text:
    Builder’s Bond and Mortgage Company, Appellant, v. John H. Bickley et al., Appellees.
    Gen. No. 37,086.

      Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Rosenberg, Corlett & Toomin, for appellant.
    Ellis & Hackett, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is the second appeal in this cause. The first was from an order dismissing the bill of complaint of Builder’s Bond & Mortgage Company for want of equity. We reversed and remanded the 'cause with directions that the chancellor 11 enter a decree of foreclosure in favor of complainant in proper form, finding that there was due complainant on April 15, 1930, the date of the master’s report, $15,011.68,-in which is included $1,000 solicitor’s fees. ’ ’ (See Builder’s Bond & Mortgage Co. v. Bickley, 262 Ill. App. 603.) The instant appeal, by complainant, hereinafter called appellant, is from an order thereafter entered in the same cause permitting an extension of the receivership therein to a proceeding, commenced on June 27, 1931, while the former appeal was pending in this court, involving the foreclosure of a prior mortgage, nunc pro tunc as of a date more than a year prior to the application for such extension, and also from a further part of the same order approving the payment by the receiver of the sum of $4,521.05 for taxes after a foreclosure sale and after an order fixing the deficiency due appellant at $7,575.14.

The order appealed from, entered July 1, 1933, recites that the matter came on to be heard upon complainant’s motion “upon the current report and account of Harry L. Schmitz, receiver herein, . . . and upon objections to said account and report filed by the complainant,” and also upon the intervening petition of The Peoples Trust and Savings Bank of Chicago, a corporation, as trustee under a deed of trust dated June 1, 1926, executed by John H. Biekley and Letta M. Biekley, his wife, to said bank, as trustee, being the complainant in a cause entitled The Peoples Trust and Savings Bank of Chicago, a corporation, as Trustee, v. John H. Bickley et al., No. 539077, filed in the superior court of Cook county. The order finds that on December 21, 1928, there was filed a bill of complaint by complainant, Builder’s Bond & Mortgage Co., praying for a foreclosure of a junior trust deed covering the premises described in the bill, and for the appointment of a receiver to collect rents and profits from said premises pending the entry of a decree of foreclosure and sale, and thereafter, in the event the amount of the indebtedness secured by the junior trust deed was not realized from the sale; that thereafter, upon motion of complainant, Harry L. Schmitz was appointed receiver of the premises to collect the rents and profits therefrom and hold the same subject to the further order of the court; that on October 26, 1931, there was entered in the cause a decree of foreclosure and sale finding that there was due to complainant $15,171.88, together with interest provided by statute; that on November 25, 1931, a sale was held in conformity with said decree, the proceeds of which amounted to $9,801, and that upon application of the proceeds of the sale to the indebtedness due complainant, a deficiency remained on account of the decree in the amount of $7,575.14; that on December 2, 1931, an order was entered in the cause, upon notice to all parties of record, including the receiver, approving the master’s report of sale and distribution and fixing the deficiency due complainant at the sum of $7,575.14, and continuing the receiver in possession to collect the deficiency from the premises during the 15 months’ redemption period provided by law; that on June 27, 1931, The Peoples Trust and Savings Bank, a corporation, as trustee, for and on behalf of the holders of 186 bonds evidencing a principal indebtedness in the amount of $80,000, duly executed by John H. Biekley and his wife, the bonds being secured by a trust deed dated June 1, 1926, executed by; Biekley and his wife, filed its said bill of complaint, G-en. No. 539077, which prayed the entry of a decree of foreclosure and sale of said trust deed, which constituted a first trust deed or mortgage incumbrance against the premises described in the bill in this cause; that the trust deed conveyed and mortgaged to said bank, as trustee, the premises described in appellant’s bill of complaint, together with the rents, issues and profits therefrom, as security for the payment of the 186 bonds; that said cause was assigned to the Honorable William J. Lindsay; that on June 29,1931, an order was entered in said last mentioned cause by the Honorable William J. Lindsay extending the appointment of said Schmitz, as receiver, for the benefit of the complainant in said cause; that said order was entered by the chancellor upon the motion of said complainant, the trustee, and that no petition seeking such extension, nor any order granting it was entered in the instant cause, the second mortgage foreclosure, until the filing of the intervening petition herein by The Peoples Trust and Savings Bank of Chicago on June 24, 1932, which petition prayed, inter alia; the entry of an order of extension extending the receivership of Schmitz to cover cause No. 539077, and that the order be entered nunc pro tunc as of June 29, 1931; that nothing had been paid on account of the general taxes upon the real estate involved in the two causes for the years 1927, 1928, 1929 or 1930 by any of the parties to the said Causes or by anyone else; that on April 18, 1932, there had accumulated in the hands of the said receiver, Schmitz, upwards of $5,000; that on that date, upon direction of the court in cause No. 539077, but without leave of court in the instant cause, and without notice to Builders’ Bond & Mortgage Company, complainant herein, but with notice to and with the consent of Bickley and his wife, the beneficial owners of title to the real estate involved in these causes, the receiver, Schmitz, after having; been summoned to confer with the Honorable William J. Lindsay, by direction of said court, paid out of said funds for general taxes levied against said premises for the years 1927, 1928, 1929 and 1930, the sum of $4,000 by and with the consent of the owners of the equity of redemption herein, and that the receiver also, on April 28, 1932, by direction of said court in said first mortgage proceeding, and also with the consent of the owners of the equity of redemption herein, but without leave of court in the instant cause, and without notice to the complainant herein, expended the sum of $521.05 to redeem from certain special assessment warrant sales, constituting liens against the premises; that on July 1, 1932, the receiver filed his current report and account in the instant cause, which showed the making of said payments, which was the first notice given to complainant herein that said tax payments had been made; that the complainant herein duly filed objections to said report and account in respect to the payment of said $4,000 for general taxes for the years 1927, 1928, 1929 and 1930, and $521.05 for redemption from said special assessment warrant sales; that “it further appearing that said payments duly made by the receiver, should be approved and sanctioned by the Court, and that the extension of said receivership as prayed in the intervening petition of The Peoples Trust and Savings Bank should be granted nunc pro tunc as of June 29, 1931, ” the chancellor ordered that the receivership of Schmitz be extended to cover the bill of complainant in cause 539077 nunc pro tunc as of June 29, 1931, and the receiver was directed to administer the receipts from said date for the benefit of all parties to both causes; that the receiver file a final account and report of all his acts and doings as the second mortgage receiver, and to proceed with the administration of the receivership estate, as extended, for the benefit of all parties to both of said causes and that all income received by the receiver after June 29, 1931, should be held and administered as the court might direct, for the benefit of both parties. The court also overruled the objections of complainant to the receiver’s account and report and approved said payments of taxes.

Appellant contends that “an order extending a receivership for the benefit of a senior mortgagee who files a bill for the foreclosure of his encumbrance, is wholly ineffective to preserve a lien on the rents collected by the receiver (appointed in a junior mortgage foreclosure instituted upon the same property), unless it be entered in the cause in which the receiver was appointed.” Appellees concede the soundness of this contention.

Appellant further contends that “an order cannot be entered nunc pro tunc to cure the failure to make an order, but only to supply some omission in the record of an order already made, ” and that under the findings made by the chancellor in the order of July 1, 1933, the chancellor was not justified in entering the extension order nunc pro tunc as of June 29, 1931. Appellees also concede that this contention is sound.

Because of the concessions of appellees there are only two material questions to be determined, viz., 1. Is payment of taxes by a receiver after foreclosure sale proper when the owner of the equity agrees to the payment but where the owner of a deficiency judgment objects to the payment of the same? 2. Is there merit in appellees’ contention that the chancellor, “as the representative of the sovereignty,” had the absolute right to direct the taxes to be paid out of the fund in question “before all other claims except judicial costs?” As to question 1: Appellees state in their brief: “It is stated by appellant in its brief under III of its argument that the payment of taxes by a receiver after sale in a foreclosure mortgage proceeding is improper. Appellee agrees with this proposition generally. The exception, however, is where the receiver makes the payment after the sale with the consent of the owner of the equity of redemption.” Appellees further state that the precise question has not been passed upon. We are satisfied that the position of appellees that the owner of the equity in the instant case was the only person who could complain of the payment of the taxes after sale, is not sound. The following cases considered the relative rights of the equity owner and the deficiency judgment creditor to the rents after sale, and held that as between the equity owner (whether he is or is not obligated on the mortgage) and the holder of a deficiency decree, the latter has the prior claim to the rents: Straus v. Bracken, 242 Ill. App. 122; Hindman v. Off, 246 Ill. App. 528; Shinnick v. Goodman, 259 Ill. App. 107 (decided by this division of the court); Powell v. Voight, 261 Ill. App. 127. Appellees argue that it would seem from certain decisions of the Supreme Court that the equity owner is the only person who could complain of the payment of taxes after sale, but when the cases cited are examined, in the light of the facts and the questions before the court, we are satisfied that they do not sustain appellees’ argument. To refer to the principal one cited: In Powell v. Voight, 348 Ill. 605, the question of the propriety of tax payments after sale was raised by the equity owner and also by the holder of a deficiency judgment and the court held that both parties had a right to complain of the payment of taxes by the receiver after the sale had been made. In the opinion, the court said (p. 608):

“A pledge of rents during the redemption period is not extinguished by a foreclosure and sale, and the owners of the deficiency judgment, as well as the judgment debtors, are entitled to have it satisfied out of such rents.”

