author: Mr. Presiding Justice Hayes

text:
    Jessie Sibert et al., Appellants, v. William T. Suhy, Administrator of Estate of Viola Suhy, Deceased, Appellee.
    Gen. No. 9,333.
    Heard in this court at the September term, 1941.
    Opinion filed June 12, 1942.
    Bellatti, Arnold & Bellatti, of Jacksonville, for appellants.
    Vaught, Foreman & Cleary, of Jacksonville, for appellee.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

This appeal involves the correct interpretation and legal effect of a certain contract entered into by Viola Suhy, now deceased, and her husband William T. Suhy. The preamble of this contract recites that, “Whereas the parties desire to effect and adjust their mutual property and other rights and the party of the second part desires to make suitable provision for the care and support of the party of the first part: Now, therefore, The parties make payments, conveyances, covenants, agreements and releases, each in consideration of the payments, conveyances, covenants, agreements and releases made by the other, as follows:” It then provides for each to take half interest in the homestead and gives the household goods to the wife and all other personal property to the husband; provides for the payment of five thousand ($5,000) dollars to the wife by the husband for her share in certain capital stock and an additional sum of ten thousand ($10,000) dollars to be paid by the husband to the wife; provides for the dismissal by the wife of certain then pending suits against the husband, and provides for the mutual releases by one to the other of all rights acquired by reason of the marriage relationship, and particularly ‘ ‘ of all mutual right of support; and it is the intention of the parties hereto to mutually release and waive all benefit of the laws of the State of Illinois, relating to husband and wife, dower, homestead, mutual support, etc., and forever bar each other, respectively, from'any action to recover any separate maintenance or support or any interest that may now be or shall hereafter during the life time or at the death of either of said parties hereto be acquired by the other in the property, both real and personal, of the other, respectively.” This agreement was dated the 18th day of October, 1938.

Viola Suhy died on October 23, 1938; leaving as her only heirs-at-law her husband (the defendant) William Suhy and the plaintiffs. Letters of administration were issued to the husband. The plaintiffs brought suit against William T. Suhy individually, and as administrator of the estate, seeking partition of certain real estate alleged to have been owned in common by Viola Suhy and her husband. They also filed a petition in the probate court asking the court to give them all the personal property of Viola Suhy’s estate. These two. suits were consolidated and passed on by the circuit court at the same time. William Suhy filed a motion to strike, on the ground that the agreement in question was null and void on its face, contrary to public policy, and without consideration. The motion to strike was allowed. The complaint in the partition suit, and the petition in the probate case were both dismissed and judgment was entered for the defendant against the plaintiffs.

An appeal was taken to the Supreme Court both on the order dismissing the partition suit, and dismissing the petition in the probate case. The Supreme Court retained the partition suit and entered an opinion thereon sustaining the decree of the circuit court and transferred the probate case to this court.

The question of law involved under this contract has been passed on by our Supreme Court a number of times,- and each time the holding has been that agreements of this nature are contr'ary to public policy and void.

In the case of Lyons v. Schanbacher, 316 Ill. 569, the court considered the validity of a separation agreement similar to the one in the instant case in which each released all rights they respectively had in the other’s property including the legal right the wife had to support from her husband. In that case after the death of the wife, the husband filed a, bill to partition real estate owned by the wife and claimed that the contract was invalid because an inseparable part of the consideration for the agreement was the release of the husband from the obligation to support his wife, which was illegal and rendered the entire contract void. In passing on this question the court .said-,

“One consideration for its execution was the release of appellant forever from any obligation to support or contribute to the support of his wife. The duty of the husband to support the wife is imposed upon him by law. It does not depend upon inadequacy of the wife’s means, but upon the marriage relation. Husband and wife may contract with each other as to their mutual property rights, but the husband cannot by contract, either before or after marriage, relieve himself of the obligation imposed upon him by law to support his wife.”

The same contention that was made in the Lyons case is now being made in the instant case, that is that the whole agreement should not be invalidated on account of the provision for the release of the husband from any obligation to support his wife, but the contract should stand in full force as to the division of property notwithstanding the release for future support. In passing on this question the court said: “The invalid provision was so material a consideration that it rendered the entire contract invalid. The rule has long been established that if any of the entire consideration for a contract is illegal, the whole contract is void. When valid provisions of a contract are blended with invalid provisions the whole contract will be void. That which is bad destroys that which is good and both perish together.” The court further stated that “we are obliged to hold that a material part of the consideration for the agreement was contrary to public policy, illegal and void and that the whole contract must be held illegal.”

The same question was passed upon in the case of VanKoten v. VanKoten, 323 Ill. 323. Here the husband and wife entered into a post nuptial contract with similar features as in the present case, providing that the husband pay the wife three thousand dollars and give her the household goods and furniture, and twenty dollars a month for the support of their child, and provided further for the relinquishment of any and all future rights which they might either acquire in the property of the other person on account of the marital relation. After the contract was consummated and the payments made as provided, the wife filed suit to set aside certain deeds. The trial court dismissed her suit and held the contract valid. On appeal the ■Supreme Court held the agreement contrary to public policy, and void, and reversed the decree of the circuit court saying, “marriage is a civil contract to which there are three parties, — the husband, the wife and the state,- — and it is regarded as a status based upon public necessity and controlled by law for the benefit of society at large. (Leland v. Leland, 319 Ill. 426.) One of the contractual obligations of the marriage contract is the duty of the husband to support the wife, and this contractual obligation cannot he abrogated without the consent of the third party, — the state. Husband and wife may contract with each other as to their mutual property rights, but the husband cannot by contract, either before or after marriage, relieve himself of the obligation imposed upon him by law to support his wife, and a contract between husband and wife one of the material provisions of which is that the husband shall be relieved of the obligation imposed upon him by law to support his wife, is illegal and void as being contrary to public policy.”

A similar holding was made in the case of Vock v. Vock, 365 Ill. 432, to the effect that the invalid provision which released the husband from the obligation to provide for the wife’s support was so material a consideration and inseparable from the other provisions of the contract that it rendered the entire contract invalid. Under the principle laid down in the Vock case, which held that where a contract is illegal or against public policy a court of equity will not grant relief to either party, to compel the execution of the agreement or to set it aside after it has been executed,— for the reason that to give relief in such a case would injure and counteract public morals. The application of the rule is not in the interest of any party to the illegal or immoral transaction but in the interest of the public. Applying the principle established in the Vock case to the present situation, we find that during the lifetime of Mrs. Suhy her husband could not have recovered from her the property and money which he had turned over to her pursuant to the invalid agreement. As in that regard the law leaves them as it finds them. Upon her death her personal property passed to the husband under the law of descent, and the real estate held became vested in him as surviving joint tenant. The invalid agreement cannot be asserted by her other heirs as preventing the operation of the law of descent as to the personal property. The saíne holding was made in the case of Berge v. Berge, 366 Ill. 228, on a similar contract made between a husband and wife for the division of property and a covenant not to sue in any proceeding for separate maintenance or support.

Plaintiffs contend that by amending the Separate Maintenance Act in 1935, the legislature repealed the established public policy which prohibited a wife from releasing her right to be supported by her husband. Upon examination of the language used in this amendment it appears that the only change made was that husbands were given the same relief as wives. There is nothing in this language to show legislative intent to-change the law in reference to releasing support by agreement. In 1935 when this legislation was enacted, the law on this question was well established and if the legislature meant to change the existing law on the question of release for future support it could have easily done so by apt language. However, nowhere in the amendment is there any indication whatever either expressly or by necessary implication of any legisla-' five intent to change the existing law. It must, therefore, be concluded that the law in this respect stands unchanged.

Plaintiffs cite the case of Hallam v. Hallam, 298 Ill. App. 445. In that case the husband, who was an alcoholic, deposited forty-one thousand dollars with the Provident Mutual Life Insurance Company so as to create an annuity of two hundred dollars per month to be paid to the wife and also transferred to her considerable other personal property. The court in passing on the question of the validity of the contract held that Hallam did not seek to avoid his obligation for future support but on the contrary met it by creating the annuity as agreed. Under the circumstances of that particular case the court held that equity required that the contract should be sustained.

It is argued that defendant is estopped by fraud from relying on the invalidity of the agreement. Count three of the complaint charges the defendant with fraudulently inserting the clause for the release of the common-law right of support, without disclosing to the wife that the same would invalidate the contract. It appears that both parties were represented by counsel and ordinarily one is not liable for false representations respecting a mere question of law, for lawyers and judges frequently disagree on what the law is. All parties have an equal opportunity to search out and find thé law on any question. Morel v. Masalski, 333 Ill. 41; McNeil v. Bulkley, 269 Ill. App. 1; Rogan v. Illinois Trust & Savings Bank, 93 Ill. App. 39. Under the facts alleged in count three of the petition, there is no such showing as would create a cause of action on the ground of fraud.

