author: Mr. Justice Allaben

text:
    In re Guardianship of Robert M. Lutz, a Minor. John P. Lutz, as Guardian of Robert M. Lutz, a Minor, Appellee, v. Eugene E. Fayart and Louis E. Fayart, Trading as Fayart and Son, Appellants.
    Gen. No. 8,885.

      Heard in this court at the January term,’1935.
    Opinion filed April 12, 1935.
    Rehearing denied July 8, 1935.
    Brown, Hay & Stephens, of Springfield, for appellants ; Logan Hay, Paul W. Gordon, Leigh M. Kagy and Charles G. Briggle, Jr., all of Springfield, of counsel.
    Hoopes & Pefferle, of Springfield, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.

On and prior to October 1, 1925, Cora C. Lutz was the duly appointed guardian of Robert M. Lutz. At that time appellants, Eugene E. Fayart and Louis E. Fayart were, and ever since have been, partners, engaged in the real estate loan business, lending money upon real estate mortgages. On October 1, 1925, 20 promissory notes, each in the principal sum of $1,000, payable to the order of Eugene E. Fayart were executed by Mary J. Travers and William L. Travers, payable five years after date. To secure said notes the promisors executed a mortgage on an apartment building located in Springfield, Illinois, appraised at $41,200. On October 8, 1925, Cora C. Lutz, as guardian, purchased five of the 20 $1,000 notes, executed by the Travers, from the Fayarts, and the notes were im dorsed by Eugene E. Fayart, the payee, without recourse. Appellants knew they were dealing with a guardian and that the money used to purchase these five $1,000 notes was the property of Robert M. Lutz, a minor. The investment of $5,000 of her ward’s money in the Travers mortgage notes was reported to the probate court of Sangamon county in three annual reports filed in said probate court. All three reports were approved by said court, but no other approval of the investment or authorization to make the same was secured from said court. All interest .was paid to April 1,1930. When the principal notes matured October 1, 1930, they were not paid nor was the interest thereon paid, nor has anything been paid thereon since. At the request of appellants all of the notes were deposited with appellants to enable them to institute foreclosure proceedings. A bill was filed by Eugene Fayart and resulted in a decree and sale. At the master’s sale the property was purchased by Eugene E. Fayart and a master’s certificate of purchase issued to him. The notes were used to make up the purchase price, and no cash was advanced except for costs of suit, master’s fees, commissions, and solicitors’ fees, which were advanced by Eugene E. Fayart. A receiver was appointed and the net rents were used to reimburse Eugene E. Fayart. No assignment of the mortgage was ever made, the legal title at all times being in Eugene E. Fayart. A master’s deed was executed which ran to Eugene E. Fayart, individually. Thereafter a trust agreement was executed by all the noteholders, except Cora C. Lutz, as guardian, for the purpose of showing the trust upon which Fayart held the title for the benefit of the noteholders. Cora C. Lutz resigned as guardian and John P. Lutz was appointed as successor guardian. He is now the qualified and acting guardian. The property in question was worth at the time of trial approximately one-half of the mortgage notes.

This suit was instituted in the probate court on petition of John P. Lutz as guardian of Robert M. Lutz, a minor, for citation against Eugene E. Fayart and Louis E. Fayart, doing business as Fayart and Son, to show cause why they should not refund the $5,000 belonging to Robert M. Lutz, a minor, and used to purchase the notes heretofore mentioned. The probate court held that the appellants were indebted to Robert M. Lutz and ordered that said sum be turned over to John P. Lutz, as guardian together with interest at six per cent compounded annually from April 1, 1930.

From this decision Eugene E. Fayart and Louis E. Fayart perfected an appeal to the circuit court of Sangamon county. After a full hearing on the petition of John P. Lutz in the circuit court, the facts being stipulated in accordance with the facts heretofore recited, the circuit court ordered and decreed that Eugene E. Fayart and Louis E. Fayart jointly and severally were ordered and directed forthwith to pay and deliver to the petitioner, John P. Lutz, as guardian of Robert M. Lutz, a minor, the principal sum of $5,000 with interest thereon at the rate of six per cent per annum, compounded with annual rests from the 1st day of April, 1930, to this date, in the total aggregate amount of $6,495.42 and costs, and that in default of such payment within 30 days execution should issue. From this order, entered September 28, 1934, appellants have appealed to this court.

Appellants maintain that the order of the circuit court was erroneous because the court held that the investment by the guardian in five of the 20 Travers notes all equally secured by a single first mortgage was not a legal investment for the guardian to make; and that the statute requires the guardian to apply to the probate court to make an investment before it is actually made.

Minors are the wards of the court, and it has ever been the policy in this State to protect their rights with zealous care. For the same reason our legislature has seen fit to limit with particularity the kind and character of ^investments which a guardian may make of the funds of a minor, and to further provide the safeguards of the supervision and approval of the probate court in the making of all investments. For the purposes of considering the question presented in this case it is proper at this time to set forth the provisions of the statute to which special attention should be directed. Cahill’s St. ch. 64, U 22 (chapter 64, Smith-Hurd Illinois Revised Statutes 1933, section 22, entitled “Investment of Ward’s money”) reads in part as follows: “ ... It shall be the duty of the guardian to put and keep his ward’s money at interest upon security to be approved by the court. . . . Loans upon real estate shall be secured by first mortgage thereon and not to exceed one-half the value thereof. No mortgage loan shall be made for a longer time than five years nor beyond the minority of the ward: Provided, the same may be extended from year to year without the approval of the court.”

The question that is presented here is whether or not the purchase by a guardian of five of the 20' notes secured by the mortgage in question constituted a loan secured by a first mortgage as contemplated by the legislature. In this connection it should be borne in mind that the mortgage ran to Eugene E. Fayart, that same was not assigned by him but was held by him in his own name. The guardian never had the mortgage and the provisions of the same relative to foreclosure in case of default in payment of either principal or interest are not before this court. This matter was given consideration in the recently decided case entitled In re Estate of Sargent, 276 Ill. App. 312. In that case a conservator purchased a note for $1,500 which was a part of a series of notes for the total amount of $12,000, which were secured by a farm mortgage; also a note for $2,000 which was part of another farm mortgage loan in the total amount of $18,000. The duties of a conservator in making investments are set forth in Cahill’s St. ch. 86, if 18 (Smith-Hurd Illinois Revised Statutes 1933, ch. 86, section 18), and are substantially the same as the provisions of the statute concerning the limitations under which guardians shall make investments, heretofore set forth, so far as the provisions as to investments in real estate are concerned. In this case the Appellate Court of the Second District held that the conservator had no right to invest the funds of his ward in these notes as they were not secured by a first mortgage on real estate, and that an investment of money by the conservator in notes secured by a mortgage which gives other notes an equal lien is not an investment in a good first mortgage as contemplated by our statute. In the Sargent case is cited the case of People v. Mitchell, 223 Ill. App. 8. In the Mitchell case the State treasurer held funds derived from the sale of the Kaskaskia Commons and was directed by statute to invest these funds in certain specified bonds which we will not set out because not involved, “or good first mortgages on real estate.” The treasurer did invest funds in 30 bonds which were a part of a series of bonds secured by a first mortgage or trust deed on certain real estate. The same contentions were raised in that case as were raised in the present case, and the court said: “In our opinion the statute in question only permits the investment of these funds in notes secured by a mortgage on real estate which gives those notes, and those notes only, a first lien on that real estate, and the investment of the same in notes secured by a first mortgage which gives to other notes an equal lien is not an investment under a ‘good first mortgage’ as contemplated by the act of 1909.”

Counsel for appellants try to draw a distinction between the statute in the Mitchell case, and the statute in the Sargent case, and the one under consideration in this case in regard to guardians. We fail to follow them in their reasoning and it appears to us that in all three cases the legislature intended that the investment in loans upon real estate, whether made by a guardian, a conservator, or the State treasurer in handling the special funds derived from the sale of the Kaskaskia Commons, must be secured by a mortgage or trust .deed which is a first lien and securing solely the evidence of indebtedness held by the guardian, conservator or State treasurer. No case is cited to us which holds to the contrary. We, therefore, hold that the investment in question was not a proper investment for the guardian to make of her ward’s funds. It was admitted by the stipulation that the appellants knew that Cora C. Lutz was acting as guardian and was investing the funds of her ward at the time said investment was made, and we, therefore, affirm the finding of the court that the appellants should be required to refund to the petitioner the amount of the investment, together with compound interest from the date when the last interest payment was made.

