text:
    The People of the State of Illinois, Defendant in Error, v. Charles Schell, Jr., Plaintiff in Error.
    Gen. No. 7,524.
    1. Criminal procedure — presumption -as to- truth of affidavit supporting motion for continuance. For the purposes* of passing upon a motion for a continuance in a prosecution for crime, the allegations of the supporting affidavits are to he taken as true.
    2. Criminal procedure — discretion of trial court in determining propriety of granting continuance. While in general a motion for a continuance is addressed to the sound discretion of the trial court under all the circumstances of the case, and its determination thereon will not he reversed unless plainly erroneous, the trial court may not deny such a motion where the ends of justice clearly demand that it he granted, and if it is made to appear thiat the court has abused its discretion, its ruling will he reversed.
    3. Criminal procedure — sufficiency of affidavit for continuance to show testimony of absent witness will tendi to establish meritorious defense. Where an affidavit for a continuance in a prosecution for an alleged violation of the Prohibition Act alleges that an absent witness, of whose presence at the next term of court affiant is reasonably sure, will testify to facts showing that the accused was decoyed into committing the alleged offense by agents of the State’s attorney, it was an abuse of discretion on the part of the trial court to deny the requested continuance.
    4. Criminal procedure — informality of supporting affidavit as ground for denying continuance where meritorious grounds shown. Where an affidavit for a continuance presents1 a meritorious ground for granting the same, the motion should not be denied because of merely formal defects in the affidavit.
    Error by defendant to the County Court of Henderson county; the Hon. Clinton M. Huey, Judge, presiding. Heard in this court ■at the October term, 1925.
    Reversed and remanded.
    Opinion filed April 5, 1926.
    Milford H. Olds and E. L. Moffett, for plaintiff in error.
    Harry C. Blackstone, State’s Attorney, for defendant in error; Charles E. Lauder, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

This case comes to this court by writ of error from 9 judgment of the county court of Henderson county upon a verdict of a jury finding plaintiff in error guilty of a violation of the Illinois Prohibition Act. It appears that he resided in the City of Burlington in the State of Iowa; that on the evening of October 9, 1924, he was arrested at a point in Henderson county, Illinois, about three miles east of the City of Burlington. He was riding in a Ford coupé and had in his possession five gallons of liquor. On the following day an information consisting of four counts was filed by the State’s attorney, and subsequently an amended information was filed charging in the first count the unlawful transportation of liquor, and in the second and third counts the unlawful possession thereof. At the November term, 1924, of the county court, the cause was continued on motion of plaintiff in error to the February term, 1925, at which time his motion for a continuance to the June term, 1925, on the ground of the absence of a material witness, was denied and the cause tried. Upon the trial the People elected to rely upon the first count of the amended information. After the return of the verdict motions for a new trial and in arrest of judgment were overruled and plaintiff in error was sentenced to the Illinois State Farm at Vandalia and also to pay a fine.

A number of reasons are assigned for reversal of this cause, the principal one being that the trial court erred in denying the application of plaintiff in error for a continuance. The affidavit for continuance made by plaintiff in error sets out affiant’s belief that he could not safely go to trial at that time on account of the absence of Bud Ditto, a material witness; that the witness was not absent by his procurement; that the facts which could be proved by the absent witness could not otherwise be proved; that the witness, if present, would testify to the facts therein set forth from his own knowledge and not from hearsay; that such facts were necessary in order to enable the defendant to show that he had no intention of violating a law of this State or even of entering the jurisdiction of this State and that he was induced into so doing only so that he could be entrapped and arrested by officers of the law of Henderson county; that he is not guilty of the matters and things laid to his charge in the information; that a subpoena had been issued for the absent witness and that he had not then been procured to attend the trail and testify; that affiant believes that if he be not required to go to trial until the next term that Bud Ditto will be present and give testimony at the next term; that he had been informed by Ditto’s wife that Ditto intended to return to that jurisdiction in May, 1925; and that he had promised to appear and testify to the truth of the statements thereinafter set forth. The affidavit further states that the said Bud Ditto, if present, would testify that on or about October 1, 1925, one Johnson came to Ditto, informed him that he was an officer of the law of this State and said: “We’ve got the goods on you and several others in this town for bootlegging and have had for some time, but we believe Charlie Schell is financing this ring and we want to get him before we make any arrests”; that Ditto talked with Johnson for some time and later Johnson told him that if he would induce Schell to go into Henderson county, Hlinois, and violate the Prohibition Law of Illinois so that Schell could be arrested therefor, Johnson would pay Ditto $50 and would give Ditto a chance to get away so that he could not be prosecuted for his own violation; that Ditto agreed to do so and was then paid the $50 by Johnson; that on October 7 Ditto went to affiant and asked him to accompany him to a certain schoolhouse in Henderson county, Hlinois; that Ditto met Johnson at the schoolhouse and, in affiant’s presence delivered liquor to Johnson, and Johnson then asked Ditto to deliver more at the same place on the night of October 10 at nine o’clock; that Ditto promised Johnson to deliver the liquor at that time; that Ditto on the morning of October 10 procured five gallons of intoxicating liquor and took it from Burlington, Iowa, and deposited it along the levee of the Mississippi River in this State; that Ditto then approached affiant and told him that he, Ditto, had been unexpectedly called out of town and could not keep his appointment with Johnson at nine o’clock that night and asked affiant if he would, as a personal favor to him, take the liquor to Johnson at the schoolhouse in Henderson county; that Ditto told affiant where the liquor had been deposited and affiant promised to deliver the liquor for him; that Ditto had no intent of leaving town and that he went to affiant on the morning of October 10 for the sole purpose of inducing affiant to go into Henderson county, Illinois, and obtain possession of the liquor so that affiant could be arrested therefor, and that the arrangement between Ditto and affiant was, on the part of Ditto, all in accordance with, and in furtherance of, the plan between Ditto and Johnson to entrap affiant in a violation of the Illinois Prohibition Act and for which Ditto had received $50 from Johnson; that Ditto never at any time received from affiant any financial assistance to violate the Hlinois Prohibition Act; that the application was not made for delay but that justice may be done. The sheriff admitted in his testimony that he had a man in his employ by the name of Johnson at the time of this arrest, and that he employed him in booze investigation. He also testified that he learned there was some liquor to be delivered at this schoolhouse that night two or three days before the arrest, and that he talked it over with aU three of the fellows who were there investigating, including Johnson.