For the reasons set out in this opinion, we hold that the alleged agreement was contrary to public policy and void, and that the judgment of the circuit court and probate court in dismissing this petition, should be and are hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Scanlan

license: Public Domain

text:
    Clyde Hollaris, Minor, by Albert Hollaris, Guardian, Appellee, v. Mary Jankowski, Administratrix of Estate of Frank Jankowski, Deceased, and Alex Phal, Appellants.
    Gen. No. 41,529.
    Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed June 19, 1942.
    John A. Bloomingston, of Chicago, for appellants.
    William Shapiro and Krohn & MacDonald, all of Chicago, for appellee; Stuart B. Krohn and Ian P. MacDonald, both of Chicago, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

A suit for damages for personal injuries sustained by the minor. A jury returned a verdict finding defendants guilty and assessing plaintiff’s damages at $20,000. Defendants appeal from a judgment entered upon the verdict. There was a trial prior to the instant one, at which a verdict was returned finding defendants guilty and assessing plaintiff’s damages at the sum of $10,000. The trial judge granted a new trial upon the ground that the verdict was against the manifest weight of the evidence; plaintiff filed in this court a petition for leave to appeal from the action of the trial court in granting a new trial, and we denied the petition.

The complaint charges that defendants were driving a truck in an alley and (1) carelessly and negligently drove it so as to injure the plaintiff, a boy four years of age; (2) negligently failed to keep their motor truck under control; (3) drove the truck at a speed greater than was reasonable and proper, having regard to the traffic and the use of the way; (4) wilfully and wantonly drove the truck. Defendants filed a general denial to the allegations of the complaint. Plaintiff thereafter withdrew the charge of wilful and wanton conduct.

The complaint alleges that Clyde Hollaris, the minor, was four years of age at the time of the accident. The mother of the minor testified that Clyde “was between four and five years old at the time of the accident.” The accident happened on August 14, 1937, about ten o’clock a.m. -It was a clear, dry day. The theory of plaintiff was that the minor at and just prior to the accident was riding or propelling his “scooter” in an easterly direction upon the south edge or margin of a paved alley which ran east and west between Greenview avenue on the east and Bos-worth avenue on the west; that the street just south of the alley was North avenue; that the alley was in the rear of the residence occupied by the parents of plaintiff; that the scooter consisted of a box mounted at one end of a two-by-four about three feet long, to the front and rear of which two-by-four there had been attached wheels, or rollers, from a roller skate; that the alley was approximately twenty-six feet in width; that the truck of defendant Jankowski, operated by defendant Phal, emerged from the garage of Jankowski; that as the truck so emerged the minor was at that time to the east of the garage and was propelling the scooter by pushing with one foot on the surface of the alley and the other foot on the two-by-four of the scooter; that the truck, after emerging from the garage, headed east and angled over toward where plaintiff was propelling his scooter; that the front wheel of the truck struck the rear end of the two-by-four of the scooter and flipped the scooter around, and the plaintiff was thereby thrown off of the- scooter onto the alley, and while he was lying in a ‘ ‘ sprawled out position” the back wheel of the truck went over his leg; that the truck did not stop; that the minor was seventy-five feet east of the garage when he was overtaken by the truck; that as a result of the accident plaintiff was seriously injured. The theory of defendants is that the child was riding on a scooter and was facing west; that the scooter was being pushed by the older brother of the minor toward the east; that as the truck was proceeding east toward G-reenview avenue the scooter was west of the truck; that the older brother then pushed the scooter until he caught up with the truck and that when the scooter reached the right side of the truck the older brother attempted to take hold of the truck and the scooter was tipped over, and the boy’s leg was caught under the right rear wheel of the truck; that the driver had no knowledge of the accident. until he had driven around onto North avenue, when he was told of the accident.

Defendants strenuously contend that the manifest weight of the evidence is in favor of defendants. After carefully reading the entire evidence that bears upon the instant contention we are satisfied that the contention must be sustained. As this case may be tried again we refrain from commenting upon the evidence.

Defendants contend that the trial court erred in permitting Clyde Hollaris, the minor, to testify; that a child of eight years of age should not be permitted to testify to an accident that happened to him when he was between four and five years of age. Defendants argue that the child would not have been competent to testify as to the accident if he had been called as a witness directly after it occurred, and that the mere fact that he has now reached the age of eight years does not now make him competent to tell what happened when he was between four and five years of age, and counsel argues that- “many children do not walk until they are two years of age and do not talk until they are three. At four a child is very apt to be in the prattling age in which impressions are nebulous and conversations vague.” Counsel for plaintiff argues that “it is the intelligence and understanding of the witness, and not his age, that determines his competency.” Upon the first trial of the case the court refused to allow the minor to testify. Neither the Legislature of this State nor our Supreme Court has laid down a hard and fast rule with respect to the minimum age at which a minor is permitted to testify.

In People v. Peck, 314 Ill. 237, the defendant was charged with taking indecent liberties with a bay of the age of six. The boy was permitted to testify over the objection of the defendant. The Supreme Court held that he was a competent witness, it appearing that the testimony of the boy “shows him to be a very intelligent boy,” able to tell in detail all of the circumstances surrounding the commission of the alleged offense. In that case two girls, each four years of age, saw the commission of the offense, in fact, the evidence shows that the defendant took indecent liberties with one of the girls. The Supreme Court states that the two girls were not allowed to testify as they were “considered too young to testify as witnesses in the case.” From a reading of the opinion in the Peck case it appears that the evidence of a police officer, alone, conclusively proved the guilt of the defendant.

In Featherstone v. People, 194 Ill. 325, a boy who was six years of age at the time of the offense was permitted to testify, and the Supreme Court held that the action of the trial court in permitting him to testify was not error. The Supreme Court stated, however, that if they had entertained any doubt of the guilt of the defendant they would have reversed the ease, and the court reviewed at length the evidence that corroborated the testimony of the prosecuting witness and that proved the guilt of the defendant.

We find no case in this State wherein the competency of a child under six years of age to testify has been passed upon.

In State v. Michael, 37 W. Va. 565, the complaining witness was five years of age at the time of the alleged criminal offense. The opinion in that case states (p. 569): “Under the age of six, presumption of incompetency would arise, and at the age of five the utmost limit would be ordinarily reached, unless extraordinary development of the mental and religious faculties should be shown, to take the case out of the ordinary course of nature.” The court held that the child should not have been permitted to testify.

In Macale v. Lynch (Wash.), 188 Pac. 517, the plaintiff was five years of age at the time of the accident. Fourteen months later he was allowed to testify in his case over the objection of the defendant. The child had often discussed the facts of the accident with the members of his family and the lawyers. It was held that the child should not have been allowed to testify.

In the instant case the testimony of the minor does not show that he is a very intelligent boy. Moreover, his testimony shows that he had little, if any, memory of what actually occurred at the time of the accident. He testified that “the-lawyers have talked about it to me, I don’t know how many lawyers;” that he remembered the facts better at thé time of the first trial; that “My memory isn’t so good about it now, because it was so long. I mean it is so long ago that I don’t remember much about it;” that “My memory is not very good about what happened at that time, so long a time has gone by. After I heard my brother and other people about it, I didn’t remember so much more about it. Q. In other words the more they talked about it, the less you knew about it, is that what you mean? A. Yes, sir. Q. Do you really remember about it, Clyde? A. No, not so well. Q. You said something about the truck turning over to you? Did you see the truck turn over to you at that time? A. Well, my brother told me. Q. Your brother told you, and that is the reason you thought the truck kept turning over to you? A. Yes, sir. Q. Did you see the truck come out of the garage ? A. No, that is the only time when my brother yelled.” We are not obliged to hold, however, that the minor was an incompetent witness solely because of his age. Undoubtedly there are some very smart, precocious children, who, at eight years of age, can remember the details of an accident that happened to them when they were between four and five years of age, but the record shows that the minor in this case was not a very smart, precocious child. Moreover, it affirmatively appears that he had been talked to so much about the accident by members of his family and lawyers that the child had little, if any, independent recollection as to the facts and circumstances surrounding the accident. In any future trial he should not be allowed to testify. Defendants argue, and with some force, that the minor was placed upon the stand not because it was expected that his testimony would have any material probative force, but solely for the emotional effect that the one-legged boy would have upon the jury.

The judgment of the circuit court of Cook county js reversed, and the cause is remanded for a new trial.

Judgment reversed; and cause remanded for a new trial.

Sullivan and Friend, JJ., concur.


text:
    Charlotte C. Joslyn, Appellant, v. George R. Joslyn, Appellee.
    Gen. No. 41,688.
    Heard in the second division of this court for the first district at the April term, 1941.
    Opinion filed June 19, 1942.
    liehearing denied July 1, 1942.
    Thomas Hart Fisher, of Chicago, for appellant; Norman Crawford, of Chicago, of counsel.

