author: Mr. Justice Dove

text:
    Charles H. Francis, Appellant, v. David R. Joslyn, Appellee.
    Gen. No. 8,947.
    Opinion filed September 18, 1935.
    Rehearing denied October 21, 1935.
    D. T. Smiley, of Woodstock, for appellant.
    David R. Joslyn, Jr., of Woodstock, for appellee; Hugh A. Deneen, of Woodstock, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

On May 1,1908, the parties hereto formed a partnership for the general practice of law. The written article of agreement provided that the firm name would be Joslyn and Francis and that said copartnership would commence on May 1, 1908, and continue so long as agreeable to both of the parties thereto. The agreement further provided that Francis should buy one-half of certain law books and furniture at a price specified in the agreement and that each of the parties should bear, pay and discharge equally between them all of the rents and other expenses that might be required for the support and management of said business, and that all gains, profits and earnings that should be derived from said business would be divided between them equally. The agreement further provided that there should be had and kept at all times just and true books of account wherein should be entered and set down all money by them or either of them received or paid out in and about the said law business, and all other matters and things whatsoever to the said business and the management thereof in any ways belonging*. The pertinent portion of said agreement is the following paragraph: “And Whereas, said David R. Joslyn is now a candidate for the office of State’s Attorney in McHenry County, it is further agreed that in the event of his election to said office, that the fees derived therefrom shall be treated as other fees in the law business, and in the event of his said election, there shall first be paid to said David R. Joslyn from the fees of said State’s Attorney’s office the full amount of his campaign expenses, of which said David R. Joslyn shall keep a just and true account. ’ ’

On September 8, 1911, Francis filed his bill of complaint in the circuit court of McHenry county, in which he set up the foregoing partnership agreement, and alleged that in pursuance of its terms the parties thereto engaged in the practice of law from the date of the agreement until December 15, 1909, when the partnership was dissolved. The bill further alleged that Joslyn was elected State’s attorney of McHenry county in the fall of 1908 and entered upon the discharge of the duties of that office on the first Monday of December, 1908; that complainant, from the time Joslyn assumed his duties as State’s attorney until the dissolution of the partnership, did all the office work connected with said office as far as it was practicable for him to do so, and that at one term of the circuit court he made practically all the presentments before the grand jury and during the entire time the partnership continued he wrote practically all the indictments and informations and prepared all the instructions to be used in the trial of criminal cases. The bill then set forth the earnings of the firm, averred that a portion thereof was uncollected at the time of the dissolution of the partnership, and charged that the defendant had collected large sums due the partnership but had refused to account to the plaintiff for the amount due him under the partnership agreement. The bill made Joslyn a party defendant and prayed for an accounting. Subsequently, on June 8,1917, a supplemental bill was filed. The defendant answered the original and supplemental bill and admitted the formation of the partnership but alleged that prior to December 15, 1909, he had made a full settlement with the complainant for all fees and charges due and owing the firm. In his answer he admitted the execution of the partnership agreement but averred that such an agreement was against public policy and therefore void, and denied that complainant was entitled to any relief. The cause was referred to a special master who took the evidence, and upon a hearing, the chancellor found that the partnership agreement was void, being in contravention of the public policy of this State and entered a decree dismissing the bill for want of equity. From this decree the record is brought to this court for review by appeal. .

Appellant insists that the partnership agreement is legal and enforceable in all its terms; that under its provisions it became the personal obligation of appellee to place in the partnership account all the receipts of the office of State’s attorney of McHenry county from the date he assumed office in 1908 until the first Monday of December, 1912, when his term of office expired. Appellee insists that the partnership agreement is void, being against the public policy of this State. It is his further contention that while the partnership continued the earnings of the State’s attorney’s office were added to those of the firm and that the evidence discloses that the partnership was dissolved in July, 1909, and that subsequently and on December 23, 1909, he paid appellant $376.25, which appellant accepted in full for the amount due him under the partnership agreement.

There is no provision in our constitution nor in our statutes which throws any light upon the question of public policy in Illinois regarding contracts of this character, and no Illinois decision has been cited and we are aware of none which holds that a contract to put the salary of a public office into a partnership as part of the partnership earnings is void as against public policy nor has any decision of our own State come to our attention which holds such a contract valid. As to the precise question involved herein, we have, therefore in Illinois, no direct authority.

As illustrating the trend of judicial opinion, however, in this State, the case of Pitsch v. Continental & Commercial Nat. Bank of Chicago, 305 Ill. 265, is illuminating. It appeared in that case that the plaintiff was a notary public and he contracted with the defendant bank to do notarial work and accept as compensation a percentage of the fees prescribed by law. This notary and another one were given all papers requiring protest, and devoted all their time to the work, and were each to receive and did receive 12% per cent of all protest fees received for protesting commercial paper which came into the hands of the plaintiff for protest through the defendant bank. Each half month the plaintiff gave the bank a receipt for 12% per cent of the fees it had collected during the last one-half month and released the bank over his signature and under seal from all claims and demands up to date, and set over and assigned to the bank all fees as notary public, due and owing to him from the bank for fees earned as a notary public during the half month preceding the date thereof. After serving the bank in that manner for a number of years and receipting each half month for the agreed percentage of his fees and releasing and assigning to the bank all he had earned as notary public during the period covered by the receipt he brought suit for such part of his earnings as he had not received from the bank, basing his right to recover on the ground that the bank was withholding money it had received for his use — and meeting the defense with the claim that the contract was void as against public policy and that the receipts and assignments executed by him in pursuance of the void contract were not binding upon him. In the course of its opinion the court said: “The proposition that a contract whereby a public officer whose compensation is fixed by statute agrees to accept for his official services something different from that provided by statute is contrary to public policy and void seems to be well supported by authority as well as justified in principle. . . . The compensation of a public official for the performance of his official duties is not a matter for traffic or trade, . . . Official morality and public policy alike prohibit the undermining of the public service by permitting officers to make merchandise of their official services.”

In Sprecher v. Christensen, 236 Ill. App. 400, it appeared that the plaintiff was coroner and a member of the city board of health. He and the defendant were both physicians and the plaintiff sold his practice and office equipment to the defendant for $2,000, which sum the defendant paid. Their contract provided that the plaintiff would resign from the office of health officer and coroner and would recommend defendant for appointment to both of them, and in consideration thereof defendant agreed to pay the plaintiff all income received by him from the practice of medicine in excess of $4,500 for the year immediately following the date of the contract. To recover such excess plaintiff sued and the defendant set up that his promise was based on the plaintiff’s promise to try to have him, the defendant, appointed coroner and member of the board of health; that the contract in that respect was against public policy and void and for that reason not enforceable. The court sustained the contention of the defendant holding that an agreement to pay a person for his aid or influence in procuring an appointment to a public office is illegal and void.

Appellant cites in support of his contention the case of McGregor v. McGregor, 130 Mich. 505, 90 N. W. 284. In that case the court sustained the contention of the defendant that the amount paid into the firm account by the defendant and which he had received as the salary of his office as boiler inspector of the City of Detroit was in fact a loan by him to the partnership.The court then stated that such being the contract of the parties, the agreement did not therefore amount to an assignment of an unearned salary of a public officer and was not void as against public policy. The contract, said the court, was rather an agreement as to the manner in which the salary of one of the partners as such boiler inspector should be disposed of when earned and paid. Without reference to the holding in the McGregor case, supra, the same court in Anderson v. Branstrom, 173 Mich. 157, also reported in 139 N. W. 40 and in 43 L. B. A. (N. S.) 422, held that the contract there involved did amount to an assignment of an unearned emolument of a public office. In the Anderson case it appeared that the parties thereto were lawyers and on February 10, 1911, entered into a partnership agreement which among other things provided that Branstrom, who was prosecuting attorney for Newaygo county, should bring his salary as such prosecuting attorney into the partnership and divide the same equally between the partners. In its opinion the court stated that the salary is the quid pro quo paid by the public for the performance of public official duties, that the agreement there under consideration in substance and effect assigns, before it is earned, this salary and that the contract was therefore void. The opinion then continues: “The test of the validity of such an agreement is not, I think, whether, if it was faithfully carried out, the public would be harmed, but its validity must be measured by its tendency. It is undoubtedly true that the salary of public office is frequently brought into firm account and divided by the officer with partners. But assignments of unearned emoluments of public office are not favored, and courts have, pretty uniformly, refused to enforce them. The agreement in question amounts to such an assignment, and it would seem therefore that the courts should refuse to enforce the agreement, directly or indirectly. We said in Granger v. French, 152 Mich. 356, 116 N. W. 181, 125 Am. St. Rep. 416, that ‘the rule of public policy makes all anticipatory assignments of salary by the relator void, and demands that he be paid his official salary notwithstanding such assignments.’ This rule was restated and affirmed in Dunkley v. Marquette, 157 Mich. 339, 122 N. W. 126, 17 Ann. Cas. 523. See also Bailey v. Sibley Quarry Co., 166 Mich. 321, 129 N. W. 17; Mechem, Public Offices and Officers, sec. 370; Benson v. Bawden, 149 Mich. 584, 113 N. W. 20,13 L. R. A. (N. S.) 721.”