The materiality of the testimony of the witness named in the affidavit and its vital importance to plaintiff in error is at once apparent. It is not against the policy of the law to find out whether offenses are being committed although it is done by artifice or deceit, such as the use of decoy letters, writing letters under an assumed name or furnishing money to secure evidence (People v. Hartford Life Ins. Co., 252 Ill. 406), where the criminal design and intent originated in the mind of plaintiff in error (People v. Smith, 251 Ill. 189). But an officer or prosecutor must not induce or solicit the commission of a crime by one who had no intent to commit it. (City of Evanston v. Myers, 172 Ill. 269; Grimm v. United States, 156 U. S. 604; People v. Peters, 265 Ill. 130.) In Love v. People, 160 Ill. 501, a defendant was prosecuted for a burglary in which he was induced to participate by a detective employed for the purpose of ferreting out lawlessness in the city of Momence. The detective planned the crime and with the consent of the owner of an office arranged for the safe therein to he burglarized and some money taken. The detective suggested the crime and induced the defendant to participate in it. The Supreme Court said: “To stimulate unlawful intentions for the purpose and with the motive of bringing them to maturity so the consequent crime may he.punished, is a dangerous practice. It is safer law and sounder morals to hold, where one arranges to have a crime committed against his property or himself, and knows that an attempt is to be made to encourage others to commit the act by one acting in concert with such owner, that no crime is thus committed. The owner and his agent may wait passively for the would-be criminal to perpetrate the offense, and each and every part of it, for himself, but they must not aid, encourage or solicit him that they may seek to punish.” The opinion further says on page 505: “Such means and agents are more dangerous to the welfare of society than are the crimes they were intended to detect and the criminals they were to arrest.” In the last cited case the fact that the owner of the property consented to the supposed crime had much to do with the decision of the court, but we regard the principles announced as applicable to the case at bar. In Billingsley v. United States, 274 Fed. 86, the trial court charged the jury: “Public policy forbids that officers sworn to enforce laws should seek to have them violated, and that those whose duty it is to detect criminals should create them. So that, when an officer induces a person, who has had no intention of committing a crime, to violate the law, courts will not lend their aid in punishing the person thus lured into crime.” The opinion in that case clearly states the law in relation to transportation of intoxicating liquors as well as to other crimes and cites United States v. Wight, 38 Fed. 106, 109; Woo Wai v. United States, 223 Fed. 412; Sam Yick v. United States, 240 Fed. 60; Grimm v. United States, 156 U. S. 604; People v. Liphardt, 105 Mich. 80, 84; Goode v. United States, 159 U. S. 663. The same statement of the law appears in Kelly on Prohibition, page 34. The law is that decoys are permissible to entrap criminals, not to create them. There is a wide distinction between inducing a person to sell liquor who is then engaged in that business and inducing one to enter the business for the purpose of prosecuting him. If the matters to which plaintiff in error in his affidavit for continuance claims the absent witness would testify are true and upon a consideration of a motion for a continuance, they must be taken as true, then it was the purpose of Johnson to induce the plaintiff in error to transport liquor from Iowa into Henderson county, Hlinois, and to commit an offense not contemplated by him, so that he might be prosecuted in the county where Johnson was a paid investigator. According to the affidavit the object sought was not to entrap a criminal already engaged in violating the law, but to create one for the purposes of a prosecution in Henderson county, Illinois. And it further appears from the affidavit that both trips of plaintiff in. error to the sehoolhouse in Henderson county were the result of the original design and plan to entrap him and both must be considered as a part of one transaction which resulted in his arrest.

While it is generally held that a motion for continuance is addressed to the sound discretion of the court under all the circumstances of the case, and the reviewing court will not reverse a judgment granting or denying a continuance, unless, such action is plainly erroneous, nevertheless, the discretion exercised by the court on an application for a continuance is a legal, not an arbitrary one, and is subject to revision. (4 C. J. Appeal and Error, sec. 2780.) A court cannot, therefore, refuse a continuance where the ends of justice require it, but if an abuse, of discretion clearly appears, its ruling will be reversed. (6 R. C. L. Continuances, page 546; 28 L. R. A. 721.) The affidavit is technically informal in some respects, but it does show that a subpoena was issued for the witness; that such witness was only temporarily absent from the jurisdiction of the court and that affiant had good reasons for his belief that he could procure the desired testimony at the next term. The affidavit states that the witness would testify to the facts therein set forth of his own knowledge and that he has promised to return to said county in May, 1925, and that he will appear and 'testify to the truth of the statements therein set forth. We do not regard the informalities in the affidavit sufficient for denying the application for a continuance. Where an affidavit for continuance charges that a prosecutor has promised to give an absent witness a chance to get away, the applicant should not be held to such a very strict showing of diligence and conformity to technical formalities. Where it is evident that the testimony of an absent witness would, if believed, constitute a good defense, courts will hesitate to overrule a motion for a continuance unless constrained to do so because of want of diligence or some other similar matter. We think plaintiff in error was deprived of a substantial, legal right, and that the trial court erred in denying the application for a continuance. The ends of justice require that a person charged with an offense shall hhve a reasonable opportunity to make his defense, and technical informalities should never be interposed to interfere with such rights. Other assignments of error are urged by plaintiff in error, but in view of what we have already said it is not necessary for this court to pass upon them.

The cause is reversed and remanded for the error in denying the application for a continuance.

Reversed and rema/nded.


source: Caselaw Access Project

author: Mr. Presiding Justice Jones

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Amel McClary and John Welk, alias Jack Welk, Plaintiffs in Error.
    Gen. No. 7,529.
    1. Intoxicating liquors — immateriality of ambiguity of allegation in mformatian respecting granting of permit by Attorney General where acts charged illegal without regard, to possession of permit. Since the possession., transportation and ¡sale of intoxicating liquors for beverage purposes is absolutely prohibited under all circumstances by the Prohibition Act, where an information charging such illegal possession, etc., by the defendants jointly, alleges that such possession, etc., was without a permit from the Attorney General, ¡such allegation is mere surplusage, rendering immaterial any possible ¿uncertainty created by the fact that the singular rather thart the plural form of the word permit was used.
    2. Jury — right to further interrogate juror after acceptance of last panel by both sides but before jury svXom. It was not error for the trial court to refuse to allow defendant in a prosecution for crime to further interrogate a juror after the last panel of four had been accepted by both sides, but not sworn, especially where it does not appear that good cause for the request was shown.
    3. Criminal procedure — harmlessness of, instruction touching credibility of witness in view of other instructions given. An instruction touching the credibility of a witness in a prosecution for crime which authorized the jury .to consider “any circumstances that tended to shed light upon his credibility,” erroneous because not limiting the “circumstances” to those shown by the evidence, held harmless in view of other instructions given in behalf of both parties.
    Error by defendants to the County Court of Kankakee county; the Hon. Henry Ft Ruel, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 5, 1926.
    E. P. Harney, for plaintiffs in error.
    Anker C. Jensen, for defendant in error.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

This is a criminal prosecution against the plaintiffs in error under the Prohibition Act. The information consists of four counts. The first count charges that plaintiffs in error on December 23, 1924, did unlawfully sell intoxicating liquor for beverage purposes within prohibition territory without having a permit from the Attorney General of the State of Illinois to sell said liquor or without being authorized by law so to do. The second count charges that plaintiffs in error on the same day did unlawfully possess intoxicating liquor for beverage purposes within prohibition territory with intent to sell liquor for beverage purposes without having a permit from the Attorney General of the state of Illinois to possess liquor or without being authorized by law so to do. The third count charges that the plaintiffs in error on said date did unlawfully sell intoxicating liquor to wit: one pint of whisky for beverage purposes within prohibition territory without having a permit from the Attorney General to sell said liquor or without being authorized by law so to do. The fourth count is like the first except that it lays the date as December 20, 1924. A trial was had before a jury and plaintiffs in error were found guilty. The verdict was a general verdict of guilty without specifying the count or counts on which they were so found guilty. After a motion for a new trial was denied, plaintiff in error Am el McClary was sentenced to pay a fine of $400 and costs, and plaintiff in error John Welk was sentenced to pay a fine of $100 and costs. They prosecute this writ of error.

Before the trial a motion to quash the information was made on the ground that it is uncertain, in that the words “a permit,” being singular, it is impossible to construe it as referring to both the parties charged and there is no way to apply it to one of the defendants rather than to the other.

We think that the allegation concerning a lack of a permit from the Attorney General was unnecessary and may be regarded as surplusage. For that reason it makes no difference whether the words “a permit” should be construed as singular or plural, or whether it referred to one or both of the defendants. The Illinois Prohibition Act prohibits the sale of intoxicating liquor for beverage purposes without exception or reservation. (People v. Hill, 239 Ill. App. 498.) But its sale for medicinal, mechanical and sacramental purposes is allowed, provided the seller has a permit from the Attorney General to sell. Since a sale of intoxicating liquor for beverage purposes is not authorized under any circumstances, an information or indictment charging a sale for beverage purposes need not aver that the sale was made without a permit from the Attorney General. Neither that officer nor any other officer has authority to grant a permit to sell intoxicating liquor for beverage purposes, and a permit to do so would be void under the Illinois Prohibition Act.

