author: Mr. Justice Dove

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, Appellee, v. Rochelle Trust and Savings Bank. Haddassa Cleverstone, Intervening Petitioner, Appellant.
    Gen. No. 8,581.
    Opinion filed June 15, 1934.
    Fred E. Gardner, for appellant.
    Dixon, Devine, Bracken & Dixon, for appellee; Robert L. Bracken, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

On January 31, 1931, the Rochelle Trust & Savings Bank of Rochelle, Illinois, suspended business. At that time the bank had $10,962.44 in cash in its vaults, and $25,768.94 due it from its correspondent banks. Of this last amount $20,346.51 was deposited in the Continental Illinois Bank & Trust Company of Chicago. Subsequently a receiver was appointed and a bill to liquidate the bank was filed in the circuit court of Ogle county. Thereafter appellant, Haddassa Cleverstone, filed therein her intervening petition, alleging that on March 14, 1923, and for a long time prior thereto she had been a customer and depositor in said Rochelle Trust & Savings Bank herein referred to as the bank, and on that day purchased from the bank a note for $3,000, dated March 1, 1923, and due March 1, 1928, secured by a mortgage upon 240 acres of farm land near Rochelle. The petition further alleged that at the time she so purchased the note from the bank she was assured by the assistant cashier thereof that the mortgage which secured the payment. thereof was a first mortgage upon said land; that she relied upon such representations and assurances and thereafter received interest thereon to and including March 1, 1928; that on March 1, 1928, the same party who was assistant cashier of the bank in 1923 had become cashier of the bank and he prevailed upon appellant to invest $5,000 more, which she then had on deposit in said bank, to be evidenced by another note and secured by a new first mortgage upon said land; that relying upon the representations of the cashier, she surrendered her $3,000 note dated March 1, 1923, and received in lieu thereof a new note for $3,000 and for the $5,000 which she had on deposit in the bank she received another note for $5,000, both dated March 1,1928; that in addition to the oral assurances by the cashier that both of these notes were secured by a first mortgage upon the farm, she also received a written instrument signed by the bank and under its seal to the effect that the two notes delivered to her were secured by a first mortgage deed to the bank on the 240-acre farm.

The petitioner further alleged that these notes were not secured by a first mortgage, but that a prior mortgage had been executed to the bank by the owner of the land on March 1, 1920, to secure the payment of $24,621, and that the mortgage executed to secure the ■ notes which petitioner held was a second mortgage upon that land, and in addition to securing the two notes held by petitioner, aggregating $8,000, the second mortgage secured other notes for $2,500 additional. The petition then alleged that foreclosure proceedings had been instituted to foreclose the first mortgage by the owner thereof, Albert E. Eyster, and averred that there is no equity in said land after paying the amount due on the first lien and that the maker of the notes is insolvent. The prayer of the petition was that an order be entered finding that petitioner has a preferred claim for - the sum of $8,000, together with interest thereon from March 1, 1931.

The cause was heard by the chancellor and the evidence sustained the allegations of the petition. Mr. Berschied, the cashier of the bank, testified that at the time he sold appellant these notes he knew they were not secured by a first mortgage, although he executed a written instrument in the name of the bank that they were and delivered it to her at the same time he delivered to her the notes. The evidence further disclosed that on December 1, 1930, the bank, being indebted to the Continental Illinois Bank & Trust Company in the sum of $23,488.77, executed and delivered to the Continental Illinois Bank & Trust Company its note for that sum due 60 days after date; that thereafter and on January 12, 1931, the bank being further indebted to the Continental Illinois Bank & Trust Company for a further sum of $20,000, executed and delivered to it another note for that sum due 60 days after date; that thereafter and on January 19, 1931, the bank being further indebted to the Continental Illinois Bank & Trust Company for the further sum of $14,193.32, it executed and delivered to it another note for that amount due 60 days after date, and as collateral security for these notes, which aggregate $57,682.09, it lodged with the Continental Illinois Bank & Trust Company assets consisting of customers’ notes of the par value of $67,267.78 and bonds of the par value of $71,000. Bach of the notes which it executed and delivered to the Continental Illinois Bank & Trust Company authorized that bank to appropriate and apply at any time, any moneys which the bank had on deposit with the Continental Illinois Bank & Trust Company to the payment of the bank’s several notes. It further appeared from the evidence that immediately upon the closing of the bank, the Continental Illinois Bank & Trust Company, in accordance with the terms of the notes, applied the deposit of $20,346.51 as a credit upon the notes which it held, and subsequently collected sufficient of the customers’ notes which had been placed with it, to discharge the balance remaining due and thereafter returned the remaining* customers ’ notes and bonds to the receiver. The parties stipulated that the books of the bank disclose that there has never been less than $16,384.87 in the bank and owing to it from other banks since March 14, 1923.

The chancellor found that the amount due the petitioner was $8,591.92, allowed that sum to her as a preferred claim and provided that she should share pro rata with other preferred claims, and directed that all of the preferred claims be paid from the sum of $16,-384.87, the court finding that there has never been less than that amount in the bank or owing* to it from other banks since March 14,1923. Prom this order the intervening petitioner has brought the record to this court for review by appeal, insisting that it was error to limit the payment of her claim out of the sum of $16,384.87, insisting that her claim should have been paid pro rata with the other preferred claims from the general assets of the bank, or if not from the general assets, then the sum of $16,384.87 should have been increased $20,346.51, being the amount in the hands of the Continental Illinois Bank & Trust Company at the time the bank closed. The receiver has assigned cross errors chailenging the correctness of the ruling of the circuit court in allowing the claim as a preference and requesting this court to specifically pass upon the question whether the $20,346.51 in the Continental Illinois Bank & Trust Company is available for the payment of preferred claims.

