author: Mr. Justice Davis

text:
    Jacob H. Williams, Appellee, v. Estate of Henry W. Frederick, Deceased. Paul W. Busse, Administrator, Appellant.
    Gen. No. 8,998.

      Opinion filed January 15, 1937.
    Rehearing denied April 6, 1937.
    Wayne C. Townley and J. Oscar Hall, both of Bloomington, for appellant.
    Ben Thurman, of Peoria, for appellee; George W. Hunt and Balph W. Stone, both of Peoria, of counsel.
   Mr. Justice Davis

delivered the opinion of the court.

' This is an appeal by Paul "W. Busse, administrator of the estate of Henry W. Frederick, deceased, from a judgment rendered by the circuit court of Tazewell county, Illinois, in a suit on a claim filed by Jacob H. Williams in the county court of Tazewell county. The Bio Grande Development Co., a corporation, was engaged in selling Texas lands. One Louis Hoffman who resided in Peoria was vice president and treasurer of said corporation. Prospective buyers were taken to Texas on excursions by Hoffman, and, in January, 1931, Henry W. Frederick went to Texas on one of the excursions. On February 2, 1931, he entered into a contract with said corporation to purchase 23.96 afires of land in Hidalgo county, Texas, for a total sum of $30,875.

Frederick paid $20,000 in cash to Hoffman and delivered to him $5,500 in what was known as the Wilkinson participating certificates. He also paid Hoffman cash in the sum of $1,375, and gave to the Bio Grande Development Co. a vendor’s lien note for $4,000, and on February 28, 1931, the Bio Grande Development Co. executed and delivered to Frederick a warranty deed to said real estate, antedating it to February 2, 1931. This deed was signed the Bio Grande Development Co., by Louis F. Hoffman, first vice president, and was recorded in Hidalgo county, Texas, on March 16, 1931. The vendor’s lien note for $4,000 has no connection with the note sued on in this action.

Hoffman testified that before the contract was signed he had a conversation with Mr. Frederick about the Wilkinson participating certificates referred to in the evidence as the Wilkinson farm, loan, and that he had told Frederick that he would accept said participating certificates subject to investigation; that, if they were not worth $5,500, Mr. Frederick should make up the difference; the conversations took place in a restaurant in Washington, Illinois, just before the contract was signed, and that they went from the restaurant across to the Danforth Bank where the contract was written and signed in the presence of Mr. Busse, who was cashier of the bank. Frederick, Hoffman and Busse were the only ones present when the contract was signed. There was nothing said at the time the contract was drawn and signed at the bank about Hoffman accepting the Wilkinson participating certificates on any contingent basis or subject to investigation. Mr. Hoffman further testified that two or three months later, in April or May, 1931, he made an investigation as to the value of the Wilkinson participating certificates and that, in his opinion, they were not worth $5,500; that he told Frederick that he would have to make up the difference and that, if he did not do so, he, Hoffman, would institute a suit to set aside the deed to the Texas property on the ground of fraud. Hoffman fixed the value of the certificates at $1,500, and demanded $4,000 additional from Frederick. Frederick offered other mortgage paper, which Hoffman refused, and Hoffman requested Frederick to give his personal note for the $4,000, and on May 16, 1931, as an adjustment of the Wilkinson participating certificate without further consideration Frederick signed the note sued on in this action and delivered it to Hoffman, which note was antedated to February 2, 1931.

Hoffman had delivered the note in question to the Buehler estate in the fall of 1932, and, on the 9th day of October, 1933, while the note was still in the possession of the Buehler estate, Hoffman executed a separate written instrument of assignment, purporting- to assign all of his interest in the note to the plaintiff in this case, Jacob H. Williams.

On December 27, 1933, and while the note was still in the possession of the Buehler estate, Williams filed a claim, against the estate of Henry W. Frederick, deceased, and attached what purported to be a copy of the note to the claim. At the time the claim was filed neither Hoffman nor Williams had possession of the note, and it had not been indorsed by Hoffman. No copy of the separate written instrument of assignment was filed with the claim or made a part of it. The note became due February 2, 1934. Three months later, after Hoffman received the note from the Buehler estate, on or about May 17, 1934, he indorsed it and delivered it to Williams. Hoffman never returned any part of the Wilkinson participating certificates to Frederick but traded them to one Crosby on December 26,1931, for an equity in a house and lot in Peoria, which equity Crosby testified, and the evidence discloses, was worth between $5,000 and $6,000, and he still has the Wilkinson participating certificates and says his income from them last year was about $500.

On a trial of the case in the circuit court of Tazewell county the court found the issues for the plaintiff and rendered judgment against the estate of Henry W. Frederick, deceased, in the sum of $4,580 with costs, the same to be paid in due course of administration.

Among the errors relied upon by appellant for a reversal of the judgment are the following:

The court erred in permitting the plaintiff to amend his claim filed in the county court by withdrawing the exhibit attached thereto; in admitting in evidence the note offered by plaintiff; in overruling the defendant’s motion for judgment at the conclusion of plaintiff’s evidence; in finding the issues for plaintiff and against defendant; the judgment of the court is contrary to the law and the evidence.

The claim of Williams, filed on December 27, 1933, against the estate of Henry W. Frederick, deceased, in the county court of Tazewell county, alleges that the estate owed him $4,000 with six per cent interest from August 2, 1933, on a note dated February 2, 1931, due on February 2, 1934, made by H. W. Frederick and payable to Louis Hoffman, trustee, a copy of which was attached to said claim, and which did not bear the indorsement of Hoffman. The note was not obtained from the Buehler estate until about May 17,1934, when it was indorsed by Hoffman and given to Williams.

On the trial of said cause, on July 3, 1935-, the note in question was offered in evidence by plaintiff, to which offer the defendant objected on the ground that the note offered was not the same note made a part of the,claim filed, in that the note offered shows that it was indorsed to Jacob H. Williams by Louis Hoffman, trustee, while the note filed shows no indorsement. The objection was sustained by the court. Plaintiff made a motion to amend the claim by withdrawing the copy of the note attached to the claim, and upon being offered the note was admitted in evidence and shows the indorsement by Louis Hoffman to Jacob H. Williams.

When appellee filed his claim in the county court he did not have possession of the note, and the same had never been delivered to him by the payee thereof for value, and the same had not been indorsed by the person named as payee therein. The only title he had was that obtained by a separate assignment thereof and under this state of facts the legal title to the note did not pass to him. (Packer v. Roberts, 140 Ill. 671, 29 N. E. 668.)

The provisions of the Negotiable Instruments Act provide that notes, made payable to any person named as payee therein, shall be assignable, by indorsement thereon, under the hand of such person (Ill. State Bar Stats. 1935, ch. 98, jf 2, sec. 4; Jones Ill. Stats. Ann. 89.002; Smith-Hurd Ann. St., ch. 98, jf 2;) and such indorsement must be written on the note itself or upon a paper attached thereto. (Ill. State Bar Stats. 1935, ch. 98, 51, sec. 31; Jones Ill. Stats. Ann. 89.051; SmithHurd Ann. St., ch. 98, 51.)

It is true that a note may be assigned by a separate instrument without indorsement so as to vest the legal title in the assignee, provided the note is also transferred by delivery to the assignee.

“Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transferer vests in the transferee such title as the transferer had therein, and the transferee acquires, in addition, the right to enforce the instrument against one who signed for the accommodation of the transferer and the right to have the indorsement of the transferer if omitted by accident or mistake. But for the purpose of determining whether the transferee is a holder in due course,- the negotiation takes effect as of the time when the indorsement is actually made.” (Ill. State Bar Stats. 1935, ch. 98, if 69, sec. 49; Jones Ill. Stats. Ann. 89.069; Smith-Hurd Ann. St., ch. 98, if 69.) It is only by making a transfer of the note for value, that is, by a delivery of the note to the transferee, that such title as the transferer had vests in the transferee.

“The indorsement of commercial paper requires not only the signature of the payee or other holder of the legal title, but the delivery of the instrument to the indorsee.- The assignment indorsed on the back of the note is in the control of the payee and he may strike it out if he chooses.” (Elvin v. Wuchetich, 326 Ill. 285, 157 N. E. 243.)

Where, as in this case, the claimant sought to recover as indorsee of the note, it was essential to his right to recover to show that when he filed his claim he had the legal title to the note in question. Elvin v. Wuchetich, supra. “The payee of a promissory note, until assignment, holds the legal title, and no one else can sue and recover upon it. This is elementary, and needs neither citation of authorities nor reasoning to render it manifest.” Newman v. Ravenscroft, 67 Ill. 496.

The indorsement of a note after suit is started does not invest the indorsee with title so that he can maintain the action. Rothschild v. Bruscke, 33 Ill. App. 282. In case of an appeal from the probate court, the circuit court exercises appellate jurisdiction and cannot permit the amendment -of a claim so as to raise a new cause of action. Elder v. Whittemore, 51 Ill. App. 662; Cairo Meal & Cake Co. v. Estate of Brigham, 268 Ill. App. 510-512.

The note in question not having been indorsed and delivered to claimant until May 17,1934, long after the filing of the claim and the due date of the note, we are of opinion that the circuit court erred in permitting claimant to amend his claim and thereby raise a new cause of action and in entering judgment thereon.

It is also insisted by appellee that he should be considered under his written assignment to have acquired the rights of an assignee of a chose in action and that he could sue on the note in his own name and being only required to show he was a bona fide owner thereof and how he acquired title. In support of his contention he cites sec. 22 of the Civil Practice Act. (Ill. State Bar Stats. 1935, ch. 110, ¶ 150; Jones Ill. Stats. Ann. 104.022; Smith-Hurd Ann. St., ch. 110, if 146.)

