author: Mr. Justice Dove

text:
    In re Estate of Charles W. Bergman, Deceased. R. D. Weitzel, Administrator of Estate of Charles W. Bergman, Deceased, et al., Appellants, v. Otto Bergman et al., Appellees.
    Gen. No. 9,695.
    Heard in this court at the October term, 1941.
    Opinion filed April 8, 1942.
    Fred B. Bennett, of Woodstock, for certain appellants; R. F. Marshall, of Harvard, for certain other appellant; Otto W. Berg, of Chicago, of counsel.

      Fred R. Kelley, of Marengo, for appellee Otto Bergman.
   Mr. Justice Dove

delivered the opinion of the court.

On April 23,1940, R. D. Weitzel, as administrator of the estate of Charles W. Bergman, deceased, filed a petition in the county court of McHenry county for an order directing him to sell real estate to pay claims and costs of administration against the estate of his intestate. Subsequently the petition was amended. Thereafter, on motion of Carl Bergman, one of the heirs-at-law of decedent, the amended petition was dismissed and this appeal followed. The grounds of the motion to dismiss were that the files of the court showed that the deceased died over ten years before the filing of the petition, and that neither the petition nor any of the allegations of the amendments thereto, if true, would be a sufficient excuse for the delay. A like motion by Otto Bergman, another of the heirs-at-law, does not appear to have been passed upon.

The antecedent proceedings in the county court show that Charles W. Bergman, the decedent, died intestate in the State of Wisconsin on December 2,1929, leaving seven children as his only heirs-at-law. Weitzel, as a creditor by virtue of being executor of the estate of Herman Thoman, deceased, was appointed administrator of the Bergman estate by the county court of McHenry county on February 23, 1937. At that time Otto and Carl Bergman lived at Belvidere, Illinois. Another son lived in Chicago. The other children resided in Wisconsin. Otto, who was appointed administrator in Wisconsin of the Bergman estate, made an unsuccessful attempt to have Weitzel removed as the Illinois administrator and to be substituted in his stead. A claim based upon a promissory note executed by Charles W. Bergman to Herman Thoman, for $500, dated April 15, 1924, due in one year, with 4 per cent interest, was allowed against the Charles W. Bergman estate by the county court of McHenry county, after a suggestion that the note had been assigned to Elizabeth Thoman, widow of Herman Thoman as part of her share in the estate of her husband, that she had died, and that the executrices of her estate were the rightful owners of the note. The claim was approved by an administrator who had been appointed to defend against the note and thereafter a report of the condition of the estate was filed and approved by the county, court.

The amended petition, after formal allegations, states: “As cause for this petition not having been filed earlier and within seven years after the death of the said Charles W. Bergman, deceased, your petitioner shows to the court the following:” Then follow allegations that the decedent was at the time of his death a resident of Wisconsin and died owning real estate there and in Illinois; that shortly after his death Otto Bergman was appointed administrator of the estate in Monroe county, Wisconsin; that he filed an inventory showing the decedent owned real estate and personal property in Wisconsin; and that the estate there still remains open and unsettled. The amendment sets out the appointment of Weitzel as administrator in McHenry county and the proceedings relating to the allowance of the claim on the note. It then alleges that after the appointment of Bergman as administrator in Wisconsin, Weitzel called upon him as such administrator in relation to the payment of the note, and that at such times Bergman, as such administrator, advised him and his attorney that the estate was “in a muss” in that some arrangement would have to be made to sell the Illinois real estate to pay the note, “and that he intended to start an estate in Hlinois for the said Charles W. Bergman,” on which Weitzel relied, believing the estate to be more than sufficient to pay all claims against it, including the note; that finally, at the last conversation, Bergman advised him that more than seven years had elapsed since his father’s death; that no action had been taken; that now nothing could be done; that he did not intend to pay the claim or do anything about it; that immediately thereafter petitioner started an estate in Illinois, and Bergman petitioned the court to revoke petitioner’s letters on the ground that they were not issued within seven years after the decedent’s death, “intending at that time to escape payment of an honest claim, after inducing the petitioner to delay action by the conversations and promises and talks aforesaid, and after having advised the petitioner that he intended to start an estate for the said Charles W. Bergman in the State of Illinois”; that the claim so allowed is an honest and just claim evidenced by a written contract executed by the decedent in his lifetime; that the question of limitation or laches had theretofore been passed upon by the court and was res adjudicata; that to further delay and influence petitioner as executor of the Thoman estate against taking action toward the collection of the note, Otto Bergman filed a claim against the estate of Herman Thoman, which he claimed would constitute an offset against the note, which claim remained on file without action until about the time of the last talk between the petitioner and Bergman, when it was withdrawn or dismissed without notice to petitioner, all of which is alleged to have been done for the express purpose of defeating the payment of the note; that the real estate described in the petition has not been sold or in any way improved by the heirs of Bergman since his death, but remains in the same condition as it was then, and no countervailing equities have occurred or attached, and no innocent or third parties have become interested as purchasers or otherwise. Otto Bergman as administrator by appointment of the Wisconsin court, was made a party defendant. Other portions of the amended petition contain the conclusions of the pleader to the effect that on account of the facts alleged the limitation as to the time for filing such petition is not applicable.

The law gives creditors a lien on the real estate of a deceased debtor to be enforced by the administrator for their benefit, but the lien is not perpetual, and may be lost by gross laches or unreasonable delay. (Vansyckle v. Richardson, 13 Ill. 171,- White v. Horn, 224 Ill. 238.) There is no statute of limitations within which an administrator shall file a petition for leave to sell real estate to pay debts. The question within what time the petition shall be filed has often been considered, and a period has been fixed which was adopted by the courts in analogy to the statutes of limitation relating to judgments, and under some circumstances to bringing an action of ejectment. In the absence of a legislative rule fixing a definite period of limitation it has uniformly been held that the application must be made within seven years, unless the delay is satisfactorily explained. (White v. Horn, supra; Shuld v. Wilson, 225 Ill. 336.) While the general rule applies where the delay is unexplained, every case depends much upon its own circumstances, and if the delay is satisfactorily explained, as where the premises are occupied as a homestead, the mere lapse of time, is not a reason why the order of sale should not be made. (Bursen v. Goodspeed, 60 Ill. 277; People v. Lanham, 189 Ill. 326.) It does not appear from the amended petition that the heirs-at-law of Bergman were parties to or had any notice of the proceedings by which the claim on the note was allowed. It is well settled that under such circumstances the allowance of such a claim by the administrator is not binding upon the heirs in a proceeding to sell real estate to pay such claim. (Ward v. Durham, 134 Ill. 195; Meyer v. Meyer, 309 Ill. App. 643, aff’d 379 Ill. 97.)

While neither the original nor the amended petition discloses the date of the decedent’s death, the amended petition shows the petition was filed more than seven years thereafter. Neither party attempts to differentiate between the effect of a delay of more than seven years and one of over ten years. Assuming, but not deciding, that appellants are correct in their contention that on the motion to dismiss, the petition only, and not the antecedent proceedings, can be considered, the only question presented is whether the delay is satisfactorily explained. Regardless of all the other allegations of the amended petition, it is to be noticed that it does not disclose the date or even the approximate time of any of the conversations between the petitioner and Otto Bergman, except the last one at which Bergman denied liability, nor when the latter filed a claim against the Thoman estate as an offset to the note. Petitioner insists that the claim was filed by Bergman as administrator of the Bergman estate. When it was filed it was notice to petitioner that Bergman, as such administrator, did not intend to pay the note through an Illinois administration, or otherwise. It is manifest that thereafter petitioner could not rely upon any representations that Bergman intended to start an Illinois administration to pay the note. The allegation that the Bergman claim “remained on file without action until about the time of the last talk your petitioner had with the said Otto Bergman” implies it had been on file for some time. So far as the amended petition discloses, it may have been on file all or most of the time during which petitioner claims to have relied upon the representations that an Illinois administration would be started to pay. the note. Such a state of affairs would negative such a reliance. While the filing of an offset claim might be used to induce abandonment of the claim on the note, it obviously has no element of inducing mere delay. Due diligence would require petitioner to institute proceedings to collect the note within a reasonable time after he learned of the claimed offset. Without any other aliegation on the subject, the allegation that petitioner relied upon the representations of Otto Bergman that he intended to start an Illinois administration to pay the note is inconsistent with the allegation that Bergman had filed a claim designed to defeat payment. The amended petition makes no allegation that tends to explain this inconsistency.

It is also to be noticed that there is no allegation that the claim filed by Bergman against the Thoman estate was not a valid, just claim. The allegation that it was filed to defeat payment of the note does not tend to show it was not a valid offset. All valid offsets are designed to defeat payment of the adverse claim. So far as the amended petition discloses, the failure of petitioner to question the offset claim until the seven-year period had expired on his own claim may have been the sole cause of the withdrawal. In such a case, if the offset claim was valid, there would be a countervailing equity, notwithstanding the legal conclusion alleged that there was none. Legal conclusions are not admitted by a motion to strike or to dismiss.

In Rosenthal v. Renick, 44 Ill. 202, relied upon by appellants, where there was a delay of slightly over seven years in starting proceedings to sell real estate to pay debts, there was an unsettled estate in Ohio, where the creditors lived. The land had not been sold or improved by the residuary devisee. In affirming an order of sale the court pointed out that there were no countervailing equities; that the estate was still unsettled in Ohio, and the creditors may have been deterred from resorting to the Illinois lands by the hope of receiving payment from the Ohio administrator. On the allegations'in the case at bar there could not be any hope of receiving payment from the Wisconsin estate, and there is no satisfactory showing that there could be a hope of receiving it from the Illinois land. There are no facts alleged in the amended petition here which tend to show there is no countervailing equity or that satisfactorily explain the delay in filing the petition. For these reasons, we do not regard the Rosenthal case as controlling here and other cases relied upon, where the premises had not been improved or incumbered by the heirs, and it was clear there were no countervailing equities, are likewise not applicable.

