author: Mr. Presiding Justice Dove

text:
    Laura May Jackson, Appellee, v. Nicholas J. Jackson, Appellant.
    Gen. No. 9,274.
    Opinion filed March 31, 1938.
    Raymond J. Harvey and Pence B. Obr, both of Joliet, for appellant.
    Baskin & Miller, of Joliet, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On August 6, 1937, the circuit court of Will county-rendered a decree awarding Laura May Jackson a divorce from Nicholas J. Jackson. On the same day a notice of appeal was filed which was, on August 16, 1937, made a supersedeas. Thereafter, at the Pebruary Term, 1938, of this court, said cause was submitted on briefs and oral arguments of counsel and an opinion therein, being Gen. No. 9,273, is this day filed.

On August 20, 1937, counsel for the plaintiff served counsel for- defendant with a notice and a copy of a petition for alimony and attorney fees pending said appeal. The notice was to the effect that on August 23, 1937, counsel would appear before the circuit court of Will county and present to the court said petition and request the court to enter an order in accordance with the prayer of that petition. On August 21,1937, counsel for the defendant served upon counsel for the plaintiff a notice to the effect that on August 23, 1937, they would file in said circuit court a petition asking for a change of venue from Judge Edwin L. Wilson, the chancellor who heard the original proceeding. Attached to this notice was the verified petition of the defendant praying for a change of venue from Judge Wilson.

The petition of the plaintiff Laura May Jackson represented that on August 6, 1937, the court had rendered a decree upon her original complaint awarding her a divorce, dismissing defendant’s counterclaim and ordering the defendant to pay her $1,500, in full of alimony and the further sum of $1,000, for her solicitor fees on or before August 21, 1937. The petition further recited that during the pendency of the original proceeding the defendant paid the plaintiff the sum of $20 per week but that she is not receiving any sum for her support during the pendency of the appeal. The petition prayed for an order directing the defendant to pay to the plaintiff during the pendency of the proceeding on appeal the sum of $20 per week and the further sum of $1,000, for her solicitor fees on appeal. On August 23,1937, this petition, together with defendant’s application for a change of venue, came on to be heard before Judge Wilson, who denied defendant’s application for a change of venue and after so doing announced that alimony would be allowed the petitioning plaintiff in the sum of $20 per week and should be paid to the plaintiff pending the appeal starting the following Monday and that a solicitor’s fee of $500 should be paid by the defendant within 30 days, the order, however, which was subsequently entered recites that the plaintiff withdrew her petition for temporary alimony, but did direct the defendant to pay to the circuit clerk on or before September 23, 1937, for the benefit of the plaintiff the sum of $500 as solicitor’s fees. From this order this appeal has been perfected.

The record discloses that counsel for appellee contended in the lower court that the petition of appellee was filed in the original divorce proceeding and that it is a continuation of that proceeding, that the application of appellant for a change of venue came after the hearing and after a decree had been rendered in the original proceeding and was therefore presented too late. Counsel for appellant call our attention to section 1 of ch. 146, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.316] which provides “that a change of venue in any civil suits or proceeding in law or equity . . . may be had . . . where either party shall fear that he will not receive a fair trial in the court in which the suit or proceeding is pending because . . . the judge is prejudiced against him,” and insist that the instant application is a proceeding within the meaning of this statute, is supplemental to the divorce decree which finally determined the rights of the parties and that after the petition for a change of venue was presented, the only order the chancellor could have entered was one granting the prayer of the petition.

No objection is made to the form, substance or sufficiency of the petition for a change of venue or of the notice to opposite counsel that a change of venue would be applied for and the record discloses that the petition was presented to the court at the very first opportunity counsel had. It is true that the issues formed by the complaint of appellee, appellant’s answer thereto, the counterclaim of appellant and the reply thereto were submitted to Judge Wilson and a final decree had been awarded from which appellant had prosecuted an appeal to this court. Section 16 of ch. 40, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.183] provides among other things that “in case of appeal by the husband or wife, the conrt in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense . . . as to such court shall seem reasonable and proper.” In pursuance to the provisions of this section of the statute, appellee filed the instant petition and the question for determination is whether such a matter, so presented, is a suit or proceeding within the meaning of section 1 of chapter 146 of our statutes.

Suit is defined as “ a proceeding in a court of justice for the enforcement or protection of a right or claim, or for the redress of a wrong: prosecution of a right or claim before any tribunal.” The Century Dictionary. The same authority says that the term proceedings “is specially applied to suits and judicial actions of all kinds involving rights of persons or of property, as well as to the course of steps or measures in the prosecution of actions at law.” The Century Dictionary, Vol. 5, page 4744. In McPike v. McPike, 10 Ill. App. 332, it was held that a petition filed by the husband after a decree of divorce had been granted, for the purpose of having the alimony awarded by that decree reduced and the entire custody of the minor child awarded .to him, was a suit within the meaning of the statute relating to change of venue. The opinion in this case quoted definitions of the word “suit” from Webster, Blackstone, Bouvier, Stephens on Pleading and Waite’s Actions and Defenses and concluded: “From these authorities we think that we may safely assume that this is a ‘suit or proceeding in law or equity. ’ It is a proceeding expressly provided for by the statute and grows out of the proceedings had before that time; still it is for the purpose of redressing a supposed injury or for the establishment of an alleged right. The Supreme Court of this State have quite frequently entertained appeals from the judgments of the circuit courts in cases of this character, thereby treating the petition as an independent action; and if an appeal would lie, it is difficult to see why a petition for a change of venue should not be entertained. It is insisted by the learned counsel for appellee that the petition for a change of venue ought not to be allowed, because the court to which the venue should be changed would have no evidence that there was an original decree, of which the proceeding was a mere adjunct, and that there is no law for a removal of the records upon a change of venue, etc. We do not see the force of this objection. In this case the only controverted points were, whether the alimony should be reduced, and whether the entire custody of the child should be awarded to appellee. Even if matters of record were desired, or required to be introduced in evidence, the law points out the method by which it may be done, and the statute provides for transcripts in cases of a change of venue. As we have said, the proceeding grows out of the suit for a divorce, and the decree therein rendered; yet it is none the less the demand of a right expressly awarded and given by the statute. It is a supplemental question, and we have no doubt but what appellant had a right to have that question determined by a judge who was not, as she believed, prejudiced against her. In civil cases, the granting of a change of venue is not discretionary. It is an absolute right, given the party making the application, if the papers are in compliance with the provisions of the statute.”

In Des Chatelets v. Des Chatelets, 292 Ill. App. 357, it appeared that in 1933 a decree for divorce and awarding the plaintiff, Alice Des Chatelets, alimony and the custody of the children of the parties was rendered by the superior court of Cook county. In August, 1936, a petition was filed in the same proceeding by the husband to modify the decree and praying that the custody of the children be awarded to him. Upon a hearing the prayer of this petition was granted and thereafter the husband filed another petition to modify the decree by vacating that portion which provided for the payment of $50 a month alimony. Alice Des Chatelets filed a petition for a change of venue from the judge before whom the petition was pending and who had entered the previous order awarding the children to the husband. The petition for a change of venue was denied. The Appellate Court, however, in its opinion, quoted extensively and approvingly from McPike v. McPike, supra, reversed the order appealed from and remanded the cause with directions to grant the change of venue.

Counsel for appellee seek to distinguish these cases by insisting that the decree in the instant case had not become final because the appeal was pending in this court while in the McPike and Des Chatelets case, supra, the decrees had been entered and several years had elapsed before applications to modify their terms were made. The divorce decree in the instant case, at the time the petition herein was filed by appellee, was a final decree. The notice of appeal had been filed and the cause was pending in this court and the circuit court, except for some purposes not material here, had lost jurisdiction of the cause. Under the provisions of the Divorce Act herein referred to, the circuit court was authorized to grant and enforce the payment of a sum of money in order to enable appellee to present her cause to this court but the words circuit court do not necessarily refer to the chancellor who heard the original divorce proceeding and who approved the decree rendered therein. Those words refer to the tribunal upon which jurisdiction to hear and determine the cause had been conferred by law and which had heard and rendered a decree.

Counsel for appellee further argue that the granting of alimony or solicitor fees pending an appeal' in a divorce case is granted specifically by statute and is by the statute made a part of the proceedings on appeal. As stated in Ragland v. Ragland, 271 Ill. App. 518, the statute in cases of divorce creates an exception to the general rule that with the consummation of an appeal a court has no further authority to make orders in the case, as it, the statute, in direct terms, permits the court, after an appeal has been perfected from a decree awarding a divorce, to grant and enforce an order requiring the husband to pay to his wife the reasonable and necessary cost of defending her cause upon a review of the case. It does not, however, necessarily follow that the proceedings had after the decree of divorce is granted and an appeal perfected that such supplemental proceedings are a part of the proceedings of the trial court to be reviewed on an appeal from the original decree. In the instant case the parties hereto have treated the supplemental proceedings as independent of the original proceeding and the record discloses that the notice of appeal herein was filed on August 30, 1937, that the appearance of appellee, by her counsel, was filed on September 2, 1937, that the general number of this cause in this court is 9,274, that appellee filed herein her briefs on-January 24, 1938, that this cause was orally argued and is independent of the divorce proceeding which is General No. 9,273.