Section 22 of the Civil Practice Act is in part as follows:

“The assignee and owner of a non-negotiable chose in action may sue thereon in his own name, and he shall in his pleading on oath, allege that he is the actual bona fide owner thereof, and set forth how and when he acquired title.”

By the terms of this statute it is only a non-negotiable chose in action that the owner and assignee thereof can sue on in his own name. The assignment and transfer of negotiable instruments and the rights of the assignee therein are fixed by the provisions of the Negotiable Instruments Act herein above cited and is in no way governed by said section 22 of the Civil Practice Act.

Appellant contends that there was no consideration for the giving of the note sued on. Under the terms of the contract, when the purchase price of $30,875 was paid, Frederick was to have a deed, which was delivered to him and recorded in Hidalgo county, Texas, on March 16, 1931.

Hoffman, after the close of the transaction, claimed he had a conversation with Frederick, prior to the execution of the contract, in which he told Frederick that he would accept the Wilkinson participating certificates subject to investigation. No reservation of this kind was made in the contract. Hoffman also claimed that in April or May, 1931, he went to Frederick and said to him that he had investigated and found the certificates were not worth $5,500 and told Frederick that he would have to make up the difference of $4,000. Finally, on May 16, 1931, Frederick signed the note sued on and delivered it to Hoffman, which was antedated to February 2, 1931. The note was made payable to Hoffman, trustee, and not to the Rio Grande Development Co.

The evidence fails to show that Frederick in any way made any misrepresentations with relation to the value of the Wilkinson certificates. All of the conversations in relation to the same, as shown by the evidence of Hoffman, were had prior to the drafting and execution of the contract and any conversations, agreements or promise that may have been made or understanding had about the Wilkinson certificates are merged in the written contract. Any such verbal contract, if any, is unenforceable. The contract specifically provides: “All promises, understandings or agreements which may have been heretofore made or had with reference to the sale by the seller and the purchaser are abrogated, discharged and annulled, it being hereby specifically agreed that this written instrument constitutes and expresses the whole agreement of the parties, and that reliance is had upon nothing not herein contained.” (Grubb v. Milan, 249 Ill. 456, 463, 94 N. E. 927; Lanum v. Harrington, 267 Ill. 57, 107 N. E. 826.)

Appellee contends that where a person, as a result of a compromise agreement, gives his promissory note in settlement of a doubtful claim is liable thereon and cannot thereafter urge want of consideration for the note, even though the claim could not have been legally enforced against him, provided there was neither actual nor constructive fraud and the parties acted in good faith with full knowledge of all the facts. Hoffman was the only witness who testified to this transaction, and from his testimony it is clear that the note was not given in settlement of a disputed claim. The note was given pursuant to a verbal agreement entered into prior to the signing of the written contract.

While the law is that it is sufficient to support a compromise that there be an actual controversy between the parties of which the issue fairly may be considered by both parties as doubtful, and that at the time of the compromise they in good faith so considered it, yet, the surrender of a claim which is entirely without foundation either in law or equity, does not afford a sufficient consideration for a compromise. (Good v. Krause, 215 Ill. App. 333.)

There was actually no controversy between the parties of which the issue fairly could be considered by both parties as doubtful. Hoffman told Frederick that the Wilkinson loan was not of the value of $5,500 and that he would have to make it up and, thereupon, Frederick offered other loans to Hoffman in place of the Wilkinson paper which Hoffman rejected. He then proposed to Frederick that he give him his personal note for $4,000, which he did. The evidence fails to show that Frederick in any way disputed the claim of Hoffman and he let him fix the value of the Wilkinson paper and the amount that he must pay to make the loan of the value of $5,500. From the evidence it is clear that the claim was entirely without foundation either in law or equity.

There was no consideration for the giving of the note. The verbal agreement made between the parties, as testified to by Hoffman, before the contract was entered into was merged in the written agreement.

Williams was not the holder of the note in due course. The note was never delivered to him nor assigned by the payee Hoffman until May 17, 1934, long after the same became due. We are of opinion that the judgment of the circuit court of Tazewell county should be reversed.

Judgment reversed.

We find that the alleged promise of the defendant sued on in this case had no consideration to support it and that the note in question was never delivered to the plaintiff by the payee thereof or indorsed by him until May 17, 1934.


source: Caselaw Access Project

license: Public Domain

text:
    Litchfield National Bank, Appellant, v. Charles J. McBride, Appellee.
    Gen. No. 9,015.

      Opinion filed January 15, 1937.
    Rehearing denied April 6, 1937.
    Stuttle & Godfrey, of Litchfield, for appellant.
    H. B. Tunnell and D. B. Kinder, both of Litchfield,' for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

On March 9, 1935, plaintiff appellant recovered a judgment by confession in the city court of the city of Litchfield against appellee on two judgment notes, in the sum of $5,878.37, including principal and attorney’s fees. One of the notes was in the principal sum of $2,662.46 and the other in the principal sum of $3,000.

On April 24,1935, defendant appellee filed his motion to vacate said judgment, and for leave to plead to the merits, and on April 27,1935, the court ordered a part of said judgment, amounting to the sum of $2,593.32, to stand, together with costs, and that execution issue, and that the balance of said judgment be suspended but stand as security and all proceeding's therein be stayed until the further order of the court, and leave was given defendant to answer by May 4, 1935. The defendant having paid the amount due on the note for $2,662.46, the litigation concerns only the note for $3,000. The jury found for the defendant upon the trial of said cause, and the court entered judgment on the verdict and this appeal is from said judgment.

Defendant answered, admitting the execution of the $3,000 note and the power of attorney to confess judgment, but denied that he was then or ever was indebted to the plaintiff on account of said note, and claimed the note was given for the accommodation of the plaintiff and without consideration. Plaintiff replied to the answer of defendant and denied that the note was an accommodation note and that it was without consideration.

It is insisted by appellant that the court erred in not directing a verdict for the plaintiff at the conclusion of the defendant’s case and, again, at the close of all of the evidence; in refusing to admit competent evidence offered by plaintiff; in improperly giving to the jury defendant’s instruction No. 4, and in refusing plaintiff’s offered instructions, Nos. 1, 2, 3 and 4.

It is first contended by appellee, in his argument, that the instructions given and refused, including the motions for peremptory instructions, the verdict of the jury and the motion for a new trial are not properly before the court because appellant failed to comply with the rule of this court, which required that such motion must be preserved by a report of the proceedings at the trial.

This same alleged defect in the record in this case was heretofore brought to our attention by a motion to dismiss the appeal, which motion was denied by the court. The fact that parts of the record are not incorporated in the report of proceedings and are therefore not properly certified cannot be taken advantage of by a motion to dismiss the appeal.

This is made clear by sec. 74 (2) of the Civil Practice Act (Ill. State Bar Stats. 1935, ch. 110, if 202 (2); Jones Ill. Stats. Ann. 104.074; Smith-Hurd Ann. St., ch. 110, sec. 198 (2) ) which is in part as follows:

“All distinctions between the common law record, the bill of exception and the certificate of evidence, for the purpose of determining what is properly before the reviewing court, are hereby abolished. . . . All matters in the trial court record actually before the court on appeal may be considered by the court for all purposes, but if not properly authenticated the court may order such further authentication as it may deem advisable.”

An appeal cannot be dismissed, but the court may order such further authentication as it may deem advisable, when such defect is properly brought to the attention of the court.

Subdivision 4 of Bule 1 of the Buies of Practice of this court provides:

“A claim that any matter in the trial court record actually before the court on appeal is not properly authenticated may be raised only by motion filed by the appellant or appellee before or at the time of filing his brief. Such motions shall be subject to the provisions of Bule 12, and each motion shall be supported by affidavit showing, -not only that the matter complained of is not properly authenticated, but that it is in fact incorrect, and that injury will result to the objecting party because of its inclusion. Unless a motion is made in the manner required by this rule, the record shall be deemed to be correct. ’ ’

Appellee not having' made a motion supported by affidavit, as required by subdivision 4 of Buie 1, before or at the time of filing of his brief, it follows that the record is deemed to be correct, and this court may consider the instructions given and refused, including the motions for peremptory instructions, the verdict of the jury and the motion for new trial.

It appears from the evidence that the bank was closed in March, 1933, by an executive order of the President at the time of the Bank Moratorium. The comptroller of the currency and the National" Bank Examiner refused to permit plaintiff’s bank to open unless it raised $10,000 in cash, or collateral notes. L. W. Cline was executive vice president and Mr. Herrick was president of the bank. An effort was being made by them to get the notes or cash so the bank could reopen for business.