Inasmuch as the amended petition does not satisfactorily explain the delay or show there is no countervailing equity, the county court did not err in dismissing the amended petition and its order in so doing is affirmed.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Maurice F. Lord, Appellee, v. Board of Supervisors of Kane County, Appellant.
    Gen. No. 9,742.

      Heard in this court at the February term, 1942.
    Opinion filed April 8, 1942.
    Charles G. Seidel, State’s Attorney, for appellant; Richard C. Hamper, Assistant State’s Attorney, of conns el.
    Lord & Parker, of Aurora, for appellee; Maurice F. Lord, pro se, and Gilbert L. Wood, of Aurora, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

This is an appeal from a -judgment of the circuit court of Kane county awarding a writ of mandamus requiring appellant, the Board of Supervisors of Kane County, to provide for the levy and collection of taxes with which to pay a judgment rendered by the same court on October 19, 1940 for $1,665.33, in favor of Maurice F. Lord, appellee, against the county of Kane, together with interest and costs, and to make provision for the payment and satisfaction thereof.

The petition for the writ was filed December 14,1940 and recites the obtaining of the judgment; that no appeal therefrom was taken, and that it became final on November 28,1940; that after its entry, a resolution that an order be drawn for its payment, was presented to the county board, but failed of passage by a vote of 19 to 18. The petition also alleges that there were and are ample funds in the treasury for payment of the judgment.

Under special appearance, appellant filed a motion to dismiss on the ground that the judgment was null and void, and the court was without jurisdiction to enforce it. The motion was denied. Appellant then answered, alleging the judgment and the claim against the county are void and that the court entering the judgment was without jurisdiction because of the provisions of the statute (Ill. Rev. Stat. 1941, ch. 34, sec. 35, par. 35 [Jones Ill. Stats. Ann. 33.036]) that before any claim against a county is audited, it shall be verified by the claimant or his agent, and that when a claim is disallowed, in whole or in part, by the county board, and the nature of the claim is not such that the allowance is discretionary with the board, the claimant may appeal from the decision of the board to the circuit court; and that no such verified claim was filed by appellee. It further alleges the judgment is void because of the provisions of the statute relating to the employment and payment of assistant State’s Attorneys, and that notwithstanding the statute, no provision was made for hiring any assistant State’s Attorney; that the court was without jurisdiction to enter a judgment for a sum in excess of the tax levied, or the amount appropriated for the purpose of paying appellee’s claim; that there was no ample funds in the treasury at the time the judgment was entered and no provision was made for the payment of it among the purposes for which taxes were to be raised for the year 1940.

The petition was amended, asking that the board take the necessary steps, including appropriation and levy, to pay the judgment. An amended and supplemental answer asked that the original answer stand to the amended petition, and it was so ordered. Upon appellee’s motion the answer and the amended and supplemental answer were stricken, and judgment was entered awarding the writ. The points urged for reversal are that the court erred in striking appellant’s motion to dismiss, and the answer and amended and supplemental answer.

Appellant is in no position to invoke the statute relating to employment and payment of assistant State’s Attorneys, Ill. Rev. Stat., ch. 53, par. 18 [Jones Ill. Stats. Ann. 48.095]. The answer, so far as disclosed by the abstract, makes no allegation that appellee’s judgment was based upon any claim of such employment. None of the pleadings attempts to set out the nature of the claim upon which the judgment was entered. The judgment is not abstracted and we do not search the record to ascertain whether it discloses the nature of the claim.

The section of the statute above mentioned relating to verification and auditing claims against a county, and appeals to the circuit court from decisions of the county board, does not expressly provide that the method therein shall be the only method of obtaining judgment against a county. Section 31 of the same chapter provides: “All actions, local or transitory, against any county, may be commenced and prosecuted to final judgment in the circuit court, or any other court of general jurisdiction in the county against which the action is brought.” Section 35 does not provide that claims shall be presented to the county board before judgment can be entered thereon, but only that before they are audited they shall be verified. It does not provide that an appeal from a decision of the county board shall be the only method of obtaining judgment, but only that an appeal may be so taken. If that is the exclusive method, it can only be so determined by judicial interpretation.

In People ex rel. Northup v. County of Cook, 274 Ill. 158, the plaintiff brought a mandamus action to enforce payment of a claim for assistants, stenographers, clerks, investigators and miscellaneous expenses incurred by him as a special State’s Attorney. In denying the writ, the court held that mandamus will lie only to enforce payment of a claim ascertained to be due; that as to unliquidated claims such ascertainment may be by a judgment, or by action of the municipal authorities auditing and allowing the claim; and that the claims mentioned were unliquidated demands, which must be audited by the county board, or for which a judgment must be recovered against the county before a writ of mandamus could be awarded. There is no holding or implication in that case that section 35 is the only method of obtaining snch a judgment. However, it points out the two methods by which a claim can be ascertained to be due, one of which is by a judgment.

Section 31, above quoted, provides for commencing suit in any court of general jurisdiction. This is a totally different method from appealing to a circuit court from a decision of the county board. Appeals are not the commencement of a proceeding and “any court of general jurisdiction” includes more than circuit courts. When the two sections are construed together, our conclusion is that the legislature did not intend the remedy provided in paragraph 35 to be exclusive. The same conclusion is arrived at in County of Grundy v. Hughes, 8 Ill. App. 34. Our interpretation is further borne out by County of Clinton v. Pace, 59 Ill. App. 576.

Furthermore, the question could have been raised in the suit by which the judgment was obtained, and if so raised, the interpretation of sections 31 and 35 would have presented a fairly debatable question, which the court would have been required to decide. As a court of general jurisdiction, it had jurisdiction of the parties and the subject matter of the suit, and to inquire into its jurisdiction. An erroneous decision arising from a misconstruction of the statute would not have rendered judgment void. (Chicago Title & Trust Co. v. Mack, 347 Ill. 480.) Therefore, if the court had decided the method provided by section 35 is not exclusive, and if the decision had been wrong, the judgment would not have been void. It is fundamental that a judgment which is not void is not subject to collateral attack. To be vulnerable, the lack of jurisdiction must appear upon the face of the record. (Nugent v. Toman, 372 Ill. 170.) No such showing is made here. The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Ed Haugens, Appellant, v. W. F. Holmes, Appellee.
    Gen. No. 9,769.
    Heard in this court at the February term, 1942.
    Opinion filed April 8, 1942.
    Kenton Brown, of Wenona, and H. L. Richolson, of Ottawa, for appellant.
    Mitchell & Petz, of La Salle, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

This is an appeal from a judgment of the county court of Putnam county giving priority to the lien of an execution over that of a chattel mortgage in a trial of the rights of property. The facts were stipulated.

Remmer Siegman resides on a farm in the edge of Putnam county. He also operates 200 acres across the road in Marshall county. He owed appellant $1,551.32 and had been so indebted for a number of years and on June 16, 1941, he executed a chattel mortgage to appellant on 16 head of cattle, then in Marshall county, to secure the payment of said indebtedness. The mortgage was recorded the same day in Putnam county, under the statute which provides that when the mortgagor resides in this State, the mortgage shall be recorded in the county where he resides.

Appellee procured a judgment by confession for $421.76 against Siegman in the circuit court of Putnam county on April 1, 1941, and an execution, issued the same day, was returned “Not satisfied” on June 11, 1941. On the latter date an alias execution was issued and delivered to the sheriff of Putnam county. No levy was made on the cattle at that time because they were not found in Putnam county, but were in Marshall county, where they had always been. They were never in Putnam county prior to July 17, 1941 but on that day the sheriff of Putnam county found them in his county, levied upon them under his execution of June 11, 1941 and took them into his possession. Appellant gave the sheriff the statutory notice that he claimed the cattle under his chattel mortgage, and a trial under the provisions of the statute resulted in a judgment for appellee. How the cattle happened to get into Putnam county is not shown. It is not claimed that either party had anything to do with it. There is no question as to the bona tides of the mortgage or of the judgment. The only issue is one of law as to which is entitled to priority.

The following provisions of the act relating to Judgments, Decrees and Executions (Ill. Rev. Stat. 1941, ch. 77 [Jones Ill. Stats. Ann. 107.151, 107.154, 107.159, 107.160, 107.183]) are pertinent:

Sec. 1. a, judgment of a court of record shall be a lien on the real estate of the person against whom it is obtained, situated within the county for which the court is held, from the time the same is rendered or revived, for the period of seven years and no longer; Provided, that there shall be no priority of the lien of one judgment over that of another rendered during the same calendar month and upon the filing in the office of the clerk of any court of record in any county in this State, of a transcript of a judgment or decree rendered in any other county of this State, such judgment shall have the like force and effect and shall be a lien upon the real estate of the party against whom the same is obtained in said county where filed, and execution may issue thereon in said county, in like manner as in the county where originally obtained. ...”

Sec. 4. “The person in whose favor any judgment, as aforesaid, may be obtained, may have execution thereon in the usual form, directed to the proper officer of any county, in this State, against the lands and tenements, goods and chattels of the person against whom the same is obtained, or against his body, when the same is authorized by law.”

Sec. 9. “No execution shall bind the goods and chattels of the person against whom it is issued, until it is delivered to the sheriff or other proper officer to be executed; and for the better manifestation of the time, the sheriff or other officer shall, on receipt of such writ, indorse upon the back thereof the day of the month and year and hour when he received the same.”

Sec. 10. “All and singular the lands, tenements, his real estate, goods and chattels (except such as is by law declared to be exempt) of every person against whom any judgment has been or shall be hereafter obtained in any court of record, for any debt, damages, costs, or other sum of money, shall be liable to be sold upon execution, to be issued upon such judgment.”

Sec. 34. “When a writ of execution is issued from a court of a county to a sheriff or other officer of another county, and levied upon any real estate in the latter county, the officer making such levy shall make a certificate thereof and file the same in the office of the recorder of his county. Until the filing of such certificate such levy shall not take effect, as against creditor and bona fide purchasers, without notice.”

