text:
    Chesapeake and Ohio Railway Company, Appellant, v. Southern Coal, Coke & Mining Company, Appellee.

      Opinion filed July 26, 1929.
    Rehearing denied September 6, 1929.
    William G. Wise, for appellant.
    Kramer, Kramer & Campbell and Roland H. Wiechert, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is a suit in assumpsit brought by the Chesapeake and Ohio Railway Company, an interstate carrier, and hereinafter called the plaintiff, against the Southern Coal, Coke & Mining Company, a corporation, hereinafter called the defendant.

The case is based on a claim for freight charges on thirteen carloads of coal transported by the plaintiff from different coal companies located in West Virginia to the defendant at Chicago, Illinois, in the fall of the year 1923. To plaintiff’s declaration defendant filed a plea of general issue and a jury was waived and the cause tried before the court on a stipulation of facts and the evidence of one witness, the former manager of defendant’s Chicago office, offered on behalf of plaintiff. The court found the issues in favor of the defendant and entered judgment against plaintiff for costs and this appeal is prosecuted by plaintiff from said judgment.

The defendant was the operator of several coal mines located in St. Clair and Clinton counties in Illinois with its general offices at St. Louis, Missouri. In 1923 defendant had an office in the City of Chicago which was maintained for the purpose of selling the output of its mines and also acted as selling agent for other mines. During the year 1923 there was shipped to the defendant at Chicago thirteen cars of coal over the lines of plaintiff from different coal companies in West Virginia. One of these cars of coal was purchased by appellee and it was the owner thereof; the other twelve cars were not owned by defendant but it was only acting as the selling agent for such coal on behalf of the producers. While the cars were en route to Chicago the defendant gave reconsigning orders to the plaintiff instructing the carrier to deliver the cars in question to the Lakeside Coal Company in Chicago on the tracks of the Simplex Steel Company. Each reconsigning order had a notation thereon that the freight bill was to be sent to the Lakeside Company; that the charges were to follow and if the instructions given in the order could not be followed for either routing, rate or charges to telephone the office of defendant immediately, and copies of each of said reconsigning orders were signed by the plaintiff’s agent as a receipt and returned to the defendant for its files.

The plaintiff delivered the cars in question to the Lakeside Coal Company without collecting any of the freight charges due for transporting the coal from West Virginia to Chicago. The stipulation of facts further shows that on three of the reconsigning orders other cars of coal similarly shipped to the defendant at Chicago were reconsigned to the Lakeside Coal Company and freight charges were collected by the plaintiff from the Lakeside Coal Company; that the plaintiff delivered the thirteen cars of coal in question to the Lakeside Coal Company without collecting the freight charges thereon from point of origin to point of destination; that the Lakeside Coal Company was, at the time of the delivery of said coal, on the credit list of the plaintiff; that subsequently the plaintiff endeavored to collect the freight charges from the Lakeside Coal Company but was unable to do so because that company had become insolvent and had ceased doing business. The record in this case does not disclose that the plaintiff made any attempt to collect the charges due from the shippers or consignors in West Virginia. The amount of the freight charges due on the thirteen cars aggregated the sum of $2,288.60.

It further appears from the stipulation of facts that the thirteen cars of coal in question were shipped on what are called “mine cards” and “memo waybills” and that no bills of lading were issued by the plaintiff on said shipments. On all of these mine cards covering the thirteen cars the defendant appears as consignee and different mining companies, from which the coal originated, appear as operators, consignors or shippers and on some of the memo waybills there was a notation that the shipments were from designated mines in Virginia for the account of the defendant at Chicago, Illinois. No contracts concerning these shipments, except the reconsigning orders, were signed by the defendant.

J. B. Kavanaugh, called as a witness on behalf of the plaintiff, testified that he was the manager of the Chicago office of the defendant during the year 1923 and that on practically all of the cars of coal involved in this suit defendant was acting as the agent of the shippers who were mining companies operating in West Virginia, with the exception of one car which was purchased outright from the Pemberton Fuel Company; that it was the practice of the witness to send statements to St. Louis, the home office of the defendant, and settlements would be made with the mines from that office; that the defendant remitted to the coal companies in Virginia the amount collected, less commissions for selling, and that the defendant was not the shipper or consignor of any of the thirteen cars of coal; that the Chicago office of defendant was closed on May 1, 1925, and its records were shipped to St. Louis and that none of the records of defendant pertaining to said shipments in question could be located and the first knowledge that Kavanaugh had of plaintiff’s claim was when suit was filed against the defendant in August, 1926.

The plaintiff contends that the defendant, being the' consignee of the thirteen cars of coal in question and while said cars were en route having reconsigned them to the Lakeside Coal Company by written order, thereby became liable to pay the freight charges.

On the other hand the defendant contends that where the consignee of goods, transported by a common carrier, reconsigns the shipment and notifies the carrier to deliver the goods and collect freight charges from the one to whom the goods are delivered, the carrier so delivering the goods and failing to collect the freight charges cannot recover them from such consignee.

Under a somewhat similar state of facts as that disclosed in the record of the case-at bar the Appellate Court for the First District in the case of Chicago, I. & S. R. Co. v. McMillan & Bro. Coal Co., 207 Ill. App. 58, said: “No authority has been cited to sustain the proposition that a consignee by merely reconsigning the car becomes liable for the freight charges that' have accrued up to that time. The liability of the consignee to .pay the freight charges, in the absence of an express agreement, arises where the goods have been accepted by him knowing that the freight charges are unpaid and that the carrier looks to him for payment. Union Pac. R. Co. v. American Smelting & Refining Co. (121 C. C. A. 182), 202 Fed. 720; Central R. Co. of New Jersey v. MacCartney, 68 N. J. L. 165; Central of Georgia Ry. Co. v. Southern Ferro Concrete Co., 193 Ala. 108.

“In the Union Pacific case, sv,pra, the court said (p. 723): ‘The reason for this rule is that the consignee accepts the goods with knowledge that the carrier looks to him for payment of the transportation charges and waives his lien for them by delivery in reliance upon the consignee’s implied, promise, evidenced by his acceptance of the goods, that he will pay the charges.’ . . .

“Where a consignee of goods transported by a common carrier reconsigns the shipment and notifies the carrier to make delivery and collect freight from the person to whom the goods are delivered, the carrier, so delivering the goods and failing to collect the freight charges, cannot recover them from such consignee. 2 Hutchinson on Carriers (3rd Ed.), sec. 808; 4 Elliott on Railroads, sec. 1559; St. Louis Southwestern Ry. Co. v. Browne Grain Co., (Tex. Civ. App.), 166 S. W. 40; Tobin v. Crawford, 5 M. & W. 235, affirmed 9 M. & W. 716; Merian v. Funck, 4 Denio (N. T.) 110.”

The Appellate Court for the First District in Pere Marquette R. Co. v. American Coal & Supply Co., 239 Ill. App. 139, again reconsidered the principles announced in the McMillan case and after an elaborate discussion and distinction of many of the same cases relied upon by plaintiff adhered to the rule announced in the McMillan case and it was held by the court (p. 148) as follows: “In our opinion, the fact that an original consignee reconsigns the goods shipped and that the railroad complies with the order is no indication, either actual or constructive, that the railroad is looking to the consignee for the payment of the freight, or that the railroad is giving up the lien it has upon the goods for the amount of the freight charges. Of course, it may not be said that the railroad is giving up that lien, for it is retaining possession of the goods and is still in a position to enforce the lien unless the freight is paid. We are therefore of the opinion that the act of the consignee in reconsigning the coal in question to Alma, Michigan, may not be said to be such a constructive act of ownership as to make the defendant liable for the freight charges to Chicago, the original point of consignment, or to the point where the coal was first diverted.”

Our" Supreme Court in New York Cent. R. Co. v. Philadelphia & Reading Coal & Iron Co., 286 Ill. 267, held that where the carrier of an interstate shipment delivers a carload of coal to the consignee without collecting the freight charges, and is thereafter unable to collect same from such consignee, owing to the latter becoming insolvent before judgment was recovered against him, does not estop the carrier from recovering such charges from the consignor. In this case the coal was delivered in Pennsylvania to the carrier by the coal company, consigned to itself at Chicago, and the coal company by an order in writing had directed that the car of coal be forwarded to one Cook & Company who had purchased the same and agreed to pay the freight charges thereon at Pullman, Illinois, the order stating “charges follow.” The coal was delivered to Cook & Company and at the time the railway demanded payment of the freight charges the same were not paid. Suit was brought against Cook & Company for the charges and the railway company was unable to collect because of the insolvency ,of Cook & Company. The court held that under all the authorities the coal company was primarily liable for the lawful transportation charges and that such liability could only be released by actual payment.