The rule announced in People v. Martin, 314 Ill. 110, and People v. Barnes, 314 Ill. 140, to the effect that the exceptions contained in the Prohibition Act must be negatived in an indictment or information, has application only to charges which do not allege that the intoxicating liquor was manufactured, sold, bartered, etc. for beverage purposes. Such uses of intoxicating liquor for beverage purposes are expressly prohibited. (People v. Barnes, supra.) The exceptions mentioned in section 3 [Cahill’s St. ch. 43, ¶ 3] have no reference to manufacture, sale, possession, etc. of intoxicating liquor for beverage purposes. They refer solely to liquor intended for nonbeverage purposes. There is no rule which requires a pleader to negative a condition unless that condition is an exception or proviso to the principal thing allowed or inhibited. The Prohibition Act contains no exceptions or provisos to its inhibition against the sale of intoxicating liquor for beverage purposes. In the Martin case, the charges were the possession of a still and the possession of intoxicating liquor. It will be readily seen that the acts were lawful or criminal depending entirely upon whether or not the defendant had brought himself under the exceptions and provisos of the statute. In the Barnes' case the defendant was charged with manufacturing, possessing and selling “certain intoxicating liquor.” Whether or not he had committed an offense under the law also depended upon the exceptions and provisos heretofore mentioned. It is obvious, that where the act charged may be lawful or unlawful depending upon the exceptions in the statute, such exceptions must be negatived, but where the act charged is always unlawful, there is neither necessity nor excuse for negativing anything. In our judgment the Supreme Court in People v. Tate, 316 Ill. 52, does not hold that a charge of selling intoxicating liquor for beverage purposes must also allege that the sale was without a permit from the Attorney General. It is true that the indictment in that case contained such an allegation, but the Supreme Court did not declare it to be an essential allegation.

We held in People v. Peiscz, 226 Ill. App. 363, that possession of intoxicating liquor is lawful or unlawful depending upon the circumstances of the particular case. And adhering to that rule, it is evident that where possession is charged to be with the intent to sell for beverage purposes, such possession is unlawful whether it is under a permit of the Attorney General or not. We think the motion to quash the information was properly overruled.

The trial court did not err in refusing to allow plaintiffs in error to further interrogate a juror after the last panel of four jurors had been accepted by both sides, but not sworn. The law seems to be settled that for good cause shown courts may discharge a juror even after he has been sworn (Ochs v. People, 124 Ill. 401); or, after being accepted by one side and tendered to the other, upon further examination by the side accepting him (Belt v. People, 97 Ill. 461); but after the panel of four jurors has been accepted by both sides and not yet sworn, neither party can as a matter of right peremptorily challenge any of them. (Mayers v. Smith, 121 Ill. 442.) It does not appear that good cause was shown to support their request.

The ninth instruction on behalf of the people relating to the credibility of witnesses told the jury it should consider, among other things, “any circumstances that tended to shed light upon his credibility” and continued: “Ton should determine the amount of credence to which each statement is entitled at your hands as reasonable and intelligent men.” A similar instruction was criticised in People v. Krauser, 315 Ill. 485 p. 517, but it is not clear that the instruction was condemned as reversible error. A number of other instructions were held erroneous. In People v. Thompson, 274 Ill. 214 p., 220, an instruction using the first phrase quoted above was said to be subject to the technical objection that it did not limit the term 11 any circumstances ’ ’ to circumstances shown by the evidence, and it was held that in view of the other instructions given for the prosecution and defense it could not have misled the jury into considering circumstances not appearing in evidence. We think the opinion in that case aptly applies to this case, and while the instruction is not accurate, still, in view of the other instructions given for both the People and the defendants, we believe the error was harmless.

The People’s second instruction is in the language of the first paragraph of section 3 of the Prohibition Act [Cahill’s St. ch. 43, ¶ 3]. When it is considered in connection with other instructions in the series, no error was committed in giving it.

The error complained of in the People’s tenth instruction did not injuriously affect plaintiffs in error. It is true it singled out the testimony of detectives, yet it warned the jury to subject it to severe scrutiny. The detectives were witnesses for the State and if the instruction tended to discredit their testimony, plaintiffs in error were not harmed by it.

The criticism of the People’s twelfth instruction is without merit because the language of the instruction conforms to the law where an alibi is relied upon as a defense. (People v. Robinson, 308 Ill. 398; People v. Gormach, 302 Ill. 332; People v. Pelinski, 293 Ill. 382.)

We find no reversible error in the record and the judgment of the county court is affirmed.

Judgment affirmed.


text:
    Owen Goodpaster, Appellee, v. Chicago, Milwaukee & Gary Railway Company, Appellant.
    Gen. No. 7,543.
    1. Process — leave of court as prerequisite to amendment of return after filing thereof. Amendment of a sheriff’s return after the filing thereof is ineffective unless made pursuant to an order of court authorizing the same.
    2. Process — effect of court authorisation to amend return upon prior unauthorised amendment thereof. Where it does not appear from the record that an order of court authorizing amendment of a sheriff’s return was intended to relate hack to and sanction a prior unauthorized amendment thereof, such amendment, being a nullity in its inception, so remained.
    3. Process — necessity of shoufing inability to serve president of corporate defendant before asking service by publication. Where neither the original return to a summons directed to a corporation, nor a purported amendment of such return, stated that the president of such corporation could not he found within the county, no foundation was laid for a subsequent service ¡by publication.
    4. Appeal and error — right to assign- error upon order sustaining demurrer to plea to jurisdiction as affected by subsequent plea to merits. The fact that a defendant, after the sustaining of a demurrer to his plea to the jurisdiction of the court, pleads to the merits of the action, does not effect a waiver of his right to assign error upon the order of the court sustaining the demurrer.
    5. Discontinuance, dismissal and nonsuit — impaneling of jury as prerequisite to entry of involuntary nonsuit. Where by replication to a plea of limitations the plaintiff set up that the present action was instituted within one year after he had suffered an involuntary nonsuit of a prior action, a demurrer thereto on the ground that such nonsuit was entered without the impaneling of a jury was properly overruled.
    6. Appeal and error — waiver of right to assign error upon overruling of demurrer to replication by filing rejoinder. Where following the overruling of a demurrer to the replication to a plea of limitations, such replication having set up the institution of the action within one year after submission to an involuntary non-suit of a former action, defendant filed a rejoinder alleging that the first action was not on the same cause of action as the second, it thereby waived» its right» to assign error upon the overruling of the demurrer.

      Appeal by defendant from the Circuit Court of Winnebago county; the Hon. Edward D: Shurtleff, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed April 5, 1926.
    Early & Early, for appellant; John Early, of counsel.
    Garrett, Maynard & Fell and Charles W. Ferguson, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

This is an appeal from a judgment obtained by appellee against appellant in the circuit court of Winnebago county in a suit for personal injuries sustained in a collision between an army truck, driven by appellee, and one of appellant’s trains at a highway crossing near the south end of Camp Grant on December 6, 1917. Two1 suits were instituted by appellee; the first one was, filed on April 2, 1919, and when it was called for trial a judgment of nonsuit was entered against appellee. The present suit was filed June 1, 1923. The sheriff’s return upon the summons in this case shows the defendant “not found in this county this 9th day of July, 1923,” though it was filed July 7, 1923. On July 9, 1923, without leave of court, the sheriff made this amended return: “I cannot find in this county any Clerk, Secretary, Superintendent, General Agent, Cashier, Principal, Director, Engineer, Conductor, Station Agent or any agent of the «Chicago, Milwaukee & Gary Railway Company on whom I can serve the within writ.” On September 5, 1923, on motion of the sheriff pro se, the trial court granted him. “leave to amend the return herein.” No amendment to the return other than the one of July 9 was ever made. On October 29, 1923, one of appellee’s attorneys made and filed an affidavit for publication and publication, was had four times in a newspaper, published in Winnebago county. Appellant filed its limited and special appearance and moved to quash the service for want of jurisdiction, but later it was granted leave to withdraw its motion, which it did; then it filed its special plea to the jurisdiction on the ground that the attempted service by publication was not in conformity with section 8, chap. 110, Rev. St. [Cahill’s St. ch. 110, ¶ 8], in that the return of the sheriff did not state that the president could not be found in Winnebago county. To this plea appellee demurred, which demurrer was withdrawn and appellee moved for a default of appellant. The court entered an order that “the motion to default the defendant for want of plea is allowed conditionally; defendant being ruled to plead, answer or demur within ten days from this day, otherwise the order of default to become permanent.” Thereupon appellant filed the general issue and a plea of the statute of limitations, to which latter plea appellee replied that he suffered an involuntary nonsuit in his first suit, and within one year thereafter began the present suit. A demurrer to this replication was overruled, and appellant then filed its rejoinder that the first suit was not the same cause of action as the second and hence the statute of limitations was a complete bar. A demurrer to the rejoinder was sustained. Thereupon the cause went to trial, and judgment was entered on the verdict in favor of appellee.