In our opinion the chancellor erred in denying the prayer of appellant’s petition for a change of venue •and for that error the order appealed from will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Ole Svela, Appellant, v. Isadore M. Bloch, et al., Appellee.
    Gen. No. 9,288.
    Opinion filed March 31, 1938.
    Scott & White, of Glen Ellyn, for appellant.
    Ralph B. Treadway and Gale 0. Marquess, both of Glen Ellyn, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On September 14, 1926, a bill to foreclose a mechanic’s lien was filed in the circuit court of DuPage county by Ole Svela. The bill made Isadore M. Bloch, DuPage Trust Company and Herman Weiss, defendants, and alleged among other things that the complainant was a contractor and on November 15, 1927, entered into a verbal contract with the defendant Bloch, the owner of the premises described in the complaint, by the terms of which the complainant furnished certain labor and material in making certain described improvements upon said premises for which there was due the complainant at the time the bill was filed the sum of $2,699.80, together with interest thereon from September 15, 1927. The bill prayed for an accounting and that the defendants be decreed to pay the complainant the amount so found due and that in default thereof the premises be sold under the order and direction of the court.

Personal service was had upon the DuPage Trust Company, a corporation, on May 23, 1930, upon the defendant Herman Weiss, May 29, 19.30, and upon defendant Isadore M. Bloch, May 15, 1931. None of the defendants filed an answer or entered any appearance in the proceeding and on November 27, 1931, a decree was entered defaulting the defendants and ordering that the bill of complaint be taken for confessed against them. On the same day the following order was entered: “Proofs heard. Decree as per draft (to be filed).”

No further action was taken in the proceeding until May 20, 1937, at which time Fannie P. Newton served notice upon the complainant and upon his attorneys advising them that she was the present owner of the property involved in the proceeding and that on May 26,1937, she would move the court for leave to be made a party to the proceeding and to have set aside the portion of the record showing that on November 27, 1931, proofs had been heard and that a decree as per draft was to be filed and to have said cause dismissed for want of prosecution. This petition was duly filed on May 26,1937, and subsequently an amended petition filed on June 10,1937. This amended petition described the premises involved herein and alleged that petitioner was the present title holder and sole owner thereof subject to the incumbrances thereon of record, that she derived title and ownership thereof from the said DuPage Trust Company by deed dated April 4, 1934, that the complainant Ole Svela instituted this proceeding to foreclose a mechanic’s lien on September 14, 1929, that he prosecuted said suit without any appreciable delay or interruption until November 27, 1931, on which date an order of default was entered by the court, defaulting all defendants in said suit, that thereupon proofs were heard and the court found that the mechanic’s lien of Ole Svela, the complainant, was an inferior lien to the mortgage lien theretofore existing on the property in favor of the defendant Herman Weiss and that on that day an order was entered showing that the proofs were heard and a decree awarded “as per draft to be filed,” that since November 27, 1931, there has been no affirmative action taken in said suit and that the decree contemplated and considered by the court in the entry of the above order has not been filed. Her petition further alleged that she had no knowledge of the pendency of this proceeding until immediately previous to the time she filed herein her original petition, that she had paid interest upon the first mortgage dated November 17, 1925, and that due to the delay in prosecuting this proceeding she had sustained irreparable injury through no fault of her own or lack of diligence on her part. The prayer of her amended petition was that the order entered on November 27, 1931, “Decree as per draft (to be filed),” be stricken or set aside and that said proceeding be dismissed for want of prosecution. To this amended petition the complainant, Ole Svela, filed his motion to strike. Upon a hearing this motion was, on September 10, 1937, denied and Svela ruled to answer the amended petition within 7 days. Before the expiration of said 7 days and on September 15, 1937, Svela gave opposite counsel notice that he had elected to abide by his motion to strike and that he refused to answer the petition as amended and the chancellor, accordingly, on September 16,1937, entered an order so finding and further finding that the intervener, Fannie P. Newton, had sufficient interest in the subject matter of this cause to entitle her to intervene and to have her petition adjudicated, that the allegations of her amended petition were admitted by the motion of Svela to strike the same and that she was entitled to the relief sought. This order struck from the record the order of November 7, 1931, reading as follows: “Decree as per draft (to be filed) ’ ’ and dismissed the bill for want of prosecution. From this order, the original complainant, Ole Svela, has prosecuted this appeal.

Counsel for appellant state that in a proper case a court may, before a hearing, dismiss a cause for a failure upon the part of the plaintiff to prosecute his suit with due diligence but insist that in the instant cause there was no want of prosecution, that the cause had been heard and decided and that after a hearing a suit cannot be dismissed for want of prosecution. In support of this contention the cases of Cleaver v. Smith, 114 Ill. 114 and Maffenbier v. Gearhart, 257 Ill. 315, and Yott v. Yott, 257 Ill. 419, are called to our attention.

In Cleaver v. Smith, supra, it appeared that some of the defendants had answered and that a replication had been filed and the cause set for hearing. At that time the complainant did not appear and the court entered a decree dismissing the bill for want of equity and the Supreme Court held that the proper order to have entered was to dismiss the suit for want of prosecution. In Maffenbier v. Gearhart, supra, it appeared that the defendants had answered the bill, that a replication had been filed and the cause referred to the master to take the evidence. At the hearing before the master, the evidence offered on behalf of the defendants was taken by the master and reported to the court. The decree recited that the cause was heard upon the bill, answer, replication and master’s report, that the court heard the evidence and arguments of counsel and dismissed the bill for want of equity, and the Supreme Court held that the chancellor was not required, under those circumstances, to dismiss the bill for want of prosecution but affirmed the decree dismissing the bill for want of equity.

In Yott v. Yott, supra, it appeared that the bill to contest the will of Francis Yott was filed on June 1, 1911. On February 20, 1912, the cause was called for trial and the solicitor for the complainants and the solicitor for three of the defendants who had been served with process and who had answered appeared. The solicitor for the complainants requested a continuance and an alias summons, as two of the heirs at law of the testator, who had been made defendants, had not been served with process. It further appeared that there were two nonresident infant defendants who had been served by publication and one insane defendant who had been personally served but no guardian ad litem had been appointed for the infant defendants or for the insane one at the time the cause was called for trial. No motion to dismiss the cause was made by counsel representing the defendants who had answered but the court of its own motion dismissed the bill for want of prosecution. In reversing this decree the Supreme Court, speaking through Mr. Justice Cartwright, said: “It was, perhaps, not essential that there should be any motion by the three defendants who had filed an answer to dismiss the bill for want of prosecution, since the court in a proper case could dismiss it for that cause on his own motion and the power exists independently of any statute. Ordinarily there has been a motion by the opposite party, and the dismissal has been approved or disapproved under various circumstances. Sanitary District v. Chapin, 226 Ill. 499, was a proceeding to condemn land under the Eminent Domain statute, which was summary in its nature. Nothing had been done for four years, and the land had greatly increased in value while the damages would have to be ascertained as of the time of filing the petition, and the action of the court was sustained. In Bonney v. McClelland, 235 Ill. 259, the suit was for libel, and the court having been shown by an affidavit that the defendant was entitled to a speedy trial, advanced the cause and set it for trial on a fixed day. The delay was less than five months, but it was held that the order advancing the cause rested in sound legal discretion, which would never be interfered with except for manifest abuse, and that in view of the conduct of the plaintiff the suit was properly dismissed. Rodman v. Wurzburg, 183 Ill. 395, was an election contest governed by chancery rules, where there was a right to a speedy trial. It was held the court was not authorized to dismiss the petition for want of prosecution because of the petitioner’s refusal to proceed to an immediate hearing when the cause was not at issue. In Leonard v. Garland, 252 Ill. 300, there had been a delay of eight months, and the complainants being in court and objecting to a dismissal of their bill, it was held that the action of the court could not be sustained on the alleged ground of a failure to prosecute the suit with due diligence. These cases illustrate the principle that each, case must be judged by its own facts and circumstances. It is the duty of a complainant to prosecute his suit with diligence and if there is unreasonable delay his bill ought to be dismissed, but the purpose of courts and of the law is to accomplish justice, and to give to every litigant an opportunity to present his cause if he has not been guilty of such negligence as to forfeit his fight. In this case the cause was not ready for trial and could not have been tried, as was well known at the time. . . .No guardian ad litem had been appointed for the infant defendants or for the insane one. Doubtless there had been inattention on the part of the solicitor for the complainants, and generally the'client must suffer for the negligence of his solicitor, but the limitation fixed by the statute for suits to contest wills is very short and in this case had expired, so that the dismissal of the bill left the complainants without any opportunity to present their claims as to the invalidity of the will. In view of all the circumstances we think the court should have entered some rule to expedite the cause and to have given sufficient time to permit the complainants to secure service on the defendants not served and who did not appear.”

In the instant case the only decree that had been entered prior to the order of September 16, 1937 (from which this appeal is prosecuted) was an interlocutory one entered on November 27, 1931, which recited service on the defendants and defaulted them. The record discloses that on that day proofs were heard and a decree as per draft was to be filed. The nature or substance of the decree which the chancellor indicated he would approve does' not appear from the record as no decree was ever presented to the chancellor for approval. According to the allegations of the petition of appellee the court found that the mechanic’s lien of appellant which he sought to foreclose was inferior to the mortgage lien of defendant Weiss. The petition of appellee also discloses that she, at the time of filing her petition, was the sole owner of the premises which appellant sought by his bill filed September 14, 1929, to subject to the payment of the amount alleged to be due him. She therefore had a direct interest in the subject matter of the litigation which appellant had instituted. She certainly had substantial rights which it was equitable for the chancellor to consider and she therefore had a right to intervene. Schaeffer v. Potgel, 238 Ill. App. 335.