A judgment did not create a lien upon the real estate of the debtor at common law. A judgment lien is purely a creature of the statute. (Smith v. Toman, 368 Ill. 414.) The purpose, therefore, of the statute is remedial, and affords a means of collecting a judgment by forcing the sale of the judgment debtor’s property, real or personal, or both, to the extent necessary to satisfy the debt and costs. By section 10 all and singular the lands, tenements, goods and chattels of the judgment debtor (except such as are exempt) shall be liable to be sold. In order to prevent the judgment debtor from disposing of his property to defeat satisfaction of the debt, a lien is created, which attaches to real estate when the judgment is entered, and to personal property when the execution is placed in the hands of the sheriff or other proper officer.

Title to real estate and changes therein, affecting third parties, is evidenced by and determined from the record. A judgment of a court of record is a part of such record. The reason for providing that an execution becomes a lien on personal property when delivered to the officer is that, ordinarily, title to that kind of property is not evidenced by record, but by possession and where a chattel mortgagee is not in possession he must record his mortgage. Were it not for the lien of an execution the title to unmortgaged chattels could easily be juggled so as to defeat the judgment creditor. It is manifest that the legislature, in providing for a lien on real estate by the judgment, and on personal property by the delivery of an execution to the officer, did not intend to create any substantive difference in the remedy in either case. Under section 34 the lien does not attach to real estate in another county until the certificate of levy is filed. The intent and purpose of the statute is to enable a judgment creditor to reach the property of the judgment debtor, whether he seeks to collect from real estate or from personal property.

It is the settled law of this State that the lien of a judgment upon real estate is only coextensive with the limits of the county in which the judgment is rendered. Under section 1 of the statute, upon the filing of a transcript of the judgment in another county, it becomes a lien on any real estate of the judgment debtor in the latter county, and execution may issue thereon in like manner as in the county where the judgment was originally obtained. Under section 4, the judgment creditor may have execution from the court in which the judgment was obtained, directed to the proper officer of any county, against the real estate and personal property of the judgment debtor, and he may force a sale under either section. (Sapp v. Wightman, 103 Ill. 150; Chicago Savings Bank & Trust Co. v. Coleman, 283 Ill. 611.) It is noticeable that under either method he may reach real or personal property of the judgment debtor situated in another county, and that these are the only methods provided by which he can do so. Considering the above holdings and the limitations of the statute, it is clear that the execution issued in Putnam county was not a lien on the cattle while they were in Marshall county.

Appellee apparently agrees with that doctrine, for it is stipulated that the cattle being in Marshall county was the reason no levy was made upon them while they were there. His claim is that when they got into Putnam county the lien of his execution dated hack to the time it was placed in the hands of the sheriff, which was four days prior to the time the lien of the chattel mortgage took effect, and that therefore the lien of the execution is superior to that of the mortgage. Under that theory, if appellee had a judgment in Putnam county against the owner of real estate located in Marshall county, and appellant had a mortgage on the real estate recorded four days later, then, if the county boundaries should be afterward changed so as to put the land in Putnam county, would the lien of the judgment take priority over the lien of the mortgage? We see no difference in principle between such a case and the one at bar. The lien of a mortgage, as to third parties, whether on real estate or on chattels, attaches when the mortgage is properly recorded. When the chattel mortgage in this case was recorded in Putnam county because the statute so required, appellee had taken neither of the methods above mentioned to procure a lien on the cattle, and the mortgage was therefore a lien thereon while they were in Marshall county. Nor do we see any distinction because chattels are movables. The effect of a county boundary change would be the same as if the real estate was physically moved into the county. It could hardly be seriously claimed that such a change in location of real estate would give priority to the lien of the judgment over that of the mortgage. We think this would also apply if appellant had a judgment in a court of record in Marshall county and real estate subject to its lien should get into Putnam county by a boundary change. We observe no logical reason why a mere change in location should operate differently in respect to personal property than it would as to real estate. To hold that such a mere change in location would not impair the lien of a real estate mortgage, but would do so in case of a chattel mortgage, would violate the manifest intent and spirit of the statute to provide the same remedy as to either real or personal property.

Appellee is presumed to have known of the two methods provided by the statute for collecting his judgment from property in another county. He had ample opportunity to procure a lien on the cattle by either method before the chattel mortgage became the only lien thereon, but he did not exercise his privilege. There is no provision in the statute that would justify holding that under such circumstances he can take advantage of his want of diligence and now claim priority by a mere change in location. He cites authorities holding that where a chattel mortgage is recorded after an execution is delivered to the officer, and where a debtor acquires property after such delivery, the lien of the execution attaches as of the date of its delivery. Those cases did not involve property brought into a county subject to an existing lien in another county, but relate only to priority between liens in the same county. They are not in point.

The lien of appellant’s.mortgage was not subjected to the lien of appellee’s execution by the cattle getting into Putnam county. The judgment of the county court is reversed and the cause is remanded with directions to enter judgment for appellant.

Reversed and remanded with directions.


author: Mr. Justice Wolfe

text:
    Edward P. Harney, Appellee, v. David Colwell et al., Defendants, William J. Parish, Appellant.
    Gen. No. 9,758.
    Heard in this court at the February term, 1942.
    Opinion filed April 8, 1942.
    V. A. Parish, of Momence, for appellant.
    Wayne H. Dyer., of Kankakee, for appellee; Edward P. Harney, pro se.

   Mr. Justice Wolfe

delivered the opinion of the court.

Edward P. Harney, the plaintiff, started a suit in the circuit court of Kankakee county, Illinois, to foreclose a trust deed on real estate in that county. The complaint alleges that Elizabeth J. Cleary sold real estate to David Colwell under contract of sale, a copy of which is attached to the bill of complaint; that pursuant to said contract, on May 31, 1929, she conveyed said real estate to David Colwell, and contemporaneously therewith, said David Colwell and his wife, Lana Colwell, gave a trust deed to Elizabeth J. Cleary to secure the balance of said purchase price in the sum of $2,600, and also executed a promissory note for $2,600; that said note was signed by David and Lana Colwell, and was made, “payable to ourselves,” for the sum of $2,600; that this is the note which was secured by the deed of trust; that said note and deed of trust were delivered to Elizabeth J. Cleary; that through an oversight, said Colwells failed to indorse said note; that it was understood and agreed between the parties that the Colwells were to give a valid trust deed and note to Elizabeth J. Cleary for the balance of the purchase price of said premises, but that under the circumstances, the note and trust deed creates, and is an equitable lien on the real estate described in said trust deed.

It is further averred that after the note and trust deed were delivered to Elizabeth J. Cleary unindorsed as aforesaid, she delivered said note and trust deed to Edward P. Cleary with intent to pass title to him, and that Edward P. Cleary delivered said note and trust deed to the First National Bank of Momence, Illinois, with intent to pass title to said bank, and that later Floyd H. Goff, receiver of said bank, sold and delivered the same to the plaintiff for a valuable consideration, and that the plaintiff is now the bona fide owner and holder in due course of said note, and said trust deed securing the same; that William J. Parish on April 6, 1939, took title to said premises by a quitclaim deed from David Colwell and Lana Colwell, his wife; that the principal of said note is past due, and that the defendants are in default. The plaintiff asks for foreclosure of his trust deed.

William J. Parish filed a motion in the nature of a demurrer to strike the complaint, as not stating a cause of action. This motion was denied, and he was then given leave to file his answer in which he admitted the execution of the note and trust deed, but denied that the plaintiff was entitled to foreclose the same, or that the deed of trust created an equitable lien on^ said real estate, or that the same was enforceable against the real estate in question.

The case was heard before the court who found the issues in favor of the plaintiff, and decreed that he had an equitable lien on the premises in question, and was entitled to foreclose the same. It is from this decree that the appeal is prosecuted.

It is seriously insisted by the appellant that the note representing the debt of $2,600 is a nullity, as the note is made payable by the Colwells to themselves, and not having been indorsed by them, is not a promissory note, and has no validity whatsoever.

The facts are not in dispute. It is a question of law under the record in this case whether the court erred in decreeing a foreclosure of this note and trust deed. The deed, note and trust deed were executed in the office of Edward P. Harney, an attorney at law, who is the plaintiff in this suit. After they were executed, all of the parties including Mr. Harney, went to the First National Bank where Edward P. Cleary borrowed $700. The note and trust deed were delivered to the bank, as collateral security for the loan. At the time of this transaction, there was considerable trouble between Mr. Cleary and the other officers of the bank. Later, the bank went into the hands of the receiver and this note and trust deed were found, to be part of its assets. The bank collected nothing on the note. Before William J. Parish obtained the deed from the Col-wells for this-property, he had a conversation with the receiver of the bank, relative to the purchase of this note and trust deed, but declined to purchase the same, as he told the receiver that he did not think it was worth anything. At the time Mr. Edward P. Harney purchased the note and trust deed from the receiver of the bank, he knew that Parish had procured a deed for the property from the Colwells, so both appellant and appellee had full notice of all circumstances concerning the transaction at the time they purchased their interest in the property, and the note and trust deed. In the consideration of the case, the rights of third parties, creditors or purchasers without notice, are not concerned in this litigation.

The evidence shows that the Colwells were purchasing the property under a contract of sale from Elizabeth J. Cleary; that she gave to the Colwells a deed for the premises, and at the same time took back the note for $2,600, and trust deed purporting to secure the payment of the $2,600 note; that she then made Edward P. Cleary a present of the note and trust deed, and that he immediately delivered the note to the First National Bank, as collateral security for a loan to him. The receiver of the bank, for a valuable consideration, transferred the note to Edward P. Harney. Under these circumstances we think that Harney’s right to foreclose this note and trust deed, would be the same as the assignor (the bank), and that the bank’s right to foreclose, would be the same as its assignor (the Cleary’s), and as between the Cleary’s and the Col-well’s, we think that the Cleary’s had an equitable lien on the premises described in the deed of trust for the debt represented by the note and the deed of trust.