Appellee testified that he was in the grocery business in March, 1933, and recalled the occasion when the bank was closed by an executive order called the Bank Moratorium. At that time he had dealings with the Litchfield National Bank. He had a checking account in the amount of about $40 and owed the bank in notes in about the sum of $2,200; He was not a stockholder at that time, nor an official or employee of the bank. The note signed by him was a renewal of the first note given to reopen the bank. This note was given in November, 1934. He had three conversations with Mr. Herrick. Mr. Herrick said: We are still closed and we need help. I offered to pay what I owed the bank, but he said that would not help. Two days later he said to me, Have you thought any more about giving us some help? I said, Yes, I thought a good deal about it, and my opinion is you cannot get any help from me. The next conversation took place in Staunton. Mr. Herrick said: “If we don’t get some help, we can’t open the bank.’’ And I said, “How much do you need?” He replied, We have it all raised except $3,000.00. I told him I had already stated my position and was not interested, and was not placing myself liable for going on any notes. Mr. Herrick then said that, in consideration of my signing a note, the bank wonld make no effort to collect it, that it was merely an accommodation, and there was no interest on the note. He said: There is no consideration, you don’t become liable for anything, you get no benefit and would be ruled out. I said, — I am not going’ to sign it. He said: “You have nothing to lose in signing the note.” I said I didn’t care to sign it, and he said, A note put in the bank without interest would not be collectible and I would not be assuming any risk in signing. Herrick also wanted appellee to get his sister to put up some Building & Loan certificates, which she owned, as collateral for the note. Appellee tallied with his sister and told her what Herrick wanted, and that the note would not carry any interest, and that he promised appellee that he would not have to pay the note, and this was the only show of opening the bank. Appellee gave the note and certificates to Herrick. The name of the payee was the Litchfield National Bank. At the time it was delivered Herrick told appellee that “a resolution would be drawn up by the board of directors and made a matter of record cancelling the notes for those who had given them and rebating those who had put up cash.”

This testimony of appellee stands uncontradicted in the record. The note of appellee was carried as an asset of the bank. This note with others, and $1,000 in cash, was taken to St. Louis and exhibited to Mr. Kane, the National Bank Examiner, and permission was given to open the bank.

Appellant says that two propositions are presented, namely, Was there sufficient consideration for the note, as originally given, under all the circumstances and in any event was not the defendant estopped to deny want of consideration!

Appellant also asserts that there would be no question about legal liability on the note, if at the time of giving the same the defendant was an officer, director or stockholder of the bank. Appellant also insists that appellee gave the note in the first place because he wanted to help the bank reopen and because of friendship for Mr. Herrick, the president; that Herrick stated to him that the bank would never collect the note; that appellee failed to show that the bank had made any such promise, that it would never collect' said note, nor did he show that the directors ever considered any such promise. Appellee gave his note for $3,000 secured by good collateral, and the National Bank Examiner, acting upon his promise, permitted the bank to open for business. There was a forbearance on the part of the bank examiner in permitting the bank to reopen and the note given was a sufficient' consideration for a promise. Others also, besides the appellee, helped raise the $10,000 in order to have the bank reopen. Before appellee signed the note he was told that $7,000 had been previously raised. The element of mutual promises entered into the consideration. Mutual promises are sufficient consideration one for the other.

It is also contended that appellee wanted Herrick to retain his position at the bank and that the mother and sister of appellee were stockholders to the extent of 30 shares in the bank, and that consideration for appellee’s note passed for the benefit of Herrick and his mother and sister.

Appellant also takes the position that even though there was no consideration, appellee is estopped to say there was not. His action in giving the note for $3,000 with full knowledge that the banking authorities would not let the bank open unless $10,000 was raised and appellee afterwards acquiring 20 shares of stock while his note was in the bank, and being elected president and presiding at directors’ meetings and he having signed four reports to the comptroller of the currency on the condition of the bank, showing that he was indebted to the bank on notes amounting to $8,500, which included the note in question, estopped appellee to assert want of consideration.

From the undisputed evidence we are convinced that the note was given for the accommodation of the bank and that no consideration ever passed to appellee for the giving of the note. The claim that the note was given because of friendship for Mr. Herrick and because the mother and sister of appellee were the owners of 30 shares of stock was a sufficient consideration for the giving of the note is without merit. There is no evidence of mutual promises that would raise a consideration for the note and neither is there any evidence in the record by which appellee would be estopped from denying want of consideration.

The Litchfield National Bank is the plaintiff, seeking to recover from appellee on this note, and not the comptroller of the currency or the national banking authorities, or a receiver of the bank, or creditor. The doctrine of estoppel is applied when a person by his words or conduct voluntarily causes another to believe the existence of a certain state of things, and induces him to act upon that belief, so as to change his previous position. In such case such person will be estopped to deny the truth of his representations.

Appellee neither by words nor by-conduct caused the Litchfield National Bank, by Mr. Herrick, its president, to believe that his note in question was executed and delivered for a good and valuable consideration, and in fact Mr. Herrick himself as president of the bank induced the signing and delivery of the note, knowing that it was merely made for the accommodation of the bank and without consideration. It was the Litchfield National Bank that made the misrepresentations to the National Bank Examiner. Its agents, Mr. Herrick, president, and Mr. Cline, executive vice president of the bank, went to St. Louis and presented to Mr. Knox, the National Bank Examiner, $8,500 in notes and $1,000 in cash, and among which notes was the $3,000 note of Mr. McBride, that was known by Mr. Herrick, the president of the bank, to have been given without consideration and as an accommodation note to the bank, and thereby induced the reopening of the bank.

The contention of appellant that appellee is estopped to assert want of consideration because of his action in giving the note for $3,000 with full knowledge that the banking authorities would not let the bank reopen unless $10,000 was raised, and the National Bank Examiner acting upon his promise permitted the bank to open, is not supported by the facts in this case.

While it is true that appellee by the execution and delivery of the note placed in the hands of the bank the power to induce the National Bank Examiner to permit the bank to reopen upon the representation that the notes were all given for a good and valuable consideration, yet the evidence fails to disclose that he had any knowledge that misrepresentations would be made in order to induce the National Bank Examiner to permit the reopening of the bank. All that appellee knew about the requirements demanded to be performed before the bank could reopen for business was what Mr. Herrick told him. At the time he delivered the note to Mr. Herrick he stated to appellee that, “a resolution would be drawn up by the Board of Directors and made a matter of record cancelling the notes for those who had given them and rebating those who had put up cash.” From this statement appellee had a right to assume that an accommodation note would meet the requirements of the National Bank Examiner.

Appellant not only having obtained the reopening of the bank by the presentation of the $3,000 accommodation note of McBride as a part of the $10,000 to be raised, but also having carried the note on the books of the bank as an asset, charged with the knowledge that the same was of no value, cannot now be permitted to take advantage of its own wrong and recover on the note in question on the claim that the National Bank Examiner had been deceived and permitted the bank to reopen, and because the stability of banks in general is of great importance to the public, and for that reason appellant would not be permitted to plead want of consideration. The doctrine of equitable estoppel has no application under the facts in this case, as between appellant and appellee.

Any representations or statements made by appellee, as president of the bank, in his official reports to the comptroller, as to his liability on this note, could not be used to estop him from pleading in this suit by the bank, that the note was given for the accommodation of the bank and was without consideration. These reports were made long after the execution of the note, and the bank could in no way have been influenced by what was contained in said reports. The evidence is undisputed that appellee at the time of giving the note was neither a stockholder, official nor employee of the bank. Neither was he interested as a depositor or otherwise. He owed the bank over $2,000 and only had a balance of about $40 in his checking account. Mr. Herrick, the president of the bank, solicited appellee on three different occasions for assistance by way of giving his note in order that the bank might reopen. It was on the third occasion that Mr. Herrick, the president of the bank, said to him, if we do not get some help we can’t open the bank; that the money was all raised but $3,000. At this time appellee informed him that he was not interested and was not placing himself liable for giving on any notes. Mr. Herrick then said to appellee that in consideration of his signing a note the bank would make no effort to collect it; that it was merely an accommodation and there was no interest on the note. Herrick said to appellee, there is no consideration and you do not become liable for anything. You get no benefit and would be ruled out. You have nothing to lose in signing the note. The above assurances of Mr. Herrick was what induced appellee to sign the note which was given solely for the accommodation of the bank.

Appellant insists that even though it be true that appellee was induced to execute and deliver the note because of the promises of Mr. Herrick, the president of the bank, yet the evidence fails to show that the bank ever made any such promises, that it would never collect the note, nor does it show that the directors ever considered any such proposition.

The promises were made by Mr. Herrick; the president and duly authorized agent of the bank, and although as such agent he may have been unauthorized to make such promises, yet the bank accepted the note and presented it together with other notes to the National Bank Examiner at St. Louis , and procured the reopening of the bank, and thereby ratified the acts of its agent.

A principal who ratifies thereby assumes responsibility for the unauthorized act as it was done, together with its burdens and the instrumentalities used by the agent in doing it, the same as if the principal had authorized the act in the first instance. 2 G. J. S. Agency, sec. 64c.

A principal cannot avail himself of such acts as are beneficial to him and repudiate such as are detrimental, whether the ratification be express or implied. If a principal elects to ratify any portion of an unauthorized transaction of his agent he must ratify the whole of it; and if he ratifies any part of the transaction, the result is that he ratifies the whole transaction. 2 Am. Jur. Agency, sec. 223; Am. Law Inst. Restst. of Agency, sec. 96; Vetesnik v. Magull, 347 Ill. 611, 180 N. E. 390; Haas v. Sternbach, 156 Ill. 44, 41 N. E. 51.

After having availed itself of the note to induce the National Bank Examiner to permit the bank to reopen for business, appellant cannot now be heard to say that the bank never made any such promises, and neither can it now repudiate that part of the contract which guarantees to appellee that the note was made for the accommodation of appellant and was without consideration and that in consideration of the signing of the note by appellee the bank would make no effort to collect it.

In view of the uncontradicted testimony in the record with reference to the statements and agreement of Mr. Herrick, president of the bank, made at the time the note was executed, we are at a loss to understand the position now taken by appellant, and in this connection we quote from the case of Straus v. Citizens’ State Bank, 254 Ill. 185, 98 N. E. 245, in which it was said by the court: “If the note relied upon as a set-off was made, executed and delivered to the bank Without any consideration, and upon the agreement appellee should never be required to pay said note, it is difficult to see how a recovery could be sustained by the bank. If there was no consideration for the note, the bank cannot be a holder in due course for value. There are some propositions that are so well settled and clear that any attempt at argument in support of them is a useless expenditure of time. That a promissory note, made and executed without consideration and received by the payee upon an agreement that the maker should never be called upon to pay the same, is invalid in the hands of such payee, and cannot be enforced against the maker, is a proposition of that character.”