In Louisville & N. R. Co. v. United States, 267 U. S. 395, 69 L. Ed. 678, it was held: “The general rule is that, if a consignee accepts a shipment, he becomes liable as a matter of law for the full amount of the freight charges.” Louisville & N. R. Co. v. Central Iron & Coal Co., 265 U. S. 59, 68 L. Ed. 900; Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 U. S. 577, 63 L. Ed. 1151.

The respective liabilities of shippers, consignees and their assigns for payment of freight charges to a carrier under the Interstate Commerce Laws were discussed and passed upon by the Supreme Court of the United States in the case of Louisville & N. R. Co. v. Central Iron & Coal Co., 265 U. S. 59, 68 L. Ed. 900, and it was said by that court: “But delivery of goods to a carrier for shipment does not, under the Interstate Commerce Act, impose upon the shippers an absolute obligation to pay the freight charges. The tariff did not provide when or by whom the payment should be made. As to these matters the carrier and shipper were left free to contract, subject to the rule which prohibits discrimination. The carrier was at liberty to require prepayment of freight charges, or to permit that payment to be deferred until the goods reached" the end of the transportation. ... To ascertain what contract was entered into we look primarily to the bills of lading, bearing in mind that the instrument serves both as a receipt and as a contract. Ordinarily, th'e person from whom the goods are received for shipment assumes the obligation to pay the freight charges, and his obligation is ordinarily a primary one. This is true even where the bill of lading contains, as here, a provision imposing liability upon the consignee, for the shipper is presumably the consignor and transportation ordered by him is presumably on his own behalf and a promise by him to pay therefor is inferred (that is, implied in fact), as a promise to pay for goods is implied when one orders them from a dealer. But this inference may be rebutted, as in the case of other contracts. It may be shown, by the bill of lading or otherwise, that the shipper of the goods was not acting on his own behalf; that this fact was known by the carrier; that the parties intended not only that the consignee should assume an obligation to pay the freight charges, but that the shipper should not assume any liability whatsoever therefor; or that he should assume only a secondary liability.”

In the case at bar there was no bill of lading which undertook to fix as a matter of contract whether the consignor or the consignee or his assignee should pay the freight. The mine cards or memo waybills contain no provisions from which it can be said that there was any contractual obligation on the part of the defendant to pay the freight in question. These mine cards or memo waybills were not signed by the defendant and, while it is true, that if the defendant had actually accepted and received the shipment in question, then as a matter of law, in the absence of express provision to the contrary, the defendant would be liable for the freight charges under the holding of the Supreme Court of the United States in the case of Pittsburgh, C., C. & St. L. R. Co. v. Fink, supra, nevertheless we are of the opinion that the liability of the defendant is to be determined by the provisions of said reconsignment orders.

When the defendant gave written instructions to plaintiff to deliver the cars in question to the Lakeside Coal Company (one who was not its agent), under express conditions that amounted to a direction to plaintiff to collect the freight at point of delivery from defendant’s assignee, plaintiff having accepted such re-consignment order was bound as a matter of contract between the parties to look to such assignee for its freight charges in the event that defendant’s assignee (the Lakeside Coal Company) accepted such shipment. The reconsignment orders were the only written contracts executed between plaintiff and the defendant relating to the freight charges in question and these reconsignment orders provided that the freight charges were to follow the shipment of coal, and, if these instructions given by the defendant to the plaintiff could not be followed out, plaintiff was directed to immediately notify the defendant. It does not appear from the record that any effort has ever been made to collect the freight charges in question from the original shippers or consignors of the coal in question and it may be said, as was said in the case of Louisville & N. R. Co. v. Central Iron & Coal Co., supra, that if the secondary obligation of the defendant was to be implied from the fact of its causing the freight to be received for transportation, the promise was not necessarily one to pay at any time any freight charges which the carrier might find it impossible to collect from the consignee’s assignee; and that when a shipment is accepted the party accepting such shipment, as a matter of law, becomes liable for the full amount of the freight ■charges and that this liability satisfies the requirements of the Interstate Commerce Act.

Plaintiff also contends that because the mine cards and memo waybills show that some of the cars in question were shipped by the mine owners for the account of the defendant that thereby the defendant became consignor of the shipments in question and was primarily liable for the freight charges. Under the stipulation of facts in evidence in this record we think the record shows that the various mine companies from whose mines the coal was shipped were the actual consignors of the coal and were the owners thereof, for in most instances the memo waybills showed the mine companies being designated as consignors.

In view of the holding of the United States Supreme Court in the case of Louisville & N. R. Co. v. Central Iron & Coal Co., supra, we are of the opinion that the obligation of the defendant to pay the freight charges in question is to be determined and measured by the mutual contractual arrangements which the defendant and the railway company entered into at the time of the giving and accepting of the said reconsignment orders. It appears from the subnote to the decision in the said Central Iron & Coal Company case that the Interstate Commerce Commission has prescribed a provision with reference to uniform domestic bills of lading whereby the consignor may relieve himself of all liability for freight charges. Under this provision it is provided that in the uniform bill of lading a shipper by signing his name to such provision may direct the railroad company not to deliver the shipment to ■ the consignee until the charges are collected and thereby the shipper is relieved from being compelled to pay any charges on such shipment.

We are of the opinion that the trial court did not err in its holdings on the propositions of law submitted by the plaintiff and that the judgment of the trial court in favor of the defendant should be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Newhall

license: Public Domain

text:
    J. J. Fuller, Appellee, v. Maryland Insurance Company, Appellant.

      Opinion filed July 26, 1929.
    W. Joe Hill and S. D. Wise, for appellant.
    D. F. Rumsey and K. C. Ronalds, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an action of assumpsit on an insurance policy, covering fire and theft of an automobile, by appellee against appellant for loss alleged to have been sustained by the appellee for a theft of his automobile on January 26,1926, and during the term of the insurance policy.

The declaration set out the policy m haec verba and alleged that the plaintiff has complied with all of the conditions and provisions of the policy. General issue was filed and special pleas alleging that proof of loss was not made as required by the policy; that the property insured had become incumbered by a chattel mortgage to one Isaac Mills. Appellee filed special replications to the special pleas alleging that he' had made proof of loss as required by the policy and that the property insured was not incumbered by a legal and valid mortgage as set out in appellant’s special pleas.

The policy provided that it should be void if the assured has' concealed or misrepresented any material fact or circumstances concerning the insurance or the subject thereof; or in case of any fraud, attempted fraud or false swearing by the assured touching any matters relating to the insurance, whether before or after a loss. The policy further recited that the same should be void if the interest of the assured be other than unconditional and sole ownership; or in case of any change in the nature of the insurable interest of the assured in the property described by sale or otherwise ; or for loss to the property insured while incumbered by any lien or mortgage.

The case was tried before the court without a jury and findings and judgment were entered in favor of appellee for the sum of $1,000.

The policy bore date June 11,1925, and appellee sustained the loss of his car by theft on January 26, 1926.

On March 23, 1926, appellee delivered to appellant’s agent affidavit or proof of loss in which appellee stated that at the time of such loss by theft there was no other insurance on said automobile and that the said automobile belonged to appellee, and that there was a mortgage in the sum of $600 on said car payable to Isaac Mills, of Eldorado, Illinois.

No propositions of'law were submitted to the trial court and the errors assigned are that the judgment of the court is not supported by the law and the evidence, and that the court erred in admitting improper evidence for appellee and in refusing to admit proper evidence for appellant. There was offered in evidence on behalf of appellee his affidavit or proof of loss containing the statement that there was a mortgage of $600 on the car payable to one Isaac Mills. Also appellee introduced in evidence the original chattel mortgage and note covering the same, bearing date November 28, 1925, mortgaging the car in question, which mortgage was recorded the day of its date in the recorder’s office of Saline county. Appellee testified that the note and chattel mortgage were executed by him on the day that they bore date and that both of said instruments were delivered back to him by Isaac Mills either the same day or the day after the mortgage was recorded and that they have been in appellee’s possession ever since ; that he received nothing from Mills, the morgtagee, for the note and mortgage and that there was no consideration given or received by him at the time of or after the making of the mortgage. On the trial appellee testified that the mortgagee, Mills, was in Detroit but that his exact whereabouts were unknown. Some time after the cause had been tried by the trial court, and while the same was pending under advisement, appellee filed an affidavit that he had learned where Isaac Mills could be located and filed a motion requesting that he be permitted to introduce the testimony of said Isaac Mills, to which motion appellant objected and the court refused the offer of appellee to produce Mills as a witness.