This court is committed to the doctrine that false representations by a bank or its managing officers to the effect that notes sold by it are secured by a first mortgage, when in fact they are not, but are secured only by a second mortgage and that the security is worthless, create a constructive trust in favor of the purchaser, and that where such a constructive trust is created, it is a preferred claim against the bank, notwithstanding the fact that the trust fund had become so mixed with other funds in the bank as to lose its identity. People v. American Trust & Savings Bank, 262 Ill. App. 458. In Woodhouse v. Crandall, 197 Ill. 104, it was held that where a trust is established, it is not necessary that the money be identified in a proceeding of this character as the proceeding is not instituted to recover a specific thing, but to obtain a sum of money held in trust, and that it is the identity of the fund and not the identity of the money which needs to be established. It was further held that the character of a fund held by a bank in a fiduciary capacity is not changed by being placed with other moneys, and that it makes no difference if its identity as currency is lost by so mingling. It was also held that where moneys are so mingled the law will presume that the trustee took out its own money first before appropriating that which was impressed with a trust and which it had no right to take and that what remained belonged to the trust. In Macy v. Roedenbeck, 227 Fed. 346, cited in People v. American Trust & Savings Bank, supra, the court said: “Where a trustee mingles trust funds and makes payments out of the common fund, there is a sufficient identification of the remainder, not exceeding the smallest amount the fund contained subsequent to the commingling, because the legal presumption is that he regarded the law and neither paid out nor invested in other securities or property the trust fund, but kept it sacred. . . . The modern and more equitable doctrine permits the recovery of a trust fund . . . provided he can establish the fact that it is his property, or the proceeds of his property, or that his property has gone into it and remains in a mass from which it cannot be distinguished. ’ ’

What the Supreme Court said in People ex rel. Nelson v. Peoples State Bank of Maywood, 354 Ill. 519, is pertinent to the questions presented for decision by this record.

11 The insufficiency of the assets to satisfy all the demands made upon the insolvent gives rise to claims for preferences and the necessity for their adjudication. The real controversy in a case of this character is therefore between the claimants who seek priority in the order of payment on the one hand and the great body of creditors, usually represented by the receiver, on the other. All debts, in the absence of priorities prescribed by statute, are of the same rank or level, and a person who seeks a preference over his fellow-claimants in the distribution of an insolvent’s assets must show that he occupies some relation to the insolvent’s estate which differs from and raises him above the plane of a mere creditor. The law recognizes a claim for a preference actually based on a right of property in specific assets in the possession of an insolvent bank at the time it ceased to do business. In case of the misappropriation of such assets, a court of equity, when its jurisdiction is invoked by an appror priate action, will declare the wrongdoer a constructive trustee of the proceeds of his wrongful act. The constructive trust will attach to successive substitutions so long as they can be identified as the product, either as a whole or in part of the original assets, and the superior rights of a bona fide purchaser have not intervened. A trust, however, necessarily involves a relationship between two persons with respect to certáin property, and unless the claimant shows, in the case, for example, of an insolvent bank, that the receiver has possession of the whole or a part of the property or its proceeds, the claimant does not place himself in a relation to the insolvent’s estate which differs from that of an ordinary creditor and, as a consequence, no trust can be declared or enforced. ‘Tracing Technique in Bank Preference Cases,’ Prof. Wayne L. Townsend, 7 University of Cincinnati Law Review, p. 201.

“The true owner of a fund wrongfully withheld by another has a right to have it restored, not as a. debt due and owing, but because it is the property of the former. A change or alteration in the nature or character of the fund does not affect the relation existing between the parties. Since the right to reclaim a trust fund is founded on the right of property, and not on the ground of compensation for its loss, the beneficiary must be able to point out the particular property into which the fund has been converted. When he is unable to do so, the trust fails and his claim becomes one for compensation only and stands on the same basis as the claims of general creditors. It is as necessary to tracé the proceeds of a check or draft constituting part of a trust fund, as it is to trace the proceeds of any other species of personal property; and a trust fund traced into a bank account, if its identity can be established, and no superior rights of innocent parties have intervened, will be held for the benefit of the cestui que trust. The question in every case where it is sought to trace trust property is whether it can be identified in its original or altered form.

“The classic statement of the foregoing rule by the Supreme Court of Pennsylvania in Thompson’s Appeal, 22 Pa. St. 16, was adopted by this court in Union Nat. Bank of Chicago v. Goetz, 138 Ill. 127, at page 135: ‘Whenever a trust fund has been wrongfully converted into another species of property, if its identity can be traced it will be held, in its new form, liable to the rights of the cestui que trust. No change of its state and form can divest it of such trust. So long as it can be identified, either as the original property of the cestui que trust or as the product of it, equity will follow it, and the right of reclamation attaches to it until detached by the superior equity of a bona fide purchaser for a valuable consideration without notice. The substitute for the original thing follows the nature of the thing itself, so long as it can be ascertained to be such; but the right of pursuing it fails when the means of ascertainment fail.’ It follows that a receiver of a bank in which a fund impressed with a trust was deposited cannot be required to repay it in preference to the claims of general creditors, unless the trust fund can be identified, or traced into some other specific fund or property. (Citing cases.)

