text:
    B. G. Brinkman, Appellee, v. Albert Paulciewski, Appellant.

    1. Confession of judgment — defendant’s negligence as barring reopening. An alleged mistake of the court in striking from the files defendant’s motion to open a confession judgment will not lead to reversal of such order on it appearing that the mistake was due rather to the negligence of the defendant.
    2. Confession of judgment — liability for negligence in not opening. If a defendant sustains any damage by the failure of his attorney properly to press for the opening of a judgment by confession, he must look to his attorney therefor and not seek to reopen the judgment on that ground.
    3. Confession of judgment — necessity of motion to reopen showing facts unknown to court. The court’s own rules being judicially known to it, its mistake in overlooking one in making an order striking a motion to reopen a confession judgment is not a ground for a motion to reopen the order where that motion fails to bring to its attention any fact unknown to it which would have precluded making the order.
    4. Confession of judgment — method of testing sufficiency of motion to reopen. Under Cahill’s St. eh. 110, K 89, providing that for errors of record a judgment may be reopened, the motion provided therefor may be treated as the beginning of a new suit and demurrer is the proper method of testing the sufficiency of the same.
    Appeal by defendant from the Circuit Court of Franklin county; the Hon. Chakles H. Millek, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Layman & Johnson, for appellant.
    George A. Hickman and Frank. E. Trobaugh, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Higbee

delivered the opinion of the court.

The record in this case discloses that at the May term, 1919, of the circuit court of Franklin county, appellee obtained a judgment by confession against appellant in the sum of $1,877.14. In April, 1923, at the February term of that court, appellant, after written notice to appellee, filed a verified motion or petition asking the court to set aside an order made in said cause by that court on the 26th day of February, 1921. The certified motion or petition set forth the obtaining of the judgment by confession and stated in substance that appellant at the May term, 1919, by Robert E. Smith, his attorney, filed his motion in writing to vacate such judgment and permit appellant to plead in the cause; that no hearing was had upon such motion, but the same was continued from term to term until the February term, 1921, at which term, on the 26th day of February, an order was made by the court striking the motion to vacate from the files and striking the cause from the docket; that thereafter on December 29, 1922, an execution was issued upon the judgment and that the sheriff was then threatening to levy upon and sell property of appellant for the satisfaction of the judgment; that petitioner was and had been for some time last past a member of a firm engaged in packing and distributing meat and that unless restrained the sheriff would levy upon appellant’s interest in such partnership, and that the firm would thereby suffer irreparable injury and damage; that the judgment was obtained upon nine notes executed by appellant May 22,1919, at which time he was a resident of the city of West Frankfort, Illinois; that he has since continuously resided in that city, and has been at all times ready, willing and able to appear in court with his witnesses for the purpose of supporting his said motion to vacate the judgment; that he had employed Robert E. Smith as his attorney to prepare such motion and represent him in the matter, and that he relied upon his said attorney to protect his interest and advise him of anything further necessary to be done by him in the premises; that appellant had no notice that the motion to vacate had been stricken from the files or that any action had been taken in the matter until the service of the execution above referred to upon him; that appellant was not advised by his said attorney that he had withdrawn from the case and was not representing him, but on the contrary he fully relied on said attorney to represent him and protect his interest at all times subsequent to the filing of the motion; that the purported order of the court rendered on February 26, 1921, striking his motion to vacate from the files, was improper and inadvertently made, for the reason that no motion in writing was filed or on file, as required by the rules of that court, and therefore, said order was not valid; that the records of that court fail to show any final disposition of said motion to vacate; that said motion to vacate together with the affidavit filed in support thereof are true, and if permitted so to do, appellant believed that upon a hearing he could establish the truth thereof; that he not only had a valid defense to the whole of appellee’s demand but also had a counterclaim over and against one Henry P. Schroeder, the original payee in the notes, whom appellant believed to be the real party in interest in the suit. The motion or petition then prayed that the court would upon a hearing set aside and vacate the order made on February 26, 1921, striking his motion from the files; that the court would stay said execution and all further proceedings until a final hearing, and that upon said final hearing the court would grant the motion to vacate and permit appellant to plead in the cause. Appellant in support of the motion filed what is termed a supplemental affidavit, stating that the notes sued on were executed and delivered by appellant to one Henry P. Schroeder as the sole consideration for twenty-five barrels of whisky on that day sold by Schroeder to appellant; that such sale was made and consummated in the city of West Frankfort in the town of Frankfort and county of Franklin; that said town of Frankfort was at that time antisaloon territory under the laws of Illinois, and that by reason thereof the said sale of whisky was illegal and the notes given in consideration thereof wholly null and void; that appellant was informed and believed that appellee, prior to the alleged assignment of said notes to him by Schroeder, was fully cognizant and advised of the fact that said notes were given for the sale of said whisky in antisaloon territory. Appellant filed a demurrer to this petition or motion. On the 22nd of June, 1923, the court sustained a demurrer dismissing the petition on motion and entered a judgment against appellant for costs. This appeal has been prosecuted from that judgment.

The above is a full statement of all that appears from the record in this case. The rule of the court referred to in the-motion or petition is not set out at length but is only mentioned in the manner stated above. This case was argued by both parties as though it were a proceeding under what is now section 89 of the Practice Act, Cahill’s St. ch. 110, 89, to vacate and set aside a judgment previously rendered. It is contended by appellant that a rule of the trial court, which is set forth in his argument but does not appear in any part of the record except the mere reference to same in appellant’s petition, required, among other things, that “Upon the convening of Court each morning the Court shall call the roll of the attorneys. Each attorney when called, shall make any motion he desires, but same must be in writing, except, as to motions to quash indictment. The Clerk shall note all such motions in such motion docket as the Court shall direct. All such motions so entered in said motion docket shall stand for call by the Court and final disposition on the next day of Court at the completion of roll call; provided the Court may in its discretion continue the hearing of any motion. ’ ’ The contention is that the order of the court on February 26, 1921, striking the motion to vacate from the files was unwarranted and improper because no written motion asking for such action had been filed in the cause as required by this rule of the court; that such action of the court in the absence of any written motion constituted an error of fact which could be corrected at a subsequent term under section 89 of the Practice Act by motion. There is some question as to whether the mere reference made to this rule of the court in appellant’s petition was sufficient to bring the same to the attention of this court, no reference being made to it in any other part of the record. However, granting that since this was. a demurrer filed to this petition it must be considered as admitted that such a rule existed and that no written motion was filed in compliance therewith, yet it seems to us that this judgment must be affirmed upon other grounds.

Appellant to sustain his position places great reliance upon the case of Holbrook v. Lawton, 207 Ill. App. 497. In that case the cleric had failed to place upon the wrapper of the case the name of a judge to whom it had been reassigned as required by the rule of the trial court, as a result of which a judgment by default was entered by the judge whose name appeared on the files and to whom it had been assigned at a prior time. This was clearly a mistake of the clerk and a violation of the rules of that court, and the judge who rendered the judgment would not have rendered it had he known the facts. That case falls clearly within the rule as we understand the same has been laid down by the Supreme Court, but we do not believe this case falls within that rule. If there was no written motion on file it was not the fault of the clerk. In a case in which a similar motion to vacate a judgment was made after the expiration of the term at which the judgment was rendered, upon the ground that the party complaining had not been given notice in writing as required by the rules of the trial court, the Supreme Court, in affirming the judgment denying the relief asked, held: “The court had jurisdiction of the parties and of the subject matter and proceeded to final judgment, and the judgment entered in the cause could not be opened and reviewed at a subsequent term to correct an alleged error in the construction or application of the rules adopted by the court to regulate the practice in the court. It is only the correction of matters of form, clerical errors or matters quite of course that may be had on mere motion, after the close of the term.” (Pisa v. Rezek, 206 Ill. 344.) In that case the Supreme Court also held that the motion substituted by section 89 of the Practice Act for the writ of error coram nobis may be invoked to enable the court to correct an error of .fact thab:came within the scope of the writ as it existed at the common law, such as. among other things: 1 ‘ That a valid defense existed in fact, but which, without negligence of defendant, was not made, either through duress, fraud or excusable mistake, without negligence on the part of the party who by the motion complained of the action of the court.” In the instant case it would seem that the action complained of was due more to the negligence of appellant or his attorney than to the fault or mistake of the clerk of the court. The negligence of his attorney is chargeable to appellant. If by any such negligence he has sustained any damage he must look to the attorney. In Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, it was contended as one of the grounds for the basis of a motion under section 89 of the Practice Act, to set aside a judgment entered at a former term, that the judgment had been entered in in violation of certain rules of the court. The Supreme Court held: “The error in fact which may be assigned under the motion must be some fact unknown to the court which, if known, would have precluded the rendition of the judgment. The rules were of record in the court and must necessarily have been of record to have any validity. (Owens v. Ranstead, 22 Ill. 161; Davis v. Northwestern El. R. Co., 170 Ill. 595.) Courts take judicial notice of their own records (Taylor v. Adams, 115 Ill. 570), and the records are always constructively before the court. Under the well-settled law these rules were before the court and judicially known when the orders were made and the judgment entered, and could not, therefore, be made known to the court as errors in fact of which the court was ignorant.”