In the case of Aldrich v. R. J. Ederer Co., 302 Ill. 391, at page 395, the Supreme Court had occasion to discuss the law relative to equitable liens, and on page 395, we find the following: “It has been held that whenever parties enter into an express executory agreement in writing indicating an intention to make some particular property, real or personal, or a fund, security for a debt or other obligation, there is created an equitable lien on the property described in such contract which is enforcible in the hands of the original contractor, and also his heirs, administrators, executors, voluntary assignees, purchasers and incumbrancers with notice. (Walker v. Brown, 165 U. S. 654; 10 R. C. L. sec. 100.) An equitable lien is the right to have property subjected in a court of equity to the payment of a claim. It is not a jus in re or a jus ad rem; neither a debt nor a right of property, but a remedy for a debt. (Webster v. Nichols, 104 Ill. 160.) It is simply a right of a special nature over the thing which constitutes a charge or incumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action and either sold or sequestered under a judicial decree, and its proceeds in one case, or its rents and profits in the other, applied upon the demand of the creditor in whose favor the lien exists.” To the same effect is Freeman v. Equitable Life, Assurance Society, 304 Ill. App. 517; Kulcuh v. Martin, 331 Ill. 602. The earliest case to announce this same doctrine was McCauley v. Rogers, 104 Ill. 578.

From the evidence in this case, it clearly appears that when the note and deed of trust were delivered by the Colwells to Mrs. Cleary, they fully intended to create a lien on the premises described in said deed of trust in favor of Mrs. Cleary. As stated in Aldrich v. R. J. Ederer Co., supra, this lien would be enforceable in the hands of the original holder of the trust deed, her heirs, administrators, executors and assignees, purchasers and incumbrancers with notice. At the time Mr. Parish purchased this property he had full notice of the existing note and deed of trust, so he cannot be considered an innocent purchaser without notice.

It is our conclusion that the trial court properly found that the complaint stated a good cause of action, and that the plaintiff was entitled to have the deed of trust foreclosed, as an equitable lien on the premises described in said deed of trust.

The decree of the trial court is affirmed.

Affirmed.


text:
    B. S. Pearsall Butter Company, Appellant, v. City of Elgin et al., Appellees.
    Gen. No. 9,761.
    Heard in this court at the September term, 1941.
    Opinion filed April 8, 1942.
    R. L. Kemler, of Elgin, for appellant.
    Perry D. Wells, Corporation Counsel, and Geo. D. Carbary, of Elgin, for appellee City of Elgin; Almore H. Teschke, of Elgin, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

This case was taken on appeal, by the appellant, B. S. Pearsall Butter Company, to the Supreme Court to review a judgment of the circuit court of Kane county. The case was transferred by the Supreme Court to this court, since there were no facts alleged in the complaint which would give the Supreme Court jurisdiction of the case on direct appeal (Pearsall Butter Co. v. City of Elgin, 378 Ill. 382.) The Supreme Court’s statement of the facts alleged in the complaint is as follows: “The complaint, in so far as it is necessary to be here considered, alleged, in substance, that appellant was the owner of certain real estate in the city of Elgin. That appellees contemplated making-certain improvements in public streets and including the extension of one street through the propertyof appellant. It was further alleged that the proposed improvements and extension of the street would result in damages to appellant’s property. The character of the damages anticipated and alleged were set out in detail and may be stated as follows: (1) That appellant now uses, for its own private purposes, a portion of one of the public streets proposed to be improved; that if the improvement is completed, that portion of the street, now used by appellant, will be used by the public and appellant will thereby be deprived of the use of said portion, of said street, for private purposes; (2) that the proposed improvement will necessitate the shortening of a railroad side-track extending along one side of appellant’s property, resulting in inconvenience and damage to appellant; (3) that the improvement will necessitate the razing of a warehouse and thereby expose a part of the outer wall of another building, owned by appellant, constructed of common brick, so that a portion of such outer wall will be different in appearance from the balance of said outer wall, which is constructed of face brick, and that this will result in making that particular building unsightly in appearance; (4) that the plans contemplate some change in the grade of the streets, which will impair and obstruct ingress and egress to and from appellant’s building. The prayer of the complaint is that a writ of mandamus issue against appellees directing them to settle and pay to appellant the damages which will result to its building and property by these improvements within a reasonable time; that upon their failure to pay such damages, the writ direct appellees to proceed under the Eminent Domain act to determine the rights of the parties, and to pay any damages that will result from the construction of the proposed improvement, prior to the accrual of such damages.”

The defendants entered a motion to dismiss the complaint because they claimed it did not state a cause of action. The trial court sustained the motion to dismiss the suit, and entered an order accordingly. It is from this judgment that the appeal is now before this court.

It is also stated in the opinion of the court that: “The only purpose of the suit is to compel appellees, by mandamus, to either pay the damages which it is anticipated will accrue to appellant by the construction of the proposed improvement, no part of which has yet been constructed, or, in the alternative, to compel appellees to institute proceedings under the Eminent Domain act to determine the rights of the parties and the damages which will accrue to appellant if and when the improvement is constructed. Nothing is suggested in the brief of appellant upon which the jurisdiction of this court could be sustained. It is not a suit under the Eminent Domain act. If it be said that appellant has a constitutional right to compel appellees to do what he asks to have them compelled to do, by the complaint, any constitutional question as to the existence of such right has already been settled by the decisions of this court. People v. Kingery, 369 Ill. 289; People v. Smith, 374 id. 286; Gruneiwald v. City of Chicago, 371 id. 528.”

Attached to appellant’s petition for the writ of mandamus is a plat showing the location of their factory building and the surrounding streets and buildings. The petitioner’s building is practically a hundred feet square, bounded on the east by the. railroad tracks of the Milwaukee Railway Company. On the south is a cold storage warehouse 61 by 66 feet, also on the south for a distance of 44 feet, is State street, and on the west it is bounded by State street. South of the southwest corner of appellant’s lot and west of the cold storage warehouse, is a space which has been used for considerable time by the appellant as a loading and unloading station for trucks bringing supplies and taking away products of appellant company, which is designated as the “area.” The owner of the cold storage warehouse is not disclosed by the record in this case. The street in question, which is to be opened, will run on the south side of appellant’s building, and will connect with the bridge over the Fox River, which is planned to be erected by the City of Elgin. The cold storage warehouse will have to be removed. It is alleged by the appellant that opening up the place called the “area,” will deprive them of a valuable right, namely, their place to park their trucks and other vehicles, and also their loading and unloading platforms, and will, take away their entire parking space, and that the traffic in the street will be so heavy that they cannot use any part of the “area,” as they have been accustomed to doing. The city certainly has the right to take property necessary to create the proper approaches to the bridge in question. The area that the appellant has been using in connection with their plant, is now a public street. Simply because there would be more traffic on it, and because the plaintiff could not use it as before, certainly would not obligate the city for paying the appellant for opening the street, for the accommodation of the traffic over the contemplated new bridge.

On the east of the appellant’s building are the switch tracks of the Milwaukee Railroad. As they now exist, they extend south the full length of the cold storage warehouse, a distance of a little over 66 feet. In opening the street, it will be necessary to remove that portion of the railroad track which lies east of the cold storage plant. The appellants claim that they will be seriously injured and damaged by the removal of these tracks, since they have been in the habit of loading and unloading freight cars at their plant, and could then move the cars without the aid of an engine, and shunt them down onto this track east of the cold storage warehouse. The petition does not state whether the appellant has a contract with the railroad company to maintain the track, or whether the railroad company is willing to keep the track by the warehouse, or if there is any obligation on the part of the railroad company to maintain the track in its present condition. Under this part of the petition we think the petitioner has failed to state a cause of action.

It is insisted by the petitioner that the cold storage warehouse immediately to the south of their plant and adjacent thereto, was built subsequent to their plant, and that the exterior of the south wall is joined to the warehouse, and is built of common brick; that it is four stories high; that it is made of different brick from the rest’of the building; that on account of the east wall of the building being protected by the warehouse, it is dirty, since it has not been exposed to the elements as the other parts of the wall, and is of different shade and texture from the rest of the building; that after the warehouse is removed, this wall will be exposed to view, and because of the difference in color, will be unsightly and for this reason the plaintiff will suffer damages.

Whether the warehouse was owned and built by the petitioner or some one else, is not disclosed in the record. Simply by tearing down the warehouse and leaving the original walls undamaged, although dirty, and of a different color from the rest of the building, the damage, if any, which the appellant will sustain in the depreciation of the value of their building, seems to be purely speculative, and not of that character which would entitle the appellant to a writ of mandamus.

It is also insisted that the sidewalk along the south side of the petitioner’s property is now at the proper and most convenient level above the roadway for the loading and unloading of trucks; that in the extension of Highland avenue, the street which will connect with the new bridge, the City of Elgin proposes to change the grade of the street so that such loading and unloading will be more difficult; that it will require longer time and be more expensive. This is not a statement of facts, but is the conclusion of the pleader in regard to the sidewalk, and what the grades are now, or what the city proposes to do, so we see no merit in their contention. Before the petitioner would have a right to the writ of mandamus, he must show by clear and convincing proof, or in a case of this kind, by clear and positive averments, that his rights are being invaded, and that he is entitled to be compensated therefor. This, we think the petitioner has failed to do, and the court properly sustained the motion to strike its petition.

The judgment of the trial court will be affirmed.

Affirmed.


text:
    Mat Stefanich et al., Trustees, Appellants, v. Nellie Richard et al., Appellees.
    Gen. No. 9,773.

      Heard in this court at the January term, 1942.
    Opinion filed April 8, 1942.
    John H. Beckers and Elmer C. Wilson, both of Kankakee, for appellants.
    Noel A. Diamond, Wayne H. Dyer and Irwin C. Taylor, all of Kankakee, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

On June 29, 1936, Everiste A. Marcotte was reappointed treasurer of township No. 31, in Kankakee county by the school trustees of that township, and he filed his official bond as required by law. The bond is in the penal sum of $40,000, and signed as sureties by Nellie Bichard and E. O. Vandagrift. As provided by statute, the board of trustees of township No. 31 are named as the obligee in the bond.