“Formerly the blending of trust money with the money of the trustee was permitted to defeat the beneficiary’s interest and to compel him to stand as a mere unsecured creditor. This rule had its basis in the fact that money was not earmarked and for that reason could not be recovered in specie. Later authorities have declared that, in the case of blended moneys in a bank account reduced by withdrawals from time to time, it will be presumed that the sums withdrawn were from moneys which the trustee had the right to expend in his own business and that the balance remaining includes the trust fund he has no right to use. (Knatchbull v. Hallett, 13 L. R. Ch. Div. 696; Central Nat. Bank v. Connecticut Mutual Life Ins. Co., 104 U. S. 54; Smith v. Mottley, 150 Fed. 266; Board of Com’rs of Crawford County v. Strawn, 157 id. 49.) This presumption, it is obvious, may be rebutted by. evidence. It follows from the rule thus declared that, if at any time during the currency of the mingled account, the withdrawals leave a balance less than the trust money, that fund must be regarded as dissipated except as to this balance, and deposits subsequently added to the account from other sources may not be attributed to the trust fund. (Board of Com’rs of Crawford County v. Strawn, 157 Fed. 49.) The enforcement of this aspect of the rule prevents unwarranted preferences in the distribution of the assets of insolvent banks and its justice is apparent. General creditors can have no complaint if that is returned to which neither the bank nor the receiver ever had title.”

A court of equity in order to protect one who has suffered from a fraud such as was practiced upon appellant by the unprincipled cashier of this bank raises a trust ex maleficio and permits the person defrauded to recover the specific money which went into the assets of the bank so long’ as that money can be traced. From the respective dates the bank received this $8,000 from appellant it held it in the capacity of a trustee. It was not earmarked but mingled with the other moneys of the bank. Appellant has not traced any part of it in specific property or securities or assets which came into the hands of the receiver. Under the authorities which declare that where trust money is blended with other moneys of the bank it will be presumed that the sums withdrawn were from moneys which the trustee had a .right to expend and that the sum remaining includes the trust fund, appellant is entitled to share pro rata with other preferred creditors in the money which actually came into the hands of the receiver, which in this case was $16,384.87. The money to the credit of the bank in the Continental Illinois Bank & Trust Company never reached the hands of the receiver and there is no evidence that during the period beginning March 14, 1923, and ending with the closing of the bank on January 31,1931, there has been at all times more than said sum of $16,384.87 cash on hand and due from banks and for that reason the lower court correctly fixed that amount from which all preferred claims should be paid and directed that appellant should share pro rata with other preferred creditors.

The order appealed from is affirmed.

Order affirmed.


source: Caselaw Access Project

author: Mr. Justice Davis

license: Public Domain

text:
    R. E. Mitchell and Carl Schultz, Trading as Mitchell and Schultz, Appellees, v. George Fox and Charles M. Thomson, as Trustee of the Chicago and Eastern Illinois Railway Company, Appellants.
    Gen. No. 8,815.
    Opinion filed June 15, 1934.

      Graham: & Dysert and Acton, Acton & Baldwin, for appellants; K. L. Richmond and W. M. Acton, of counsel.
    Lewman & Carter, for appellees.
   Mr. Justice Davis

delivered the opinion of the court.

On May 4, 1933, R. E. Mitchell and Carl Schultz, doing business as Mitchell & Schultz (appellees), brought an action of trover against George Fox (appellant) in the circuit court of Vermilion county. On September 6, 1933, leave was granted plaintiffs to add additional parties defendant, and Charles M. Thomson, receiver of the Chicago & Eastern Illinois Railway Company, was added as a party defendant. Thomson filed a plea in abatement, setting forth that he was named and called Charles M. Thomson, trustee of the Chicago & Eastern Illinois Railway Company, a corporation, under and by virtue of an order of the District Court of the United States for the Northern District of Illinois, Eastern Division, in the matter of the Chicago & Eastern Illinois Railway Company, debtor, as provided under sec. 77, chap. 8 of the Act of Congress relating to bankruptcy; and that he was not named or called receiver.

An amended declaration in trover, consisting of one count in common law form and claiming damages in the sum of $5,000, was filed by plaintiffs, to which declaration each of the defendants filed a plea of the general issue. Upon a trial of said cause the jury rendered a verdict finding the defendants guilty and assessing plaintiffs ’■ damages at $1,750. Judgment was entered upon this verdict and the defendant, Thomson as trustee, was ordered to. pay said judgment in due course of administration of trust assets. From this judgment the defendants prayed a joint and several appeal to this court.

The evidence discloses that the Chicago & Eastern Illinois By. Co. leased to Mitchell & Schultz a tract of land at Brewer Station, in Vermilion county, and being a part of its right of way, for a bulk oil plant for a period of five years from October 1, 1929, at a rental of $26 per annum. Under the terms of this written lease either party could terminate the same upon 30 days’ notice in writing, and at the expiration of the lease all rights of lessees to the premises ceased and the lessees were required to remove from said premises, before the expiration of said 30 days, all buildings and property on said premises, and if not so removed the lessees conveyed the same absolutely to the lessor.

."When plaintiffs took possession under the lease they erected thereon three storage tanks, a warehouse, pump house and other structures. They ceased to carry on their business on July 15, 1932, and defaulted in the payment of rent due. The defendant railway company introduced evidence of the service of a written notice upon the plaintiff, Mitchell, to the effect that the railway company had elected to terminate the lease and notified plaintiffs to quit and deliver up possession of said premises in 30 days. Mitchell denied that any such notice was served upon him.

