in the record a rule of the circuit court providing that “first calls” will not exceed 200 cases and are “for the purpose of ascertaining what causes will be marked for trial, passed or continued. ’ ’ It also appears from the record that September 17th, the day on which the cause appeared on Judge Brothers ’ first call, was the opening day of court after the vacation period, and that there were several other branches of this court which had announced first calls for the same hour and the same day as the first call of Judge Brothers’ court. Defendants’ demurrer in effect admitted that the mistake of the clerk in placing the cause for trial on September 20th instead of November 12th, as requested, caused the entry of the order of dismissal.

Madden v. City of Chicago, 283 Ill. 165, is precisely in point. There it was said of a similar mistake:

“As disclosed by the affidavit in support of the motion to reinstate, the court, upon the calling of the calendar on July 18,1914, performed no judicial act based upon a consideration of facts presented. Under the rule of court the call of the calendar was had merely for the purpose of enabling the attorneys in the cases to express their wishes as to whether the cases in which they were respectively employed should be set for trial, continued or stricken from the docket. It was the duty of .the minute clerk, under this rule of court, to indicate merely the desire of each attorney as expressed, and the court, in making the order, merely followed the minute made by the clerk. This was not a judicial determination, and if by error the clerk did not correctly note the request of an attorney the mistake was one of fact and not of law, even though the court acted upon the error made by the clerk.”

Helpful also is the recent decision of Toth v. Samuel Phillipson & Co. 250 Ill. App. 247, where it was held that a similar mistake of the minute clerk was an error of fact which could be corrected under section 89 of the Practice Act, Cahill’s St. ch. 110, H 89. The opinion comments upon the well known conditions in the numerous trial courts of this county and the impossibility of attorneys to appear in person in response to all of the court calls. It is necessary to rely upon the instructions given to and the statements made by the clerks of the court with reference to setting cases for trial; especially is this true in the instant case, where all of the courts of Cook county opened on September 17th with many “first calls” in the various courts. In the instant case the mistake of the clerk of the court in noting the case for trial upon the wrong date was a mistake of fact which misled both the parties to the suit and the court.»

Defendants’ demurrer should have been overruled. The order appealed from is reversed with directions to overrule defendants’ demurrer and to allow the prayer of plaintiff’s petition to vacate the order of dismissal of September 20, 1928.

Reversed and remanded with directions.

O’Connor, P. J., and Hatchett, J., concur.


text:
    LaGrange Press, Appellant, v. Citizen Publishing Company and William W. Loomis, Appellees.
    Gen. No. 33,312.

      Opinion filed April 22, 1929.
    Weightstill Woods, for appellant.
    Winters, Stevens, Risk & Griffith, for appellees; George M. Stevens and Melvin L. Griffith, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

In an action on the case for libel, plaintiff’s declaration in four counts was met by general and special demurrers, which were sustained by the trial court, and plaintiff electing to stand by its declaration the suit was dismissed.

The libel alleged is found in an article appearing in a weekly newspaper published in the Village of La-Grange, Illinois, called the “LaGrange Citizen,” of which the defendant Citizen Publishing Company was the owner and the defendant William W. Loomis was the editor. It is as follows:

“Vote to Stand by. Their By-Laws Chamber of Commerce Refuses to Establish Precedent by Changing Its Rules.
“By a two to one vote the LaGrange Chamber of Commerce declined to waive its by-laws relative to advertising in a newspaper that has not qualified according to the association rules. A rule adopted many years ago provided' that members could not advertise in a paper until it had been admitted to the mails as. second class matter for three months.
“The LaGrange News has had its application for entry to the mails turned down by the post office department, and the publishers asked the Chamber of Commerce to grant a ‘special dispensation’ so members might advertise without being fined. They had previously intimated to the board of directors that they might take the matter into court as their attorney had advised them the association’s rule was in restraint of trade.
“The directors asked the association attorney, Walter Hamilton, for an opinion which was read Monday night. He went into the case thoroughly and advised that the association was within its legal rights in adopting such a rule.
“The question of policy was then debated at length and the members appreciated the position of the News, but felt that it would be establishing a precedent it would be hard to stop if they began making exceptions in the enforcement of the rule. The vote was two to one for living up to the rules.”

The particular words complained of are presented in the declaration as follows: “The LaGrange News (meaning the newspaper owned and published by the plaintiff) has had its . . . application for entry to the mails turned down by the post office department (meaning the plaintiff’s publication, LaGrange News, had been excluded by the post office department as non-mailable matter.)”

Plaintiff’s' declaration set forth the federal postal law describing nonmailable matter. Briefly stated, this statute bars from the mail all obscene publications. Plaintiff alleged that, when defendants published that plaintiff “has had its application for entry to the mails turned down by the post office department,” it was meant that plaintiff’s publication “had been excluded by the post office department as non-mailable matter,” and alleged in various forms that this was maliciously published with intent to injure the plaintiff by bringing its good name into public scandal and disgrace and to destroy its reputation and credit.