It is urged by appellant that the sheriff’s alleged amended return was an absolute nullity because it was made without leave of court on July 9, 1923, and the order of the court made on September 5, 1923, granting leave to amend the return was not a “mmc pro tunc” order; that it had no reference to the attempted amendment of July 9, 1923; and that the return was never amended at any time in pursuance of the leave obtained on September 5,1923. It is further contended that there was no return or affidavit sufficient to justify a notice by publication under the statute. In this connection it is claimed that the court never obtained jurisdiction of appellant and that the motion in arrest of judgment based upon errors on the face of the record should have been granted. The sheriff is allowed great liberality in amending his returns so as to remedy defects therein or make them conform to the truth of the case, but the matter of allowing amendments is within the sound discretion of the court and leave must always be first obtained; amendments made without leave are of no avail. (32 Cyc. “Process,” p. 538.) After the return is filed, it cannot be amended without leave of court. (21 R. C. L. “Process,” sec. 77.) Section 4, ch. 7, Rev. St. [Cahill’s St. ch. 7, ¶ 4], provides that all returns may be amended in the discretion of the court, as well before as after judgment. It is therefore obvious that the intent of the legislature was that an amendment can only be made by leave of the court. In this case no amendment was made after leave was granted on September 5, 1923. Until an authorized amendment is actually made, the document remains the same as if no leave to amend had been given. [Chicago, B. & Q. R. Co. v. Suta, 123 Ill. App. 125; Wisconsin Cent. R. Co. v. Wieczorek, 151 Ill. 579; Landt v. McCullough, 206 Ill. 214.) There is no suggestion in the record that the leave to amend obtained September 5, 1923, was intended to relate back to and sanction the unauthorized amendment of July 9, 1923, nunc pro tunc. The purported amendment by the sheriff was a nullity in its inception, and as it never received the sanction of the court at any time thereafter, it has always remained a nullity.

There is still another fatal objection to both the return and the purported amendment. Neither of them state that the president of the defendant corporation was not found in the county. Section 8 of the Practice Act provides that an incorporated company may be served with process by leaving a copy thereof with its president if he can be found in the county in which the suit is brought, and if he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, etc. Service must be had on the president, if he can be found in the county. If he cannot be found then it may be had on some other officer mentioned in the statute. (Cairo & V. R. Co. v. Joiner, 72 Ill. 520; Chicago Planing Mill Co. v. Merchants’ Nat. Bank, 86 Ill. 587; Norris Coal Mining Co. v. Beam, 223 Ill. App. 329; Adams & Pigott Co. v. Allen, 310 Ill. 119; Nelson v. Chicago, B. & Q. R. Co., 225 Ill. 197.) The return of the sheriff and the purported amendment thereto were both insufficient for the reason above pointed out. Service by publication upon an incorporated company is not authorized at all if its president can be found in the county where the suit is brought. A return that the president of the company is* not found in the county is indispensable to the right to give notice by publication under section 8 of the Practice Act.

The fact that appellee afterwards pleaded the general issue was not a waiver of this defect in service and did not give the court jurisdiction. Numerous authorities are cited but we think none of them are in point. Here the trial court conditionally defaulted appellant while its plea to the jurisdiction was still undisposed of. It was reversible error to require appellant to plead to the merits before this plea was disposed of. By pleading over under the rule of court, appellant did not waive its plea nor submit to the jurisdiction of the court. In Kamp v. Bartlett, 164 Ill. App. 338 p. 345, the court said: “Appellants were entitled to a trial by a jury upon the issues of fact raised by their plea to the jurisdiction of the court over their persons, and the court improperly required them to plead to the merits until such issues were determined. The order of the court requiring appellants to plead to the merits was equivalent to a judgment quod respondeat ouster, and the fact that in response thereto they pleaded over to the merits does not estop them from assigning for error the said judgment of the court.” The rule is, that where the defendant pleads over to the merits in response to a judgment quod respondeat ouster, he does not waive the right to assign for error the decision of the court in sustaining a demurrer to a plea in abatement. (Brotherhood of Firemen v. Cramer, 164 Ill. 9; Miller v. Grand Lodge of Brotherhood, 206 Ill. App. 241, p. 244; Butler v. National Live Stock Ins. Co., 200 Ill. App. 282.)

The trial court did not err in overruling its demurrer to appellee’s replications to the pleas of the statute of limitations. In Boyce v. Snow, 187 Ill. 181, a similar replication was held to set out facts which showed that an involuntary nonsuit had been entered. It is claimed that the impaneling of a jury is a necessary element in an involuntary nonsuit but we have been unable to find any authority to1 the effect that a jury must be impaneled before an involuntary nonsuit can be taken.

In Holmes v. Chicago & A. R. Co., 94 Ill. 439, p. 443, the court said: “A voluntary nonsuit is said to be an abandonment of a cause by a plaintiff, and an agreement that a judgment for costs be entered against him, but an involuntary nonsuit is where a plaintiff, on being called when the case is before the court for trial, neglects to appear, or where he has given no evidence upon which the jury could find a verdict.”

It is.' true that if the nonsuit was voluntary the demurrer should have been sustained, but in our opinion the replication sufficiently set up an involuntary non-suit and the demurrer was properly overruled. We also think that by pleading over appellant waived its demurrer. (Heimberger v. Elliot Frog & Switch Co., 245 Ill. 448; Warm v. McGoon, 2 Scam. 74.)

Because of the errors we have pointed out the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Boggs

text:
    Walter Liese, trading as Liese Lumber Company, Appellant, v. Ludwig Hentze, Emielie Hentze, Belleville Savings Bank et al., Appellees.
    1. Mechanics’ liens — service of notice by materialman upon one joint tenant as service upon other joint tenant. Where a husband and wife were joint tenants of premises, service of notice of the claim of a materialman for material supplied for the use of a contractor making improvements thereon, upon the husband only, formed no basis for the establishment of a lien in favor of the materialman as against the wife, although she may have been advised of the service upon her husband.
    2. Mechanics’ liens — omission to serve notice upon one of two joint tenants as affecting right to lien as against one served. The fact that notice of the claim of a materialman for material supplied for the use of a contractor making improvements upon premises owned by husband and wife as joint tenants was made upon the husband and not upon the wife did not preclude the establishment of a lien for the benefit of such materialman upon the interest of the joint tenant served, although forming no basis for a lien as against the wife.
    3. Mechanics’ liens — application of payment by contractor to materialman, to credit of property owner. Where the record, in proceedings to establish the lien of a materialman, shows that the only possible source of a payment made to the materialman by the contractor was a fund deposited by the property owner to the credit of the contractor, the court, in decreeing the lien, will credit the property owner with the sum so paid, although the materialman may not have known the source thereof at time payment was made.
    4. Payment — application of payment by court where rights of third parties involved. The rule as to the application of payments made without direction, where the rights of third parties are involved, is that the court will apply the payment as may seem reasonable and just.
    Appeal by plaintiff from the Circuit Court of St. Clair county; the Hon. Geokge A. Ckow, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed February 17, 1926.
    L. N. Nick Perrin, Jr., for appellant.
    P. K. Johnson, for appellees Ludwig and Emielie Hentze.
    Turner, Holder & Burlington, for appellee Belleville Savings Bank, trustee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

Appellees Ludwig Hentze and Bmielie Hentze, husband and wife, being owners of Lot Five (5) in Block Ten (10) of Twelve Oaks, in the City of Belleville, Illinois, as joint tenants and not as tenants in common, entered into a contract with one George W. Reinhardt to erect a dwelling house thereon. Shortly thereafter, Reinhardt applied to appellant to furnish the lumber and other materials to be used in the construction of said building. Liése furnished such lumber and materials as ordered by Reinhardt, up until November 26, 1923. The evidence shows that said lumber and material so furnished was used in the construction of said dwelling house, and that said dwelling constitutes a valuable and permanent improvement on said premises. The record also discloses that the fair cash market value of said lumber and material so furnished amounted to $1,212.96.