Complaint is also made because the court refused to allow the witness Cline, who was executive vice president of the bank, to testify that he gave a note for $3,000 in reliance on McBride’s promise to also give a note for $3,000. We are of opinion that the court did not err in so ruling. The allegation of the pleadings and the issue raised was that mutual promises were made between Charles J. McBride, defendant, and other citizens in Litchfield, who at that time were stockholders in the bank, and that they agreed with each other that they would raise the sum of $10,000, either by cash or negotiable instruments, and deliver the same to plaintiff.

There is no evidence in the record even tending to show that mutual promises were made between McBride, and other citizens of Litchfield, that they would raise the sum of $10,000 and deliver the same to plaintiff. The evidence does disclose that at the time appellee was induced to give his note for $3,000, all but the sum of $3,000 had been raised, and that at no time prior thereto had he ever promised to give a note for $3,000.

Complaint is also made of the giving and refusal of instructions, but in the view we have taken of the case it will be unnecessary to consider the given and refused instructions complained of.

The judgment of the city court of the city of Litchfield is affirmed.

Judgment affirmed.


author: Mr. Justice Edwards

text:
    Edgar H. Little, Jr., Appellant, v. Chicago National Life Insurance Company and The Lincoln National Life Insurance Company, Appellees.

      Opinion filed March 4, 1937.
    Rehearing denied April 6, 1937.
    Beasley & Zulley, of Bast St. Louis, for appellant.
    Wilbur B. Krebs, of Belleville, Clyde J. Cover and Gordon C. Beeves, both of Ft. Wayne, Ind., for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

On March 28, 1933, plaintiff filed his bill of complaint in the circuit court of St. Clair county against the Chicago National Life Insurance Company and the Pacific States Life Insurance Company, seeking to set aside certain alleged fraudulent conveyances, for discovery and for other relief. On December 18, 1935, the Lincoln National Life Insurance- Company was made a party defendant, it being alleged to be indebted to, and have in possession, assets of the Chicago National Life Insurance Company. After service of summons, and on February 26, 1936, it filed its motion to dismiss, the purport of such motion being that the superior court of Cook county, in a suit instituted in that court in 1932, had acquired jurisdiction of the subject matter herein involved, and. that such proceeding was still pending. A hearing was had on such motion on March 20, 1936, and time was granted to defendant to file certain documentary evidence and a brief in support of its contention. On the same day the defendant filed another motion which contested the validity of the service upon it. No further reference appears as to the last motion and it does not seem to have been called to the court’s attention, nor was any hearing ever had thereon.

The court, on May 23, 1936, sustained the motion of said defendant to dismiss it out of the cause, and gave judgment in its favor and against plaintiff in bar of the action and for costs. From this order the plaintiff has appealed, his first contention being that the order is vague and indefinite, and from it cannot be known which of said motions the court was ruling upon.

With this we do not agree. It seems clear that the court, having had a hearing upon the motion filed on February 26, 1936, and having given leave to defendant to file documentary proof and a brief in support of its contention, and not having set for hearing nor in any way having heard the second motion filed on March 20, 1936, was ruling upon the first motion. It seems unlikely that the court would attempt to decide the second motion without a hearing thereon. At the time of its decision the court had under advisement the first motion, and so far as the record discloses had never had the last motion brought to its attention for a ruling. We are therefore satisfied from the record that the court’s ruling was on the motion filed on February 26, 1936.

Plaintiff, upon the assumption that the trial court was ruling upon such motions, contends that its decision thereon was error for a number of reasons; first, that the suit in Cook county, which was, in effect, an action to appoint a receiver for the Chicago National Life Insurance Company and for other relief, was not brought by the attorney general at the request of the director of trade and commerce as the statute required.

It appears that on May 24, 1932, the Pacific States Life Insurance Company brought suit in the superior court of Cook county against the Chicago National Life Insurance • Company and Leo H. Lowe, director of the department of trade and commerce. The former answered, admitting all of the allegations of the bill, and the director of trade and commerce also filed answer, which, the decree recites, did not object to the appointment of a receiver. A receiver was thereupon appointed and the court therein expressly reserved its jurisdiction of the cause for the purpose of entertaining thereafter any intervening petition which said director of trade and commerce might be minded to file.

Later, and on December 21, 1932, or three months before the present suit was instituted, Leo H. Lowe, director of trade and commerce, filed his intervening petition in the former suit, being represented therein by the attorney general; averring the insolvency of the Chicago National Life Insurance Company, and asking that a receivership therefor be decreed by the court. On June 15, 1933, the prayer of such petition was granted, and receivers were appointed, who qualified as such after the receiver appointed under the original bill in said cause had been discharged, as required by the decree upon the intervening petition, and all the assets of the Chicago National Life Insurance Company, which had come into the possession of the Pacific States Life Insurance Company by virtue of a reinsurance contract, were by later order of said superior court ordered turned over to such receivers, who acted as such until May 3, 1935, when said court appointed in their stead a new receiver who qualified and is still acting in such capacity.

Without considering whether the original suit brought in the superior court of Cook county was erroneous, as not having’ been instituted by the director of trade and commerce, it is sufficient to note that on December 21,1932, while such proceeding was pending, and three months before the present suit was commenced, the director of trade and commerce, acting through the attorney general, filed therein his intervening petition praying for a receivership. This was tantamount to and had the same force as though such director had filed an independent suit seeking such relief, and was sufficient under par. 105 (8a), ch. 73, Cahill’s R. S. 1933. It was therefore of no concern whether the original suit had been properly instituted or not. The filing of the intervening petition conferred jurisdiction upon the court to hear and determine the matter of receivership. People ex rel. Lowe v. Old Colony Life Ins. Co., 270 Ill. App. 403; O’Neil v. Welch, 245 Fed. 261; In re Equitable Fire Ins. Co., 198 N. Y. S. 869; Port Newark Nat. Bank v. Waldron, 46 F. (2d) 296.

That the superior court of Cook county had jurisdiction in matters of receivership, and was authorized to entertain the intervening petition, cannot be questioned, and it is the settled rule that in all matters of receivership the court which first acquires jurisdiction of the subject matter and the parties, retains it until the final disposition of the cause, to the exclusion of all other courts of concurrent jurisdiction. Rogers v. Chippewa Circuit Judge, 135 Mich. 79, 97 N. W. 154; Schaberg’s Estate v. McDonald, 60 Neb. 493, 83 N. W. 737; Robinson v. Mutual Life Ins. Co., 162 Fed. 794. Moreover, in such event the assets of the person or corporation, for whom the receiver has been appointed, are in the status of custodia legis, and their exclusive possession is in the receiver under the direction of the appointing court. Harkin v. Brundage, 276 U. S. 36; Evans v. Illinois Surety Co., 319 Ill. 105. Further, the jurisdiction so acquired is exclusive and is not subject to interference or intervention by another person in a creditor’s bill or a like proceeding brought in another court, though it be one of concurrent jurisdiction. Jackson v. Lahee, 114 Ill. 287; Richards v. People, 81 Ill. 551.

In order to confer such jurisdiction, it was not necessary that there be joined in such suit the creditors, nor that the stockholders be made parties, unless some relief or discovery was sought from or against them. Ward v. Farrell, 97 Ill. 593; Carrington v. Thomas C. Basshor Co., 121 Md. 71, 88 Atl. 52.

The creditor or other interested party, in order to share in the assets of the insolvent corporation, is required to prove his claim in the court which appointed the receiver and empowered him to take possession and charge of its assets. Evans v. Illinois Surety Co., supra.

Hence the receivership suit in Cook county, which involved the custody and disposition of the assets in question, was also the only forum where plaintiff might lawfully litigate his claim and right to participate in such assets. It was therefore another suit pending between the same parties for the same cause, within the meaning of par. (d), sec. 48, of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 176; Jones Ill. Stats. Ann. 104.048. The last mentioned section provides that the court may dismiss the suit in any one of nine instances, one of which is, “that there is another action pending between the same parties for the same cause.”

We think the record discloses that such situation existed, and that the court rightfully dismissed the action.

Judgment affirmed.


text:
    Jettie Hampton, Conservatrix of Jesse Allen Hampton, Appellant, v. Herrin Loan and Improvement Association, Appellee.
    Opinion filed March 4, 1937.
    Rehearing denied April 6, 1937.
    Stowe & Fowler, of Marion, for appellant.
    E. T. Cook, of Herrin, and L. A. Coup, of Marion, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

On May 8, 1926, Jettie Hampton was appointed conservatrix of her husband, a disabled World War veteran, and as such received from the United States Grovernment the sum of $40 monthly for his support, from July 1, 1926, to July, 1930, when he died. Of such funds she invested the amount of $1,244.25 in stock of the Herrin Loan & Improvement Association, defendant below and appellee herein, the latter knowing that the funds so invested were received by her as eonservatrix of her husband. The certificate for such shares was taken in the individual name of Mrs. Hampton.

In January 1932, the eonservatrix filed the bill of complaint in this cause, praying that the amount she had paid defendant for such stock be decreed a debt in her favor, as a trust fund; that it be declared a first lien upon the assets of defendant, and that the latter be ordered to pay such sum to the complainant.