On March 31, 1933, the railway company sold the plant to the defendant, Fox, who removed the same from the premises. Shortly thereafter the railway company filed its petition in the United States District Court, under sec. 77, chap. 8 of the Act of Congress relating to bankruptcy, and the defendant, Thomson, was later appointed trustee in bankruptcy. The alleged conversion of the property took place before the petition in bankruptcy was filed and before Thomson was appointed trustee.

The defendants contend that there is a misjoinder of parties and that there can be no joint liability between the defendant, Thomson, as trustee, and the defendant Fox. Plaintiffs assert that the defendants are estopped from claiming the defense of misjoinder because they did not plead the same in abatement.

The general rule is that the nonjoinder or misjoinder of parties in an action ex delicto is not available as matter of abatement, nor can advantage be taken of it in any way. The injured party may sue one or more or all of the several joint wrongdoers and recover against as many as the proof shows are liable. Tandrup v. Sampsell, 234 Ill. 526. The right of a plaintiff to maintain trover is put in issue by a plea of not guilty and this plea will admit of almost any defense, unless the same happened after the cause of action accrued. In the case of Tandrup v. Sampsell, supra, an action on the case was brought against the North Chicago Electric Railway Co. and the receivers of the Chicago Union Traction Co. for personal injuries. The facts showed that the injuries were received through the negligence of the receivers and the other defendants. The court held: “The rule that prohibits joining the administrator of the joint obligor with the survivors is equally applicable to actions against the surviving joint tort feasors and the administrator of a deceased wrongdoer. (Dicey on Parties to Actions, rule 100, p. 457.) In this regard both classes of cases are subject to the same rule. But there is a distinction to be kept in mind between a receiver of a going concern and an administrator of a deceased person. Receivers who in the discharge of their duties become liable, jointly and severally, with others, either in contract or tort, assume the liability of original parties in both aspects, whereas an administrator of a deceased person who is called upon to answer for the debt, default or wrong of his intestate has only a several liability resting upon him.”

In the case under consideration the alleged conversion took place before the petition in bankruptcy was filed and before the trustee was appointed. The tort, if any, was committed by the railway company and not by the trustee in the operation of the road; consequently there can be no joint liability of the trustee with the defendant Fox. The same rule which applies to receivers must apply to trustees in bankruptcy, as the United States District Court has sole jurisdiction of the administration of the estate of the bankrupt and of all claims provable in the bankruptcy court. Plaintiffs cannot recover against Thomson, trustee, and Fox jointly as there is no joint liability.

In 23 R. C. L., sec. 93, at page 85, it is said:

“By the weight of authority a receiver is not liable for a tort committed by the corporation prior to his appointment, and hence is not a proper party in an action to recover damages therefor. . . . The negligent acts or wrongs committed by the corporation, before the appointment of the receiver, are independent transactions, for which the corporation alone is responsible. ’ ’

In Emory v. Faith, 113 Md. 253, the court held:

“It is settled, we think, by all the well-considered authorities that an action at law for personal injuries sustained by the alleged negligence of a corporation, prior to the appointment of a receiver, cannot be maintained against the receiver subsequently appointed. In other words, a receiver is not liable for a tort committed by a corporation prior to his appointment. ’ ’ The same rule is announced in many other jurisdictions, and is very forcibly stated in Finance Co. of Pennsylvania v. Charleston, C. & C. R. Co., 46 Fed. 508, in passing upon an application for leave to sue the receiver for personal injuries sustained before his appointment.

< í There can be no doubt that a receiver is responsible for personal injuries suffered through the negligence of his employees during the receivership. It is equally clear that neither he nor the funds in his hands arising from the earnings of the road under him can be held responsible for wrongs committed before any receiver was appointed. The proper course for the petitioner is to bring his action against the company. But he cannot have the sanction of this court for a suit against the receiver upon a cause of action for which, as such, the receiver cannot be responsible. The leave asked is refused.”

From the record in this case it appears that Thomson, trustee, was improperly joined as a party defendant, and that plaintiffs have no cause of action against him and for that reason the judgment of the circuit court is erroneous. Judgment reversed and cause remanded.

Reversed and remanded.


text:
    John H. Sullivan, Appellee, v. Callie Hargis Sullivan, Appellant.
    Gen. No. 8,823.

      Opinion filed June 15, 1934.
    Rehearing denied July 17, 1934.
    Wilbur E. Wicks, for appellant.
    Jinkins & Jin kins, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

August 5, 1932, appellee filed a bill in the circuit court of Vermilion county, Illinois, seeking a divorce from appellant, and alleged that she wilfully deserted and absented herself from him without any reasonable cause for the space of one year and upward preceding the filing of his bill.

Summons issued and was returned showing that appellant was not found in Vermilion county. On the 5th day of August, 1932, appellee filed an affidavit, in which it is alleged that appellant is a nonresident of the State of Illinois; that on due inquiry she cannot be found within the State, or that she is concealed within the State so that process cannot be served upon her; that upon diligent inquiry he has ascertained, and so states the fact to be, that her last place of residence and address was and is Webb City, Missouri, and caused publication to be made of the pendency of said suit, and on August 12, 1932, the clerk of said court made and filed a certificate of mailing notice to appellant at Webb City, Missouri, and proof of publication of notice was made and filed on October 7, 1932.

On October 11, 1932, appellant was defaulted, hearing was had upon the bill and a decree entered dissolving the marriage between said parties and declaring the same null and void.