Appellants complain that the circuit court committed error in holding that the statute required the guardian to apply to the probate court for authority to make the investment before it was actually made. An inspection of the order shows that the court did not so hold, but did hold that because Cora C. Lutz as guardian reported said investment to the probate court in three annual reports which were approved by said court, but did not otherwise report said investment and otherwise procure any approval of said investment from said court, she did not comply with the statute and that the investment never was approved by the probate court in accordance with the statute. Under the provisions of the statute heretofore set forth it is provided that the guardian shall keep his ward’s money at interest upon security to be approved by the court. In construing this section our Supreme Court, in Hayes v. Massachusetts Mut. Life Ins. Co., 125 Ill. 626, said: “Under the provisions of that section, as under this, in order to legalize the act of the guardian, and render it binding upon the ward, the approval of the court was required, and the provision here involved must be held to be mandatory.” It is not mandatory that the approval be had before the loan is made, but it is mandatory it be approved by the court. It is true that three times the guardian filed annual reports reporting the investment in question to the probate court of Sangamon county, and that said three annual reports were approved by that court. However, the mortgage was never exhibited to the court for consideration because it was never in the possession of the guardian, and if it had been exhibited to the court it would have shown it was in the name of Eugene E. Fayart. We think it clear that the annual reports contemplated a production in the court of the securities held,, and as that could not have been done in this case we are constrained to hold in accordanee with the finding of the trial court that the investment in question was never approved hy the probate court of Sangamon county in accordance with the statute. Appellants cite Bruner v. Estate of Wolford, 356 Ill. 514, as holding directly to the contrary. In our opinion the facts are entirely different and not applicable to the case at bar.

Appellants in their reply brief attempt to raise some question as to the propriety of this form of action. Inasmuch as the question was not raised in the trial court, or in appellants’ original brief, or in their errors relied upon, it is not properly before this court. In conclusion appellants insist that the practice of approving investments of this character has been common over a long period of years throughout the State of Illinois. There is no evidence of this in the record, but if it is true it is time the practice is stopped, and the statute complied with. It certainly furnished no excuse for this court to acquiesce in the practice at this time.

For the reasons hereinabove set forth the order entered by the circuit court of Sangamon county on September 28, 1934, ordering and directing Eugene E. Fayart and Louis E. Fayart jointly and severally forthwith to pay and deliver to the petitioner, John P. Lutz, as guardian of Robert M. Lutz, minor, the principal sum of $5,000, with interest thereon at the rate of six per cent per annum, compounded with annual rests from the 1st day of April, 1930; that is to say, in the total aggregate amount of $6,495.42 and costs, and that in default of such payment within 30 days execution issue, is hereby affirmed.

Order affirmed.


source: Caselaw Access Project

author: Mr. Justice Davis

license: Public Domain

text:
    Peter E. Whalen, Appellee, v. Twin City Barge and Gravel Company, Appellant.
    Gen. No. 8,893.

      Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Rehearing denied July 8, 1935.
    Hodges & Tragethon, of Springfield, for appellant.
    Green & Verlie, of Alton, for appellee; Karl King Hoagland and John F. Sohlaflt, Jr., of counsel.
   Mr. Justice Davis

delivered the opinion of the court.

On May 25, 1934, the plaintiff, Peter E. Whalen, filed a complaint at law in the circuit court of Scott county against the Twin City Barge and Gravel Company, a corporation, to recover damages for personal injuries alleged to have been sustained by him through the negligence of said defendant.

On said day a summons was issued by the clerk of said court requiring said defendant to appear on the third Monday of June, 1934, or in the event said defendant was served less than 20 days prior to said date it was required to appear, on the first Monday of July, 1934, and file its answer, or otherwise make its appearance, and which summons was placed in the hands- of H. C. Montgomery, sheriff of said county, to serve; upon the back of which summons appears the return of said sheriff, dated May 25, 1934, certifying that he could not find any officer or agent of said defendant corporation, the Twin City Barge and Gravel Company, in said Scott county.

On said same day there was also issued by the clerk of said court in said cause a summons, returnable at the same time and place, and given to J. W. Jacobs, sheriff of Adams county, for service; and upon the back of which summons appears a return by said sheriff showing service upon C. T. Welsh, as president of the Twin City Barge and Gravel Company, a corporation, on June 8, 1934.

The complaint contains four counts, and by paragraph 1 of each count alleges, by reason of the Act of Congress of June 5, 1920, U. S. C. Title 46, sec. 688, the circuit court of Scott county had jurisdiction of the cause of action although, it arose out of a transaction on navigable waters of the United States. In succeeding paragraphs it was alleged that the plaintiff was in the employ of the defendant and was working under the direction of the defendant on the waters of Illinois river, a navigable river, in the vicinity of Naples, Scott county, Illinois; that the defendant owned a dredge boat which was anchored on the waters of the Illinois river near Naples, and that the defendant by its officers and agents ordered the plaintiff to slacken a certain steel anchor line, attached to a certain capstan, which is a part of said dredge. Each count of said complaint then sets forth certain acts of negligence and alleges that as the direct and proximate result of said acts of negligence the plaintiff was injured.

On July 6, 1934, the defendant was called and defaulted and the cause was called for trial,-and the court found the issues for the plaintiff and assessed his damages at $10,000, and judgment was rendered in favor of the plaintiff and against the defendant for said sum of $10,000 and costs of suit.

On July 20, 1934, and being at the first session of said court after the entry of said judgment, the defendant filed and presented its motion in said cause to set aside and vacate said judgment and for leave to plead, and filed affidavits in support thereof. On July 24, 1934, said motion was heard by the court and taken under advisement and on August 24, 1934, was overruled and denied.

On September 7, 1934, the defendant filed an additional motion and affidavit in support thereof setting forth meritorious defenses which it was alleged it could establish upon a trial upon the merits of said cause, and praying that the court vacate said judgment entered during the same term of court and that the order denying a vacation of said judgment be vacated and that the defendant be granted leave to plead to the merits, which motion was denied by the court.

On September 27, 1934, appellant filed its notice, of supersedeas by order of the circuit court. Said notice specified that an appeal was taken from the order of default, finding and judgment entered in said cause on July 6, 1934; from the orders denying the motions to vacate and set aside said judgment and for leave to plead, entered August 24, 1934, and September 7, 1934. Defendant prayed that the order of default, finding and judgment assessing damages be vacated and set aside, and that the orders of date on August 24, 1934, and September 7, 1934, denying motions to vacate said judgment, be set aside.

The errors relied upon for a reversal of the judgment and orders denying motions to vacate are set forth by appellant in its brief, not all of which are supported by citation of authorities or argument by appellant.

We will first consider the error assigned to the action of the court in overruling* the motion of appellant filed on September 7, 1934, in which further meritorious defenses were set forth. The judgment by default was entered on July 6, 1934, and appellant contends that the motion having been made at the same term of court at which judgment was entered the court had jurisdiction to entertain said motion.

No rule of practice was better settled than that a court retained jurisdiction of the parties and subject matter of the suit until the end of the term of court, and a judgment did not become final or pass beyond its control until that time; such is not the law, since, under the provisions of the Civil Practice Act, terms of court are no longer the basis for fixing the time for doing any act or the taking of any procedural step. By an act of the General Assembly, approved June 21, 1933, in force January 1, 1934, Cahill’s Bev. St. Í933, ch. 110, H 268, 269 (Smith-Hurd Bev. St. 1933, ch. 77, secs. 82, 83), it is provided that all judgments of any court of record in any civil or criminal proceeding* shall have the same force and effect as a conclusive adjudication upon the expiration of 30 days from date of its rendition, as under the law heretofore in force it has had upon the expiration of the term of court at which it was rendered, and such judgment may be. modified, set aside or vacated prior to the expiration of 30 days from the date of its rendition, wherever under the law heretofore in force it might have been modified, set aside or vacated prior to the expiration of the term of court at which it was rendered.

More than 30 days having elapsed from the time of the rendition of the judgment and the filing of the additional motion on September 7, 1934, the court was without jurisdiction to entertain the same and for that reason committed no error in denying said motion.

It is insisted by appellant that the court erred in overruling defendant’s first motion to vacate the judgment and for leave to plead.

Section 50, par. 7, of the Civil Practice Act, Cahill’s St. 1933, ch. 110, If 178, being almost in the exact language of section 58 of the Practice Act of 1907, we can be guided by the decisions of our courts in construing that section.

Motions to set aside a default and for leave to plead are addressed to the sound discretion of the court, and courts of review will not interfere except in cases of abuse of such discretion, and the party seeking to have a default set aside must show that he acted with due diligence to protect his rights and that he has a meritorious defense. A default will not be set aside if he or his attorney has been guilty of negligence. Farmer v. Fowler, 288 Ill. 494; Nitsche v. City of Chicago, 280 Ill. 268; Eggleston v. Royal Trust Co., 205 Ill. 170; Cooper v. Handelsman, 247 Ill. App. 454; Plaff v. Pacific Express Co., 251 Ill. 243.

In support of its motion to set aside said default and to show to the court that it acted with due diligence under the circumstances, although it failed to enter its appearance in said cause in writing by filing a pleading or motion stating an address where service of notice might be made upon it, or its attorneys, as required by sec. 20 of the Civil Practice Act, it filed affidavits of its attorneys and of an attorney of the Maryland Casualty Company, its compensation carrier.