The rules of the court in that case, in violation of which it was claimed the judgment had been entered, were the failure of the clerk to place on the wrapper containing the files the name of the judge to whom it was assigned, and that no notice of the intended proceedings in court had been given. In the instant case, even though it be admitted that the court’s order of February 26, 1921, was entered -without any written motion on file and that such written motion was required by the rule of the court, yet as held by the Supreme Court that rule was judicially known to the court when the order was made, and it therefore could not be made known to the court by motion under section 89 of the Practice Act, which can only be used to bring to the attention of the court some fact which was unknown to the court and which, if known, would have' precluded the rendition of the judgment.

If this proceeding is in fact a motion under section 89 of the Practice Act, and we have so treated it, then the motion was the beginning of a new suit and it was proper to test the sufficiency of the same by demurrer. (Smyth v. Fargo, 307 Ill. 300.) Following the doctrine laid down by the Supreme Court in Cramer v. Commercial Men’s Ass’n, supra, the trial court properly sustained the demurrer to the motion? and the judgment should be and is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    Louie Hogue, Appellee, v. Glen King et al., trading as King Meat Company, Appellants.

    1. Justices op the peace — no appeal without a judgment. Formal words are not required of a justice of the peace in entering judgment, but some kind of judgment must be entered before appeal can be taken.
    2. Saving questions por review — how lack of justice’s judgment raised in comity court for Appellate Court. Defendants in a ease before a justice of the peace who appeal to the county court and therein enter a special appearance and file a written motion to dismiss the case, one of the grounds of which was that no valid judgment had been entered by the justice, thereby save for review by the Appellate Court the question whether the county court should have sustained their motion.

      3. Justices op the peace — what judgment amounts only to finding. A so-called judgment of a justice of the peace which states that it finds a certain amount for the plaintiff and costs is not a judgment but merely a finding from which no appeal can be taken.
    4. Justices op the peace — jurisdiction of county court on appeal from finding of. An appeal from a judgment of a justice of the peace which simply amounted to a finding gives the county court no jurisdiction and it should sustain a motion to dismiss the case.
    Appeal by defendants from the County Court of Johnson county; the Hon. John O. Cowan, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded.
    Opinion filed February 25, 1925.
    Trobaugh & Church, for appellants.
    H. A. Spann, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This suit was instituted by appellee, Louie Hogue, against King Meat Company, appellants before a justice of the peace.

After denying a motion to dismiss the suit, and the hearing of the testimony, the following entry was made by the justice of the peace: “June 10, 1924, The day of the trial, All evidents was herd. After hearing evidents for both plaintiff and defendant the. cort finds for plaintiff the amount of $15.30 and costs of suit. Costs 11.80 total 27.10. Andrew Jackson, J. P.” The defendants perfected an appeal to the county court of Johnson county. Upon the case being called in that court, appellants entered a limited appearance and filed a written motion to dismiss the case. One of the grounds upon which that motion was based was that there was not a good and sufficient judgment entered by the justice of the peace. The only question involved in this appeal was whether or not the motion to dismiss should have been sustained by the county court.

It is true no formal words are required of a justice of the peace in entering judgment, but it is necessary that some kind of a judgment be entered; otherwise there is nothing to appeal from and the court appealed to acquires no jurisdiction of the case. (Church v. Stunkard, 101 Ill. App. 148; Brown v. Williams, 211 Ill. App. 39.) Had appellants proceeded to trial under a general appearance and without any motion to dismiss, they would not now be in position to raise this question, but their limited entry of appearance and motion to dismiss saved this question for review by this court. The entry by the justice in our opinion amounts simply to a finding and does not purport to be a judgment. That being true, the- county court acquired no jurisdiction by the appeal and the motion to dismiss should have been sustained.

For the error in denying the motion the judgment is reversed and the cause remanded for further proceeding in accordance with the views above expressed.

Reversed and remanded.


author: Mr». Presiding Justice Higbee

text:
    The People of the State of Illinois, Defendant in Error, v. Harry Clark and Irwin Hatridge, Plaintiffs in Error.

    1. Banking — showing of value of assets after insolvency. Testimony of a bank receiver and others as to what had been and would be received for certain bank assets was competent on a prosecution of bank officers for receiving a deposit for an insolvent bank, although the figures were ascertained later than the date of the deposit:
    2. Banking — discrepancy on banlc books as evidence of later insolvency. On a prosecution of bank officers for receiving a deposit when the bank was insolvent, a listing of time certificates forwarded to the State treasurer as cash, although no cash had been received therefor, may be received on the question of insolvency although prior to the date thereof, in view of the length of time they had been in existence.
    3. Banking — cashier’s attempt to restore savings balance as showing knowledge of insolvency. On prosecution of bank officers for receiving a deposit while the bank was insolvent, evidence that the cashier, after ceasing active connection with the bank, deposited a worthless cheek for a large amount to restore a shortage in a savings account is admissible to show his knowledge of the insolvent condition of the bank.
    4. Criminal procedure — evidence of guilt of another offense. On prosecution of a bank cashier for receiving a deposit while the bank was insolvent, evidence of his deposit of a worthless cheek to restore a shortage in a savings account is not inadmissible to show his knowledge of the insolvency merely because it tends to show him guilty of another offense.
    5. Criminal procedure — effect on verdict fixing sentence without authority. Part of a ver.diet in which a jury without legal authority attempts to fix the sentence of bank officers accused of receiving a deposit while their bank was insolvent may be treated as surplusage.
    6. Criminal procedure — remedy for trial court’s entering improper judgment. If a trial court does not enter a proper judgment in sentencing a defendant- it may be directed to do so on appeal.
    7. Criminal procedure — when judgment not reversed for improper verdict. A proper judgment entered in a criminal prosecution will not be reversed because of an informality in the verdict fixing the punishment.
    8. Banking — right of defendants to separate instructions. On prosecution of bank officials for receiving a deposit while the bank was insolvent, the fact that the People had instructions given against the defendants separately did not make it error to refuse separate instructions in favor of each defendant in view of the general instructions in their favor covering those offered.
    9. Banking — what loss of deposit necessary to offense of receiving while insolvent. On prosecution of bank officers for receiving a deposit while the bank was insolvent, it is not necessary to conviction of the offense that the deposit should have been wholly lost.
    10. Banking — evidence first presented on review. An affidavit, in support of a motion to reverse a judgment without remanding the cause wherein bank officials were convicted of receiving a deposit while the bank was insolvent, that the depositor was indebted to the bank at the time the deposit was made, cannot be considered when presented for the first tinje directly to the reviewing cburt, although the affidavit also shows that the failure to produce such evidence at the trial was not due to lack of diligence.

      Error by defendants to the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1924,
    Affirmed.
    Opinion filed March 31, 1925.
    J. J. Bullington and H. J. Bandy, for plaintiffs in error.
    J. P. Streuber, for defendant in error.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr». Presiding Justice Higbee

delivered the opinion of the court.

Plaintiffs in error, Harry Clark and Irwin Hatridge, together with Stowell Beach, were indicted in the circuit court of Madison county, Illinois, for violation of section 61 of the Criminal Code, which is section 1 of “An Act for the protection of bank depositors.” Ca-hill’s St. ch. 38, H 38. .

The indictment charged that on the 31st day of October, 1922, plaintiffs in error were president and cashier, respectively, of the First State & Savings Bank of Woodriver, Illinois, and that Stowell Beach was chairman of the board of directors; that said "bank was then insolvent within the knowledge of said officers; that on said date they accepted a deposit of $294 from one George Smith, who was not indebted to the bank, .and that the said deposit was thereby lost to the said George Smith. On trial Stowell Beach was found not guilty and plaintiffs in error were found guilty and the punishment of each fixed by the verdict at imprisonment in the penitentiary for two years. This writ of error was sued out to review the judgment entered on that verdict. It appears that the bank was closed on the 17th day of November, A. D. 1922, at the direction of the auditor of public accounts. On October 24, 1922, the bank was examined by an examiner from the State auditor’s office, on which date the books of the bank showed its assets to be $974,194.36 and its liabilities to be the same. .On that day the examiner ascertained the actual cash reserve and money due from banks amounted to $30,180.06 and that the total deposits were $650,210.23. Finding the cash reserve and money due from banks much lower than that required by law and the regulations of the auditor’s office, he advised the officers that the same should in some manner be increased. Meetings of the officers of the bank, certain bank examiners and officials of several banks in the city of Alton were held within a few days in Alton. As a result of those meetings, it was decided that the directors of the bank in question should deposit in the bank $50,000; that notes to that amount owned by the bank should be assigned to them, and that the sum of $50,000 in addition should be borrowed upon a mortgage by the bank upon its building. Pursuant to this arrangement the directors deposited $51,000 in the bank by November 6, and the $50,000 was borrowed. Of the amount deposited by the directors, plaintiff in error Clark paid $15,000 on the 1st day of November. On the same day he resigned as president and plaintiff in error Hatridge resigned as cashier. Other directors were then selected as president and cashier and a Mr. Slivka, who had previously been an employee of the bank, was placed in charge of it with instructions to report directly to the State auditor’s office. The bank continued to conduct its regular business in this manner until the 17th day of November, 1922, when the depositors began to withdraw their money and the bank was closed by the State auditor’s office and placed in the hands of a receiver.