      Hubbard, Baker & Rice, of Chicago, for appellee; Alvin Glen Hubbard, of Chicago, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Plaintiff filed her complaint for divorce upon the ground of desertion. Defendant filed an amended answer and counterclaim denying the desertion charged in the complaint and praying a divorce from plaintiff on the ground that she had been guilty of adultery with divers persons. Later, plaintiff filed a reply to the amended answer of defendant and an answer to the counterclaim in which she denied the allegations that she had been guilty of adultery and averred that defendant had committed adultery with divers persons. Defendant filed a rejoinder denying the charges that he was guilty of adultery as charged. The case was tried by the court. The trial commenced on June 14, 1940, and continued until October 1, 1940, when a decree was entered. It found that defendant had not proved his counterclaim and it was dismissed for want of equity. The decree further found that defendant had deserted plaintiff as charged in her complaint and decreed dissolution of the marriage. The decree further provided that the care and custody of the four minor children born of the marriage was awarded to plaintiff, subject to the right of defendant to have custody of the children at stated-intervals throughout the year. Defendant was ordered to pay to plaintiff for the support of the minor children $100 monthly for each of the children and plaintiff was required to render a statement to defendant at the end of each month showing how she had applied or conserved the $400 for the use and benefit of the children. The decree contained also the following provision:

“It is further ordered that the alimony of Charlotte C. Joslyn be and the same is hereby fixed at the sum of One Hundred Dollars per month and George B. Jo sly n is ordered to pay $100.00 each month to -Charlotte C. Jo sly n for her alimony, payable on the l-5th day of each month. ’ ’

The decree reserved jurisdiction to determine whether or not any solicitor’s fees should be paid to plaintiff for and on account of services rendered by her solicitor, and in that connection provided:

“That in the determination as to whether any fees shall be paid by the defendant, George E. Jo sly n, to the plaintiff, in addition to the thousand dollars already paid, the Court may consider the matter as though the issues upon the counterclaim had been determined in favor of George B. J oslyn.
“It is further agreed between the parties, by their respective solicitors, that the decree entered herein is without prejudice to either party relative to the solicitors fees to be awarded the plaintiff, if any; and that the evidence heretofore offered may be considered in fixing the plaintiff’s reasonable solicitor’s fees if any.” (Italics ours.)

Plaintiff appeals only from that part of the decree of October 1,1940, “relating to the alimony to be paid the plaintiff and the support money to be paid the plaintiff for the use of her four minor children.”

Plaintiff contends “that the trial court entered that portion of the divorce decree of October 1, 1940, relating to alimony and support of plaintiff and her four children, without any evidence in the record whatever of the property rights of the parties, of the standard of life of the plaintiff and defendant and their children, and the earning power and income of the defendant ; that the trial judge had no knowledge of any of these matters and had excluded any evidence relating thereto upon the trial before him by ruling that the subject of alimony should be reserved for consideration after the divorce issue was adjudicated. No agreement was entered into between the parties or their attorneys making any part of the divorce de-* cree of October 1, 1940, a consent decree on the subject of alimony and support.”

Defendant contends that plaintiff and defendant made an oral agreement covering plaintiff’s alimony and that it was the duty of the trial court to enforce that oral agreement; that plaintiff’s counsel acquiesced in the agreement; that the decree as to alimony was by consent and the consent precludes any review.

On September 30, 1940, after the evidence in the cause was practically concluded, the trial court called plaintiff and defendant, alone, into his chambers, where the following occurred:

“The Court: I have called you into chambers in the hope that even at this late stage, you can find some agreement which will make it unnecessary for us to continue this case and thereby avoid further publicity.
“George E. Joslyn: Your Honor, I appreciate your efforts to settle this case, but our experience before Judge Desort has discouraged me from expecting any concrete results from it.
“Charlotte C. Joslyn: That is not true at all. There is no reason why we cannot settle it.
“The Court: Well, what is the principal point on which you cannot get together? Is it the question of money?
“Charlóte C. Joslyn: No, definitely not. It has never been a question of money.
“The Court: Well, then it must be the question of custody of the children, what is the difficulty there?
“Charlotte C. Joslyn: Well, Mr. Joslyn insists on having the children alternate week ends.
“The Court: Well, what is your objection to that? That is the custody provision.
“Charlotte C. Joslyn: I don’t like to have their lives interrupted every two weeks. It is bad discipline for them. They look forward to two days of picnic every two weeks and they are days getting over it. I want to maintain an even tenor of their lives. It is unfair that Mr. Joslyn should have the children for picnic occasions of that kind, when it is all fun and no Work, presumably no discipline, whereas their mother and supervisor of their workday life, is the one who has to hold them to their appointed tasks with all the resentment which is bound to occur from the children.
“The Court:' That is inherent in any family split. There is not much that can be done about that except insofar as Mr. Joslyn realizes the danger and holds down the excitement to which he bring’s them when he has custody of the children. Now, Mr. Joslyn as to financial matters, what are you prepared to offer?
“George R. Joslyn: $500.00; $100.00 a month for each child until they are 21, and $100.00 to Mrs. Joslyn so long as she remains single.
“The Court: Mrs. Joslyn, is that acceptable?
“Charlotte C. Joslyn: Whatever he proposes. I have been getting more and I think I should have more, but if that is all he wants to offer, that is acceptable.
“The Court: I can see Mrs. Joslyn’s point about the even tenor of the children’s lives, are you not prepared to make some concession on that?
“George R. Joslyn: Yes, I am. If I can see the children from one to five every Saturday afternoon, with the privilege of taking them out of the home, as for example, to see their grandparents or taking them to the Zoo, or for a swim, and then if I may have them every eighth week to take them to the farm, that will be satisfactory, along with the other provisions that I have them during the summer months .and alternate Christmas and Easter vacations.
“Charlotte C. Joslyn: I will agree to that.
“The Court: Are there any other points on which there is any disagreement?
“George R. Joslyn: Yes, there is another point, and a very important point, and that is the question of attorney’s fees.
“The Court: Well, what are you prepared to offer Mr. Fisher to settle this thing?
“George R. Joslyn: $1500.00 in addition to the $1000 he has already received under court order.
1 ‘ The Court: I am not going to recommend that Mr. Fisher accept that or that he refuse it. That is a matter that, seems to me you should be able to find some agreement on, and it would be a shame to defeat the settlement of this case merely on the question of attorney’s fees.”

Plaintiff and defendant then left the judge’s chambers and Thomas Hart Fisher, attorney for plaintiff, and Alvin Glen Hubbard, attorney for defendant, entered the chambers. The following then occurred:

“The Court: These parties have agreed upon a settlement of this case. Mrs. Joslyn says she is willing to accept whatever Mr. Joslyn is willing to give and they have also agreed on the custody provision.
“Mr. Hubbard [attorney for defendant]: Judge, this case has been settled many times and each time Mr. Fisher has kicked it over. I cannot believe there is any chance for a settlement now. I think that we will. save time if we go outside and if your Honor permits me to proceed to cross examine Mr. Alexan-droff.
“Mr. Fisher [attorney for plaintiff]: Mr. Hubbard does not want to settle the case. All he wants to do is to litigate. He wants to scandalize this little woman. I have always been willing to make any reasonable settlement. Now Mr. Hubbard attacks me.
“The Court: Mr. Hubbard, your client says he is willing to support her. She says she will accept whatever he is willing to offer. I do not %vant to make an adjudication of adultery against this woman. Maybe, I have got to, under the evidence; but I do not want to. Now, do you want me to make a finding of adultery against this womanf
“Mr. Hubbard:. No; I do not, Judge.
“The Court: Then why shouldn’t this case be settled?
“Mr. Fisher: We want a finding that Mrs. Joslyn has not been guilty of misconduct. I think the decree should find that neither Mrs. nor Mr. Joslyn has been guilty of adultery.
“Mr. Hubbard: I have been through this, Judge, so many times that I have no hope of settling anything in this case. The parties will agree but Mr. Fisher then kicks it over. We will never have anything here which is agreed to and I appreciate very much your Honor’s attitude in the matter and your Honor’s efforts to have the parties compromise this matter. The parties will reach an agreement and when Mr. Fisher subsequently states the terms, very little of the original understanding is left. It is an entirely different agreement.
“Mr. Fisher: I have tried throughout to adjust this matter, make a reasonable settlement for this woman, a mother of four children. All Mr. Hubbard wants to do is to scandalize this woman, drag her name down in dirt. Mr. Hubbard is the one that does not want any agreement.
“The Court: The parties in this case have agreed to settle. Mrs. Joslyn says that she is willing to accept whatever her husband is willing to offer and they have also agreed upon the custody provision. The only question remaining is the amount of attorney’s fees.
“Mr. Hubbard: That is Mr. Joslyn is to have the custody of the children each alternate week end and alternatively each year Mr. Joslyn is to have the children for the Christmas or Easter vacations and he is to have their custody during the summer.
“The Court: I do not think that Mr. Joslyn should have the children every other week end. It is not good for the children and it does interrupt the discipline in the home and Mr. Joslyn has conceded that point. The parties have agreed to all of the matters except there remains the question of attorney’s fees. I feel that the question of attorney’s fees should not stand in the way of there being a settlement in this case.
“Mr. Hubbard: I will not stand by and permit a decree to be entered here leaving Mr. Fisher to come in and show all the time and talk that has been expended by him in relation to this case. Our proposition is that Mrs. Joslyn is to have $100.00 a month. She is also to receive $100.00 for each of the children and Mr. Fisher is to have $1500.00 attorney’s fees in addition to the $1000.00 which has already been paid. If there is to be any settlement in this case it will have to include attorney’s fees.
‘ ‘ Mr. Fisher: It is not proper to have any question of attorney’s fees. I would not settle the case and have people around town say that I compromised my client’s case to get an attorney’s fee. I will not be in that position. I would be scandalized. People would say that I had thrown away or given away my client’s rights in order to get an attorney’s fee. The question of attorney’s fee will have to be left to be decided by the Court.
“The Court: You should be able to agree on attorney’s fees. At any rate, the question of attorney’s fees should not stand in the way of these people making a settlement.
“Mr. Hubbard: Judge, if this case goes on to its final conclusion, they will get no attorney’s fee, as Mrs. Joslyn cannot under any possibility ever obtain any relief, and under the law as it now stands, there is a decision on this particular section of the Statute, the Court cannot award her any attorney’s fees.
“Mr. Fisher: That is not so, why the wife is entitled to her attorney’s fee if she loses the case. She is entitled to just as much attorney’s fees if she loses the case as if she had won it. She is entitled to have her case prepared, have counsel try it and to be paid for it, and her counsel would receive the same amount if she lost her case as though she had won it. It is not material whether she has won or lost her case on the question of attorney’s fees.
“Mr. Hubbard: If Mr. Fisher is so sure of his ground on this provision, I submit then that we should have an understanding on the question as to whether Mrs. Joslyn is to be allowed an attorney’s fee, the Court should consider the matter as though the issues had been determined in favor of George B. Joslyn upon the complaint and counterclaim, and in fixing Mr. Fisher’s fee, if he is to have any, the Court will decide the matter as though Mr. Joslyn had won the case, and Mr. Fisher shall receive only such fee as would rightly have been allowed in this case had there been a decree of divorce entered upon the counterclaim.
“Mr. Fisher: That will be agreeable to me.
“Mr. Hubbard: If that is agreeable to Mr. Fisher, then we will agree upon everything, but I will insist that that provision will be inserted in the decree, and I will now write out the provision which will go into the decree.
“Thereupon Mr. Hubbard wrote the following:
“ ‘That in the determination as to whether any attorney’s fees shall be paid by the defendant, George B. Joslyn, to the plaintiff in addition to the $1000.00 already paid, the Court shall consider the matter as though the issues upon the complaint and upon the counterclaim had been determined in favor of George B. Joslyn’ and handed same to the Court.
“Mr. Hubbard: If that provision is inserted in the decree, then I shall agree to it.
“Mr. Fisher: Why that would make the entire decree invalid. It is all right with me except that would make the entire decree invalid. I don’t want to have the decree invalid. I don’t think it ought to be put in the decree at all.
“Mr. Hubbard: If the decree is entered it becomes res adjudicata as of its date and fixes the rights. If any decree is entered in this case and Mr. Fisher’s claim for attorney’s fee is left out as a matter to be subsequently decided, I want it definitely understood that this Court will fix his fees and that this Court will consider all of the evidence which has been offered, and that we shall be permitted to show Mr. Fisher’s relations with this woman. That is, Mr. Fisher’s relation with this woman was not that of attorney and client; that he was one of her paramours. If Mr. Fisher wants to leave the question of attorney’s fee out, I want to be in a position that the Court will go into and consider all of the equities in the matter.
“The Court: You shall have that right, and suppose I change this provision which you have written by striking out the word ‘shall’ and putting in the word ‘may’, and that can be inserted right in the decree.” (Italics ours.)

Thereupon Mr. Hubbard left the chambers and returned with defendant. ■ The following then occurred:

“Mr. Hubbard: We are prepared to offer $1500.00 for Mr. Fisher’s fees.
“Mr. Fisher: -1 will not accept any lump sum. I do not want to be put in the position of compromising my client’s interest merely for attorney’s fees, and for that reason I insist that the attorney’s fees shall be left out.
“Mr. Hubbard: We will agree that the question of attorney’s fees shall be left out of the settlement provided that the matter will be determined in the discretion of this Court. That' is if this Court will determine the equities in the matter, we will be content to leave it to the discretion of this Court. I want the decree to provide that the entry of the decree is to he entirely without prejudice as to the question of whether or not Charlotte C. Joslyn is to be entitled to any solicitor’s fees, and if any, the amount that she is to receive.
“During all of the conferences in the chambers, the Court made notes of the variou,s items.
“The Court: I will go out and read it into the record.” (Italics ours.)

The trial judge has certified that the foregoing statement as to what transpired in his chambers is a true and correct statement and we have no doubt that the certificate speaks the truth, in spite of the fact that counsel for plaintiff challenges the correctness of the statement. However, in our view this appeal can be decided upon what transpired in open court. It will be noted that what there transpired accords with what the trial court certifies took place in chambers.

Directly after the conferences in chambers the following proceedings were had in open court:

‘ ‘ The Court: Let the record show that a decree of divorce is granted the plaintiff, Mrs. Joslyn, on the ground of desertion, and that she be given custody of the children, subject to the following conditions: That the husband have the children during the summer vacation, that is, from the time that the school adjourns until it convenes in the fall, except that the children shall be returned to the mother at least five days before the fall term commences; that the defendant shall have the custody of the children every week end from —every Saturday from one to five o ’clock in the afternoon, and may have their sole care and custody every two months from Friday afternoon until Sunday evening. The plaintiff is awarded the sum of $100 a week for each child.
“Mr. Alvin Hubbard: A month, Judge, not a week.
“The Court: I am sorry. $100 a month for each child and the plaintiff is awarded the sum of $100 as alimony. You understand that, Mrs. Joslyn, $100 a month ?
“Mrs. Joslyn: Yes, your Honor.
“The Court: And you can’t claim any more at any time, you will be bound by that sum.
“Mr. Fisher: Oh, now, just a moment. We can’t agree to that, the last statement of the Court there. I assume that the award is going to be made and stops there, because that would require some concession on the part of the plaintiff which she isn’t prepared to make.
“The Court: What do you mean, stop there?
“Mr. Fisher: I mean the plaintiff must be left in the position in which the plaintiff finds herself after the Court has entered the order, without being asked to make any waivers or agreements or concession. I have just advised my client that in my opinion it is not possible for her now to forecast where she will be when the children have reached maturity and that she can’t make an agreement, effectively now, shouldn’t make an agreement now that runs twenty years or thirty years or fifty years into the future.
“The Court: She would be bound, Mr. Fisher. I thought that was understood.
“Mr. Fisher: It can’t be done by agreement; if the Court enters the order on his responsibility, I have said we would be glad to be bound by the Court’s finding. But when the Court turns to the plaintiff and asks for something more is when I have my difficulty.
“The Court: Well, that would be the sum, in any event. I would have to fix it now.
“Mr. Fisher: Well, I assume your Honor has fixed it.
“The Court: Yes.
“Mr. Fisher: But not in view of the plaintiff’s position. It is the Court’s own responsibility that the matter has been decided.
“The Court: All right, there will be $100 a month for the plaintiff. And the decree will further provide that in determining as to whether any fees shall be paid by George R. Joslyn, the defendant, in addition to the thousand dollars already paid, the Court may consider the matter as though the issues upon the complaint and upon the counter-claim had been determined in favor of George R. Joslyn.
“It is further agreed between the parties, by their respective solicitors, that the decree entered herein is without prejudice to either party relative to the solicitor’s fees to be awarded the plaintiff, if any, and that any evidence heretofore offered may be considered in fixing the plaintiff’s reasonable solicitor’s fees, if any.
“Now, is there anything further?
“Mr. Hubbard: There is the alternate; your Honor did not state that he is to have the children during the alternate vacations each year, one or the other.
“The Court: I beg pardon. •
“Mr. Hubbard: He was to have the children during either the Christmas or spring vacation.
“The Court: Oh, yes. And as regards the custody of the children, the defendant is to have the children during the Christmas holidays?
“Mr. Hubbard: One or the other, alternate each year.
‘ ‘ The Court: And what was the other ?
“Mr. Fisher: Easter.
“Mr. Hubbard: Easter.
“The Court: Or the Easter holidays.
“Mr. Fisher: Well, now, with regard to that final paragraph about ‘It is further agreed’, I understood if the Court is entering this order it would recite ‘ That it is further ordered’ and not agreed, as we do not intend to have an agreed order.
‘ ‘ The Court: Put it that way.
“Mr. Fisher: ‘It is further ordered that the decree entered herein is without prejudice’, and so forth.
“The Court: That that is my order. That is the last paragraph of the decree with regard to solicitor’s fees: ‘It is further ordered that the decree entered herein is without prejudice to the parties relative to the plaintiff’s solicitor’s fees, and that any evidence heretofore offered may be considered in fixing the plaintiff’s reasonable solicitor’s fees, if any.’
“Mr. Fisher: That makes the order not an agreed order, but the Court’s order.
“The Court: That is right. Now, is there anything further?
“Mr, Hubbard: We will bring in the decree tomorrow morning.
“The Court: That is all right.- I wish you would get the decree in here and all sign it.”
On Tuesday, October 1, 1940, at two o’clock p.m., the court convened pursuant to adjournment, when the following occurred:
“Present: Mr. Thomas Hart Fisher, Mr. Norman Crawford, Mr. Alvin Gr. Hubbard, Mr. Reese Hubbard, Mr. Leonard Brill.
“Mr. Hubbard: We have drawn a decree in accordance with the ruling which your Honor made yesterday.
“The Court: Are there any objections?
“Mr. Fisher: The only difference that I now notice between this decree and the one which the Court intended to enter, that I can find by glancing over it, is that there is not any provision for Mrs. Joslyn visiting the children at the farm in the summertime, and that one week during the summer is also eliminated. They sort of go together. I don’t know whether your Honor wants to enter that part of the order.
“Mr. Hubbard: When we had the discussion in there we were to return the children five days earlier, and we also waived our right to have them for week ends excepting for the two months. However, it is not our disposition, for instance, just to make it more complicated. We are not of a disposition to exclude Mrs. Joslyn from coming. Even the two weeks he had them we gave her an invitation and provided the place for her to stay, if she didn’t want to stay in the same house with Mr. Joslyn. Of course that is a standing invitation all the time we have them, if she wants to come there. The decree complies strictly with what your Honor announced. I have the transcript of it right here.
“The Court: Well, that is what he told me. He said she can come out any time.
“Mr. Hubbard: That is right.
“Mr. Fisher: And it is understood your Honor wishes her to have the right to the children for one week during the summer vacation?
“The Court: Well, she said something about wanting to come out there for a week.
“Mr. Hubbard: She can come any time she wants to, Judge.
“Mr. Fisher: .The discussion had to do with her actually having them for a week during the summer.
“The Court: Well I didn’t quite understand it that way, I thought, she wanted to come out there.
“Mr. Hubbard: She can if she wants to.
“Mr. Fisher: Well, of course, whether she wants to, I don’t know. She would want the right to visit them, and other things that she would want to have done.
“The Court: We talked about bringing them back a little sooner.
“Mr. Fisher: Mr. Hubbard has inserted in this decree a five day clause.
“Mr. Hubbard: Not less than five days.
“Mr. Fisher: Not less than five days.
“Mr. Hubbard: That is exactly what the —
“Mr. Fisher: That is what the Court said he wanted to do.
“The Court: I don’t think you are going to have any trouble about that.
“Mr. Hubbard: If she wants to come out there, Judge, and be with the children, there is no disposition on our part to keep her away or to make it inconvenient or unpleasant for her to be there, it is just the opposite. There was one letter when we took them before asking her to come out if she would like to.
“Mr. Fisher: It is a fact that Mr. Hubbard is right, Mr. Joslyn did write a letter inviting her this summer to come to the farm and see the children, if she wanted to do so.
“The Court: Why don’t you let it stand as it is? If you run into any trouble, about that, next year you can come in and modify it.
“Mr. Fisher: This is your Honor’s order and we want to follow your Honor on it. We are like anybody in court, we want your Honor to assume the responsibility of making the decision throughout.”