In addition to the foregoing the bill alleged that she had made demand upon defendant for the return of such funds, and that the latter had failed to comply therewith. It further averred that she, as such conservatrix, was and is the agent of the United States Grovernment for the purpose of receiving such funds for the benefit of her ward, his heirs and beneficiaries, and that the title to such funds was and remained in the Federal Grovernment until they had passed to the beneficial use of her ward. The bill further alleged that such moneys, when paid to the complainant as such eonservatrix, “as aforesaid,” constituted a trust fund, and as such, she, in her fiduciary capacity, was without -authority to invest same except for the purpose of expending it for the beneficial use of her ward, or investing it for him in accordance with the provisions of the statutes of Illinois, It also charged that defendant knew, or should have known, that such moneys were funds of the United States Government until expended for the use of her said husband, and knew, or should have known, that she, as such conservatrix, was only an agent or intermediary of the Government, and without authority to invest the same in the stock of defendant.

Issue being joined by answer and replication, the cause was heard before the chancellor in open court, who dismissed the bill for want of equity, and this appeal seeks to reverse such decree of dismissal.

That money paid to a conservatrix in form of a pension or compensation by the Federal Government, is the trust fund of the ward, which the conservatrix receives in her fiduciary capacity, and not as agent for the Government, is established by the decisions in Spicer v. Smith, 288 U. S. 430, and Chamness v. James, 275 Ill. App. 206; the latter by this court.

Complainant concedes as much, but, to avoid the argument of appellee that the bill charges one ground for relief, namely, that she received the funds as the agent of the United States Government, and the proof establishes another, contends that the bill was filed with a double aspect and upon two theories: first, that the funds belonged to the United States Government until expended for the use of the ward, and second, that the funds so held and expended by the conservatrix were trust property regardless of their source; that defendant was cognizant of their character, and that by its acceptance of them, with such knowledge, it became a constructive trustee of the same.

Complainant then, in her argument, states: “That this theory is fully and completely set out in the hill is made quite clear by the following language of the bill: ‘ That such compensation, when paid to your complainant as conservator as aforesaid, constituted a trust fund, and as such trust fund, your complainant, as such conservator, was without authority to handle or invest the same except for the purpose of expending it for the beneficial use of the said Jesse Allen Hampton, or investing the same for him in accordance with the provisions of Section 18, Chapter 86, of the Revised Statutes of the State of Illinois. ’ ” Also, that the investment made was in contravention of such statute, and that defendant refused to return the money after demand had been made therefor, although the latter knew such funds were paid out of compensation received from the United States Government for the use and benefit of her ward.

All salient features of the bill which bear upon the right óf action are above quoted. It is evident that complainant relies, in support of the second theory, upon the averment, “That such compensation, when paid to your complainant as conservator as aforesaid, constituted a trust fund.” It seems manifest that the quoted words, “when paid to your complainant as conservator as aforesaid,” refer, as indicated by the words “as aforesaid,” to that which was already charged; in other words, to the allegation in the next preceding paragraph thereto, that she accepted such moneys as the agent of the United States Government, and that the title to the fund remained in the Government until expended for the use of her ward, and were not intended to charge, nor was their effect to allege, another or different cause of action. Upon a consideration of the bill, as an entirety, we are of opinion that it averred but a single ground for action, namely, that the title to the funds was in the United States Government when received by complainant, and that she was acting solely as its agent in that behalf.

In equity pleading it is elementary that the allegations of the bill must be supported by the proof, otherwise the court cannot decree the relief prayed for in the complaint, and it is quite immaterial that the evidence establishes a ground for relief, not charged in the bill, unless the complainant, by leave of court, amends the bill to present the case disclosed by the proof. Lang v. Metzger, 206 Ill. 475; Beaver Drainage Dist. v. Cleveland, C., C. & St. L. Ry. Co., 347 Ill. 122.

In the instant case the bill avers one cause of action and the evidence tends to establish another; hence the chancellor properly dismissed the bill for want of equity.

Decree affirmed.


text:
    Clara Mowery, Appellee, v. Washington National Insurance Company, Appellant.

      Opinion filed March 4, 1937.
    Rehearing denied April 6, 1937.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Beasley & Zulley, of East St. Louis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

On April 4, 1935, defendant issued a life and accident insurance policy to Mary Keyser, aged 69 years, in connection with a subscription to the Star-Times, a newspaper of St. Louis, Missouri, in which plaintiff was named beneficiary. The application was taken at the home of the insured at East St. Louis, Illinois, was delivered to defendant’s office in St. Louis, where the policy was issued, and afterwards, on April 12, 1935, the insured, while walking upon the streets of Chicago, was struck by a passing automobile and sustained injuries from which she died on June 2,1935. Defendant denied liability, plaintiff brought suit on the policy, trial was had before the court, and judgment rendered in favor of plaintiff for $1,050 and costs, from which defendant appeals.

The complaint was in the usual form, together with an allegation that the policy, in fine print, contained a clause that “Indemnity for loss of life . . . shall be paid only when such loss occurs within thirty days after the date of the accident causing such loss,” and averring that such provision is in derogation of Ill. State Bar Stats. 1935, ch. 73, H 468; Jones Ill. Stats. Ann. 66.543 (sec. 363, ch. 73, Smith-Hurd R. S. 1935), which requires that all exceptions of the policy shall be printed with the same prominence as the benefits to which they apply.

Defendant’s answer was a general denial, together with two affirmative defenses: first, that the policy expressly provides indemnity for loss of life, etc., by accidental means, subject to all conditions contained in the policy; and, second, that the policy, in Part 10 thereof, specifies that indemnity for loss of life shall be paid only when death occurs within 30 days after the date of the accident occasioning such loss.

Defendant first contends that the policy was issued at the office of the Star-Times in St. Louis, Missouri, and mailed to the insured at Bast St. Louis, Illinois, being thereby a Missouri contract and not subject to the provisions of the Illinois statute referred to.

There is some dispute as to whether the evidence establishes that the policy was mailed in St. Louis; however, we think this is not material in view of another consideration.

The policy, on page 1, reads: “The date of this policy is April 4,1935; its weekly premium is five cents; it takes effect at twelve o’clock noon, standard time, at the residence of the insured of the date hereof, if the insured is then alive, in good health and free from injury.”

It is observed that the policy “takes effect ... at the residence of the insured.” To take effect, means to be in force or go into operation. Maize v. State, 4 Ind. 342. In other words, the policy was in effect at the residence of the insured, and not elsewhere. If it went into force at such residence, it is evident that the parties intended it should be subject to all the legal regulations which obtained at the situs of such residence; that is, the statute of Illinois. Any different construction would render the quoted provisions mean-, ingless.

It will be presumed that the parties intended that each provision of the policy should be effective unless it contravened some rule of law or public policy, and it seems manifest that they contemplated, by such wording, that the policy should be tested by the laws of this State. It is therefore an Illinois contract.

Defendant further urges that even if the policy is subject to the Illinois statute, yet it conforms to its terms; that Part 4 of the policy, which provides for a recovery if injuries are sustained by being struck by an automobile, is the part which confers the benefit; that same was printed in the same size type as the provisions of section 10, and hence is not obnoxious to the terms of said Ill. State Bar Stats. 1935, ch. 73, ¶ 468; Jones Ill. Stats. Ann. 66.543 (section 363, chapter 73, Smith-Hurd R. S.).

In this connection it must be noted that on page 1 of the policy it is provided, in bold faced type, that loss of life “if sustained in the manner described in Part 4,” shall be indemnified in the sum of $1,000. It is manifest that this provision, together with that of Part 4 referred to, are the clauses which jointly confer the benefit.

We do not think that the clause of Part 10, restricting the right of recovery to instances where the loss occurs within 30 days of the infliction of the injury, can be said to be printed with the same prominence as those conferring the benefit, especially when the most important of the provisions which confer such benefit, being the one providing for the amount of $1,000 for loss by death, is in bold faced type, and is then only modified by Part 4 describing the manner in which the injury may be sustained. Porter v. Continental Casualty Co., 277 Ill. App. 492.

It is further claimed that the provision of Part 10 is not an exception to the liability, but that it is one of the conditions under which the indemnity is payable, and is not an exception as that term is used in the statute. With this we do not agree, and are of opinion that it is one of the exceptions which relieve the insurer from payment, and as such is within the terms of the act; as held in Porter v. Continental Casualty Co., supra.

It is further asserted that inasmuch as the insured was above the age of 60 years, that certain conditions of the policy which provide for a reduction in indemnity under such situations, should control the amount of recovery here. The answer to this contention is that when an insurer desires to avail itself of an exception contained in a policy, by way of defense, to defeat a claim either in toto or pro tanto, it must plead such exception, and failing to do so waives it as a defense. Maltby v. Empire Auto Ins. Ass’n, 239 Ill. App. 532; McCarthy v. Pacific Mut. Life Ins. Co., 178 Ill. App. 502. Such, was not pleaded in the instant case, hence is not available to bar or lessen the liability of defendant.

For which reasons the judgment is affirmed.

Judgment affirmed.


text:
    Archie H. Shaw and Elizabeth Shaw, Appellants, v. Albert C. Davis and Bank of Steeleville, Appellees.

      Opinion filed March 4, 1937.
    Rehearing denied March 30, 1937.
    J. E. Carr, of West Frankfort, for appellants.
    Michael K. Grabowski, of Pinckneyville, for certain appellee.
    William G. Juergens, of Chester, for certain other appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Perry county dismissing for want of equity a complaint filed in such court by plaintiffs who are appellants herein.