It is argued at considerable length by attorneys for plaintiffs in error that the verdict is not supported by the evidence for the reason, as it is claimed, the competent proof in the case does not show that the bank was insolvent on October 31, the day the deposit in question was made. The evidence om this question is voluminous, but we have examined it in detail, to ascertain whether the jury were justified in finding the bank insolvent at that date. The banking house and fixtures at the time the examination was made by the examiner were carried on the books of the bank at more than $120,000. The testimony of the receiver shows that only $52,150 was realized from the sale thereof, although it appears that prior to such sale he was made an offer of $75,000. The testimony of the receiver and his attorneys and assistants further shows that he had failed or would fail to receive the face value of the notes carried by the bank by at least $50,000 and that $40,000 more of the notes were doubtful. It is true that these amounts and figures were arrived at by the receiver and those testifying, at a time considerably later than the date on which the deposit was received, and it is also true that the question to be determined was whether the bank was insolvent on the 31st day of October, 1922, and not at a later date. However, this testimony of the receiver and others as to what was received and would be received for the property and notes in process of liquidation of the bank was competent in connection with all other evidence in the record for the consideration of the jury in its determination of the value of the bank’s assets. (People v. Hartenbower, 283 Ill. 591; People v. Munday, 280 Ill. 32; People v. Dubia, 289 Ill. 276.) This evidence, in connection with the other proofs in the record, which we do not deem it expedient to discuss in detail, justified the jury in finding that the bank was insolvent on the 31st day of October, 1922. In September, 1922, the State auditor’s office called upon this bank for a verified report showing the condition of the bank at the close of business September 15. This was the report commonly called for by the State auditor’s office prior to an intended examination of a bank and is referred to ás a “call report” This report, which was admitted in .evidence, was made and sworn to by plaintiff in error Clark. The bank examiner, over the objection of plaintiffs in error, was permitted to testify to the fact that this report showed that the cash reserve of the bank was $30,000 more than shown by the books. The witness testified that this was due to the fact that three time certificates of $10,000 each had been issued on July 28, 1922, and sent to the State treasurer, but that no money had been remitted by the State treasurer for such certificates, and that the amount represented by these certificates was included in the report as a cash item of the bank and the certificates carried as a liability. It is contended by attorneys for plaintiffs in error that the admission of this “call report” in evidence and the testimony concerning the same was improper and tended to unduly prejudice the jury against plaintiff in error Clark. Attorney for defendant in error, on the other hand, contends that this evidence was competent for the purpose of proving knowledge on the part of plaintiffs in error that the bank was insolvent. There is no evidence in the record whatsoever as to why these time certificates were issued nor as to why the money represented thereby had not been forwarded to the bank by the State treasurer. It is a close question whether this discrepancy between the “call report” and the books tended in any way to prove the insolvency of the bank a month and a half thereafter or any knowledge of such insolvency upon the part of plaintiffs in error, but in view of the length of time these certificates had been in existence and the fact that the bank in the call report claimed to have an equal amount as “cash due from bank” based thereon, we are of the opinion such evidence was admissible. However, we are of the opinion that there is ample evidence in the report outside of that under consideration to justify the jury in believing beyond a reasonable doubt that the bank was insolvent on October 31, 1922, and that plaintiffs in error knew of such insolvency.

It further appeared that upon the closing of the bank the bank examiner discovered a shortage of over $11,000 in the savings account. Over the objections of plaintiffs in error an assistant cashier was permitted to testify that on November 6, plaintiff in error Hatridge, who at that time was no longer actively connected with the bank, presented a check for $10,000 signed by himself on the Alton Banking & Trust Company, payable to the First State & Savings Bank of Woodriver and requested such assistant cashier to credit it to the savings account, but that payment on such check was refused for the reason that Hatridge did not at any time have any money deposited in the Alton Banking & Trust Company. That there was a shortage in the savings account and that this plaintiff in error sought to restore the same or the greater part thereof we think was competent proof to show knowledge of the condition of the bank upon his part and it was not reversible error to permit this testimony. The fact that such testimony might have tended to show him guilty of another offense is not a valid objection to its admissibility if it were relevant to any of the issues being tried. (People v. Watkins, 309 Ill. 318.)

The form of verdict as given the jury by the court included the fixing of the sentence by the jury in case any of the defendants were found guilty. The verdict returned by the jury fixed the penalty for each of the plaintiffs in error at a fine of $142.88 and imprisonment in the penitentiary for two years. The court, however, disregarded this part of the verdict, but did fix the same fine as found by the jury, and sentenced plaintiffs in error to the penitentiary “there to remain until discharged according to law. ” It is argued by plaintiffs in error that this constitutes reversible error for the reason that under the law the duration of a sentence to imprisonment in the penitentiary should not have been fixed but left indeterminate, and that as a matter of law an indeterminate sentence is for the maximum term. It is further contended that had the jury been advised that the effect of fixing imprisonment as a part of the punishment was equivalent to sentencing plaintiffs in error for the maximum term, it is very probable imprisonment would not have been fixed as a part of the punishment. If the jury had no right to fix the term of the imprisonment then that part of the verdict may properly be considered as surplusage, and if the trial court had not entered a proper judgment it might be directed to do so. (Armstrong v. People, 37 Ill. 459; Henderson v. People, 165 Ill. 607; People v. Boer, 262 Ill. 152.) The proper judgment however having been entered, it should not now be reversed because of such informality in the verdict.

In behalf of the People the court gave separate instructions, naming each of the defendants, to the effect that it was not necessary that the named defendant personally received the deposit or knew the bank was insolvent nor was it necessary for proof to be made of any specific intent on the part of the defendant named, while the court refused to give certain instructions in behalf of plaintiff in error Clark, specifically mentioning him. One of these instructions, the refusal of which is complained of, was to the effect that if the jury believed plaintiff in error Clark made a deposit in the bank on October 31,1922, that this was a circumstance to be considered in determining whether said plaintiff in error on that day knew the bank was insolvent. In view of the fact that the court in behalf of plaintiffs in error gave general instructions to the effect that if the jury believed from the evidence that the defendants or any one or more of them had made such deposits the same should be taken into consideration in determining the knowledge of the defendants of the insolvency of the bank, we do not consider it was reversible error to refuse this instruction specifically naming plaintiff in error Clark. It is true also of the other refused instructions offered specifically naming plaintiff in error Clark, that the same principles of law were covered by instructions given referring to all of the defendants or any one or more of' them. We are therefore of the opinion that it was not reversible error to refuse the instructions complained of referring to plaintiff in erro? Clark, and the fact that instructions referring to the defendants separately were given in behalf of the People is no ground for holding that the refusing of instructions referring to plaintiff in error Clark was error.

Complaint is also made of the court’s refusal to give an instruction to the effect that one of the material averments in the indictment was that the deposit made by Smith was lost to him and that unless the jury believed from the evidence beyond a reasonable doubt that “said deposit is lost to said Smith, then you should find the defendants not guilty.” This instruction might well have been considered by the jury as charging that unless the jury believed that all of the deposit had at that time been lost to Smith the defendants should have been found not guilty, which is not the law, as laid down by the Supreme Court in the case of Meadowcroft v. People, 163 Ill. 56, where it was held that the crime was complete even though the entire deposit is not lost to the depositor.

We find in the record an affidavit of the witness Slivka, who had charge of the bank from the 1st day of November until it was closed, and who assisted the receiver in the liquidation, filed in this court in support of a motion by defendants in error to reverse the judgment herein without remanding the cause. This affidavit stated that on October 31, 1922, the depositor George Smith was a joint signer with four other persons on a note to this bank in the sum of $800; that the note was dated May 23, 1922, and was not paid until November 29,1922. It further disclosed that from the time of the indictment in February, 1923, to the trial in the following October, this note was not among the files of the bank for the reason that it had been paid and had been transferred to the “dead records” of the bank and was filed under index of “ B ” because the first name appearing on the note was George W. Buck. This affidavit shows the materiality of this evidence for the reason that it states the depositor was indebted to the bank at the time the deposit was made. The affidavit also shows that the failure to produce this evidence at the trial was not due to the lack of any diligence on the part of plaintiffs in error. Had this affidavit been presented in support of the motion for a new trial the court below would no doubt have given it serious consideration, but being presented for the first time directly in this court it is not part of the record we are called upon to review and cannot be considered by us. The said motion to reverse the judgment which was taken for consideration with the case will be denied. No reversible error appearing in this record, the judgment should be and is affirmed.

Affirmed.


author: Mr. Justice Barry

text:
    Susie LaForest, Administratrix, Appellee, v. Chicago & Eastern Illinois Railway Company, Appellant.