If the appellant had waived his right to the fund the consent of the equity owner would then have been sufficient to authorize the payment of the taxes. We must determine the first question in favor of the appellant and against appellees.

As to question 2: In the determination of this question it must be noted that the appellees conceded, in their argument bearing upon question 1 that the payment of taxes by a receiver after a foreclosure sale was improper, with one exception, viz., that the receiver might make the payment after the sale with the consent of the owner of the equity of redemption. This position is, of course, inconsistent with appellees ’ position as to question 2. If we are correct in holding that the appellant, as the owner of the deficiency judgment, had a superior right to the fund, it would necessarily follow from appellees’ position as to question 1 that the consent of the appellant was also necessary. It is to be noted that the state is not a party to these proceedings nor was the order upon the receiver to pay the taxes entered upon its motion, and it is apparent that it was entered at the instance of the senior mortgagee or the trustee in the senior foreclosure proceeding. Upon the oral arguments in this court counsel for appellees conceded that the order for the payment of the taxes benefited his client and injured appellant. It is true, of course, that the lien for taxes is superior to all other liens whatsoever except judicial costs, and the right and power of the state to enforce its lien upon the property involved in the instant case cannot be questioned. In Verst v. Foreman-State Trust & Sav. Bank, 270 Ill. App. 484, 485, 486, the court said:

“The lien for taxes is a first and prior lien to all titles and claims of all parties. People v. Evans, 262 Ill. 235. It is well established that a court having under its control property upon which taxes are due, will, as the representative of the sovereignty, direct them to be paid before all other claims except judicial costs. Cooley on Taxation (4th ed.), vol. 3, sec. 1352. In Wiswall v. Kunz, 173 Ill. 110, it was held that taxes upon property in the hands of a receiver may properly be regarded as part of the costs and expenses of receivership and may be ordered paid as other costs and expenses. Among other decisions in this State asserting this rule are Gorham v. Farson, 119 Ill. 425; Atwood v. Knowlson, 91 Ill. App. 265; Ortengren v. Rice, 104 Ill. App. 428. In Driever v. Shephard, 259 Ill. App. 239, we said in substance that if the current taxes were not paid a superior lien would be established, and that the receiver should see that the property is carried to the judicial sale free and clear of such liens. Cases from other jurisdictions supporting this view are Walser v. Northern Valley Bldg. Corp., 109 N. J. Eq. 126, 156 Atl. 783; American Nat. Bank v. Northwestern Mut. Life Ins. Co., 89 Fed. 610; In re Tyler, 149 U. S. 164. In Taylor v. Sutherlin-Meade Tobacco Co., 107 Va. 787, the court held that ‘It is the universal rule that a court, as the representative of the sovereignty of the state, will make no order for the distribution of funds in custodia legis until provision is made for payment of taxes and levies due to the commonwealth and its municipalities.’
“It is also the rule in this State that taxes upon property foreclosed cannot be paid by the receiver after sale. Reeve’s Illinois Law of Mortgages, vol. 2, sec. 564. This distinction was discussed and observed in Bothman v. Lindstrom, 221 Ill. App. 262; also in Stevens v. Hadfield, 196 Ill. 253, and Davis v. Dale, 150 Ill. 239. The reason for this is that the owner of the equity of redemption is not chargeable with payments of taxes for the purchaser, except in case of redemption as provided by statute. Cahill’s St. ch. 77, 1128.” (Italics ours.)

In that case it was held that a receiver, appointed in foreclosure proceedings instituted by a second mortgagee, was properly ordered, upon motion of the first mortgagee, when there had not yet been a decree or sale, to pay accrued general taxes. It was there also held that under the particular circumstances of that case it was specially fitting that the receiver should pay the taxes, as the trust deed, under which the receiver was appointed, provided that the court could authorize the receiver to pay taxes, and the order appointing the receiver directed him to pay taxes, and it further appeared that the complainant in the second mortgage proceedings had by his actions in the case authorized, in effect, the payment of the taxes. In the late case of Wolf v. Fischman, 273 Ill. App. 237, the court, after reviewing the authorities bearing upon the subject, held that money in the hands of the receiver during the period of redemption, after foreclosure, sale and the entry of a deficiency decree, should be applied in reduction of the deficiency decree, and that it was error to order the receiver to use part of the money to pay taxes.

After a careful consideration of the instant question we have reached the' conclusion that it was highly inequitable to order the receiver to pay the taxes out of moneys that should be applied in reduction of the deficiency decree. We therefore hold that the order requiring the receiver to pay the taxes was improvidently entered, and the instant order appealed from, approving the payment of the taxes, is reversed and the cause is remanded with directions to pay the amount in the receiver’s hands, less- court costs, to the appellant in the reduction of the deficiency decree.

Reversed and remanded with directions.

Sullivan, P. J., and Gridley, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    First District.
    Leon Davidson, plaintiff in error, v. Sears Community State Bank, defendant in error.
    Gen. No. 36,634.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the April term, 1933.
    Ben A. Stewart and Sidney Rothblatt, for plaintiff in error; Ode L. Rankin and Ben A. Stewart, of counsel. Lederer, Livingston, Kahn & Adler, for defendant in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Clara Otto, appellee, v. Guy A. Richardson et al., appellants.
    Gen. No. 37,026.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Weber, Miller, Deffenbaugh & Donovan, for appellants; John R. Guilliams, Frank L. Kriete and John E. Kehoe, of counsel. Murphy O. Tate and Leo M. Tarpey, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    In re Estate of Charles Macdonald, deceased. Ann Walker, claimant, appellee, v. Edwy Logan Reeves, as executor of the estate of Charles Macdonald, deceased, appellant.
    Gen. No. 37,160.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Charles Francis Baker, for appellant. Earl J. Walker, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Joseph Sadula, appellee, v. Village of Richton Park, appellant.
    Gen. No. 37,231.

      Opinion filed March 5, 1934.
    Heard in the first division of this court fox the first district at the December term, 1933.
    Noble Stibolt, for appellant. Earl J. Walker, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Beatrice Feldman, appellee, v. Illinois State Pawners Association et al., defendants, on appeal of Emanuel M. Edelson et al., appellants.
    Gen. No. 37,412.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district.
    Rehearing denied March 19, 1934.
    David Froehlich and Alfred Beck, for appellants. Max M. Korshak and Harry J. Myerson, for appellee; Roy S. Gaskill and Sander A. Kane, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Beatrice Feldman, appellee, v. Illinois State Pawners Association et al., on appeal of Illinois State Pawners Association and Joseph E. Korshak, appellants.
    Gen. No. 37,413.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district.
    Rehearing denied March 19, 1934.
    David Froehlich and Alfred Beck, for appellants. Max M. Korshak and Harry J. Myerson, for appellee; Roy S. Gaskill and Sander A. Kane, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Charles Starck et al., defendants in error, v. Solon Gold et al., plaintiffs in error.
    Gen. No. 36,962.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Fagenholz & Kaplan, for plaintiffs in error. Ekern & Meyers, for defendants in error; Russell H. Matthias and Luther F. Binkley, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Michael Narvid, appellee, v. Albert J. Horan et al., appellants.
    Gen. No. 37,127.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Harold O. Mulks, for appellants. Theodore A. Spence, for appellee; John A. Cervenka, Jr., of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Annie Walder, defendant in error, v. J. Y. Richards, plaintiff in error.
    Gen. No. 37,203.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the December term, 1933.
    Jacobson, Merrick, Merman & Silbert, for plaintiff in error; David Silbert and Joseph L. Herr, of counsel. John P. Burita, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Morris Kemp, defendant in error, v. DeLuxe Motor Cab Company, plaintiff in error.
    Gen. No. 36,994.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Rehearing denied March 23, 1934.
    John A. Bloomingston, for plaintiff in error. Irving G. Zazove, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    In re Estate of John M. Carlson, deceased. Mabel C. Van Vlissingen, appellant, v. Walter E. Carlson, executor, appellee.
    Gen. No. 37,112.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Frederic L. Goff, for appellant. James M. Slattery, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Herbert D. Rycroft, appellee, v. Grace Rycroft Colonell, appellant.
    Gen. No. 37,121.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Socrates, Davis & Cohen, for appellant. Michael F. Ryan, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O'Connor

text:
    Reginald A. Wittey, appellant, v. Michael M. Newman et al., appellees.
    Gen. No. 37,130.

      Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Rehearing denied March 19, 1934.
    John A. Cooke, Harry A. Kerins and Paul W. Brust, for appellant; Frank F. Trunk, of counsel. Henry L. Blim, City Attorney, for appellees; Leonard A. Scholl, of counsel.
   Mr. Justice O'Connor

delivered the opinion of the court.


text:
    James Fouts, appellant, v. Anna Marcellus et al., appellees.
    Gen. No. 37,166.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Walter T. Gehr and Walter B. Prendergast, for appellant. No appearance for appellees.
   Mr. Justice O'Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Sullivan

text:
    Ben Brodsky, appellee, v. Sears Community State Bank, appellant.
    Gen. No. 36,785.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Lederer, Livingston, Kahn & Adler, for appellant. Hershenson & Hershenson and Klein & Lasky, for appellee; Harry G. Hershenson and Herman E. Klein, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    I. Revitz, appellee, v. Superior Loan and Mortgage Company, appellant.
    Gen. No. 36,813.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Albert A. Gomberg and Lowenhaupt & Wolff, for appellant. Shulman, Shulman & Abrams, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Jennie L. Kolb, appellant, v. Jeremiah W. McGraw, appellee.
    Gen. No. 36,825.
    Opinion filed March 6, 1934.
    Heard in the second division" of this court for the first district at the June term, 1933.
    Rehearing denied March 21, 1934.
    Robert P. Kolb, for appellant; Luther W. Tatge, of counsel. Altheimer, Mayer, Woods & Smith, for appellee; Leo L. Weil and Charles H. Blumenfeld, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Florence S. McGinley, appellee, v. The Corporation of the Royal Exchange Assurance, appellant.
    Gen. No. 36,770.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Rehearing denied March 21, 1934.
    Ekern & Meyers, for appellant; William E. Mooney and Luther F. Binkley, of counsel. David D. Stansbury, George F. Callaghan and Richard H. Welsh, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    H. J. Grigoleit Company, appellant, v. The Grigoleit Company et al., appellees.
    Gen. No. 36,779.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Wisner, Davis & Walsh, for appellant. Bangs, Crane & Slater, for appellees; Martin Crane, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    John H. Ehardt, defendant in error, v. Frank J. Broucek, plaintiff in error.
    Gen. No. 36,789.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Meyer Shapiro, for plaintiff in error. Ben Aronin, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    C. I. T. Corporation, appellant, v. William Weber et al., defendants. Frances Givens, appellee.
    Gen. No. 36,810.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Rothbart & Lewis, for appellant; Seymour M. Lewis, of counsel. Harmon & George, for appellee; Calvin M. George, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    The Western and Southern Life Insurance Company, appellant, v. Kazimiera Tomasun, appellee.
    Gen. No. 36,889.
    Heard in the second division of this court for the first district at the June term, 1933.
    Opinion filed March 6, 1934.
    Hoyne, O’Connor & Rubinkam, for appellant. Daniel L, Madden, for appellee; Edward J. Kelley, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Kazimiera Tomasun, appellee, v. The Western and Southern Life Insurance Company, appellant.
    Gen. No. 37,042.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Hoyne, O’Connor & Rubinkam, for appellant. Daniel L. Madden, for appellee; Edward J. Kelley, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Clara C. Gichau for the use of Frederick W. Clare, appellant, v. First Union Trust and Savings Bank, appellee.
    Gen. No. 36,776.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Rehearing denied March 21, 1934.
    Charles Danto, for appellant. Miller, Gorman, Wales & Adams and Amberg, Ott, Dahlin & Livingston, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Benjamin Kaplan, appellant, v. Jacob Pollack et al., appellees.
    Gen. No. 36,795.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Louis M. Kaplan, for appellant. No appearance for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Samuel Rosen, appellant, v. National Tea Company, appellee.
    Gen. No. 36,895.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Lederer, Livingston, Kahn & Adler, for appellant; Harry H. Kahn, Leo H. Arnstein and Archie H. Siegel, of counsel. Will A. Kelly and William M. Kelly, for appellee; Kelly, Pratt & Zeiss, of counsel.
   Mr. Justice Scanlan

delivered the'opinion of the court.


author: Mr. Justice Seanlan

text:
    William M. Richards, appellee, v. Harry Kaplan, appellant.
    Gen. No. 36,904.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    H. J. Rosenberg, for appellant; Abraham Miller and Henry A. Kalcheim, of counsel. Fisher, Boyden, Bell, Boyd & Marshall, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Hall

text:
    In re Petition of Dr. Alex B. Magnus. Dr. Alex B. Magnus, appellant, v. Mary B. Connors, appellee.
    Gen. No. 36,459.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the December term, 1932.
    Rehearing denied March 30, 1934.
    Kamfner & Halligan and Arthur J. Goldberg, for appellant; Arthur J. Goldberg, of counsel. Merle E. Finch, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Merchants and Manufacturers Securities Company, plaintiff in error, v. H. G. Hanson, trading as Suds Soft Water Laundry, defendant in error.
    Gen. No. 36,499.
    Opinion filed March 14, 1934.
    presiding. Heard in the third division of this court for the first district at the February term, 1933.
    Walter A. Myer and Philip D. Hoffman, for plaintiff in error. Cross & Coyner and Kenneth B. Kirk, for defendant in error.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    James Potenzi, appellee, v. Patrick Warren Construction Company, appellant.
    Gen. No. 36,530.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the February term, 1933.
    Harold R. Schradzki, for appellant. No appearance for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Agnes Dziuban, appellee, v. John Hancock Mutual Life Insurance Company, appellant.
    Gen. No. 36,539.
    Heard in the third division of this court for the first district at the February term, 1933.
    Opinion filed March 14, 1934.
    Hoyne, O'Connor & Rubinkam, for appellant. Thaddeus C. Toudor, for appellee; Alec E. Weinrob and Samuel A. Rinella, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Aetna Mortgage and Security Company, appellee, v. Pilcher Hamilton Daily Company, appellant.
    Gen. No. 36,549.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the February term, 1933.
    Rehearing denied March 30, 1934.
    A. W. Glaskay, for appellant. Luster & Luster, for appellee; Julian J. Luster, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. John W. Calhoun, appellee, v. Richard J. Collins et al., appellants.
    Gen. No. 36,559.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the February term, 1933.
    William H. Sexton, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants. Crow & Loeff, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Arthur J. Clements, appellee, v. Richard J. Collins et al., appellants.
    Gen. No. 36,560.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the February term, 1933.
    William H. Sexton, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants. Crow & Loeff, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. John W. Gavin, appellee, v. City of Chicago et al., appellants.
    Gen. No. 36,561.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the February term, 1933.
    William H. Sexton, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants. Crow & Loeff, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Frank A. Rose, appellee, v. Walter H. Ericsson, appellant.
    Gen. No. 36,573.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the February term, 1933.
    Rehearing denied March 30, 1934.
    Schuyler, Weinfeld & Hennessy, for appellant; Philip A. Gibbons, of counsel. Spencer, Bryan & O’Callaghan, for appellee; James A. O’Callaghan, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Maurice Weisz, appellee, v. Silver Creek Coal Company, appellant.
    Gen. No. 36,583.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the February term, 1933.
    Murphy O. Tate and Daniel L. Madden, for appellant; Leo M. Tarpey, of counsel. Abraham Lepine, for appellee; F. O. Terbell, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Edward Menkin, appellee, v. Muriel Connelly and Herman F. Winkelman, defendants, on appeal of Herman F. Winkelman, appellant.
    Gen. No. 36,592.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the February term, 1933.
    Rehearing denied March 30, 1934.
    David Lipman, for appellant. R. B. Salmon, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Paulina Ruzelowicz, appellee, v. Harry Ruzelowicz, appellant.
    Gen. No. 36,647.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the April term, 1933.
    Kashmir P. Gugis, for appellant; Abraham Miller and George J. Menkas, of counsel. A. & D. B. Rothstein, for appellee; David B. Rothstein, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebel

text:
    E. A. Muhlke, defendant in error, v. A. H. Rance and H. F. Rance, trading as Prudential Realty Company, plaintiffs in error.
    Gen. No. 36,666.

      Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the April term, 1933.
    Cummings & Wyman, for plaintiffs in error; Austin L. Wyman and Daniel P. Nagle, of counsel. Walter E. Beebe, for defendant in error.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Mary A. Lacey, appellee, v. Margaret Janisch et al., appellants.
    Gen. No. 36,694.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the April term, 1933.
    William H. Sexton, Corporation Counsel, and A. M. Smietanka, City Attorney, for certain appellant; Frank H. Novak, Assistant City Attorney, and Thomas A. Murphy, Assistant Corporation Counsel, of counsel. H. H. Patterson, for appellee; Edmund C. Maurer, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Daniel O’Connor, appellee, v. Martin Auto Parts Company, appellant.
    Gen. No. 36,711.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the April term, 1933.
    Leslie H. Whipp, for appellant. Eugene P. Kealy, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Robert Mendelson, appellee, v. Charles Rudolph, appellant.
    Gen. No. 36,720.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the April term, 1933.
    David S. Eisendrath, for appellant. Seyfarth & Leonard, for appellee; Karl Edwin Seyfarth, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    William Feldman, defendant in error, v. Albert Paul Weiss, plaintiff in error.
    Gen. No. 36,733.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the April term, 1933.
    Ferdinand J. Karasek, for plaintiff in error. William Feldman, pro se.