Appellees aslc that the appeal be dismissed, assigning as one reason therefor that the abstract of appellants is incomplete and insufficient, as a matter of law, for the reason that it fails to show that notice of appeal was filed in the circuit court as required by statute. The abstract in that regard shows, merely, “notice of appeal, dated December 30, A. D. 1935,” together with acknowledgments of the attorneys for appellees that they each had received a copy of such notice. It wholly fails to show that such notice of appeal was filed in the office of the clerk of the circuit court.

The right of appeal, under the Civil Practice Act, is purely statutory, and the provisions of the act must be complied with, otherwise the appeal is not legally perfected. One of the first requirements of the statute relative to appeal is that notice of appeal be filed in the court from which the appeal is taken; sec. 76, Civil Practice Act, Ill. State Bar Stats. 1935, eh. 110, ¶ 204; Jones Ill. Stats. Ann. 104.076; and if the notice be not filed the appeal is not perfected. People ex rel. Dilks v. Board of Education, 283 Ill. App. 378. If there be a failure to file such notice, the attempted appeal is ineffectual and will be stricken. Hunter v. Hill, 284 Ill. App. 655 (Abst.), 2 N. E. (2d) 388.

It is elementary that the abstract must show all the necessary steps in the litigation and a compliance with all of the essential requirements as to appeal. Village of Winnetka v. McMartin, 351 Ill. 134; Christy v. Elliott, 216 Ill. 31. The abstract is therefore insufficient for failure to affirmatively show that appellants filed notice of appeal in the trial court within the prescribed time. Where such is true the reviewing court is not bound to entertain the appeal. Watson v. Sullivan, 260 Ill. App. 259; Bour v. Cook, 209 Ill. App. 315. The court of review, in such event, is not required to await a motion by appellees to dismiss the appeal, but may, of its own motion,, dismiss such appeal for want of a sufficient abstract. Burk v. Weber, 285 Ill. App. 391, 393.

It is further insisted by appellees that the record was not filed in this court within the time required. Buie 36, sec. 2, subdivision (c) of the Supreme Court requires that ‘ ‘ the record on appeal shall be transmitted to the reviewing court not more than 30 days after the report of the proceedings . . . has been filed”; and further provides that “where the report of the proceedings at the trial ... is filed in the trial court within proper time, but the record is not transmitted to the reviewing court before the expiration of the time fixed in this rule . . . the reviewing court shall dismiss the appeal.”

Here the certificate of the clerk of the circuit court, as to completeness and authenticity of the record, bears date April 2, 1936, while it appears from the files of the cause in this court that the record was filed herein on October 7, 1936, or more than six months after the completion of the record. Hence within the rule just quoted this court has no choice except to dismiss the appeal.. The law is further declared to the same effect in West Side Trust & Savings Bank v. Damond, 280 Ill. App. 343.

For which reasons, and each of them, the appeal is dismissed.

Appeal dismissed.


author: Mr. Justice Murphy

text:
    David C. Grear, Conservator of the Estate of Jennie Grear, Appellant, v. Henry C. Sifford et al., Appellees.

      Opinion filed March 4, 1937.
    Rehearing denied April 6, 1937.
    McKinney, Folonie & Grear, of Chicago, for appellant ; George H. Grear and Harold W. Hawes, of Chicago, of counsel.
    E. Wallace Karraker, of Jonesboro, for appellees.
   Mr. Justice Murphy

delivered the opinion of the court.

The plaintiff David C. Grear as conservator of Jennie Grear herein referred to as plaintiff, filed this suit to construe the will of Mary A. Scott, deceased, and seeks a construction that would destroy a charitable use and pass the property as intestate. Defendants are the representative of the estate of Mary A. Scott, deceased, Union Academy of Southern Illinois, a corporation, the executor of the will of James C. Sowers, deceased, and Henry C. Sifford as trustee.

The matter is presented on plaintiff’s complaint, defendants’ motion to dismiss and the answer of the Union Academy, the facts alleged therein not being denied by plaintiff. The will describes certain real estate but it has all been converted into money and there is alleged to be about $12,000. The trial court construed the will sustaining the charitable use and plaintiff has appealed from that decree.

Mary A. Scott died June 24, 1934, leaving a will dated May 12, 1914. She left the plaintiff, named in the will as Sarah Jane Grear, a sister, and James C. Sowers, a brother, her only heirs. James O. Sowers has since died. At the time of mailing the will and at her death she was a resident of Union county, residing in or near Jonesboro.

By the first clause of the will she directed the payment of debts and funeral expenses; by the second she devised a life estate to her brother and sister or the survivor of them, in all of her undivided interest in farm land described as her father’s homestead and the land on which she and her sister then resided. The third clause gave her brother and sister the household effects.

The fourth clause is as follows: “Fourth, subject to the terms and conditions hereinafter set forth and the trust herein created, I give, devise and bequeath to the Union Academy of Southern Illinois (an Illinois Corporation) located at Anna, Illinois, all property, real, personal and mixed of which I may die seized and possessed, except the property bequeathed by the third paragraph of this will. In the event of the death of my said brother James and sister Sarah prior to my decease the title to all my real estate shall vest in said Union Academy at my death, and my executor shall turn over my personal property to said legatee on the completion of administration upon my estate. In case my said brother and sister, or either of them, shall survive me, then said Union Academy shall not be entitled to the title possession of or any control over any of said property until the termination of the trust by this will created, but the legal title thereof shall, until said time, be and remain in 'said trustee. It is my will that said property, when turned over to said Union Academy, shall become a part of its endowment fund, and said academy may convert the same, or any part thereof, into real estate or money, at its pleasure. In case the school conducted by said corporation shall at any time be permanently discontinued, said property may be applied to such purpose or purposes as said corporation may deem best.”

The fifth clause is in reference to the duration of the trust and by the sixth clause she devised and bequeathed to Albert B. Ogle “to be by him owned, managed, controlled and held in trust for the uses and purposes hereinafter set forth the following described property and all other property, if any, of which I may die seized and possessed, except that bequeathed in paragraph ‘Third’ of this will; and except as herein-above otherwise provided as to my Union County, Illinois real estate.” Then follows a specific description of certain real estate located in St. Clair county, all money, notes, mortgages, accounts and choses in action remaining after administration of the estate and her Union county real estate mentioned in the second paragraph of the will. (That being the property in which she had an undivided interest and referred to in the second clause as her father’s homestead.) Detailed directions as to the trust property are then given the trustee.

The eighth paragraph of the sixth clause is as follows: “The trust hereby created shall continue during the natural life of the survivor of said James C. Sowers and Sarah Jane Crear, and upon the death of such survivor, said trustee shall convey the fee to the real estate and deliver all cash, notes and other personal property comprising said trust fund at the date of such death to the Union Academy of Southern Illinois (an Illinois corporation) located at Anna, Illinois, and furnish to said Union Academy a statement of his acts and doings as such trustee in regard to the principal fund of said trust estate.” Other provisions follow in reference to the trust but are not material here.

In the answer filed by the Academy it is alleged that it was organized in 1884 with a chartered objective of giving a higher education; that it has from the date of its organization to the present time elected directors and officers and kept and maintained its corporate existence; and that in 1884 there were no high schools in Union county and particularly at Anna and Jonesboro ; that it started a school instructing in high school subjects and that in 1894 it received a bequest under the will of Charles M. Willard sufficient to create an endowment fund and also received a site for a school building; that in 1906 by private subscriptions from the citizens of Anna and Jonesboro a school building was erected at a cost of $50,000; that tuition fees were charged and additional funds obtained and added to the endowment fund but that the income from all sources was insufficient to maintain a school and in 1917 it discontinued the school; that thereafter a community high school district was organized at Anna, which acquired the school building and site owned by the defendant, and that it is now using the income from its endowment fund aiding in the support of the community high school; that the high school is teaching the same general subjects as the Academy did prior to 1917; and that such action was confirmed by a decree of the circuit court of Union county entered April 24, 1934. The fund involved in this suit was not before the court in the former litigation.

The most important rule in the construction of wills and the one to which all other rules must bend is that the intention of the testator expressed in his will shall prevail, provided it be consistent with' the settled rules of law. Bradsby v. Wallace, 202 Ill. 239. All rules of construction yield to the intention of the testator plainly expressed. Fifer v. Allen, 228 Ill. 507. This intention is found by construing the words employed by the testator in the will itself, in the light of his circumstances and surroundings. While it is the intention, as shown in the will itself, that is sought, yet the court in construing a will is not bound to shut its eyes to the state of facts under which the document was made. Walker v. Walker, 283 Ill. 11.

Plaintiff contends that the provisions in favor of the Union Academy are void and that the property all goes as intestate property to plaintiff and the estate of her brother, James C. Sowers, deceased. The basis of their claim is that the property given to the Academy is a devise in trust to be terminated whenever the Academy permanently discontinues a school and that the power of disposition given the Academy fails by reason of its vagueness and indefiniteness and that it violates the rule against perpetuities and that since the general scheme of testatrix was to put the property in trust and one of the trusts failing they all fail. The Academy contends that it was a gift in praesenti for a charitable use and that its interest is subject only to the trust for the use of the brother and sister during their joint lives or the life of the survivor of them.

Taking the will as a whole and considering all its provisions together it is clear that the deceased’s first consideration was support and assistance to her brother and sister. The thoughtfulness with which she safeguarded their welfare is evidenced by the detailed instructions she enjoins upon the trustee in the management of the trust estate. Second to this consideration was her interest in giving her property to a charitable purpose. In the eighth paragraph of the sixth clause above quoted she directs the trustee, after the termination of her brother’s and sister’s interest, to convey the fee of the real estate and deliver all cash, notes and other personal property held in trust to the Union Academy and to furnish a report as to the principal of the trust fund. This standing above constitutes a devise to the Academy without any restrictions or limitations upon the gift.