    1. Railroads — how parents’ contributory negligence negatived. Declaration, for damages for the negligent killing of a child of tender years by a railway train, which avers that the child was in the exercise of due care for her safety at the time of the accident, sufficiently negatives contributory negligence on the part of the parents.
    2. Railroads — amendment charging toilful negligence as not stating new cause of action. An amendment to a declaration charging the killing of plaintiff’s intestate by defendant’s negligent operation of its train, which averred the negligence was wilful .and wanton does not raise a new cause of action.
    3. Bailroads — liability for ordinary negligence for death of child. If the parents of a child of tender years who was killed by a railway train were not negligent, recovery may be had if the defendant is shown to have been guilty of ordinary negligence.
    4. Railroads — when contributory negligence not a defense for death of child. If a railway train is shown to have been operated with wilful negligence at' the killing of a child of tender years, the defendant is liable in damages even though the child and her parents were guilty of contributory negligence.
    5. Railroads — when instruction on contributory negligence unnecessary. In ease an action against a railway company for killing a child of tender years is tried wholly on the theory that defendant’s negligence was wilful and wanton, the court has no occasion to instruct on contributory negligence of the parents.
    6. Bailroads — what negligence presumed wilful. Wilful negligence will be presumed on the part of a railroad if its omission to exercise care is so gross as to show a lack of regard for the safety of a child of tender years alleged to have been killed by wilful negligence.
    7. Railroads — what negligence of railroad compels submitting case to jury. If a railroad has been guilty of such gross omission to exercise care for the safety of a child of tender years as to show wilful negligence in causing his death as shown by evidence fairly tending to prove it, the ease must be submitted to the jury.
    8. Witnesses — competency of husband and wife at common law. A husband and wife could not be witnesses for or against each other at common law.
    9. Witnesses — competency of husband to testify for wife as administratrix. In an action wherein the mother of a child alleged to have been killed by a railroad company’s wilful negligence sues as administratrix of the estate, the father cannot testify, being unable to do so without at the same time testifying in favor of his wife.
    Appeal by defendant from the Circuit Court of Pulaski county; the Hon. D. T. Hartwell, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded.
    Opinion filed March 31, 1925.
    Craig & Craig, for appellant.
    Asa J. Wilbourn, for appellee.

       Received from clerk of Appellate Court, August 8, 1927,

   Mr. Justice Barry

delivered the opinion of the court.

Appellee’s intestate, who was five and one-half years of age, resided with her parents three-quarters of a mile north of Fayville and % about 200 feet from appellant’s track. On December 5, 1922, the child was struck and killed by one of appellant’s trains. Her mother ivas appointed administratrix and this suit, brought to recover for her death, resulted in a verdict and judgment for $1,800. The case went to the jury on the third and fourth counts of the declaration as amended. When those counts were amended appellant pleaded the statute of limitations thereto and a demurrer to the pleas was sustained. Appellant then extended the general issue to the amended counts.

Appellant insists that the original counts did not state a cause of action; that as amended they introduced a new cause of action to which the statute of limitations was a bar and that the court erred in sustaining the demurrer to its special pleas. It was held in Romani v. Shoal Creek Coal Co., 191 Ill. App. 521, that when a defendant pleads the general issue to amended counts after a demurrer to its plea of the statute of limitations had been sustained it was in no position to question the court’s ruling on the demurrer. The Supreme Court did not pass on that question but held that the amended counts did not state a new cause of action. Romani v. Shoal Creek Coal Co., 271 Ill. 360.

It is claimed that the original counts did not state a cause of action because there was no averment that the parents of the child were in the exercise of due care for her safety. Each count averred that the child was in the exercise of due care and caution and that was sufficient to negative contributory negligence on the part of her parents. Passwaters v. Lake Erie & W. R. Co., 188 Ill. App. 121; Elenz v. Conrad, 115 Iowa 183, 88 N. W. 337. It is argued that if they stated a cause of action it was simply for a failure of appellant to exercise ordinary care and that when the counts were amended so as to charge wilful and wanton negligence a new cause of action was introduced which was subject to the bar of the. statute. It has been expressly held that such an amendment does not present a new cause of action and that it was error to overrule a demurrer to a plea of the statute. Blanchard v. Lake Shore & M. S. Ry. Co., 126 Ill. 416, 426; Blayney v. Cotton, 189 Ill. App. 205.

Appellant argues that the counts as amended attempt to charge wilful and wanton negligence alone and that the averments are wholly insufficient to state such a cause of action. We think the averments are sufficient under Walldren Express & Van Co. v. Krug, 291 Ill. 472, and Miller v. S. S. Kresge Co., 306 Ill. 104. They also aver in legal effect, as we have shown, that the parents were in the exercise of due care for the safety of the child. If the parents were not negligent a recovery might be had if appellant is shown to have been guilty of ordinary negligence. On the other hand if the evidence shows that appellant was guilty of wilful and wanton negligence there may be a recovery even though the child and her parents were guilty of contributory negligence. Walldren Express & Van Co. v. Krug, supra.

Appellant asserts that the case was tried solely on the-theory of a wilful and wanton injury. None of its instructions were based on that theory and three of those given on its behalf were to the effect that if the father or mother of the child failed to exercise due care for her safety the jury should find in favor of appellant. No instructions were asked on behalf of appellee. If the case had been tried solely on the theory of wilful and wanton negligence there would be no occasion to instruct the jury as to contributory negligence on the part of the parents.

If an omission to exercise care is so gross -as to show a lack of regard for the safety of others it will justify the presumption of wilfulness or wantonness. And if there is evidence fairly tending to show such a want of care the case must be submitted to the jury. Walldren Express & Van Co. v. Krug, supra; Bernier v. Illinois Cent. R. Co., 296 Ill. 464. As the judgment must be reversed we will not discuss the evidence fur: ther than to say that it presented a question of fact for the jury and the court did not err in refusing to direct a verdict. •

The child left her father, mother, brother and sister as her next of kin and this suit was brought by the mother as administratrix for their benefit. The father and mother were permitted to testify to material matters over the objection of appellant. The objections were to the effect that they were incompetent witnesses both under the statute and at common law. Later the court excluded the testimony of the mother, but allowed that of the father to stand. At common law the husband and wife could not be witnesses for or against each other. 2 Kent Comm. 176; Schreffler v. Chase, 245 Ill. 395-399; Thomas v. Anthony, 261 Ill. 288-292.

Where a father as administrator óf his deceased child brought suit to recover for his wrongful death, the mother was permitted to testify over objection of the defendant. The Appellate Court held it would be a harsh rule that would exclude her testimony and affirmed the judgment. Thomas v. Anthony, 179 Ill. App. 463. The judgment was reversed solely on the ground that the wife was an incompetent witness, Thomas v. Anthony, 261 Ill. 288. The basis of the holding is that she could not testify in her own interest without also testifying in the interest of her husband. That is the latest utterance of the Supreme Court upon the subject. The same rule must apply where the wife is the administratrix and her husband is called as a witness in her behalf. He cannot testify in his own interest without at the same time testifying in favor of his wife. He was not a competent witness under the Thomas case, supra.

There is a further complaint as to the admission of evidence, but we are of the opinion the court did not err in its admission. The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mb, Justice Barry

text:
    John E. Throgmorton et al., Appellees, v. Charles Mosak et al. Pollock Lumber & Coal Company, Appellant.

    1. Mechanics’ liens — how subcontractor’s notice must be served. A subcontractor in order to secure a lien must have notice personally served upon the owner of the property or his agent, architect or building superintendent.
    2. Mechanics’ liens — wife as agent of husband to accept notice of lien. Marriage of itself is no proof that the wife is agent for her husband, enabling her to accept notice of mechanics’ liens for him.
    3. Mechanics’ liens — bringing suit as not excusing subcontractor’s notice. Under Cahill’s St. ch. 82, 1f 28, providing a subcontractor can only bring suit ten days after he has served notice of his claim on the owner, agent, architect or building superintendent, suit by the subcontractor within the ten days cannot take the place of the notice as a prerequisite to recovery.
    Appeal by defendant from the Circuit Court of Jefferson county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed March 31, 1925.
    Smith & Noleman, for appellant.
    E. M. Peavler and Gilbert & Gilbert, for appellees.

       Received from clerk of Appellate Court, August 8, 1927.

   Mb, Justice Barry

delivered the opinion of the court.

In a mechanic’s lien proceeding brought by the original contractor, appellant filed an answer and cross-bill claiming a lien as a subcontractor. Upon a hearing the court dismissed the bill and cross-bill for want of equity.

By section 21 of the Liens Act, Cahill’s St. ch. 82, If 21, a subcontractor is given a lien but under section 28, Cahill’s St. ch. 82, f[ 28, it cannot be enforced until ten days after his notice has been served as provided in certain other sections, including section 24, Cahill’s St. ch. 82, if 24. Appellant contends that it complied with said section 24, which required it, within a specified time, to cause a written notice of its claim and the amount due or to become due to be personally served on the owner, or his agent, or architect, or the superintendent having charge of the building or improvement.

The building in question was erected by the contractor for Charles Mosak under a written contract. Appellant furnished the contractor certain materials and within the time required by section 24 prepared a written notice of its claim addressed to Charles Mosak and caused the same to be delivered to his wife. Appellant insists that this was a personal service of the notice as required by section 24; that the wife was the agent of her husband and acted in that capacity in accepting service of the notice; that appellant made her its agent for the purpose of delivering the notice to her husband and that she acted as such agent and delivered the notice; that Mr. Mosak acknowledged in writing that he received the notice.