In Gaston v. Drake, 14 Nev. 175, it appeared from the complaint that the parties to that litigation had formed a copartnership to practice law in Story county, Nevada; that while they were partners, both being of the opinion that if the defendant was elected to the office of district attorney of that county that their business would be greatly increased, mutually agreed that the defendant should run for such office and if elected that then the plaintiff was to aid the defendant in the business of the office, for which services he was to receive one-half of the fees. In holding this contract void as against public policy, the court said that the tendency of such a contract was to induce the plaintiff to use all of his influence for defendant’s election, even though he did not agree to do so; that such an arrangement might have induced him to influence 10 men or 100 men to vote for the defendant in opposition to preconceived political principles and fixed ideas of right and duty; and, too, when they may have preferred his opponent as an incumbent of the office. “Such a contract cannot be upheld,” said the court in its opinion. “Its tendency was to corrupt the people upon whose integrity and intelligence the safety of the State and Nation depends- — to lead voters to work for individual interests rather than the public welfare. In my opinion, in the majority of cases, men will work as industriously, under a contract that they shall assist in performing the labors, and share in the profits, of an office, if another is elected, as they would if a promise to use all their influence should be subjoined. With most men self-interest is among the strongest incentives to effort and it requires no added promise to act as a stimulating influence. ... If there are any contracts upon which courts should ‘put the stamp of their disapprobation, ’ it is those curtailing or tending to curtail a free exercise of the elective franchise.”

In Wishek v. Hammond, 10 N. D. 72, also reported in 84 N. W. 587, an agreement by partners that they should secure the appointment of one of them as a court commissioner and that his fees as such court commissioner should become partnership assets was held to be void as against public policy.

In Deyoe v. Woodworth, 144 N. Y. 448, it was held that an agreement between the sheriff and his deputy by the terms of which the deputy agreed to pay over to the sheriff one-third of all fees collected by him, which under the law were payable directly to the deputy, was void as against public policy.

In Robertson v. Robinson, 65 Ala. 610, it appeared that Robertson entered into an agreement with Sewell, who was a candidate for tax assessor, by the provisions of which Sewell agreed that if he was elected he would appoint Robertson his chief deputy and pay him from the fees of the office $2,500, providing Robertson should make for him his official bond and perform certain duties of the office. In holding the agreement void, the court said: “Of such an agreement, in the strong language of Chief-Justice Wilmot, in Collins v. Blantern, 2 Wils. 341 (1 Smith’s L. C. Pt. 2, 673), it may be said, that it ‘is void ab initio, by the common law, by the civil law, moral law, and all laws whatever.’ It concerns a place of public trust, in which the public have high interests, involving the performance of public duties, and which cannot be made the subject of traffic, and cannot become the matter of trade and bargaining. It was corrupting the appellant as a voter, bound by his duty to cast his vote from public, not private considerations, on the eve of the election to make such a proposition; tempting him to merge his duty as a citizen in the promptings of mere selfishness, in the gratification of his avarice. It was bargaining away the .discretion in the appointment of a deputy, which Sewell was bound to exercise for the public good, and not for the promotion of his private interests or convenience. It was an irrevocable appointment, continuing during the term of office, which was contemplated, fettering the power of appointment with which Sewell was clothed by law. In fact, it was a sale of the office of deputy, and the consideration was not only the services the appellant was expected to render, but the making of the official bond. The people of Montgomery county, trusting to the integrity and good judgment of Sewell, elected him to the office of assessor of taxes. Their confidence was repaid by his transfer to the appellant of every duty not merely ministerial, attaching to the office, in consideration really of ease and convenience in making the official bond. It would be far better that public trusts, public offices, or the deputations to them, should be exposed at public auction to the highest, or to the lowest bidder, than that they should become the subject of such private bargaining and traffic. ... No judicial tribunal, so far as we can discover, has ever given countenance to any such agreement ; and if popular elections are to be kept free from the taint of selfishness and corruption — if public offices are to be dignified as public trusts, and the performance of official duty preserved from the contamination of unlawful and improper influences, all such agreements will be condemned. ’ ’

In 13 C. J. 439, the author of the article on Contracts says: “An agreement by a member of a partnership, on his being elected to a public office, to pay into partnership funds all salaries and commissions derived from the office is against public policy. ’ ’ In support of the text, the case of Santleben v. Froboese, 17 Tex. Civ. App. 626, 43 S. W. 571, is cited. In that case it appeared that there was an agreement whereby one of the partners on being elected county treasurer should pay into the firm’s hands, all salaries and commissions derived from his office. In holding the agreement unenforceable, the court said: ‘ ‘ The idea that an officer elected by the people can put his office in as part of the assets of a partnership is utterly repugnant to public policy and the courts will utterly refuse to enforce any such contract.” The author of the article in Corpus Juris also cites the case of Thurston v. Fairman, 9 Hun 584, as holding to the contrary. We have examined that case and in our opinion the conclusion there reached is out of harmony with the rule which obtains in other jurisdictions and also in later New York cases.

In Campbell v. Offutt, 151 Ky. 229, it appeared that defendant Offutt executed two notes, one for $200 and another for $66.66, both payable to the order of Campbell and Young, attorneys. At the same time the $200 note was executed, the parties entered into an agreement whereby Offutt agreed to employ the payees as his attorneys when appointed State revenue agent, they to do the legal work connected with the office and to accept as payment in full for their services an amount equal to one-half of the income of said revenue agent. The notes not being paid, suit was instituted thereon and in affirming a judgment for the defendant, the court said: “Such an agreement is contrary to public policy and is void. If Offutt had secured the office and had refused to employ Campbell and Young as his attorneys to attend to the business of the office and they had sued him upon this contract, no court would have enforced it, or given damages for its breach. The law requires of a public officer that he shall use his best skill and judgment for the protection of the public interest, and an agreement before his appointment to divide the fees of the office with an attorney, if sustained, might seriously cripple the public service; for in this event the public would secure the services of an attorney in some instances who would offer the best terms to the official to secure the employment. . . . The agreement being one which the law will not tolerate, cannot be enforced. The consideration of the transaction is the illegal agreement and as the notes rest upon an illegal transaction, they cannot be enforced.”

In the Anderson case, supra, the contract which the court held void is set forth in the dissenting opinion. The substance of the provision in that contract and the substance of the provisions of the contract here under consideration is the same. The tendency of this provision in the instant contract would be that the appellant would use all his influence to bring about appellee’s election to the office of State’s attorney. The contract provides that if elected appellee should bring to the partnership all the fees derived from such public office and these fees were to be treated as other fees and divided equally between the parties hereto. In our opinion this provision under the foregoing authorities is not only void but is so connected with the other provisions of the partnership agreement that upon no rational basis can it be said that the contract is divisible. The decree of the circuit court is therefore affirmed.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Village of Hinsdale et al., Appellants, v. County Court of DuPage County, Appellees.
    Gen. No. 8,950.

      Opinion filed October 11, 1935.
    Malcolm Mecartnet, of Chicago, for appellants.
    Edward ft. Nadelhoee'er and George W. Thoma, of Wheaton, for certain appellees.
   Mr. Justice Dove

delivered the opinion of the court.

On April 17, 1934, there were submitted upon separate ballots to the voters of the village of Hinsdale, under the provisions of the Illinois Liquor Control Law, the following two propositions: ■ First, “Shall the sale at retail of alcoholic liquor be prohibited in this Village of Hinsdale” and second, “Shall the sale at retail of alcoholic liquor (or alcoholic liquor other than beer containing not more than 4% of alcohol by weight) he prohibited in this Village of Hinsdale.” The result of the election as canvassed by the president and hoard of trustees of the village disclosed that 914 votes were cast in the affirmative and 456 votes were cast in the negative on the first proposition, and 853 votes were cast in the affirmative and 495 votes were cast in the negative on the second proposition.

On April 27, 1934, William F. Otto, Samuel Clineff, Albert E. Erickson, Albert Oemig and Otto Fleck filed a petition in the county court of DuPage county, alleging that certain frauds and errors were committed in the conduct of said election and the count and canvass of the ballots and prayed that a recount be had under the order and direction of the court and that the court find and determine the true result of the election. This petition was verified as follows, viz.:

“William F. Otto, being first duly sworn on oath deposes and says that he is one of the petitioners in the above entitled cause and that as such he signed the above and foregoing petition: that he has read the foregoing petition and knows the contents thereof, and that all of the facts which are stated in said petition are true as therein charged, except as to the matters therein set forth upon information and belief, and as to such matters he believes them to be true.
William F. Otto.
“Subscribed and sworn to before me, this 26th day of April, A. D. 1934.
W. H. Johnson
(Seal) Notary Public. ’ ’

On June 25, 1934, by leave of court, an amendment to said petition was filed in which it was alleged that the petitions signed by the voters of the village of Hinsdale requesting the submission of said propositions to a vote were legally insufficient because of certain irregularities in the designation of the addresses of certain voters who signed said petitions and in the designation of the dates upon which they were signed. To this amendment the following affidavit was attached, viz.:

“William F. Otto, Samuel Clinefi, Albert E. Erickson, Albert Oemig and Otto Fleck, each being first duly sworn, on oath do each say that they have read the above and foregoing amendment to their original petition filed in the County Court of DuPage County, Illinois, and have also heard read the said original petition and know the contents of both, the said original petition and the above and foregoing amendment thereto and that the statements contained in the said original petition and the above and foregoing amendment thereto are true in substance and in fact as therein set forth.
William F. Otto Samuel Clineff Albert E. Erickson Albert Oemig Otto Fleck
“Subscribed and sworn to by each of the above named persons, namely, William F. Otto, Samuel Clineff, Albert E. Erickson, Albert Oemig and Otto Fleck, before me this 23rd day of June, A. D. 1934.
Ira D. Claxton.
(Seal) Notary Public.”

After a motion to dismiss the petition as amended had been overruled, the defendants answered, a hearing was had and on September 28, 1934, an order was entered finding that the petitions for the submission of each of said propositions to the voters of the village of Hinsdale were invalid and decreed that the election was null and void and of no legal force or effect whatever.