The only evidence offered by appellant other than the record of the chattel mortgage was the testimony of one witness concerning the value of the car at the time it was stolen.

Appellant contends that the giving of the purported chattel mortgage by appellee to Isaac Mills, together with the recording thereof in the recorder’s office, are in violation of the terms of the policy and render the same null and void, and that it is wholly immaterial as to whether or not it was a valid and enforceable' mortgage.

A policy is not as a general rule invalidated unless the incumbrance placed on the property is a valid and subsisting lien. If the instrument is inoperative or incomplete, as for want of unconditional delivery, the condition is not broken, since no real incumbrance has been created. 26 Corpus Juris, page 246, sec. 309. The principle of the foregoing citation from the text of Corpus Juris was considered at length by our Supreme Court in the case of Commercial Union Assurance Co. v. Scammon, 126 Ill. 355 (365), and it was there held, quoting from Orrell v. Hampden Fire Ins. Co., 13 Gray 431, that to constitute a breach of a condition of insurance relating to the conveyance of property there must be an actual sale or transfer of the property valid as between the parties.

In view of the undisputed evidence on the part of appellee that there was no consideration for the mortgage in question and that immediately after the making thereof- the original mortgage and note were surrendered to appellee, we are of the opinion that the trial court would be warranted in finding that there was no valid and subsisting lien either at the time of the giving of the mortgage or at the time of the loss of appellee’s car.

Appellant next contends that appellee, by reason of the making of the statement in the proof of loss that there was a mortgage in the sum of $600 on said car payable to one Isaac Mills, is now estopped to assert the falsity of his own statement. Further, that the insurance company was justified in relying upon the sworn statement of appellee at the time it was submitted ; that the conduct of appellee in this behalf amounted to an attempted fraud and false swearing which, in legal effect, voided his policy and in support of this contention appellant cites 26 Corpus Juris, page 381, sec. 491, as follows: ‘ ‘If the insurer has been misled by, or has changed its position in reliance on, statements in the notice or proofs of loss, insured is estopped from questioning their truthfulness.” The record does not show that appellant was misled in any way by the statement made by appellee in his proof of loss or that it has in any manner changed its position in reliance on the statement made by appellee. The most that can be said concerning the statement made by appellee is to the effect that there was, at one time, a mortgage on the property in question and appellant previous to the trial had ample notice that appellee claimed that it was not a valid and subsisting lien on the property in question either at the time of the making thereof or at the time of the loss. The same section of Corpus Juris above referred to, cited by appellant, also announces the rule that by the weight of authority unless the statements are fraudulently made or the facts are such as to estop him from disputing them, the insured is not conclusively bound by statements in the notice or proofs of loss, and that any statement in the proofs tending to show breach of warranty may be overcome by proof that there was no breach of warranty in fact. In Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329, it was held that sworn statements of the assured in his proofs of loss will not estop him but that in a suit on the policy he may give evidence of the actual amount of his loss and recover accordingly.

Appellant contends that the trial court erred in admitting evidence to the effect that there was no consideration for the alleged mortgage, for the reason that there was no issue made concerning the alleged want of consideration by the pleadings. The record shows that the objection now made was not made at the time of the trial. On the trial appellant objected on the ground that the recording of tlie chattel mortgage took care of the matter of consideration and that it was immaterial as to what the consideration actually was.

We are of the opinion that the findings and judgment of the trial court were supported by the law and the evidence and accordingly the judgment of the trial court is affirmed.

Affirmed.


text:
    Irene Wynn, Appellee, v. Clarence E. Wynn, Appellant.

      Opinion filed July 26, 1929.
    Pillow, Karnes & Flanders, for appellant.
    Keefe & Listeman, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal by appellant from a decree of divorce rendered by the circuit court of St. Clair county on April 4,1929, on a bill filed by appellee alleging adultery and wilful desertion by appellant for a period of more than two years.

The appellant, Clarence E. Wynn, and appellee, Irene Wynn, were married on October 22, 1919, in the State of Michigan and shortly thereafter moved to the City of Chicago where appellant was employed. About a year and a half later the parties moved to East St. Louis, St. Clair county, to the home of appellee’s mother, where the parties continued to live as husband and wife until June 28, 1924. At the time of the marriage appellee had accumulated about $1,000 and after their removal to East St. Louis appellee’s money was used to pay their board and room rent to her mother. On June 28, 1924, appellant, while appellee was away from their home, removed his personal belongings from the home and went back to the City of Chicago where he sought employment and there maintained an apartment with another woman.

At the April term, 1925, of the circuit court of St. Clair county, appellee filed her bill for separate maintenance against appellant, to which bill appellant filed an answer and after a hearing of the cause before the court a decree was rendered for separate maintenance in which the court found that on or about the 28th of June, 1924, appellant had wilfully deserted and abandoned appellee, leaving her no means or money for her support and the court adjudged that the appellant pay to appellee the sum of $240 a year in monthly instalments to commence on the 1st day of July, 1925, until the further order of the court. Alimony under this decree was paid from time to time by appellant until May, 1928, and on June 26, 1928, on petition of appellee, defendant was directed by the court to pay an additional $100 to appellee within 60 days for the purpose of medical treatment.

During the time that the decree for separate maintenance between the parties was in full force and effect, appellant on May 7, 1928, filed a bill for divorce in the chancery court of Hinds county in the State of Mississippi, in which appellant alleged that on the 28th day of June, 1924, appellee had abandoned and deserted appellant without any cause whatever on the part of appellant. The bill filed by appellant in Mississippi further averred that appellant had provided appellee with a good home and every necessity of life and that on the 28th day of June, 1924, appellee without any cause whatever on the part of appellant had abandoned ' appellant as her husband and wilfully refused continuously since that date to live with appellant as his wife and that such abandonment had óontinued for more than a period of two years and appellant prayed that the Mississippi court grant him a divorce. The bill was sworn to by appellant and attached to the bill appears an affidavit by appellant alleging that he had been a domiciled and resident citizen of the State of Mississippi since March, 1926. On May 7, 1928, the clerk of the Mississippi chancery court in which said bill was filed issued a citation notice addressed to “Mrs. 0. E. Wynn, East St. Louis, Illinois,” in which notice the said Mrs. 0. E. Wynn was summoned to appear before the said chancery court on the fourth Monday of May, 1928, to defend said suit which was entitled “O. E. Wynn, Petitioner, v. Mrs. 0. E. Wynn, Defendant.” The bill had alleged that Mrs. Irene Wynn was a nonresident of the State of Mississippi and whose last known residence being that of East St. Louis, Illinois. Publication of the citation notice was made on four different dates in a newspaper published in the City of Jackson in said County of Hinds, Mississippi, and the clerk certified that the nonresidence summons was mailed post-paid to “Mrs. C. E. Wynn, East St. Louis, Illinois.”

The final decree entered by the Mississippi court recited that the cause of Dr. C. E. Wynn v. Mrs. C. E. Wynn was heard on bill, proof of publication and oral evidence and it was decreed by the court that the bonds of matrimony theretofore existing between Dr. C. E. Wynn and Mrs. C. E. Wynn be dissolved.

To the original bill' filed by appellee in the court below, appellant filed an answer averring that the marriage relation between the parties had on June 13,1928, been dissolved by the decree of divorce rendered by the Mississippi court and attached to the answer was a duly authenticated copy of the whole divorce proceedings had in the Mississippi court. Appellee thereupon by leave of court filed her amended bill for divorce which alleged as cause for divorce adultery and two years wilful desertion and alleged that the decree of the Mississippi court was void; that said Mississippi court never had acquired jurisdiction of said cause because appellant had made a false and fraudulent affidavit wherein appellant had charged that appellee had desorted him on the 28th of June, 1924, without any cause whatever, which affidavit was necessary to give the chancery court of Mississippi jurisdiction in “order that a summons might be issued, and charged that there was in full force and effect the decree of separate maintenance, the provisions of which were well known to appellant at the time he made such false and fraudulent affidavit; that no summons had ever been served appellee and that she had no notice' of any kind of the pendency of the Mississippi proceedings and that such proceedings had been instituted by appellant in the Mississippi court for the purpose of defrauding the appellee.