On June 29, 1937, the board of education of school district No. 61, in said township No. 31, levied a tax of $21,000 for school purposes. On November 3,1937, the board prepared warrants issued against and in anticipation of the taxes so levied. On November 12, 1937, the township treasurer sold one of the warrants for $5,000 to Ida Beckers; on November 23, 1937, he sold one of the warrants for $7,300 to Fred 0. Hamilton; and on January 26, 1938, he sold another warrant for $2,000 to Ida Beckers. The purchasers of the warrants paid to the township treasurer the face amounts of the warrants, which bear dates when they were purchased. Each warrant is payable to the order of the purchaser thereof, and directs the township treasurer to pay the amount thereof, from the funds to be realized from the taxes levied and collected for the year 1937 and 1938. The township treasurer received from the county collector, as such taxes collected for 1937, $20,444.49. None of the warrants have been paid, and they are now the property of the said purchasers.

On February 24,1941, the trustees of schools of the township, for the use of Fred C. Hamilton and Ida Beckers, and Fred O. Hamilton and Ida Beckers filed their complaint in the circuit court of Kankakee county to enforce the liability of the defendants under, and by virtue of the bond of the township treasurer. A motion by the defendants to dismiss the complaint was sustained, and the plaintiffs have appealed from such order.

It is alleged in the complaint that Everiste A. Marcotte was township treasurer at the time of his death on July 13, 1938; that his estate was closed as insolvent; that the school authorities were not able to enforce a claim against his estate for the taxes received by Marcotte for the year 1937 and 1938.

It is further alleged in the complaint that the plaintiffs are informed, and believe, and so state the fact to be that upon receipt of the amounts paid to him by Ida Beckers and Fred C. Hamilton, Marcotte, failed to pay over to district No. 61, said amounts, but appropriated said amounts to his own use, whereby the condition of said bond was broken.

It is also alleged in the complaint that Marcotte, after receiving said sum of $20,444.49 from the taxes for said school district No. 61, from the county collector, failed to set apart and hold any portion of said taxes so received by him as a trust fund to pay said anticipation warrants, but commingled said funds with other funds of said district No. 61, and either illegally and wrongfully used said monies to pay current or running expenses of said district, or appropriated said monies to his own use, and failed to account for said trust funds either to said district, or to Ida Beckers and Fred C. Hamilton, as holders of said anticipation warrants. The gist of this allegation is, that the township treasurer was a trustee for the benefit of the public of the taxes coming into his hands as a public officer, by virtue of his office, and that he violated his trust. (46 C. J. 1038, sec. 310; People v. Small, 319 Ill. 437.)

It is argued on behalf of the defendants that the school trustees cannot sue on the bond of the township treasurer for the use of' the anticipation warrant holders. The trustees of township No. 31, etc. (“a body politic and corporate”) is the real plaintiff: in the suit. The obligation of the bond is to it. The legal right of action is in the corporation, and it is a matter of no concern to the defendants what it does with the money, if any is recovered under the bond, after obtaining it. Greser v. People, 36 Ill. App. 415; Atkins v. Moore for use of Cool, 82 Ill. 240; Knight v. Griffey, 161 Ill. 85; City of East St. Louis v. Flannigan, 26 Ill. App. 449; Gones v. Fisher, 286 Ill. 606; (sec. 20, ch. 122, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 123.021]).

It is also contended that Marcotte did not receive the taxes in his official capacity as township treasurer. Paragraph 228, section 243, chapter 120, Ill. Rev. Stat. 1937, provides that it was the duty of the county collector on the first day of June and on the first day of each month thereafter, to pay to the proper authorities or persons the amounts' on his hands, and payable to them as taxes. Chapter 122, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 123.073 and 123.085], provided: section 70 the township treasurer shall charge in the township cash book to the debit account, “fourth, to taxes received from the county and town collector, and for what districts received”; section 82 it is the duty of the township treasurer, “third, to collect from the township and county collectors the full amount of taxes levied by the directors of his township.” (People v. Shrout, 235 Ill. App. 509.) We find no merit in this contention.

It is also argued that the warrants are void because not numbered in order of their sale or issuance. (Section 117, ch. 122, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 123.132].) The warrants are not numbered. Section 117 provided that, “Such warrants shall show upon their face that they are payable in the numerical order of. their issuance solely from such taxes” (the taxes levied and against which the warrants are drawn), “when collected, and shall be received by any collector of taxes in payment of taxes against which they are issued, and such taxes shall be set apart and held for their payment.” Section 117 authorized the issuance of tax anticipation warrants to the extent of 75 per cent of the total amount levied, and against which the warrants were issued. The tax levy in this case was $21,000, the amount of taxes collected on the levy, and paid to the township treasurer, Marcotte, was $20,444.49. More than the amount necessary to pay all warrants issued against the tax levy for the year 1937 was collected and paid to the said township treasurer. The question argued is academic, or abstract. The allegations of facts set forth in the complaint are admitted by the motion to strike. To hold that the township treasurer or that a school district under such circumstances could be enriched to the amount of all tax warrants issued, because the warrants are not numbered, would be absurd.

The trial court erred in sustaining the motion to strike the complaint, and the judgment of that court dismissing the complaint is reversed, and the case is remanded to the circuit court of Kankakee county with directions to enter an order requiring the defendants to plead to the complaint.

Reversed and remanded.


author: Justice Matchett.

text:
    Crawford Realty and Development Corporation, Appellee, v. Woodlawn Trust and Savings Bank, Trustee, et al., Appellees. W. F. Gallinger et al., Appellants.
    Gen. No. 40,508.
    Heard in first division, first district, this court at December term, 1938;
    opinion filed March 23, 1942;
    rehearing denied April 6, 1942.
    Tage Joranson, for appellants; Cummings & Wyman, for appellee Crawford Realty & Development Corporation; Austin L. Wyman, of counsel.
   Opinion by

Justice Matchett.

“Hot

to be published in fuU.”


text:
    Oscar P. Rubardt, Appellant, v. Marie Rubardt Salzman and Harold L. Salzman, Appellees. Marie Rubardt Salzman, Appellee, v. Oscar P. Rubardt, Appellant.
    Gen. No. 41,251.
    Heard in first division, first district, this court at June term, 1940;
    opinion filed March 23, 1942;
    additional opinion and rehearing denied April 9, 1942.
    Nelson, Slater & Boodell and Ashcraft & Ashcraft, for appellant; Peter B. Nelson, Drennan J. Slater, Albert E. Jenner, Jr., Carroll J. Lord and Alan E. Ashcraft, Jr., of counsel; Sehroeder & Simpson, Werner W. Sehroeder and Max Krauss, for appellees.
   Opinion by

Justice Matchett.

“Not to be published in full.”


text:
    Jay W. Rapp, Administrator of Estate of George Tong, Deceased, Appellee, v. Grace E. Goerlitz and Charles Goerlitz, Defendants. Appeal of Charles Goerlitz, Appellant.
    Gen. No. 41,820.

      Heard in first division, first district, this court at October term, 1941;
    opinion filed March 23, 1942.
    Harry A. Biossat and William Chones, for appellant; Chadwick, Johnson & Leone, for appellee; Wm. H. Chadwick and A. Andrew Leone, of counsel.
   Opinion by

Justice Matchett.

“Not to be pub-

lished in full.”


text:
    Bernice Hilger, Administratrix of Estate of Peter Hilger, Deceased, and Ollie De Angelo, Appellees, v. Public Service Company of Northern Illinois, Appellant. Rose Hilger, Administratrix of Estate of Martin Hilger, Deceased, Appellee, v. Public Service Company of Northern Illinois, Appellant.
    Gen. No. 41,842.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed March 23, 1942;
    rehearing denied April 6, 1942.
    Gardner, Morrow, Fowler & Merrick and Kent J. Owens, for appellant; Walter M. Fowler, of counsel; Guy C. Guerine and McKinley, Price & Quindry, for appellees; Guy C. Guerine, William McKinley and Paul E. Price, of counsel.
   Opinion by

Justice Matchett.

“Not to be pubUshed in full.”


author: Justice Matohett.

text:
    Jay W. Rapp, Administrator of Estate of George Tong, Deceased, Appellant, v. Grace E. Goerlitz and Charles Goerlitz, Appellees.
    Gen. No. 41,873.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed March 23, 1942.
    Chadwick, Johnson & Leone, for appellant; W. H. Chadwick and A. Andrew Leone, of counsel; William Chones and Harry A. Biossat, for appellee.
   Opinion by

Justice Matohett.

“Not to be published in full.’’


text:
    Jay W. Rapp, Administrator of Estate of George Tong, Deceased, Appellee, v. Grace E. Goerlitz and Charles Goerlitz, Defendants. Appeal of Charles Goerlitz, Appellant.
    Gen. No. 41,939.

      Heard in first division, first district, this court at October term, 1941;
    opinion filed March 23, 1942.
    Harry A. Biossat and William Chones, for appellant; Chadwick, Johnson & Leone, for appellee; Wm. H. Chadwick and A. Andrew Leone, of counsel.
   Opinion by

Justice Matchett.

‘ ‘Not to be published in

full.”


author: Justice O’Connor.

text:
    Harry L. Drake, Appellant, v. Eugene V. Diggins, Appellee.
    Gen. No. 41,823.
    Heard in first division, first district, this court at October term, 1941;
    opinion filed March 23, 1942.
    Goodman & Golosinee, for appellant; Irving Goodman and John W. Golosinee, of counsel; Eugene C. O’Reilly, for appellee; Eugene V. Diggins, of counsel.
   Opinion by

Justice O’Connor.

‘‘Not to be published in full.”


text:
    Merle Slane v. Lake Shore Index, Inc. Lake Shore Index, Inc., et al., Appellants, v. Evanston News Index, Inc., et al., Appellees.
    Gen. No. 41,861.