On October 25, 1934, the village of Hinsdale and Robert A. Peek, village clerk thereof, who were the defendants in the proceedings in the county court, filed their petition in the circuit court of DuPage county praying for a writ of certiorari to be directed to the county court of DuPage county and to Clarence Gr. Wageinann, county clerk thereof, commanding them to certify to said circuit court a transcript of the record of the proceedings had in the county court. A writ of certiorari issued and the respondents thereto filed their return and upon motion, the circuit court quashed the writ of certiorari and from that order the record is brought to this court for review by appeal.

It is the contention of appellants that under the petition of April 27, 1934, the county court of DuPage county did not acquire jurisdiction to determine the result of the election of April 17, 1934, and that therefore the order of the county court holding the election invalid is null and void. In support of this contention appellants insist first that the original petition should have been verified by each of the five petitioners and that the verification thereof by William F. Otto is not sufficient to confer jurisdiction upon the county court. Second, that the verification is insufficient in that it recites that the facts which are stated in said petition are true and does not aver that the allegations therein are true. Third, that the petition itself was insufficient because none of the grounds of contest therein set forth is positively alleged, but is only alleged upon information and belief and is verified solely upon information and belief. Fourth, that under the statute the county court only had jurisdiction to contest the validity of the election and not the results'of the election.

Section 17 of Article 9 of an Act relating to alcoholic liquors approved January 31,1934, Ill. State Bar Stats. 1935, ch. 43, II 90, provides: “Any five legal voters of any political subdivision, district, precinct or group of precincts in which an election shall have been held as provided for in this Act may, within ten days after the canvass of the returns of such election and upon filing a bond for costs, contest the validity of such election by filing a verified petition in the County Court of the county in which such political subdivision, district, precinct or group of precincts is situated, setting forth the grounds for the contest. Upon the filing of such petition a summons shall forthwith issue from such court addressed in cases of an election in a city, village or incorporated town, to the town, city or village clerk as the case may he; . . . The procedure in such cases shall be the same as that provided by law for the contesting of an election upon a subject which shall have been submitted to a vote of the people, so far as applicable. The County Court shall have the final jurisdiction to hear and determine the merits of such cases. Any legal voter in the political subdivision, district, precinct or group of precincts in which such election shall have been held may appear in person, or by attorney, in any such contested election case in defense of the validity of such election.”

It was by virtue of the foregoing provisions of the statute that the original petition in the county court was filed. This petition recited that the petitioners were at the time the petition was filed and had been for more than one year prior thereto legal voters, electors and citizens of the village of Hinsdale, DuPage county, Illinois; that on Tuesday, April 17, 1934, the propositions hereinbefore referred to were submitted to the voters of Hinsdale under the Act' of January 31, 1934. The petition set forth the propositions and the form of the ballots that were used at the election and alleged that theretofore a petition had been filed in the office of the village clerk, petitioning the clerk to cause to be submitted, in the manner provided by law, said propositions; that both of the petitions were signed by a number of alleged residents of the village of Hinsdale ; that on March 6,1934, the president and board of trustees of the village by ordinance provided for said election to be held on April 17,1934. The petition then alleged that at said purported election, an attempt was made to have the legal voters or electors of said village of Hinsdale vote on said propositions;.that at the four polling places certain judges and clerks of election were in attendance; that certain ballots were received in said polling places on said propositions to be voted “Yes” or “No”; that after the polls were closed a canvass of said ballots was attempted to be made by said judges and clerks of said polling places of the ballots cast at such polling place; that the judges of said polling places made returns of the number of votes cast for and the number of votes cast against said propositions, and that said returns from said polling places together with the poll books and ballots voted were thereafter sealed up by the judges and returned to the village clerk of said village of Hinsdale ; that at said election in each of said polling places there was also submitted to the voters of said village the election of members of the board of trustees, the village clerk and two directors of the public library, and that the same judges and clerks of election attended to said election of said village officers and to the giving out and receiving of the special ballots of said propositions; that the canvassing board reached the result named by adding together the votes for “Yes” or “No” for each of said propositions, as the same were stated in the certificates of said judges of election in said polling places; that certain errors of said judges of election of said polling places entered into the result declared by the canvassing* board, and that petitioners file said petition for the purpose of contesting said election on the following grounds:

“1. Petitioners represent that they are credibly informed and believe and on such information and belief state the facts to be that each of said propositions actually received and had cast more ‘No’, or in the negative, than were cast ‘Yes’ or in the affirmative; that said result would have appeared on the canvass of the returns of said canvassing board had it not been that many errors, omissions, and mistakes of the judges and clerks of election of said four polling places in receiving, reading, counting, tallying and certifying votes cast as ‘Yes’ or in the affirmative of said propositions were entered on the tally sheets returned by said election judges and clerks, which with the poll books and certificates of election were turned in from said polling places as the true and correct votes cast, and as a result the canvass contained the said omissions and mistakes whereby the said proposition was declared carried.

“2. Petitioners represent that they are credibly informed and believe and on such information and belief state the facts to be that at said election in each of said polling places the judges and clerks of election failed to count a certain number of ballots marked ‘No’ or ‘Yes’, which ballots were cast for and should-have been counted ‘No’ or the negative of said propositions; that in each of said polling places the judges and clerks counted ballots as ‘Yes’ or the affirmative of said propositions, which were cast for and should have been counted as ‘No’ or the negative of said propositions; that in each of said polling places the judges and clerks counted ballots as ‘Yes’ or the affirmative of said propositions which were not legally cast for said propositions; that the number of ballots so illegally and erroneously counted by said judges and clerks were more than 600 in number; that the said judges of said polling places failed to count over 75 ballots for either the affirmative or negative of said propositions, which ballots were cast for and should have been counted as ‘No’ or the negative of each of said proppsitions; that the judges of said election counted over 300 votes as ‘Yes’ or the affirmative of each of said propositions, which should have been counted as ‘No’ or for the negative of each of said propositions; that said judges counted over 300 votes as ‘Yes’ or for the affirmative of each of said propositions which were not legally cast therefor; that said judges and clerks failed to count over 200 ballots which were marked with a cross in the square opposite the word ‘No’ in each of said propositions, and if the said illegal votes had not been counted for each of said propositions and if said votes which legally should have been counted as ‘No’, or in the negative of each of said propositions, then the negative of said propositions would have had and by right did have a majority of over 600 votes over the total votes legally cast as ‘Yes’ or for the affirmative' of each of said propositions, and the votes cast as ‘No’ or for the negative of each of said propositions, were carried at. said election by a majority of over 600 votes as a recount of said ballots will disclose.

“3. Your petitioners represent that they are credibly informed and believe and on such information and belief state the facts to be that the judges and clerks of each of said polling places in said Village of Hinsdale counted a large number of ballots, to-wit: 89 ballots, bearing on the face of said ballots distinguishing marks and which ballots were therefor by reason of said marks illegal and void and should not have been counted, but that all of said illegal ballots had crosses in the square opposite the word ‘Yes’ on said ballots and were counted as ballots cast for ‘Yes’ or for the affirmative of each of said propositions, and that 66 ballots were handed to voters and were voted by making a cross opposite the word ‘Yes’, which ballots did not bear the legal endorsement of any election judge, and which ballots were therefore void and should not have been counted, but that said ballots were counted as legal ballots cast for ‘Yes’ of each of said propositions ; that in said polling places the judges and clerks of election illegally counted the ballots of election by dividing up into three piles the ballots cast, each election judge and clerk counting one pile, and one pile only, and then announcing the result obtained by the count obtained from said one pile, and other judges and clerks doing likewise with each of their piles, and the total vote cast at said polling places was arrived at by adding the three sets of figures of each of said three piles, which action and count was contrary to the Statute, which provides that one judge shall read off the ballots, the other two judges watching said reading, and the tallying of said votes as read to be made on the tally sheets by each of said clerks; that by reason of said illegal method of counting said ballots in three piles by an election Judge and clerk for each pile, many errors, mistakes, frauds and omissions were made by said election judges and clerks, and thereby many ballots were counted as ‘Yes’ or for the affirmative of each of said propositions, which should not have been so counted.

“4. Your petitioners represent that they are credibly informed and believe and on such information and belief state the facts to be that gross frauds were permitted in said four election polling places in that residents at the sanitariums were permitted by said judges of election at said polling places of said Village of Hinsdale, to vote on each of said propositions, and that said residents were not legal voters or legal electors in said Village of Hinsdale and were not legally entitled to vote upon each of said propositions at said village election, but that said residents made a cross in the square opposite the word ‘Yes’ on each of said propositions and said ballots, to the number of 200, so marked were deposited in the ballot box and counted by the judges and clerks of said election, said votes being illegally cast and should not have been received or counted as ‘Yes’ votes.

“5. Your petitioners represent that they are credibly informed and believe and on such information and belief state the facts to be that the returns of said election made by the judges and clerks in each of said ■polling places were incorrect and showed a less number of votes for the negative of each of said propositions than were cast at said election and showed more votes for the affirmative of said propositions than were cast at said election, which will more fully appear from a recount of the ballots cast at the four polling places.

“6. Your petitioners represent that they are credibly informed and believe and on such information and belief state the facts to be that all of said Act relating to alcoholic liquors or parts thereof, is unconstitutional, contra to the Statutes of the United States of America, and otherwise illegal and void and of no force and effect whatever, and also that the petition filed thereunder, the ballots, the statement of the propositions, the election, the canvass and returns of said election are illegal and void.”

The petition prayed that the ballots be impounded, opened and recounted by order of the court, that the errors, omissions and frauds be corrected to show the true result of the election, that the resolution of the canvassing board be annulled and declared void and that the court find that each of said propositions had more crosses made in the square opposite the word “No” than there were crosses in the square opposite the word “Yes” and that the court would award such further and other relief as may be found proper.