The answer of appellant was allowed to stand to the amended bill, the replication of appellee filed and the cause was heard on the issues made before the chancellor.

Prior to the hearing of the case in the trial court, appellant entered his motion for dismissal of the cause, contending that the pleadings showed upon their face that the relationship of husband and wife did not then exist and that there was no marriage between the parties which could be dissolved. This motion was overruled by the court and the hearing proceeded in open court, the complainant and other witnesses testifying in support of the amended bill over objections of appellant. At the conclusion of all of the evidence, offered on behalf of appellee, appellant again moved for a dismissal of the cause predicated upon the foreign decree for divorce and upon the further grounds that appellee had produced no evidence which proved or tended to prove that the chancery court of Mississippi did not have jurisdiction to hear and grant the divorce to appellant from appellee as set up in appellant’s answer. This motion was denied and exceptions taken by appellant and thereupon appellant offered in evidence the duly authenticated transcript of the foreign divorce proceedings had in the State of Mississippi, and the court refused to admit such transcript except for the purpose of completing the record for appeal. Thereupon the trial court entered a decree of divorce in favor of appellee on the statutory grounds of desertion. An allowance of alimony was made in favor of appellee and counsel for appellant state that they raise no question concerning alimony awarded appellee, being content to rest their case upon the sole question as to the validity of the proceedings had in the Mississippi court.

Counsel for appellant say in their brief that the sole question to be decided by this court is whether the chancery court of the State of Mississippi had jurisdiction to hear and determine the cause which it assumed to do wherein appellant was granted a decree of divorce from appellee.

There is no question under the authorities but that the courts of Illinois will give full faith and credit to the judgments and decrees of foreign courts, including decrees of divorce. Dunham v. Dunham, 162 Ill. 589; Rendleman v. Rendleman, 118 Ill. 257; Forrest v. Fey, 218 Ill. 165; Field v. Field, 215 Ill. 496.

Where a transcript of a decree entered by a court in another State, duly certified, is offered in evidence in this State, no questions are open to inquiry except questions of jurisdiction, including fraud affecting the jurisdiction or the discretion of the court to exercise such jurisdiction. Forrest v. Fey, supra; Dunham v. Dunham, supra.

A decree of divorce entered by a court of a foreign State will be held void by a court of this State where the evidence shows that the complainant practiced a fraud upon the foreign court with respect to the time . of his residence, in concealing the address of defendant, which was well known to him, thus causing that court to wrongfully assume jurisdiction. Field v. Field, supra. In Dunham v. Dunham, supra, it was held that where a wife who, upon separation from her husband, goes into another State for the purpose of obtaining a divorce and brings a suit without disclos-' ing the fact that a suit is pending in the State of her former residence, involving the same matters alleged as a cause of divorce, and in which she has appeared, she is guilty of such fraud as to invalidate a decree of divorce obtained by her, although the pendency of the prior suit could not have been pleaded in abatement nor in bar of her divorce suit.

When appellant filed his sworn bill in the Mississippi court to the effect that appellee had deserted him, he knew it was false and untrue because he knew there was a decree in full force and effect in the circuit court of St. Clair county under which he was required to pay alimony at the rate of $20 per month at the time he filed his Mississippi suit. Appellant is charged with knowing that the decree recited that he had theretofore wilfully abandoned and deserted appellee without cause; that this decree was made in the year 1925 and appellant continued to make payments of alimony until May, 1928, so that when appellant filed his bill in Mississippi he was not only guilty of perjury but committed fraud upon the Mississippi court as well as upon appellee. Undoubtedly if the Mississippi court had been advised by apt averments of the true state of facts the relief granted by the Mississippi decree would not have been entered.

The mere domicile within the State of one party-to the marriage does not give the courts of that State jurisdiction to enter a decree of divorce enforceable in all the other States by virtue of the full faith and credit clause of the Federal Constitution against a nonresident who did not appear and was only constructively served with notice of the pendency of the action. Haddock v. Haddock, 201 U. S. 562, 50 L. Ed, 867. It was further said in the Haddock case: “Where the domicile of matrimony was in a particular state, and the husband abandons his wife and goes into another state in order to avoid his marital obligations, such other state to which the husband has wrongfully fled does not, in the nature of things, become a new domicile of matrimony, and, therefore, is not to be treated as the actual or constructive domicile of a wife; hence, the place where the wife was domiciled when so abandoned constitutes her legal domicile until a new actual domicile be by her elsewhere acquired. ’ ’

The undisputed proof in this record clearly shows that appellee proved the allegations of her amended bill and that the decree rendered in favor of appellant in the Mississippi court proceeding instituted by him was void and did not constitute a sufficient defense to appellee’s cause of action.

For the reasons aforesaid, the decree and judgment of the circuit court of St. Clair county is affirmed.

Affirmed.


author: Mr. Justice Wolfe

text:
    C. J. Meyer, Appellee, v. Correct Motor Fuels Company, Appellant.

      Opinion filed July 26, 1929.
    J. P. Streuber, for appellant.
    D. H. Mudge, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On December 10, 1927, the appellee was driving an automobile on the hard road leading from Wood River to Edwardsville. The Big Four Railroad crosses the hard road at the foot of what is commonly known in that neighborhood as “Bender Hill.” As the appellee was approaching the viaduct at Bender Hill he noticed there were several cars on the hill on the other side of the viaduct. He Immediately began to stop his car and stopped with the right-hand wheels off the pavement and within 10 or 15 feet of the first car that was standing on the hill. The hard road was covered with a thin coating of ice and this was the reason for the cars being stalled on the side of the hill. A bus was having difficulty in getting up the hill, holding all the other traffic back of it. After appellee stopped his car, he and his companion, who had been riding with him, remained in the car. Within a short time one of the appellant’s trucks driven by their servant approached the viaduct and collided with the car of the appellee, throwing the car and appellee into a ditch. The car was greatly damaged and plaintiff received injuries for which he started suit in the circuit court of Madison county. Issues were joined and the trial by jury had and a verdict returned for $2,000 in favor of the appellee. After judgment was entered on the verdict the appellant brought the suit to this court on appeal.

It is insisted by the appellant that the evidence does not sustain the verdict and the proximate cause of the injury to plaintiff was the slippery and icy condition of the road and was not caused by the negligence of the servant of the appellant. We are of the opinion the evidence is sufficient to sustain a verdict in the case.

The appellant submitted sixteen instructions, fifteen of them being given. The one marked “refused” the appellant now contends should have been given, and that it was error for the court to refuse to give it. The same principles of law as laid down in the refused instruction are all contained in the other instructions. Instruction No. 11, which was given, contains practically all of the propositions of law as the one which was refused. The other points in the refused instruction were covered by other instructions that were given and the court properly refused to give, the instruction.

The appellee testified that at the time of the accident he was working for the White Star Refining Company, and was receiving $5 per day; that as a result of the accident his car was totally demolished; that he was .scratched up and bruised; that he had a cut in the corner of his left eye towards his ear and had a sprained left arm-; that he could not raise his arm above his shoulders for about 10 days and did not have any strength and it was 15 days before he went back to work, and that if he tried to do any hard work the arm would pain him and that he still suffers some pain from the sprain. There was testimony that the value of the car before the accident whs $150. This was the only testimony in regard to the damage either to the plaintiff or to the car. No physician testified as to the nature, extent or character of the injuries; no medical testimony was produced to support the claim of the physical injuries that the appellee claims he sustained, .and no evidence as to the amount of the doctor bills incurred, or paid.

We are of the opinion" that the verdict of $2,000 is excessive, and the judgment for that amount should not be sustained. It is therefore ordered by the court that the appellee file a remittitur in said case within 20 days from date of filing this opinion and reduce the amount of said judgment to $1,000, the cost of this appeal to be equally divided between the appellant and the appellee. If such remittitur is not filed within 20 days, then the judgment of the circuit court of Madison county to be reversed and the case remanded.

Affirmed on remittitur; otherwise reversed and remanded.


author: Mr. Presiding Justice

text:
    Knights of the Ku Klux Klan, Incorporated, Appellee, v. First National Bank et al., Appellants.

    Gen. Nos. 8,117 and 8,128.