In our opinion the chancellor correctly held that appellee had a right to intervene and that the allegations of the amended petition were sufficient to.require appellant to answer and appellant was ruled to answer the same within a week. Appellant refused to answer and elected to abide by his motion to strike. The record discloses that from November 27, 1931 until September 16, 1937, when the final order dismissing this suit was entered, appellant took no affirmative step toward prosecuting his foreclosure proceeding. to a final determination. Under all the authorities of this State it is the duty of a plaintiff to prosecute his suit with due diligence and if there is unreasonable delay the suit will be dismissed unless the delay is shown to be excusable. Here almost 6 years elapsed between November 27, 1931 and September 16, 1937, during all of which time appellant did nothing, except to move on June 21, 1937, to strike the amended petition of appellee which in effect called upon him to show cause why his suit should not be dismissed for want of prosecution. It cannot be seriously contended that appellant prosecuted his suit with proper diligence. His failure to prepare and have approved and filed the final decree according to the order of November 27, 1931, indicates his wilful and deliberate abandonment of all effort to further prosecute his suit.

Counsel argue, in their reply brief, that before the chancellor was warranted in dismissing this suit appellee should have procured a rule on appellant to expedite the cause. Under the facts as shown by this record, we do not think so. Furthermore upon the facts being disclosed to the chancellor as they appear from appellee’s petition, it occurs to us that if appellant had any excuse to offer for his unreasonable delay, it was incumbent upon him to set that excuse up by way of an answer to appellee’s petition. This appellant refused to do. As said in Sanitary District v. Chapin, 226 Ill. 499, at page 502, none of the cases cited and relied upon by appellant go to the extent of allowing a plaintiff to do nothing for several years and then to answer a motion to dismiss by saying that he is now ready to proceed. In the instant case, however, appellant does not even say he is ready to proceed, he refuses to attempt to excuse his delay and refuses to ask any further indulgence of the court. The decree appealed from is right and should be affirmed.

Decree affirmed.


text:
    C. V. Johnson, Appellant, v. Ottawa Cooperative Grain Company, Appellee.
    Gen. No. 9,295.

      Opinion filed March 31, 1938.
    Wood, McNeal & Gehlbach, of Moline, for appellant.
    Hibbs & Pool and Butters, Butters & Berry, both of Ottawa, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On March 10, 1936, an amended complaint was filed in the circuit court of La Salle county, to which a motion to strike was, by the court, sustained and the . amended complaint was stricken. The plaintiff having elected to abide by its amended complaint, the suit was therefore dismissed at the costs of the plaintiff and the plaintiff has prosecuted this appeal.