The amendment to the petition which was filed on June 25, 1934, set forth 13 specific reasons why the several petitions which were signed by certain voters of the village and which petitioned the village authorities to cause to be submitted the propositions voted upon at the election held April 17, 1934, were insufficient, illegal and void. It is not necessary, however, that this amendment be further referred to as the single issue presented for determination upon this appeal is whether or not the county court acquired jurisdiction under the original petition to enter the order which invalidated the election held under the provisions of the Illinois Liquor Control Act. In this proceeding we are not called upon to review the decision of the county court or to determine the facts upon which its decision rested. If the county court acquired jurisdiction under the original petition to enter the order it did, then the judgment of the circuit court was right. If the county court did not acquire jurisdiction under the original petition to enter the order which it did, then in this proceeding its record should be quashed.

The original petition that was filed in the county court charged that certain errors of the judges of the election entered into the result declared by the canvassing board, and stated that the petition was filed for the purpose of contesting said election on the several grounds thereafter alleged. All of the grounds alleged were stated upon information and belief and the prayer of the petition was that the ballots be recounted, that the errors be corrected, that the resolution of the canvassing board be declared void and that the court find that the result of the election was not what the canvassing board had declared it to be. From the petition and the prayer thereof, it is our opinion that this was a proceeding brought to contest the results of this election and not a proceeding to contest the validity thereof. As stated by counsel for appellant, a contest of the validity of an election and a contest of the result of an election deal with two separate, independent subjects. In a contest of the validity of an election the ultimate issue is whether or not the election was valid or invalid, irrespective of the result of the votes cast. A contest of the results of an election assumes that there has been a valid election, but that for various reasons the legal ballots cast were improperly counted or that the result reached by the canvassing board was erroneous. As stated in Smith v. Township High School District, 335 Ill. 346, a proceeding to contest an election is to ascertain the trae vote of the electors, and to determine and adjudge the proper result of the election from the legal ballots cast.

The Anti-Saloon Territory Act of 1907 provided for the creation of anti-saloon territory by popular vote and outlined the method by which a city, village or other political subdivision might become such and the manner of submitting such question to the voters of such political subdivision. Section 19 of that act (Hurd Rev. Stat. Ill., 1917, ch. 43, page 1230) provided as follows:

“Any five legal voters of any political subdivision in which an election shall have been held as provided for in this act, may, within ten days after the canvass of the returns of such election and upon filing a bond for costs, contest the validity of such election by filing a verified petition in the county court of the county in which such political subdivision is situated, setting forth the grounds for the contest. Upon the filing of such petition a summons shall forthwith issue from such court addressed in cases of an election in a town, city, or village, to the town, city, or village clerk as the case may be; and in other cases to the county board, notifying such clerk or board of the filing of such petition and directing him or it to appear in such court on behalf of such political subdivision at the time named in the summons, which time shall be. not less than five nor more than fifteen days after the filing of such petition. The procedure in such cases shall be the same as that provided by law for the contesting of an election upon a subject which shall have been submitted to a vote of the people, so far as applicable. The county court shall have final jurisdiction to hear and determine the merits of such cases. Any legal voter in the political subdivision in which such election shall have been held may appear in person, or by attorney, in any such contested election case in defense of the validity of such election.”

Section 17 of Article 9 of the Liquor Control Act of 1934, Ill. State Bar Stats. 1935, ch. 43, 90 (SmithHurd Rev. Stat. Ill., 1935, ch. 43, page 1426) is substantially a re-enactment of section 19 of the Anti-Saloon Territory Act of 1907. In People v. Jenner, 214 Ill. App. 321, it appeared that on April 2, 1918, the proposition whether the town of Mt. Pulaski should become anti-saloon territory was submitted to the voters of that town and it voted dry. On April 12, 1918, a petition was filed in the county court of Logan county to contest the validity of that election. The county court rendered judgment in that proceeding and thereafter a petition for certiorari was filed in the circuit court, resulting in a judgment quashing the record of the county court. The affidavit attached to the petition which was filed in the county court recited that the matters and things therein stated are true except as to such matters and things as are therein stated to be alleged upon information and belief, and as to such they believe them to be true. The court held the verification insufficient, stating that the statute under which the petition was filed required the filing of a verified petition and that a verification upon information and belief did not meet the requirements of the statute. The court also held that the county court was also without jurisdiction because no bond for costs was filed as required by the statute and affirmed the judgment of the circuit court.

In the instant case the petition was verified by an affidavit of William F. Otto, which recited that he had read the foregoing petition, knew the contents thereof and that all the facts stated in said petition are true as therein charged, except as to the matters therein set forth upon information and belief and as to such matters he believes them to be true. The petition to which this verification was attached recited that the petitioners were legal voters and electors of the village and set forth the steps that had been taken preceding the passage of the election ordinance, averred that a purported election was held and stated the result thereof. The petition then charged that the judges of the election had made certain errors and that the petition was filed fop the purpose of contesting said election upon the grounds stated in the six paragraphs hereinbefore set forth. Each of the several grounds is alleged merely upon the information and belief of the petitioners. The statute under which this proceeding was instituted does not authorize the petitioners to set forth the gromids for contesting the validity of such an election upon information and belief, but only by filing a verified petition setting forth the grounds for the contest. Furthermore, this petition makes some positive averments as distinguished from those averments alleged to be upon information and belief. As to these positive averments the verification is that William F. Otto signed said petition and has read and knows the contents thereof and that “all of the facts which are stated in said petition are true as therein charged.” Of course the facts are true. The petition represents, for instance, that the petitioners were legal voters, electors and citizens of Hinsdale, but the verification is not that this representation, averment or allegation is true, but is that if such representation is a fact and the petitioners are legal voters, electors and citizens of Hinsdale, then the verification says that fact is true. Hovnanian v. Bedessern, 63 Ill. App. 353.

Counsel for appellee in commenting upon the Jenner case, supra, say that its holding to the effect that the petition there considered was not properly verified is out of step with all the other cases on election contests and state that the reason certiorari was denied by the Supreme Court was that the decision was correct in holding that because no bond for costs was filed as required by statute, the county court did not acquire jurisdiction. This may be true or it may not be true, but the cases which counsel for appellees cite to the effect that a verification upon information and belief is sufficient are election contest cases brought under section 117 of the General Election Law, Ill. State Bar Stats. 1935, ch. 46, H130 (Smith-Hurd Ill. Rev. Stat. 1935, ch. 46, page 1455) which provides that in the case of all public measures or subjects submitted to the voters of any village, any five electors of such village may contest the results of any such election by filing a written statement in the circuit court within 30 days after the result of an election shall have been determined in like form as in other cases of contested elections in the circuit court. Counsel for appellee particularly rely upon Farrell v. Heiberg, 262 Ill. 407. That case was one brought under the provisions of the General Election Act and the court said that to hold that a petition to contest an election should only contain such statements as were within contestant’s own personal knowledge would be impracticable, since from the very nature of the proceeding the contestant must rely largely on information obtained from others and as to such information the contestant could only make oath that he believed the statements to be true and held that a verification upon information and belief was sufficient.

Counsel for appellee state in their argument that defective pleadings are one thing and a pleading so defective as not to vest jurisdiction of a cause in a court is quite another, and that conceding that the original petition which was filed in the county court was insufficient to vest the county court with jurisdiction, still by amendment that petition which was void was made valid. Counsel for appellee further argue that under the Civil Practice Act, amendments when made relate back to the filing of the original petition and when the amendment to the petition was filed on June 25, 1934, it became a part of the original petition filed on April 27, 1934, and is so to be treated and considered. The rule is, however, that where a petition to contest an election is properly verified and filed within the time prescribed by the statute and it sets forth one or more sufficient grounds of contest, amendments to the petition may be allowed, even after the expiration of the time within which the original petition was required to be filed, but where the original petition is not properly verified and does not set forth one or more sufficient grounds for contest,.no amendments to the petition filed after the expiration of the time within which the original petition was required to be filed will confer jurisdiction. In other words a legally sufficient petition must be filed within the time prescribed by the statute in order to confer jurisdiction upon the court to thereafter hear and determine the cause. Smith v. Township High School District, 335 Ill. 346.

The statute under which the petitioners were proceeding in the county court required first, that a petition be filed in the county court of DuPage county; second, that this petition be filed by five legal voters of the village of Hinsdale; third, that such petition be verified; fourth, that a bond for costs be filed; fifth, that such petition and bond be filed within 10 days of the canvass of the returns of such election and sixth, that the petition shall set forth the grounds for contesting the validity of the election. These requirements were jurisdictional and unless complied with, the county court of DuPage county acquired no jurisdiction. Daugherty v. Carnine, 261 Ill. 366; Armstrong v. Wilkinson, 346 Ill. 322.

An examination of the abstract and also the record certified by the county court in obedience to the writ of certiorari fails to disclose that a bond for costs as required by the statute was filed. Ho argument has been presented to us urging* this as a ground for the reversal of the judgment of the circuit court and we rest our decision upon the fact that the original petition was not properly verified. Whether, as contended by counsel for appellants the petition should have been verified by all five of the petitioners, it is not necessary to be determined as we are clearly of the opinion that the verification was defective and under the holding in the Jevmer case, supra, the county court acquired no jurisdiction to enter the order invalidating the election therein referred to.