      Opinion filed January 25, 1928.
    Refiled April 12, 1928. Rehearing denied April 12, 1928.
    Thomas W. Hoopes and L. E. Stone, for appellants.
    W. F. Zumbrunn, W. B. Brown, J. H. Connaughton and B. H. Sullivan, for appellee.

      The opinion in this case which, was originally published as an abstract in 249 Ill. App. 658, is now, by the court’s direction, reported in full.

   Mr. Presiding Justice

Shurtleff delivered the opinion of the court.

We shall refer to the parties as complainant and defendants. This suit was based upon a bill in equity, praying that the defendants be required to account, an injunction and other relief. There was a hearing and a decree entered under date of July 8, 1925, finding and determining the rights of the parties and requiring the defendants to account. No appeal was prayed or taken from this decree. The cause was again referred to the master to hear the proofs and state an account, which resulted' in proofs being taken, a second report by the master stating the account, and a decree under date of September 8, 1926, determining the account, and from this decree defendants have appealed and the same is now pending in this court. Thereafter, the defendants sued out a writ of error to bring up the entire record, and said cause is now pending in this court as general number 8128. Defendants as plaintiffs in error have moved the court to consolidate the two causes, which motion has been allowed, while complainant (defendant in error) has moved to dismiss the writ of error upon the ground that the cause sought to be reviewed by writ of error was pending in this court upon appeal at the time the writ was issued, and that a writ of error will not lie to bring up a cause while an appeal is pending. The motion has been taken with the case. °We cannot agree with complainant’s contention. The two decrees, while growing out of the same cause of action, are separate, independent decrees and an appeal would lie from each. There is a distinction between an appeal and a writ of error. In a similar case, Drummer Creek Drain. Dist. v. Roth, 244 Ill. 68, 71, the court held: “A decree which finally fixes the rights of the parties must be appealed from within the time allowed by statute, and is not subject to review by an appeal from a later decree not involving such rights. (Gray v. Ames, 220 Ill. 251; DeGrasse v. Gossard Co., 236 id. 73.) ... ‘A writ of error to a final judgment brings up the whole record. ’ (7 Ency. of PI. & Pr. p. 899, and cases cited.) It has been held that a writ of error by one party brings up the entire record, and if any error exists to the prejudice of any party it may be corrected, whether it be in the judgment to which the writ of error was taken or in another in the same case. (Morgan v. Ohio River Railroad Co., 39 W. Va. 17.) While this court has held that in partition proceedings the decree which finally adjudicated the rights and interests of the parties could not be reviewed on appeal from a later decree in the same proceeding which did not affect such interests of the parties (Crowe v. Kennedy, 224 Ill. 526; Piper v. Piper, 231 id. 75;), we have also permitted, in partition proceedings, the original decree fixing the rights of the parties and a later decree taxing costs against certain of the parties to be reviewed by one writ of error. (Smith v. Roath, 238 Ill. 247.) All the final orders complained of in these proceedings have properly been brought to this court by this one writ of error. To review them by one writ of error tends to prevent multiplicity of suits and simplifies litigation. Such a practice is in harmony with the authorities and supported by sound reason.”

It would seem to follow that the writ of error supplanted the appeal and brings up the entire record, and that complainant’s motion should be denied.

From complainant’s bill of complaint we conclude that complainant is not a corporation for pecuniary profit, but is purely beneficial and eleemosynary and is for the purpose of conducting a patriotic, secret, social benefit order. “That its object is to unite white male persons, native born, Gentile citizens of the United States of America, who owe no allegiance . . . to any foreign government, nation, institution, sect, ruler, person or people, whose reputation and vocation are respectable, whose habits are exemplary, who are of sound mind and eighteen years or more of age, under a common oath into a brotherhood of strict regulations ; to cultivate and promote patriotism towards our civil government; to practice and cultivate klanishness toward each other; to exemplify and practice benevolence ; to shield the sanctity of the home and the chastity of womanhood; to maintain forever white supremacy; to teach and faithfully inculcate a high spiritual fellowship through an exalted ritualism, and by practical devotion to conserve, protect and maintain the distinctive institutions, rights, privileges, principles, traditions, and ideals of pure Americanism. ’ ’

That its said charter gives it power to confer initiative degrees, ritualism and so forth, that it has the right in itself to own and control the sale of paraphernalia, regalia, jewelry, materials, etc., used in said order, to hold real and personal property for the purposes of the organization, to borrow money and make transactions, etc. The bill further alleges the general authority of the said Knights of the Ku Klux Klan and to delegate its powers.

It is alleged that in 1923 said complainant established a subordinate state branch or realm organization in the State of Illinois, which was authorized to create and establish local branches throughout the State; that by means thereof many members have become a part of said organization that has been established throughout the State, many local organizations, all subordinate state organizations with thousands of members; that the defendant, First National Bank, was made depository for Abraham Lincoln Klan No. 3 at Springfield, Illinois; and that it now has on deposit approximately $11,900 of the funds of Abraham Lincoln Klan No. 3; that certain of the defendants held respective offices in said Abraham Lincoln Klan No. 3 and carried out certain necessary ritualistic work incident to their said offices.

The charter powers of said complainant are set out in the bill of complaint, together with certain by-laws adopted by the organization as follows: Section twenty of article eighteen reads:

“A Klan under any and all circumstances shall accord full respect to its charter, and thereby strictly observe the Constitution and Laws, mannerisms, usages and Kloranic (ritualistic) regulations and requirements of this Order as the same are promulgated by the Imperial Wizard; and shall give due respect and obedience to all Imperial, Realm and Provincial decrees, edicts, mandates, rulings and instructions issued by the said officers; and failure on the part of a Klan to do so shall be cause for revocation of its charter and the suspension of its entire membership from this Order. ’ ’

Section twenty-three of article eighteen provides:

“In the event the charter of a Klan has been revoked or cancelled for any cause whatsoever, and in the event of disbandment of a Klan, whether it be a chartered or provisional Klan, all monies of that Klan in the possession of any officer or member thereof shall automatically become the actual monies of the Imperial Treasury of this Order and same must be freely and promptly turned over on demand to the properly accredited officer who is authorized by the Imperial Wizard to receive same in the name of this Order; also all books, papers, manuscripts, Klorans, records; seals, Klan paraphernalia, regalia, robes, helmets and any and all other things used by the Klan, and all articles or things appertaining to this Order as may have been used by or are in the possession of any individual member thereof.”

Section twenty-five of article eighteen provides:

“No Klan or member shall use the name of this Order or any part thereof for any purpose that contravenes in any manner the laws of the land, that will reflect or probably reflect,' upon the reputation and good name, or compromise, or injure this Order, or any member thereof, in any way.”

And section sixteen of article eighteen provides:

“When a Klan becomes in arrears in payment, of its Imperial, Realm or Provincial tax for a period of one hundred days, its several offices are automatically vacated, its members denied visiting privileges in other Klans, and its acts subsequent thereto are invalid unless the time is extended by the Grand Dragon in organized Realms, either of whom shall have the authority to order a complete audit of this Klan’s affairs at the expense of the local Klan.”

It was further alleged that the properly accredited officer authorized by the Imperial Wizard, to receive in the name of this Order, all the monies and other property- set forth in section twenty-three of article eighteen, supra, is Charles G. Palmer, denominated Grand Dragon, Realm of Illinois, Knights of the Ku Klux Klan, Inc. It was averred that Abraham Lincoln Klan No. 3 of Springfield, Illinois, was organized in pursuance of a charter granted by the complainant in and for the Realm of Illinois, and that one Charles G. Palmer of Chicago was the “Grand Dragon” of the “Realm of Illinois,” having by appointment all of the power and privileges of the “Imperial Wizard, Knights of the Ku Klux Klan, Inc.,” and that the said Abraham Lincoln Klan No. 3 had failed to pay and was in arrears in páyment of its “Imperial Realm and Provincial tax, ’ ’ for a period of over three-quarters of a year and had seceded from said order; that said Abraham Lincoln Klan No. 3 had on hand funds and property properly belonging to said complainant and that due demand had been made for the same upon the issuing of the edict by the “Grand Dragon” in the following form, namely:

“Official Mandate, Ruling, Decree, Instruction or Edict No. 65.
“To the Exalted Cyclops, Terrors and Members of Abraham Lincoln Klan No. 3, Located at Springfield, Sangamon County, Illinois;
and
“To All Grand Dragons, Hydras, Great Titans, Fu'ries, Giants, Kleagles, King Kleagles, Exalted Cyclops and Terrors, and Citizens of the Invisible Empire in the Name of Our Valiant and Venerated Dead, I Affectionately Greet You By
Virtue of God’s Unchanging Grace:
“Whereas, Abraham Lincoln Klan No. 3, in the city of Springfield, Sangamon County, Realm of Illinois, has failed to accord full respect, mannerisms, usages and Kloranic (ritualistic) regulations and requirements of this Order as same are promulgated by the Imperial Wizard;
“And to give due respect and obedience to all Imperial, Realm, and Provincial decrees, edicts, mandates, rulings and instructions, its failure to pay its Imperial, Realm or Provincial tax for the second, third and fourth quarters for the year 1923 last past, and for other good and sufficient reasons, as provided in our Constitution and Laws,
“Now, Therefore, I, Charles G. Palmer, Grand Dragon, Realm of Illinois, Knights of the Ku Klux Klan, Inc., by virtue of the authority vested in me by Dr. Hiram Wesley Evans, Imperial Wizard, Knights of the Ku Klux Klan, Inc., do hereby revoke the Charter of Abraham Lincoln Klan No. 3, located at Springfield, Sangamon County, Realm of Illinois ;
“And O. W. Friederich, Post Office Box 17, Pekin, Illinois, is hereby directed to obtain from the officers and members of said Abraham Lincoln Klan No. 3, all property and funds belonging to the Knights of the Ku Klux Klan, Inc., and the officers and members of said Klan are directed to turn the same over to the said 0. W. Friederich, Post Office Box 17, Pekin, Illinois.
“Done in the Executive Chambers of the Grand Dragon, Realm of Hlinois, Knights of the Ku Klux Klan, in the City of Chicago, County of Cook, and State of Illinois, on this the fourth day of March, A. D. 1924; and on the Dismal Day of the Weeping Week of the Frightful Month of the Tear of the Klan LYII.
Faithfully yours,
In the Sacred Unfailing Bond,
Chas. G. Palmer,
Grand Dragon, Realm of Illinois.”
(Seal.)

but that said defendants had failed and refused to pay or turn over any of said funds or property. Other acts of misconduct by the defendants, tending to bring complainant and its subordinate lodges into contempt and disrepute were charged, and it was charged that the defendants had in their possession paraphernalia, property and funds to the amount of about $11,900, and the bill prayed an injunction and accounting.

The defendants answered the bill, substantially admitting the charter and by-laws of the complainant order, but denied the right of the complainant to cancel the said charter without notice and an opportunity to defendants to be heard; denied that any notice was ever given to any of said defendants of “Edict No. 65,” and denied all charges of misconduct against the defendants or either or any of them, and denied the possession of any funds or property belonging to the complainant.

We have omitted very much matter set up in the bill and answer and have attempted to cover only the substantial and salient issues in the case. There was a replication and the cause was referred to the master to take the testimony and report the same, together with his findings and conclusions to the court. The master heard the testimony and reported the same with his findings and conclusions iii the following form:

“1. That the Court has jurisdiction of the subject matter of this proceeding and of all the parties hereto, both Complainant and Defendant.
“2. That the Complainant is a corporation, not for profit organized and existing under the laws of the State of Georgia, and operated as a Fraternal Organization under and by virtue of its Charter, and in obedience to a certain Constitution and by-laws a certified copy of which is herewith filed and reference made thereto.
“3. That on or about the 10th day of June, A. D. 1923, the complainant established á subordinate State branch of its organization in the State of Illinois known as a ‘Realm’ which organization was in turn authorized to and did establish and maintain certain local branches throughout the State known as Klans. That the chief executive office of said ‘Realm’ organization is known as ‘Grand Dragon,’ and the chief executive officer thereof was, at all times herein referred to, Charles G. Palmer.
“4. That at some date subsequent to June 10th, A. D. 1923, a local ‘Klan’ was established and chartered at Springfield, Illinois, known as ‘Abraham Lincoln Klan Number Three, ’ and its principal executive officials were at the time of the revocation hereinafter referred to as follows: — Charles S. Wanless, ‘Exalted Cyclops’ (or President), James H. Ashby, ‘Kligrapp’ (or Secretary), J. B. Watts, ‘Klabee’ (or Treasurer).
“5. That on the 4th day of March, A. D. 1924, by his official edict of that date, and pursuant to the authority vested in him by the Constitution and By-laws of the Complainant, the said Charles G. Palmer as ‘Grand Dragon’ revoked said charter of ‘Abraham Lincoln Klan Number Three, ’ at Springfield, Illinois, and directed the officials and members of such ‘Klan’ to turn over to one O. W. Friederich, Pekin, Illinois, all property and funds belonging to Complainant.
“6. That Section 23 of Article 18 of said Constitution and By-laws of complainant provides that ‘in the event the Charter of a Klan has been revoked or can-celled for any cause whatsoever, and in the event of disbandment of a Klan whether it be a chartered or provisional Klan, all moneys of that Klan in the possession of any officer or member thereof shall automatically become the actual moneys of the Imperial Treasury of this Order and same must be freely and promptly turned over on demand to the properly accredited officer who is authorized by the Imperial Wizard to receive same in the name of this order; also all books, papers, manuscripts, klorans, records, seal, Klan paraphernalia, regalia, robes, helmets, and any and all other things used by the Klan, and all articles or things appertaining to this order as may'have been used by or are in the possession of any individual member thereof, ’ and upon the revocation aforesaid the property and moneys of ‘Abraham Lincoln Klan Number Three ’ automatically became the property and money of Complainant, and Complainant became entitled to the possession thereof.
“7. That Section 5, Article 19 of said Constitution and By-laws provides among other things that ‘the Kligrapp is the Secretary and recording officer of the Klan — he shall make a report through the proper channels to the proper officers not later than the 10th of the month for the calendar quarter last past — and with his reports he shall remit to said officer or officers all moneys belonging to this order such as Imperial Tax, Realm or Provincial Tax, Klectokons, moneys due for supplies and any and all other moneys due and payable to said officers. He shall be the custodian of the seal of the Klan. ’
“8. That Section 6, Article 19 of said Constitution and By-laws provides among other things as follows: ‘The Klabee is the Treasurer of the Klan.. He shall be the custodian of its funds and shall receive from the Kligrapp all moneys due to be turned over to him giving his receipt for same and keeping same apart from his personal funds and secure for the sole use of the Klan. . . .’
“9. That Section 7, Article 19 of said Constitution and By-laws provides among other things as follows: ‘The Kladd is the Conductor of the Klan and the custodian of its paraphernalia and other properties . .
“10. That upon the revocation of the Charter as aforesaid it became and was the duty of the defendant James H. Ashby, as ‘Kligrapp’ (Secretary) and the defendant, J. B. Watts, as ‘Klabee’ (Treasurer) to account to the complainant for all moneys of ‘Abraham Lincoln Klan Number Three’ then in the possession or control of said Klan or any of its officers or members, and said last named defendants should state an account showing the disposition of all such funds; and said secretary should likewise account for the seal of said ‘Klan.’
“11. That upon the revocation of the Charter aforesaid it became the duty of the official known as the ‘Kladd’ to account to complainant for all paraphernalia and other properties belonging to said Abraham Lincoln Klan Number Three, but it does not appear from the evidence herein who was then acting as the ‘Kladd’ of such Klan.
“12. The Master recommends a decree in accordance with the foregoing conclusions.”

To these findings, or findings and conclusions, no objections before the master or exceptions before the chancellor were made, except that the defendants James B. Watts and James H. Ashby, after reciting finding number ten, objected and excepted as follows: “Said finding was erroneous in that the evidence in this cause fails to show that there was anything due complainant by the defendants at the time of the revocation of the Charter as shown by the evidence in this case; and that the evidence shows affirmatively that there were no funds or property of any kind or character in the hands of either of these defendants, belonging to complainant for which they should account, except, the seal described in the evidence which was inadvertently in their possession and which they hereby tender into Court.”

The objection was overruled by the master, made an exception before the chancellor, overruled, and a decree was entered requiring the defendants James H. Ashby and J. B. Watts, as secretary and treasurer, respectively of “Abraham Lincoln Klan No. 3,” to account.