The amended complaint is as follows: “C. V. Johnson, Trustee, Plaintiff, in his capacity as trustee under a trust agreement from Airforce Conveyor Sales, Inc., a corporation, duly organized under the laws of the State of Illinois on November 3, 1931, and having its principal office at Moline, in Rock Island County, Illinois, dated the 26th day of May, A. D. 1932, and as mortgagee under a chattel mortgage from said corporation to the plaintiff, dated the first day of September, 1932, and recorded in the Recorder’s office of Rock Island County, Illinois, on the 3rd day of September, A. D. 1932, as Document No. 32825, in Book 102 of Chattels, on page 201 thereof, says: 1. That heretofore, on or about the 26th day of May, 1932, Airforce Conveyor Sales, Inc., duly organized under the laws of the State of Illinois, on November 3, 1931, and having its principal office at Moline, in Rock Island County, Illinois, (hereinafter referred to as ‘the corporation’), was indebted for money loaned and advanced to it or on its behalf, and to secure the payment of the same it executed and delivered its thirty trust notes, or writings obligatory, all dated the 26th day of May, 1932, all payable to order of Clark Gr. Anderson, Trustee, said notes being for the sum of Two Hundred Dollars ($200.00) each; all being payable on or before five years after date with interest at seven per cent per "annum after said date, said interest being due and payable July 1, 1932 and on the first day of each month thereafter, in accordance with the terms of a certain trust agreement. 2. Said trust agreement was and is in words and figures following: ‘Trust Agreement’ This agreement made and entered into this 26th day of May, A. D. 1932, by and between Airforce Conveyor Sales, Inc., (a corporation organized and existing under and by virtue of the laws of the State of Illinois) of the City of Moline, State of Illinois, (hereinafter called the corporation) and Clark Gr. Anderson, of the City of Moline, State of Illinois, (hereinafter called the Trustee) Witnesseth: Whereas, the corporation owns a grain loading station located at #301 Joliet Street in the City of Ottawa, State of Illinois, which station is now under lease, and Whereas, the corporation has borrowed Six Thousand (6,000) Dollars and issued its Trust Notes in the aggregate amount of Six Thousand (6,000) dollars as evidence of said loan, and has deposited said notes with the trustee, and Whereas, the proceeds of said loan are to be deposited with the trustee by the agent arranging said loan in exchange for the aforesaid trust notes and Whereas, the corporation desires to provide for the payment of interest and re-payment of principal of said notes by assignment of the lease on said station to the trustee, the entire rental under said lease to be collected by the trustee as it becomes due, and to be received by the trustee in trust, and disbursed by him as hereinafter provided, and Whereas, the trustee has accepted the trusts created by this instrument, Now, therefore, in consideration of the premises and of the mutual covenants herein contained, it is agreed as follows: 1. That the trustee shall pay over the proceeds of said loan to the corporation when and as said proceeds are deposited with him. 2. That the corporation shall assign the lease on said station and all rights thereunder to the trustee, and by such assignment shall give the trustee exclusive “ right to the possession of a.nd income from said station for the purpose of this agreement. In the event of the termination of the assigned lease for any cause, the corporation shall make such new lease or leases as shall be for the best interests of the beneficiaries of this trust, and the parties hereto, and shall immediately assign said lease or leases to the trustee; provided that should the corporation fail to make and assign a lease to the trustee within sixty days from the termination of any lease, the trustee may make such new lease or leases as in his judgment shall be for the best interests of the parties hereto. 3. That the trustee shall collect the rental from such station direct from the lessee each month as said rental becomes due, and apply and disburse the money so collected as hereinafter provided; 4. That the trustee from the money collected as rent, shall first set aside each month a sufficient amount to pay the interest on the said notes and from such money so set aside shall pay the interest on the aforesaid notes when and as such interest becomes due. The balance of the rent, after deduction of interest, shall be divided each month into two equal parts, one of which parts shall be known as the liquidation fund. 5. That on or before the first anniversary of this agreement, and quarterly thereafter, the trustee shall apply the residue of the liquidation fund to the payment of the principal of the aforesaid notes, paying such notes as his funds shall permit him to pay in full. 6. That the corporation shall keep the station in good repair, and shall pay all taxes, ground rents and other charges incident to the ownership of the said station. In the event the corporation fails to make such necessary repairs or any such payment, then the trustee may make them and deduct the amount thereof from that part of the rent due the corporation. 7. That the trustee shall receive as compensation for services five (5) per cent of all money collected by him as rent of said station, and shall be reimbursed for all necessary expenses properly incurred in carrying out the provisions of this trust. Such compensation and expenses to be deducted from moneys coming into his hands as rent from said station. 8. That all moneys coming into the hands of the trustee, the payment of which is not specifically provided for herein, shall be paid monthly by the trustee to the corporation, except that the trustee may hold in his hands a reserve fund of one hundred dollars until the termination of this trust. 9. That in the event there is insufficient money in the liquidation fund on the fifth anniversary of this agreement to completely liquidate all outstanding notes issued hereunder together with interest, the trustee shall demand of the corporation sufficient funds to complete such liquidation, and upon failure of the corporation to immediately supply such funds, he shall take such action against the corporation as may be necessary to collect such funds; and until the liquidation of said notes and interest together with all expenses and charges incident to the liquidation of this trust shall have been paid in full, he shall continue under this trust to collect the rental of said station, and shall apply the entire amount so collected to the liquidation of said notes, interest, expense and charges. 10. That immediately upon the completion of the liquidation of this trust, the trustee shall cause this instrument to be released, shall turn over to the corporation all notes issued under this agreement, duly cancelled, and shall pay over to the corporation all money remaining in his hands, shall reassign to the corporation any lease or leases held by him and make any other acquittances required in the premises. 11. That the trustee shall have full power to do any and all things necessary to carry out the trust, bring any suit or action which in his judgment shall be necessary to enforce the provisions of this agreement, and shall be entitled to be reimbursed for all necessary expenses properly incurred thereby. If in the judgment of the trustee any suit or action should be necessary at any time to protect the interest of the corporation or the note holders, and the trustee should have insufficient funds on hand ■ to prosecute such suit or action, he shall immediately notify the party or parties whose interests are in jeopardy, and he shall be bound to bring such suit or action only after such funds necessary to reimburse him for the expense of said suit or action have been to him advanced. 12. That the trustee shall be responsible only for the exercise of good faith and reasonable care in the collection of moneys belonging to the trust, and in the exercise of his discretionary powers he shall be liable only in case of wilful bad faith or wilful wrongdoing. In Witness Whereof, the corporation has caused its signature and seal to be hereunto affixed by its duly authorized officers and the trustee has hereunto set Ms hand and seal this date and year first above written. Airforce Conveyor Sales, Inc. By V. W. Garris President Attest: Chas. F. Myers Secretary Clark Q-. Anderson (Seal) Trustee (Airforce Conveyor Sales, Inc. Corporate Seal Illinois). 3. On July 23, 1932, said Clark Gr. Anderson resigned said trust and plaintiff was duly appointed trustee under said trust agreement and accepted said appointment and became successor in trust to said Clark Gr. Anderson, under said trust agreement. Said resignation and acceptance were and are in words and figures following: ‘This Agreement made at Moline, Illinois, this 23rd day of July, A. D. 1932, by and between Clark Gr. Anderson, as trustee, and Airforce Conveyor Sales, Inc., a corporation; Witnesseth: Whereas, the parties hereto entered into a certain trust agreement, dated May 26th 1932, whereby said Clark Gr. Anderson became trustee of the income of the grain loading station located at #301 Joliet Street, in the City of Ottawa, State of Illinois; and Whereas, because of the removal of said Clark Gr. Anderson from the city of Moline, Illinois, to Denver, Colorado, it is necessary that said Clark Gr. Anderson resign as trustee under said trust agreement and a new trustee be appointed as successor in trust; and Whereas, it is agreeable to the parties hereto, that C. V. Johnson be appointed and constituted trustee under said trust agreement in the place and stead of said Clark GL Anderson, and said C. V. Johnson is ready and willing to accept the trust; Now, therefore, in consideration of the premises and of the mutual covenants herein contained, the resignation of said Clark Gr. Anderson as trustee under said trust agreement is hereby accepted, and he is hereby discharged from any and all duties, privileges, rights and liabilities as such trustee, provided that he render a just and true account of all his doings as such trustee; and that said C. V. Johnson be and he is hereby appointed and constituted trustee under said trust agreement, succeeding to all the rights and duties of said Clark Gr. Anderson, as the original trustee under said trust agreement. In Witness Whereof, the said corporation has caused its name and seal to be hereunto affixed by its duly authorized officers and the said Clark Gr. Anderson has hereunto set his hand and seal the day and year first herein-above written. Airforce Conveyor Sales, Inc. By V. W. Garris, President Attest: Chas. F. Myers, Secretary Clark Gf. Anderson (Seal). I hereby accept the above appointment as trustee under said trust agreement and agree to carry out the provisions thereof. C. V. Johnson (Seal). 4. Fifteen of said trust notes were sold, transferred and delivered for valuable consideration by said Clark Gf. Anderson and the plaintiff, as trustee and successor in trust respectively; and thereafter from time to time said trust notes were resold, retransferred and redelivered for valuable consideration to divers and sundry persons, which persons thereupon became the bona fide holders thereof for value, and said fifteen trust notes are now owned and held by the following named persons and are in the principal amounts set opposite the names of such persons: J. W. Dunahugh 7 notes $1,400.00; Victor Johnson 1 note $200.00; C. V. Johnson 2 notes $400.00; Ralph Anderson 1 note $200.00; Oscar Ellis, Receiver of LeClaire Hotel 4 notes $800.00 5. To further secure payment of said Six Thousand Dollars ($6,000.00) mentioned in said trust agreement, on or about September 1, 1932, said corporation made and executed its certain promissory note, dated at Moline, Illinois, the first day of September, 1932, for the sum of $6,000.00, for value received, payable to plaintiff, as trustee under said trust agreement, on or before three years after said date, with interest at seven per cent per annum from and after said date until fully paid; that said note provided that the purpose of the note was to evidence the obligation of the maker thereof for the payment of said sum of Six Thousand Dollars, as set forth in said trust agreement, and that the sum of Six Thousand Dollars set forth in said trust agreement and the principal sum mentioned in said note were one and the same indebtedness; that said promissory note was and is in words and figures following: ‘Moline, Illinois, September 1,1932. On or before three (3) years after date, for value received, the Airforce Conveyor Sales, Inc., hereby promises to pay to the order of C. V. Johnson, Trustee, under a certain trust agreement dated May 26, 1932, the sum of Six Thousand Dollars ($6,000.00), at its principal office in the City of Moline, Illinois, together with interest at 7 % per annum from and after date hereof until fully paid. This note is secured by a chattel mortgage to C. V. Johnson, Trustee, of even date herewith, on personal property located at Ottawa, Illinois. The purpose of this note is further to evidence the obligation of the maker hereof for the payment of said sum of $6,000.00 as set forth in said trust agreement; the said sum of $6,000.00 so set forth in said trust agreement and the like sum herein-above mentioned being one and the same indebtedness, and the satisfaction of the one will be and constitute satisfaction of the other. Airforce Conveyor Sales, Inc. By V. W. Garris President Attest: Chas. F. Myers, Secretary. ’ 6. On the date of said note, said corporation was the owner of the goods and chattels described in the chattel mortgage hereinafter set forth, and to secure payment of said note, said corporation, on the same date, duly made, executed, acknowledged and delivered in conformity with the laws of the State of Illinois in reference to chattel mortgages, its chattel mortgage, and on September 3, 1933, said mortgage was filed for record in the office of the Recorder of Deeds of Rock Island County, Illinois, and recorded in Book 102 of .Chattels, on page 201 thereof; said chattel mortgage and acknowledgment and certificate of filing were and are in words and figures following: ‘Filed and recorded Sept. 3-1932, at 11:50 o’clock A. M. 32825 Sam Byerson, Becorder of Deeds Book 102 Page 201 This Indenture, Made this 1st day of September, in the year of Our Lord One Thousand Nine Hundred and Thirty-two, between Airforce Conveyor Sales, Inc., an Illinois corporation, having its principal office in the City of Moline, Bock Island County, Illinois, party of the first part and C. Y. Johnson, Trustee, party of the second part. Witnesseth that the said party of the first part, for and in consideration of the sum of Six Thousand and no/100 Dollars, in hand paid, the receipt of which is hereby acknowledged, does hereby grant, sell, convey and confirm unto the said party of the second part, his successors and assigns, all and singular the following described goods and chattels, to-wit: The complete grain loading station located at No. 301 Joliet Street, Ottawa, Illinois, including one complete blower, 1000 bushel capacity; One complete set wagon and truck scales; One complete platform and drive; One scale house and office; Two electric motors; One air hoist with pump, tank, valves, regulators, and other equipment; Four steel bins of approximately 1000 bushel capacity each; and auger conveyors, piping, elbows, Y-spouts; and all other attachments, appurtenances, and equipment of every kind as now located at said address; Together with all and singular the appurtenances thereunto belonging, or in any wise appertaining. To have and to hold the same unto the said party of the second part, his successors and assigns, to his and their sole use forever. And the said party of the first part, for its successors and assigns, does covenant and agree with the said party of the second part, his successors and assigns, that it is lawfully possessed of the said goods and chattels, as of its own property; that the same are free from all incumbrances, and that it will, and its successors and assigns shall, warrant and defend the same unto the said party of the second part, his successors and assigns, against the lawful claims and demands of all persons. Provided, nevertheless, that if the said Airforce Conveyor Sales, Inc., party of the first part, its successors or assigns, shall well and truly pay, or cause to be paid unto the said party of the second part, his successors or assigns, the sum of Six Thousand Dollars, on or before three (3) years after date hereof, at its principal office in said City of Moline, together with interest at 7% per annum from and after date hereof until fully paid, according to the tenor and effect of its one certain promissory note of this date, then and from thenceforth these presents and everything herein contained shall cease and be null and void. And provided, also, that it shall be lawful for the said party of the first part, its successors or assigns, to retain possession of the said granted property, and at its own expense to keep and to use and enjoy the same, until the party of the first part, or its successors or assigns, shall make default in the payment of said sum of money above specified, either in principal or interest, at the time or times, and in the manner hereinbefore contained, or unless said party of the second part shall fear diminution, removal or waste, for want of proper care, or if the said party of the first part shall sell or assign, or attempt to sell or assign, the said goods and chattels, or any part thereof, or if any writ issued from any Court, shall be levied on any part of the above described goods and chattels, that then and in any of the aforesaid cases, all of said note, both principal and interest, shall become due and payable, and said party of second part, his successors and assigns, agents or attorneys, or any part of them may elect thereupon to take possession of said property and for that purpose may pursue the same, or any part thereof, wherever it may be found, and also may enter any of the premises of the said party of the first part, with or without force or process of law, wherever the said goods and chattels may be, or be supposed to be, and search for the same, and if found, to take possession of and remove, and sell and dispose of said property or any part thereof at public auction, to the highest bidder, after giving ten days’ notice of the time, place and terms of sale, together with a description of the property to be sold, either by publication in some newspaper in the County of Rock Island, Illinois, or by similar notices posted up in three public places in the vicinity of such sale, or at a private sale, with or without notice for cash or credit, as the said party of the second part, successors or assigns, agents or attorneys, or any of them may elect, and out of the money arising from such sale to retain first, all costs and charges for pursuing, searching, taking, removing, keeping, storing, advertising and selling of such property, goods, chattels, and effects and all prior liens, together with the amount due and unpaid' upon said note, or any of them, either in principal or interest, rendering the overplus of money arising from such sale (if any there be) unto the party of the first part or its legal representatives. In Witness Whereof said corporation has caused its name and seal to hereunto affixed by its duly authorized officers, the day and year first hereinabove written. Airforce Conveyor Sales, Inc. By V. W. Carris President Attest: Chas. P. Myers Secretary (Airforce Conveyor Sales, Inc. Corporate Seal Illinois). State of Illinois County of Rock Island SS, I, Ruby S. Miller, a Justice of the Peace in and for said county, do hereby certify that this Chattel Mortgage was duly acknowledged before me by Airforce Conveyor Sales, Inc., a corporation, by V. W. Carris, President, the Mortgagor, this 3rd day of September, A. D. 1932, and the contents thereof entered on page 826 of my docket. Witness my hand and seal. Ruby S. Miller (Seal) Justice of the Peace.’ ‘ State of Illinois Rock Island County SS 32825 I, Sam Ryerson, Recorder of Deeds in and for said County, do hereby certify that this Chattel Mortgage was filed for record in my office on the 3 day of Sept. A. D. 1932, at 11:50 o ’clock A. M., and duly recorded in Book 102 of Chattels, on page 201. In Witness Whereof, I have hereunto set my hand, at my office in Rock Island, the day and year above written. Sam Ryerson Recorder of Deeds’ 7. In connection with the execution and acknowledgment of said chattel mortgage, plaintiff says that at the time of the execution and acknowledgment thereof, Section 4 of Article 5 of the by-laws of said corporation provided in part as follows: ‘The president . . . shall execute all deeds, leases, conveyances, agreements and contracts authorized by the board of directors. . . . ’ And Section 5 of said article of the by-laws of the corporation then provided that: ‘the secretary shall attest or countersign all deeds, leases, conveyances, agreements and contracts executed by the corporation and affix the corporate seal thereto. . . . ’ 8. On September 1, 1935, said note became due and payable and said corporation defaulted in the payment of said note or any part thereof to the plaintiff; on September 4, 1935, plaintiff declared that default had been made in the payment of said note and thereupon plaintiff became and was entitled to the immediate possession of said goods and chattels, and appointed the sheriff of LaSalle County, Illinois, as his agent for the purpose of selling said goods and chattels and delivering possession of the same to the ■ purchaser at such sale, in accordance with the powers contained in said mortgage; said agent caused notices to be posted in the manner required by law and the provisions of said mortgage, of his intention to offer said goods and chattels for sale at public auction on September 17,1935, at 10:00 o’clock in the forenoon, at No. 301 Joliet Street, Ottawa, Illinois; on the last-mentioned date, Ottawa Cooperative Grain Company, a corporation (hereinafter referred to as the defendant), appeared at the Sheriff’s office in the Court House at Ottawa, Illinois, by its president and attorney, and claimed to be in possession of said goods and chattels by virtue of alleged rights, the precise nature of which being unknown to plaintiff; such rights, if any, in said goods and chattels are subsequent to and subject to plaintiff’s lien therein under and by virtue of said mortgage. 9. On September 17, 1935, plaintiff demanded possession of said goods and chattels from defendant and defendant then refused to permit plaintiff or his agent to take possession of said goods and chattels, for the purpose of selling said goods and chattels under the powers contained in said mortgage, and wrongfully and unjustly detained possession of said goods and chattels from plaintiff. Therefore plaintiff prays for the judgment of this Court finding that said goods and chattels were wrongfully detained by the defendant and that the plaintiff is and at the time of said demand was entitled to possession of said goods and chattels; and prays for judgment for damages for the detention of said goods and chattels while the same have been wrongfully detained by the defendant, and in the event said goods and chattels, or any part thereof are not found, for the value thereof, or his interest therein, and for such damages as plaintiff shall have sustained by reason of the wrongful detention, and for costs in this behalf most wrongfully sustained.”