From the answer made by plaintiff in open court to the court’s direct question to her, it is clear that she agreed to the amount of $100 a month as alimony. That the trial court assumed, as he had a right to assume, that her counsel was interposing no objection to the amount of the alimony is also clear. Counsel for plaintiff now makes the somewhat bold statement that neither he nor his client agreed in open court to the payment of any definite alimony. In the proceedings in open court Mr. Fisher made no objection when the court stated that he would award plaintiff the sum of $100 a month as alimony. It was only when the court stated to plaintiff that she could not claim any more at any time that Mr. Fisher made the objection that plaintiff should not make an agreement then that would run twenty years, thirty years, or fifty years into the future. It is plain that counsel then had in mind that a change of circumstances in the future might warrant a change in the amount of alimony. But in open court proceedings he made no objection to the amount allowed. He now ■ states that plaintiff should be allowed not less than $1,500 a ■month in view of the assets and income of defendant, but in open court he did not state nor intimate to the trial judge that he wanted a hearing on Joslyn’s financial standing before the amount of alimony was fixed; nor did he offer any evidence touching that subject matter. Indeed, he stated that “if the court enters the order on his responsibility, I have said that we would be glad to be bound by the court’s finding.” Just before the decree was entered the trial court asked Mr. Fisher if he had any objections to the proposed decree, and the only objection he made was that there was no provision for Mrs. Joslyn’s visiting the children at the farm in the summertime. That objection was cleared up before the decree was signed. Mr. Fisher made no reference to the provision in the decree as to the amount of alimony. Upon the oral argument in this court,' one of the members of the court asked Mr. Fisher why, if he then intended to thereafter question the amount of alimony allowed, he did not fairly and frankly apprise the court of his real position, to which counsel replied that he felt that Mrs. Joslyn had won a great victory and that he thought it best to say as little as possible at the time. That counsel could not have intended at the time to thereafter question the amount of the alimony allowed is clearly shown by the fact that when the decree was entered there was no evidence in the record as to defendant’s assets and income. Plaintiff complains, in this court, that the portion of the decree relating to alimony for the support of plaintiff and her four children was entered “without any evidence in the record whatever of the property rights of the parties, of the standard of life of the plaintiff and defendant and their children, and the earning power and income of the defendant.” If counsel for plaintiff intended at the time to appeal from the order in relation to the alimony it would have been necessary for him to offer evidence as to the earning power and income of defendant. We feel impelled to state that the only reasonable inference that can be drawn from Mr. Fisher’s conduct is that he desired above all things a decree that would find his client not guilty of adultery, and that he was satisfied, for the time being at least, with the amount of alimony allowed plaintiff. The decree reserved jurisdiction to determine whether or not any attorney’s fees should be paid to plaintiff, and Mr. Fisher was so pleased with the great victory won for Mrs. Joslyn that he was satisfied to have incorporated in the decree a provision that in the determination of the question as to whether any attorney’s fees should be paid by defendant, to plaintiff the court might consider the matter of fees ‘ ‘ as though the issues upon the counterclaim had been determined in favor of George It. Joslyn.” It is not the practice in this state to award alimony to a wife, for her support, who has been found guilty of adultery. The instant claim as to alimony must be considered as an afterthought, for if we assume that counsel intended at the time to thereafter question the amount of the alimony then we must conclude that he was not honest in his conduct toward the trial court. Counsel knew, as he stated to this court, that plaintiff had won a great victory, but he also knew that that victory might be endangered if he then made the claim as to alimony that he now makes. We find from the record that plaintiff and defendant agreed as to the amount of alimony that should be allowed plaintiff and that her counsel acquiesced in the agreement.

As no motion was made to modify the decree within thirty days after its rendition the trial court was powerless to change the provisions in the decree as to alimony unless by agreement of the parties or unless plaintiff filed a petition setting up that there had been a change in the conditions of the parties subsequent to the entry of the decretal order. On November 8, 1940, plaintiff filed a petition asking for an increase in alimony. Defendant filed an answer alleging that the portion of the divorce decree relating to alimony was by agreement, that no change in the condition of the parties had occurred and that the court had no jurisdiction of the subject matter of the petition. It is unnecessary to set up in detail the allegations of the petition and the answer. On November 26, 1940, the court entered an order denying the petition of plaintiff for an increase in alimony and support. No appeal was taken from this order, and the matter of the petition and the order in reference thereto are not before us for consideration. As we have heretofore stated, plaintiff has appealed only from the portions of the decree entered October 1, 1940, relating to the alimony to be paid plaintiff and the support money to be paid her for the use of the four minor children.

A motion filed by plaintiff to strike certain portions of defendant’s additional abstract, brief and argument was reserved to hearing. The motion will be denied.

The portions of the decree of the superior court of Cook county of October 1, 1940, that are appealed from are affirmed.

Portions of decree of October 1,1940, appealed from affirmed.

Sullivan and Friend, JJ., concur.


text:
    Charles H. Mann, Assignee of Matthias H. Mann and Annie A. Mann, Appellees, v. City of Chicago, Appellant.
    Gen. No. 41,854.
    Heard in the second division of this court for the first district at the October term, 1941.

      Opinion filed June 19, 1942.
    Rehearing denied July 1, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Emmett I. Harrington and Barnet Fagen, Assistant Corporation Counsel, of counsel.
    Mason & Mason, of Chicago, for appellees; George A. Mason, of Chicago, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Matthias H. Mann brought an action to recover interest on a judgment entered in a condemnation proceeding. An amendment to the complaint was thereafter filed, which alleged that Charles H. Mann, by reason of an assignment from Matthias H. Mann, was the sole owner of the condemnation judgment, and Charles H. Mann was substituted as plaintiff. During the hearing of the cause Annie A. Mann, the wife of Matthias H. Mann, was “introduced as a co-plaintiff” with Charles H. Mann. There was a trial by the court without a jury and a judgment was entered in favor of Annie A. Mann and Charles H. Mann and against defendant, City of Chicago, in the sum of $2,059.37. Defendant appeals, contending that the trial court should have entered judgment in its favor as to the claim of Annie A. Mann and should have entered judgment in favor of Charles H. Mann, as assignee, in the sum of $1,029.69.