On May 18, 1933, appellant filed her petition in said court, alleging that at the October term, A. D. 1932, appellee exhibited his bill of complaint against appellant and, on making an affidavit of nonresidence of appellant, caused publication to be made of the pend-ency of his suit for divorce, and that on October 11, 1932, at the October term of said court, a decree pro confesso was entered against appellant; that she had not been summoned, or served with a copy of the bill of complaint, or received a notice of the pendency of this suit, required to be sent her by mail by the clerk of this court, and had received no notice in writing within 90 days of such decree; that said decree is fraudulent as to your petitioner, and is based upon perjured testimony; that petitioner did not wilfully desert complainant, and praying that the court upon a hearing on said petition vacate said decree of divorce and grant her leave to answer the bill of complaint and make a defense.

On July 14, 1933, appellee filed an answer in which he denies the allegations of the petition and prays that the same be dismissed. On September 6, 1933, after a hearing upon said petition and answer the court denied the prayer of the petition, and this cause is here on appeal from the decree of said court.

Appellant filed affidavits in support of her petition, in which she stated that she is a resident of Webb City, Missouri, and that she has resided there practically all of her life; that appellee knew that she had resided there for several years past and also knew her street address, where they lived together as husband and wife until March, 1928, when he left to go to the Veterans’ Hospital at Kansas City, Missouri, for treatment and remained there for a period of about three years, and then left for a Veterans’ Hospital at Hines, Illinois, where he continued to take treatment; that appellee is a totally disabled veteran of the World War, and that when he left for the hospital there was no suggestion or intimation that he was going to leave appellant permanently, as he occasionally came home and remained for a time and then returned; that appellant was with him for several months in Kansas City, Missouri, and was in correspondence with him thereafter relative to his physical condition.

Appellant also states that although she has resided in Webb City, Missouri, practically all of her life, and was well known by the postmaster and the postal clerks and carriers, she never received through the United States mail at Webb City, Missouri, any notice of the pendency of a divorce suit brought against her by her husband in the circuit court of Vermilion county, Illinois, and had no notice that he had filed a suit for divorce, until advised some months later by the Veterans’ Bureau discontinuing her compensation as the wife of appellee by reason of his having been divorced from her; that she was never summoned or served with a copy of the bill of complaint or received any notice whatever of the pendency of said divorce bill in Vermilion county, Illinois, on behalf of her husband, and received no notice in writing from anyone at any time concerning' the entry of said decree; that after she heard from the Veterans’ Bureau that her husband had secured a divorce she did not believe the information so given her by said Veterans’ Bureau to be true, as her husband had previously tried to secure a divorce from her without success, and she had received similar reports prior to this report which were false; that immediately after receiving such advice from the Veterans’ Bureau that her compensation had been stopped, she inquired of various clerks of courts in Illinois, including Cook county, and finally ascertained that a divorce had been granted in Vermilion county, Illinois.

She further states that she was married to appellee on April 2, 1918, and that in 1921 he entered the Hospital at Kansas City, Missouri, and that she accompanied him; that in 1928 he suddenly left Webb City, Missouri, where he resided, for the Veterans’ Hospital at Kansas City, Missouri, but that she did not go with him, but expected him to return as on previous occasions; that she failed to hear from him until July, 1931, when he returned home and informed her he had been in a Veterans’ Hospital in Illinois, near Chicago, but did not state where; that he intended to remain in the hospital in Illinois until they gave him his permanent total rating, and that was the reason he was there; that when he had the total permanent rating he would be home, and that the next day after the conversation, which was sometime in the month of July, 1931, he left home and she did not hear from him personally after that time; that there never was any desertion on her part, but that he left her and never returned; that she heard that her husband was in the Veterans’ Hospital, at Hines, Illinois, and wrote said hospital and the hospital replied that her letters would Tbe forwarded to appellee, and she never received any reply from him; that she never knew that he was in the Soldiers’ Home at Danville, Illinois, until long after the divorce was granted when Mr. M. B. Lively, her attorney of Webb City, Missouri, after extensive inquiry from various clerks of courts in Illinois and elsewhere, finally learned, several months after the divorce was granted, that appellee had been in the National Soldiers’ Home, in Danville, Illinois, and that he had secured a divorce in Vermilion county; that she received the following letter, dated November 11, 1932, from the Veterans’ Administration at Hines, Illinois:

“Mrs. Callie Sullivan,

215 South Oronoco St.,

Webb City, Mo.

“Dear Madam:

“Please make payment of $20.32 by'postoffice money order, draft, or check, payable to the Treasurer of the United States, and mail to Disbursing Officer, Veterans’ Administration, Hines, Ill., attaching the enclosed copy of this letter to your remittance.

“Apportioned Award of Disability Compensation to you is discontinued October 10,1932, day prior to your divorce from the above named veteran. As payment at the rate of $30.00 per month has been made thru October 31, 1932, there is an overpayment of $20.32 on your Award.

“For the Manager,
(.Signed) E. F. McKee.
E. F. McKee,
Accountant,
Hines, 111.”

That this letter is the first advice or intimation received by her that her husband might have secured a divorce from her for the reason that she had not secured a divorce from him, and that her compensation would not have been stopped unless he had secured a divorce from her; that she did not know where her husband was residing at the time she received the letter; that she answered said letter, and her answer was as follows:

“Webb City, Missouri,
November 16, 1932.

“Veterans Administration,

Hines, Illinois.