It is first insisted by counsel for appellee that this amended complaint fails to allege that appellant, as trustee, was authorized, by the trust agreement, to bring this suit and likewise fails to show that he had authority to take the chattel mortgage mentioned and described in said amended complaint. An examination of the provisions of the trust agreement which is set forth in the amended complaint discloses that one of its objects and purposes was to provide a means of securing the payment of the notes which were given to evidence the indebtedness of the Airforce Conveyor Sales, Inc., to the various noteholders. The trustee therefore had, if not an express power, certainly an implied power to accept the chattel mortgage as additional security for the payment of that indebtedness. Furthermore, the trust agreement expressly provided that the trustee should have full power to do any and all things necessary to carry out the trust and full power to bring any suit or action which in his judgment should be necessary to enforce the provisions of the trust agreement. An action at law must always be brought by the party who has a legal interest in the property or subject matter involved in the proceeding. In this proceeding it was necessary therefore for appellant to state facts showing that he was entitled to the possession of the property described in the complaint and in our opinion the act of the trustee in taking the note and chattel mortgage was consistent with and not in contravention of the powers given him under the trust agreement.

Counsel for appellee, insist, however, that the trust agreement was made for the purpose of assigning the lease on the grain loading station to the trustee and giving the trustee exclusive right to the possession of, and to the income from, the station and counsel argue that the giving of the chattel mortgage is in direct conflict with this purpose because the chattel mortgage provides that the corporation may retain possession of the grain loading station. By this argument counsel concede that the trust agreement gave the trustee the right to the possession of the property involved herein and if he is the party entitled to possession thereof, he is the proper party to bring this suit. The true purpose of the trust agreement as disclosed by all its provisions was to provide a means of securing the payment of the several notes given by the corporation to the various holders of those notes and in our opinion gave him full power and authority to bring about the result by instituting this proceeding.

It is next insisted by counsel for appellee that it appears from the allegations of the amended complaint that there was no consideration for the execution and delivery of the note for $6,000, and the chattel mortgage given to secure its payment. In support of this contention, counsel argue that the amended complaint discloses that the Airforce Conveyor Sales, Inc. executed 30 notes on May 26, 1932, payable 5 years after date and that the maker thereof was, therefore, obligated to pay the indebtedness evidenced by these notes on May 26, 1937; that in a little more than 3 , months. after the execution of these notes and on September 1, 1932 the maker of these notes executed the $6,000 note due September 1, 1935, and secured the payment thereof by the chattel mortgage described in the amended complaint; that the amended complaint does not disclose any new consideration passing to the maker of the $6,000 note and therefore by this promise the maker assumed an additional obligation to pay almost 2 years before he was obligated to pay as provided by the notes of May 26, 1932, which did not mature until May 26, 1937.

Counsel concede that a pre-existing debt furnishes a sufficient and good consideration for a note but contends that where a debtor is obligated to pay the debt on a certain date, that a subsequent promise by it to pay the same indebtedness almost 2 years before the former debt would have become due must be supported by a new consideration in order to make it valid. In support of this contention, counsel cite Jennings v. Neville, 180 Ill. 270, where it is stated on page 279 of the opinion that “an agreement that a smaller sum shall be received in discharge of an indebtedness in a larger amount is without consideration and can not be enforced as against the holder of the debt. ’ ’ This, of course, is a correct statement of the law but has no application here. The consideration for a chattel mortgage is the debt however evidenced. The allegations in the amended complaint as to the 30 notes executed in May, 1932, by the Airforce Conveyor Sales, Inc. simply shows the relationship which existed between the maker of those notes and the trustee for the noteholders. This is an action of .replevin. The amended complaint sets forth the note and chattel mortgage in haec verba. The note recites upon its face that it was executed by the maker for value received and the chattel mortgage aptly describes the note and the amended complaint alleges that the Airforce Conveyor Sales, Inc. made and executed its note for value received and all these allegations were admitted by appellee’s motion to strike.

It is finally insisted by counsel for appellee that the chattel mortgage is void because not acknowledged as required by law. The certificate of acknowledgment is as follows:

“I, Ruby S. Miller, a Justice of the Peace in and for said county, do hereby certify that this chattel mortgage was duly acknowledged before me by Airforce Conveyor Sales, Inc., a corporation, by V. W. Carris, President, the mortgagor, this 3rd day of September A. D. 1932, and the contents thereof entered on page 826 of my docket.

“Witness my hand and seal.

“Ruby S. Miller (Seal)

Justice of the Peace.”

Counsel’s argument is that this acknowledgment is in the form prescribed by the statute where the mortgagor is a person but that in the instant case the mortgagor is a corporation and that the corporation could not appear in person and therefore the acknowledgment should have been made by the officer of the corporation who appeared before the justice of the peace for and on behalf of the corporation. In support of this contention, counsel cite 1. R. C. L. 288, sec. 69. This section is as follows: “In the case of an acknowledgment made by an agent, attorney, officer of a corporation, or member of a partnership, the certificate by appropriate recitals must identify the • principal and disclose the representative character in which the agent, officer, or member acts. But it is not necessary as a rule to have the certificate recite in express terms that the representative is authorized to acknowledge the instruments in behalf of the principal. The statutes not infrequently prescribe the form of the certificate and the recitals to be embodied therein in case of acknowledgments made in a representative capacity, and where such acts exist a substantial compliance with their provisions is exacted. With respect to instruments executed by corporations the certificate should recite that the person making acknowledgment is to the officer’s knowledge the representative of the corporation that he claims to be. And it should be recited that the corporate representative acknowledges the execution of the instrument as the act and deed of the corporation. ’ ’

In 10 Am. Jur. 765, sec. 77, it is stated: “A literal and exact compliance with the statutory requirement as to knowledgments is not essential; a substantial compliance is sufficient. Such acknowledgments are liberally construed and are upheld whenever it can be done by a fair and reasonable interpretation of the statute. The identity of the mortgagor and his acknowledgment are the essential facts required to be shown and if the acknowledgment does this, it complies with the statute. An acknowledgment is insufficient which fails to conform substantially to a statutory form. Likewise an acknowledgment of a mortgage given by a corporation which fails to state that the officer executing the instrument signed and sealed it in behalf of the corporation is insufficient.”