The complaint filed by Matthias H. Mann on February 15, 1934, alleges that on April 30, 1929, a condemnation judgment in the sum of $52,083 was entered in his favor and against defendant; that various partial payments were made on the judgment, and that on January 6, 1931, the balance was paid in full; that he was the owner in fee simple of the property condemned; that interest was not paid on the judgment. The complaint prays for judgment for interest on $52,083 for the period from April 30, 1929, to August 13, 1930, at which date $46,787 was paid on the judgment; prays for interest on the balance to September 17, 1930, at which time $1,171.50 was paid on the judgment, and for interest on the remaining balance to J anuary 6,1931, at which time defendant paid $4,124.50, the balance due on the condemnation judgment. Defendant’s answer, filed May 10, 1934, inter alia, denies that the condemnation judgment was in favor of Matthias H. Mann and avers that it was in favor of “the owner or owners of and parties interested in that part of the premises which was condemned;” and alleges that the balance of the judgment was paid to the Capital State Savings Bank, the assignee of Matthias H. Mann and Annie A. Mann, and that the Bank acknowledged receipt in full for all claims for damages by reason of the condemnation proceedings. On March 29, 1940, by leave of court, Charles H. Mann filed an amendment to the complaint, which alleges that on March 8, 1940, a written assignment was executed by Matthias H. Mann to Charles H. Mann; that the latter was the sole owner of the condemnation judgment, and he was substituted as plaintiff. On January 23, 1941, by leave of court, Charles H. Mann, as assignee, filed a second amendment to the complaint, introducing Annie A. Mann as co-plaintiff. This amendment alleges that Annie A. was the wife of Matthias H. and that Charles H., as assignee, and Annie A. were “the owners of all interest in the final judgment of condemnation.” Defendant filed an answer to the second amendment, which alleges that if defendant is liable for interest, in no event is it liable for more than interest on that portion of the judgment represented by the claim of Charles H., as assignee, and that Annie A. “ought not to have the aforesaid action against it, the defendant, because defendant says that the supposed cause of action did not accrue to the co-plaintiff, Annie A. Mann, at any time within five years next prior to the filing of the second amendment to the declaration herein.”

Most of the pertinent facts are stated in the pleadings. From evidence introduced at the hearing, it appears that on September 22, 1930, the Capital State Savings Bank paid $4,124.50 to Matthias H. and took an assignment from him and Annie A. for the balance, $4,124.50, then due on the condemnation judgment; that the net amount awarded Matthias H. and Annie A. in the condemnation proceedings was $33,661.50; that on August 13, 1930, the City paid $29,537 on account of the judgment; that because the City had not paid Matthias H. the full amount of the judgment he tried to prevent the City from opening the street at the place in question, but the officials of the Bank desired the improvement because of the benefit to the neighborhood and the Bank lent to Matthias H. and Annie A. the balance due upon the judgment, $4,124.50, without interest, and took an assignment from them for the balance due on the judgment, which balance was paid by the City to the Bank on February 2,1931. The property condemned was owned in joint tenancy by Matthias H. and Annie A., and she never assigned her interest to her husband. Charles H. was a son of the latter and Annie A. During the trial the court suggested that the son should get an assignment from his mother, and she made such an assignment on December 11, 1940, at which time the court ruled that Charles H. be allowed to introduce Annie A. as a co-plaintiff, and he was allowed to file the second amendment to the complaint. Over the objection of defendant, the plaintiffs were then allowed to introduce a revocation of the assignment of December 11, 1940.

Defendant contends (I), “The claims of Matthias H. Mann and Annie A. Mann for interest created separate causes of action;” and (II), “The claim of Annie A. Mann was barred by the Statute of Limitations and section 46 of the Civil Practice-Act does not apply.” In support of the contentions defendant makes the following statement of its position upon this appeal: “In the present case the original suit was begun by Matthias H. Mann for the entire amount of interest claimed due on a judgment paid by the City. He had a right to bring suit for his share of the interest claimed. He had no right to recover the entire amount. After the period had run against his wife, the court allowed the amendment to be made, making her an additional party plaihtiff. This was not merely an amendment to cure a defect or to substitute a proper party, but an attempt to assert a new and separate cause of action for the recovery of her claim for interest. The amendment was made after the statutory period had expired-. Her right to recover was barred since her action was separate and distinct. Payment to her husband alone of the full amount sought to be recovered would not be payment to her and, if not barred by the statute, she would have a right to recover her share in a separate action. The plaintiffs have attempted to inject a new cause of action by amendment under section 46 of the Civil Practice Act. While this section liberalizes the amending of pleadings, it has not gone so far as to deprive a defendant of the defense of the statute of limitations against a cause of action not asserted in apt time by the plaintiff. A construction of the section as made by the trial court deprives the defendant of the right to make a valid defense.”

The instant claim for interest arises solely by reason of the statute (Ill. Rev. Stat. 1941, ch. 74, par. 3, sec. 3 [Jones Ill. Stats. Ann. 67.03]). Interest on a judgment is not a part of the judgment nor can it be considered a part of the value of the land taken, for which the judgment was entered. (See Blakeslee’s Warehouses v. City of Chicago, 369 Ill. 480, 483, 484.) A claim for interest under a condemnation judgment is personal property. The present case must be considered the same as one in which claims for interest are made by two persons who are not husband and wife. Each of the plaintiffs had a separate claim for interest and each had a separate right to sue for his or her undivided share. Matthias H. had no right to sue for the full amount of the claim for interest in his own name because it is conceded that Annie A. never made an assignment of her interest to him. We do not understand that plaintiffs contend that Matthias H., under the original complaint, could have obtained a judgment for Annie A.’s share of the interest. Indeed, the record shows that the trial court and plaintiffs’ counsel came to the conclusion during the hearing of the cause that it was necessary to make Annie A. a co-plaintiff in order to obtain a judgment that would cover her share of the interest due. Her revocation of the assignment to her son, drafted by the able counsel for plaintiffs, contains the following: “I, Annie A. Mann, hereby revoke and cancel said purported assignment from me to Charles H. Mann, and declare that I am still the owner of an undivided one-half interest in said claim for interest on said condemnation judgment.” Charles H.’s waiver of her assignment contains the following: “I, Charles H. Mann do hereby relinquish and waive all my rights, if any, under and by virtue of said purported assignment, and consent to the revocation and cancellation thereof and consent to the entry of judgment in favor of said Annie A. Mann upon her claim for interest, as aforesaid.” We are of the opinion that defendant’s contention that the claims of Matthias H. and Annie A. for interest constituted separate causes of action, is a meritorious one. We further hold that there was no suit to enforce the claim of Annie A. for her share of the interest until the trial court allowed the filing of the second amendment, on January 23,1941.

. As to defendant’s contention (II): It is clear that Annie A.’s claim for interest was barred by the Statute of Limitations on the last mentioned date, when she was added as a party plaintiff, unless section 46 of the Civil Practice Act (Ill. Rev. Stat. 1941, ch. 110, par. 170 [Jones Ill. Stats. Ann. 104.046]) saves her from the operation of the statute. Plaintiffs contend that “the introduction of Annie as co-plaintiff did not introduce a new cause of action because Annie’s claim grew out of the same transaction or series of transactions as Matt’s cause of action. .The transaction was the condemnation of land in which both had a title or interest. . . . It is clear that Matt and Annie had not only a joint interest in the land but in its substituted compensation, and by the same token in the interest which accrued on the unpaid judgment of of condemnation.”

In Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, the Supreme Court states the purpose of section 46 as follows (pp. 229, 230): “Briefly summarized, section 46 permits any amendment of a pleading, filed in apt time, after the time limited for commencing suit to set up a cause of action on any claim which was intended to be brought by the original pleading, provided, only, that it grew out of the same transaction or occurrence, and it is not necessary that the original pleading technically state a cause of action, or that a cause of action set out in the amendment be substantially the same as any cause of action stated in the original pleading. The term ‘same transaction or occurrence, ’ so> used in the statute, means the same suit. These changes, together with the judicial construction of the prior statutes, evince the legislative intent to remedy the evils incident to the former legislation and to preserve canses of action against loss by reason of technical rules of pleading*. This is manifest from the concluding* language of paragraph 2 which specifically declares the purpose of preserving the cause of action.”

In Fitzpatrick v. Pitcairn, 371 Ill. 203, an action for wrongful death, begun against a railroad company when it was in the hands of receivers, the complaint named the railroad company as defendant. After the expiration of the one-year limitation period provided by the Limitations Act the plaintiff was permitted to amend the complaint by making the receivers defendants. In its opinion the court states (p. 204): “The question in this case is whether, in an action against an incorporated railroad company for damages on account of wrongful death, the receivers of the railroad company, who were such at the time of the accident and when the suit was begun, may, after the statutory limitation of one year for commencing suit, be added or substituted as defendants in place of the railroad company.” After a consideration of the question the court held (p. 210): “The suits at bar were not commenced against the receivers within the one-year limitation prescribed by the Injuries act. Substituting them as defendants after the limitation period is not within the purview of section 46 of the Civil Practice act.”