      Heard in first division, first district, this court at October term, 1941;
    opinion filed March 23, 1942.
    Erode B. Davis and Charles B. Sereomb, for certain appellants; Alvin V. Nygren, of counsel; Blanksten & Lansing, for certain appellees.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


author: Presiding Justice Scanlan.

text:
    Stanley H. Doggett, Appellee, v. North American Life Insurance Company of Chicago et al., Appellants.
    Gen. No. 41,495.
    Heard in second division, first district, this court at October term, 1940;
    opinion filed March 24, 1942;
    rehearing denied April 11, 1942.
    Arthur C. Rooney, for appellants; Castle, Williams & McCarthy, for appellee; Emmett J. McCarthy, Robert B. Hanley and George B. Lyon, of counsel.
   Opinion by

Presiding Justice Scanlan.

“Not to

be published in full.”


text:
    National Brands Stores, Inc., Appellant, v. H. J. Andresen and Genoveva Andresen, Appellees.
    Gen. No. 41,532.
    Heard in second division, first district, this court at December term, 1940;
    opinion filed March 24, 1942.
    Malcolm MeKerchar, for appellant; Arthur J. Goldberg, for appellees; Arthur J. Goldberg and Leonard G. Nierman, of counsel.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full."


text:
    People of the State of Illinois ex rel. Charles E. Elmore, Appellee, v. James P. Allman, Commissioner of Police of Chicago, et al., Appellants.
    Gen. No. 41,542.
    Heard in second division, first district, this court at December term, 1940;
    opinion filed March 24, 1942;
    rehearing denied April 11, 1942.
    Barnet Hodes, Corporation Counsel, for appellants; J. Herzl Segal, Carl H. Lundquist and L. Louis Karton, Assistant Corporation Counsel, of counsel; Michael F. Ryan, for appellee; Richard F. McPartlin, Jr., of counsel.
   Opinion by

Presiding Justice Scanlan.

“Not to be published in full."


author: Justice Friend.

text:
    D. Sukowicz, Appellee, v. John Hinko et al., Appellants. Appeal of John Hinko.
    Gen. No. 41,758.
    Heard in second division, first district, this court at June term, 1941;
    opinion filed March 24, 1942;
    rehearing denied April 11, 1942;
    Edwin B. Harts, for appellant John Hinko; Kahn, Russ & Kahn and Julius L. Kahn, for appellee.
   Opinion by

Justice Friend.

“Hot to be published in full.”


text:
    Millie Stokes, Appellee, v. C. A. Hansberry, Appellant.
    Gen. No. 41,767.
    Heard in second division, first district, this court;
    opinion filed March 24, 1942.
    Prescott, Burroughs & Taylor, for appellant; A. M. Burroughs and Patrick B. Prescott, Jr., of counsel; Philip Conley, for appellee.
   Opinion by

Justice Friend.

“Not to

be published in full.’’


text:
    B. A. Eckhart Milling Company, Appellee, v. Illinois Doughnut and Cake Company, Appellant.
    Gen. No. 41,826.
    Heard in second division, first district, this court at October term, 1941;
    opinion filed March 24, 1942.
    Henry E. Ayers, for appellant; Clyde C. Fisher, of counsel; Edward Contarsy and West & Eckhart, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Marguerite Anders, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 41,843.

      Heard in second division, first district, this court at October term, 1941;
    opinion filed March 24, 1942;
    rehearing denied April 11, 1942.
    Hoyne, O ’Connor, Rubinkam & Melaniphy, for appellant; Nathaniel Rubinkam and John 0. Melaniphy, of counsel; John B. Fruchtl, for appellee.
   Opinion by

Justice Friend.

“Not to

be published, in full.”


text:
    Kling-Tite Paint Products Company, Appellee, v. Columbia Ice and Ice Cream Company, Appellant.
    Gen. No. 41,899.
    Heard in second division, first district, this court at October term, 1941;
    opinion filed March 24, 1942;
    rehearing denied April 11, 1942.
    Julius L. Handelman, for appellant; England & O’Toole, for appellee.
   Opinion by

Justice Friend.

“Not

to be published in full.”


text:
    Max Zimel, Trading as Zimel Fruit Company, Appellee, v. Southern Pacific Company, Appellant.
    Gen. No. 41,927.
    Heard in second division, first district, this court at October term, 1941;
    opinion filed March 24, 1942.
    John A. Sheean, for appellant; Golbus & Golbus, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    People of the State of Illinois, Defendant in Error, v. Virginia Warren, Plaintiff in Error.
    Gen. No. 42,097.
    Heard in second division, first district, this court at December term, 1941;
    opinion filed March 24, 1942.
    Clarence W. Shaver, for plaintiff in error; Louis E. Levinson, of counsel; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Friend.

“Hot to be published in full.”


author: Justice Sullivan.

text:
    Salvatore Savina, Minor, by Michele Savina, His Father and Next Friend, Appellant, v. National Brick Company and John P. Traff, Appellees.
    Gen. No. 41,354.
    Heard in second division, first district, this court at October term, 1940;
    opinion filed March 24, 1942.
    Irving G. Zazove and Nicholas A. Pope, for appellant; John A. Bloomingston, for appellees.
   Opinion by

Justice Sullivan.

“Hot to be published in full.”


text:
    Alvin F. Eitelgeorge for use of James W. Julian, Appellee, v. General Finance Corporation, Appellant.
    Gen. No. 41,510.

      Heard in second division, first district, this court at October term, 1940;
    opinion filed March 24, 1942.
    William V. Brooks and Maurice H. Daniels, for appellant; Alexander J. Ross, of counsel; Emmet F. Byrne, for appellee; William L. Kelley, of counsel.
   Opinion by

Justice Sullivan.

“Not to be

published in full.”


text:
    Helen S. Asher, Appellant, v. Lucius Teter et al., Appellees.
    Gen. No. 41,970.
    Heard in second division, first district, this court at October term, 1941;
    opinion filed March 24, 1942.
    Norman Asher, for appellant; Sonnensehein, Berkson, Lautmann, Levinson & Morse, for appellees; I. E. Ferguson, of counsel.
   Opinion by

Justice Sullivan.

“Not to be published in fuU.”


text:
    Dorothy Schreiber et al., Appellees, v. Catherine Lovewell, Also Known as Katie Kelly and Katie Irwin, et al., Appellants.
    Gen. No. 42,063.
    Heard in second division, first district, this court at December term, 1941;
    opinion filed March 24, 1942.
    Michael J. Creighton, for appellant Catherine Lovewell; Geoffrey B. Fleming, for appellees.
   Opinion by

Justice Sullivan.

“Not to be published in full.”


author: Presiding Justice Huffman.

text:
    Midwest Investment and Finance Company, Appellant, v. Clara L. Gatton, Appellee.
    Gen. No. 9,739.
    Heard in this court at February term, 1942;
    opinion filed April 8, 1942.
    London Middleton, for appellant; Richard H. Radley and John Radley, for appellee.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.”


text:
    Donald H. Fry, Appellee, v. Edgar J. Butterfield and Gail Scott, Appellants.
    Gen. No. 9,753.
    Heard in this court at February term, 1942;
    opinion filed April 8, 1942.
    B. Jay Knight and Frederick H. Haye, for appellants; Frank E. Maynard and Robert Canfield, for appellee; Robert Canfield, of counsel.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.”


text:
    W. L. Sherlock, Executor of Estate of Cornelius McGrath, Deceased, Appellant, v. Louise McGrath, Appellee.
    Gen. No. 9,756.
    Heard in this court at February term, 1942;
    opinion filed April 8, 1942.
    J. L. Brearton, for appellant; Hale & Skemp and Charles E. Stuart, for appellee.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.”


text:
    Rebecca Christensen, Appellant, v. Elmer Scoggin, Trading as Twin City Cab Company, et al., Appellees.
    Gen. No. 9,771.
    Heard in this court at February term, 1942;
    opinion filed April 8, 1942.
    Gerald C. Snyder, for appellant; Hartley E. LaChapelle, of counsel; J. A. Miller and Max Lidscliin, for appellees; Henry D. Fisher, of counsel.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.’’


author: Justice Dove.

text:
    J. Ernest Brook, Executor of Estate of George S. Wedge, Deceased, and Executor of Estate of Amy M. Wedge, Deceased, Appellant, v. William A. Rosing, Appellee.
    Gen. No. 9,752.
    Heard in this court at February term, 1942;
    opinion filed April 8, 1942.
    Bunyard & Behanna, for appellant; Eugene M. Bunyard and Daniel J. Dalziel, of counsel; Hall & Hulse, for appellee; Albert L. Hall and John V. Mooradian, of counsel.
   Opinion by

Justice Dove.

“Not to be published in full.”


author: Justice Wolfe.

text:
    John Johnson, Administrator of Estate of Arthur Johnson, Deceased, Appellant, v. Edward Mueller, Appellee.
    Gen. No. 9,643.
    Heard in this court at October term, 1941;
    opinion filed April 8, 1942.
    Donovan, Bray & Gray, for appellant; Bay P. Faulkner and Matthew W. Stefanieh, for appellee; Bay F. Faulkner, of counsel.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


text:
    Elizabeth M. Jones, Appellee, v. Illinois Iowa Power Company, Appellant.
    Gen. No. 9,741.

      Heard in this court at February term, 1942;
    opinion filed April 8, 1942.
    Miller, Westervelt, Johnson & Guenther, for appellant; Eugene R. Johnson and John D. Thomason, of counsel; Frank A. Hall, for appellee.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


author: Presiding Justice Wolfe.

text:
    Frank J. Wise, Appellant, v. Mary B. Hayden, Appellee.
    Gen. No. 9,746.
    Heard in this court at February term, 1942;
    opinion filed April 8, 1942.
    Robert E. Duffy, for appellant; Donald F. Wise, of counsel; George N. Blatt, Sr., for appellee; George N. Blatt, Jr., of counsel.
   Opinion by

Presiding Justice Wolfe.

“Not to be

published in fuU.’’


text:
    Smith P. Giddings, Appellant, v. Mrs. Dora Senneff, Appellee.
    Gen. No. 9,750.