In support of this statement, the text cites Clarksburg Casket Co. v. Valley Undertaking Co., 81 W. Va. 212, 94 S. E. 549, 3 A. L. R. 660. It appeared in that case that the instrument assailed was a deed of trust covering hearses and undertaker supplies. The defect in the certificate of acknowledgment was the omission from the affidavit which constituted a part of it, of the clause, “and that said writing was signed and sealed by him in behalf of said corporation.” The court held that this clause was a part of the form prescribed by the West Virginia Code and concluded: “Though literal compliance with the form of acknowledgment prescribed for corporations is not essential, there must be substantial compliance with it. The statute itself says a certificate may be in form or effect as therein prescribed. The clause omitted is obviously a substantial one and lack thereof is not supplied by any equivalent words. The executing officer is required to swear ‘that said writing was signed and sealed by him in behalf of said corporation.’ It is not enough that he has authority generally to execute deeds and other instruments for and on behalf of the corporation. He must swear that he had authority to execute the particular instrument he acknowledges. He is not the corporation, nor has he power to do all the things it might do. Whether the corporation itself authorized the execution of the particular instrument is a vital matter, and he is required to swear that it did. Though the deed says he executed it by authority of the corporation duly given, that statement is not in the affidavit, nor was it made on oath as the statute requires it to be. The omission of this clause manifestly vitiates the certificate. ’ ’

Our statute contains no separate provision relative to certificates of acknowledgment to chattel mortgages executed by corporations. In 1 Am. Jur. 343, 344 it is said: “Where the statute provides no form of ac-

knowledgment — as, for instance, to articles adopting a child — the form prescribed for conveyances may be used. Similarly, acknowledgments of corporations may pursue the form in use for natural persons, such changes being made as naturally suggest themselves.” In support of this statement Hooper v. Lovejoy, 47 N. J. Eq. 573, 21 Atl. 298, 12 L. R. A. 589 is cited. In that case the court stated that New Jersey did not have, as in some States, a statute relating to the acknowledgment of corporate deeds particularly but that under the act respecting conveyances, the deeds of corporations can be lawfully recorded and can therefore be lawfully acknowledged. “With regard to corporate deeds,” says the opinion, “he (the officer taking the acknowledgment) must therefore be satisfied that such person is, in the eye of the law, the grantor mentioned in it: that is, authorized to represent the corporation in executing and acknowledging the conveyance. Being so satisfied, he accepts the acknowledgment of the representative as that of the grantor itself. This accords with the view expressed in other states upon like enactments. Thus in Merrill v. Montgomery, 25 Mich. 73, the court said as to corporate deeds: ‘The acknowledgment is to be made by the person representing the corporation in that act. ’ And in Lovett v. Steam Sawmill Asso., 6 Paige 54, 3 L. Ed. 896, Chancellor Walworth, speaking of the New York Registry Act, which required deeds to be acknowledged by the party executing the same, said: ‘ The officer or agent of the corporation, who executed a deed in the name of the corporation, by affixing thereto the impression of the common or corporate seal intrusted to his care, is the party executing the deed, as it is impossible that a corporation aggregate should execute or acknowledge a deed in person.’ ”

In First National Bank v. Baker, 62 Ill. App. 154, the court had under consideration the following certificate of acknowledgment of a chattel mortgage signed by the Corey Car and Manufacturing Company. “State of Illinois, County of Cook. ss. I, Jarvis Blume, a Justice of the Peace in the town of West Chicago, in and for said county, do hereby certify that this mortgage was duly acknowledged before me by the above named Jarvis B. Rielly, Sect’y, and Francis W. Corey, Pres’t, the mortgagors therein named, and entered by me this 6th day of February, A. D. 1894. Witness my hand and seal. James Blume, (Seal) Justice of the Peace, Town of West Chicago, County of Cook, State of Illinois.” In holding this certificate of acknowledgment defective the court said that it was the grantor only which could acknowledge a chattel mortgage and that the certificate of acknowledgment must set forth that the grantor did acknowledge it; that the officer before whom this acknowledgment was taken did not take the responsibility of certifying that the grantor acknowledged or that Rielly and Corey were the secretary and president respectively of the Corey Car and Manufacturing Company or as officers of that company that they acknowledged to him anything whatever; that the certificate is that the mortgage was acknowledged by Rielly, secretary, and Corey, president, the mortgagors therein named, but as a matter of fact Rielly and Corey were not the mortgagors therein named. This case was affirmed by the Supreme Court in First Nat’l Bank v. Baker, 161 Ill. 281, but the court did not pass upon the question of the sufficiency or insufficiency of the certificate of acknowledgment.

The general statute of this State in force at the time this chattel mortgage was executed provided among other things that a chattel mortgage to be valid as against the rights and interests of any third party should be acknowledged and that the certificate of acknowledgment should be substantially in the form as set forth in the statute. Counsel for. appellee concede that the certificate is in the form provided by the statute and by this certificate the acknowledging officer certified that this chattel mortgage was duly acknowledged before him by the mortgagor, a corporation, by its president V. W. Carris. The instrument itself to which this acknowledgment was a part disclosed that the mortgagor was an Illinois corporation, having its principal office in Moline, Illinois, that said corporation caused its name and corporate seal to be affixed thereto by its duly authorized officers, that the name of the corporation was subscribed thereto by V. W. Carris, president, and the signature attested by Chas. F. Myers, its secretary, and the corporate seal of the mortgagor appeared attached thereto. Under the authorities the certificate of acknowledgment may be supported by referring to the instrument to which it relates. 1 R. C. L. 282; 1 Am. Jur. 347. In our opinion when this certificate of acknowledgment is read in connection with the recitals in the body of the instrument and with the attestation clause and the signatures of those who signed the instrument, it must be held that this instrument was duly acknowledged by the mortgagor and the certificate of acknowledgment held to be a sufficient certificate thereof. Furthermore, the amended complaint here alleges that the by-laws of the mortgagor provided that its president execute all instruments and that the secretary attest the same and affix the corporate seal thereto and the law is, as a general proposition, that the officer of a corporation authorized to execute an instrument may acknowledge it. Here then the certifying officer, from the instrument itself must have satisfied himself that V. W. Carris was authorized to represent the mortgagor in executing and acknowledging the instrument and being so satisfied, he accepted the acknowledgment of the president, V: W. Garris as the acknowledgment of the mortgagor itself. Hooper v. Lovejoy, supra. While this certificate does not in express terms recite that the president was authorized to acknowledge the instrument in behalf, of the mortgagor, yet in Sawyer v. Cox, 63 Ill. 130, one of the deeds which was offered in evidence was a conveyance from the Illinois Central Railroad Company and the acknowledgment was made by “The Illinois Central Railroad Company, by John Newell its Vice President.” In holding such acknowledgment sufficient the. court said: “We see no objection to the Vice President appearing for the company and acknowledging the deed. Appellant’s counsel has not suggested nor can we perceive how the company could have otherwise acknowledged the deed.” Very full annotations upon the sufficiency of the certificate of acknowledgment and the identification and description of the person making the acknowledgment when an instrument is executed by a corporation will be found in 29 A. L. R. 989 and 72 A. L. R. 1299.

In our opinion the trial court erred in sustaining appellee’s motion to dismiss. The judgment of the lower court will therefore be reversed and the cause remanded with directions to overrule this motion and rule appellee to answer the amended complaint.

Reversed and remanded with directions.


author: Mr. Justice Huffman

text:
    Town of Ganeer, County of Kankakee, Appellee, v. Edward P. Cleary et al. Hartford Accident and Indemnity Co., Appellant.
    Gen. No. 9,252.
    Opinion filed March 31, 1938.
    Gower, Gray & Gower, of Kankakee, for appellant.
    V. A. Parish, of Momence, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This was a suit by appellee to recover for an alleged shortage in the accounts of the defendant Cleary, as supervisor of the town of Ganeer. The cause was referred to a special master who found that the Hartford Accident & Indemnity Co., appellant, was liable to the town of Ganeer in the sum of $825 for public money received by the defendant Cleary in his official capacity as supervisor, and for which he had not properly accounted. The various parties to the suit filed objections to the master’s report which were overruled and permitted to stand as exceptions before the trial court. The trial court Sustained exceptions to the master’s report as filed by appellee with respect to the sum of $906, which amount Cleary had paid to himself as commission. A credit of $33.37 was due and was allowed by the court against this $906 item. Judgment was rendered against appellant on the bond sued on, in the penalty of $10,000, and that such judgment should be discharged upon payment of the damages of $1,697.63, assessed upon the bond, together with the costs. Said damages were comprised of the $825 item and the sum of $872.63 resulting from the $906 item paid by Cleary to himself as commission, after the credit of $33.37 was allowed against same.

The Hartford Accident & Indemnity Company is the sole appellant in this suit. It urges the damages assessed in this case should be reduced to $825, and that the action of the trial court in assessing the additional sum of $827.63 as damages was error. Appellee urges that the judgment of the trial court in assessing the damages was proper and supported by the law and the evidence. Appellee also urges that its motion to dismiss the appeal because the record was not filed within the time prescribed by the rules, should be granted. This motion was taken with the case. Ho tice of appeal was filed on June 4, 1937. The record on appeal was received and filed in the office of the clerk of this court on August 14, 1937. It has been generally held that an appellant cannot extend the period permitted under the rules for filing a record in the court of review by specifying a report of proceedings in a praecipe, where the records shows that no such report is necessary or proper. It is also generally considered that the report of a master which embodies the evidence, when filed and passed upon, becomes a part of the record in the case. Under such circumstances the courts have consistently held that an appellant must file his transcript of the record in the court of review within the time prescribéd by the rules. Amberg v. Meeker, 290 Ill. App. 147; Shaw v. Davis, 289 Ill. App. 447; Strickland v. Washington Bldg. Corp., 287 Ill. App. 340; West Side Trust & Savings Bank v. Damond, 280 Ill. App. 343. It is provided by Rule 1 of the rules of this court that the record on appeal where no proceedings at the trial are specified, must be transmitted to this court within 30 days after the notice of appeal.has been filed. The above rule was similar in period of time to the provisions of Rule 36 of the Supreme Court until the amendment thereof at its October Term, 1937, whereby the time within which the record on appeal must be transmitted to that court was changed from 30 to 60 days.