In determining whether or not the published article is libelous per se, we must view it stripped of all innuendo, colloquium or extrinsic or explanatory circumstances, and if the words are unambiguous and incapable of an innocent meaning they may be declared libelous as a matter of law. Dowie v. Priddle, 216 Ill. 553, 558; Slaughter v. Johnson, 181 Ill. App. 693; Schmisseur v. Kreilich, 92 Ill. 347; Burr v. Winnett Times Pub. Co., 80 Mont. 70; Kee v. Armstrong, Byrd & Co. (Okla.), 151 Pac. 572; Brick Bowman Remedy Co. v. Jensen Salsbery Laboratories, Inc., 17 F. (2d) 255. In determining this, the words must be taken in the sense which readers of common and reasonable understanding would ascribe to them, that is, in their ordinary and common acceptation. “All the words in the article are to be considered, and when they are all considered together, the question is, how would they be understood by men of common and reasonable understanding?” People v. Fuller, 238 Ill. 116; Nelson v. Borchenius, 52 Ill. 236; Barnes v. Hamon, 71 Ill. 609; Ransom v. McCurley, 140 Ill. 626. The meaning of the words alleged to be libelous cannot be, by innuendo, extended beyond a reasonable construction. Sullivan v. Illinois Pub. & Prtg. Co., 186 Ill. App. 268. Innuendoes are not available to impute libel to an article which in itself is otherwise innocent of any libelous meaning. Fulrath v. Wolfe, 250 Ill. App. 130. Words alleged to be libelous will receive an innocent construetion if they are reasonably susceptible of it. Young v. Richardson, 4 Ill. App., 364; Fulrath v. Wolfe, 250 Ill. App. 130; Harkness v. Chicago Daily News Co., 102 Ill. App. 162.

Plaintiff argues upon the assumption that the defendants had published “that plaintiff had been denied the use of the United States mail in its newspaper business” and that the average reader would understand this to mean that plaintiff’s business “was conducted by fraud or obscenity in contravention of the federal statute,” which bars such publications as non-mailable.

This is a distorted meaning of defendants’ article. It makes no such charge. It says that plaintiff’s “application for entry to the mails” has been refused. Chapter 6, sec. 226 of the U. S. Code, entitled the Postal Service, gives the conditions upon which a publication shall be admitted to the United States mails. These relate to regularity of issue, the office of publication, the format and the purpose of the publication. These conditions are entirely unrelated to any moral qualities of the publication, so that the refusal of the post office department to admit plaintiff’s newspaper would manifestly have no connection whatever with the statute barring obscene publications.

In the cases cited by plaintiff where the article or. language complained of has been held to be libelous, the judgment was based upon the conclusion that the article was susceptible of no other fair construction than that it contained an imputation upon the plaintiff’s character or reputation. That is not true of the . article before us. It is entirely consistent with plaintiff’s freedom from any moral taint or wrongdoing. To hold it libelous would be to enlarge the meaning of the words used beyond their natural and ordinary meaning and to give them a meaning far beyond that which they reasonably convey. They are fairly susceptible of but one meaning and that a purely innocent one.

The demurrers were properly sustained, and the judgment order is affirmed.

Affirmed.

O’Connor, P. J., and Hatchett, J., concur.


author: Mr. Justice Matchett

text:
    George Uihlein, Appellant, v. Britton I. Budd, Appellee.
    Gen. No. 33,276.
    Opinion filed April 22, 1929,

      Barry & Crowley, for appellant; George C. Potts, of counsel.
    Goodrich, Vincent & Bradley, for appellee; Warren Nichols, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff appeals from a judgment rendered in favor of the defendant after a demurrer to plaintiff’s amended declaration was sustained. The controlling-question in the case is whether' the declaration as amended stated a cause of action.

The declaration was in assumpsit. It alleged that defendant Budd and other persons were actively engaged as cotrustees in the acquisition, management and disposition of real and personal property under the name of “The Vincent Trust, a business trust, so-called”; that on said date, through C. R. Vincent as president thereof, “one of the trustees aforesaid,” executed and delivered to plaintiff three promissory notes in the principal sum of $2,500 to plaintiff’s order; that the notes were signed “The Vincent Trust by C. R. Vincent, Pres.” and “The Commonwealth Trust & Security Company, by C. W. Thomas”; that Vincent was authorized by his cotrustees to execute and deliver these notes; that the same were due; that the Vincent trust was controlled and operated by the trustees named; that the notes were issued by the trustees through Vincent as president, and that defendant thereby became liable to pay these notes to the plaintiff, which he refused to do. Copies of the notes were attached to the declaration.