   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Eva Cohen, complainant, v. Julius A. Polikoff et al., defendants, on appeal of The Fidelity and Casualty Company of New York, appellant.
    Gen. No. 37,423.
    Opinion filed March 14, 1934.
    presiding. Heard in the third division of this court for the first district at the February term, 1934.
    William Greene and H. L. Howard, for appellant. Isador Becker, for appellee; Ben A. Stewart, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


author: Mr. Justice Wilson

text:
    Anton Tisoncik, appellee, v. Gage Park Building Loan and Homestead Association, appellant.
    Gen. No. 36,691.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the April term, 1933.
    Joseph F. Elward and Michael S. Rehak, for appellant. Victor Frohlich, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Lillian Merens, appellant, v. Lawrence Avenue National Bank of Chicago and Frank J. Cimral, receiver, appellees.
    Gen. No. 36,704.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the April term, 1933.
    Daniel A. Uretz, for appellant; Walter H. Shurtleff, of counsel. Roy Massena, for appellees; Donald N. Schaffer, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Lena Sherman, complainant, v. Carl H. Olson et al., defendants. Henry F. Eidmann et al., cross complainants, appellants, v. Carl H. Olson et al., cross defendants. Lena Sherman, appellee.
    Gen. No. 36,793.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the June term, 1933.
    Tatge & Tatge, for appellants; Robert F. Kolb, of counsel. Abrams, Sherman & Lewis, for appellee; Clyde C. Fisher, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Central Republic Bank and Trust Company, appellee, v. Argyle-Kenmore Building, defendant, on appeal of Oliver J. Salinger, appellant.
    Gen. No. 36,890.
    Heard in the third division of this court for the first district at the June term, 1933.
    Opinion filed March 14, 1934.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel. Pam & Hurd and Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee; Andrew J. Dallstream, I. E. Ferguson and Henry L. Kohn, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Maple Manor Building Corporation, appellant, v. Geo. R. Hemingway Organization, Inc., appellee.
    Gen. No. 36,905.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the June term, 1933.
    O. W. Smith, Jr., for appellant; Jack L. Solomon, of counsel. C. A. Willard, Jr., for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    The People of the State of Illinois; defendant in error, v. William Church, plaintiff in error.
    Gen. No. 36,933.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the October term, 1933.
    Georgia Jones Ellis and J. E. Clayton, for plaintiff in error; W. G. Anderson, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Grenville Beardsley and J. Albert Woll, Assistant State’s Attorneys, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Mary E. Sullivan, administratrix of the estate of Mary Lundy, deceased, defendant in error, v. Sophia Lichtenstein, plaintiff in error.
    Gen. No. 36,957.
    Opinion filed March 14, 1934.
    Heard in the third division of this court for the first district at the October term, 1933.
    Eugene P. Kealy, for plaintiff in error; Pay Warren Johnson, of counsel. Justus Chancellor and Justus Chancellor, Jr., for defendant in error.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Galt Drug Company, Inc., appellee, v. Continental Casualty Company, appellant.
    Gen. No. 36,981.
    Heard in the third division of this court for the first district at the October term, 1933.
    Opinion filed March 14, 1934.
    Abraham Lepine, for appellant; F. O. Terbell, of counsel. No appearance for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Mildred A. Davies, appellee, v. Marks Brothers Theatres, appellant.
    Gen. No. 37,040.
    Heard in the third division of this court for the first district at the October term, 1933.
    Opinion filed March 14, 1934.
    John A. Bloomingston, for appellant. Abraham Lepine, for appellee; Alvin E. Stein, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    F. F. Backstrom and F. Backstrom, trading as F. F. Backstrom and Son, defendants in error, v. National Watch and Jewelry Company, plaintiff in error.
    Gen. No. 37,013.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Rehearing denied April 16, 1934.
    Aaron Soble, for plaintiff in error; Irving Goodman, of counsel. Cummings & Wyman, for defendants in error; Daniel P. Nagle, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Daniel L. Madden and Edward J. Kelley, appellees, v. Sarah L. Johnson, appellant.
    Gen. No. 37,022.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    James G. Skinner and Edward J. Padden, for appellant. Edward J. Kelley, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    The Lomax Company and The Green Lantern Beverage Company, appellees, v. Lomax Bros. Beverages, Inc. et al., appellants.
    Gen. No. 37,053.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Rehearing denied and opinion modified April 18, 1934.
    John J. McMahon and Cutting, Moore & Sidley, for appellants; Donald F. McPherson, Ralph F. Himmelhoch and George Ragland, Jr., of counsel. Chas. G. Palmer, for appellees; Clyde C. Fisher, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    William C. Ferris, plaintiff in error, v. Chicago Automobile Refinishing Works, Inc., et al., defendants in error.
    Gen. No. 37,306.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    A. W. Martin and Edward H. S. Martin, for plaintiff in error. Oliver J. Chambers, for defendants in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Richard Newton, administrator of the estate of Josephine Newton, deceased, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 37,044.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Rehearing denied April 16, 1934.
    Hoyne, O’Connor & Rubinkam, for appellant. David H. Bowen and Henry C. Ferguson, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Richard Newton, administrator of the estate of Josephine Newton, deceased, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 37,045.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Rehearing denied April 16, 1934.
    Hoyne, O’Connor & Rubinkam, for appellant. David H. Bowen and Henry C. Ferguson, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr, Justice McSurely

text:
    Ellen Griffin, appellee, v. Agar Packing and Provision Company, appellant.
    Gen. No. 37,221.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the December term, 1933.
    Henry J. and Charles Aaron, for appellant; Franklin Raber, of counsel. George L. Griffin, for appellee.
   Mr, Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Juan Hand, plaintiff in error.
    Gen. No. 37,288.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Faulkner & Faulkner, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll, Henry E. Seyfarth and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Salvatore Genualdi and Virginia Genualdi, appellees, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 37,338.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Hoyne, O’Connor & Rubinkam, for appellant. Arnd, Gavin, Tearney & Hanley, for appellees; Frederick Arnd, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Emma Martin, appellee, v. Evans Fur Company et al., appellants.
    Gen. No. 37,387.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Rittenhouse, Marovitz & Marovitz, for appellants; Harold Marovitz, of counsel. No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Fred Oser et al., appellants, v. Thomas E. Maloy et al., appellees.
    Gen. No. 37,136.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Rehearing denied April 17, 1934.
    Benjamin J. Schultz, for appellants; Charles E. Lounsbury and Harry S. Ditchburne, of counsel. Thomas D. Nash and Michael J. Ahern, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Chicago Mortgage Corporation, appellee, v. Garabed T. Pushman, appellant.
    Gen. No. 37,139.

      Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Rehearing denied April 16, 1934.
    Louis M. Gordon, for appellant; Samuel E. Davidson, of counsel. Slottow & Leviton, for appellee; Charles Leviton and David Paley, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Margaret T. McGovern and Joseph V. McGovern, as executrix and executor of the estate of Michael H. McGovern, deceased, appellants, v. Claim of Dr. George W. Hax, appellee.
    Gen. No. 37,243.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the December term, 1933.
    Rehearing denied April 16, 1934.
    Brundage, Landon & Holt, for appellants; Robert N. Holt, of counsel. Winston, Strawn & Shaw, for appellee; Harold A. Smith and Robert Tieken, of counsel.
   Mr. Justice O'Connor

delivered the opinion of the court.


text:
    Paul Lazar, plaintiff in error, v. First Union Trust and Savings Bank, defendant in error.
    Gen. No. 37,312.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Walter W. Keating, for plaintiff in error; Walter E. Moss, of counsel. Nat M. Kahn, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O 'Connor

text:
    A. A. Hoffman, appellee, v. Tower Garage Company, appellant.
    Gen. No. 37,400.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Roy S. Gaskill, for appellant. No appearance for appellee.
   Mr. Justice O 'Connor

delivered the opinion of the court.


text:
    Hans E. Lehman, appellee, v. Grace Helen Lehman, appellant.
    Gen. No. 37,085.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    William S. Stahl, for appellant. Bernard J. Juron, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Gustave E. Lovegren, administrator of the estate of Ben Lovegren, deceased, defendant in error, v. Emil Dahlberg, plaintiff in error.
    Gen. No. 37,187.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the December term, 1933.
    Rehearing denied May 14, 1934. .
    Daniel Anderson and Edward G. Berglund, for plaintiff in error. Rathje, Wesemann, Hinckley & Barnard, for defendant in error; Francis E. Hinckley, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Paysoff Tinkoff, appellant, v. George W. Griffiths, appellee.
    Gen. No. 37,244.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Rehearing denied May 14, 1934.
    Paysoff Tinkoff, for appellant. Campbell, Clithero & Fischer, for appellee; Carlton L. Fischer and George W. Pierce, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Ida Hitchcock Blood, appellee, v. The Wm. Meyer Company, appellant.
    Gen. No. 37,296.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Rehearing denied May 14, 1934.
    Rathje & Connor, for appellant. Miles J. Fitzpatrick, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, defendant in error, v. Helen G. Henley and Eugene H. Henley, plaintiffs in error.
    Gen. No. 37,328.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    West & Eckhart, for plaintiffs in error; John Neal Campbell and Joseph D. Bryan, of counsel. Holland F. FlaHavhan, for defendant in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mi-. Presiding Justice Matchett

text:
    Pan-American Wall Paper and Paint Company, appellant, v. Davis G. McCarn et al., appellees.
    Gen. No. 37,336.

      Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Rehearing denied May 14, 1934.
    Alden, Latham & Young, for appellant. Taylor, Miller, Busch & Boyden, for appellees; Francis X. Busch and James J. Magner, of counsel.
   Mi-. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Charles B. Gibson, appellant, v. A. Holinger and Company et al., appellees.
    Gen. No. 37,345.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Charles A. Williams, for appellant. Julian C. Ryer, of counsel. Berger & Newmark, for appellees; Lawrence S. Newmark, Gerald G. Bolotin and William Mannhardt, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    White Service Station, Inc., appellee, v. William P. McCubbin, trading as Wisconsin Terminal and Warehouse Company and Wisconsin Warehouse and Truck Terminal, appellant.
    Gen. No. 37,393.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Musgrave, Oppenheim, Price & Ewins, for appellant. Martin M. Gross, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    James B. Clow and Sons, appellant, v. 230 North Michigan Avenue Building Corporation et al., appellees.
    Gen. No. 37,309.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Rehearing denied May 14, 1934.
    Frisch & Frisch, for appellant; Sidney Frisch and Samuel J. Nordorf, of counsel. Maxfield Weisbrod and John A. Taylor, for certain appellee; Maxfield Weisbrod, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O ’Connor

text:
    Minnie Greenberg, defendant in error, v. Chicago Cab Company, plaintiff in error.
    Gen. No. 37,253.
    Heard in the first division of this court for the first distriet at the February term, 1934.
    Opinion filed April 30, 1934.
    Stebbins, McKinley & Price and John M. Allen, for plaintiff in error; Lewis A. Stebbins, of counsel. Philip Rosenthal, for defendant in error; Krohn & MacDonald and Stuart B. Krohn, of counsel.
   Mr. Justice O ’Connor

delivered the opinion of the court.


text:
    Howard Evans, appellee, v. Mrs. Charles Stern, alias Mary Stern, and Charles Stern, appellants.
    Gen. No. 37,351.
    Opinion filed April 30, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Rehearing denied May 14, 1934.
    Stebbins, McKinley & Price, for appellants; William McKinley and Paul E. Price, of counsel. Joseph H. Hinshaw, for appellee; Oswell G. Treadway, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar E. Carlstrom, defendant in error, v. Illinois State Automobile Association, plaintiff in error.
    Gen. No. 36,737.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Charles A. Williams, for plaintiff in error. Otto Kerner, Attorney General, for defendant in error; Floyd E. Thompson and Henry G. O’Donnell, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Arthur E. Glader, plaintiff in error.
    Gen. No. 36,961.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Edwin B. Bederman, for plaintiff in error; Harry V. Gralnek, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; William J. Lynch and James J. Cherry, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Sullivan

delivered the- opinion of the court.


text:
    William M. Noelle, appellee, v. M. G. Malnick and N. Malnick, trading as Lakewood Developers Organization, appellants.
    Gen. No. 36,976.
    Heard in the second division of this court for the first district at the October term, 1933.
    Opinion filed May 1, 1934.
    Samuel L. Bullas, for appellants. John V. Clinnin, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Aetna Life Insurance Company, complainant, v. Mattie Marsh and Lucy Smith, defendants, on appeal of Mattie Marsh, appellant. Lucy Smith, appellee.
    Gen. No. 37,083.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Prescott, Burroughs & Taylor, for appellant; A. M. Burroughs and Patrick B. Prescott, Jr., of counsel. S. P. Brown and C. L. Longmire, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Robert O. Farrell and Thomas R. Condon, appellants, v. Irven H. Wilsey, appellee.
    Gen. No. 37,095.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Chapman & Cutler, for appellants; Dayton Ogden, of counsel. Einar C. Howard, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Arthur Peltason, appellee, v. A. C. Cronkrite, appellant.
    Gen. No. 37,104.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Knapp, Beye, Allen, Cochran & Cushing, for appellant; Harlan L. Hackbert, of counsel. Millard C. Eiseman, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    James G. Clark, plaintiff in error, v. Norman W. Harris, defendant in error.
    Gen. No. 36,747.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Lloyd C. Whitman, for plaintiff in error. Kirkland, Fleming, Green & Martin, for defendant in error; Howard Ellis, J. Fred Reeve and J. B. Martineau, Jr., of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    First national Bank of Blue Island, administrator of the Estate of Theodore Wibbelsman, deceased, appellee, v. The Chicago, Rock Island and Pacific Railway Company, appellant.
    Gen. No. 36,750.
    Opinion filed May 1, 1934.
    Heard in the second division of this court, for the first district at the June term, 1933.
    Harry E. Boe and Daniel Taylor, for appellant. Royal W. Irwin, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Clarence Kiewert, by Charles L. Kiewert, his father and next friend, appellee, v. J. O. Stoll Company, appellant.
    Gen. No. 36,955.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the- October term, 1933.
    William McKinley and Paul E. Price, for appellant. Levisohn & Levisohn, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    George F. Way, appellee, v. Illinois Power and Light Corporation, appellant.
    Gen. No. 37,011.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    E. Bentley Hamilton, for appellant. John S. Hummer and Patrick L. McArdle, for appellee; P. L. McArdle and Chester D. Kern, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Electric Service Engineering Company, appellee, v. New York Central Railroad Company, appellant.
    Gen. No. 37,030.
    Heard in the second division of this court for the first district at the October term, 1933. *
    Opinion filed May 1, 1934.
    Sidney C. Murray and L. Beers-Jones, for appellant. No appearance for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Ronald C. Oldham, plaintiff in error.
    Gen. No. 36,788.

      Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Murphy O. Tate and Werner W. Schroeder, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Grenville Beardsley and J. Albert Woll, Assistant State’s Attorneys, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    George Kaufmes, defendant in error, v. Jacob Lirtzman et al., plaintiffs in error.
    Gen. No. 36,910.
    Opinion filed May 1, 1934.
    Heard, in the second division of this court for the first district at the October term, 1933.
    Arkin, Berman & Marks, for plaintiffs in error; Francis J. Higgins, of counsel. G. A. Kyriakopulos, for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Anton Presern, plaintiff in error, v. Louis Carabelli et al., defendants in error.
    Gen. No. 36,932.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    B. M. Steiner, for plaintiff in error. Charles J. Trainor, for defendants in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Elia Levy, appellant, v. Rebecca Levy, appellee. Rebecca Levy, appellee, v. Elia Levy, appellant.
    Gen. No. 36,966.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    William C. Napier, for appellant. Charles P. R. Macaulay, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    I. Magnin and Company, appellant, v. Marie Lubin et al., appellees.
    Gen. No. 36,970.
    Opinion filed May 1, 1934.
    Heard in the second division of this court for the first district at the October term, 1933.
    Stebbins & L’Amoreaux, for appellant; Lewis A. Stebbins and John M. Allen, of counsel. Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellees; Herbert M. Lautmann and Jesse H. Brown, of counsel. Max M. Grossman, guardian act litem.

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The Whitcomb Locomotive Company, appellant, v. William C. Whitcomb, appellee.
    Gen. No. 37,051.
    Heard in the second division of this court for the first district at the October term, 1933.
    Opinion filed May 1, 1934.
    Cutting, Moore & Sidley, for appellant; Kenneth F. Burgess, James F. Oates, Jr., John Paulding Brown and George Ragland, Jr., of counsel. Pines & Stein, for appellee; Alvin E. Stein, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    Second District.
    The People of the State of Illinois, defendant in error v. James Ryan and John Twohig, plaintiffs in error.
    Gen. No. 8,690.
    Opinion filed April 25, 1934.
    Heard in this court at the October term, 1933.
    Wm. Scott Stewart, for plaintiffs in error. Charles E. Mason, State’s Attorney, for defendant in error; John R. Bills and Okel S. Fuqua, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    John H. Rusch, receiver of the First National Bank of Polo, appellee, v. Ray D. Hedrick, administrator of the estate of Martha C. Hedrick, deceased, appellant.
    Gen. No. 8,707.
    Opinion filed April 25, 1934.
    Heard in this court at the October terin, 1933.
    Seyster & Fearer and Harry Typer, for appellant. Dixon, Devine, Bracken & Dixon, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    Lawrence H. Williams, administrator of the estate of Stanley Buches, deceased, plaintiff in error, v. Chicago and North Western Railway Company, defendant in error.
    Gen. No. 8,571.
    Opinion filed April 25, 1934.
    Heard in this court at the October term, 1932.
    Rehearing denied June 25, 1934.
    J. J. McCauley, V. S. Lumley and George W. Field, for plaintiff in error. D. T. Smiley, Nelson J. Wilcox and Nelson Trottman, for defendant in error.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Luella Hollenbeck and Hildegard Hollenbeck, appellees, v. Grundy County National Bank, appellant.
    Gen. No. 8,579.
    Opinion filed April 25, 1934.
    Heard in this court at the October term, 1932.
    Smith & Holderman, for appellant. Cornelius Reardon, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Harris Brothers Company, appellant, v. Hinkamp and Company et al., appellees.
    Gen. No. 8,709.
    Opinion filed April 25, 1934.
    Heard in this court at the October term, 1933.
    Herbert P. Folkers and Edward R. Nadelhoffer, for appellant Barr & Barr, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    M. H. Fitzsimmons, appellee, v. William Cowan et al., defendants, on appeal of Fred Siebel, appellant.
    Gen. No. 8,734.
    Opinion filed April 25, 1934.
    Heard in this court at the October term, 1933.
    Rehearing denied June 25, 1934.
    D. T. Smiley, for appellant; A. F. W. Siebel, of counsel. V. S. Lumley, for appellee; Hugh A. Deneen and David R. Joslyn, Jr., of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    A. L. Fogle, receiver, defendant in error, v. Charles E. Hayes, plaintiff in error.
    Gen. No. 8,743.
    Opinion filed April 25, 1934.
    presiding. Heard in this court at the October term, 1933.
    B. A. Knight, for plaintiff in error. F. J. Tilton, for defendant in error.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    In re Claim of Leslie C. Morgan, supervisor for and on behalf of Township of Bonus, Boone County, appellee, v. Estate of A. Gates White, deceased, appellant.
    Gen. No. 8,756.
    Opinion filed April 25, 1934.
    Heard in this court at the February term, 1934.
    F. A. Oakley, Wm. Biester and W. C. De Wolf, for appellant. Alexander J. Strom, State’s Attorney, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    William C. Hubbell and First National Bank of Libertyville, appellees, v. Mary C. DeVault et al., appellants.
    Gen. No. 8,761.
    Opinion filed April 25, 1934.
    Heard in this court at the February term, 1934.
    Clyde L. Todd and John V. Mooradian, for appellants. Paul MacGuffin, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Jacob Draves, appellee, v. Galesburg Horse and Mule Company et al., appellant.
    Gen. No. 8,771.
    Opinion filed April 25, 1934.
    Heard in this court at the February term, 1934.
    Burrel Barash, for appellant; Louis Gard, of counsel. Leo P. Baird, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    H. F. Gehant Banking Company, appellee, v. M. Bradshaw and Mae Bradshaw, appellants.
    Gen. No. 8,776.
    Opinion filed April 25, 1934.
    Heard in this court at the February term, 1934.
    William H. Winn and Fremont Mordecai Kaufman, for appellants. Clyde Smith, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Per curiam.