It is well settled that a subcontractor’s notice must be personally served and if it is sent by mail and actually received the statute has not been complied with. Carney v. Tully, 74 Ill. 375; Sykes Steel Roofing Co. v. Bernstein, 156 Ill. App. 500. In South Side Lumber Co. v. Date, 156 Ill. App. 430, the notice was left with a clerk of Lamson & Company, for whom Mr. Date, the owner of the building, had been working and the clerk promised to hand it to Mr. Date. The clerk left the notice on Mr. Date’s desk and he.found it there when he came to the office on the following day. The court held there was no personal service within the terms of the statute and the Supreme Court denied a writ of certiorari. Under another statute it was held that where a written notice was delivered to a member of the family of the person to whom it was addressed there was no personal service. Wilson v. Lowmaster, 181 Ill. 170.

In Haj v. American Bottle Co., 261 Ill. 362, a lawyer sought to establish a lien for fees under the Attorney’s Lien Act. He mailed a notice to the appellant but there was no positive evidence that it was received. The court held it was immaterial whether the notice was received or not as it could not be served by mail.

In a case which arose under section 23 of the Liens Act, Cahill’s St. ch. 82, ft 23, a subcontractor sent notice by mail. It was actually received and we held there was no personal service and cited several cases in support of our conclusion. Eastwood v. Road Dist. No. 5, 230 Ill. App. 281.

We find no evidence in the record tending to show that Mrs. Mosaic was the agent of her husband for any purpose. Proof of agency does not arise, even prima facie, from the fact of the matrimonial tie. Worthy v. Birk, 224 Ill. App. 574; McNemar v. Cohn, 115 Ill. App. 31. There is no evidence that Mrs. Mosaic was the agent of appellant for the purpose of serving the notice upon her husband other than the mere fact that the notice was left with her and her husband after-wards received it. ■ In South Side Lumber Co. v. Date, supra, the clerk with whom the notice was left agreed to hand it to Mr. Date and Mr. Date actually received it but the court held that there was no personal service. If the actual receipt of a subcontractor’s notice sent through the mail or left with one who agrees to deliver it is not a personal service, we are not warranted in holding that delivery to a wife is personal service upon her husband.

Mr. Mosak wrote appellant stating that he had received the notice. The same situation existed in the Eastioood case, supra, and we held there was no personal service within the meaning of the law. In Carney v. Tully, supra; Sykes Steel Roofing Co. v. Bernstein, supra, and South Side Lumber Co. v. Date, supra, it clearly appeared that the notices were actually received but the courts held that the statute had not been complied with. We are not prepared to hold that a mere acknowledgment in writing of the receipt of a subcontractor’s notice which was not served in the manner required by the statute is sufficient. The legislature has declared that such a notice must be personally served and. the courts have no authority to say that service in a different manner shall be sufficient.

The contention that the filing of appellant’s answer within the time provided by the statute for the personal service of notice by the subcontractor made it unnecessary to serve the notice cannot be sustained. By section 7 of the act, Cahill’s St. ch. 82, ff 7, a contractor is required to file notice of his claim for lien within four months unless he files a suit within that time, but there is no provision of that kind with reference to the claims of subcontractors. On the contrary, section 28 expressly denies a subcontractor the right to bring suit until ten days after notice has been served. Appellant failed to show it was entitled to a lien. For that reason the decree must be affirmed. Whatever we might say about other questions argued would be merely obiter dicta.

Affirmed.


author: Mr. Justice Boggs

text:
    The People of the State of Illinois, Defendant in Error, v. Cecil Pemberton, Plaintiff in Error.

    1. GrBAND juby — presumption of validity on review. In the absence of an affirmative showing in the record that the regular grand jury had not been discharged, it will be presumed on review that the court below had sufficient grounds for drawing and impaneling the special grand jury which returned the indictment.
    2. Criminal procedure — uncontradioted evidence as supporting judgment. A defendant who has not offered any evidence cannot successfully ask reversal of the judgment against him for keeping a gaming house as against the weight of the uneontradieted evidence of a State’s witness to his crime.
    Error by defendant to the County Court of Franklin county; the Hon. S. M. Ward, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed March 31, 1925.
    B. E. Smith, for plaintiff in error.
    Boy Martin, for defendant in error.

       Received from clerk of Appellate Court, August 8, 1927,

   Mr. Justice Boggs

delivered the opinion of the court.

Plaintiff in error prosecutes this writ of error to reverse a judgment of the county court of Franklin county, fining him $300 and costs on an indictment returned by a special grand jury, charging him with keeping a common gaming house. Said indictment had been.certified to the county court for trial.

The principal ground relied on by counsel for plaintiff in error for a reversal of said judgment is that the indictment returned by said special grand jury is illegal, for the reason that at the time said special grand jury was impaneled, and at the time said indictment was returned, the record fails to show that the regular grand jury which had been duly impaneled at the beginning of said November term, which convened on the 26tli day of November, 1923, had been discharged and that therefore said court had no power to impanel a special grand jury.

Cahill’s St. cli. 78, Ü19, provides among other things that “The judge of any court of record of competent jurisdiction may order a special venire to be issued for a grand jury at any time when he shall be of opinion that public justice requires it. ’ ’

The Supreme Court had before it a question similar to the one here raised in Mackin v. People, 115 Ill. 312. In discussing the power of a court to call a special grand jury, and the validity of its indictment, the court says, page 319:

“It appears from the averments in the indictment, it was found by a special grand jury. In that respect it is insisted on behalf of defendant there is error in the record. Section 19, chapter 88, of the Devised Statutes of 1874, provides the judge of any court of record of competent jurisdiction may order a special venire to be issued for a grand jury at any time when he shall be of the opinion that public justice requires it. Unless something in the record disclosed the contrary, it will be presumed the discretion with which judges of courts of record are clothed in such matters has been well exercised in the interest of public justice. This much is conceded by counsel, but the objection taken is, that at the time the special grand jury in this case was called, a regular grand jury, if not in fact in session, was in existence. The fact on which the argument proceeds on this branch of the case nowhere appears in this record. It may be a grand jury had been regularly drawn for that term of court under the usual forms of law, but as to whether it had been discharged before this special grand jury was called, the record is absolutely silent. Every presumption, however, will be indulged to sustain the action of the court. Its action is to be presumed tó be regular until it is made to appear otherwise. Nothing to the contrary appearing in this record, the presumption will be indulged that that state of facts existed which clothed the judge with a discretion to call a special grand jury, whenever in his opinion, it was required in the interests of public justice.”

This case was cited with approval in Hereford v. People, 197 Ill. 222-230, and People v. Secco, 303 Ill. 546. In 28 C. J. 765, the rule is stated as follows:

“In the absence of any showing to the contrary it will be presumed that the order for a special grand jury was regularly made, and that the regular grand jury was properly discharged, before the special grand jury was impaneled.”

While the record in this case discloses the fact that a regular grand jury had been impaneled, and had returned numerous indictments and had made a report to the court on the condition of the jail, etc., it fails to disclose that the regular grand jury had not been discharged. The record is silent as to what, if anything, transpired in said court from the 30th day of November, the date of the last proceedings shown to. have been had in connection with the regular panel of the grand jury, to December 15th, the date on which the special grand jury was drawn and impaneled. In other words, the record fails to show the adjournment of said court on the 30th day of November to the 15th day of December or to any other day. It does not purport on its face to disclose all of the orders that were made by said court at its November term, 1923. It will therefore be presumed that the court, in impaneling said special grand jury, proceeded regularly, and that sufficient grounds existed therefor.

In White v. People, 81 Ill. 333, the court, in discussing the presumption of the regularity of the proceedings of a court of general jurisdiction, at page 335 says:

“The venire was issued, and the grand jury brought in on this venire was duly organized, and, on the 4th day of January, duly returned the indictment in this case.

“It is insisted, because the record does not affirmatively show that the court was convened on the twenty-fourth day of November, in pursuance of the order of adjournment to that day, entered on the 12th of November, that it must be held that the September term had lapsed and ceased, and, as a consequence, the proceedings on the 1st day of December (and on the subsequent days purporting to be of the said September term) were coram non judice and void, and hence that this indictment was and is void. This position is not well taken. The orders of record of December 1, speaking of the day, states that was one of the regular days of said September term. In the absence of anything in the record to the contrary, by bill of exceptions or otherwise, the fair inference is that the court was duly convened on the 24th of November, and that the term was continued by regular adjournments, or that in the absence of the judge the proper adjournments were made by the sheriff, as provided by sec. 37, chap. 37, R. L. 1874, p. 331.”

We therefore hold that in the absence of an affirmative showing in the record, that the regular grand jury had not been discharged, it will be presumed that the court had sufficient grounds for drawing and impaneling said special grand jury, which returned the indictment in this case. The court did not err in overruling the motion to quash said indictment and the motion in arrest of judgment.

It is next insisted by plaintiff in error that the evidence is not sufficient to sustain the judgment.