      Heard in this court at February term, 1942;
    opinion filed April 8, 1942.
    Clarence J. Sehroeder and Adolph H. Kohlhammer, for appellant; Manus & Manus, for appellee; Albert H. Manus, of counsel.
   Opinion by

Justice Wolfe.

“Not to be published

in full.”


text:
    Ruth Pepper, Appellee, v. Faith Armstrong et al. Faith Armstrong, Appellant.
    Gen. No. 9,754.
    Heard in this court at February term, 1942;
    opinion filed April 8, 1942.
    Charles H. Davis, for appellant; Miller & Thomas and Francis E. Hickey, for appellee; L. C. Miller, of counsel.
   Opinion by

Justice Wolfe.

“Not to be published in

full.”


text:
    William H. Handley, As Administrator of Estate of Howard J. Handley, Deceased, Appellee, v. George Erb, Appellant.
    Gen. No. 9,635.

      Heard in this court at the February term, 1941.
    Opinion filed July 9, 1941.
    Supplemental opinion filed and rehearing denied February 4, 1942.
    Sears, O’Brien & Streit, of Aurora, and Snapp, Heise & Snapp, of Joliet, for appellant; Barnabas F. Sears, of Aurora, Charles F. Short, Jr., of Bloomington, and William M. Garvey, of Lockport, of counsel.
    Frank J. Jones, of Joliet, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Appellee brought suit in the circuit court of Will county against appellant and the city of Joliet to recover for the wrongful death of appellee’s intestate. A jury returned a verdict for $3,000 against both defendants. Under a reserved ruling on a prior motion by the city for a directed verdict in its favor the court granted the motion, and pursuant to a stipulation between appellee and the city, the suit was dismissed as to the latter. Judgment on the verdict was entered against appellant, from which he appeals.

The action arose out of a fatal accidental injury at about nine o’clock A. M. on November 12,1934, to appellee’s intestate at the intersection of Cass street with the east side of Ottawa street in the business district of the city of Joliet. Preparatory to a parade in celebration of Armistice Day, the city placed a new three-quarter inch rope across Cass street, tied about five feet high between poles located at the corners of the intersection on the east side of Ottawa street. The' rope was fairly tight but' sagged slightly and at the center was four or four and one-half feet above the street surface. Three red flags, one at the center of Cass street, and one in each of the east and west traffic lanes were tied on the rope. The center flag was about sixteen inches wide by twenty-two inches long. The other flags were about sixteen inches square. At least one of them had the word “Danger” on it in white letters. A like rope barricade was placed across Cass street at the east end of the particular block. The purpose of the barriers was to exclude traffic from the block on account of a customary annual distribution of gifts after the parade, to ex-service men and school bands, by a store located on the north side of Cass street next to the alley midway of the block. There were no other barriers in the downtown district.

Appellee’s intestate was a Western Union messenger, twenty-two years of age. At the time of the accident he had ridden his bicycle out of the alley on the south side of Cass street to a point near the northeast corner of the intersection, where he stopped east of the rope near the north curb of Cass street and placed one foot on the pavement. Erb, who was driving south on Ottawa street in a 1931 ¿-cylinder Nash car, made an inside left turn into Cass street. His car caught the rope, which slid over the hood and broke near the pole on the north side of Cass street. The longer part of the rope caught Handley around the neck, lifted him six or eight feet in the air, and threw him about ten to fifteen feet, where he struck the pavement and rolled over two or three times to a point near the center of Cass street. He died about an hour later from a resultant skull fracture.

Appellant testified it was a bright day and the pavement was dry; that as he came to the intersection he saw the green light was on; that he noticed a car in the distance coming from the south but it had not reached the intersection; that he was watching it so as to turn clear; that as he reached for the brakes, he saw Handley coming west on his bicycle and kept his eye on the boy and the other car; that he saw the boy stop and put his foot on the brake; that the boy was east of the rope; that there were no pedestrians on the crosswalk and he accelerated the car as he made the turn. He estimated his speed at about twelve miles per hour. A witness for appellee placed the speed at not to exceed fifteen miles per hour, and testified the car from the south and appellant’s car each made an inside left turn at the same time, and there was no appreciable change in Erb’s speed from the time he entered the intersection until his car struck the rope.

Erb testified Ms brakes were serviceable, having-been repaired thirty or forty days previously. An expert brake tester testified that such a car travellingtwelve miles per hour could be stopped witMn ten feet. The testimony as to how far the car travelled after the rope broke is in conflict. Some of the witnesses testified it went about half a block, and others that it went about half that distance. Appellant testified he did not see the rope or any of the flags until he was about six or eight feet from them, and thought he applied his brakes because he came to a stop; that the rope gave somewhat and then broke; and that he never saw the north flag. Two witnesses testified they saw the barrier at about half a block distance, and another that he saw it from the northwest corner of the intersection.

Over appellant’s objection, a witness for the city testified that in performing an experiment on the day prior to his testimony he caused three similar flags to be placed where the danger flags were located at the time of the accident. The experiment was performed about six years later. The only evidence as to conditions at or near the intersection was his testimony that the buildings on the four corners were the same. Appellant objected to his testifying in the presence of the jury “until the court determines whether in the examination you can’t or can reconstruct the scene six years later.” After a colloquy in chambers, and without any further testimony tending to show whether the conditions were the same, the court permitted the witness to testify he travelled the route at about 1:30 o’clock P. M., and saw the flags at points respectively 78.8 feet, 72.5 feet and 60 feet north of the north side of Cass street. He further testified his purpose in making the experiment was to see the flags at the first opportunity. The court denied appellant’s motion to strike the testimony and stated to the jury that it was not admitted for the purpose of attempting to show negligence on the part of appellant, but solely for the purpose of attempting to show no neglect on the part of the city.

It is to be remembered the accident happened on a clear day about 9:00 o’clock A. M., while the experiment was performed at about 1:30 P. M. The sun, as affecting clear: vision of one making a turn to the east on the day of the accident presented a condition that was not there when the experiment was made. No showing was made as to whether there were any signs or other obstructions on the east side of Ottawa street which might obstruct the view around the corner. Appellee claims appellant made no objection that conditions were not shown to be the same, but the objection to the testimony, and the motion to strike it on the same ground, refute that contention. It is well settled in this State that results of an experiment are incompetent as evidence unless the essential conditions of the experiment are shown to be the same as those existing at the time of the accident. (Smith v. Stover Mfg. Co., 205 Ill. App. 169; Chicago City By. Co. v. Brecher, 112 Ill. App. 106.) The same doctrine has been applied to photographs offered in evidence. (Chicago & Eastern Illinois R. Co. v. Crose, 214 Ill. 602.) The testimony permitted the jury to infer that if the witness, who knew the flags were there and was specifically looking for them, saw them at the points mentioned, that then appellant, who had no knowledge of the barrier, could have seen the flags from the same points, regardless of whether there were other conditions that might have obstructed his view. The court’s statement to the jury as to the purpose of the testimony, would not erase that inference from their minds. The testimony was highly prejudicial to appellant and was improperly admitted.

Cass street at this point is a State highway under the control and jurisdiction of the Department of Public Works and Buildings. Appellant contends the court erred in refusing to admit testimony that the city erected the barrier without permission from the Department, in violation of the Motor Vehicle Act as then in force, and cites Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312; Habenstreit v. City of Belle- ville, 302 Ill. App. 383; and other decisions. His counsel argue that he had the right to assume the law would be observed and that no barrier would be erected in violation thereof, and that the violation of the statute constituted a prima facie case of negligence on the part of the city. Appellant did not offer to prove the Department would not have permitted the barrier without requiring additional warning signs and so far as this record shows, the Department might have permitted the erection of the barrier in the exact manner it was erected here. Just what difference permission would have made in such a case is not pointed out. Such permission, without a requirement of additional warning, could not have made the barrier visible any sooner or more plainly to appellant or anyone else. The court did not err in refusing to admit the testimony.

A peremptory instruction told the jury that if they believed from the evidence that appellant saw or by the exercise of reasonable care could have seen the rope barrier and by the exercise of reasonable care could have had his automobile under such control as would enable him to avoid collision with the rope barrier, and failed to use reasonable care to have his automobile under such control, and by reason of such failure, if any, his automobile collided with the rope barrier causing the injury and death, and that Handley, nor his next of kin were guilty of any negligence contributing thereto, appellant would be liable. It is urged as a ground for reversal that the instruction singles out and gives undue prominence to the rope and omits other important facts, such as the car from the south. The instruction does not single out the rope, but on the contrary embraces the elements of appellant’s alleged negligence in controlling his car and the want of any negligence on the part of the decedent or his next of kin. The instruction applied the law to the facts in the case as the evidence on the part of appellee tended to prove them. It was properly given (Carlin v. Grand Trunk Western Ry. Co., 243 Ill. 64.)

During the argument of appellant’s counsel to the jury, the court, upon objection of the city, refused to permit him to read from the complaint allegations that the city negligently and carelessly erected the barricade so that it could not be seen or observed by persons lawfully in and upon the highway in time to avoid striking! it. It is not error to refuse to permit counsel to read from the pleadings to the jury. (Locander v. Joliet & Eastern Traction Co., 225 Ill. App. 143.) In Bennett v. Auditorium Bldg. Corp., 299 Ill. App. 139, relied upon by appellant, it was held error to refuse to permit counsel to read from an original complaint a statement at variance with the theory of the amended complaint, but no such situation is present here. The complaint is in three counts. The allegation appears in the first count, which charges negligence of both defendants; and in the third count where the alleged negligence of the city is charged to be the sole cause of the accident. It does not appear in the second count, which is against appellant alone, based solely on his alleged negligence and carelessness in the control of his car. This is the customary method of pleading in order to cover whichever charge is sustained by the testimony. In the absence of a motion to require an election as to which count the plaintiff will rely upon, such allegations do not prevent a recovery under either count. The case cited by appellant is not applicable here, and to have permitted the reading of the allegation to the jury might have confused them. The court did not err in refusing to permit it to be done. Furthermore, the record shows appellant’s counsel had already read to the jury from the complaint, and even if it had been proper for him to do so in the first instance, the court was not without discretion to refuse to permit its repetition.