We are of the opinion that the purpose of the legislature in its enactment of section 17 of Article 9 of the Liquor Control Act, Ill. State Bar Stats. 1935, ch. 43, 1Í 90, was to afford an opportunity, speedily after the election, as in that act provided, for the determination of the validity of such election. The procedure there outlined was not theretofore permissible and there is nothing in any of the provisions of the liquor control law which takes away from any of the legal voters of Hinsdale the right to contest the result of this election under section 117 of the General Election law, Ill. State Bar Stats. 1935, ch. 46, 130. Authority to contest the validity of an election does not mean the same thing as authority to contest the results of an election. Validity is defined by Webster as that quality of a thing which renders it supportable in law or equity and Bouvier says it is legal sufficiency in contradistinction to mere irregularity. The original petition filed in the county court did not question the legal sufficiency of the election, but merely charged irregularities upon information and belief which the petitioners averred changed the result of the election. Under section 117 of the Elections Act, the municipality is designated as the proper defendant, while under the Liquor Control Act the village clerk is the appropriate defendant. Furthermore, under section 17 of the Liquor Control Act, the county court is given the fi-nAI jurisdiction to hear and determine the merits of such cases, while under the Elections Act an appeal from proceedings to contest an election are provided for and may be taken from the circuit court to the Supreme Court.

It was not until June 25, 1934, that an amendment was filed to the original petition, and in that amendment it was alleged for the first time that the petitions signed by the voters of the village of Hinsdale requesting the submission of said propositions to a vote were legally insufficient because of certain irregularities of the designation of the addresses of some of the voters who signed said petition and in the designation of the dates upon which they were signed. This was long after the 10 days which was the limit within which the petition was required under the statute to be filed. In our opinion the county court acquired no jurisdiction under the original petition and having acquired no jurisdiction, the order it entered was void.

The judgment of the circuit court of DuPage county is reversed and this cause is remanded with directions to enter an order quashing the record of the proceedings in the county court.

Reversed and remanded with directions.


author: Mr. Justice Huffman

text:
    Cora E. Marsh et al., Appellants, v. J. L. Stover et al., Appellees.
    Gen. No. 8,937.

      Dove, J., dissenting.
    Opinion filed July 6, 1935.
    Rehearing denied and modified opinion filed October 11, 1935.
    Early & Early and Frank E. Maynard, all of Rockford, for appellants.
    Smith & Menzimer, of Rockford, for appellees; Lisle W. Menzimer, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellants brought their bill in the circuit court of Winnebago county on September 20, 1934, to foreclose a mortgage, in the form of a trust deed, against a certain improved lot in the city of Rockford. Vera B. Thorne, the only appellee interested in this appeal, was made a party defendant to the bill to foreclose.

Appellants alleged that appellee claimed an interest in the premises, but that such interest, if any, was subordinate to and inferior to the lien of appellants. Appellee in her answer averred that her interest in the premises was superior to that of appellants. In her counterclaim she set up and averred her rights in the premises to be paramount to those of appellants by virtue of her ownership of a note given under a trust deed which was prior to that held by appellants, and alleged that appellants’ rights in the premises were junior to her rights.

The sole contention between the parties to this appeal is which shall have the prior lien. The cause was heard upon a stipulation of facts. Each insists that under the law applicable thereto, his is the prior security. The facts out of which this case arises are as follows: On September 15, 1927, Helen Bowman executed to one Ernest C. Stockburger, as trustee, a trust deed upon the premises involved herein, to secure the payment of her certain promissory note of even date, in the sum of $1,500, which was payable three years after date. This trust deed was recorded on September 20, 1927. Shortly thereafter, appellee purchased from the said Stockburger the above $1,500 note, for value. The due date upon the above loan was September 15, 1930. Appellee continued to receive interest thereon up to March 15,1932.

On September 15, 1930, the said Stockburger released the above trust deed upon the records of said county. It is stipulated by the parties hereto that such release was wrongfully and fraudulently made by Stockburger, without the knowledge or consent of appellee, who was the owner and holder of the note secured thereby, and that such release was made without the payment of the indebtedness secured, or of any part thereof. On the same day, September 15, 1930, Stockburger made out a new trust deed upon said premises, securing the payment of five certain promissory notes, made payable to bearer, dated September 15, 1930, and payable five years after date, which trust deed and notes he had the owners of these premises sign and execute. This second trust deed was recorded on September 16,1930, the day following its execution. These five notes, aggregating the principal sum of $1,500, were negotiated by Stockburger to the appellants, for value. It is stipulated by the parties that appellants had no actual knowledge that the note held by appellee had not been paid at the time they purchased their notes from Stockburger, or that he had wrongfully and fraudulently made the release of the first trust deed.

This cause was heard by the trial court upon stipulation of the parties, as aforesaid. The court decreed that appellee, Vera B. Thorne, was entitled to a first and prior lien upon the premises and that appellants were entitled to a second lien thereon, subject only to that of appellee, Thorne. It is from this decree that appellants prosecute this appeal.

The single question that confronts the court in this appeal is whether the trustee’s fraudulent release of the first trust deed shall be held to prejudice appellee’s rights in favor of appellants. Upon the original hearing of this case, appellants sought to rely upon the rule as announced in Mann v. Jummel, 183 Ill. 523; Connor v. Wahl, 330 Ill. 136; Kennell v. Herbert, 342 Ill. 464; Sundquist v. Rubin, 276 Ill. App. 347, that where the release is executed by the trustee after the indebtedness is past due, in the absence of evidence or notice to subsequent purchasers, such subsequent lien-holders will be protected. It will be found in the cases bearing upon this point that a wrongful and fraudulent release by a trustee, in order to come within the above rule, must be executed after the indebtedness is past due.

Appellants urge that a note becomes due upon the inception or beginning of the day of maturity, and is a past due note from the commencement of that day. They then urge that the note in this case was past due from the inception of the 15th day of September, 1930, and that the release executed by the trustee was executed after the indebtedness was past due, thereby entitling appellants to the benefit of the rule regarding fraudulent releases of trust deeds by trustees, as observed in the foregoing cases.

The Negotiable Instruments Act provides by see. 85 thereof, Ill. State Bar Stats. 1935, eh. 98, ft 107, that “when a day of maturity falls on Sunday, or a holiday, the instrument is payable on the next succeeding business day.” This would indicate that the obligor had the entire day upon which the instrument fell due to discharge the same. This is further borne out by sec. 86 of said act, which provides as follows: “Where the instrument is payable at a fixed period after date, . . . the time of payment is determined by excluding the day from which the time is to begin to run, and by including the date of payment.” Payment of a note before maturity can be made only by consent of the holder. It is stated in Daniel on Negotiable Instruments, Vol. 2, p. 1394, sec. 1235, that payment may be demanded at any time after the commencement of business hours of the day of the maturity of the note; that the maker has the whole day in which he is privileged to make payment, and although he should in the course of the day refuse payment, yet he may subsequently upon the same day exercise his right to make payment.

We are of the opinion that the maker of an obligation to be discharged on a given date, such as September 15, 1930, the due date of this particular debt, has the entire day to discharge the debt. The rule of law in such instances is that in determining the time of payment, the date of payment shall be included within the period fixed for satisfaction of the debt. (Sec. 86 of the Negotiable Instruments Act, Ill. State Bar Stats. 1935, ch. 98, If 108.) An obligation or bond for the performance of certain conditions to be performed on or before a given date includes the day fixed in the bond for the performance thereof, and a suit brought thereon prior to the expiration of the time fixed is prematurely brought. Sumner v. Smysor, 273 Ill. App. 588. A recent case directly upon the question involved herein, as to when an obligation is past due, will be found in that of Krasnow v. Krasnow, 253 Mass. 528, 149 N. E. 321. That was an action upon a promissory note, dated April 5, 1923, due in three months. The due date was July 5, 1923. Suit was instituted on July 5, 1923. It was held that the action was prematurely brought, and that in view of sec. 86 of the Negotiable Instruments Act, the maker was entitled to the whole of the due date in which to pay the note. There is no other rule that could be applied in such cases, because if it should be considered that a note was past due upon the due date, it therefore must necessarily follow that the same became due and payable on the day previous. Otherwise the holder thereof could arbitrarily fix upon any hour of the day due for payment of the obligation, and treat it as past due from that moment on. It would be impossible to lay down any particular hour or minute of the day upon which the obligation should be considered past due, except upon the expiration of the last hour of the day upon which the debt is due. We are of the opinion that this has been the uniform holding of the courts, not only with reference to the determination of when an obligation becomes past due, but also in the fixing of litigant’s rights under statutes of limitation, and the service of process.

Since the filing of the original opinion in this cause, appellants have filed their petition for rehearing, in which, for the first time, they make reference to the case of Lennartz v. Quilty, 191 Ill. 174, and urge that this case is controlling and decisive of the question involved herein. In that case the owners of certain real estate executed their note secured by trust deed, on March 10, 1891. The note was due five years after date. On May 2, 1892, they executed a second note secured by a second trust deed, upon the same premises. This note was payable on or before five years from date. On May 9, 1893, the trustee named in the second trust deed wrongfully executed a release thereof without payment of the debt. This release was recorded on August 21, 1893. Following this, and on December 23, 1893, Johanna Quilty purchased the premises subject only to the first trust deed of $3,000. She paid the difference between this incumbrance and the purchase price of $5,600, to the grantors in cash. She was protected in her rights against the holder of the note which had been secured by the second trust deed. The record showed the debt discharged and the trust deed released at a time when the note had been subject to payment by the makers for the period of a year. The holder of the note secured by such second trust deed, had caused nothing to be entered of record to disclose any interest in the premises. This court has recognized this rule in cases where the facts were such that the rule could be properly applied. Doyle v. Barnard, 271 Ill. App. 579, 589, 590; Milne v. Whitmer, 276 Ill. App. 608 (Abst.). However, when the debt is payable only at a fixed time, all subsequent holders are chargeable with knowledge of the fact that the mortgagor cannot make payment of the debt before maturity except by consent of the holder of the note. To say otherwise, would be to change the contract of the parties.