E. 0. Diel testified on behalf of the People to the effect that plaintiff in error operated a gaming house, and that he (said witness) had gambled in the same, and had seen others gambling therein. Said witness further testified on cross-examination that at one time he had been in the gambling business with plaintiff in error, but that he had quit gambling and was iloav absolutely opposed to it. The credibility was for the jury. No evidence .Avas offered on the part of the plaintiff in error. The uncontradicted evidence is to the effect that plaintiff in error Avas guilty as charged. We would therefore not be warranted in reversing the judgment on the ground that it Avas not supported by the evidence.

Finding no reversible error in the record, the judgment of the trial court Avill be affirmed.

Judgment affirmed.


text:
    C. E. Mowery, Appellee, v. City of Mounds, Appellant.

    1. Bridges — what is due eare in using defective. A driver of an autotruck, which truck sustained damage because of rotten boards on a bridge, exercised due eare in driving thereon where it appeared that there were no notices posted of defects, that the bridge was in general use by the public, that there was nothing calling attention to the defects, and that the truck and load were only about half the weight the bridge should have carried under the statute.
    2. Bridges — what is notice to city of defects. A city is charged with notice of the defective condition of a bridge at which it had previously posted defect notices and then removed same after making ineffective repairs, by laying new boards over rotten boards, of which it claimed no notice in action against it by one damaged by said defect.
    3. Bridges — old, defect as imputing knowledge to city. If a defect has existed on a bridge for a long time, knowledge thereof is imputed to a municipal corporation.
    4. Bridges — latent defect not excusing city’s neglect. The officers of a city must use ordinary care to anticipate defects of natural wear in a bridge, and failure to make sufficiently frequent examinations of a bridge will not excuse the city for neglecting a latent defect.

      5. Bridges — sufficiency of notice of defect as jury question. Whether or not a city is chargeable with notice of a bridge’s condition long enough to have repaired it before an accident held a jury question.
    6. Pleading — judgment as curing defective counts. ■ Counts charging a city with damages from a defective bridge were not insufficient in alleging notice to the city of the defects, after verdict and judgment in plaintiff’s favor.
    7. Bridges — instructions on legal load as proper. In an action against a city for damages from a defective bridge, it is proper to instruct on the statute in reference to the carrying capacity required of bridges.
    8. Appeal and error — same error in instructions for both parties. Appellant is in no position to urge error in instructions for appellee upon the same error appearing in instructions given for appellant.
    9. Damages — adoption of measure most favorable to city. In an action against a city for damages due to a truck breaking through boards on a bridge, the measure of damages that should be adopted is the one most favorable to the city.
    10. Damages — necessity of evidence to support theory of measure. If one whose property has been damaged offers proof thereof without objection on the theory of the damage being the difference between the value of the article before and after injury, and the one liable insists that the damage should be the cost of repair with the difference, if any, in the value of the article after repair and before injury, but offers no proof in support of such theory, then the one liable cannot complain as to the measure of damage adopted by the court and jury, especially where the verdict is much less than the evidence would have warranted.
    Appeal by defendant from the Circuit ■ Court of Pulaski county; the Hon. William 1ST. Butler, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed March 31, 1925.
    C. S. Miller, for appellant.
    Fred Hood, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

On and prior to August 15, 1922, appellee was engaged in the business of transporting merchandise by autotruck for hire. At about 4:30 in the afternoon of said day, appellee was transporting a truck.load of groceries through the City of Mounds, and while crossing one of the bridges of said city, a sill and certain of the floor timbers in said bridge broke, causing appellee’s truck to fall, thereby damaging said truck and groceries. To recover therefor, appellee instituted suit in the circuit court of Pulaski county. A trial ivas had, resulting in a verdict and judgment in favor of appellee in the sum of $600. To reverse said judgment, this appeal is prosecuted.

The bridge in question was a wooden structure, built in 1916. It had been repaired some few months prior to said accident, by the putting in of an additional sill, and by placing two rows of runway boards lengthwise on the floor of said bridge. It is practically conceded that the original floor of said bridge Avas badly worn, and that the planks constituting the same would rattle when automobiles or trucks were crossing and that the sill in question was badly rotted prior to and at the time of said accident. The evidence on the part of appellee in this connection is to the effect that the rotten condition of said sill was apparent from an observation of its surface, Avhile that of appellant’s witness was to the effect that said sill, on the surface, appeared to be sound, but that it was rotten at the heart, and that its defective condition Avas a latent one.

It is first contended for a reversal of said judgment that appellee was not in the exercise of due care for the safety of his truck and said groceries, just prior to and at the time of the accident.

Appellee testified that the total weight of the truck and the load of groceries was 11,200 pounds; that under the provisions of the statute, said bridge would be required to carry a load of over 22,000 pounds. The evidence on the part of appellee is further to the effect that there were no notices posted at said bridge stating that it was in a defective condition, and that it was in general use by the public, and that there was nothing to call attention to the defective condition of the bridge. This being the state of the record, we are of the opinion and hold that the jury were fully warranted in finding that appellee was in the exercise of due care for the safety of said truck and of its contents, just prior to and at the time in question.

It is next contended by appellant that if the defective condition of said bridge be conceded, that there was no proof of actual notice to the city or its officers of such condition, and no sufficient proof of constructive notice to said city or its officers of such condition. In other words, it is contended by counsel for appellant that there was nothing with reference to the outward appearance of said sill to call the attention of the city or of its officers to its defective condition; that an examination of said bridge had been made from time to time prior to the day in question, by certain of the officers of said city, and that they had found nothing which would indicate that said bridge was otherwise than safe.

On the other hand, the testimony of appellee’s witnesses is to the effect that an examination of the sill in question disclosed that it was quite rotten and that its rotten condition was apparent from an examination of its surface; that the floor boards on said bridge were badly worn, and that prior to putting in said additional sill and laying said runways, there had been notices posted at said bridge to the effect that the same had been condemned, and that said notices did not appear at said bridge after these repairs had been made.

This being the state of the record, we are of the opinion and hold that the jury were fully warranted in finding that the city had notice of such defective condition, or by the exercise of reasonable diligence should have known of the. same. City of Sterling v. Merrill, 124 Ill. 522; City of LaSalle v. Porterfield, 138 Ill. 114. The law is that knowledge is imputed to a municipal corporation, where a defect has existed for a considerable length of time. City of Belvidere v. Crichton, 81 Ill. App. 595; City of Ottawa v. Hayne, 114 Ill. App. 21.

Counsel for appellant apparently takes the position that there was no duty on the part of the city or its officers to make any particular examination with reference to the condition of said bridge; that all that they had to do was to take note of any defects which were readily apparent. This contention is not well taken. In City of LaSalle v. Porterfield, supra, the court, in discussing a question of similar character at page 119, says: “It is the duty of municipal officers to use ordinary care in keeping its bridges, culverts, etc., in a safe condition for public travel, and this involves the anticipation of defects that are the natural and ordinary result of use and climatic influences; and so, wherever there is neglect on the part of the proper officer to make a sufficiently frequent examination of a particular structure, a municipality will not be relieved from liability, although the defect may not be open and notorious.” Citing Elliott on Roads and Streets 462, and authorities there cited; also Stebbins v. Township of Keene, 55 Mich. 552; Village of Fairbury v. Rogers, 98 Ill. 557; City of Sterling v. Merrill, supra. The case of City of LaSalle v. Porterfield, supra, was cited in Sherwin v. City of Aurora, 257 Ill. 458-463; See also City of Springfield v. Doyle, 76 Ill. 202.

The law further is that whether or not the city is chargeable with notice of the condition of said bridge for a sufficient length of time before the accident to have repaired the same, was a question of fact for the determination of the jury. City of Decatur v. Besten, 169 Ill. 340.

It is next contended by appellant that the court erred in denying' the motions made by it at the close of appellee’s evidence and again at the close of all the evidence, to direct a verdict in favor of appellant. In addition to the contention that there was a failure to prove due care on the part of appellee, and of notice to the city of the defective condition of said bridge, it is also contended that the first and second counts of appellee’s declaration are not sufficient upon which to base a verdict and judgment. It is insisted that both of said counts fail to sufficiently aver actual or constructive notice to said city of the defective condition of said bridge, and that the first count also fails to allege ownership of said bridge on the part of said city. We have examined said counts in connection with the objections made, and are of the opinion that the same are not well taken. At least, this would be so after verdict and judgment.

It is next contended by counsel for appellant that the court erred in giving the first, second, fourth, fifth, sixth, eighth and ninth instructions given on behalf of appellee.

The first instruction is based on the provision of the statute with reference to the carrying capacity required of bridges in order to comply with said statute. This instruction states a correct principle of law, and the objection thereto is not well taken.

The second given instruction is as follows:

“You are instructed that the measure of damages in this case is the difference in the value of the truck and its contents immediately preceding the accident and the value thereof immediately after the accident. ’ ’

The objection to this instruction is that it assumes liability on the part of appellant, and indicates to the jury that all they have to do is to fix the amount of the damages. The objection to this instruction is probably well taken; however, we find that appellant’s given instruction nine, ten and eleven, all of which have to do with the matter of damages, contain the same vice. Appellant is therefore not in a position to urge his objection to said instruction.