“Dear Sirs:

“I have your letter of November 11th, advising that I should return a proportionate of my award of compensation and asking me to return your $20.32 as an over-payment.

“This will advise you that I have never obtained a divorce from John H. Sullivan and I have not been able to find where he has made application for divorce from me or the same has been granted. If you know of such petition for divorce or place and date where it was granted please advise me as I never received any notice of such a proceeding and would have contested it had I been notified. I contend I am entitled to the award as allowed me. You seem to be of the impression that I was granted a divorce from Mr. Sullivan which is not correct.

“About two or three years ago I had a similar experience claiming I had a divorce from John H. Sullivan but it proved to be false as this one is.

“Yours respectfully,
Mrs. Callie Sullivan,
215 South Oronogo,
Webb City, Mo.”

That she received no reply to her letter, and that she also wrote to the clerks of the superior and circuit courts of Cook county, and received replies to the effect that no such case was filed or divorce granted.

She finally learned through her attorney, on February 27, 1933, that her husband secured a divorce from her in the circuit court of Vermilion county, Illinois, and this was the first actual knowledge that she ever had as to a divorce having been granted. She thereupon retained counsel in Illinois, who advised her of her rights in the matter. Appellant filed several affidavits made by persons other than herself, in support of her petition.

Appellee filed an affidavit in support of his motion to dismiss the petition, in which he states that early in November, 1932, he received a letter from his former wife in which she stated that she had received a letter from the Veterans’ Administration notifying her of the granting of the divorce in said cause and that he sent the same to the office of his solicitors, and that Samuel V. Jinkins, one of his solicitors, read said letter and returned it to appellee with instructions to retain it but that the same has been lost. Another affidavit filed by appellee was made by Etta Quance, of Carroll county, Arkansas, stating that she had lived at Dan-ville, Illinois, and on or about the fifth day of November, 1932, was in the home of appellee when he received a letter from Callie. H. Sullivan in which she stated that she had received the newspaper clipping warning of a divorce suit which was pending. One of his solicitors, Samuel V. Jinkins, also made an affidavit that on Monday, November 7, 1932, Irene Sullivan, in company with another lady, brought to his office a letter purporting to be from Callie H. Sullivan, from Webb City, Missouri, addressed to appellee in which the writer made reference to this divorce proceeding.

The statement contained in the affidavit of appellee, in reference to receiving a letter from his wife, was denied in the affidavit filed by appellant and the record discloses that the letter written by the Veterans’ Administration was not dated until November 11,1932.

We have carefully considered all of the evidence introduced on the hearing and are of opinion that it discloses that appellant, who was served by publication of notice of the commencement of the divorce suit, was not served with a copy of the bill and did not receive the notice required to be sent her by mail by the clerk of said court, and was not otherwise brought into court, and that after entry of said decree she never received any such notice in writing, as is contemplated by Statute, of such decree within ninety days prior to the filing of her petition herein. Section 19 of the Chancery Act as amended in 1931 (Cahill’s Ill. Rev. St. 1931, ch. 22, 1f 19) provides in part, with reference to service by publication, as follows: “When any final decree shall be entered against any defendant who shall have been served by publication with notice of the commencement of the suit and who shall not have been served with a copy of the bill, or received the notice required to be sent him by mail, or otherwise brought into court, and such person, . . . shall within ninety days after notice in writing given him of such decree, or within one year after such decree, if no such notice shall have been given as aforesaid, appear in open court and petition to be heard touching the matter of such decree, etc. ’ ’

It is contended by appellee that appellant had notice of the decree by the letter written by the Veterans’ Administration, at Hines, Illinois, more than 90 days prior to the filing of the petition herein by appellant, and for that reason she is not entitled to the relief sought.

This letter in no way informed appellant as to what court entered the decree of divorce, and from the letter one would understand that appellant obtained the decree. This is not such a notice in writing as is necessary under the statute. The facts in the case, disclose that such letter was useless so far as protecting her rights, as with all of her inquiry and that of her counsel she was unable to find in what court and in what state or county the suit was instituted and decree rendered for a period of over 90 days after receipt of the same. Under a former statute, which was like the present one except as to the time in which a petition might be presented, the Supreme Court in the case of Smith v. Hunter, 241 Ill. 514, in its opinion held: “It also appears that after the decree was entered in that case the executor wrote Hugh N. Greider, whose residence he ascertained subsequent to the entry of the decree, a letter, in which he notified him of the result of the litigation in the case of Correll v. Greider et al. in very general terms, and it is said that Greider was bound to take steps within one year from the date and receipt of such letter, under the provisions of section 19 of the chancery code, to open up said decree and protect his rights in said lands or he would be bound by said decree, and as more than one year had elapsed subsequent to the entry of said decree before the execution of the contract between Smith and Hunter, the title of Smith was good as against Greider. We do not agree with this contention. The statute provides that a person who has not been served with summons or by a copy of the bill, and who has not received the notice required to be sent him by mail in case of publication, shall have three years in which to petition the court in which the case is pending, to open up said decree and to allow him to defend, unless he has been notified in writing of the entry of said decree, in which case he must file his petition to open up the decree within one year from the receipt of such notice. The notice required to be given a defendant served by publication who has not received the notice required to be sent him by mail, in order to bar his rights in one year, is of great importance to a defendant who has been served by publication but not received actual notice of the pendency of a suit, and we think must be something more than a letter written him by a co-defendant which informs him, in general terms, of the result of the litigation to which he has been made a party, but of which he has received no actual notice until a decree has been entered against him barring him of all his rights in the subject matter of the litigation. (Lyon v. Robbins, 46 Ill. 276; Southern Bank of St. Louis v. Humphreys, 47 id. 227; Sale v. Fike, 54 id. 292; Martin v. Gilmore, 72 id. 193.) We are of the opinion that the letter written G-reider by Tomlin did not have the effect to limit the time in which Greider might apply to the circuit court, under sec. 19 of the chancery code, to have his rights in the subject matter of said litigation adjudicated and determined. ’ ’