Plaintiff contends that the words “subject to the terms and conditions hereinafter set forth and the trust herein created” as contained in the first lines of the fourth clause refer to the terms and conditions in the fourth clause and the words “trust herein created” evidence an intent that the property shall pass by the fourth clause in trust. We cannot agree with that contention. The words “terms and conditions hereinafter set forth” refer to the terms and conditions set forth in the subsequent provisions of the will and the words “trust herein created” refer to the trust created in the sixth clause for the benefit of the brother and sister. The words “hereinafter set forth” as they refer to the terms and conditions and the words “herein created” as they refer to the trust are locative words, locating the place where the terms and conditions in the one instance and the trust in the other may be found. The will must be construed as a whole and every clause and word given legal effect if it is at all possible.

Gifts to charity are looked upon with favor by the courts and they will indulge every presumption consistent with the language used to sustain such gifts. Skinner v. Northern Trust Co., 288 Ill. 229; Franklin v. Hastings, 253 Ill. 46; Morgan v. National Trust Bank, 331 Ill. 182.

Plaintiff contends that the direction in the will that the property when turned over to the Academy shall become a part of its endowment fund is to be treated as creating a trust in the hands of the Academy for a particular purpose. By the eighth paragraph of the sixth clause the trustee is directed at the termination of the life estates to convey to the Academy the fee to the real estate and deliver absolute possession of the personal property and by the fourth clause she “devises and bequeaths” the real and personal and in the second sentence of the fourth clause she provides that in the event of the death of her brother and sister prior to her death “the title to all my real estate shall vest in said Union Academy at my death and my executor shall turn over my personal property to said legatee on the completion of administration upon my estate” all of which evidences an intention of the testatrix to vest the title to all property both real and personal in the Academy immediately upon the termination of the life interests of her brother and sister.

The Academy being a charitable organization, chartered for the purpose of furnishing higher education, was dependent upon charity for funds to carry out its corporate purpose. It has the corporate power to carry money as an endowment fund and use the income therefrom for its current expenses and the direction in the will to place the money in an endowment fund was but an incident in the administration and handling of the fund. The reference to carrying the money in an endowment fund is not as a condition upon which the gift is made. It was a gift to a charitable institution to be used by it for the charitable purpose for which the Academy was organized, higher education, and the direction to carry it in an endowment fund did not limit the use or mark it for any particular purpose so as to constitute it a trust fund. The will does not direct that the property when in the endowment fund shall be used for any special purpose. The fund and the income from it were to be used by the Academy in such manner and for such purpose as it deemed best to further its corporate purposes.

Plaintiff relies upon Hobbs v. Board of Education, 126 Neb. 416, 253 N. W. 627, as supporting its theory that a gift to an endowment fund of a charitable institution is a gift in trust but an examination of that case discloses that the instrument under which the gift was made provided that the gift was made “for the purpose of endowment for said institution, and to be invested and preserved inviolable as such” and upon (condition that) a like amount should be raised from other sources and ‘1 set apart inviolably as endowment for said college.”

Plaintiff also cites in support of this proposition Monticello Seminary v. Board of Review, 249 Ill. 481, 485, wherein the court said: “There is a clear distinction between this endowment fund held by the institution in trust and the other credits which can be invested by the trustees of the institutions for profit in any way that the trustees desire.” The court was considering what property of the Seminary was taxable. It appears that the donation and in connection with which the above language was used was a sum given to the Seminary for the purpose of furnishing free scholarship to be paid out of the annual income of said endowment. We do not regard either of said cases as controlling here.

Plaintiff’s further contention is that the last paragraph of clause 4 “in case the school conducted by said corporation shall at any time be permanently discontinued said property may be applied to such purpose or purposes as said corporation may deem best” gives the Academy the right to apply it to a charitable or private purpose and since it might at some time go to a private purpose it violates the rule against perpetuities and is therefore void. Our construction of the provisions of the will is that the testatrix intended that the Academy should take the absolute title to the property for charitable purposes and we do not see anything in the quoted provision that places any limitation upon the purpose of the gift as expressed in other parts of the will. The words “purpose or purposes as said corporation may deem best” refers to the purpose or purposes within its corporate powers. Its corporate power was to furnish higher education but it is not alleged or claimed that its charter required it to reach that objective by maintaining a school under its own direct supervision and at its own exclusive expense.

Since we construe the will as evidencing the intention of the testatrix to create a charity and to give the fund absolute to that charitable purpose the mismanagement of it by the Academy or its application to a wrong purpose would be a breach of a trust with which the attorney general or State’s attorney representing the public would be charged with protecting. McGee v. Vandeventer, 326 Ill. 425.

“In gifts for charitable uses the law draws a clear distinction between those parts of the writing conveying them which declare the gift and its purposes and those which direct the mode of its administration. Where a vested estate is distinctly given for charitable uses and there are annexed thereto conditions, limitations, powers, trusts, or other restraints relative to its use, management or disposal, any of which are not sanctioned by law, it is such restraints, and the estates limited on them, that are void and not the principal or vested estate. Unreasonable or illegal provisions Eor the management may be attached to the gift, but this does not annul the gift.” Webb v. Webb, 340 Ill. 407.

The court arrived at a correct construction of the will and its decree is affirmed.

Affirmed.


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    Belle Stark et al., Appellants, v. Joseph G. Boggs and State Loan Association, Appellees.

      Opinion filed March 4, 1937.
    Rehearing denied April 6, 1937.
    Harry Faulkner, of Granite. City, for appellants.
    Roscos Forth and M. R. Sullivan, both of Granite City, for appellees.
   Mr. Justice Murphy

delivered the opinion of the court.

Belle Stark, the appellant, was a stockholder in the . State Loan Association, a building and loan corporation, and brought a suit at law against Joseph R. Boggs and the State Loan Association. Subsequently the cause of action was transferred to the equity docket and an amended complaint filed. Plaintiff alleges that the suit is for herself and on behalf of all others similarly situated but all for the use of the State Loan Association.

It is alleged in the amended complaint that the State Loan Association was organized in 1919 by Joseph E. Boggs and others; that there were seven directors; that Boggs was one of the first directors and had been reelected at stated intervals so that his several terms of office had covered the period from December, 1919 to December, 1933, and that during all that time he was the secretary of the association. It is further alleged that the secretary’s compensation was fixed by by-law in December, 1919 at 7/16 of one per cent of the assets annually and that at the same time the duties of the secretary were prescribed; that during the period between December 1, 1923 and November 30, 1933, he took from the assets of the corporation in excess of $34,000 and paid it to persons for services which should have been performed by him and which were covered by the compensation fixed by the by-laws for his services as secretary; that during the same period he drew his salary as fixed by the by-laws at approximately $86,000; employed others to do the work at the expense of the company while he devoted his time and service as an officer of a banking institution in Granite City; that in 1926, on behalf of the Loan Association he loaned $60,000 and charged and collected from the borrower a commission of $5,000 which he retained but which should be paid to the Loan Association. The prayer is for an accounting by Boggs and a reimbursement to the association of the amount found due.

The Loan Association filed a motion to strike certain paragraphs of the amended complaint and Boggs moved to dismiss the amended complaint. Both motions were allowed and plaintiff elected to stand by her pleading and a judgment in bar of the action was entered.

Both parties are in accord with the general proposition of law that a minority stockholder in a corporation may on behalf of himself and other stockholders similarly situated bring an action in equity against persons who are directors of the corporation and who have by their conduct or negligence injured the corporation but that before such action can be maintained by such stockholder it is necessary to make demand through the directors that the corporation bring the suit and that it has refused or that it is incumbent upon such stockholder to allege and prove facts which would show with reasonable certainty that such demand would be unavailing.

Plaintiff alleges in her amended complaint that she has not made a request of the Loan Association through its directors to make the demand on Boggs to return the money “for the reason that such a request would have been unavailing. ’ ’ This allegation is but a conclusion and does not state any facts from which the court can determine that it would have been futile to make a demand that the corporation bring the suit.

In Babcock v. Farwell, 245 Ill. 14, the court said, “The stockholders cannot ordinarily maintain a suit to enforce any right of the corporation. That privilege belongs to the corporation itself, acting through its directors. The mere failure of the directors to bring suit does not entitle any stockholder to do so. A demand upon the director's to bring* the suit is, in general, essential before a stockholder may himself maintain a bill. His remedy must first be sought within the corporation, and it is only where the majority of the directors are themselves involved in the matters complained of, so that it is evident that the demand would be unavailing, that it can be dispensed with. ’ ’ Scalzo v. Commercial Trust & Savings Bank, 239 Ill. App. 330. In Hawes v. Oakland, 104 U. S. 450, 460, 26 L. Ed. 827, it was said, ‘ ‘ The efforts to induce such action as complainant desires on the part of the directors and' of the shareholders when that is necessary and the cause of failure in these efforts should be stated with particularity. ’ ’

The other allegations relied upon by plaintiff as showing such facts are that Boggs was a director and secretary of the association from 1919 to 1933 and that during that time he annually obtained proxies from stockholders so that he or someone under his control named the directors of the association and that he so dominated that organization that he controlled the appointment of committees.

It is nowhere alleged that the directors as elected or the committees appointed in any way connived with Boggs to defraud the association or that they acting with Boggs fraudulently permitted him to take the assets of the corporation. It is not even alleged that Boggs procured the proxies and manipulated the election of directors of his own selection so that he could draw from the treasury of the association funds for services that did not belong to him.