On November 3,1923, appellees Ludwig and Bmielie Hentze secured a loan of $4,000 from the Belleville Savings Bank, trustee, and gave as security therefor a mortgage on said premises. The whole of said $4,000 was deposited in said bank to the credit of Reinhardt, and out of said funds so deposited Reinhardt paid appellant $1,000. So far as the record discloses, no instruction as to the application of said sum. was given by Reinhardt to appellant. The evidence is to the effect that Reinhardt owed appellant on other contracts and on his personal account at said time, in excess of the $1,000 paid.

On? December 26, 1923, Ludwig Hentze was personally served by appellant with the following notice:

“To Mr. Louis Hentze, Caseyville Road, Belleville, III.

“You are hereby notified that the undersigned has been employed, and contracted with, by Geo. W. Reinhardt, to furnish said contractor, under his contract with you, certain lumber and various other kinds of building materials for the improvements, located on your property at

“Lot Five (5), Block Ten (10), Twelve Oaks Addition, Belleville, County of St. Clair, Hlinois, and that there is now due or to become due the undersigned therefor, the sum of Twelve Hundred, Twelve & 96-100 Dollars.”

Said notice was signed by appellant.

Thereafter, a mechanic’s lien petition was filed by appellant in the circuit court of St. Clair county, seeking a foreclosure for the lumber and materials so furnished. On the hearing, the court dismissed said petition. To reverse said order or decree, this appeal is prosecuted.

The first question to be determined is as to whether the notice served on appellee Ludwig Hentze is sufficient to subject said premises to a hen in favor of appellant for the materials furnished. It is the contention of appellant that inasmuch as appellees Ludwig and Emielie Hentze were the owners of the premises involved, as joint tenants and not as tenants in common, that service on Ludwig Hentze would be all that would be necessary to create a lien as to the interest ' of both Ludwig and Emielie Hentze in said premises.

We are of the opinion and hold that this contention is not well taken; that before the interest of appellee Emielie Hentze can be made subject to said lien, she must have been served with notice as provided by statute. The mere fact that she may have been advised by her husband that he had been served with such notice would not be sufficient. McPike v. Luer, 230 Ill. App. 271; Carney v. Tully, 74 Ill. 375; Haj v. American Bottle Co., 261 Ill. 362; Sykes Steel Roofing Co. v. Bernstein, 156 Ill. App. 500.

The next question involved on this record under the assignment of errors is as to whether the interest of appellee Ludwig Hentze became subject to a lien in favor of appellant by virtue of said notice so served on him. It is the contention of appellees that neither the interest of Ludwig Hentze nor of Emielie Hentze in said premises is subject to a lien in favor of appellant, and that in order to subject the interest of either of • said parties to such lien, notice must have been served on both of them; that the interests of both must be subject to said lien, or that neither can be, inasmuch as they are joint tenants and not tenants in common of said premises.

The mechanic’s lien statute provides, in effect, that whatever interest a party may have in the premises involved may become liable to a lien in favor of a contractor, subcontractor or materialman, if the steps provided for in the statute in reference thereto have been followed. There is no contention that the notice, so far as Ludwig Hentze is concerned, was not in proper form and was not given in proper time. This being true, we hold that the interest of said Ludwig Hentze is subject to a lien in favor of appellant for materials so furnished, so far as the same remains unpaid. This holding, we think, is supported by the Supreme Court in Lawler v. Byrne, 252 Ill. 194, and in Hacken v. Isenberg, 288 Ill. 589-593.

Lastly, the question arises as to whether or not appellee Ludwig Hentze is entitled to credit for the $1,000 paid by Reinhardt, the contractor, to appellant. The record specifically shows that the only funds Reinhardt had in said bank were funds placed to his credit by appellees Ludwig and Emielie Hentze, and that the $1,000 paid to appellant was paid out of said funds.

A court of equity, under circumstances such as these, will credit to the owner of the premises the amount so paid to the materialman, even though the materialman may not have known, at the time said fund was paid, from whom the contractor may have received the same. Clow & Sons v. Goldstein, 147 Ill. App. 571; Sioux City Foundry & Mfg. Co. v. Merten, 174 Iowa 332, L. R. A. 1916D 1247, 156 N. W. 367.

In Clow & Sons v. Goldstein, supra, being a mechanic’s lien case, and where the facts involved were of a similar character to those involved in this case, the court in discussing the same at page 574, says: “The general doctrine as to the application of payments undoubtedly gives the creditor the right, in the absence of a direction, to apply the credit according to his own selection, or the law in certain cases will apply it to the item first due. But a different doctrine obtains where the rights of third parties are involved. Then the law will apply the payment as may seem reasonable and just. Dehner v. Helmbacher Forge & Rolling Mills, 7 Ill. App. 47, and cases in that opinion cited. What is reasonable and just as applied to the facts of this case must determine our judgment. Some of the facts controlling on this point rest in the former dealings of plaintiff with Hoffman. It knew he bought its goods in the usual course of his business as a plumber, and that the purchases were for jobs he had in hand which necessitated the placing of its material in the buildings of third parties. At every purchase it was within the plaintiff’s power to ascertain from Hoffman the building in which he purposed to install the goods bought, the name of the owner, and all the particulars of the transaction; and when Hoffman made payments, plaintiff could, if it SO' desired, have discovered on whose account the money had been received, and apply it accordingly. No such effort was made by plaintiff, and while there was no legal obligation resting upon it to discover any of the conditions, nevertheless, when the rights of a party having no contractual relationship with a claimant is involved, he whose equity is the strongest must prevail. There can be no dissent as to where the equities lie in this case as between plaintiff and Goldstein. Defendants have plaintiff’s goods and plaintiff has received defendants’ money in payment. Not so paid and designated, but in fact so received. That is sufficient to discharge the lien claimed; although it in m> way affects the right of plaintiff to recover whatever may be due from Hoffman to it on any account.”

Following the holding in Clow & Sons v. Goldstein, supra, and the Iowa case, we are of the opinion and hold that appellee Ludwig Hentze is entitled to credit on said claim for the $1,000 paid, leaving the balance unpaid for principal, $212.96.

For the reasons above set forth, the judgment and decree of the trial court will be reversed and the cause will be remanded with directions to the trial court to enter a decree awarding appellant a mechanic’s lien on the interest of Ludwig Hentze in the premises involved, for the sum of $212.96, with interest thereon at 5 per cent per annum from the date of the last delivery of said materials.

Reversed and remanded with directions.


author: Mr. Justice Barry

text:
    The People of the State of Illinois, Defendant in Error, v. Peter McCoy, Plaintiff in Error.
    1. Criminal procedure — necessity for plea. A plea is essential to constitute an issue to be tried in a criminal case, whether the offense charged is a misdemeanor or a felony.
    2. Criminal procedure — motion in arrest as raising question as to want of plea. The question of the want of a plea by defendant in a criminal case is properly raised by a general motion in arrest of judgment.
    3. Criminal procedure — sufficiency of record to- show arraignment and plea before impaneling of jury. Amended record of the trial of a prosecution for crime, showing that defendant was furnished with a copy of the information, that the People announced that they were ready, that the court asked counsel for defendant if he was ready and if the court should fix the record, and that said counsel announced that he was ready, held not to show that there was an arraignment and plea before the jury was impaneled and that the court had merely failed to enter a plea of not guilty on the record.
    Error by defendant to the County Court of Jackson county; the Hon. Fred B. Herbert, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed February 17, 1926.
    L. R. Stewart, for plaintiff in error.
    John H. Searing, State’s Attorney and Fletcher Lewis, for defendant in error.
   Mr. Justice Barry

delivered the opinion of the court.