From the affidavits it appears that the firm of Hodges and Tragethon were attorneys for the defendant, who with the Maryland Casualty Company were respondents in a proceeding before the industrial commission commenced by plaintiff to recover compensation growing out of the same state of facts upon which this suit is based; after this suit was filed on May 25, 1934, one of said attorneys went to the office of the circuit clerk and secured a copy of the complaint, and being informed that no appearance cards were in use in said court he wrote the name and address of his firm and the date, June 14,1934, on the inside cover of said file; on June 19,1934, he was informed that a continuance was desired by Greene & Verlie, attorneys for petitioner, of the hearing of said industrial case which was set for July 12, 1934, and also received a copy of a letter written by said casualty company in which Greene & Verlie were informed that the firm of Hodges & Tragethon had been employed to represent respondents, and that all further communications in the case should be addressed to them; that several conferences were held between the plaintiff, his representatives and friends and representatives of respondents relative to the adjustment of said claim and cause of action and the method to be employed and the question as to whether the action would be brought before the commission or by a common law remedy; it was alleged that respondents and their counsel were led to believe and in good faith did believe that said claim would be prosecuted solely before the industrial commission; that the attorneys for plaintiff knew that said firm represented respondents, but that no notice of any kind was given the defendants of any proposed hearing or of any application for a default; that on July 7, 1934, they learned of said default and also learned that court would be in session on July 24 for the first time after said default was taken; that their failure to answer on return day was based upon the belief that in view of the circumstances alleged that such procedure would prove useless; that the defendant has a complete and meritorious defense to the claims of plaintiff.

It appears from a counter-affidavit of one of the attorneys for plaintiff that he personally handled the claim of the plaintiff before the industrial commission and also that on May 25, 1934, he filed the complaint in the circuit court of Scott county against the defendant and that he had no knowledge that the firm of Hodges & Tragethon represented said defendant in this suit at law, and that prior to July 6, 1934, the clerk of the circuit court of Scott county or any one else never informed him that said firm represented the defendant, and that he had no knowledge or notice who-the defendant’s attorneys were in said lawsuit.

It appears that the sole reason defendant did not enter its appearance on the return day, as required by Rule 8 of the Supreme Court, was the belief of its attorneys that it would be unnecessary because they believed from the circumstances that the claim of plaintiff would be litigated solely before the industrial commission. Although attorneys for plaintiff knew who represented respondents in the case before the industrial commission, yet there is no evidence that they were informed that said attorneys represented defendant in the case at law. It does not appear, from any action or statement made on the part of plaintiff or his attorneys, that the attorneys for defendant were given to understand that no action would be taken in this suit, and the belief of attorneys for defendant that no action would be taken and that the claim of plaintiff would be prosecuted solely before the industrial commission was a mere conclusion of said attorneys for defendant, arrived at from the fact that conferences had taken place between the plaintiff and his representatives and representatives of respondents relative to the adjustment of said claim and cause of action and as to whether the matter should be disposed of before the commission or by common law action.

A copy of the complaint filed in this suit was procured by defendant’s attorneys on June 14, 1934, and they were also informed that no appearance cards were in use in said court, and were charged with the knowledge that when service of summons is had and no appearance entered a plaintiff is entitled to a judgment by default. We are of opinion that the trial court did not abuse its discretion in refusing to find on the facts presented that the defaulted defendant and its attorneys were free from negligence in suffering such default. There is nothing in the record upon this issue which in any way would indicate the trial court abused its discretion in denying the motion to vacate said judgment and default.

From the record it appears that no fraud, action of attorneys for plaintiff, or mistake or circumstances over which the defendant and his attorneys had no control prevented the defendant from entering its appearance.

In support of the contention of the defendant that it has a meritorious cause of defense, one of its attorneys after an examination of the complaint and a preliminary investigation of said case alleged in an affidavit that the defendant has a complete and meritorious defense to each and every one of the alleged claims of plaintiff. The mere statement that a defendant has a meritorious defense is not sufficient. The grounds and facts upon which the merits of the defense arise must be stated so that the court will be enabled to judge of the merits of such defense. Rich v. Hathaway, 18 Ill. 548; Nitsche v. City of Chicago, supra; Eggleston v. Royal Trust Co., supra.

Appellant also insists that the cause of action in said complaint being based upon U. S. C., Title 46, sec. 688, and having arisen out of an alleged trespass on navigable waters of the United States, this court does not have jurisdiction herein as the jurisdiction under this section as amended is now exclusive in the federal court. This section of the statute provides, in substance, that any seaman who shall suffer personal injury in the course of his employment may at his election maintain an action for damages at law, and in such action all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railway employees shall apply. The jurisdiction in such actions shall be under the courts of the district in which the defendant’s employer resides or in which his principal office is located.

In the case of Bainbridge v. Merchants & Miners Transp. Co., 287 U. S. 278, 77 L. Ed. 302, a case instituted in the State court in Philadelphia county, Pennsylvania, for injuries of an employee against the employer, the ship owner, the trial court dismissed the suit for want of jurisdiction, which judgment was affirmed by the Supreme Court of Pennsylvania.

The United States Supreme Court, after quoting the provision of said section relating to the jurisdiction of the federal courts, said: “The question presented for our determination is whether the quoted provision in respect of jurisdiction applies to the state courts, or is limited to the federal courts. The decisions are conflicting, but we think that the correct construction of the provision limits it to the courts of the United States. ... If the question were more doubtful than we think it is, we should be slow to impute to Congress an intention, if it has the power, to interfere with the statutory provisions of the various states fixing the venue of their own courts. It follows that the venue should have been determined by the trial court in accordance with the law of the state. ’ ’ See also Engel v. Davenport, 271 U. S. 33, 70 L. Ed. 813; Panama R. Co. v. Vasques, 271 U. S. 557, 70 L. Ed. 1085.

It is also contended by the defendant that the process and service of the same is void as the action was not brought, summons issued and served in accordance with the statute.

It is provided by section 8, par. 1, of the Civil Practice Act, Cahill’s St. ch. 110, Ü 178, that civil actions against a corporation may be commenced in the county in which the transaction, or some part thereof, occurred out of which the cause of action arose. The record in this case shows that it was alleged and proved that the entire transaction took place in the county of. Scott.

Section 17 of the act provides that service may be had upon an incorporated company by leaving a copy of process with any officer or agent of said company found in the county; and in case the officer attempting to make service shall make a return that he cannot in his county find any such officer or agent of said company, then such company may be served in any other county of this State in the manner provided in section 10 of the act.

It appears that on May 25, 1934, a summons was issued and placed in the hands of the sheriff of Scott county, and that on said same date said sheriff made return on said summons that he could not find any officer or agent of said defendant in his county, and mi said same day a summons was issued and placed in the hands of the sheriff of Adams county, upon which a return was made by said sheriff of service of said summons upon C. T. Welsh, president of said defendant corporation, on June 8, 1934, and more than 20 days prior to the first Monday of July, 1934, the return day of said summons. This is in keeping with the terms of said section 17 of the act.

It is also insisted that, at the time of the entry of the default judgment, the original process in this cause was not in the files in said cause and that the court erred in allowing plaintiff to file the same on July 24, 1934, the day the motion to vacate judgment was presented to the court. So far as we are able to find from the record there is no evidence that said summons was not in the files in said cause.

The record does show that it was offered in evidence on July 8, 1934, the day the judgment by default was entered, with the return of the sheriff of Scott county thereon, and also that the summons and the return of the sheriff of Adams county was offered in evidence •showing service in due time, which was sufficient to authorize such default.

It is next contended that the complaint is defective because it does not allege that the industrial commission of Illinois does not have jurisdiction of the cause. Section 6 of the Workmen’s Compensation Act, Ca-hill’s St. ch. 48, H206, among other things, provides: That in any action now pending, or hereafter begun, to enforce any common law or statutory right to recover damages for negligently causing injury or death of any employee, it shall not be necessary to allege in the declaration that either the employee or the employer, or both, were not governed by the provisions of this act, or of any similar act in force in this or any other State.

It is next urged that the plaintiff, prior to the commencement of this suit, made claim with the industrial appeal with the clerk of said court, which was made a commission of Illinois and requested a continuance of said cause prior to the return day of this cause. This objection is not commented upon by appellant in its argument.

It is stated in one of the affidavits, in support of its motion, that this suit is predicated upon the same facts upon which the claim was based that was filed with the industrial commission prior to the institution of this suit. The filing of the claim with the industrial commission was not a bar to the institution of this suit.

In Jackson v. Industrial Board, 280 Ill. 526, Mary Hoskins, administratrix of the estate of Nathaniel Ramey, deceased, recovered an award. The deceased was employed by the Chicago & Eastern Illinois R. R. Co., of which company William J. Jackson, plaintiff in error, was receiver. Ramey was one of a gang of painters employed in painting buildings, bridges and anything required to be painted along the railroad, and on October 2, 1913, he was killed by a train; and the administratrix, on November 1,1913, served notice with a statement of claim under the Workmen’s Compensation Act on the receiver.

On March 28, 1914, the administratrix began a suit under the Federal Employers’ Liability Act for damages for causing the death of the decedent in the circuit court of Vermilion county. The plaintiff in error demurred to the declaration, which demurrer was sustained by the court on the ground that the declaration showed that the deceased was not engaged in interstate commerce at the time that he was killed. The administratrix having elected to stand by her declaration, judgment was entered in bar of her suit. Shortly after this a hearing was had before the industrial board and an award was made.