Prior to the examination of the jurors upon their voir dire appellee’s counsel filed an affidavit that Erb was insured in and his defense was being conducted by the Union Auto Indemnity Association of Bloomington, Illinois; that the insurance company had agents, representatives, solicitors, numerous policyholders and investigators in Will county, and that appellee desired to ask the jury the question whether any of them were employees, representatives, agents, solicitors, policyholders, or were interested financially or otherwise in the named insurance company. Appellant filed an affidavit by the secretary and general manager of the company showing none of the prospective jurors, naming each of them, were interested in or connected with the company in any of the modes mentioned, or otherwise, except that one of them, John Quigley, was a policyholder. He was eliminated by order of the court. Appellant’s motion to require appellee to refrain from interrogating prospective jurors relative to any connection or affiliation with any insurance company, and particularly the named company was denied. A second motion to require appellee to so refrain unless the juror was first asked as to any employment, affiliation or connection with any corporation, company or association, and had answered that he was so connected, and was then asked as to the kind of corporation, company or association and had answered that it is one engaged in the insurance business. This motion was likewise overruled, and the court permitted appellee’s counsel to ask the question of all the prospective jurors collectively, including those in the box and the others in the courtroom.

Our Supreme Court and this court have often pointed out the viciousness of bringing to the attention of jurors the fact that an insurance company is defending a suit for any other purpose than that of enabling counsel to exercise his right of challenge on account of interest. (Smithers v. Henriquez, 368 Ill. 588; Mithen v. Jeffery, 259 Ill. 372; Clark v. Hassel quist, 304 Ill. App. 41.) It was pointed out in the Smithers case and in the Mithen case that an examination of jurors could and should be conducted in such a manner as not to disclose the relation of an insurer. In the case at bar, after it was shown that none of the jurors had any interest in or connection with the insurer, there was no occasion for permitting the question to be asked. Not only is that true, but the motion which, if, allowed, would have brought any examination within the doctrine laid down in the Smithers case and the Mithen case was denied. The court said in the Smithers case that where such an inquiry is made in good faith and no prejudice results, a verdict will not be disturbed; that where the evidence shows a purpose to improperly inform the jury of the relation and the circumstances tend to show a prejudicial effect upon the jury it constitutes error for which the judgment will be reserved, but if it appears the jury were not actuated by passion and prejudice on that account the verdict will not be disturbed, and that it is manifest from all the cases on the subject that to require a reversal, the examination must be such as to show a prejudice to the rights of the defendant. We think the sole purpose of counsel in this case was to improperly inform the jury that the insurance company was defending the suit. Such conduct is manifestly prejudicial to the rights of the defendant.

In Eldorado Coal & Coke Co. v. Swan, 227 Ill. 586, the court said that such conduct is censurable in the highest degree, and if the verdict were such as to raise a suspicion on the minds of the court that the jury had been influenced by the misconduct, or if the case were a close one on the facts, the court would not hesitate to reverse the judgment fot that reason alone.

While we cannot say that the verdict is so manifestly against the weight of the evidence as to require a reversal for that reason, we think that the case was a close one on the facts. What effect the prejudicial misconduct had upon the jury it is impossible to tell. For the error in the admission of the testimony noticed above, and in bringing to the jury’s attention, under the circumstances shown, the fact that the insurance company was interested in the suit, requires a reversal of this judgment.

The judgment is reversed and the cause remanded for another trial.

Reversed and remanded.

Supplemental Opinion.

It is insisted by counsel for appellee, in his petition for rehearing, that the testimony of the city engineer as to measurements of distances, which were taken by him as the result of an experiment made by him the day before he testified, which was six years after the accident, was not offered by plaintiff, but by the City of Joliet, appellant’s codefendant, therefore, appellee was not chargeable with the error of admitting this testimony. In support of this contention, counsel call our attention to Schmidt v. Chicago City Ry. Co., 239 Ill. 494 and Condon v. Chicago Ry. Co., 181 Ill. App. 330. We have examined both cases, but there is nothing said in either contrary to our holding in the instant case. In the Schmidt case, the plaintiff was a passenger on the car of the Chicago City Railway Company which was going south on Clark street in the City of Chicago. Twelfth street crossed Clark street at right angles, and the Union Traction Company was operating a car along its track on that street, and there was a collision at the intersection at which the plaintiff was injured. The court, in its opinion, said that there was no effort to controvert the right of the plaintiff to recover against one of the other of the defendants, and aside from the testimony relevant to the question of the amount of damages, the defense developed into a contest between the two defendants as to which one was guilty of the negligence which caused the collision. Evidence on the part of the Union Traction Company tended to prove that the uniform custom with reference to the right of a car to pass over the crossing was that the car which got there first had the right of way. The defendant, Chicago City Railway Company contended that there was a rule and custom by which the cars of the Union Traction Company stopped on reaching Clark street, and if any car of the Chicago City Railway Company was within 150 or 200 feet of the crossing, that then the Twelfth street car would wait, until the Clark street car had passed over the crossing, and offered witnesses as to that rule and custom. Upon cross-examination, the court erroneously permitted counsel for the Union Traction Company to examine those witnesses with respect to how long it takes a car to run 200 feet, the rate of speed of the car upon which the plaintiff was riding, within what distance it could be stopped, and other matters of that kind. The court said that the cross-examination should have been limited to the facts elicited by the examination in chief, but that the cross-examination by counsel for the Union Traction Company could not be regarded as cross-examination by the plaintiff. The jury found the Union Traction Company not guilty, but returned a verdict in favor of plaintiff and against the other defendant. In its opinion, the court said that the fact that one party was improperly permitted to introduce testimony hostile to the other defendant, did not justify reversal as against the innocent plaintiff and held that the liability was not joint but several, and that if the evidence against the defendant found guilty, sustained such a judgment, that then, the question whether there was error in the rulings of the court between the two defendants does not concern the plaintiff. It will be noted that in the Schmidt case, the Union Traction Company introduced witnesses to contradict the incompetent testimony offered by the other defendant. If appellant, in the instant case had done likewise, then, as in the Schmidt case, the controversy on the particular subject would have been between the defendants, but appellant here introduced no evidence on the subject and it was not incumbent upon him to combat incompetent testimony with other testimony. He had the right to insist that the testimony was incompetent and he did so. Appellee, Handley, had the right to show that the conditions were the same, either by cross-examination or by other testimony, if they were the same, but he was content and elected to let the record stand with the incompetent testimony therein. This, in effect, amounted to adopting that incompetent testimony as his own and he received the benefit thereof and is not now in a position to insist that this matter was merely a controversy between defendants in which he was not interested or by which he was affected. The incompetent evidence here is incompetent, for any purpose. Appellant objected to it, and it was over his objection that the testimony was admitted, and he is the person whom the testimony affected. We adhere to what we said in our original opinion with reference to the prejudicial character of this evidence.

In his petition for rehearing, counsel for appellee further insist that what is said in the opinion to the effect that the trial court erred in permitting counsel for appellee, upon the examination of the jurors upon their voir dire to ask the jury whether any of them were employees, representatives, agents, solicitors, policyholders or interested financially or otherwise in the Union Auto Indemnity Association of Blooming-ton, is not in accord with the ruling of the Supreme Court in Smithers v. Henriquez, 368 Ill. 588.

In the recent case of Edwards v. Hill-Thomas Lime & Cement Co., 378 Ill. 180, being an appeal from the city court of East St. Louis, it appeared that counsel for the plaintiff made an oral request of the trial judge in chambers for permission to propound to the jurors on their voir dire a somewhat similar question with reference to the Massachusetts Bonding and Insurance Company which had the coverage and was handling the defense of that case. The reasons assigned by counsel were that said company was liable for any judgment that might be rendered against the defendant, and that he desired to ask the question for the purpose of exercising his right of challenge. In response to this request, counsel for defendant stated under oath in substance that the Insurance Company was an “old line company”; that it had no officers or stockholders in East St. Louis, but did have soliciting agents there, none of whom were on the panel of jurors then in attendance upon the court; that while the company might have policyholders in East St. Louis, any judgment would not affect the policyholders because they were not liable for assessments to pay judgments. In its opinion, the court said: “While there is nothing in the record to show the request was not made in good faith, the record is equally barren of any fact which tends to show that it was so made. The grounds stated by counsel as reasons for asking the questions were wholly insufficient. Likewise, the facts stated by counsel for appellant, under oath, for the purpose of obviating the supposed necessity for the questions, were insufficient for that purpose, if the grounds upon which the request was made had been sufficient.” The Court then cited Smithers v. Eenriques, supra, commented upon it and continued: “While the record in this case does not show that the request for leave to ask the questions in the examination of the jurors was not made in good faith, there was no basis shown upon which the request could reasonably be granted by the trial court. It is apparent under the showing made in this case that the real purpose which counsel had in mind was to advise the jury that the insurance company was making the defense and was liable for the payment of any judgment rendered.”

Smithers v. Henriquez, supra, held that before permitting an inquiry to be made, such as was made in the instant case, it devolved upon the plaintiff to show, first, some grounds upon which to base a reasonable belief that it was necessary to interrogate jurors as to their financial interest, if any, in the defending insurance company, and second, that the application to do so was made in good faith. In the instant case, all that the application of the plaintiff disclosed was that the defending company did have agents, representatives, solicitors, numerous policyholders and investigators in Will county. It does not follow from this fact alone that it was necessary to interrogate jurors as to their interest, financial or otherwise, in the defending insurance company or that the application was made in good faith. In Edwards v. Hil-Thomas Lime & Cement Co., supra, the court stated that under the showing made, the real purpose which counsel for the plaintiff had in mind was to advise the jury that the insurance company was making the defense and was liable for any judgment rendered. So, in the instant case, the conclusion is inescapable that the sole purpose of counsel was to improperly inform the jury that the insurance company was defending this suit. The petition for rehearing will therefore be denied.

Rehearing denied.