Plaintiff contends that Budd became personally liable to pay these notes by reason of the facts stated in the declaration. He contends that all of the trustees were liable and that he could elect to sue one or to sue all under the rule stated in Wisner v. Catherwood, 225 Ill. App. 471, 474, and Tandrup v. Sampsell, 234 Ill. 526.

Plaintiff further contends that Vincent was the agent of all the trustees and that they were jointly and severally liable upon the theory that a principal is bound by the agreements of his agent. He says that the trustees of the Vincent trust authorized C. R Vincent to act in their behalf; that Vincent so acted and the trustees were therefore liable. He points out that a trust cannot make a"contract; that if a trustee is not bound on such a contract, then nobody is bound (Taylor v. Mayo, 110 U. S. 330); that in the absence of a reservation against personal liability the trustee becomes personally liable even if the trust deed provides otherwise; that the trustees were liable as disclosed principals, and that plaintiff could sue one or all of them.

The facts alleged in the declaration do not justify the conclusion of law that defendant Budd is personally liable. These facts do not show that Vincent in this matter was the agent of Budd. Vincent was the president of the trust. The declaration avers that he had authority to execute notes in the name of the trust. It is not averred that he had authority to execute notes in the name of his cotrustees. Vincent derived all his power and authority from the trust deed as a trustee with the others in relation to the trust business and property. He did not on the facts alleged have the authority to bind Budd or any of the other cotrustees personally. It might be that the law would impose a personal liability on Vincent by reason of the manner in which he executed the authority, but, if so, the liability is upon Vincent alone and not upon Budd or any of the cotrustees.

It is of course true that a trustee who enters into a contract with third persons is himself personally liable unless the agreement expressly provides that the person with whom he contracts shall look to the funds of the estate exclusively. Austin v. Parker, 317 Ill. 348. Unless such limiting language appears in the contract, the word “trustee” is held to be only descriptio personae, but there is no averment here that the defendant Budd signed any agreement. He cannot be held liable solely by reason of the fact that Vincent executed these notes (if such be the case) in a way that would impose a personal liability upon himself. The declaration fails to aver facts showing an intention to create a personal liability of defendant and he was not liable. Empire Fire Proofing Co. v. Comstock, 121 Ill. App. 518.

For the .reasons indicated the judgment of the trial court is affirmed.

Affirmed.

O’Connor, P. J., and McSurely, J., concur.


author: Mr. Presiding Justice Gridley

text:
    John B. Hunt, Plaintiff in Error, v. Tillie Hunt, Defendant in Error.
    Gen. No. 32,958.

      Opinion filed April 30, 1929.
    Julius Limbach, for plaintiff in error.
    Frank E. Makeel, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion óf the court.

On March 25, 1926, complainant filed a bill in the superior court of Cook county, praying for the annulment of his marriage with defendant, which occurred on December 21, 1916, at Crown Point, Indiana. Defendant filed an answer, denying that he was entitled to such relief, and also filed a cross-bill for a divorce, charging him with extreme and repeated cruelty. Complainant filed exceptions to defendant’s answer and demurred to her cross-bill. Subsequently he withdrew the exceptions and by leave of court filed an amended bill to which defendant filed an answer. He did not file a replication but on his motion the cause was set for hearing upon the amended bill and answer, presumably in accordance with the provisions of section 29 of the Chancery Act, Cahill’s St. ch. 22, 29. Subsequently such a hearing was had, and on June 22, 1928, the court dismissed the amended bill for want of equity, and also dismissed defendant’s cross-bill. By the present writ of error complainant seeks to reverse the court’s decree dismissing said bill for want of equity. No cross-errors have been assigned by defendant.

In the amended bill, after setting forth his supposed marriage with defendant (as Tillie Aster) at said time and place, complainant alleged that he is and has been for more than one year last past a resident of Illinois; that after said marriage and until about March 25, 1925, the parties lived and cohabited together as husband and wife; that at the time of the marriage defendant had a husband, E. LeRoy Aston, who then was and still is living and who then was not divorced from her; that Aston and defendant were lawfully married on September 6,1906, at St. Louis, Missouri, and for a considerable time thereafter lived and cohabited together as husband and wife; that Tillie Aster and Tillie Aston are one and the same; that defendant deserted Aston; that on April 15, 1920, Aston in the superior court of Cook county, Illinois, obtained a decree of divorce from defendant on the ground of desertion; that at the time of complainant’s supposed marriage with defendant on December 21,1916, he had no knowledge of her prior marriage with Aston and did not ascertain that fact until about March 25, 1925; and that he immediately consulted counsel, was advised as to his legal status, and thereupon discontinued his cohabitation with defendant.