text:
    Antonia Burcar, appellee, v. Albert L. Roberts, appellant.
    Gen. No. 8,411.
    Opinion filed April 25, 1934.
    Heard in this court at the October term, 1932.
    Arthur H. Shay, for appellant. Elmer J. Mohan and Butters & Butters, for appellee.
   Per curiam.


author: Mr. Justice Davis

text:
    Third District.
    Lula A. Black, appellee, v. William T. Barton et al., appellants.
    Gen. No. 8,791.
    Opinion filed April 11, 1934;
    Heard in this court at the October term, 1933.
    Cavanagh, Lamet & Irwin, for appellants; Wm. H. Hartzell, of counsel. Walter I. Manny and John E. Wall, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    William L. Patton, appellee, v. Mary Ann Adams, appellant.
    Gen. No. 8,818.
    Opinion filed April 11, 1934.
    Heard in this court at the January term, 1934.
    Ed. D. Henry, for appellant. William L. Patton, pro se.

   Mr. Justice Davis

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    General Motors Acceptance Corporation, appellant, v. Richard Vaughn and Emmett C. Vaughn, appellee.
    Gen. No. 8,777.
    Opinion filed April 11, 1934.
    Heard in this court at the October term, 1933.
    Rehearing denied June 7, 1934.
    Gunn, Penwell & Lindley and Shurtleff & Nichaus, for appellant. Van Sellar & McClain, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    H. F. Zelle, appellee, v. The Morton State Bank, appellant.
    Gen. No. 8,786.
    Opinion filed April 11, 1934.
    Heard in this court at the October term, 1933.
    Rehearing denied June 7, 1934.
    Jesse Black, Jr., for appellant; Clarence W. Heyl, of counsel. Herget & Hoffman and Ralph Dempsey, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Jack T. Reynolds, a minor, by Merle Reynolds, his father and next friend, defendant in error, v. C. O. Wedeberg, trading as “The Medical Clinic’’ and Adolph Jacob Newman, plaintiffs in error.
    Gen. No. 8,795.
    Opinion filed April 11, 1934.
    Heard in this court at the October term, 1933.
    G. G. Ginnaven, for plaintiffs in error. Doyle, Sampson & Giffin, for defendant in error; A. F. Newkirk and C. Terry Lindner, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    L. H. Hulan et al., defendants in error, v. Lester Goodman et al., plaintiffs in error.
    Gen. No. 8,816.

      Opinion filed April 11, 1934.
    Heard in this court at the January term, 1934.
    Louis L. Williams, L. A. Mehrhoff and Barry & Barry, for plaintiffs in error. A. B. Johnson, for defendants in error.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Mr. Presiding Justice Edwards

text:
    Fourth District.
    W. B. Douhitt, appellee, v. J. B. Van Preters et al., appellants.
    Opinion filed March 12, 1934.
    Heard in this court at the October term, 1933.
    C. W. Burton and A. G. Whitehouse, for appellants. L. H. Holland, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Murphy

text:
    Helen C. Pollard, appellee, v. Broadway Central Hotel Corporation, appellant.
    Heard in this court at the October term, 1932.
    Opinion filed March 12, 1934.
    Josiah Whitnel, H. L. Browning and J. R. McMurdo, for appellant. Wm. Baird & Sons and Pope & Driemeyer, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


author: Mr. Justice Stone

text:
    Iva Ragland, defendant in error, v. A. T. Ragland, plaintiff in error.
    Opinion filed March 12, 1934.
    Heard in this court at the February term, 1934.
    J. C. Carr, for plaintiff in error. Frank E. Trobaugh, for defendant in error.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    Rhea V. Moore for Use of St. Louis Joint Stock Land Bank, Appellee, v. National Fire Insurance Company of Hartford, Appellant.
    Gen. No. 8,807.
    Opinion filed April 11, 1934.
    Rehearing denied June 7, 1934.

      Harry B. Hershey, Charles E. Bliss and A. L. Yantis, for appellant.
    Guy L. Smith and Theodore F. Graupner, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

Rhea Y. Moore, who sues for the use of the St. Louis Joint Stock Land Bank, commenced this action in the circuit court of Shelby county to recover from appellant, the National Fire Insurance Company of Hartford, a loss claimed to have been sustained by her by the burning of her home which was insured against loss by fire by appellant and on a trial of said cause recovered a judgment in the sum of $1,500, from which judgment appellant has appealed to this court.

She filed a declaration in which she set out in full the policy of insurance and alleged the payment of the premium and the issuance of said policy to one A. B. Boatz, in which appellant insured said A. B. Boatz against loss by fire in the sum of $1,500 on a one-story shingle roof frame building located on certain premises described in said declaration, and alleging that, after the issuance of said policy, she purchased from said Boatz the real estate covered by the policy of insurr anee and that the same was conveyed to her by warranty deed and that he assigned to her said policy of insurance which was made with the written consent of the defendant, but which written assignment and consent had been lost or misplaced.

One of the provisions contained in said policy of insurance was as follows: “Loss Claims. In Case of Loss the insured shall, within fifteen days, give this Company written notice thereof, and shall, within sixty days from the date of the loss, render to the Company a particular account of such loss, signed and sworn to by the insured, and by the insured only (except in case of death, and then by the legal representatives), stating the date and circumstances of the same, the exact nature of the title and interest of the insured, and of all others in the property, by whom and for what purpose any building herein described was occupied at the time of the loss, all encumbrances on the property, and all other insurance, whether valid or not, covering any portion of said property; and shall furnish this Company an itemized statement of personal property, and plans and specifications, and an itemized estimate of the buildings, by some reliable and competent builder. All claims for any loss or damage shall be forfeited by failure to furnish proofs of such loss or damage within the time and in the manner above specified.”

Plaintiff further alleged in her declaration that immediately after said fire had occurred, and within 15 days of the date thereof, she gave written notice thereof to the defendant by and through its agents and servants in that behalf; and that she, the plaintiff, did thereafter and within 60 days after said fire, to wit: on or about the 22nd day of August, A. D. 1931, render to the defendant a particular account of such loss signed and sworn to by her, the plaintiff, stating the date and circumstances of said fire, the exact nature and title of the interest of the plaintiff in said property and of all others in the property, by whom and for what purpose the building in said policy described was occupied at the time of the loss, all incumbrances on the property and all other insurance covering any portion of said property, which said proof of loss aforesaid was delivered to it, the defendant, by and through its agents and servants in that behalf; and the plaintiff avers that the proofs of loss, so made by her as aforesaid, have since that time been kept and retained by said defendant.

To this declaration the defendant filed its fourth amended special plea in which, after setting forth said provisions of the policy with reference to proof of loss, it alleges that plaintiff did not after said alleged fire had occurred, within 60 days from the date of said alleged loss, render to this defendant a particular account of such loss signed and sworn to by the said plaintiff stating by whom and for what purpose the said buildings were occupied at the time of the loss, stating all incumbrances on the property and other insurance covering any portion of said property; wherefore and whereby, by the terms of said contract of insurance, the said claim of the plaintiff for any loss or damage sued for herein was forfeited by failure to furnish the proof of such loss or damage within the time and manner above provided.