In In re Estate of Whipple, 285 Ill. App. 491, we held that a claim filed in the probate court for interest on a note could not be amended after the expiration of the one-year limitation provided for in the Administration Act by adding a claim for the principal of the note. There the claimant contended that section 46 of the Civil Practice Act permitted the amendment. As to that section we said (p. 498): “ This provision was evidently intended to. afford parties the right to take advantage of defects in form, such as the improper statement of a claim, but it was not intended co nullify the one-year limitation provided in the Administration Act and to permit amendments after the running of the statute, setting up entirely new causes of action.” The Supreme Court denied a petition for leave to appeal in that cause (see 285 Ill. App. xlviii). (See, also, First Nat. Bank v. Bolton, 288 Ill. App. 85, 97. Petition for leave to appeal dismissed, 291 Ill. App. xxiii; Nolan v. Sloan, 305 Ill. App. 71, opinion by Mr. Justice Fulton.)

Plaintiffs have cited a number of cases in support of their contention that the second amendment to the complaint does not state a new cause of action and therefore the Statute of Limitations does not apply. These cases, in our judgment, are not applicable to the situation presented by the instant record. Plaintiffs argue that the claim of Annie A. did not introduce a new cause of action because her claim grew out of the same transaction as the claim of Matthias H.; that “Matt and Annie derived their right to the accrued interest from the same source, namely, the unpaid judgment' of condemnation awarding compensation for taking their joint interests in the land and in the compensation which was substituted for the land.” We have heretofore referred to the case of Blakeslee’s Warehouses v. City of Chicago, in which the court held that interest on a condemnation judgment is not a part of it and that (p. 484) “the interest on the judgment cannot be considered a part of the value of the land taken, for which the judgment was entered.” We have also referred to the fact that the claim for interest is predicated solely upon section 3 of the Interest Act. We have heretofore stated that the original complaint involved only Matthias H.’s claim for interest, that it did not state a cause of action as to Annie A.’s claim, and that the second amendment added a new and different claim from the one stated in the original complaint. As defendant well states: “The practical effect of the plaintiff’s contention shows how untenable it is. In this case there are two claims involved, and the claimants happen to be husband and wife. If ten strangers were the owners of the land condemned and their claims for interest on the judgment grew out of the same transaction, nine of them could add their claims years after the limitation period had expired if one of them had begun a suit within the statutory period.”

Plaintiffs make the contention that the City knew when it filed its answer to the original complaint that Annie A. was entitled to a share of the interest but it did not invoke the Statute of Limitations and by its failure in that regard it misled plaintiff and lulled him to sleep; that this conduct of defendant amounted to an attempted fraud upon plaintiff and that the Statute of Limitations will not avail as an instrument of fraud. This contention and the argument in support of it hardly merit serious consideration. As a matter of fact, defendant, in its original answer, stated that the condemnation judgment was not in favor of Matthias H. alone but that it was in favor of “the owner or owners of and parties interested in that part of the premises which was condemned,” thereby warning plaintiff of the true situation. Until the second amendment to the complaint, which introduced the claim of Annie A., was filed defendant had no right to' plead the Statute of Limitations. Under section 22 of the Limitations Act (Ill. Rev. Stat. 1941, ch. 83, par. 23 [Jones Ill. Stats. Ann. 107.282]) the only concealment by the defendant that postpones the running of the statute is where the defendant “fraudulently conceals the1 cause of such action from the knowledge of the person entitled thereto.”

In Parmelee v. Price, 105 Ill. App. 271, the court, in speaking of section 22 of the Limitations Act, said (p. 282): “This is the only provision in the statute excusing strict compliance with its terms, on account of want of knowledge, and impliedly excludes want of knowledge arising from any other cause than the fraudulent concealment mentioned, as an excuse for not bringing suit within the time limited by the statute.” That case was affirmed by the Supreme Court in Parmelee v. Price, 208 Ill. 544, where the court said (p. 561):

“Section 22 of chapter 83 of Hurd’s Revised Statutes of 1901 provides: ‘If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards. ’
“It will be observed that to prevent the running of the statute it must be shown that the person liable to the action ‘fraudulently conceals the cause of such action. ’ No such fraudulent concealment is averred. The mere statement that the creditor had no knowledge of the existence of the cause of action does not amount to a statement that the person liable has fraudulently concealed the cause of action, and is not sufficient to prevent the application of the Statute of Limitations. Connor v. Goodman, 104 Ill. 365.”

In the instant case Matthias H. when he filed the original complaint had full knowledge of the rights of Annie A. in the matter of the claim for interest.

We hold that the claim of Annie A. Mann was barred by the Statute of Limitations.

Plaintiffs have seen fit to question the honesty of defendant in making the defense of the Statute of Limitations. The City, like any other defendant, has the right to interpose a defense under that statute and it seems to us that counsel for the City might well be criticized if they had failed to make that defense.

The judgment order of the circuit court of Cook county is reversed, and judgment is entered here in favor of Charles H. Maun, as assignee of Matthias H. Mann, and against City of Chicago, a municipal corporation, defendant, in the sum of $1,029.69; and as to the claim of Annie A. Mann judgment is entered here in favor of City of Chicago, a municipal corporation, defendant.

Judgment order reversed, and judgment here in favor Charles H. Mann, as assignee of Matthias H. Mann, and against City of Chicago, a municipal corporation, defendant, in the sum of $1,029.69; and as to claim of Annie A. Mann judgment here in favor'of City of Chicago, a municipal corporation, defendant.

Sullivan and Friend, JJ., concur.


author: Mr. Justice Sullivan

text:
    James B. McNally, Appellee, v. Chauncy Body Corporation, Appellant.
    Gen. No. 41,667.

      Heard in the second division of this court for the first district at the April term, 1941.
    Opinion filed June 19, 1942.
    A. H. Brown, of Chicago, for appellant.
    Nash, Ahern, McDermott & McNally, of Chicago, for appellee; Martin J. McNally, of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This is an action by plaintiff, James B. McNally, against defendant, Chauney Body Corporation, for damages for injuries to plaintiff alleged to have been caused by the negligent operation of an automobile by an employee of defendant. Pursuant to the verdict of the jury finding defendant guilty and assessing plaintiff’s damages at $1,825, the trial court entered judgment for said amount against the defendant. The latter appeals.

Defendant’s principal contention is that plaintiff was guilty of contributory negligence as a matter of law and that the trial court should have directed the jury to find the defendant not guilty. In its brief defendant asserts that “plaintiff’s own negligence was the cause of the accident and he is not entitled to recover any damages.” It has been repeatedly held that before contributory negligence can be said to have been established as a matter of law the conduct of the injured party must have been so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent (Illinois Cent. R. Co. v. Anderson, 184 Ill. 294; Lake Shore & M. S. Ry. Co. v. Johnsen, 135 Ill. 641; Chicago & E. I. R. Co. v. O’Connor, 119 Ill. 586). Unless there was no evidence presented which showed or from which it could be fairly inferred that plaintiff was in the exercise of reasonable care for his own safety at and immediately prior to the time of the accident, the question of contributory negligence was one of fact for the jury to determine. (Chicago City Ry. Co. v. Nelson, 215 Ill. 436; Lake Shore & M. S. Ry. Co. v. Ouska, 151 Ill. 232.)

Plaintiff’s theory of fact is as follows: He was the manager of a building in which the steam plant failed to function properly on the morning of January 28, 1936. He telephoned Joseph Brady, a steam heating contractor, and arranged to pick the latter up at his home in an apartment building at 348 W. 74th street. When McNally arrived in his automobile at the contractor’s place of residence, he found another car parked in front of the sidewalk leading from the curb to the entrance at the aforesaid address and he parked his car directly behind said car with the right wheels of his automobile immediately against the north curb of 74th street. Plaintiff blew his horn a few times to let Brady know that he had arrived. When Brady did not respond to the horn plaintiff alighted from Ms car on the south or street side thereof with the intention of going around the front of his car and using the walk that led from the curb into the building entrance and ringing Brady’s bell. McNally did not get out of Ms car on the north or curb side -thereof because there was snow and ice “piled up” on and along the curb and the parkway. 74th street was icy and slippery that morning. Before plaintiff alighted from Ms car he looked through Ms rear view mirror to the east and saw that there was no traffic coming from that direction and then he looked to the west and saw a car some distance away traveling east on the south half of 74th street, where it belonged. This car was driven by the son of the president of the defendant company and it was leading the way for a second car which was driven by an employee of defendant and wMch was being taken to defendant’s place of business for repairs. It was this second car that was involved in the accident. McNally looked to the west as he alighted from his car, but he did not see the second car either wMle he was sitting in the driver’s seat of his own car before he alighted or while he was alighting, because said second car was directly behind defendant’s first car and only a short distance therefrom, and was also traveling east on the south side of the street, where it belonged. After McNally alighted and was standing on the street immediately to the south of Ms car with part of his body touching same, defendant’s first car passed him at a safe distance. Then, for the first time, he noticed the second car wMch was then about ten feet to the west and skidding toward him with the front end thereof at about the center of the street and its rear end swinging in a northwesterly direction. According to plaintiff this car was appro acMng him at a speed of 30 miles an hour and before he had a chance to get out of its way or to do anytMng to avoid being struck by it, the rear end of that car struck Ms legs and the south side of his car. He was caught in a wedge between that car and his own and he and his car were dragged a distance of about 20 feet to the east. He remained upright for a part of that distance and then fell and was dragged on the ground.