Plaintiff contends that the allegation that Boggs selected the directors and procured their election by proxies is a sufficient allegation of fact to show that the other directors would not have authorized a suit had a request been made. It is common knowledge that the directors of many corporations are selected and elected by means of proxies procured by some official of the company but it does not follow that directors so elected subscribe to everything proposed or done by the official who caused their election. In the Babcock case the rule was stated that demand had to be made in all cases except where the majority of the directors are themselves involved in the matters complained of so that it would appear that a demand to bring suit would be unavailing. If a majority of the other directors were involved in the same matter it would not be expected that they would sue themselves. But in this ease the other directors are not involved and there is no liability against them from the mere fact that Boggs had caused their election by means of procuring proxies. They might have a high regard for him and deeply appreciative of his efforts in securing their election and yet when a demand for suit was made they would be true to their trust and authorize the suit.

Plaintiff further contended that this court should take notice of the fact that Loan Associations in this State are usually under the control and management of one man and relies upon Prairie State Loan & Bldg. Ass’n v. Nubling, 170 Ill. 240. The court was there considering the liability of the corporation for the wrongful acts of its secretary in an action brought by the stockholder against the association and the statement in the opinion would not be applicable to the question under consideration. The court properly sustained Boggs’ motion to dismiss.

The Loan Association’s motion to strike certain paragraphs of the amended complaint was directed at matters alleged to have occurred since the starting of the suit and were in reference to the activities of certain of the directors and one of the attorneys who represents both appellees in this case, in the matter of getting plaintiff and one of her coplaintiffs, who is no longer in the suit, and to dismiss the suit. The request by plaintiff for corporate action against Boggs or the existence of facts which would make a request unavailing were as a condition precedent to the bringing of the plaintiff’s suit and if they did not exist at the time the suit was started subsequent occurrences could not be pleaded and relied upon as constituting a cause of action at the time the suit was filed.

There was no error in the court’s rulings on the motions.

Judgment affirmed.


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    James L. Harris, Appellee, v. William Juenger et al., Appellants.

      Opinion filed March 4, 1937.
    Rehearing denied April 6, 1937.
    Philip Gr. Listeman, of East St. Louis, for appellants.
    Saul E. Cohn, of East St. Louis, for appellee; Beasley & Zulley, of East St. Louis, of counsel.
   Mr. Justice Murphy

delivered the opinion of the court.

January 9, 1935, appellee instituted this suit to recover damages for personal injuries alleged to have been caused by the negligence of appellants and the other defendants, E. Salia and the city of East St. Louis. The allegation in the complaint, as.it pertained to appellants, was that they owned, occupied or had possession of the building at 310 East Broadway in East St. Louis and operated a store therein, that they negligently rolled heavy barrels and trunks across the sidewalk in front of the store, •breaking the sidewalk and causing it to be uneven and dangerous, thus causing plaintiff to fall and resulting in personal injuries.

February 7, appellants by their attorneys filed an answer admitting the allegation of ownership and possession of the building but denied the charge of negligence. Nothing appears to have been done in the case after the filing of the answer until September 16, when the attorneys who had filed the answer on behalf of appellants obtained leave of court, and withdraw as attorneys of record for appellants. Pursuant to order of court the clerk gave appellants notice by mail of the withdrawal of their attorneys. On the date of the withdrawal, and notwithstanding the answer of appellants was still on file, the court ruled them to plead by September 23. Appellants did not appear in person or by attorney and on September 30 were defaulted. October 15, the court heard evidence without a jury, found the appellants guilty as charged and assessed plaintiff damages at $6,500, and entered judgment for that amount. Appellee filed a request for jury at the time of starting the suit but appellants never at any time filed one.

November 14, appellants by their attorney who appears for them in this court, filed a motion to vacate the judgment and set aside the order of default and urged as grounds, that they were deprived of their constitutional right to a jury trial and that they had a meritorious defense to plaintiff’s claim. The court overruled the motion and that ruling is assigned as error.

The withdrawal of appellants’ attorneys did not have the effect of withdrawing their answer. Mason v. Abbott, 83 Ill. 445. The answer denied the charge of negligence and with it on file they should not have been ruled to plead and defaulted for failure to comply with the rule. Ridgely Nat. Bank v. Fairbank, 54 Ill. App. 296.

Under section 60 of the Practice Act of 1907 and the sections in reference to the same matter that preceded, it was held that where the defendant in a case of this kind filed a plea which traversed the charge of negligence and tendered an issue of fact, that issue had to be determined by a jury adversely to the defendant before damages could be assessed against him and this was true whether the defendant was present or absent at the trial. Manlove v. Bruner, 2 Ill. (1 Scam.) 390; Covell v. Marks, 2 Ill. (1 Scam.) 391; Mason v. Abbott, 83 Ill. 445; Flora v. Fields, 156 Ill. App. 341; Wacker v. Young, 172 Ill. App. 255; Stare v. Vayda, 234 Ill. App. 309; DuBreuil v. Klein, 253 Ill. App. 91. In Archer v. Spillman, 1 Scam. (Ill.) 553, it was held that such waiver must be made to appear from the record. This rule has been followed in other cases. Barrett v. Craig, 38 Ill. App. 96; Industrial Loan Co. v. Kezirian, 259 Ill. App. 47.

Section 64 of the Civil Practice Act adopted in 1933, par. 192, ch. 110, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 104.064 (sec. 188, ch. 110, Smith-Hurd) provides (1) A plaintiff desirous of a trial by jury shall make his demand for a jury in writing*, and file such demand with the clerk at the time suit is commenced, and a defendant desirous of a trial by jury shall make such demand and file the same at the time of filing appearance; otherwise such party shall be deemed to have waived a jury. If the plaintiff files a jury demand and thereafter waives such demand, the defendant shall be granted a jury trial upon motion made at the time of such waiver and upon payment of the proper fees to the clerk.

By this enactment the right to a jury trial in this kind of a case is still preserved but if a party wishes to retain this privilege he must malee a demand for a jury in accordance with the provisions of the statute.

Appellants’ failure to file a demand for a jury amounted to a waiver of their right to a jury trial and the rule that prevailed prior to the enactment of the Civil Practice Act has no application under the present statute.

Appellee had filed a demand for a jury and had he continued to stand by that demand, this would have been sufficient to have preserved the right to a jury trial to appellants, but there is nothing in the statute which prohibits a party who has filed a demand for jury from withdrawing it or by waiving it, by proceeding to a trial before the court without a jury.

It does not appear that appellee withdrew his request for a jury but introduced his evidence and submitted his case to the court without a jury and this would constitute a waiver of the request he had filed. 16 R. C. L. 218. Had appellants been present in court when appellee adopted Ms line of procedure, they would, under the statute, have had the right to file their request for a jury trial.

It is apparent that appellants’ constitutional right to a jury trial was not lost to them by reason of the court proceeding to trial without a jury in their absence but rather by reason of their failure to meet the statutory requirement to preserve that right.

We cannot see that the court orders, ruling appellants to plead when they had a pleading on file and the order of default, in any way aids appellants in their contention that they were deprived of their constitutional right to a jury trial. It is not contended that the case was tried in violation of any rule of court or that the case was called for trial out of the regular order.

In support of their motion to vacate the judgment and order of default appellants further contend that aside from the question of the right'of a jury trial the judgment should have been vacated for the reason that they have shown a meritorious defense and that they acted with diligence in maMng the motion.

The law of this State is that a motion to vacate a judgment and set aside a default is addressed to the sound discretion of the court and will not be reviewed except in case of abuse of such discretion and that a party presenting such a motion must show that he acted with due diligence and that he has a meritorious defense. Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277; Nitsche v. City of Chicago, 280 Ill. 268; Citizens’ Sav. Bank & Trust Co. v. City of Chicago, 215 Ill. 174, and when it appears that the party defaulted has failed to exercise due diligence to protect his rights, it has never been held an abuse of discretion to refuse to vacate a default judgment. Barrett v. Queen City Cycle Co., 179 Ill. 68; Hartford Life & Annuity Ins. Co. v. Rossiter, supra.

Appellants by their affidavits admit that they were notified by the clerk that their attorneys had withdrawn from the case and undertake to justify their neglect in attending the suit by averring in their affidavits that they were not familiar with court procedure, having had no previous experience as defendants in civil cases and that they understood the notice to mean that the case had been withdrawn or dismissed and that it required no further attention on their part and that they did not know of the trial until November 1 when one of them was examining the records in reference to a title to his real estate and found the judgment. The notice mailed by the clerk and which appellants say misled them is plain and unambiguous. It is addressed to appellants, giving the names of plaintiff and defendants and states that the firm of McGrlynn and McGrlynn (attorneys for appellants) had asked and been granted permission to “withdraw as attorneys for all the defendants in the above styled cause except the City of East St. Louis.” We cannot perceive how appellants’ lack of experience as defendants in civil cases could have caused them to be misled by the simple statement of a fact as contained in the notice. Appellants’ affidavits show that one of them learned of the judgment November 1 and communicated the fact to the others, yet no motion was filed until November 14. Appellants make no explanation why they did not file their motion to vacate when they learned of the existence of the judgment instead of waiting two weeks. In Andrews v. Campbell, 94 Ill. 577, it appeared that the defendants’ attorney knew on the 10th that the default had been taken on the 9th but no motion was filed until the 17th. The court held that there was no abuse of discretion by the trial court in overruling the motion to vacate the judgment and order of default. Under the showing the court did not abuse its discretion in overruling the motion to vacate the judgment and order of default.

The judgment of the city court is affirmed.

Judgment affirmed.