It is contended in the assignments of error on this decree that there is no evidence which would show a valid revocation of the charter of said Klan No. 3. Defendants made no such contention or objection before the master or the chancellor. On the other hand, defendants by their objection and exception to finding number ten, conceded and stated that the charter had been revoked, “as shown by the evidence,” and acted upon that finding by tendering the seal to complainant in court. It has been held that on appeal from a decree finding complainant entitled to a mechanic’s lien, defendant, by not filing exceptions to the master’s report, will be held to have waived all objections to the claim. (Pacyna v. Bliss, 180 Ill. App. 351.) The same case holds that without objections all conclusions of fact are waived. Findings of fact by the master not objected to, will not be reviewed upon appeal. (Gillett v. Chicago Title & Trust Co., 230 Ill. 373.) Questions depending on the weight of the evidence cannot be considered on appeal in the absence of objection and exception taken to the master’s report, on which the decree is based. Strayer v. Dickerson, 213 Ill. 414. Where no objections are filed to the master’s report finding as to the interest in the premises of one of the parties to establish a lien upon the property by virtue of a trust deed, such interest cannot be questioned on appeal. Marks v. Chicago Mortgage Corp., 218 Ill. App. 1. The same rule is laid down in Walker v. Chicago, M. and N. R. Co., 199 Ill. App. 610, and Angerer v. Southern Traction Co., 203 Ill. App. 25.

An examination of the findings of the master indicates that each of them was a finding of a fact, except the first as to the jurisdiction of the court — about which there is no contention — and the tenth and eleventh finding. The last two findings are based upon a revocation of the charter by “Edict No. 65” of the “Grand Dragon” and it is now contended that the granting of such power to an “Imperial Wizard” or “Grand Potentate” or “Absolute Power” to exercise without notice or a hearing, is un-American, unreasonable and void. No such question was raised before the master or before the court, and when “Edict No. 65” was offered and admitted in evidence the only objection made was that “there was no evidence” of its having been sent to or received by “Abraham Lincoln Klan No. 3.” It was accepted upon the trial as a legal and lawful exercise of power on the part of the ruling authorities and the evidence was overwhelming that the edict was received by and acted upon by the powers controlling Klan No. 3.

The fifth finding of fact by the master to which no objection or exception was made, was that the Grand Dragon cancelled and revoked the charter, and the defendants, by their exception to finding ten, so recognized the fact and are now estopped to urge the assignment of error. The contention, however, in its broadest sense is, that there cannot be a corporation sole for charity. The mere statement of the contention is its refutation. All things are not necessarily unAmerican merely because they do not suit our individual taste or cater to our advantage. What was said by the court in Gross Loge, etc. v. Brausch, 256 Ill. 185, is applicable to this case. In corporations not for pecuniary profit, the charter and by-laws constitute a contract between the members with which courts will not interfere.

Other assignments of error were made, one being that the charter of said Klan No. 3 was never revoked, when all of the oral testimony before the master and court is conclusive that the charter was revoked and that defendants acted upon the understanding that they were no longer members of complainant corporation.

Shortly prior to March 5,1924, the ‘1 Grand Dragon ’ ’ of the “Realm” by executive order removed the “Great Titan” of “Province No. 2,” and the members of “Abraham Lincoln Klan No. 3” took official action at the exact time they received notice of the cancellation of their charter, passing the following resolution:

“Whereas: The Great Titan of Province No. 2, Realm of Illinois, has been removed by the Grand Dragon of Illinois, for the reason that he refused to be made a party to the political betrayal of Klansmen of this State, and
“Whereas: Abraham Lincoln Klan No. 3, Realm of Illinois, has withdrawn from the National Organization until such time as the Imperial Palace shall take the necessary steps toward the removal of Charles G. Palmer as Grand Dragon of Illinois.”

Whether the defendants were willing to acknowledge that their charter had been cancelled or personally wished to nullify it by secession from the order, would appear to be a distinction without any material difference.

Klan No. 3 of Springfield claimed to take great offense at a letter sent out on February 21, 1924, from the office of the Great Titan (personally written by Palmer) in the following form:

“Imperial Palace op Invisible Empire, Knights op the Ku Klux Klan, Incorporated, Atlanta, Georgia, Realm op Illinois.
“Office of the Great Titan Province No. 5, Phone Randolph 3557-3361, P. 0. Box 811, Chicago, Illinois, February 21st, 1924.
G. T. No. 2,
Springfield, 111.
Faithful and Esteemed Klansman:
“The political Activities committee of the Illinois Better Government League, is of the opinion that Judge Jenkins of Springfield is to be preferred over Justice Dunn, as a candidate in the Third Judicial District for Supreme Court Justice.
“As I understand the matter Judge Jenkins has pledged himself to them and in line with the general political program about to be worked out he is considered the logical candidate. ...
“It is their hope therefore that you will be able to do all you can to help Judge Jenkins to secure the support of all concerned.
“It is absolutely useless for the Political Activities committee of the League to concentrate upon any particular endeavor and then have their recommendations ignored. While the rank and file cannot be told every little in and out of the situation, those of us who are broad enough to take in their comprehensive program at a glance should be willing to co-operate with them and accept their recommendations as final. At least they have given much more time and thought to the qualifications of the respective candidates than the individual voter has, and that taken in conjunction with the additional consideration of promises made by the candidates themselves to give recognition later on, is suffice for me as an individual.
“Faithfully yours,
“In the Sacred Unfailing Bond.”

And “Klan No.-3” now represent that they were opposed to the order interfering with politics in any manner. Just why they waited from February 21 to. March 5, 1924, to pass the resolution of withdrawal is not made clear.

It is contended that it is not shown that the complainant order had authority to do business in the State of Illinois. This is a matter that should have been set up by defendants’ answer and shown by the proof. (Holmes v. Standard Oil Co., 183 Ill. 70; Delta Bag Co. v. Kearns, 160 Ill. App. 93; Delta Bag Co. v. Kearns, 253 Ill. 365.) Even if it should be conceded that complainant was amenable to the Foreign Corporations Act, Cahill’s St. ch. 32, If 80 et seq. and acting in violation thereof, defendants (except the bank) were all members of the order and are estopped to raise that question. The charter and by-laws of complainant operate as a contract between the corporation and its members, who became members in reliance upon them, and the contract, like any other one, is not to be abrogated or set aside by construction on the ground that the performance of it would be inconvenient or unfavorable to either one of the contracting parties. (14 Corpus Juris, 346; Cratty v. Peoria Law Library Ass’n, 219 Ill. 516, 523; Supreme Lodge K. of P. v. Kutscher, 179 Ill. 340, 344; Mandel v. Swan Land & Cattle Co., 51 Ill. App. 204, 209.)

We find no error in the decree of' July 8, 1925, that would warrant a reversal.

On the proceedings before the master upon the accounting, it was shown that the defendants James H. Ashby, as former secretary, and J. B. Watts, as former treasurer, were responsible for the moneys of the order, which had been deposited in the First National Bank of Springfield prior to March 5, 1924, to the amount of $10,854.08, and which were carried in the bank on an account under the name of “J. B. Watts, Sec’y.” At the opening of the bank on the morning of March 5, 1924, four checks were cashed, said checks having been issued by the defendants Ashby and Watts, one pretending to bear date March 1, 1924, payable to the order of said James H. Ashby for the sum of $1784; one pretending to bear date -of February 29, 1924, payable to the order of Charles S. Wanless for the sum of $1175; one pretending to bear date February 27, 1924, payable to the order of J. W. Dugger for the sum of $5000; and the fourth pretending to bear date February 24, 1924, payable to the order of E. M. Coombs for the sum of $2360. It is to be noticed that these four checks are all dated in a series two days apart on and prior to March 1, 1924. All except Coombs had been officers in Klan No. 3 and were originally made defendants to the bill of complaint. These checks were issued and pretended vouchers paid without any vote of the “Klan” as required by the constitution of the order. There was left in the bank the sum of $535.08 under the control of defendant Watts. None of these parties to whom checks were issued made any accounting of how the funds were used for the benefit of,the order or “Klan No. 3.” Ashby was in the printing business and testified that the check to him was in payment for printing, but no bill or items were presented and Ashby was contradicted and impeached by his partner and the records of his business. Wan-less and Dugger gave no explanation of the use of the funds checked out to them. The testimony of Coombs is interesting and given under circumstances apparently free from any personal interest and very much against the interest of his employer. Coombs testifies that there was a meeting of certain Klansmen in the hall of the order on March 4, 1924; that Dugger, Wan-less, Ashby,. Day and others were present; that the question of the cancellation' of the charter and how to preserve the funds in the bank was discussed; that at that meeting on March 4, 1924, Ashby handed him the check for $2360, and that he talked with Wanless about cashing it the minute the bank was open in the morning, and Wanless agreed to meet him at the bank at 9 o’clock in the morning; that he met Wanless at the bank at 9 o’clock the next morning and Wanless identified him and indorsed the check, and that he drew the money upon it and walked down the street about two-thirds of a block, as he was directed to do by Wanless, and met Watts and turned the money over to Watts just as he had received it. Coombs testifies that Dugger was at the bank on the same morning, March 5, 1924, cashing his check, The voucher made out in Coombs’ behalf pretended to be for the services of forty-nine precinct workers in the spring election, who were hired by Coombs. He testifies that he never employed any precinct workers or had anything to do with the election, and there is no testimony that he had. There is other testimony corroborating Coombs as to the purpose of the meeting on March 4, and tending to show that the bills were fictitious. Witnesses testified to statements made by Watts, the treasurer, as to the amount of the funds in the bank, which were about $11,000 up to and on March 5, 1924. There was conflict in the testimony along these lines, but the fact that all four of these checks were cashed within a few minutes of each other on the morning of March 5,1924, and that Wanless was at the bank, as shown by his signature on the Coombs check, is very strongly corroborative that the checks had not been issued previously, — one of them ten days — were colorable and the vouchers fictitious. The fund in the bank was about the amount that “Abraham Lincoln Klan No. 3” was in arrears under the by-laws to the “Imperial Bealm.” We are satisfied that the preponderance of the testimony in this case shows that each and all of said checks were fictitious and that the funds did not pass out of the hands of Defendants Ashby and Watts.