It was argued with much emphasis that the administratrix was estopped from asserting her claim before the industrial board because she elected her remedy under the Federal Employers’ Liability Act. The court said: The election of remedies has no application whatever to this suit. The doctrine of the election of remedies is applicable only where a party has elected between inconsistent remedies for the same injury or cause of action. Familiar instances of this doctrine are when a party waives a tort and sues in assumpsit, or when he elects to sue in replevin for property unlawfully taken in preference to bringing a suit for money damages for the unlawful taking, etc. The doctrine does not apply to concurrent remedies that are not inconsistent with each other and has no application to an election between suits based upon different statutes. When one has a right of action at common law and also under the statute for the same injury, the bringing of either of said suits is not a bar to the other, and particularly when no recovery has been had under one or the other. A suit under a State law and a judgment therein against the plaintiff are no bar to a suit for the same injury under the Federal Employers’ Liability Act when it appears that there could be no recovery under the State law for the injury. _ .

_ It is also insisted that the complaint fails to state a cause of action upon which a judgment could be predicated. This question is presented by the record, because the default only admitted the facts stated in the complaint to be true, but did riot admit that the facts, in law, entitled the plaintiff to recover, and if the facts alleged did not give the right to recovery it was error to enter judgment against, it by default. Chicago & Milwaukee Elec. Ry. Co. v. Krempel, 116 Ill. App, 253; Buck v. Citizens Coal Mining Co., 254 Ill. 198; Keen v. Leipold, 211 Ill. App. 163.

While the Civil Practice Act does away with those matters distinguishing the forms of action, and while it provides that all pleadings shall contain a concise statement of the pleader’s cause of action, those substantial averments of fact heretofore necessary to state a cause of action are in no way affected by any provision of the act.

A default judgment will be reversed when the complaint states no cause of action, but a defective statement of a good cause of action is cured by the verdict. That the complaint would have been obnoxious to a motion in the nature of a demurrer, if any had been interposed, would not necessarily justify a reversal of a judgment rendered by default. Buck v. Citizens Coal Mining Co., 254 Ill. 198.

We are of opinion that the complaint contains substantial averments of facts sufficient to sustain the judgment. The allegations sufficiently show that the circuit court had jurisdiction of the cause of action under the Jones Act (Injuries to Seamen); the existence of a duty on the part of the defendant to protect the plaintiff from the injury complained of; a failure to perform that duty, and an injury to plaintiff resulting from such failure; and also acts of negligence on the part of defendant and the exercise of due care by the plaintiff.

(living its language its ordinary meaning and significance, there is no reasonable basis for saying it did not state any cause of action, or that appellant was not advised by its allegations of the nature and grounds of the demand against it.

It is also contended that the Workmen’s Compensation Act applies to this case and provides a remedy to the exclusion of all others. This is but a restatement of the contention that the complaint did not state a cause of action, and the answer to that contention would also answer this one.

It is true it has been held that although the record discloses facts sufficient to show a maritime tort to which general admiralty jurisdiction would extend, save for the provision of the State Compensation Act, if the matter be of a mere local concern and its regulation by the State would work no material prejudice to any characteristic feature of the general admiralty law, the State Compensation Act would prescribe the only remedy.

From the material and traversable allegations of the complaint we are of opinion that the cause of action of the plaintiff does not involve matters of such mere local concern as to give the industrial commission sole jurisdiction of said cause. The defendant was the owner and possessor of a dredge boat and it was afloat on navigable waters of the United States and the plaintiff was in its employ and suffered personal injury in the course of his employment. He was a seaman within the meaning of the act, and was in the act of slackening the anchor cable which held said boat and was injured while thus engaged. Snch allegations bring the case within the exclusive operation of the federal act. Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 67 L. Ed. 756.

Appellant also contends that it was entitled to notice of the hearing on the question of the assessment of damages in order that it might be present and cross-examine the witnesses as to the question of damages. There is no provision of the Civil Practice Act requiring notice to one who permits a judgment to be entered against him by default of the time of the hearing on the question of the assessment of damages.

As was said in the case of Dewar v. Loy, 248 Ill. App. 396, by the Appellate ■ Court of the Second District: “While it is true that at the inquest on the assessment of damages, a defendant who has been defaulted has the right to appear and cross-examine plaintiff’s witnesses, introduce evidence on his part upon the question of damages, ask for instructions- on that question and preserve his right for review on that branch of the case by a bill of exceptions, yet, if he would exercise such right, he must, in the absence of a rule of court to the contrary, take notice of such proceedings and avail himself of such right.” Joseph T. Ryerson & Son v. Crawford Locomotive & Car Co., 187 Ill. App. 640; Domestic Bldg. Ass’n v. Nelson, 172 Ill. 386; Precision Products Co. v. Cady, 233 Ill. App. 72.

There was no rule of the trial court requiring notice to a defendant or his counsel of the time fixed for a hearing upon the question of damages.

Under the provisions of an act of the legislature, entitled “Judicial Notice,” Cahill’s Rev. St. 1933, ch. 51, ÍI 58, any court of appellate jurisdiction upon a review of any judgment of an inferior court shall take judicial notice of all matters of which the inferior court was required to take judicial notice, including all rules of practice adopted by said inferior court; and although the record is silent as to any such rule this court takes judicial notice of the fact that there was no such rule.

Appellant, in its argument in support of its contention that the judgment of the trial court should be reversed, states that there is no proof showing or substantiating the allegations of the complaint in attempting to bring this ease under the Seaman’s Act, and there is no basis for the amount of the verdict returned in this matter.

In cases tried without a jury the Appellate Court is authorized to consider the question whether the facts as they appear in the record, and the law authorizes the finding and judgment of the trial court though no propositions of law were submitted to and held or refused by that court. Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago City Ry. Co., 300 Ill. 162; City of Benton v. Whaley, 230 Ill. App. 309.

In cases of default, for want of appearance or for failure to plead, the allegations of the complaint are admitted although the court may require the plaintiff to prove the allegations of his complaint. The court entered no order requiring plaintiff to prove the allegations of his complaint.

The plaintiff was sworn and testified as a witness and the examination was directed solely to the question of the amount of damages.

We are of opinion, after a consideration of the evidence, in view of the age of the plaintiff and his former earning ability, the serious injuries received by him rendering him incapable of pursuing his former occupation and the loss of two of his fingers on his left hand and the loss of the use of his left arm to a large extent, that there was a basis in the evidence upon which the court could fix damages sustained by the plaintiff, and no error was committed by the trial court in assessing damages at the sum of $10,000.

The defendant by its default having admitted the allegations of the complaint, and the court not having required the plaintiff to offer proof in support of such allegations, the contention of the defendant that there is no proof showing or substantiating the allegations of the complaint in attempting to bring this case under the Seaman’s Act is without merit. For the reasons stated it is ordered that the order of the circuit court of Scott county, denying the motion of defendant to vacate said judgment, and the judgment entered in said cause, be affirmed.

Affirmed.


author: Mr. Presiding Justice O’Connor

text:
    First District.
    Nilson Brothers, complainant, v. Nathan Grossman et al., appellees, on appeal of Nilson Brothers and G. L. Clausen, trading as Clausen and Company, appellants.
    Gen. No. 37,818.
    Heard in the first division of this court for the first district at the October term, 1934.
    Opinion filed April 15, 1935.
    Rehearing denied April 29, 1935.
    John E. Owens and Edwin J. Nunn, for appellants; Clyde C. Fisher, of counsel. Sherman M. Booth, for certain appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    George Scott and Katie McTeer Scott, appellants; v. Anna L. Dunlap et al., appellees.
    Gen. No. 37,904.
    Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed April 15, 1935.
    Heber T. Dotson, for appellants. Irvin C. Mollison, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Roslyn Gibson, appellee, v. Robert Earl Gibson, appellant.
    Gen. No. 37,926.
    Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed April 15, 1935.
    Rehearing denied April 29, 1935.
    Ednyfed H. Williams, for appellant; Harry L. Brin, of counsel. Martin J. McNally, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice McSurely delivered

text:
    Michael Borniak, appellant, v. Chicago and West Suburban Transit Company and Chicago, Burlington and Quincy Railroad Company, appellees.
    Gen. No. 38,049.
    Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed April 15, 1935.
    John Á. Blake and Joseph E. Winterbotham, for appellant. Berthold L. Goldberg, for appellee Chicago & West Suburban Transit Co.; J. Herzl Segal, of counsel. Gardner, Foote, Morrow & Merrick, J. C. James and Sidney F. Blanc, for appellee Chicago, B. & Q. R. Co.; William A. Morrow and Walter M. Fowler, of counsel.
   Mr. Justice McSurely delivered

the opinion of the court.


author: Mr. Justice Matchett

text:
    The People of the State of Illinois, defendant in error, v. Louis W. Gruber, plaintiff in error.
    Gen. No. 37,907.
    Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed April 15, 1935.
    Rehearing denied April 29, 1935.
    Charles M. McConnell, for plaintiff in error; John Lewson, of counsel. Thomas J. Courtney, State's Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth and John T. Gallagher, Assistant State's Attorneys, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Robin P. Allen and Francis M. Allen, trading as The Allen Company, appellants, v. First National Bank of Chicago and Reliance Bank and Trust Company, appellees.
    Gen. No. 37,950.
    Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed April 15, 1935.
    Shulman, Shulman & Abrams, for appellants; Meyer Abrams, of counsel. Winston, Strawn & Shaw and Amberg, Ott, Dahlin & Livingston, for certain appellee; Harold Beacom, Thos. A. Reynolds and Wm. C. Mulligan, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson v. Depositors State Bank. Clara L. Oppenheimer et al., appellees, v. William L. O’Connell, appellant.
    Gen. No. 38,013.

      Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed April 15, 1935.
    Altheimer, Mayer, Woods & Smith, for appellant; Jesse L. Cohen, Gideon S. Thompson and William F. Struckmann, of counsel. Mary Lee Colbert, for appellees; Charles H. Pease, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Sophie Svirsky and George Patris, plaintiffs in error.
    Gen. Nos. 37,946, 37,947.
    Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed May 6, 1935.
    Sinon A. Murray and Samuel L. Golan, for plaintiffs in error; Samuel L. Golan, of counsel. Thomas J. Courtney, State's Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Joseph E. Rothstein, appellant, v. London Guarantee and Accident Company, Ltd., appellee.
    Gen. No. 37,980.
    Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    H. Kay George and Martin Rothman, for appellant. John E. Wilson, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Anthony Vanagaitis, appellee, v. Lithuanian News Publishing Company and Pius Grigaitis, appellants.
    Gen. No. 37,991.
    Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    Stedman & Feinstein, for appellants; A. J. Refakes, of counsel. Harold O. Mulks, Anthony A. Olis and Rudolph Vasalle, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Gustaf Adolf Eckman and Earl Dwyer, appellants, v. Independent Order of Svithiod et al., appellees.
    Gen. No. 38,020.

      Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    Kenneth B. Kirk, for appellants. Harry A. Biossat and Neis H. Olson, for certain appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    Violet Albrecht, appellee, v. Metropolitan Credit and Discount Corporation, appellant.
    Gen. No. 37,956.
    Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    Luster & Luster, for appellant; Julian J. Luster and John M. Weiner, of counsel. Ross, Berchem & Hanson and Donald N. Berchem, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice Hatchett

text:
    Charles G. Morgenroth and Marie Morgenroth, appellees, v. Midland Oil Company, appellant.
    Gen. No. 37,594.
    Heard in the first division of this court for the first district at the October term, 1934.
    McSurely, J., dissents.
    Opinion filed May 6, 1935.
    Cassels, Potter & Bentley and Edward J. Rothman, for appellant; Ralph F. Potter, Leslie H. Vogel and E. Douglas Sehwantes, of counsel. Bernard W. Vinissky and Julius S. Neale, for appellees.
   Mr. Justice Hatchett

delivered the opinion of the court.


text:
    Curt Teich and Company, Inc., appellee, v. Max Rigot Selling Agency, Inc., appellant.
    Gen. No. 37,898.
    Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed May 6, 1935.
    Rehearing denied May 20, 1935.
    David S. Eisendrath and Taylor, Miller, Busch & Boyden, for appellant; David S. Eisendrath and James J. Magner, of counsel. Gustav E. Beerly, for appellee.
   Mr. Justice Hatchett

delivered the opinion of the court.


text:
    Della Fisher, plaintiff in error, v. Guy A. Richardson et al., trading as Chicago Surface Lines, defendants in error.
    Gen. No. 37,953.

      Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    Philip Rosenthal, for plaintiff in error; Stuart B. Krohn, of counsel. Frank L. Kriete, Charles C. Cunningham and Arthur J. Donovan, for defendants in error; John R. Guilliams, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Gloria Carevic, appellant, v. Guy A. Richardson et al., trading as Chicago Surface Lines, appellees.
    Gen. No. 37,963.
    Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    Joseph A. Weber, for appellant. Frank L. Kriete and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Joe Jutenas, plaintiff in error.
    Gen. No. 37,973.
    Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    Victor Frohlich, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth and Amos B. Scruggs, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    William L. O’Connell, appellant, v. John H. Taft et al., appellees.
    Gen. No. 38,004.
    Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    Markman, Donovan & Sullivan, for appellant; Charles E. Loy and Henry O. Nickel, of counsel. Frederick A. Brown, for certain appellee; Gr. Gale Roberson and David A. Canel, of (counsel. Eugene P. Kealy, for certain other appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Gilbert Miller, appellant, v. Minna L. Sturtz, appellee.
    Gen. No. 38,024.
    Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    Jacob Levy and Philip J. Simon, for appellant; Edward McTiernan, of counsel. Walter J. Fried, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Lillian Maina, appellant, v. Charles P. Schwartz and Lavinia S. Schwartz, appellees.
    Gen. No. 38,046.
    Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    Rehearing denied May 20, 1935.
    Merle C. Finch, for appellant. Milton M. Adelman, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Bessie Suchy et al., appellees, v. John Hajicek et al., defendants, on appeal of John Hajicek, appellant.
    Gen. No. 38,244.
    Heard in the first division of this court for the first district.
    Opinion filed May 21, 1935.
    Edward H. Kubitz, for appellant. Vincent G. Ponic, for appellees; Stephen Lee and John I. Mayer, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The National Bank of the Republic of Chicago, appellee, v. 168 Adams Building Corporation et al., defendants. Duffy-Noonan Construction Company and Carpenter, Rumbaugh and Dean, appellants.
    Gen. No. 38,017.
    Heard in the first division of this court for the first district at the June term, 1934.
    Opinion filed May 22, 1935.
    Rehearing denied June 10, 1935.
    Lowes & Lowes, for appellants. Arthur J. Hughes, Taylor, Miller, Busch & Boyden, George Gillette, Norbert B. Tyrrell and White & Hawxhurst, for appellee National Bank of the Republic of Chicago; Arthur J. Hughes, Francis X. Busch, John S. Miller, Frank Michels, Norbert B. Tyrrell and William Klevs, of counsel. Devenish & Luebeck, for appellee Dearborn Electrical Construction Co.; Earle G. Kallen, of counsel. Cohon & Goldstein, for cross appellee Anderson & Lind Mfg. Co.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Katherine M. Rausch, appellee, v. Walter C. Cleave and Hazel M. Cleave, appellants.
    Gen. No. 38,166.

      Heard in the first division of this court for the first district at the June term, 1935.
    Opinion filed May 22, 1935.
    Rehearing denied June 10, 1935.
    McKinney, Lynde & Grear, for appellants; George H. Grear and Jeffrey Shedd, of counsel. A. C. Lewis and A. H. Patek, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Friend

text:
    Herbert Parsons, appellee, v. Percy W. Stephens, trading as United States Utilities, appellant.
    Gen. No. 37,601.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1934.
    Charles O. Loucks, for appellant; Reuben E. Swanson, of counsel. No appearance for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Peter C. McArdle, appellant, v. City of Chicago et al., appellees.
    Gen. No. 37,668.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.
    Rehearing denied June 5, 1935.
    Edward J. McArdle, Jr., for appellant; E. J. MeArdle, Sr., of counsel. William H. Sexton, Corporation Counsel, for appellees; Joseph F. Grossman, First Assistant Corporation Counsel, and Carl H. Lundquist, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. John Rusch, defendant in error, v. Henry Lynch et al., plaintiffs in error.
    Gen. No. 37,796.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.
    John F. Higgins and A. O. Galvin, for plaintiffs in error. Thomas J. Courtney, for defendant in error.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Louis Meyskens, appellant, v. George M. Stevens et al., appellees.
    Gen. No. 37,803.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.
    Nelson & Ricker, for appellant. Stevens, Carrier & Griffith, for appellees; Melvin L. Griffith, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Robbins Music Corporation, appellant, v. Sepia Guild Players, Inc., defendant. Balaban and Katz Corporation, appellee.
    Gen. No. 37,813.
    Heard in the second division of this court for the first district at the .October term, 1934.
    Opinion filed May 24, 1935.
    Rehearing denied June 5, 1935.
    Joseph A. & Philip E. Golde, for appellant. Spitz & Adcock, for appellee; George F. Hurley and William J. McCormack, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    American National Insurance Company, appellant, v. Mary Anton, appellee.
    Gen. No. 37,887.
    Heard in the second division of this court for the first district at the December term, 1934.
    Opinion filed May 24, 1935.
    Rehearing denied June 5, 1935.
    Donahue & Hubka, for appellant; Frank E. Donahue and Vernon E. Hubka, of counsel. Rubenstein & Becker, for appellee; Harry Becker, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Bell Auto Repair and Paint Company, appellant, v. Gustave F. Tufo, appellee.
    Gen. No. 37,899.
    Heard in the second division of this court for the first district at the December term, 1934.
    Opinion filed May 24, 1935.
    Jacob Kosbie, for appellant. Henry M. Tufo, for appellee; Fred J. Woodman, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    Louis H. Freise, appellant, v. Mid-City Trust and Savings Bank of Chicago and Mid-City National Bank of Chicago, defendants. Mid-City National Bank of Chicago, appellee.
    Gen. No. 37,655.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.
    Rehearing denied June 5, 1935.
    Harry C. Kinne, for appellant; William C. Riley and John E. Nordstrand, of counsel. John M. Lee, for appellee; Thomas J. Carroll, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    In re Estate of Daniel M. Jackson, deceased. Claims of Harry E. Strickland and Kathryn Strickland for the use of William G. Packard, appellees, v. Charles S. Jackson, as executor of the estate of Daniel M. Jackson, deceased, appellant.
    Gen. No. 37,682.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.
    Harry Smitz, for appellant; Victor P. Prank, of counsel. Charles W. Lamborn, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Herman H. Goodfriend, plaintiff in error, v. Gustav Pollock, defendant in error.
    Gen. No. 37,694.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.
    Ben A. Stewart and Benj. P. Cohn, for plaintiff in error; Ode L. Rankin, of counsel. Sidney S. Pollack and Benjamin Levering, for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    J. A. Kelpsch, defendant in error, v. Mary Noreiko, plaintiff in error.
    Gen. No. 37,699.
    Heard in the second division of this court for the first district at the December term, 1934.
    Opinion filed May 24, 1935.
    Thomas J. Doyle, for plaintiff in error; John B. Fluchtl, of counsel. Hummer & Hummer, for defendant in error; Robert J. Hummer, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    David Ruttenberg et al., appellees, v. United States Fidelity and Guaranty Company, appellant.
    Gen. No. 37,834.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.
    McKenna, Harris & Schneider and Henry H, Koven, for appellant; James J. McKenna and Henry H. Koven, of counsel. Irving Break-stone, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Tony Masinski and Katie Masinski, appellees, v. Tom Dulak and Walter H. Fisher, appellants.
    Gen. No. 37,905.