Appellant urges that the rulings of the trial court upon the exceptions to the master’s report constituted and called for a report of proceedings. Appellant further urges that this suit being an action at law is not governed by the same rule with respect to the master’s report becoming a part of the record as in chancery cases, that such rule applies only to chancery cases and has no application to law cases. We find no distinction in the rule between legal and equitable actions. Appellant insists that the person to whom the matter was referred was not properly designated, as a special master; but acted in the capacity of a referee. The practice of referring matters of account in law actions to a referee, as a subordinate officer of the court, is of ancient origin. However, the constitutional guaranty to the right of trial by jury has given rise to a situation where the question whether such right is infringed upon by a compulsory reference must be determined from an examination of the judicial history of the particular jurisdiction. Section 68 of the Practice Act of 1907, provided for a reference to a referee, of actions at law in which matters of account were in controversy. This section was held not to violate any constitutional right to trial by jury. Continental Beer Pump & Plumbing Co. v. Cooke Co., 299 Ill. 104. Section 68 of the Practice Act of 1907 was repealed by section 61 of the Practice Act of 1933 (ch. 110, sec. 185, Ill. Eev. Stat. 1937 [Jones Ill. Stats. Ann. 104.061]). Said section 61 of the present act apparently is section 39 of the Chancery Act, as it existed prior to 1933, and extended to include actions at law.

The object of a statute such as section 68 of the Practice Act of 1907 was, that in law actions involving a long and detailed account where the items were numerous and varied, might be referred to a referee in order that all items of account over which there was no controversy or dispute might be eliminated from the trial. Hawkyard v. Suttle, 188 Ill. App. 168. The items of account entering into the judgment of the court against appellant herein were but two in number, and no controversy existed as to their amount. They were contained in a stipulation between the parties. Ño real controversy now exists as to the $825 item. Appellant urges the judgment should be reduced to that amount. The only item in controversy arises from the $906 commission which Cleary paid to himself and against which sum a credit of $33.37 was allowed. The only question before the trial court with respect to this item was a question of law regarding the supervisor’s right to pay to himself such commission. There was therefore no disputed matter between appellant and appellee for the trial court to submit to a jury. The method of procedure in this case was adopted and followed by the parties without any objection.

The evidence in this case was contained in the master’s report as filed. The record fails to disclose any question of fact presented to the trial court by appellant following the filing of the report of the evidence, which called for a jury trial. No such error is assigned for reversal. We are therefore of the opinion that the record on appeal in this case should have been transmitted to this court within the time prescribed by the rules for records where no report of the proceedings at the trial are specified, or where such report of proceedings is already a part of the record. Due to appellant’s failure in this regard, the appeal is hereby dismissed.

Appeal dismissed.


author: Mr. Justice Wolfe

text:
    Agnes Dahm and Celina Breault, Appellees, v. The Estate of Peter Giroux, Deceased, Appellant.
    Gen. No. 9,266.
    Opinion filed March 31, 1938.
    Luther B. Bratton, of Kankakee, for appellant.
    Miller & Shapiro, of Kankakee, for appellees; Samuel H. Shapiro, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is a case on appeal from the circuit court of Kankakee county, in which the appellees, Agnes Dahm and Celina Breault, filed a claim against the estate of Peter Giroux, by which they claim $3,053 for rents, etc. The case was heard and decided by the court in favor of the appellees, allowing the claim of $1,814 as a first-class claim against the estate, and $900 as a sixth-class claim, to be paid in due course of administration. Judgment was entered on this finding and it is from this judgment that the appeal is taken.

Before the case was submitted at the opening day of court, the appellee had filed a motion to strike the abstract of appellant from the files and to affirm the judgment, because there was no sufficient abstract on file, since it did not comply with the rules of this court; also that the abstract does not contain sufficient facts to show that this court has jurisdiction of the appeal. This motion was taken with the case.

An examination of the abstract shows that it is wholly insufficient. With the exception of a few pages, it is not an abstract at all, but merely an index to the record. Whether the notice of appeal, the appeal bond, or praecipe for the trial record were filed in apt time does not appear from the abstract. The statute requires that this be done within a certain time after the entering of the judgment of the trial court. These facts should all appear in an affirmative manner before this court has jurisdiction of the case.

The motion of the appellee to strike the abstract from the files is hereby sustained and the appeal is dismissed.

Appeal dismissed.


text:
    Laura May Jackson, Appellee, v. Nicholas J. Jackson, Appellant.
    Gen. No. 9,273.
    Opinion filed March 31, 1938.
    Raymond J. Harvey and Pence B. Ore, both of Joliet, for appellant.

      Baskin & Miller, of Joliet, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The appellee, Laura May Jackson, filed her complaint for divorce in the circuit court of Will county, November 25,1936, in which she alleges the date of her marriage to be September 14, 1936, and that she and her husband lived together until November 25,1936.

The fourth paragraph of the complaint is as follows: 1 ‘ That since said marriage and during all the time plaintiff lived and cohabited with the said defendant she has treated him kindly and affectionately, and in all things at all times conducted herself toward the said defendant in a manner well becoming a good, true and virtuous wife. ’ ’ The fifth paragraph is as follows: 1 ‘ That subsequently to their intermarriage, and wholly regardless of his marriage vows and obligations as a husband, the defendant has been guilty of extreme and repeated cruelty toward the plaintiff; that is to say, on divers days and times since their marriage, the defendant has beaten, struck, kicked and choked the plaintiff, and particularly on, to-wit, the month of October, at Joliet, Illinois, the defendant, without provocation and in anger struck the plaintiff on her face and body with his fists, hurting her severely, causing bruises and the blackening of her eyes; and on, to-wit, the 25th of November, A. D., 1936, without provocation and in anger shoved, pushed, struck and beat the plaintiff, and ordered said plaintiff from their home, and on each of said occasions and numerous other occasions has used toward the plaintiff the most obscene, profane and opprobrious language, rendering her life miserable and placing her in fear of her natural life.”

The bill then prays that the parties may be divorced, and that the defendant be ordered to pay the costs of the suit, including a reasonable attorney’s fee, and that he pay alimony to the wife.

To this complaint the defendant filed an answer denying that he at any time struck, beat, or choked the plaintiff, or otherwise mistreated her. The defendant also denied that his wife had always conducted herself kindly and affectionately toward him, and had been a good, true and virtuous wife; but charged that frequently she stayed out all night away from their home; that she, without cause, had frequently left his home and stayed away 2 or 3 days at a time and refused to tell her husband where she had been.

The defendant filed a counterclaim against the plaintiff and asked for a divorce from her on the ground of adultery, and also acts of extreme and repeated cruelty by the wife toward himself. He charges that on one occasion she twisted his arms severely and broke his little finger on his right hand, causing him great pain and suffering; that she threw the receiver of the telephone at him and struck him on the head causing a cut an inch or an inch and a half long over his left eye; that on October 31,1936, his wife had been absent from their home for several days, and that the defendant sought to find her but could not; that the plaintiff violently shoved the defendant and knocked him down, causing him to strike one of his elbows against the railing of the bed; that it bled profusely and bruised the tissues; that on October 28, 1936, in a fit of anger, and without any reasonable cause, she seized a pestle and hit the defendant on the back of his head, cutting his head and causing it to bleed profusely; that the said blow caused a scar which was still visible at the time of filing the counterclaim. He alleges that in the month of September, 1936, Laura May Jackson, committed adultery — the name of the man was unknown to the defendant — and that he did not learn of the act of adultery until subsequent to the time that the plaintiff deserted him on November 25,1936.

The plaintiff filed her answer to the cross-complaint. The case was heard by the court, who found the issue in favor of the plaintiff, and dismissed the defendant’s counterclaim, and granted the plaintiff a divorce. He allowed her $1,500 as support money, and $1,000 as attorney’s fees. It is from this judgment that the case is brought to this court for review.

Laura May Jackson was called as a witness in her own behalf, and testified that she and the defendant were married on August 14, 1936; that she lived with her husband until November 25, 1936; that there were no children born to the marriage: “As a wife I was true to my husband and good to Mm”; that after their marriage, the first trouble she had with her husband was in October, when he woke up at 3:00 o’clock in the morrnng and Mt her. “He Mt me in my face and it made a bruise on my face. I had a black-eye for two weeks; it sure did cause a discoloration. There was no discoloration on my body. He Mcked me and I was compelled to leave my bed and room on account of it. He ordered me out of the bed and I got out of my bed and spent the rest of the Mght in my living room. I slept in there. Another occasion when I had trouble with Dr. Jackson was on October 31, 1936.” She then told in detail about some trouble she had with the doctor in which he threatened to shoot her, but no act of physical violence was detailed on this occasion.

She further testified that he — meaning Dr. Jackson — on the 25th of November, “woke me up at three o’clock in the morrnng and made me get out of bed. I could not very well go then because I did not know where to go, so I slept in the living-room until six o ’clock. He wolcó me up and I left then, and came back at eight o’clock to get my clothes, and we had a quarrel.” She.details about going to call the police, and concludes with the statement: “As to the reason for the fight that night of November 25, he was mad and pushed me and beat me and Mcked me out of bed. I was sick and he was drunk and he wanted to mess around. That is the reason he wanted me to get out of the bed. I left that day; I have not lived with him since. ’ ’

With the exception of the corroboration of appellee’s testimony as to what happened on the night of October 31, in which the shooting episode was narrated, there was no testimony in the record whatever to corroborate Mrs. Jackson in the charge of cruelty by the husband. The bruises that she claimed were inflicted upon her by her husband, no one saw. On the night of November 25, in which she stated her husband pushed, beat, and kicked her out of bed, there is no evidence whatsoever that she was injured in any particular. In her direct testimony she says that on the occasion when her husband beat her and that she had a black eye for two weeks, and “it sure did cause a discoloration.” In her cross-examination she states positively that she did not have a black eye.