To this fourth special plea of the defendant the plaintiff filed two replications, in the first of which was averred that within 60 days after said fire, to wit: within 20 days thereafter, the defendant sent its certain agent, to wit: its adjuster, to investigate the said fire, and to settle and adjust the loss sustained by her, and that she then and there gave to the adjuster all such information, as was then and there requested of her by said adjuster, relating to the loss, the date and circumstances of the same, and the nature and title of the interest of the plaintiff in said property, and by whom and for what purpose the building destroyed was occupied at the time of such loss, and all of the incumbrances and other insurance covering any portion of said property, and that the same was reduced to writing by the said adjuster, and the plaintiff further avers that afterwards, within the said period of 60 days after the date of said fire, she inquired of H. D. Halbert, the then and there agent of the defendant, who had taken the application of the said A. B. Boatz, the plaintiff’s assignor, for the contract of insurance, and who had signed and delivered the said contract of insurance to plaintiff’s assignor, and who had collected and received for and on behalf of it, the defendant, the consideration paid for the said contract of insurance, if she, the plaintiff, would be required to make out and file any proof of loss pursuant to the terms of said contract of insurance, and said H. D. Halbert, the agent of defendant, then and there said to her, the plaintiff, that it would not be necessary for her to make out and file any proof of loss, wherefore, the plaintiff avers that the defendant then and there waived the terms and conditions of the said contract of insurance, in the said plea alleged.

The second replication is substantially like the first, except that it alleges that the adjuster, who was the agent of the insurance company, who then and there had full power and authority to settle and adjust said claim, and tq make and accept proof of loss sustained by her, the plaintiff, informed the plaintiff that she would not have to make any further proof of loss, and that he would be back to see her in about a week, and that, by the representations of the defendant by its agents, she was led to believe that no further proof of loss would be required of her, and that the adjuster did not return to make any further proof of loss, or have the plaintiff swear to the said statement which he had taken down in writing, and plaintiff avers that the defendant then and there waived the terms and conditions of said contract of insurance, in said plea alleged.

Motions were made to strike the replications of the plaintiff to the fourth special plea of the defendant from the files, and such motions were by the court overruled. The defendant thereupon filed demurrers to said replications, which were overruled and the defendant thereupon elected to stand upon its demurrers and a jury was called and a trial had upon the issues raised by other special pleas filed by defendant.

The first error urged by appellant was the refusal of the court to strike the first and second replications of the plaintiff to the fourth special plea of the defendant and in overruling the demurrers filed to said replications, on the ground that the declaration alleged a full performance of the conditions of the policy of insurance requiring the furnishing of proof of loss, and the replications to said special plea allege waiver and estoppel on the part of appellant to demand said proofs of loss and that this is a departure and therefore bad.

A departure takes place where, in any pleading, the party quits or departs from the case or defense which he first made, and has recourse to another; or in other words, when the replication or rejoinder contains matter not pursuant to the declaration or plea which does not support and fortify it. Tidd’s Practice, p. 688.

The rule against departure is evidently necessary to prevent the retardation of the issue. For, while the parties are respectively confined to the grounds they have first taken in their declaration and plea, the process of pleading will exhaust, after a few alternations of statement, the whole facts involved in the case, and thereby develop the question in dispute. Andrews Stephen’s Pleading, sec. 246.

“Though an excuse for not performing a condition is for some purposes equivalent to performance, yet it is not the same thing, and, therefore in pleading, performance must never be averred by a party who relies upon an excuse for not performing, but he must state his excuse.” Hart v. Carsley Mfg. Co., 221 Ill. 444; Feder v. Midland Casualty Co., 316 Ill. 552.

In the case of Feder v. Midland Casualty Co., supra, it is said: “The appellant contends that there was a waiver of the requirements of proof of loss. . . . The appellant by the pleadings has not claimed the benefit of this waiver. The declaration has alleged a performance of the conditions and not a waiver of them; that she furnished the proofs, — not that she was excused from furnishing them. . . . “The rule announced in German Fire Ins. Co. v. Grunert, 112 Ill. 68, and Evans v. Howell, 211 Ill. 85, that the waiver by the defendant of the performance of conditions precedent to his liability need not be alleged but may be proved under an issue alleging performance is contrary to the weight of authority as well as the principles of sound pleading and has not been followed in the later cases which have been cited. ’ ’

It appears from the foregoing that the case set forth in the replications of waiver and estoppel is a clear departure from that of performance alleged in the declaration and that if waiver is relied upon as an excuse for nonperformance it must be pleaded and that plaintiff, if she alleges performance in her declaration, cannot offer evidence of waiver of the requirements of proof of loss.

Appellee relies upon the case of Trichelle v. Sherman & Ellis, Inc., 259 Ill. App. 346, as establishing the rule that it is not a departure in the pleading to set up a reply of waiver by replication to a plea of nonperformance when performance has been alleged in the declaration.

While it is true, as stated in that case, that waiver may be pleaded either in the declaration or by replication to special pleas, yet, this is not true when the pleader in his declaration alleges performance. He must state the facts constituting the cause of action upon which he relies to recover, so as to enable the defendant to prepare his defense and meet the facts alleged with appropriate evidence, and, if he alleges performance in his declaration, he cannot afterwards by replication set up a reply of waiver to a plea of nonperformance. This may not be the rule in all jurisdictions, but wherever pleadings are formulated according to the rules of the common law this must necessarily be true.

The proper method of taking advantage of a departure is by demurrer; for if the defendant, instead of demurring, take issue upon a replication containing a departure, and it be found against him, the court will not arrest judgment. Tidd’s Practice, sec. 688.

The court should have sustained the special demurrers of defendant to the replications of the plaintiff to the fourth amended special plea of defendant.

Another provision made an assignment of the policy without written consent indorsed on the same null and void. The defendant by its first and second special pleas denied that the policy was assigned by said A. B. Boatz, the original assured, to plaintiff, or that the defendant consented to such assignment. The plaintiff replied that the original assured did assign said policy to her and that the defendant did by writing attached to said policy consent and agree to such assignment.

H. D. Halbert, who at the time of the alleged assignment of the policy was the agent of defendant, testified that Boatz executed said assignment in triplicate and that he mailed one copy to the defendant, one to the Stock Land Bank, and one to Rhea Moore, and that he signed said forms of assignment.

Manford Moore, the husband of plaintiff, testified that he saw the assignment of interest attached to the policy in the office of his attorney, Mr. Preihs, and saw them at the Land Bank office in St. Louis when he was down there, but never got the assignment blanks in his possession.

The witness, G-raupner, testified he lived in St. Louis, and is attorney for the St. Louis Joint Stock Land Bank and in charge of the insurance department. We had the original policy of insurance in our office, the executed assignments were filed with and attached to original policy. Later we sent the policy and assignments to Carl Preihs’ office in Pana, and later the policy was returned by Mr. Preihs but the assignment of interest blanks, which had been executed and attached, were not with the policy when it was returned ; that he did not know where they were, that there were two of them and that he would recognize a copy of assignments; that plaintiff’s Exhibit “B” is the form used by the agent of the company in making out the assignments; the blanks were filled in and one of the assignments attached to the policy; the assignment was filled out as follows: ‘ ‘ The interest of A. B. Boatz, as owner of the property covered by this policy, is hereby assigned to Mrs. Bhea V. Moore, subject to the consent of the National Fire Insurance Company of Hartford.” It was dated and signed. The lower portion, — -“Consent by Company to assignment of interest,” — was filled out as follows: “The National Fire Insurance Company of Hartford hereby consents that the interest of A. B. Boatz as owner of the property covered by this policy be assigned to Mrs. Bhea V. Moore. Attached to and forming a part of Policy No.- of the National Fire Insurance Company of Hartford, issued at its Pana, Illinois, Agency. Dated and assigned by H. D. Halbert, agent.”

This form of assignment and the consent of the agent of the defendant thereto, the policy of insurance and a letter written by witness, G-raupner, were all admitted in evidence over the objections of the defendant. There is no evidence in the record showing particularly that the written assignment of the policy by Boatz or the written consent of the defendant to such assignment were not in the possession of the St. Louis Joint Stock Land Bank. The attorney, Preihs, who was the last person shown by the evidence to have had possession of the assignment and consent of defendant thereto, was not called as a witness and no proof was introduced showing* that they were not in his possession or as to what became of them.

The pleas of the defendant, and the replies of the plaintiff thereto, made a direct issue as to whether there was any assignment of the policy by Boatz and as to whether the defendant consented thereto.

In order to permit the introduction of secondary evidence of the contents of an instrument the burden is upon the party, seeking to introduce such evidence, to show that the instrument is lost or destroyed or that its production for some other reason is excused. Where an instrument is shown to have been in the possession of any person, in order to admit secondary evidence of its contents, the person in whose possession it was last shown to have been, must be produced, unless that is shown to be impossible. In such case search among his papers must be proved, if that can be done, and, in any event, search must be made for the paper with the utmost good faith and be as thorough and vigilant as if all benefit of the paper would be lost unless it were found. McCarthy v. Meyer, 298 Ill. 620.

The court erred in admitting secondary evidence of the contents of the assignment of the policy and of the consent of the defendant thereto. There was no competent proof of any assignment of the policy by Boatz to the plaintiff, nor of any written consent of the defendant thereto.

For the errors indicated the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


text:
    Griggsville State Bank et al., Defendants in Error, v. Edd Newman et al., Plaintiffs in Error.
    Gen. No. 8,822.
    Opinion filed April 11, 1934.
    Rehearing denied and additional opinion filed June 7, 1934.
    Noah G-ullett and Hoopes & Pefeerle, for plaintiffs in error.
    William and Barry Mumeord and Merrill H. Johnston, for defendants in error.
   Mr. Justice Davis

delivered the opinion of the court.