Plaintiff in error entered a motion in arrest of judgment, one of the grounds of which was that the court erred in proceeding with the trial of the case without an arraignment or plea. The motion was denied and and error is assigned on the ruling of the court in that regard. A plea is essential to constitute an issue to be tried in a criminal case whether the offense charged is a misdemeanor or a felony, as the matter of a plea is not a mere formality, and the question of the want of a plea is properly raised by a general motion in arrest of judgment. People v. Kennedy, 303 Ill. 423.

This case was tried and judgment rendered on February 19,1925. Five days later the court, on motion of the State’s Attorney, amended the record so as to show that on February 19, 1925, plaintiff in error was furnished with a copy of the information; that the Peo- • pie announced that they were ready; that the court asked counsel for plaintiff in error if he was. ready and if the court should fix the record, and that said counsel announced he was ready. The record, as amended, fails to show that there was, as a matter of fact, an arraignment and plea before the jury was impaneled, and that the court had merely failed to enter a plea of not guilty on the record.

In Parkinson v. People, 135 Ill. 401, the defendant was present in court and his counsel participated in the selection of a jury which was impaneled and sworn and a witness was sworn and partly examined, when it was discovered that there, was no arraignment or plea. The court then arraigned the defendant, who pleaded not guilty, and the trial proceeded without the jury being reswom. There was a verdict of guilty and a motion in arrest of judgment which was overruled. It was held that the court erred in overruling the motion.

There is no material difference between the situation in that case and the one at bar. Parkinson evidently led the court to believe that he was ready by participating in the trial until it was discovered that there was no arraignment or plea. In the case at bar the plaintiff in error did nothing more than did Parkinson. The judgment must be reversed and the cause remanded for want of a plea. For that reason it is unnecessary to consider the other errors assigned.

Reversed cmd remanded.


text:
    The People of the State of Illinois for use of Kaskaskia Commons Permanent School Fund, Appellant, v. Edward E. Mitchell, Appellee.
    1. Appeal and error — law of case on second appeal to Appellate Court. Upon appeal from a second judgment adverse to the People in an action of debt upon the bond of a State treasurer, based upon the alleged failure of such treasurer to invest the proceeds of the sale of the Kaskaskia Commons in “good first mortgages on real estate” pursuant to the requirements of Laws 1909, p. 425, the determination of the Appellate Court as to the duty of the treasurer under that statute is the law of the case for the second appeal, the court having reversed and remanded the first judgment in bar of the action which had been entered following the sustaining of demurrers to certain of the appellant’s replications.
    2. Debt, Action of — plea of nil debet. In an action of debt upon an official bond, a plea of nil debet is not good.-
    3. Debt, Action of — <burden of proof where issue joined on plea of nil debet. Where plaintiff in an action of debt on an official bond joins issue on a plea of nil debet, he thereby assumes the burden of proof as to every material averment of his declaration.
    4. Evidence — admissibility of testimony by corporation secretary as to corporate acts also evidenced by records not introduced. On an issue as to whether a corporation had effected a sale of certain bonds issued by it, testimony of the secretary of the corporation that such sale had been made was improperly excluded on the ground that the books and papers of the corporation were the best evidence of such sale, the witness having testified that he had knowledge of the facts, acquired as secretary of the corporation.
    5. Harmless and prejudicial errors — exclusion of competent evidence which would have required verdict for appellant. Where it was error to exclude certain evidence, and in the state of the record the admission thereof would have presented a case requiring the court to direct a verdict for the appellant, such error must be deemed ground for reversal.
    6. Officers and public employees — exclusion of evidence of demand in action on bond of state treasurer. It was not error, in an action of debt upon the official bond of a State treasurer based upon the investment of school trust funds in securities other than those permitted by statute, to exclude proof of a demand upon defendant for the return of the money, the averment and proof of such demand not being essential to the plaintiff’s case.
    7. Officers and public employees — propriety of refused ivr

      struction in action on bond of state treasurer. Requested instructions in an action of debt upon the bond of a State treasurer examined and held properly refused.
    8. Officers and public employees — propriety of requested instruction as to responsibility of State treaswer for invested trust funds, in action on official bond. Where the statute required a State treasurer, as custodian of a school trust fund, to invest the same in good first-class mortgages on real estate, a requested instruction, in an action upon the bond of such treasurer básed upon a loss alleged to have resulted from noncompliance with such statute, that the treasurer “was an insurer of the safety of the school fund and that he was required to safely keep and invest the same in the character and quality of securities authorized by statute, and to account for the same to his successor in office and that nothing except an act of God or of the public enemy in time of war would exonerate him for a failure to perform said duties,” held properly refused because not a correct statement of the law applicable to the case.
    Appeal by plaintiff from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed February 17, 1926.
    Edward J. Brundage, Attorney General, Sherman & Bainum, George P. Ramsey and Jesse E. Bartley, for appellant.
    John J. Healy and Charles E. Feirich, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.

This is an action of debt on the official bond of appellee as State treasurer. The statute [Laws 1909, pp. 425, 430] made it his duty, as such treasurer, to invest the ‘‘Kaskaskia Commons Permanent School Fund” in certain specific bonds or in “good first mortgages on real estate.” The United Flour Mills Company executed a trust deed on its real estate to the Continental and Commercial Trust and Savings Bank and Frank H. Jones, as trustees, to secure a bond issue of $500,000. At the time the trust deed was executed the bonds were not an actual indebtedness of the grantor, but were to be executed and placed in the hands of the said bank as trustee. $350,000 thereof were to be certified by said bank at once and delivered to the grantor, and the balance were to be held and issued from time to time for improvement purposes. The deed contained a provision that the property should be held for the equal pro rata benefit and security of the holders of the bonds, at whatever period the same may be issued, without preference or priority of one bond over another. The president and secretary of the grantor were authorized to immediately negotiate, sell, pledg-e or use $350,000 of the bonds to raise money for the use of the company and to pay its debts. By the terms of the trust deed there, was no actual mortgage indebtedness until some of the bonds were negotiated. Appellee invested $20,000 of the said school fund in 30 of the bonds aforesaid of the par value of $20,000.

The court sustained a demurrer to certain of appellant’s replications and rendered judgment in bar of the suit. Upon appeal to this court the judgment was reversed and the cause remanded. People v. Mitchell, 223 Ill. App. 8. We then held that the statute was intended to insure that the investment of the said school fund should be a first debt in priority of lien under the mortgage and not simply one of a number of the debts of the mortgagor, secured by a first mortgage, and of equal priority. In other words, that if other bonds secured by the trust deed were an equal lien with the bonds in question and were sold by the mortgagor, appellee had failed to invest the school fund in a “good first mortgage on real estate” as the law required. That opinion is the law of the case and is binding on this appeal. Worthy v. Birk, 224 Ill. App. 575.

When the cause was redocketed in the circuit court, appellant amended its declaration and appellee extended his pleas of nil debet, non est factum, performance and non damnificatus and withdrew all others. Issues were joined and it was stipulated that all evidence might be offered that would be admissible under special pleas properly pleaded. The plea of ml debet is not a good plea in an action of debt on an official bond, but if the plaintiff joins issue on such a plea he is bound to prove every material averment of his declaration. 1 Chitty Pl. 483; Price v. Farrar, 5 Ill. App. 536; Foster, v. People, 121 Ill. App. 165. As appellant joined issue on the plea of nil debet it assumed the burden of proof.