The evidence in the record clearly supports plaintiff’s theory of fact and warranted the jury in finding the defendant guilty of the negligence charged and that plaintiff was not guilty of contributory negligence.

Defendant makes this statement in his brief: ‘ ‘ The plaintiff was guilty of negligence when he put himself into a place of danger as he stepped from his automobile on the left side, into the street, instead of getting out on the right side and onto the curb, for according to his own testimony there was nothing to prevent him from getting out on the curb side. Plaintiff had stopped his automobile next to and parallel with the curb, and the right side wheels of his automobile were up against the curb. Plaintiff was guilty of further negligence in failing to look for vehicles approaching and traveling along the street from the west, since if he did look and failed to see defendant’s automobile approaching from the west, he was not in the exercise of due care and caution for his own safety as he had an unobstructed view of the street two or three blocks west and in broad daylight.”

It will be noted that defendant states that plaintiff could have avoided the accident if he got out of the right side of his car onto the curb and that there was nothing to prevent him from so doing. Plaintiff testified that the reason he did not alight from the right side of his car was that there was snow and ice “piled up” on and around the curb and the parkway. Defendant concedes in his brief that “the streets belonged to the people and of course plaintiff had the right to step into the street, but in doing so it' was his duty to exercise due care and caution for his own safety.” In Goff v. College Hill Borough, 299 Pa. St. 343, the plaintiff therein was injured by a truck which approached and passed his car from the rear and which was traveling on the side of the street where it belonged. The plaintiff was held to have been guilty of contributory negligence under the facts in that case. The court said at page 346:

“We do not doubt his right to alight from his car into the street, but before doing so it was his duty to look for approaching vehicles. Here, plaintiff could have seen the near approach of the large truck coming along so close as to clear his car by only two feet, and stepping doW so near in its path was negligence.”

It is uncontroverted that plaintiff looked to the east before he got out of his car and saw that there were no vehicles coming from that direction. But defendant strenuously insists that there is no evidence in the record that plaintiff looked to the west before he got out of his car and that if he had so looked he would have seen the danger1 and been able to avoid it by remaining in his car. Defendant’s position in this regard is untenable. There is evidence in the record that plaintiff did look to the west, as well as to the east, before he got out of his car. McNally testified: “I looked in the rear view mirror and nothing was coming from the east. I saw the car driven by Chauney but he was on the other side of the road.” Chauney was the driver of the first of the two cars coming from the west and if, as plaintiff stated, he saw the car driven by Chauney approaching from the west on the south half of the street, McNally must have looked in that direction before he got out of his car. Plaintiff continued to look to the west as he was alighting from his car and he testified that he did not see the second car approaching from the west until just before it struck him, because it was immediately behind the first car and traveling directly in its path. Defendant seems to overlook the fact that there was no danger for plaintiff to apprehend as the two cars approached from the west on the south half of the street and it is conceded by defendant that that is where they were traveling. According to the testimony 74th street was from 30 to 40 feet wide. Therefore the distance from the center of the street to the north curb was from 15 to 20 feet. Plaintiff’s car extended south from the north curb about 6 feet and after he had alighted his body extended about 2 feet further south, leaving a distance between him and the center of the street of from 7 to 12 feet as he stood beside his car. Under the facts and circumstances in evidence, even though plaintiff had not looked to the west before getting out of his car, he had a right to assume that traffic coming from that direction would be and continue on the south side of the street. (Jones v. Standerfer, 296 Ill. App. 145.) Plaintiff did not place himself in or near the path of the car which struck him but was where he had a right to be. The first car coming from the west kept to the path it had been traveling and passed plaintiff at a safe distance, and as he stood beside his car the second car would likewise have passed him safely if it had continued to travel in the same path as the first car. However, the driver of the second car, while still on the south half of the street and when he was just a short distance west of where plaintiff was standing, carelessly and negligently applied his brakes with full knowledge that the street was icy and slippery and caused the rear end of his car to skid over onto the north half of the street, where it struck and injured plaintiff. Stevenson, the driver of the second car, testified that when he was “possibly ten or fifteen feet” away he first saw McNally standing beside his car and that “I can’t tell you exactly where he came from, but he appeared right there beside the car and my feet touched the brake and that was too bad. My hind end slipped off the street.”

Not only did the evidence show that plaintiff was not guilty of contributory negligence as a matter of law but it clearly and conclusively shows that he was in the exercise of due care and caution for his own safety at and immediately prior to the time he was injured and that the sole cause of the accident was the negligence of defendant’s driver.

Defendant contends that the trial court erred in admitting in evidence certain photographs of plaintiff’s leg as it appeared about two months after the accident. It urges that these photographs “tended to prejudice the jury” and “also had a bearing on the excessive verdict.” As heretofore shown the verdict was for $1,825 and we think under the evidence as to the nature and extent of plaintiff’s injuries that amount was not ■ excessive. The amount of damages awarded plaintiff certainly does not reflect sympathy or prejudice in view of the undisputed evidence that plaintiff was hospitalized 19 days; that he underwent two operations to drain the poison from the primary and secondary abscesses which developed as a result of his injuries; that he ran a high fever continuously for three weeks; that he suffered such severe pain that it was necessary to give him frequent injections of morphine ; that he lost 50 pounds of weight and was confined to his home and in the hospital for a total period of two months and was not able to attend to his business regularly until more than four months after the accident; and that his medical and hospital expenses amounted to $320.48.

Defendant’s contention that the trial court improperly admitted in evidence the photographs offered by plaintiff is without merit. Passing upon the admissibility of similar photographs in People’s Gas Light & Coke Co. v. Amphlett, 93 Ill. App. 194, the court said at page 205: “Complaint is made of the admission in evidence of photographs of appellee, taken soon after the injury, and shown by testimony to be correct representations of him as he appeared. We are of opinion that the evidence was competent. If the photographs showed the condition or appearance of appellee as it actually was, then the fact that such condition or appearance was calculated to awaken sympathy in the minds of the jury does not render the evidence incompetent. The test is the correctness of the photographs, and they were shown to he correct.” In Hoyt v. Chicago City Ry. Co., 166 Ill. App. 361, this court said at page 365: “We conceive of no reason why a photograph shown by the evidence to be a correct representation of a person, at a time when the issues in the case render proof of the personal appearance of such person necessary or competent, may not be introduced in evidence as properly as a photograph of a locality or of any inanimate object.”

Defendant contends that the court erred in giving to the jury four of the instructions requested by plaintiff. It would serve no useful purpose to quote these instructions and discuss them at length since they are all based upon facts in evidence and correctly state principles of law applicable to such facts.

Defendant finally contends that the trial court erred in refusing to give to the jury the following instruction tendered by it:

“If you believe from the evidence under the instructions of the court, that ordinary care on the part of the plaintiff for his own safety, required him to look for the purpose of ascertaining whether an automobile was approaching upon said 74th Street, before stepping from his automobile, and if you further believe from the evidence under the instructions of the court, that the plaintiff, if he had looked, could by the exercise of ordinary care have seen the automobile approaching upon said street in time to have avoided injury by the exercise of ordinary care for his own safety, and if you further believe from the evidence that the plaintiff did look and ascertain the approach of said automobile of the defendant and that he continued to alight from his said automobile at the time and place in question without having done anything in the exercise of due care and caution for his own safety, if you believe he did do so, and if you believe that such failure to do anything for his own safety under all the facts and circumstances as you find them from the evidence, under the instructions of the court, was negligence on his part and that he was struck and injured because of said negligence, then the plaintiff cannot recover in this action.”

This instruction was properly refused. It is not only misleading and confusing, but it does not properly state the law applicable to the facts of this case. We have heretofore pointed out that plaintiff did look to the west before he got out of his car and while he was alighting therefrom and there is no evidence in the record to the contrary. Whether he looked to the west or did not look in that direction before he got out of his car was immaterial under the facts and circumstances of this case. Before he alighted from his car there was nothing to be seen to the west that would warn him of danger because it is undisputed that both of the cars which were approaching from that direction were on the south half of the street, where they belonged, and had plenty of room to safely pass plaintiff who was standing in the street beside his car, where he had a right to be. As heretofore stated the first car did pass him safely but the second car did not because of the negligence of its driver. It must be remembered that there was no fact or circumstance in connection with this occurrence which indicated any possibility of danger until after plaintiff had alighted and was standing beside his car at least seven feet north of the center line of 74th street.

Defendant’s driver was not confronted -at any time with a sudden emergency because plaintiff was not in or near the path of his car and he had plenty of room to pass in safety if he had acted as an ordinarily careful and prudent man would have acted under the circumstances. It was plaintiff rather who was confronted with the sudden emergency because of the negligence of defendant’s driver. McNally was not afforded an opportunity in the exercise of ordinary care to avoid the danger with which he was confronted almost instantaneously.

For the reasons stated herein the judgment of the circuit court should be and it is affirmed.

Judgment affirmed.

Scanlan, P. J., and Friend, J., concur.