It will be observed from the reading of the bill of complaint that there are only two acts of cruelty charged against the defendant. There is no charge that the defendant attempted to kill the plaintiff. The question arises, whether the plaintiff established her case, by a preponderance of the evidence, that her husband was guilty of extreme and repeated cruelty as described in our Divorce Act. In the case of Moore v. Moore, 362 Ill. 177, the plaintiff, Hazel Moore, sued her husband Lloyd Moore for a divorce on the charge of extreme and repeated cruelty. It seems to us the facts in the Moore case make out a stronger charge of cruelty than Mrs. Jackson has made against her husband in her divorce suit. The court in their opinion say, “Cruelty constituting ground for a divorce under our statute means physical acts of violence, bodily harm or suffering, or such acts as endanger life or limb or such as, raise a reasonable apprehension of great bodily harm. Bad temper, petulance, rude language, want of civil attentions, angry and abusive words, do not constitute extreme and repeated cruelty within the statute. ’ ’

From an examination of this record it is our conclusion that the plaintiff has not made out such a case as would entitle her to a divorce from her husband.

As before stated, the plaintiff alleged in her bill that she at all times had treated her husband kindly and affectionately, and had conducted herself toward her husband in a manner well becoming to a true, affectionate and virtuous wife. The burden of proof was on her to show that she had so conducted herself, but the only evidence which she produced as how she treated her husband, was her own testimony. She says, “I have treated my husband good. ’ ’

The testimony of defendant and his witnesses is of such nature that even if the defendant had not filed a cross-complaint for divorce, it would be sufficient to bar the action of the plaintiff in getting a divorce because it shows conduct that was far from the conduct of the ordinary “true, affectionate, and virtuous wife.”

John Faye, defendant’s witness, testified that he saw Mrs. Jackson coining from the rear of the hall of an apartment hotel; that there were various rooms along the hall, and that she came with a gentleman, and as she came by the witness she appeared to be nervous and excited; that she and the gentleman appeared to be going out. He was flushed up a little and appeared to be in a hurry to get out; that as she walked up to the witness she said, “I suppose my husband will know about this?” The witness answered, “No, not neeessarily.”

The witness, Londus Brannon, a practicing physician, testified that he knew Dr. Jackson; that on the 25th of November, 1936, Dr. Jackson came to him for treatment; that there was a wound or contusion on his forehead, a bruise on his left elbow, and the first and second bones of the little finger on his right hand were fractured; that he treated the doctor for these wounds, and that in his opinion the wounds on Dr. Jackson’s head were caused by a blunt instrument.

William Corrigan testified that he was acquainted with the Jacksons; that Mrs. Jackson would come in the tavern where he was worldng and make frequent telephone calls; that he had often seen Mrs. Jackson intoxicated; that he was present one evening on the porch of Dr. Jackson’s home when Mrs. Jackson was intoxicated. The doctor asked her to come in and she started fighting him; she started to cry and was lying on the bed and on the floor; that he had heard Mrs. Jackson make dates with other men besides her husband ; that she made them over the telephone; that he had telephoned Mrs. Jackson himself, under an assumed name, and had made dates with her.

George Smoiver testified that he knew the Jacksons and had observed the conduct of Mrs. Jackson; that he was at the lunch room about 10:00 o’clock at night and saw Mrs. Jackson go out with another fellow, not her husband. He saw her go across the street to the National Hotel, and that she was there about one-half or three-quarter’s of an hour; that she went back to the National Lunch and was in there about 15 minutes and then came out with another fellow and went back to the same hotel; that on these occasions she was dancing and drinking, and that she was drunk; that after the separation he saw Mrs. Jackson out at the same restaurant about 1:00 o’clock in the morning sometime in April, and that she and her friend Judy got into a car with some fellows, and in the witness’s opinion, Mrs. Jackson had had too much to drink. At another time about 3:00 o’clock in the morning, Mrs. Jackson and Judy Vanisco came down Cass street to Chicago street, and Mrs. Jackson was drunk. At another time in March, 1937, along about 1:00 o’clock in the morning, he saw Mrs. Jackson and her girl friend get into a car with their boy friends, and he observed that Mrs. Jackson was drunk; that he had observed Mrs. Jackson at other times, as late as 1:00 o’clock in the morning, getting into cars with men not her husband. The witness further testified that on or about November 14, 1936, Mrs. Jackson took $20 out of the money drawer in defendant’s tavern and lost it in a slot machine; that the witness asked her to put the money back, and after a discussion about the money and the doctor finding it out, she invited him to go to a back room with her; that he did go to the back room with Mrs. Jackson and there had sexual intercourse with her; that the doctor never did know anything about the money or he had never told the doctor about having intercourse with Mrs. Jackson until the hearing of the case.

Dr. Jackson testified in his own behalf and stated that during the month of September, Mrs. Jackson was away from home every night during the month and would come in between 11:00 and 2:00 o ’clock; that as far as treating him as a true and affectionate wife— that she never prepared any meals for him, that she never ate any meals with him except when her relatives were with them; that on or about October 28, 1936, he went to bed about 12:00 o ’clock; that he got up about 2:00 o’clock and heard a noise, and could see somebody had brought his wife home; that this man was loving, hugging, and kissing his wife, and doing every thing that goes with it. When Mrs. Jackson came in he asked her where she had been and she replied, “It is none of your Gfod damned business where I was, vou Gfod damned fool.” Then follows the doctor’s version of the occasion as related by the plaintiff in her testimony in which the doctor shot through the door. Doctor Jackson further testified that his wife pushed him against the bed and his elbow struck on the bedstead; that it broke the sldn on his elbow and it was bleeding and very sore. “There is a scar on it now.” (The doctor then exhibited the scar on his elbow to the court and lawyers.) The doctor further testified that on the night of November 25, 1936, he saw his wife sitting on Charley Johnson’s lap. They were in the kitchen of the defendant’s home; that Johnson was squeezing and hugging his wife; that he then went to bed and wanted his wife to come to bed and she ordered him out the house. He narrated some actions on the part of the wife which would not look well in print and we do not care to repeat them. But, if it is true, to say the least, it was very unladylike.

The doctor further testified that about 10:00 o ’clock one morning he was lying on a bed at his home and his wife entered the house through a window. He said that his wife called him names which were foul and vile, and this is the time when he states, and has charged in his counterclaim, that his wife grabbed his right hand and twisted it and broke his little finger; that she threw the telephone receiver at him and hit him upon the head. After this incident he claims he went to see Dr. Brannon to have his wounds treated. He denied in this testimony that he ever struck, beat, wounded, or ill-treated his wife. Dr. Jackson also testified that at Charles Marchio’s place his wife kicked him on the shin; that he still had the scar on his shin as a result of that injury, and he exhibited the same to the court. There are other acts of misconduct related by Dr. Jackson about his wife, but space will not permit a discussion of all of them.

At the conclusion of the defendant’s testimony, he, through his attorney, offered an amendment to the cross-complaint relative to the act of adultery as testified to by the witness Smoiver, so as to make the allegations of the cross-complaint conform to the proof, and also to change the date of one act of cruelty charged by the defendant against the plaintiff. The court allowed the amendment as to the date of the act of cruelty, but overruled the motion so far as alleging adultery as testified to by the witness Smoiver.

We think the trial court erred in not allowing this amendment. The statute expressly provides that where an amendment is germane to the original bill and is presented for the purpose of making the allegations of the bill to comply with the proof, then the court’s refusal to grant such amendment constitutes an abuse of the trial court’s discretion if he does not allow the amendment.

After the cross-complainant had finished his testimony and the motion to amend denied, Mrs. Jackson was again called as a witness. She denied that she was guilty of any act of adultery, or that she had gone with any man to a hotel, or that she was guilty of any misconduct. A review of the evidence as submitted by Dr. Jackson and his witnesses, and the testimony of Mrs. Jackson and her witnesses,, convinces this court that the evidence preponderates strongly in favor of the fact that Mrs. Jackson has been proven guilty of the charge of adultery. The evidence also preponderates in favor of Dr. Jackson that Mrs. Jackson was cruel to him on two or more occasions.

There are numerous other errors assigned, such as the court excluding certain proper evidence offered by the appellant and numerous other rulings of the trial court during the progress of the trial. But owing to the conclusions we have reached in regard to the facts disclosed by the evidence in this case, it is not necessary to pass on other assignments of error.

The appellee has filed a cross-appeal, and states that the trial court erred in fixing the alimony and attorney fees. For Mrs. Jackson the sum of $1,500, and the solicitors fees $1,000; but says that the court should have fixed $10,000 as alimony and $4,000 as solicitors ’ fees. It also becomes unnecessary for us to pass upon the errors assigned upon this cross-appeal, as it is our opinion that Laura May Jackson is not entitled to a divorce.

The order of the circuit court of Will county, granting Laura May Jackson a divorce and allowing her alimony of $1,500, is hereby reversed, and the order overruling the motion of the defendant to amend Ms counterclaim, and dismissing the counterclaim for want of equity is hereby reversed and the case remanded to the Will county circuit court with directions to the trial court to allow the amendment as offered to the cross-complaint, and grant the cross-complainant, Nicholas J. Jackson a divorce as prayed for in Ms cross-complaint.

Reversed and remanded toith directions.