It is contended that appellee’s fourth instruction is not based on the evidence. Said instruction is as follows:

“If you believe from the greater weight of the evidence that a short time before the accident in question the defendant gave warning by a sign on or near said bridge that it was not safe for public travel, and later, after making some repairs, removed the, sign and permitted the public to use it generally, then the defendant had notice of the defective condition of the bridge, if such defect was of such nature that it existed at the time the sign was removed, and might have been known to defendant upon proper and careful inspection of the bridge.”

This instruction is not subject to the criticism made, for the reason that it leaves the question to the jury as to whether or not the appellant had caused the notices or warnings with reference to the condition of said bridge to be placed thereon.

Appellee’s given instructions five and six state correct principles of law, and the court did not err in giving the same.

While appellee’s given instruction eight is not as carefully drawn as it should be, we are of the opinion and hold that, taking the instruction as a whole, it states a correct principle of law, and the court did not err in giving the same.

The objection urged against instruction nine is that it would warrant the jury in finding that appellant was liable for defects that were not patent, in connection with the condition of said bridge. Under the authorities above cited, we are of the opinion that this instruction states a correct principle of law, and the court did not err in giving the same.

It is also contended that the court did.not adopt the correct rule as to the measure of damages that should govern in this case.- Appellee tried the case on the theory that the measure of damages was the difference in value of the truck and groceries before and after said accident. Some of the evidence offered by appellee on this, theory was objected to, but various witnesses testified without objection in reference to the damages sustained by appellee on this theory, which evidence, if believed by the jury, would have warranted a verdict considerably larger than tlie one returned.

The law is that the measure of damages that should be adopted in a case of this character is the one that will be most favorable to the party liable therefor. However, we are of the opinion and hold that if the person whose property is damaged offers proof without objection, on the theory that the measure of damages is the difference between the value of the article before and after the injury, that if the person liable therefor insists that the damages should be the cost of repair, taken together with the difference, if any, in the value of the article after repair and before injury, he should offer evidence in support of that theory so that the jury may have such evidence before them to act upon in" fixing the damages. This appellant has failed to do. It is therefore not in position to complain as to the measure of damages adopted by the court and jury. ' Especially is this true in view of the fact that the verdict is much less than the evidence Avould have warranted.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.


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    W. Z. Trout, Appellee, v. City of Herrin, Appellant. Thomas Kilpatrick, Appellee, v. City of Herrin, Appellant. E. C. Frick, Appellee, v. City of Herrin, Appellant. John Stallions, Appellee, v. City of Herrin, Appellant. Monroe Smith, Appellee, v. City of Herrin, Appellant. A. F. Richerson, Appellee, v. City of Herrin, Appellant. Jacob Jones, Appellee, v. City of Herrin, Appellant.

    1. Municipal corporations — salary rights of officers not de jure. In order to recover the salary of an office to be paid out of the public funds, a plaintiff must show he is a de jure officer of the corporation.

      2. Municipal corporations — hand as prerequisite to officer’s appointment. In order to recover salary as policeman in suit against a city, plaintiff must show he qualified for the office of policeman by having bonds executed to the city as required by statute and that the bonds were ax>proved by the city council.
    3. Municipal corporations — what not a holding over under former appointment. One who has never qualified as policeman of a city by having his bond approved by the city council cannot claim that service never authorized by the council was a holding over from an appointment which had been confirmed by the council.
    4. Municipal corporations — requisite showing to recover officer’s salary. One seeking to recover salary for acting as policeman must show the legal existence of his office and his legal right to hold it.
    5. Municipal corporations — how office of policeman created. The office of policeman can only be created by ordinance, fixing the terms of office, prescribing the duties and defining the powers of the officer.
    6. Saving questions por review — when motion for new trial not required. In cases tried by a court without a jury, a motion for new trial is neither required nor authorized by law or rules of practice and serves no purpose in saving questions for review by the Appellate Court.
    7. Saving questions por review — unnecessary to except to judgment entry. It is not necessary to except to the entry of a judgment by the court in order to assign error thereon.
    Appeal by defendant from the City Court of Herrin; the Hon. E. N. Bowen, Judge, presiding. Heard in this court at the October term, 1924.
    Beversed.
    Opinion filed March 31, 1925.

      F. E. Trobaugh, for appellant.
    E. T. Cook, for appellees.

       Beeeived from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

Separate suits were instituted by appellees, W. Z. Trout, Thomas Kilpatrick, E. C. Frick, John Stallions, Monroe Smith, A. F. Eicherson and Jacob Jones, against appellant in the city court of Herrin, to recover for salaries alleged to be due them, respectively, for services rendered said city as policemen. By agreement of parties, a jury was waived and said causes were consolidated and tried together. The court found the issues for appellees, respectively, and rendered judgments thereon against the city. To reverse said judgments, this appeal is prosecuted.

The record discloses that the mayor of said city nominated appellees as policemen for said city, but the city council refused to-confirm said appointments. Thereupon said mayor from time to time appointed appellees, respectively, to serve for terms of 30 days as such policemen. On two or three occasions the city council, as to certain of appellees, voted to confirm their respective appointments. Thereafter, when such appointments were made, they refused to confirm the same for any term whatever. The record further discloses that the bonds executed by appellees, respectively, as such policemen ran to the mayor, instead of to said city, and were never approved by the city council. The periods for which appellees sue ran from two to two and one-half months, at salaries varying from $150 to $165 per month.

The declaration in each case consisted of the common counts, to which was filed a plea of the general issue and a special plea, setting forth that appellees, respectively, had never been duly appointed and qualified as policemen for said city.

The principal contention on the part of appellant for a reversal of said judgment is that the record fails to show appellees to have been officers de jure, and that such fact must be established before there can be a right of recovery. In other words, appellant contends that where a person seeks to recover the salary of an office, to be paid out of public funds, such officer must show that he is a de jure officer.

This contention, we think, is abundantly supported by the authorities: Stott v. City of Chicago, 205 Ill. 281; People v. City of Chicago, 210 Ill. 479; Kenneally v. City of Chicago, 220 Ill. 485; McNeill v. City of Chicago, 212 Ill. 481; Moon v. Mayor, 214 Ill. 40; Beams v. City of West Frankfort, 233 Ill. App. 479; People v. Paynter, 197 Ill. App. 78. In the latter case the court at page 81 says:

“Under this statute (sec. 11, art. XI, Cities and Villages Act, Cahill’s St. eh. 24, 266) the power to appoint the village marshal was in the president and board of trustees jointly, and the president alone had no power to make such appointment. Rowley v. People, 53 Ill. App. 298; McKean v. Gauthier, 132 Ill. App. 376; People v. Hitchcock, 148 Ill. App. 456. Therefore, the attempted appointment of Paynter as marshal, made by the president of the board in 1914 and not concurred in by the board, was without force and effect and the ordinance, so far as it may tend to give the president alone power to make the appointment, was illegal.”

Counsel for appellees undertakes to avoid the effect of the foregoing principle by calling attention to the fact that certain of appellees’ 30-day appointments were confirmed by said city council, and that therefore, having been so appointed and confirmed, they should hold over until their successors should be duly appointed and qualified.

There is no ordinance shown of record, giving to the mayor the power to make appointments for 30 days. Even if there were, and if such appointments had been confirmed by the city council, still, in order to qualify such policemen, it was necessary that bonds to the city be executed as provided by statute, and that such bonds be duly approved by said city council. As before stated, such bonds as were taken ran to the mayor instead of to said city. It therefore follows that appellees cannot maintain their actions on the ground that they were holding over under a former appointment. Where a party seeks to recover the salary of an office, he must show the legal existence of the office and his legal right to hold it. Bullis v. City of Chicago, 235 Ill. 472; Harnett v. City of Chicago, 204 Ill. App. 253. The office of policeman can only be created by ordinance. Cahill’s St. ch. 24, If 76; Stott v. City of Chicago, supra; Moon v. Mayor, supra. The ordinance must fix the terms of office, prescribe the duties and define the powers of the officer. Cahill’s St. ch. 24, ft 77; Beams v. City of West Frankfort, supra. We therefore hold that inasmuch as the record fails to show that appellees were de jure officers, they were therefore not entitled to recover against said city.

It is contended by counsel for appellees that appellant is not in a position to question the judgments in this case, for the reason that there was “no motion for a new trial; no exceptions to the rendition of the judgment below; no motion in arrest of the judgment, and no exception taken to the judgment.”

A motion for a new trial in cases tried by a court without a jury is neither required nor authorized by law or rules of practice, and can serve no purpose whatever in preserving questions for review in this court. Climax Tag Co. v. American Tag Co., 234 Ill. 179, and cases there cited. - The law further is that it is not now necessary to except to the entry of a judgment by the court, in order to assign error thereon. In City of Lewistown v. Harrison, 282 Ill. 461, the court at page 466 says:

“This court has held, in construing section 81 of the Practice Act as amended in 1911, that the incorporating of formal exceptions into the record in order to preserve the ruling of the trial court for review is unnecessary, and that this applies to the requirements for an exception as to the entry of the judgment.” Citing Miller v. Anderson, 269 Ill. 608.

We therefore hold that appellees’ contention is not well taken.

Counsel for appellees also insists that said city, through its officers, accepted the services of appellees as such policemen, and it is therefore liable to said appellees, respectively, therefor. What we have already said in connection with the right of appellees to recover, sufficiently disposes of this contention.