It is also contended by appellee that the petition to set aside the decree and to permit appellant to answer, under the provisions of sec. 19 of the Chancery Act, Cahill’s St. ch. 22, jf 19, is addressed to the sound discretion of the court, and that one seeking such relief must not only show diligence in protecting his rights but that he has a meritorious defense.

That is the rule where one has been served with process and for some reason fails to appear and answer, and for that reason is defaulted; but sec. 19 was enacted for the benefit of one who was not served with process and had no written notice that a decree had been entered.

When a final decree is entered against a defendant and it is made to appear from the evidence that such defendant was served by publication with notice of the commencement of the suit, and was not served by a copy of the bill and did not receive the notice required to be sent him by mail, or was not otherwise brought into court, the court has no discretion but must, if it shall appear that such decree ought not to have been made against such defendant, either set the same aside, or alter or amend it as shall seem just, and the only diligence required is that fixed by sec. 19, viz.: That he shall within 90 days after notice in writing given him of such decree, or within one year after such decree, if no notice shall have been given as aforesaid, appear in open court and petition to be heard touching the matter of such decree.

Every person is entitled to an opportunity to be heard before his rights are finally determined, and in order to protect those who are served by publication and have had no notice of the pendency of the proceeding in which he is a party defendant, this section 19 of the Chancery Act was enacted, and should be so construed as to give all who bring themselves within its provisions a right to defend. In the case of Northern Trust Co. v. Sanford, 308 Ill. 381, 395, the court held: “Provisions similar to those in sec. 19 have been enforced in this State ever since 1827. (Rev. Code of 1827, p. 88; ibid, 1833, p. 118; Rev. Stat. 1845, chap. 21, sec. 15.) Said acts, including section 19 of the present Chancery act, have been construed at all times by this court to the effect that a decree entered against a nonresident defendant served by publication is provisional, interlocutory and conditional and not final or conclusive, and the decisions show that it was not the intention of any of those acts that such defendant should be condemned without being heard, or that he should lose any rights guaranteed him under the law when he makes proper application to answer and to be heard. (Southern Bank of St. Louis v. Humphreys, 47 Ill. 227; Seymour v. Bailey, 66 id. 288; Martin v. (Gilmore, 72 id. 193; Methodist Episcopal Church v. Field, 135 id. 112; Smith v. Hunter, 241 id. 514; First Congregational Church v. Page, 257 id. 472; Harter v. Kernochan, 103 U. S. 562.) This court has also held that until finally confirmed under such a proceeding as the present one, or until three full years have expired after the entry of the decree, the decree is simply provisional or interlocutory and not final; that the Statute of Limitations does not begin to run until three years have expired, and that a defendant may prosecute a writ of error or a bill to impeach the decree within the time allowed by law, counting from the time the three years allowed to defend have expired. (Lyon v. Robbins, 46 Ill. 276; Sale v. Fike, 54 id. 292.)”

We are of opinion that the court erred in refusing to grant the prayer of the petition. Appellant has, by her petition, brought herself within the terms of this statute and is, therefore, entitled to be heard in defense of this action. If as a matter of fact she was guilty of desertion, that can easily be made to appear ; and, on the other hand, if it should develop from the evidence that a fraud has been practiced upon the court, as claimed by appellant, the appellee should not be entitled to a decree.

The decree of the circuit court is reversed and cause remanded with directions to vacate the decree and grant appellant leave to file an answer to the bill for divorce.

Reversed and remanded with directions.


author: Mr. Justice Fulton

text:
    The People of the State of Illinois, Defendant in Error, v. John Wang and D. Webb, Plaintiffs in Error.
    Gen. No. 8,779.
    Opinion filed June 15, 1934.
    C. Victor Cardóse, for plaintiffs in error.
    A. H. Greening, State’s Attorney, and Thomas W. Hoopes, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Fulton

delivered the opinion of the court.

Plaintiffs in error were tried and convicted in the county court of Sangamon county on March 8, 1933, for carrying concealed weapons. Motions to set aside the verdict, for a new trial and in arrest of judgment were all denied on the same date and plaintiff in error Webb was sentenced to the State Farm at Vandalia for the period of one year and fined $300 and costs. Plaintiff in error Wang was on the same date sentenced to the State Farm at Vandalia for the period of eight months and fined the sum of $300.

The case comes to this court on writ of error and all of the errors relied on and argued by plaintiffs in error were predicated upon matters which could only be shown by a bill of exceptions. The case was tried at the February term, 1933 of Sangamon county court and motions to set aside verdict for new trial and in arrest of judgment were all made and disposed of at that term. No application was made for a bill of exceptions during the term at which judgment was entered and no order was entered by the court during that term granting a bill of exceptions and fixing the time within which the same should be presented and signed. No order was entered in the case during the April term of said court but on June 8, 1933, after the beginning of the June term, a so-called bill of exceptions was signed by the trial judge.