      Heard in the second division of this court for the first district at the December term, 1934.
    Opinion filed May 24, 1935.
    Barbara A. Fisher and Ferdinand J. Karasek, for appellants. Louis T. Herzon, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Ilona Jancsik and Joe Jancsik, appellees, v. Sovereign Camp of the Woodmen of the World, appellant.
    Gen. No. 37,922.
    Heard in the second division of this court for the first district at the December term, 1934.
    Opinion filed May 24, 1935.
    Ekern & Meyers, for appellant; William E. Mooney, of counsel. Frank C. Hill, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Justice Sullivan

text:
    Harry Fraiman, appellant, v. Gonnella Baking Company, appellee.
    Gen. No. 37,714.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.
    Rehearing denied and opinion slightly modified June 5, 1935.
    Louis T. Herzon, for appellant. Joseph H. Hinshaw, for appellee; Oswell G. Treadway, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Edith C. Shambaugh, appellee, v. Dan U. Cameron, appellant.
    Gen. No. 37,792.
    Heard in the second'division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.
    Judah, Reichmann, Trumbull, Cox & Stern, for appellant. McGilvray, Eames, Vaughan & Tilley, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Irwin S. Maze, appellant, v. Robert H. Gore et al., defendants. Howard F. Bishop, appellee.
    Gen. No. 37,849.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.
    Clarence A. Snyder, for appellant. Jerome J. Sladkey, for appellee; Lewis D. Wilson, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Frank Guardino, plaintiff in error,
    Gen. No. 37,889.
    Heard in the second division of this court for the first district at the December term, 1934.
    Opinion filed May 24, 1935.
    Ellis & Westbrooks, for plaintiff in error; Richard E. Westbrooks, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Joseph Heidinger, appellant, v. George Heatley, appellee.
    Gen. No. 37,912.
    Heard in the second division of this court for the first district at the December term, 1934.
    Opinion filed May 24, 1935.
    Edward L. Bracklow, for appellant. W. Otto Wielgorecki, for appellee; Walter F. Briody, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Carl J. Hallberg, appellee, v. Goldblatt Brothers, Inc. et al., appellants.
    Gen. No. 38,145.
    Heard in the first division of this court for the first district.
    McSurely, J., dissents.
    Opinion filed May 29, 1935.
    Rehearing denied June 10, 1935.
    Wilson & McIlvaine and Pritzker & Pritzker, for appellants; Clay Judson, W. P. Gilbert, Gilbert Osgood and Stanford Clinton, of counsel. Samuel A. and Leonard B. Ettelson, for appellee; Samuel A. Ettelson, Edward C. Higgins and Carl J. Appell, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court. .


text:
    The People of the State of Illinois ex rel. Ulysses J. Grim, appellee, v. Harry S. Gradle et al., appellants.
    Gen. No. 37,698.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed June 13, 1935.
    Taylor, Miller, Busch & Boyden, for appellants; Francis X. Busch and James J. Magner, of counsel. Slottow & Leviton, for appellee; Charles Levitón and Harold P. Shane, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    American National Bank and Trust Company of Chicago, complainant, v. Hotel Graemere, Inc. et al., defendants. J. Ross Logan et al., cross complainants. American National Bank and Trust Company of Chicago, appellant, v. J. Ross Logan et al., appellees.
    Gen. No. 37,734.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed June 13, 1935.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellant; Isaac E. Ferguson, Roger S. Bloch and Homer Kripke, of counsel. Shulman, Shulman & Abrams, for appellees; Meyer Abrams, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Samuel Parker Johnston et al., appellants, v. Alexander W. Hannah et al., appellees.
    Gen. No. 37,789.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed June 13, 1935.
    Rehearing denied June 25, 1935.
    Max Murdock, for appellants. Campbell, Clithero & Fischer, for appellees.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Ulysses J. Grim, appellant, v. Rodney H. Brandon et al., appellees.
    Gen. No. 37,999.
    Heard in the second division of this court for the first district at the February term, 1935.
    Opinion filed June 13, 1935.
    Slottow & Leviton, for appellant; Charles Levitón & Harold P. Shane, of counsel. Taylor, Miller, Busch & Boyden, for appellees; Francis X. Busch and James J. Magner, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    The Live Stock National Bank of Chicago (formerly known as Stock Yards Bank and Trust Company), administrator de bonis non of the estate of Anthony Klein, deceased, appellant, v. Clarence Myroup, appellee.
    Gen. No. 37,708.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed June 13, 1935.
    Alfred Roy Hulbert, for appellant. Miller, Gorham, Wales & Adams, for appellee; Edward R. Adams, Herbert C. De Young and Charles F. White, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Harry Pringouris, also known as Harry Pappas, by his mother and next friend, Akrivi Pappas, appellant, v. General Outdoor Advertising Company, appellee.
    Gen. No. 37,825.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed June 13, 1935.
    Rehearing denied June 25, 1935.
    Pantelis, Klein & Porikos and Theodore N. Constant, for appellant. Cassels, Potter & Bentley, for appellee; Ralph P. Potter, Leslie H. Vogel and E. Douglas Schwantes, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Aetna Acceptance Company, appellant, v. Andrew Strieff, appellee.
    Gen. No. 37,737.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed June 13, 1935.
    Rehearing denied June 25, 1935.
    William S. Kleinman, for appellant. Arthur A. Maina, for appellee; Edward M. Keating, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Antonina Mysliwiec, appellee, v. Independent Order of Foresters, appellant.
    Gen. No. 37,819.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed June 13, 1935.
    Marx Loehwing, for appellant; G. A. Buresh, of counsel. Samuel L. Steinberg, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    William R. Ruchty, appellant, v. E. L. Ramm and C. H. Ramm, trading as E. L. Ramm Company, appellees.
    Gen. No. 37,840.
    Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed June 13, 1935.
    Harry H. Felgar, for appellant. Stevens, Carrier & Griffith and George M. Sundheim, for appellees.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Rubie Riddiford Powner, appellee, v. Willard E. Powner, appellant.
    Gen. No. 37,959.