Section six of article nineteen of the .constitution provides:

“Klabee is the treasurer of the Klan. He shall be the custodian of its funds, and shall receive from the Kligrapp all monies due to be turned over to him, giving his receipt for same, and keep same apart from his personal funds, and secure for the sole use of the Klan. He shall keep an accurate account of all monies received by him, and pay same out only on order of the Klan, signed by Exalted Cyclops and the Kligrapp, except the monies due by the Klan to the Imperial Bealm and province officers, which monies do not require action of the Klan, and make a faithful record of such disbursements.”

No offer of proof of any kind is made to show that the “Klan No. 3” ever authorized the payment of any such vouchers.

It has been held that where a defendant is an accounting party, as one occupying a fiduciary relation, the burden of proof is on him to show the performance of his trust, and one who is liable to render an accounting has the burden of proving allowances of credit which he may claim. (Corpus Juris, Vol. 1, pages 642-3, section 129.)

The master in chancery took the testimony and saw and heard the witnesses and made his report. There was some conflict in the testimony, but we cannot say that its weight is clearly and palpably against the decree of the court. In Schultz v. Schultz, 274 Ill. 341, 349, in a similar case, the court held: ‘ ‘ The testimony is very conflicting, but we cannot say that, its weight is clearly and palpably against the decree of the court. In such situation we would not be justified in reversing the decree on the evidence. Treloar v. Hamilton, 225 Ill. 102, and cases cited; Miltimore v. Ferry, 171 id. 219; Maratta v. Anderson, 172 id. 377.”

Finding no error in the record, the decree of the circuit court of Sangamon county is affirmed.

Affirmed.

Additional Opinion on Denial of Petition for Rehearing.

Appellants and plaintiffs in error, upon petition for rehearing contend that the revocation of the charter of Abraham Lincoln Klan No. 3 involved a question of law, and that the Imperial Wizard was powerless to declare a forfeiture without giving “the other party to the contract” opportunity to be heard. It is furtker contended that property rights were involved in the forfeiture, and that the rules and constitution of the Grand Lodge cannot deprive the courts of jurisdiction to determine property rights. It is contended that the rules and constitution of the parent organization are unreasonable and void; that the findings of the master involved questions of law to which appellants and plaintiffs in error were not bound to except, and that this court has not passed upon these questions.

It is conceded in the proofs that appellants and Abraham Lincoln Klan No. 3 violated "the rules and constitution of the order in failing and refusing to pay dues, and that the rules of the order, in such event, provided for forfeiture. The preponderance of the proof further shows that Abraham Lincoln Klan No. 3 had seceded from the order. This Klan organization was incorporated under the law, not for pecuniary profit, and as to the reasonableness of its laws, rules and constitution courts are not concerned and will not attempt a determination. (Christian Church of Sand Creek v. Church of Christ, 219 Ill. 503, 515.) And when appellants seceded from the parent organization they abandoned all interest in the property which belonged to the Ku Klux Klan. (Christian Church of Sand Creek v. Church of Christ, supra.)

The contention here raised was not raised in the lower court. Appellants brought the seal of the subordinate corporation into court and delivered it up and the canse was tried on the issue that appellants had no moneys or funds belonging to appellee. The facts warranting a cancellation of the charter under the rules and constitution are conceded, but appellants insist that there is no power to cancel, except upon notice and a hearing. The cases cited to support appellants’ contention are all from other states, and, so far as we have examined, all of them involve a property right, based upon a policy of insurance upon which the parent organization is bound, or a special trust fund which the" subordinate lodge was incorporated to administer. (Watchell v. Widows and Orphans Society, 84 N. Y. 28; Ludowiski v. Polish Roman Catholic Benevolent Society, 29 Mo. App. 337; Grand Court Foresters v. Court Cavour No. 133, 83 N. J. Eq. 343.) In Austin v. Searing, 16 N. T. (Court of Appeals), 112, the question apparently arose nearly 100 years ago over the right of the subordinate body to insist upon a reinstatement that was provided for in the by-laws. No such questions are raised in the case at bar. No purpose of appellee’s existence is suggested, except to maintain a principle. Whether such 'principle is religious, economic or patriotic, is not for courts to determine and would make no material difference if determined. The government of appellee order, as shown by the constitution and its by-laws, is autocratic and sole, but its actions and conduct are not for that reason unreasonable and void. It is held in Corpus Juris, vol. 14, page 72:

“The legislature has power, in the absence of constitutional restrictions, to permit one person, or his successor, to exercise all the corporate powers, and to make his acts, when acting on the subject matter of the corporation, and within its sphere of action and grant of powers, the acts of the corporation. Penobscot Boom Corp. v. Lamson, 16 Maine, 224, 33 Am. D. 656.”

In this State religious corporations are based upon the usages and customs of the particular denomination or synod seeking corporate power, and the exercise of that power and the manner thereof frequently is a part of the religious belief. That it is exercised autocratically or by a corporation sole, has never been held to be against the public policy of this state. Neither the legislature by enactment nor the courts by construction in this State have ever held that social or religious affairs of the people should be free or equal, and the court held in Christian Church of Sand Creek v. Church of Christ, supra, on page 512: “It is not, therefore, within the province of this court to pronounce judgment upon the' doctrines taught by-Alexander Campbell and believed and practiced by his followers, or to determine which faction of the Sand Creek congregation, in their practices in their church congregation, from an ecclesiastical standpoint, is correct, as the courts have no concern with the questions whether a religious congregation is progressive or conservative ; whether a musical instrument shall be present or absent during church services; whether the preacher shall be selected from the congregation or shall be a person employed by the congregation for a stated time at a stated salary; whether missionary societies and Sunday schools shall have separate organizations from the church congregations or not, or whether the funds necessary for the support of the church shall be contributed wholly by its members or raised in part by fairs and festivals. All those questions, and kindred questions, must be left to the determination of the church congregation.”

Neither is appellee, incorporated in another state, prohibited from bringing suit in this State, under the corporation act passed in 1919 and the amendments thereto. (American Guaranty Co. v. State Bank of East Lynn, 244 Ill. App. 16.)

In conclusion, appellants have no property right in-' volved in the cancellation of the charter of Abraham Lincoln Klan No. 3. (Pitcher v. Board of Trade, 121 Ill. 412.) Appellee is a corporation organized under and by virtue of a decree of a court of general jurisdiction in the State of Georgia. Appellants became members of this association by agreeing to abide by and conform to all of the laws, rules and regulations of the order. The laws and rules of which they complain are of their own choosing, and courts are powerless to aid them. (Fisher v. Board of Trade of City of Chicago, 80 Ill. 85; Baxter v. Board of Trade of City of Chicago, 83 Ill. 146; Sturges v. Board of Trade of City of Chicago, 86 Ill. 441.)

The petition for a rehearing’ is denied.

Denied.