Other errors were assigned on the record, but in view of what we have already said, it will not be necessary to discuss the same. For the reasons above set forth, the several judgments will be reversed.

Reversed.


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    Etta Goetz, Appellee, v. Continental Casualty Company, Appellant.

    1. Evidence — construction of accident policy phrase by expert witnesses. Expert witnesses may be allowed to explain the meaning of a technical phrase used in an accident policy to describe the kind of work in which insured was engaged.
    2. Insurance- — what work covered by policy on “electrician, inside wiring.” An accident policy on an ‘‘electrician, inside wiring” covers the work of one who at the time he was killed by an electric shock was working on wires outside a building but in a circuit belonging to the employer and not to the. company furnishing the electricity. ■

      3. Insurance — in whose favor policy construed. The language of an insui-anee policy will bo construed most strongly against the insurer, and of two reasonable interpretations the one more favorable to the insured will be adopted.
    Appeal by defendant from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1924.
    Affirmed.
    Opinion filed April 2, 1925.
    Terry, Gueltig & Powell, for appellant.
    Geers & Geers, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee for $2,095.30, rendered by the- circuit court of Madison county, on an accident policy as indemnity for the death of the insured, who was a son of appellee.

The declaration, which consists of one count, contains a copy of the policy sued on, and alleges among other things that while said policy was in force the insured met his death as the result of a personal bodily injury effected solely and independently of all other causes by the happening of an external, violent and purely accidental event. To said declaration appellant filed the general- issue and three special pleas. Said special pleas in substance aver that at the time appellee’s insured received the injury in question he was doing an act pertaining to an occupation classified by appellant as more hazardous than the occupation of the insured as stated in said policy, and that therefore .appellee would be entitled only to the reduced amount of insurance, according to standard provision I of said policy. To said special pleas appellee filed replications in which it was averred in substance that at the time the insured received the injury which resulted in his death, he was doing "acts or things pertaining to the occupation of a “traveling inside electrician,” which latter occupation was the one stated in the policy of insurance. ' "

A jury was waived and a trial was had before the court on a stipulation of facts, and oral evidence heard on said trial, resulting in a finding and judgment as above set forth.

The stipulation of facts is to the effect that on May 22, 1923, the insured, an electrician employed by the Chicago, R. I. & P. R. Co., and who had followed the occupation of an electrician for several years, had been sent to Inver Grove, Minnesota, for the purpose of making changes in certain wiring at a shop building there located belonging to said railroad company; that in said shop building, electricity was used for operating machinery, the main electric line approaching from a point some distance from the building; that this electric line, before it reached the building, passed through a transformer located on a pole some distance from the building, and from the transformer through certain wires to brackets outside said building. On the day of his death, Lee Goetz had renewed the wiring and changed its location from the transformer to a bracket on the outside of the building and had installed an iron pipe through the wall from the inside to the outside of the building, through which the main wires were run and connected with the wires extending from the transformer to said bracket. At the time he received the injury in question, he was standing on a ladder on the outside of the building several feet away from the building where he had finished connecting together the wires extending from the transformer to the bracket with the wires extending in the iron pipe thrpugh the wall of the building. The current was then on and flowing through these wires, and as he was wrapping rubber tape around the exposed end where the connection had been made, he received an electric shock by coming in contact with these wires while a current of high voltage was passing through them, causing him to fall to the ground.

The insured gave his occupation in the application for insurance as a “traveling inside electrician.” On the trial of said cause, in addition to said stipulation, three electricians testified on behalf of appellee, over the objections of appellant, to the effect that an inside wireman works at anything on the inside of a transformer. One of said witnesses testified: “To be an inside wireman means anything from the inside of the transformer on in. Inside wiremen have occasion to climb poles, fasten cross-arms, climb ladders, fasten brackets on the outside of buildings, handle high voltage.” Another of said witnesses testified: “An inside wireman in the practice we carry on, is one who takes care of the wiring or electrical equipment on the customer’s side of the connection or point of delivery for the energy, that would be where it is delivered by the company to a consumer.” The other of said witnesses testified: “The duties of an inside wireman take him from everything to the transformer, if he wants to take it that way, just according to where the point of entrance coming in; it takes him from building to building, on top of poles, to brackets on the outside of buildings.” This witness further testified, “wiring is customarily done by inside wiremen without turning the current off.”

In the classification of risks filed by appellant insurance company in the office of the State superintendent of insurance at Springfield, electricians are classified as follows:

“Electrician.

Occupation, Exposures & Hazards.

Electrician, traveling inspector and repairing,

not linemen

Electrician, inside wiring

Electrician, lineman, current on

Electrician, outside wiring

Electrician, transformer work

Class. Limit of Risk.

Medium $2,000.00

Ordinary 2,300.00

Non-insurable

Hazardous 500.00

Extra-Hazardous 500.00

It is the contention of counsel for appellant that at the time the insured received the injury which resulted in his death, he was doing an act or thing which pertained to the occupation of an “electrician, lineman, current on,” which occupation appellant company had classified as noninsurable and more hazardous than the occupation of traveling inside electrician, which was classified in the policy as a medium risk. No evidence was offered on the part of appellant with reference to the meaning of the term “traveling inside electrician,” as understood by electricians. The only oral testimony offered by appellant was that of the witness Houschild, chief clerk of appellant company, and who was not an electrician. He undertook to testify with reference to the character of work which would be covered by the different classifications made by appellant company. In other words, he undertook to construe the terms of said policy from the standpoint of appellant company, so far as the matter of the different classifications was concerned.

It is the contention of counsel for appellant that it is for appellant company to say what line of work is covered by the different classifications set forth in its policies. On the other hand, counsel for appellee insist that it is competent for the court to receive the testimony of expert witnesses as to the meaning of the term “inside eléctrician” or “inside wireman,” on the theory that such term is a technical one, and which may be explained by experts who are, by education and experience, qualified to testify in reference thereto.

We are of the opinion and hold that the court did not err in receiving"the testimony of the expert witnesses offered on behalf of appellee. City of Elgin v. Joslyn, 136 Ill. 525; Clarke v. Shirk, 170 Ill. 143; Louisville & N. R. Co. v. Illinois Cent. R. Co., 174 Ill. 448; Garrity v. Catholic Order of Foresters, 148 Ill. App. 189; 10 R. C. L., p. 1072. This being true, the evidence abundantly supports the proposition that the policy sued on covered the insured in the work he was doing at the time he received the injury which caused his death.

In Thorne v. Casualty Co. of America, 106 Me. 274, the court, in discussing a somewhat similar proposition, says:

“A stipulation in an accident policy that if insured is injured while at work in any occupation classed as more hazardous than that stated in the schedule the liability of the insured shall be only for such proportion of the indemnity as the premium will purchase at the rate fixed by the company for the hazard does not contemplate the inhibition of acts, performance of which is necessarily implied from the vocation named in the policy; and where insured’s occupation is stated as member of firm or employed as manager of a beef company, and where his duties are described as ‘ office duties and traveling only,’ the insurer is liable for injuries received by the insured while in the refrigerator of his employer’s plant directing the transfer of carcasses from one truck to another and illustrating to the workmen how to do the work. ’ ’

And in Dailey v. Preferred Masonic Mut. Acc. Ass’n of America, 102 Mich. 289, being a suit on an accident policy where the insured was described as a “passenger conductor,” it was held that the insured could not resist a recovery upon the ground that the insured was injured while leaving a moving train, although the policy expressly excepted the hazard of “attempting to enter or leave moving conveyances using steam * * * as a motive power. ’ ’ The court in discussing said proposition says :

“We are also satisfied from the application and the information which that gave to the defendant company that accidents of this kind are of the risks intended to be insured against. The sole business of the deceased was in running passenger trains, and this was plainly stated in the application. It is common knowledge that conductors of passenger trains on all ■railroads’ must, in the very nature of their business, not only enter their trains while in motion, but leave them before they come to a full stop. It is common knowledge that conductors of passenger trains have full charge of their trains. They give the signal to start, and, after the train starts, they get on board. At stations when the train pulls up, and before it stops, the conductor alights upon the platform. This may be a dangerous practice, but it is among the risks which the passenger conductor assumes when he enters upon such employment; and so general is this knowledge that the defendant company, when it took and approved the application, must have had knowledge of it.”

It should also be kept in mind that in suits to recover on an insurance policy, where there is doubt or uncertainty as to its meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the company, the former will be adopted. Royal Circle v. Achterrath, 204 Ill. 549; Switchmen’s Union of America v. Colehouse, 227 Ill. 561; Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488. The reason of the rule is that the language of the contract is selected by the insurer, and therefore if there is any uncertainty or ambiguity in the language used, it should be construed most strongly against the insurer. Cottingham v. National Mut. Church Ins. Co., 290 Ill. 26; Julius v. Metropolitan Life Ins. Co., 299 Ill. 343; Hancock v. National Council of K. & L. of S., 303 Ill. 66.

It is further insisted by counsel for appellant that the court erred in its rulings on the propositions of law submitted on the trial of said cause. The court’s rulings were in keeping with our construction of said policy, and the court did not err therein.

Finding no reversible-error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.