The Illinois Valley Bank, a corporation, and other judgment creditors of Edd Newman, filed their bill of complaint in the circuit court of Pike county for the purpose of setting aside a deed made by said Newman to his wife, Edna Newman, and their four minor children, on the ground that the deed was a fraud on the rights of the creditors of said Newman.

The bill alleged that Newman was the owner in fee of an undivided one-third interest, subject to the life estate of Charles B. Newman therein, of certain real estate in said bill of complaint described; that the complainants recovered judgments against said Edd Newman, and that, prior to the rendition of said judgments and after the indebtedness upon which each and every of said judgments was rendered had accrued, said Newman made a pretended conveyance in fee of said real estate, subject to the said life estate, to Edna Newman, his wife, and their four minor children; that said conveyance was not real but was made by Newman with the intention on his part of defrauding complainants, and his other creditors, and that no consideration was paid by said Edna Newman or said children, or either of them, and that said Edd Newman had no personal property or real estate liable to levy and sale except the premises, described in said bill of complaint, upon which they could realize the amount of said judgments and costs, and praying that said conveyance be set aside, vacated and declared null and void as to the complainants, and that said real estate be sold for the satisfaction of the judgments of complainants.

The court after hearing said cause found that the deed was fraudulent and void as to the rights of complainants; that the same should be set aside and the sheriff should proceed to sell said premises in satisfaction of the judgments held by eoiñplainants.

This writ of error was sued out of the Supreme Court to the circuit court of Pike county to reverse said decree, and was transferred to this court by the Supreme Court.

The plaintiffs in error contend that jurisdiction was not obtained over one of the nonresident defendants, because of the insufficiency of the attempted service by publication, and that the decree cannot be sustained because it does not contain a sufficient finding of facts, and that there is no certificate of evidence to support the same.

The plaintiffs in error during the pendency of said writ of error in the Supreme Court made a motion, which was granted, that an order be entered substituting GriggsviUe State Bank and H. S. Miller, as receiver for GriggsviUe State Bank, as defendants in error, in place of defendant in error, Illinois VaUey Bank, and alleging: “That after the entry of the decree in the above entitled cause by the Circuit Court of Pike County, Illinois, the defendant in error, Illinois VaUey Bank, ceased to do business and GriggsvUle State Bank has succeeded to the assets and Uabilities of said Illinois Valley Bank, and, after said GriggsvUle State Bank succeeded to the assets and liabilities of said Illinois Valley Bank, H. S. Miller was appointed receiver for said GriggsvUle State Bank by the auditor of the State of Illinois, and afterwards the Circuit Court of Pike county, Illinois, on January 26, 1932, confirmed the appointment of said auditor and that said H. S. MUler is now acting as receiver for said GriggsviUe State Bank, under appointment by said auditor, and the circuit court of Pike county, Illinois, by reason whereof the said H. S. Miller, as receiver for said GriggsviUe State Bank, and GriggsviUe State Bank should be substituted as defendants in error in place of defendant in error, Illinois Valley Bank.”

Said motion was supported by the affidavit of one of the attorneys for plaintiffs in error who stated that he is informed and believes the facts stated in the foregoing motion are true; that he investigated the facts and has consulted with the attorneys for H. S. Miller, receiver for said GriggsviUe State Bank, and received from them the information and facts stated in the foregoing motion relative to the relation between Illinois Valley Bank and Griggsville State Bank and H. S. Miller, as receiver for said Griggsville State Bank.

The defendant in error, Illinois Valley Bank, was never served by scire facias, nor did it receive notice of such motion and had no opportunity in the Supreme Court to object to such substitution.

The suing out of a writ of error is the commencement of a new suit, and the assignment of errors on the record stands as the declaration of the plaintiff in error, to which the defendant in error may plead or join in error. Cass v. Duncan, 260 Ill. 228; Great Northern Refining Co. v. D. K. Jeffris Lumber Co., 308 Ill. 342. All parties to the record of the inferior court to which a writ of error issues must be made parties to the writ, either as plaintiffs or defendants, so that one judgment of the court of review will settle the rights of all the parties interested. Scott v. Great Western Coal & Coke Co., 220 Ill. 42; Wuerzburger v. Wuerzburger, 221 Ill. 277.

To entitle a person to sue out a writ of error he must be a party or privy to the record, or be one who is injured by the judgment or will be benefited by its reversal, or is competent to release errors. Leland v. Leland, 319 Ill. 426, 428; Anderson v. Steger, 173 Ill. 112; People v. Harrigan, 294 Ill. 171. Where the writ is sued out by one not a party to the record, his right thereto must affirmatively appear from his assignment of errors. Scott v. Great Western Coal & Coke Co., 223 Ill. 271; People v. Harrigan, 294 Ill. 171; Winne v. People, 177 Ill. 268.

Under former Buie 9 of the Supreme Court, in case. of the death of a party to the record after the rendition of the judgment or decree, any other party to such judgment or decree, or any heir or legal representative of any other party, desiring to sue out a writ of error might do so by filing an affidavit showing the persons to whom the estate of the deceased party has passed, and making snch persons defendants in error. • "When the death of a natural person is suggested and the persons to whom his estate passed are substituted, no proof of his death or of the fact that his estate passed to the substituted persons is required in the absence of any objection. Dorn v. Ross, 177 Ill. 225.

Assuming that a corporation is one of the parties to the record whose dissolution can be suggested under the provisions of said Eule 9, yet a corporation is unlike a natural person, and a mere suggestion of its dissolution does not raise a presumption that it cannot be sued.

It was held in Life Ass’n of America v. Fassett, 102 Ill. 315, 324, that it is part of the settled policy of this State, that upon the dissolution of a corporation, however that may be effected, the corporation shall nevertheless be regarded as still existing for the purpose of settling up of its affairs, and in Commercial Loan & Trust Co. v. Mallers, 242 Ill. 50, 53, it was said: “In this case the suit was commenced while the defendant in error was a going corporation, and we see no reason why it should not be permitted to prosecute its suit to final judgment for the purpose of collecting its assets and settling up its affairs, even though it went into voluntary liquidation pending the litigation.”

The Illinois Valley Bank was one of the complainants and has an interest in said decree, and although the plaintiffs in error voluntarily dismissed said Illinois Valley Bank out of the case by obtaining an order substituting the Grriggsville State Bank and H. S. Miller, its receiver, as defendants in error in place of said Illinois Valley Bank, yet said bank is a necessary party to this writ of error and should have been served by writ of scire facias.

The motion filed by plaintiffs in error for such substitution of parties alleged that the Illinois Valley Bank had ceased to do business, but did not allege its dissolution; it may have ceased to do business as a bank and may be going through the process of liquidation under some arrangement with the G-riggsville State Bank, but so far as the record shows it still exists as a corporation.

The Illinois Valley Bank not having been made a party to the writ, we cannot hear the cause. The rights of all interested parties cannot be settled by any judgment that might be entered and, therefore, the writ must be dismissed.

Writ dismissed.

Additional Opinion Upon Petition for Rehearing.

In their petition for a rehearing of said cause plaintiffs in error suggest that an Appellate Court is not clothed with power or authority to review a supposed or alleged error committed by the Supreme Court, but that this court assumed such authority and reviewed the record made in the Supreme Court in this case.

"When the Supreme Court determined that no constitutional question was presented for determination and entered an order transferring the case to this court for adjudication, it was because of the fact that it had no jurisdiction of the subject matter of said cause and any orders that may have been entered previous to the time such determination was made and said order was entered are coram non judice and ineffectual for any purpose. People ex rel. Goldman v. Harrison, 223 Ill. 540; Schmidt v. Barr, 328 Ill. 365.

Upon the filing of the record of the case in this court in pursuance of the order of the Supreme Court, this court was required to proceed the same as if the case had come directly from the circuit court of Pike county, and this court had jurisdiction and was required to determine every question presented by the record of said circuit court, and any motion or suggestion as to substitution of parties in said cause would necessarily have to be presented to this court. (Cahill’s Rev. St. 1931, ch. 110, 1f102.)

Prior to the enactment of said section 102 of the Practice Act, if a case was taken to the Supreme or an Appellate Court and the court to which such case was taken determined that it had no jurisdiction of the subject matter of said cause, such court could enter no order other than one dismissing the appeal or writ of error. Kowalczyk v. Swift & Co., 317 Ill. 312; Chaplin, v. Commissioners of Highways, 126 Ill. 264. But now under the provisions of said section 102 of the Practice Act, an order must be entered by such court transferring said case to the court having jurisdiction to entertain such appeal or writ of error, but said section confers no jurisdiction upon such court to which said case was erroneously taken to enter any other or different order. Foote v. Marggraf, 233 Ill. 48.

No motion or suggestion was presented to this court for the substitution of the Griggsville State Bank and H. S. Miller, receiver of said bank, in place of the Illinois Valley Bank, one of the complainants in the court below.

In our opinion it is pointed out that the Illinois Valley Bank, one of the parties to said cause in the lower court, was never served with a writ of scire facias and is not a party to the cause in this court, and we held that said bank was a necessary party to the writ of error as shown by the record in this case and we are still of that opinion, and the petition for rehearing is denied.