The note in the Quilty case was payable on or before a certain date. The court in -its opinion in that case, on pp. 179, 180, in maiding the distinction between notes of that character and notes payable upon a day certain, uses the following language: “The makers of the note, however, reserved the right to pay it before the end of that period, so that, as far as they were concerned, the note was payable at any time. . . . The note being payable at any time at the option of the makers, and the record showing that the payment had been made and the trust deed regularly releaséd, we do not see how it could be said that Johanna Quilty should either presume or suspect that the makers of the note had not exercised their right and option to pay it. ’ ’ This court recognizes the distinction between a note payable at any time before maturity, at the option of the makers, and a note payable upon a fixed date. The note in this case held by appellee, was dated “September 15th, 1927.” By its terms, it provided as follows: ‘1 Three years after date, for value received, I promise to pay to bearer the principal sum of Fifteen Hundred Dollars. . . .” It is thus manifest that the note in question was not payable at any time at the option of the maker, as the note was in the Quilty case. On the contrary, it was not payable until three years after its date of execution, and the maker thereof could not make payment before that time, except by consent of the holder.

A note and mortgage or note and trust deed may supplement each other, but where they are at variance, the terms of the note must govern, as the note is the principal obligation and the mortgage or trust deed merely an incident thereto. Union Mut. Life Ins. Co. v. White, 106 Ill. 67; Smith v. Niemann, 216 Ill. App. 179. The note is evidence of the debt. The mortgage is given only as security therefor. It has been said that where no debt exists, there can be no mortgage. Freer v. Lake, 115 Ill. 662; Schaeppi v. Glade, 195 Ill. 62; Freutel v, Schmitz, 299 Ill. 320.

It is therefore apparent that in dealing with the question of the release of the trust deed in this ease, with reference to whether the same was released after the debt was past due, resort must be had to the note and the terms of the note must control. We are aware of no holding by the Supreme Court of this State where the fraudulent and unauthorized release of a trust deed by a trustee made upon the day of maturity of the debt has been construed or held to be a release after the debt was past due, and the rights of lien-holders thereunder destroyed and made subject to the rights of subsequent incumbrancers.

Petitioners seek to place a synonymous construction upon a release at maturity and a release after maturity, when the debt is past due. By analogy with the Quilty case, they urge that the maker of the note in this case, having the right to pay the same upon the day of its maturity, makes the release in this case as effectual as the release in the Quilty case. The note in that case being payable at any time at the option of the makers was equivalent to a past due note on any day after its execution, so far as the makers were concerned. It will be borne in mind that nearly four months elapsed between the date of the fraudulent release in the Quilty case and the day of recording thereof; and approximately four months elapsed between the date of recording of the release and the date of purchase of the premises by Johanna Quilty. The right of an obligor to discharge his debt upon the day of its maturity should not be confused with the right of a trustee to make a fraudulent release of a trust deed to the injury of the noteholders thereunder.' In the one instance, the act of payment is the exercise of a lawful right, while in the other instance, the release is a wrongful act and countenanced by the courts only under certain established rules and conditions, which we do not believe it would be expedient • to relax. Neither do we believe it would be conducive to the general good to extend the “past due” rule to unauthorized releases by trustees, to include the maturity date. To adopt this rule generally to such releases would be unwise. It would only serve to increase the opportunity of unscrupulous trustees to work fraud. While it is regrettable that appellants must suffer, yet the appellee is equally an innocent party. We do not perceive wherein the equities of appellants are superior to those of appellee. Neither of them had any notice of the fraudulent acts of the trustee.

In the absence of circumstances similar to those that existed in the Quilty case, we do not believe the appellee should be made to suffer a loss because of the unauthorized release by the trustee herein. We do not consider the facts in this case sufficiently analogous to those in the Quilty case to justify the application of the rule there followed.

We are of the opinion that the equitable rule urged by appellants is not subject to application to the facts in this case; that the decree of the trial court was correct ; and that the rascality of the trustee in wrongfully and fraudulently releasing the trust deed did not defeat the rights of the appellee herein as against appellants.

The decree of the trial court is therefore affirmed.

Decree affirmed.

Mr. Justice Dove dissenting.


author: Mr. Presiding Justice Hebei

text:
    First District.
    Fred J. Smith, trading as J. Smith and Company, appellant, v. The Rudolph Wurlitzer Company, appellee.
    Gen. No. 37,596.
    Opinion filed June 26, 1935.
    J. H. Perldnson, for appellant. Hoyne, Murdock, Reilly & Gelderman, for appellee; Gregory A. Gelderman, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    James L. Cooke and Elsie Main Cooke, appellees, v. David A. Badenoch et al., appellants.
    Gen. No. 37,700.
    Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    Winston, Strawn & Shaw, for certain appellant; John D. Black and George T. Evans, of counsel. Tenney, Harding, Sherman & Rogers, for certain other appellants; S. Ashley Guthrie and William W. Miller, of counsel. Sanders, Childs, Bobb & Weseott, for appellees; W. L. Bourland and F. M. Hartman, of counsel. Thomas Hart Fisher, for cross appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Chicago Psychiatric Aid Society, appellee, v. Alexander B. Magnus, appellant.
    Gen. No. 37,752.
    Opinion filed June 26, 1935.
    Stebbins, McKinley & Price, for appellant; William McKinley and Paul E. Price, of counsel. Martin O. Weisbrod and Harry J. Busch, for appellee; Samuel A. Hoffman, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    John Woods and Mary Woods, appellants, v. Ray Worth and Samuel L. Freedman, appellees.
    Gen. No. 37,762.
    Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    Daniel V. Gallery, for appellants. Philip P. Sachs and Arthur R. Seelig, for appellee Ray Worth. Morris A. Haft and Aaron Soble, for appellee Samuel L. Freedman.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    The People of the State of Illinois, plaintiff in error, v. Robert W. Harrison, defendant in error.
    Gen. No. 37,783.
    Opinion filed June 26, 1935.
    Thomas J. Courtney, State’s Attorney, for plaintiff in error; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. Ho appearance for defendant in error.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Gertrude Favors, appellee, v. Caledonian Insurance Company, appellant.
    Gen. No. 37,790.
    Opinion filed June 26, 1935.
    Harold T. Sharp, Robert L. Floyd and Lester E. Williams, for appellant. Houston H. Hall and Fred H. Elliott, for appellee.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Joe Perlman, plaintiff in error, v. Sam Samson, defendant in error.
    Gen. No. 37,798.
    Opinion filed June 26, 1935.
    William B. Steinberg, for plaintiff in error. Landis, Landis & Landis, for defendant in error; Alvin Landis, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Charles G. Stevens, appellee, v. S. R. Fralick and Company, appellant.
    Gen. No. 37,811.

      Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    Ednyfed H. Williams, for appellant; Harry L. Brin, of counsel. Sabath, Perlman, Goodman & Rein, for appellee; Theodore E. Rein, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Francis H. Bonner, appellee, v. Hubert Ellis et al., on appeal of N. C. Ellis, appellant.
    Gen. No. 37,820.
    Opinion filed June 26, 1935.
    Hutson, Traeger & Bolger, for appellant. Chapman & Cutler, for appellee; Dayton Ogden, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    Laurel Book Company, appellant, v. Hartford Accident and Indemnity Company, appellee.
    Gen. No. 37,829.
    Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    Moses, Kennedy, Stein & Bachrach, for appellant; Walter Bachraeh and J. H. Oppenheim, of counsel. Davis & Kraeke and Wilson & Mellvaine, for appellee; Erode B. Davis, Charles R. Sercomb and Alvin V. Hygren, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    D. E. Stokes, appellant, v. Richard Mates, appellee.
    Gen. No. 37,859.
    Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    Edwin A. Eeldott, for appellant. Harry Goodman and John 0. Eieh, for appellee; Harry Goodman, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    American National Bank and Trust Company, appellee, v. Illinois Improvement and Building Corporation et al., appellees, on appeal of Robin P. Allen, appellant.
    Gen. No. 37,865.
    Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    Shulman, Shulman & Abrams, for appellant; Meyer Abrams, of counsel. Gottlieb & Schwartz, for appellee American Hat. Bank & Trust Co.; Harry H. Gottlieb, Ulysses S. Schwartz and Claude A. Roth, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    Charles O’Kelly, appellant, v. Richard J. Collins et al., appellees.
    Gen. No. 37,581.
    Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    Barrett, Barrett, Costello & Barrett, for appellant; Wilkie Ham and Chester D. Kern, of counsel. William H. Sexton, Corporation Counsel,
    Quin O’Brien and Carl Hj almar Lundquist, Assistant Corporation Counsel, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Emma A. Pearson, appellee, v. The Metropolitan Life Insurance Company, appellant.
    Gen. No. 37,590.
    Opinion filed June 26, 1935.
    Hoyne, O’Connor & Rubinkam, for appellant. Watkins & Ten Hoor, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Evelyn Pratt Ellithorpe, appellant, v. Glenn E. Holmes et al., appellees.
    Gen. No. 37,639.
    Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    Clarence W. Heyl and John F. Voigt, for appellant. David Levinson, I. E. Ferguson and Cutting, Moore & Sidley, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Ida Crommie, appellee, v. International Harvester Company, appellant.
    Gen. No. 37,663.
    Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    George M. Kellogg, Jr., and David G. Moyer, for appellant; Forest D. Siefkin, of counsel. David Alswang and David J. Sehissell, for appellee; Melbourne A. Chapp, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Benjamin S. Mesirow, appellant, v. Siebel Institute of Technology, Inc., et al., appellees.
    Gen. No. 37,686.

      Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    Harry E. Kopald, for appellant. Samuel T. Lawton, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Edith Benjamin, appellee, v. Louis E. Emerman and Company, appellant.
    Gen. No. 37,703.
    Opinion filed June 26, 1935.
    Samuel C. Horwitz, for appellant; Samuel M. Lanoff, of counsel. Hershenson & Hershenson, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Aaron Miller, appellee, v. Kling Brothers and Company, Inc., appellant.
    Gen. No. 37,712.
    Opinion filed June 26, 1935.
    D’Ancona, Pfiaum & Kohlsaat, for appellant; Donald H. Mann and Colbert EtsHokin, of counsel. Samuel T. Lawton, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Elmer J. Lawler and Joseph M. Primakow, plaintiffs in error.
    Gen. No. 37,938.
    Opinion filed June 26, 1935.
    Kamfner, Halligan & Marks, for plaintiffs in error; Arthur J. Goldberg, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth, John T. Gallagher and C. Vernon Thompson, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    University State Bank, appellant, v. Katie Sack and Bernard Sack, appellees.
    Gen. No. 38,037.
    Opinion filed June 26, 1935.
    Defrees, Buckingham, Jones & Hoffman, for appellant; Don Kenneth Jones and Chas. O. Butler, of counsel. Rathje, Hinckley, Barnard, Kulp & Tucker, for appellees; Francis E. Hinckley, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr, Justice Hall

text:
    Harry C. Hein, appellee, v. Edward Curda et al., defendants, on appeal of Daniel D. Craft, appellant.
    Gen. No. 38,248.
    Opinion filed June 26, 1935.
    William Rif kind, for appellant. No appearance for appellee.
   Mr, Justice Hall

delivered the opinion of the court.


author: Mr. Justice Wilson

text:
    The People of the State of Illinois, plaintiff in error, v. Ed Sanoris, defendant in error.
    Gen. No. 37,780.
    Opinion filed June 26, 1935.
    Thomas J. Courtney, State’s Attorney, for plaintiff in error; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. Read & Kane, for defendant in error; Jerome B. Read, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, complainant, v. Roseland State Savings Bank, defendant. Frank C. Leviton and Lillian H. Leviton, appellees, v. William L. O’Connell, appellant.
    Gen. No. 37,787.
    Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    Stephen A. Malato, for appellant. Jacob G. Grossberg, for appellees.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Jennie Glanz, appellant, v. James T. Fulker and Albert J. Horan, appellees.
    Gen. No. 37,897.
    Opinion filed June 26, 1935.
    Jacob Levy, for appellant; Edward McTiernan, of counsel. Arthur P. Feigen, for appellees; Albert J. Feigen, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Louis D. Glanz, plaintiff in error.
    Gen. No. 37,931.

      Opinion filed June 26, 1935.
    Jacob Levy, for plaintiff in error; Edward McTiernan, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    The People of the State of Illinois, defendant in error, v. Gary Campbell, plaintiff in error.
    Gen. No. 38,127.
    Opinion filed June 28, 1935.
    Thomas L. Murphy and Maurice G. Walsh, for plaintiff in error; Maurice G. Walsh, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth, John T. Gallagher and Richard H. Devine, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Agnes Haggerty, administratrix of the estate of Patrick Haggerty, appellee, v. Ben Hansen, also known as Benjamin Hansen, appellant.
    Gen. No. 38,135.
    Opinion filed June 28, 1935.
    Follansbee, Shorey & Sehupp and A. B. Litow, for appellant; Clyde E. Shorey and Louis W. Becker, Jr., of counsel. Joseph D. Ryan and Louis P. Miller, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O ’Connor

text:
    Acorn Building and Loan Association, appellant, v. Adams State Bank, appellee.
    Gen. No. 38,014.
    Opinion filed June 28, 1935.
    Rehearing denied July 8, 1935.
    J. Edward Jones, for appellant. Eugene P. Kealy, for appellee.
   Mr. Justice O ’Connor

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    John Zwack, plaintiff in error, v. George L. Apfelbach, defendant in error.
    Gen. No. 38,085.
    Opinion filed June 28, 1935.

      A. Howard Langert and Henry J. Gibbs, for plaintiff in error. Deming, Jarrett & Mulfinger, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Ella Fish, administratrix of the estate of Marshall Joseph Fish, deceased, appellee, v. Sterling Casualty Insurance Company, appellant.
    Gen. No. 38,128.
    Opinion filed June 28, 1935.
    Lewis D. Ross, for appellant; Reuben Freedman and Abraham Miller, of counsel. E. R. Borgmeier and A. L. .Cronin, for app>elleo.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice 0 ’Connor

text:
    Oscar Heyman and Brothers, Inc., appellee, v. Hipp and Coburn Company, appellant.
    Gen. No. 38,138.
    Opinion filed June 28, 1935.
    Rehearing denied July 8, 1935.
    Ungaro & Sherwood, for appellant; Winston, Strawn & Shaw and Charles J. Calderini, of counsel. Sims & Stransky and Seymour Lewis, for appellee; Franklin J. Stransky and Seymour Lewis, of counsel.
   Mr. Justice 0 ’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Seanlan

text:
    Horton Conrad, appellee, v. Consumers Company, appellant.
    Gen. No. 37,665.
    Opinion filed June 28, 1935.
    Rehearing denied July 9, 1935.
    Winston, Strawn & Shaw, for appellant; Harold A. Smith, Anthony L. Michel and Douglas C. Moir, of counsel. Scott, MacLeish & Falk, for appellee; John J. To well, of counsel.
   Mr. Presiding Justice Seanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois, plaintiff in error, v. Henry Kline, defendant in error.
    Gen. No. 37,779.
    Opinion filed June 28, 1935.
    Thomas J.' Courtney, State’s Attorney, for plaintiff in error; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. No appearance for defendant in error.
   Mr. Presiding Justice Seanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Scanlan

text:
    The People of the State of Illinois, plaintiff in error, v. Harold Kinnish, defendant in error.
    Gen. No. 37,785.
    Opinion filed June 28, 1935.
    Thomas J. Courtney, State’s Attorney, for plaintiff in error; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel. Irving Goodman, for defendant in error.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois, plaintiff in error, v. Harold Kinnish, defendant in error.
    Gen. No. 37,786.
    Opinion filed June 28, 1935.
    Thomas J. Courtney, State’s Attorney, for plaintiff in error; Edward E. Wilson and Amos P. Scruggs, Assistant State’s.Attorneys, of counsel. Irving Goodman, for defendant in error.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Mattie Lee McCant, appellee, v. Edward E. Pressler, appellant.
    Gen. No. 37,868.
    Opinion filed June 28, 1935.
    Getz & Getz and Arthur Abraham, for appellant. No appearance for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Weightstill Woods, appellant, v. Village of LaGrange Park, appellee.
    Gen. No. 37,923.
    Opinion filed June 28, 1935.
    Weightstill Woods, pro se. B. W. Rosenstone, for appellant; Gran-ville A. Stultz and Richard H. Woods, of counsel. Stevens, Carrier & Griffith, for appellee; George M. Stevens and Melvin L. Griffith, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    Wanda Orlowski, appellant, v. E. J. Caine, appellee.
    Gen. No. 37,927.

      Opinion filed June 28, 1935.
    Paul V. Pallaseh and Ewart Harris, for appellant. Angerstein, Piggott & Angerstein, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Crown Paint and Varnish Works, Inc., for the use of Walter Krzyzanski, a minor, by Eva Krzyzanski, his mother and next friend, appellee, v. Harry W. Cline, trading as Chicago Association of Credit Men, appellant.
    Gen. No. 37,942.
    Opinion filed June 28, 1935.
    Louis J. Jacobson, for appellant. Gustave Neuberg, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Benjamin J. Schultz, appellee, v. Yellow Cab Company et al., defendants. Yellow Cab Company, appellant.
    Gen. No. 37,960.
    Opinion filed June 28, 1935.
    Samuels, Greenberg, Wolfe & Solomon, for appellant; David H. Greenberg, Edward Wolfe and Sidney M. Gliek, of counsel. Benjamin J. Schultz, pro se; Louis Greenberg, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Sullivan

text:
    Ambassador Garage Company, appellant, v. Julius A. Goldberg and Fred E. Hummel, appellees.
    Gen. No. 37,831.
    Opinion filed June 28, 1935.
    , Fisher, Boyden, Bell, Boyd & Marshall, for appellant; Thomas Hart Fisher, of counsel. Judah, Reickmann, Trumbull, Oox & Stern, for appellee Julius A. Goldberg.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Hiram C. Daggett, appellee, v. Daggett Roller Chair Company, appellant.
    Gen. No. 37,880.
    Opinion filed June 28, 1935.
    William T. Pridmore, for appellant. Barnabas F. Sears and Charles S. H'arvey, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.


author: Per curiam.

text:
    Benjamin Weintroub and B. K. Goodman, appellees, v. Chicago Title and Trust Company et al., appellants.
    Gen. No. 38,141.
    Opinion filed June 28, 1935.
    Rehearing denied July 10, 1935.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, George Gillette and John Mann, for certain appellants. Markheim, Barker & Miller, for certain other appellant; Isaac E. Ferguson, of counsel. Olson & Gurman, for certain appellee; Samuel P. Gurman, John H. Rogers and Lester Stone, of counsel. Samuel Á. and Leonard B. Ettelson, for certain other appellee; Samuel A. Ettelson, Edward 0. Higgins and Carl J. Appell, of counsel.
   Per curiam.


author: Mr. Justice Matchett

text:
    In re Estate of Elizabeth G. Waterbury, a minor.
    Gen. No. 38,216.
    Opinion filed July 5, 1935.
    H. R. Pool, for appellants. Scott, MacLeish & Falk, Robertson, Crowe & Spence, John P. Conmy and Frank J. Komarek, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    In re Estate of La Verne Lucille Kellogg and Shirley Adellia Kellogg, minors.
    Gen. No. 38,217.
    Opinion filed July 5, 1935.
    H. R. Pool, for appellants. Scott, MacLeish & Falk, Robertson, Crowe & Spence, John P. Conmy and Frank J. Komarek, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Howard McCreery, appellant, v. Libby-Owens-Ford Glass Company, appellee.
    Gen. No. 38,283.
    Opinion filed July 5, 1935.
    Sol Andrews, for appellant. Ashcraft & Ashcraft, Duncan & 0 ’Conor, Marshall, Melhorn & Marlar and Angerstein, Piggott & Angerstein, for appellee; Russell F. Locke, Alan E. Ashcraft, Jr., Andrew 0 ’Conor and Thomas C. Angerstein, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    Albert Russell Erskine, appellee, v. Twyckenham Land and Investment Company, appellant, and Henry R. Levy, defendant.
    Gen. No. 38,124.