      Heard in the, first division of this court for the first district at the February term, 1935.
    Opinion filed June 17, 1935.
    Rehearing denied July 2, 1935.
    Socrates, Davis & Cohen, for appellant; Nicholas A. Socrates, of counsel. Robert E. Cantwell, Jr., for appellee; Martin W. Grosse, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Edwin D. Buell, appellant, v. Western News Company, appellee.
    Gen. No. 38,010.
    Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed June 17, 1935.
    Rehearing denied and opinion modified July 2, 1935.
    Wisner, Davis & Walsh, for appellant. Gann, Seeord & Stead, for appellee; Loy N. McIntosh, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    National Life Insurance Company, appellee, v. Diana Feldman et al., appellants.
    Gen. No. 38,098.
    Heard in the first division of this court for the first district at the April term, 1935.
    Opinion filed June 17, 1935.
    William Feldman, for appellants. Eckert & Peterson, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    William J. Doyle, appellee, v. The Prudential Insurance Company of America, appellant.
    Gen. No. 38,055.
    Heard in the first division of this court for the first district at the April term, 1935.
    Opinion filed June 17, 1935.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Thomas M. Morris, for appellee; Joseph D. Bryan and Henry E. Saks, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Nellie I. Cogger, appellee, v. The Prudential Insurance Company of America, appellant.
    Gen. No. 38,104.
    Heard in the first division of this court for the first district at the April term, 1935.
    Opinion filed June 17, 1935.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Watkins & TenHoor, for appellee; Carl N. Howig, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Arthur G. Schroeder, appellee, v. Maria Marx, appellant.
    Gen. No. 38,065.
    Heard in the first division of this court for the first district at the April term, 1935.
    Opinion filed June 17, 1935.
    Livingston & Kaufman, for appellant. Joseph Bonnefoi, for appellee; Victor M. Langsett, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Bertha Weisskopf, appellee, v. Grand Lodge of the United States of the Free Sons of Israel, appellant.
    Gen. No. 38,092.
    Heard in the first division of this court for the first district at the April term, 1935.
    Opinion filed June 17, 1935.
    Julius C. Greenbaum, for appellant. West & Eekhart, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Edward J. Barrett, complainant, v. The West Side Trust and Savings Bank, defendant. Ida Gordon, appellant, v. William L. O’Connell, appellee.
    Gen. No. 38,112.
    Heard in the first division of this court for the first district at the April term, 1935.
    Opinion filed June 17, 1935.
    Maurice S. Levy and Nat M. Kahn, for appellant. Thomas D. Nash and Michael J. Ahern, for appellee; Richard F. Shay, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Thomas B. Roberts, appellee, v. G. A. Schillinger, appellant.
    Gen. No. 38,131.
    Heard in the first division of this court for the first district at the April term, 1935.
    Opinion filed June 17, 1935.
    James H. Burr, for appellant. Joseph R. Roth, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Wolfe

text:
    Second District.
    City National Bank of Kankakee and. C. B. Sawyer, defendants in error, v. E. J. Tegge et al., defendants in error. Maria Arp, plaintiff in error, v. City National Bank of Kankakee et al., defendants in error.
    Gen. No. 8,823.

      Heard in this court at the October term, 1934.
    Opinion filed April 22, 1935.
    Louis N. Legris, for plaintiff in error; Arthur W. DeSelm and Walter C. Schneider, of counsel. H. H. Wheeler and C. M. Granger, for certain defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Albert Lettow, a minor, by Margaret Fox, his mother and next friend, appellee, v. Ivan M. Surkamer, trading as Glen Ellyn Checker Cab Company, appellant.
    Gen. No. 8,865.
    Heard in this court at the February term, 1935.
    Opinion filed April 22, 1935.
    Rehearing denied May 11, 1935.
    Hadley, Weaver & Woodward, for appellant; Harry G. Weaver, John S. Woodward and Palmer Leren, of counsel. Philip Rosenthal, for appellee; John B. King and Thomas S. MacKinley, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    John Buffo, appellee, v. Mutual Benefit Health and Accident Association, appellant.
    Gen. No. 8,902.
    Heard in this court at the February term, 1935.
    Opinion filed April 22, 1935.
    Rehearing denied June 26, 1935.
    Luther F. Binkley and Early & Early, for appellant. Karl C. Williams, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Bertha Rust, appellee, v. Illinois Highway Transportation Company, appellant.
    Gen. No. 8,921.
    Heard in this court at the February term, 1935.
    Opinion filed April 22, 1935.
    Rehearing denied May 11, 1935.
    Galbraith & Monk, for appellant. Howard White, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    Eugene T. O’Neill and Charles J. O’Neill, trading as O’Neill Brothers, appellants, v. Whitaker Farmer’s Elevator Company, appellee.
    Gen. No. 8,878.
    Heard in this court at the February term, 1935.
    Opinion filed May 1, 1935.
    Rehearing denied June 26, 1935.
    W. H. Dyer, for appellants. Eva L. Minor, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Up-State Motors, Inc., and T. V. Vandergrift, appellees, v. Merchants Insurance Company of Providence, appellant.
    Gen. No. 8,899.
    Heard in this court at the February term, 1935.
    Opinion filed May 1, 1935.
    Robert L. Floyd, Harold T. Sharp and Diver & Populorum, for appelant. Hall & Hulse and J. A. Miller, for appellees; Harry A. Hall and H. D. Fisher, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Amalia Niemi, administratrix of the estate of August Niemi, deceased, appellee, v. A. A. Sprague and Britton I. Budd, appellants.
    Gen. No. 8,856.
    Heard in this court at the February term, 1935.
    Opinion filed May 17, 1935.
    Gardner, Foote, Morrow & Merrick, for appellants; W. A. Morrow and Walter M. Fowler, of counsel. Decker & Decker, for appellee; Bernard M. Decker, Joseph Sikes and John E. Baker, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Mary Elias, appellee, v. New Jersey Insurance Company, appellant.
    Gen. No. 8,884.
    Heard in this court at the February term, 1935.
    Opinion filed May 17, 1935.
    Hibbs & Pool, for appellant. George V. B. Weeks, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Hanna Bechtel, appellee, v. Jeff Rocke et al., appellees. Byron L. Colburn et al., appellants.
    Gen. No. 8,907.
    Heard in this court at the February term, 1935.
    Opinion filed May 17, 1935.
    Rehearing denied August 5, 1935.
    George W. Hunt and Warren H. Foster, for appellants. Richard H. Radley and Ren Thurman, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Presiding Justice Fulton

text:
    Third District.
    Ernest Roy Nunes, appellee, v. City of Jacksonville, appellant.
    Gen. No. 8,846.

      Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Rehearing denied July 8, 1935.
    Orville N. Foreman and E. W. Cleary, for appellant. L. C. Arnold, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    Werner C. Vollrath, appellee, v. Joseph Bordenkecher, appellant.
    Gen. No. 8,869½.
    Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Rehearing denied July 8, 1935.
    Frank K. Lemon, for appellant. Wirt Herrick, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    Frank B. Harrison, appellant, v. The First Christian Church of Hamilton et al., appellees.
    Gen. No. 8,879.
    Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Rehearing denied July 8, 1935.
    Mack & Mack, E. W. McManus and Ina M. R. Campbell, for appellant. O’Harra, O’Harra & Roeth, for adult appellees. Edward S. Martin, guardian ad litem.

   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    Arch M. Ryan, appellee, v. The Baltimore and Ohio Railroad Company, appellant.
    Gen. No. 8,883.
    Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Charles W. Firke, for appellant. N. E. Hutson, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.


text:
    Mary Ann Adams, appellant, v. William L. Patton, appellee.
    Gen. No. 8,888.
    Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Ed. D. Henry, for appellant. William L. Patton, pro se.

   Mr. Presiding Justice Fulton

delivered the opinion of the court.


author: Mr. Presiding" Justice Fulton

text:
    Lawrence Coon, appellee, v. T. W. Doss, appellant.
    Gen. No. 8,892.
    Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    W. A. Doss, Carl I. Glasgow and B. E. Morgan, for appellant. Charles F. Evans and John R. Fitzgerald, for appellee.
   Mr. Presiding" Justice Fulton

delivered the opinion of the court.


text:
    Ray Morgan and Blanche Morgan, appellees, v. Louis F. Brumer, appellant.
    Gen. No. 8,854.
    Heard in this court at the October term, 1934.
    Opinion filed April 12, 1935.
    Robert H. Allison, for appellant. Dunkelburg & Rust, for appellees.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    Herbert Pleines, appellee, v. Carl J. Loeseke, executor of the last will and testament of Henry Pleines, deceased, appellant.
    Gen. No. 8,858.
    Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Rehearing denied July 8, 1935.
    Costigan & Wollrab and Velde & Prettyman, for appellant. J. M. Powers and Ramon A. Powers, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    First State Trust and Savings Bank of Springfield and Frank H. McKelvey, appellees, v. Henry J. Schaffer et al., defendants. Henry Fraase and Edward Fraase, appellants.
    Gen. No. 8,878.
    Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Carey E. Barnes, for appellants. Brown, Hay & Stephens, for appellees; Logan Hay, Paul W. Gordon and Charles G. Briggle, Jr., of counsel.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    Mary Elizabeth Keys, appellee, v. Bert North, appellant.
    Gen. No. 8,891.
    Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Trogdon & Dole and Cotton & Nichols, for appellant. J. L. Sullivan and Acton, Acton & Baldwin, for appellee; W. M. Acton, of counsel.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    Robert Carl Sweeter, a minor, by William Carl Sweeter, his father and next friend, appellee, v. Charles M. Poole and Home Oil Company, defendant. Charles M. Poole, appellant.
    Gen. No. 8,857.
    Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Rehearing denied July 8, 1935.
    Miller, Elliott & Westervelt, for appellant; Eugene R. Johnson, of counsel. J. M. Powers and Ramon A. Powers, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    William M. Below, receiver for the First National Bank of Sidell, defendant in error, v. Carrie E. McDowell et al., plaintiffs in error.
    Gen. No. 8,877.
    Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Acton, Acton & Baldwin and Graham & Dysert, for plaintiffs in error. L. A. Lowenstein and Riley McClain, for defendant in error.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    The Farmers Bank of Mt. Pulaski, appellee, v. John C. Weckel, appellant.
    Gen. No. 8,880.
    Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Rehearing denied July 8, 1935.
    Wirt Herrick and Homer B. Harris, for appellant. Robert R. Humphrey and Trapp & Trapp, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


author: Mr. Presiding Justice Edwards

text:
    Fourth District.
    Gus Pahlman, appellant, v. The People of the State of Illinois ex rel. Ida Wilson, appellee.
    Heard in this court at the February term, 1935.
    Opinion filed June 8, 1935.
    Edward W. Clendenin and J. Fred Gilster, for appellant. Walter J. Schuwerk, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Murphy

text:
    Louis J. Hertel, appellee, v. Sarah A. Rebhan, appellant. George McCormick and Floyd Martin, appellees.