The recitals in the trust deed are not sufficient to show that at the time of its execution any of the bonds had become valid obligations of the grantor. They Were not to become binding until certified and negotiated. The United Flour Mills Company was a corporation under the laws of Minnesota and its principal office was in Minneapolis. William F. Kelm was the secretary of the company from the time of its organization until it ceased to do business. Appellant took the deposition, of Mr. Kelm for the purpose of showing that many of the bonds secured by the trust deed were sold. He' said that he was testifying from his own knowledge after refreshing his recollection by looking at an audit made under his direction and supervision and at a memorandum he had made. He was asked: “You may state, if you know, how many of the bonds were sold?” The question was objected to by appellee as without foundation, not the best evidence, calling for a conclusion, incompetent, irrelevant and immaterial. The objection was sustained. His answer was: “A, total of $391,500 bonds were issued; they were actually sold to the Continental and Commercial Trust and Savings Bank, $350,000; find $41,500 were in the treasury of the company at the time of the receivership, about $30,000 of this had been used as collateral to secure loans.” The court refused to allow the answer to be read to the jury. The witness was then asked: “On this proposition you are testifying from your knowledge of the matter?” And he. answered: “Yes, from my knowledge as secretary of the company.” Appellee then objected on the ground that the question was leading, suggestive, immaterial, incompetent and irrelevant. Although there had been no motion to suppress, the objection was sustained and the answer excluded.

Appellee, insists that the court did not err in excluding the answers aforesaid because the books and records of the corporation were the best evidence and should have been produced. The witness testified that he had an independent recollection of the facts and that he had been the secretary of the company since its organization. When it appears that a witness has a distinct and independent recollection of the matters of which he testifies, his testimony is not rendered incompetent under the best evidence rule by reason of the fact that he or some other person made a contemporaneous written memorandum of those matters which is not produced. 22 Corpus Juris 985. Where the matter to be proved is a substantive fact which exists independently of any writing, although evidenced thereby, and which can be. as fully and satisfactorily established by parol as by the written evidence, then both classes of evidence are primary and independent and parol evidence may be admitted regardless of the writing. 22 Corpus Juris 983-984.

It often happens that parol testimony as to a fact may be primary evidence although there is written evidence of the same fact. If the essential fact to be proved is not the contents of a written instrument, but an independent fact to which the writing is merely collateral or of which it is merely an incident, there is no reason for the application of the best evidence rule. Jones on Evidence, 203. A witness who has acquired his knowledge from looking at the waybills may testify as to where certain cars came from without the introduction of the waybills in evidence, since said instruments are merely memoranda and do not come within the best evidence rule. Wagner v. Chicago, R. I. & P. Ry. Co., 277 Ill. 114. The time at which trains should be run may be proved by oral evidence without producing the printed time-table. Chicago B. & Q. R. Co. v. George, 19 Ill. 510.

In an action on a note, the books of a banker showing entries made without the knowledge of the litigants are not proper evidence. They do not fall within any recognized class of written or documentary evidence. Barnes v. Simmons, 27 Ill. 512. A bank sold the property of a customer through a third party and received a written account of the sale. When the customer asked the cashier what the property sold for he was shown the account. It was held that the customer could testify as to the amount shown on the sales account without giving the bank notice to produce it and that such a paper is but the statement of a third party and is not regarded as an instrument which must be produced in evidence. First Nat. Bank of Decatur v. Priest, 50 Ill. 321. As a general rule the books of a corporation are not evidence against strangers. Chase v. Sycamore & C. R. Co., 38 Ill. 215.

The court erred in sustaining the objections to the questions propounded to the witness Kelm. Parol evidence was admissible to prove that the bonds were sold by the United Flour Mills Company. If the books of the company had been offered in evidence, and no witness testified to the sale of the bonds, appellee, no doubt, would have objected on the ground that the books were not competent evidence against him, but simply hearsay, and the objections would have to be sustained. After the exclusion of the testimony of the witness Kelm there was but little evidence before the jury tending to show that any of the bonds, had been sold other than those purchased by appellee. The witness Goddard testified that he sold some of the bonds for the Continental and Commercial Trust hnd Savings Bank, but that he could not recall the amount. After much questioning he finally said that his best recollection was that he sold more than $¡¿0,1)00 par value; that he sold $20,000 of them to the First National Bank of Carbondale. From the deposition of Walter J. Engle, which was excluded by the court, it appears that the bonds sold to the First National Bank of Carbondale were the same bonds which were after-wards purchased by appellee. The secretary of the Continental and Commercial Trust and Savings Bank testified that the amount of the bonds actually issued and secured by the trust deed was $391,500, but that he did not know how many of them were sold. Appellee brought out, on cross-examination of the witness, that the interest coupons on the several bonds, about which he testified, were paid to the several holders thereof until August 1, 1915. There was no other evidence that reached the jury tending to show the amount of the bonds sold.

In the state of the proof we cannot say that the verdict would have been the same if the excluded testimony of Kelm had been admitted. The exclusion of that evidence was reversible error. If it had been admitted it would have been the duty of the court, in the state of the record, to have directed a verdict in favor of appellant.

It was not necessary for appellant to aver or prove that a demand was made upon appellee for a return of the money. That being true, the court did not err in excluding proof of the demand. For some time after appellee purchased the bonds in question, the interest thereon was paid by the mortgagor. Appellant called a witness who testified that he had calculated the amount due on the bonds, and said it was $28,191.66. On motion of appellee his testimony was stricken. There was no reversible, error in that ruling. The court did not err in excluding the testimony of J. E. Mitchell. His testimony did not pertain to or throw any light upon the issues of the case.

Appellant argues that the court erred in refusing its eleven instructions. The first, second, third and seventh informed the jury that the trust deed was not a good first-class mortgage on real estate without regard to whether any of the other bonds secured thereby had, been sold or negotiated. The third also assumes the existence of facts instead of requiring the jury to find them from the evidence. The fourth assumes that the investment was not authorized by law. The fifth states a different measure of damages from that found in appellant’s, third given instruction. The sixth is based on evidence that was excluded, that, is, that $350,000 of the bonds had been sold. The eighth informed the jury that appellee was an insurer of the safety of the school fund and that he was required to safely keep and invest the same in the character of and quality of securities authorized by statute, and to account for the same to his successor in office and that nothing except an act of God or of the public enemy in time of war would exonerate him for a failure to perform said duties. We think this instruction is not a correct statement of the law applicable to this case. If appellee loaned the fund on a good first mortgage on real estate he had performed his duty under the law. The latter part of the ninth refused instruction is not based on the evidence and is confusing. The tenth is based partly on evidence that was excluded. The eleventh states a measure of damages in conflict with that in appellant’s third given instruction. We are of the opinion that the court did not commit any substantial error in refusing any of said instructions.

Appellee has assigned cross errors to the effect that the court erred in refusing to admit proper evidence offered in his behalf. The rulings, in that regard, were in line with what we said in our former opinion, which is the law of the case, and is binding upon this appeal.

The evidence which was offered by appellee and excluded by the court presented no defense to the action and was properly excluded. The judgment of the circuit court is reversed and the cause remanded for further proceedings.

Reversed crn-d remcmded.


author: Mb. Justice Babby

text:
    George C. Parks et al., Appellees, v. A. Ney Sessions et al., Appellants.
    1. Vent® — sufficiency of petition for change of venue on ground of prejudice and adverse interest of county judge. Where on proceedings to secure confirmation of an administrator’s sale of real estate to pay debts the purchasers of certain of such lands filed a petition, supported by affidavit, asking a change of venue because of the alleged prejudice of the county judge, alleging that a fair trial was impossible because the judge was a stockholder in a corporation which was appearing as an objector to the confirmation of the sale, and that he received a salary from such corporation, the court should have allowed the petition.
    2. Estates of nECEDENTS — sufficiency of showing for transfer to circuit court. Where on proceedings, to secure confirmation of an administrator’s sale of lands to pay debts the purchasers of lands at such sale, after the denial of their petition for a change of venue on the ground of prejudice of the county judge, petitioned for the transfer of the proceeding to the circuit court, alleging that said judge was a material witness as to matters touching objections to such confirmation and that he was interested therein in that he had a claim against the estate which had been allowed, it was mandatory upon the court to allow such transfer, in view of Cahill’s St. ch. 3, ff70.
    Appeal by defendants from the County Court of Union county; the Hon. Ernest S. Alden, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed February 17, 1926.
    Russell E. Townsend and Charles E. Feirich, for appellants.
    No appearance for appellees.
   Mb. Justice Babby

delivered the opinion, of the court.