      Opinion filed July 8, 1935.
    Winston, Strawn & Shaw, for appellant; Harold Beacom, George T. Evans and Raymond O. Mitchell, of counsel. Isaac B. Lipson, for appellee; A. O. Lewis, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Herman S. Strauss, appellant, v. Rogers Park Building Corporation et al., defendants. E. G. Shinner et al., appellees.
    Gen. No. 38,500.
    Opinion filed October 11, 1935.
    Pritzker & Pritzker, for appellant; Richard Weinberger, of counsel. Morris Blank and Irving Goodman, for appellees.
   Mr. Justice Matehett

delivered the opinion of the court.


author: Mr. Presiding Justice

text:
    Secohd District.
    Aubrey L. Hesse, appellee, v. Oscar Ludwig, appellant.
    Gen. No. 8,876.
    Opinion filed July 6, 1935.
    Roy R. Phillips and Charles G. Seidel, for appellant. George D. Carbary, David B. Givler and John K. Hewhall, for appellee.
   Mr. Presiding Justice

Wolfe delivered the opinion of the court.


author: Mr. Presiding Justice Wolfe

text:
    Christian G. Garber, appellee, v. Charles L. Boon, appellant.
    Gen. No. 8,914.
    Opinion filed July 6, 1935.
    Hamilton, Black & Klatt, for appellant. Orman Ridgely and Ben C. Leiken, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Floyd M. Grimes and Alice V. Grimes, appellees, v. Rockford Credit Service, Inc., et al., appellants.
    Gen. No. 8,926.
    Opinion filed July 6, 1935.
    Ryan & Hood, for appellants. Miller & Thomas, for appellees; L. O. Miller, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Alan M. Harder, appellant, v. The County of Ogle et al., appellees.
    Gen. No. 8,933.
    Opinion filed July 6, 1935.
    Gardner & Gardner, for appellant; Fred E. Gardner, of counsel. S. Donald -Crowell, State’s Attorney, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    Anna Myers et al., plaintiffs in error, v. H. E. Ehlers et al., defendants in error.
    Gen. No. 8,893.
    Opinion filed July 6, 1935.
    W. H. Dyer, for plaintiffs in error. Elmer O. Wilson and Miller & Shapiro, for certain defendant in error.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Thomas D. Parkin and Grant E. Cordes, appellants, v. Sweney Gasoline and Oil Company and Frank O. Pifer, appellees.
    Gen. No. 8,939.
    Opinion filed July 30, 1935.
    Petition for rehearing stricken September 9, 1935.
    Ridgely & Ridgely, for appellants; Orman Ridgely and Ben C. Leiken, of counsel. Kennedy & Kennedy, for appellees; Kaywin Kennedy, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Albert Samara, appellee, v. Cliff Steward, appellant.
    Gen. No. 8,940.
    Opinion filed July 30, 1935.
    Ralph Dempsey and Thomas J. Welch, for appellant. Martin E. O’Connor, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Margaret V. Corrigan, executrix of the last will and testament of Joseph P. Corrigan, deceased, and individually, appellant, v. L. D. Head, appellee.
    Gen. No. 8,953.
    Opinion filed July 30, 1935.
    Rehearing denied August 22, 1935.
    Robert 0. Carr, for appellant. John H. Armstrong, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Henry Barton, appellee, v. C. M. Gauger, appellant.
    Gen. No. 8,932.
    Opinion filed August 14, 1935.
    Anson H. Brown and Hadley, Weaver & Woodward, for appellant; Charles W. Hadley and John S. Woodward, of counsel.' Trank J. Lexa, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    I. E. Wernick, appellee, v. John Link and Rose Mores, appellants.
    Gen. No. 8,936.
    Opinion filed August 14, 1935.
    Ryan & Hood, for appellants; Trank M. Ryan, of counsel. Edward S. Toltz, Jr., for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    City of Wheaton, appellee, v. Mary E. Oliver, appellee. Annie Graf, appellant.
    Gen. No. 8,934.
    Opinion filed September 18, 1935.
    Rehearing denied and supplemental opinion filed November 7, 1935.
    Harry W. Standidge, for appiellant. Hadley, Weaver & Woodward, for appellee Mary E. Oliver; Harry G. Weaver and Palmer Leren, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Charles Montague, appellee, v. R. S. Larson, appellant.
    Gen. No. 8,952.
    Opinion filed October 11, 1935.
    Rehearing denied November 26, 1935.
    Miller & Thomas and William L. Pierce, for appellant; Charles A. Thomas, of counsel. Welsh & Welsh, for appellee; O. E. Welsh, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Presiding Justice Eulton

text:
    Third District.
    George Grein, appellant, v. Cora Grein, appellee.
    Gen. No. 8,909.

      Opinion filed July 17, 1935.
    Rehearing denied October 1, 1935.
    George E. Martin, for appellant. Clark & Noel, for appellee.
   Mr. Presiding Justice Eulton

delivered the opinion of the court.


author: Mr. Justice Allaben

text:
    Lula Theivagt, administratrix of the estate of Anna Mae Theivagt, deceased, appellant, v. Johnson Oil Refining Company, appellee.
    Gen. No. 8,908.
    Opinion filed July 17, 1935.
    Costigan & Wollrab, for appellant. R. C. DeMange, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    Dorothy Jacobus, appellee, v. Stephen Hadsall, appellant.
    Gen. No. 8,911.
    Opinion filed July 17, 1935.
    A. E. Taff and Floyd F. Putman, for appellant; Ralph Dempsey, of counsel. Joseph V. Toohill and G. Ray Senift, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


author: Mr. Justice Davis

text:
    Arthur A. Marer and Company, appellant, v. Estate of M. J. Wolford, deceased, et al., appellees.
    Gen. No. 8,769.
    Opinion filed July 17, 1935.
    Rehearing denied October 1, 1935.
    Hutton & Clark, for appellant. J. O'. Woodbury, Gunn, Penwell & Bindley and Acton, Acton & Baldwin, for appellees.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Edward J. Barrett v. Liberty State Bank of Bloomington. William L. O’Connell, appellee, v. Will F. Costigan et al., defendants. City of Bloomington, appellant.
    Gen. No. 8,845.
    Opinion filed July 17, 1935.
    Rehearing denied October 17, 1935.
    Thomas S. Weldon and Barry & Barry, for appellant. Garter Pietseh and Morrissey & Morrissey, for appellee; John J. Morrissey and John 0. Morrissey, of counsel.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Robert D. McKown, appellee, v. The Alton Railroad Company, appellant.
    Gen. No. 8,902.
    Opinion filed July 17, 1935.
    Rehearing denied October 1, 1935.
    Covey & Woods, for appellant; Silas H. Strawn, of counsel. Trapp & Trapp, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


author: Mr. Presiding Justice Edwards

text:
    Fourth District.
    Marvel Golliday, appellee, v. City of Alton, appellant.
    Opinion filed September 16, 1935.
    Wm. P. Boynton, for appellant. Karl King Hoagland and O. Dana Eastman, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Murphy

text:
    Nathan Mathes, appellee, v. M. D. Powell and Jefferson S. Bush, defendants. M. D. Powell, appellant.
    Opinion filed September 16, 1935.
    Terry, Gueltig & Powell, for appellant. No appearance for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    H. E. Seaton and Clara M. Seaton, appellees, v. United States Fire Insurance Company of New York, appellant.
    Opinion filed September 16, 1935.
    J. G. Burnside and Samuel Levin, for appellant. Guy L. Smith, for appellees.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    Mildred Schnoeker, appellant, v. The Service Mutual Benefit Association of Fairfield, appellee.
    Opinion filed September 16, 1935.
    Wm. G. Juergens, for appellant. 0. Deneen Matthews, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    Edward A. Ruff, appellant, v. Egyptian Foundry and Manufacturing Company, appellee.
    Opinion filed September 16, 1935.
    F. J. Tecklenburg, for appellant. P. K. Johnson, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Oliver J. Schmidt and Mrs. Oliver J. Schmidt, plaintiffs in error.
    Opinion filed September 16, 1935.
    George G. Binier and Meyer & Meyer, for plaintiffs in error. Martin L. Wilborn, for defendant in error.
   Mr. Justice Murphy

delivered the opinion of the court.


author: Mr. Justice Stone

text:
    Albert Rubach, appellant, v. The People of the State of Illinois ex rel. Edith Castens, appellee.
    Opinion filed September 16, 1935.
    Edward W. Clendenin and J. Fred Gilster, for appellant. Ho appearance for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson v. Citizens State Bank of Creal Springs. M. D. Borum, appellee, v. William L. O’Connell, appellant.
    Opinion filed September 16, 1935.
    Ferrell & Hay, for appellant. D. L. Duty and Leon A. Colp, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    The People of the State of Illinois, plaintiff in error, v. Estelle H. Gooden and Nadine Gooden, defendants in error.
    Opinion filed September 16, 1935.
    Charles C. Murrah, State’s Attorney, for plaintiff in error. Ho appearance for defendants in error.
   Mr. Justice Stone

delivered the opinion of the court.