In defendant’s answer she admitted that complainant had been a resident of Illinois for more than one year prior to the filing of his original bill, that the parties were married in Indiana at the time and place as alleged, that thereafter they cohabited together as husband and wife, and that they have one child. She, however, alleged that said cohabitation continued beyond March 25, 1925, and until May 11, 1925, at which date complainant abandoned defendant and the child, and has ever since remained away from them and refused to contribute to their support. She further admitted that she was lawfully married to Aston on September 6, 1906, at St. Louis, that they cohabited together for 4 or five years thereafter, and that on April 15, 1920, after her said marriage with complainant, Aston obtained a divorce from her on the ground of desertion. She further alleged that when she married complainant in December, 1916, she “was credibly informed and fully believed that said Aston had either died or had obtained a divorce from her, and that she entered into said marriage with complainant in good faith, believing that she was at that time free to marry”; that complainant, at the time of his marriage to her in December, 1916, had full knowledge of her former marriage to Aston; that he also had knowledge that in April, 1920, Aston obtained a divorce from her; that nevertheless he continued thereafter to cohabit with her as her husband for several years and until May 11, 1925, during all of which period “he held out this defendant as his lawfully wedded wife”; that “their relation as such was notorious and open”; and that “they were recognized and accepted by all of their relatives and friends as being a lawfully wedded couple.”

It is well-settled law in this State that “the marriage of a man and woman, where one of them has a husband or wife by a prior marriage, who is then living and undivorced, is void, and not merely voidable.”

(Cartwright v. McGown, 121 Ill. 388, 395; Gordon v. Gordon, 141 Ill. 160, 170; Schmisseur v. Beatrie, 147 Ill. 210, 214.) In the Schmisseur case it is decided in substance (p. 216) that, where a woman at the time of her second marriage has a husband living and undivorced and subsequently said husband obtains a divorce from her, said second marriage “is not thereby legalized.”

As we understand defendant’s contention here made, it is in substance that, notwithstanding her marriage with complainant was bigamous and void (Duenser v. Supreme Council of Royal Arcanum, 262 Ill. 475, 481; People v. Spoor, 235 Ill. 230, 232), the superior court under the facts disclosed was fully warranted in dismissing complainant’s bill for want of equity and in refusing to enter a decree annulling said marriage, and because of the doctrines of pari delicto and “unclean hands.” We cannot agree with the contention and are of the opinion that, as the State is an interested party, the court should have entered a decree annulling said marriage. Of course, the dismissal of defendant’s cross-bill for a divorce, her marriage to complainant being void and of no effect, was proper.

In Szlausis v. Szlausis, 255 Ill. 314, it was decided that, where both parties to a proposed marriage know that the intended husband has not been divorced from his former wife for the period he is prohibited by statute from marrying again, the marriage is void and should be annulled, even though the parties are in pari delicto; but that, as to their property rights, the court will refuse to lend its aid to either of them. It is said (p. 319): “The rule of par delictum will not be applied, however, to prevent relief in a suit to annul and set aside a void marriage. That is a matter in which the State is an interested party. Under the facts as found by the court the marriage should be set aside as void, but the parties are entitled to no other or further relief.” In Arado v. Arado, 281 Ill. 123, it was decided that, under the amended act of 1887, a marriage between cousins of the first degree is void and not merely voidable; that such a marriage, being prohibited by law and made a criminal offense, cannot become valid by ratification or estoppel; and that the public interest prevents the application of the rule that equity will not entertain the complaint of one who comes into court with unclean hands. The court said (p. 128): “The Court of Appeals of West Virginia decided in Martin v. Martin, 54 W. Va. 301, that if the parties could continue the marriage relationship without violating the criminal laws of the State the court might be justified in refusing to entertain the plaintiff’s bill to annul his marriage, but where the law forbids the continuance of the relation it is the duty of both parties to have the marriage annulled.” Our Supreme Court further said (p. 129): “The general rule that equity will not entertain the complaint of one who comes into the court with unclean hands does not apply, and if a party to an illegal marriage is so wanting in honor as to be willing to publish his own criminal offense and disgrace and humiliate his children and one with whom he has lived in the marital relation, the public interest requires that he should not be prevented from doing so.” (See also Weinberg v. Weinberg, 242 Ill. App. 414, 417; Simmons v. Simmons, 19 F. (2d) 690; also exhaustive an, notation to said Simmons case in 54 A. L. R. p. 80 et seq.)

For the reasons indicated the decree of June 22, 1928, dismissing complainant’s amended bill for want of equity, is reversed, and the cause is remanded with directions that the superior court enter a decree annulling said marriage between complainant and defendant, which occurred on December 21, 1916, as prayed for in said amended bill. That portion of said decree of June 22,1928, wherein defendant's cross-bill for a divorce was dismissed, will, however, not be disturbed.

Reversed and remanded with directions.

Scanlan and Barnes, JJ., concur.