In a proceeding by the administrator of the estate of Winstead D. Walton the county court of Union; county entered an. order for the sale of .certain real estate owned hy the deceased at the time of his death, to pay debts. The administrator advertised the premises for sale and at the sale appellants became the purchasers of certain tracts of land. The administrator filed his report, in the usual form, praying that the report he approved and that he he authorized to make, execute and deliver to the respective purchasers a deed for the premises so purchased hy them respectively. Objections were filed to the report of sale. Appellants filed their petition, supported by affidavit, for a change of venue, because of the alleged prejudice of the county judge. The petition also averred that appellants could not expect a fair trial because of such prejudice and because of the further fact that the county judge is a stockholder in the Alden’s Store Company, a corporation, one of the objectors to the approval of the sale, and that the said county judge draws a salary from said corporation. The court denied the petition and refused to grant a change of venue.

Appellants then filed another petition supported by affidavit asking the court to transfer the matter of the hearing on objections to said report of sale to the circuit court of Union county pursuant to the statute. This petition set up that the county judge was present during all the time the sale in question was in progress; that he heard and saw all that was said and done during the time and progress of said sale and that he is a material and necessary witness in the matter of the hearing upon the objections to the said report of sale ; that the said county judge is interested in said proceedings in that he has a claim against the said estate which has been allowed. The petition sets up other reasons hut it is not necessary to mention them.

Where the judge is a party or interested in the suit, or Ms testimony is material to either of the parties to the suit, or he is, related to or shall have been counsel for either party in regard to the matter in controversy, a change of venue may be awarded by the court in term time, with or without the, application of either party. Callaghan’s Ill. St. Ann. ch. 146, ¶ 1, clause 1.

In all cases or matters pending in the county court, where the judge of that court shall be interested in the same, or is a material and necessary witness, the case shall be transmitted to the circuit court of the proper county, and there determined as in the county court; and the papers, with the order or judgment of the circuit court thereon, shall be duly served and filed in the county court, and have the same effect as if determined in the county court. Callaghan’s Ill. St. Ann. ch. 3, ¶ 70.

Where it appears that the county judge was interested as a material witness in an application to sell real estate to pay the debts of a decedent, the statute is imperative that the case be transferred to the circuit court and there determined, and such transfer is deemed to have been made by operation of law. Roberson v. Tippie, 126 Ill. App. 579. See also Graham v. People, 111 Ill. 253.

When the petition for a' change of venue was presented the court should have allowed it, but, having failed to do so, when the second petition was presented the matter of the hearing of the objections to the administrator’s report of sale should have been transmitted to the circrnt court of UMon county in accordance with the provisions of the statute. The order of the county court disapproving the sale is reversed and the cause remanded with directions to transmit the matter to the circuit court of Union county for a hearing upon the objections to the report of sale.

Reversed and remanded with directions.


text:
    Charles P. Cote, Appellant, v. Louis Landau, Jr., Appellee.
    1. Landlord and tenant — validity and effect of stipulation waiving demand for overdue rent and possession, and notice of election to declare forfeiture. A stipulation in a lease that upon default of rent for 15 days the landlord might at his election reenter and repossess the premises, the tenant waiving demand for rent and for possession and notice of election to terminate lease, held valid and binding upon the tenant.
    2. Landlord and tenant — < forfeiture for nonpayment of rent under lease waiving compliance with statutory requirements as to demand and notice. Where a lease stipulated that upon default of rent for 15 days the landlord might at his election reenter and repossess the premises, the tenant waiving demand for rent and for possession, as well as for notice of election to terminate the lease, the landlord was entitled to maintain an action for recovery of the premises after service of written notice of his election to forfeit the lease, notwithstanding he accepted payment of the overdue rent after giving such notice, the tenant having waived his rights under Landlord and Tenant Act, secs. 8, 9, Cahill’s St. ch. 80, flf 8, 9.
    3. Landlord and tenant — acceptance of past due rent after notice of forfeiture for nonpayment as waiver of right to enforce forfeiture. Acceptance of past due rent by a landlord after he has declared a forfeiture of the lease for the nonpayment thereof does not effect a waiver of his right to enforce the forfeiture, especially where the lessee has had written notice of the declaration of forfeiture.
    4. Landlord and tenant — making of repairs required by order of state fire marshal as suspending liability for rent. Where the operator of a moving-picture theater on leased premises was notified by the State fire marshal that certain defects in the building must be corrected, but there was no agreement between the parties that rent should cease while repairs were in progress, the tenant was not relieved of liability therefor in accordance with the terms of the lease.
    Appeal by plaintiff from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed February 17, 1926.

      Ernest C. Dodge and Faulkner & Moore, for appellant.
    J. B. Harris, for appellee.
   Mr. Justice Barry

delivered the opinion of the court.

Appellant sued to recover possession of certain premises in Granite City and the verdict and judgment were in favor of appellee. It was stipulated in the lease that, upon a default in the payment of rent for 15 days after it was due, appellant might at his election re-enter and repossess the premises, and appellee expressly waived any demand for rent and for possession, as well as notice of appellant’s election to declare the lease at an end. The rent was due on the first day of each month. For a time it was not paid promptly, and on December 19, 1923, appellee was notified in writing that thereafter the rent should be paid at the times specified in the lease.

Appellee did not pay the rent for April, May and June, and on June 27,1924, appellant served him with written notice that he had elected to forfeit the lease and would take possession of the premises on July 1, 1924. On the day after the notice was served appellee paid the rent that had previously accrued and the same was accepted by appellant. The July rent was tendered on July 1, but appellant refused to receive it and this suit was begun on July 19..

Appellee insists that the acceptance of the overdue rent was a waiver of the forfeiture which had been previously declared. There would be some force in that contention were it not for the stipulations in the lease, in the absence.of which, appellant would have been required to comply with sections 8 and 9 of the-Landlord and Tenant Act [Cahill’s St. ch. 80, ¶¶ 8, 9], in which event, appellee could avoid a forfeiture by paying the rent within the time mentioned in said sections. But the parties had a lawful right to contract as they did, and appellee is bound by the terms thereof. Espen v. Hinchliffe, 131 Ill. 468.

The rent accepted by appellant was all due long before he declared a forfeiture of the lease and was paid after appellee had written notice of the forfeiture. The law is well settled that the acceptance of past due rent under such circumstances is not a waiver. Johnson v. Feilchenfeld, 191 Ill. App. 168; Bleecker v. Smith, 13 Wend. (N. Y.) 530; Morrison v. Smith, 90 Md. 76, 44 Atl. 1031; Pendill v. Union Mining Co., 64 Mich. 172, 31 N. W. 100; Lindeke v. Associates Realty Co., 146 Fed. 630; 24 Cyc. 1362; 18 Amer. & Eng. Encyc. (2nd Ed.) 387; Underhill on Landlord and Tenant, p. 648.

The premises in question were used as a moving-picture theater and in the latter part of April the State fire marshal gave the parties written notice that certain defects in the building would have to be corrected within 30 days. The work was begun about April 27 and finished about June 25. On April 19 appellee wrote appellant that the State fire marshal had called on him and told him that certain changes in the building would have to be made. In that letter appellee stated that he would pay no more rent until the defects were corrected. There was no agreement that rent should cease while the improvements were under way. Appellant says that he asked appellee for the rent twice between April 1 and June 27, and it is admitted by appellee that one of such requests was made.

The question as to whose duty it was to repair the building is not material. The fact that repairs were to be made did not relieve appellee of his duty to pay the rent stipulated in the lease when due according to its terms. Rubens v. Hill, 213 Ill. 523. There was no evidence tending to show that there was a waiver of the forfeiture and the court erred in submitting that question to the jury. Appellee presented no defense to the action and the court should have directed a verdiet in favor of appellant. The judgment is reversed and the cause remanded.

Reversed cmd remanded.