      Heard in this court at the February term, 1935.
    Opinion filed June 8, 1935.
    Rehearing denied September 5, 1935.
    W. E. Knowles, for appellant. Farmer, Klingel & Baltz, for appellee Louis J. Hertel.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    St. Clair Loan Company, Inc., appellant, v. Elbert Pritchett, appellee.
    Heard in this court at the February term, 1935.
    Opinion filed June 8, 1935.
    Warder & Zimmerman, for appellant. D. L. Duty, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    Albert Jones, appellee, v. Stoneware Pipe Company, appellant.
    Heard in this court at the February term, 1935.
    Opinion filed June 8, 1935.
    Green & Verlie, for appellant; Karl King Hoagland and John F. Schlafly, Jr., of counsel. Wm. P. Boynton, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


author: Mr. Justice Stone

text:
    Mary Grindrod, appellee, v. William W. Knowles, appellant. Cora R. Knowles et al., appellees, v. William E. Knowles, appellant, and Cora R. Knowles and John Heilig, appellees.
    Heard in this court at the February term, 1935.
    Opinion filed June 8, 1935.
    W. J. MacDonald, for appellant. No appearance for appellees.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    Norman MacLeod, appellee, v. L. W. Harris, appellant.
    Heard in this court at the February term, 1935.
    Opinion filed June 8, 1935.
    Manuel M, Wiseman, for appellant. Wm. P. Boynton, for appellee. Mr. Justice Stone delivered the opinion of the court.


text:
    Alyne Allen, appellee, v. Raymond F. Moore, appellant.
    Heard in this court at the February term, 1935.
    Opinion filed June 8, 1935.
    Rehearing denied September 5, 1935.
    R. W. Ropiequet and Henry G. Miller, for appellant. Beasley & Zulley, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    May Harris et al., appellees, v. Alfred A. Smith, appellant.
    Heard in this court at the October term, 1934.
    Opinion filed June 8, 1935.
    Rehearing denied September 5, 1935.
    Creighton & Thomas, Burgess & O’Neal and Lorenzo K. Wood, for appellant. Charles W. Creighton and Virgil W. Mills, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.


author: Mr. Presiding Justice Hebel Mr. Justice Wilson

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, v. First Italian State Bank. Matteo Pennisi and Angela Pennisi, Appellants, v. First Italian State Bank and Chester A. Willoughby, Appellees.

    Gen. No. 36,884.
    Wilson, J., dissenting.
    Opinion filed October 24, 1934.
    Rehearing denied November 15, 1934.
    MoClanahan & MoClanahan and Estelle M. Wells, all of Chicago, for appellants.

      George A. Curran, of Chicago, for certain appellee; Walter Wm. Pearson, of Chicago, of counsel.

       This opinion which was formerly published as an abstract in volume 277 Ill. App. 612 is now ordered by the court to be published in full.

   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by Matteo Pennisi and Angela Pennisi, who filed a petition in the circuit court of Cook county in a certain proceeding then pending, entitled People of the State of Illinois ex rel. Oscar Nelson, as Auditor of Public Accounts of said State, v. First Italian State Bank, a corporation, praying for allowance as preferred claims against the defendant of the amounts of their respective savings accounts for failure to pay after 60-day notice of withdrawal, and for continued refusal to pay the claimants the amounts deposited in their respective accounts.

This cause was referred to a master in chancery of said court, and the court upon the report of the master entered a decree, which is to the effect that the claimants were general creditors of the defendant bank, and accordingly the petitioners’ claims were allowed as general claims, without interest, to be paid in the orderly administration of said estate. It is from this decree that the petitioners appeal.

From the report of the master it appears that there was no dispute that Matteo Pennisi had on deposit in his savings account with the defendant Bank, $500, and that Angela Pennisi had deposited in the savings account with the same defendant, the sum of $1,522.50, which amounts of the respective claimants were on deposit with the bank at the time the receiver in the above entitled cause took possession.

It is not disputed that various demands were made by the claimants and by other banks for them upon the defendant bank for the payment of said sums, and that all requirements as conditions precedent to the right of payment of said sums to the claimants had been fully complied with, and it is not disputed that a customer’s demand draft signed by Angela Pennisi and Matteo Pennisi for $1,522.50 was drawn and forwarded to the defendant bank by the Harris Trust and Savings Bank on behalf of the claimants on July 9, 1931, for the collection of the amount from the defendant bank.

The claimants contend that when the Harris Trust & Savings Bank presented the demand draft, signed by them, to the defendant, it was the duty of the defendant to pay the draft by collecting the amount of the draft from the savings accounts of the claimants in the bank, and it had no authority to use the proceeds of said collection by depositing the amount with the defendant bank.

We are of the opinion that neither by the presentation of a check in person by the depositor, nor by a demand made through the presentation of a draft by a drawee bank upon a depositary bank and refusal to pay, is the amount segregated from the general fund or the deposited money made a trust fund separate and apart from the general assets; that such act of the debtor in refusing to pay would justify the creditor in maintaining an action to recover the amount due and to participate as a general creditor in the funds of the bank.

In the instant case, the acts of the parties do not indicate that it was the intention to create a fund separate and apart from the general assets of the defendant bank, and the evidence does not disclose anything but that the defendant’s refusal to pay the draft was its inability to meet the demand. There is no evidence that the bank collected the amount of the depositors’ accounts with the defendant, or that such collection was deposited by such bank to its account. The position of a depositor in a bank is made clear by the rules governing such relation upon that subject in this State. In a case in this court entitled People ex rel. Nelson v. Bryn Mawr State Bank, 273 Ill. App. 415, in which certiorari was denied by the Supreme Court, we said:

“The claimant’s position is that in view of the fact that the bank was seemingly solvent and open and doing business when the check was presented, and its payment demanded and refused, that thereby his deposit became a trust fund; that the bank held it as trustee, and that such claimant is entitled to a priority over the general creditors of the bank.

“In 7 Corpus Juris, sec. 326, pag'e 641, it is said:

“ ‘The relations between a bank and a depositor may be dual in character, the bank being the depositor’s debtor with respect to one thing and his agent with respect to another, or his debtor at one time and his agent at another; and while the relation' between the bank and a depositor in respect to a general deposit is generally regarded as that of debtor and creditor, yet in another sense the depositor is the owner of the deposit, in that he can demand repayment at any time. ’

‘ ‘ The relationship between a bank of deposit and its depositors in this State is construed and defined in People v. Farmers State Bank, 338 Ill. 134, as follows:

“ ‘As to whether or not the account was a trust fund under the facts of this case depends primarily upon the kinds of deposits made by plaintiff in error. There are but two kinds of deposits: special and general. The former include those where the bank becomes a trustee for a depositor by special agreement or under circumstances sufficient to create a trust, and general deposits are those where the bank merely becomes the debtor of the depositor. As a.rule, when money is deposited in a bank, title to such money passes to the bank. The bank becomes the debtor of the depositor to the extent of the deposit, and to that extent the depositor becomes the creditor of the bank. Such deposit then constitutes a part of the assets of the bank, and in case of insolvency of the bank that deposit belongs to the creditors of the bank in proportion to the amount of their respective claims. Well recognized exceptions to this rule are, first, where money or other thing is deposited with the understanding that that particular money or thing is to be returned to the depositor; second, where the money or thing* deposited is to be used for a specifically designated purpose; and third, where the deposit itself was wrongful or unlawful. ’ ”

In this case there was no understanding by the parties that the particular money deposited was to be returned, or that the money deposited was to be used for a specific purpose. The money so deposited was not wrongfully received by the bank. The claimants, by the deposit of the funds in defendant’s bank, and from the facts as they appear in evidence, can only be regarded as general creditors, and the fact of the demand did not establish their claim as a preferred claim to be paid prior to the claims of the general creditors. The court, therefore, in allowing* their claim as a claim to be paid together with the claims of all general creditors, did not err. For the reasons indicated, the decree of the chancellor is affirmed.

Decree affirmed.

Hall, J., concurs.

Wilson, J., dissents.

Mr. Justice Wilson

dissenting: I am unable to concur in the conclusion reached in the foregoing* opinion. Matteo Pennisi and Angela Pennisi had money on deposit in a savings account with the First Italian State Bank. They served a 60-days’ notice on the bank in accordance with the statutes and at the expiration of that time called for the money but were unable to collect it. The receiver was not appointed until several days after the last demand and after the expiration of the 60 days.

I am of the opinion that after a demand has been made and refused and the bank is still doing business, it holds the money ecc maleficio and it therefore becomes a trust fund and that by reason thereof is a preferred claim in favor of the depositor making a proper demand.

For the reasons stated, I dissent from the foregoing opinion.