Because of these facts the defendant in error filed its motion in this court on December 26, 1933, asking that the said bill of exceptions be stricken from the record, which motion was granted and an order causing the same to be stricken entered on January 2,1934.

With the record before us containing no order at the March term, 1933, in reference to a bill of exceptions, the trial court at a subsequent term was without jurisdiction to sign the same. This situation has often been before the reviewing courts of our State and the principle above stated repeatedly announced. In Hake v. Strubel, 121 Ill. 321, the court said, “The duty imposed by the law upon the party alleging an exception and desiring to have the erroneous ruling and judgment reviewed in an Appellate Court to present his bill to the trial judge for settlement and allowance, signature and sealing, at the term when such alleged erroneous ruling or judgment was made, or within such time as the parties, by their agreement, made part of the record, might stipulate or within the time allowed by the court in its order to that effect appearing in the record, has been often affirmed by this court.”

Where no time is fixed the bill of exceptions must be signed and filed within the term at which judgment is rendered. Guyer v. Davenport, R. I. & N. W. Ry. Co., 196 Ill. 370.

A bill of exceptions must be presented and filed at the same term of court at which the exceptions were taken unless an order is entered at said term extending the time. Taylorville Sanitary Dist. v. Nelson, 334 Ill. 510.

The entire brief and argument of the plaintiffs in error being directed only to matters that can only be shown by a bill of exceptions, and it being clearly shown that this court properly granted a motion to strike the bill of exceptions from the record, there is nothing left for this court to consider and the judgment of the lower court is therefore affirmed.

Affirmed.


text:
    Edgar Gurtner et al., Plaintiffs in Error, v. C. F. Skillman et al., Defendants in Error.
    Gen. No. 8,820.
    Opinion filed June 15, 1934.
    Rehearing denied July 17, 1934.
    J. B. Jiskra and J. M. Sullivan, for plaintiffs in error.
    William B. Bach and William J. Bach, for defendant in error Trustees of Shabbona Tribe of Bedmen.
   Mr. Justice Fulton

delivered the opinion of the court.

This was an action to foreclose a trust deed brought by the owners of five notes, aggregating the sum of $3,000, being a part of a total issue of $7,000, described in the trust deed and dated August 8, 1929. The notes and the trust deed were signed by O. F. Skillman and Constance V. Skillman, his wife, and one J. B. Murphy was named as trustee in the said trust deed. The original bill made the “unknown owners” of bonds or notes secured by the trust deed, as parties defendant. Later on several of the “unknown owners” came in and asked for leave to intervene and to become party complainants. The complainants then filed an amendment to the original bill of complaint setting up the fact that certain of the petitioners, as trustees of the Shabbona Tribe No. 18, Improved Order of Redmen, were the owners of certain notes, which were not genuine but were fraudulent and simulations of notes owned by the complainants and not seéured by the trust deed.

There is not a great amount of controversy over the facts. The proofs show that on August 8, 1929, the notes and trust deed were executed by the Stillmans; that after the trust deed was recorded as document No. 5458, both this instrument and the notes were presented to J. B. Murphy, trustee, and he identified 10 notes with the following certification:

“This is one of the Principal Notes described in the within mentioned Trust Deed, recorded in the office of the Recorder of McLean County, Illinois, as Document No. 5458. J. B. Murphy, Trustee.”

The trust deed described the notes as follows: “to secure the payment of $7000.00, as evidenced by ten certain promissory notes, bearing even date herewith as follows; four notes, each for the principal sum of $1000.00, each of said notes falling due August 8,1934, and six notes, each for the principal sum of $500.00, each of said notes falling due August 8,1934.”

The notes were all signed by the Stillmans, payable to the order of themselves and by them duly indorsed and delivered.

The 10 notes aggregating the sum of $7,000, so certified to by J. B. Murphy, trustee, were all admitted in evidence and conceded to be genuine in all particulars and secured by the trust deed.

In addition to these, four other notes, aggregating the sum of $3,000, were presented and admitted in evidence. They were all dated August 8, 1929, duly signed by the Stillmans and purported to be certified by J. B. Murphy, trustee, as original notes included in and secured by the trust deed. However, the trustee testified that the certification to these notes was not genuine and that the signatures to such certificates were forgeries. Therefore the record shows 10 notes aggregating $7,000, properly identified by the genuine signature of the trustee about which there was no question and four notes aggregating $3,000 with a forged identification over which the controversy arises.

There were two junior liens, one in favor of one Fred C. Graebke, arising from a levy made upon the premises and one a second mortgage or trust deed placed upon the premises by grantees of the Skillmans, but no claim is made for priority in behalf of such liens.

J: B. Murphy, the trustee, had no interest or claim in or to any of the indebtedness, save only as trustee.

The case was referred to the master in chancery, who •reported and found in favor of the plaintiffs in error and the owners of the 10 notes bearing the genuine signature of J. B. Murphy, trustee, and further found that the notes bearing the forged identification of the trustee were not secured by the trust deed. The trustees for the Shabbona Tribe No. 18, of Improved Order of Bedmen took exceptions to the master’s report, which upon argument were sustained by the circuit court. A decree was entered in that court qrdering foreclosure because of default in the payment of interest and taxes and further providing that all the notes above referred to should share equally on a pro rata basis in the security since they were all the genuine notes of the makers, and were all negotiated by the mortgagors, who received full value therefor. The court further found that attorney’s fees of $350 be allowed but should be apportioned among all solicitors participating in the same in proportion to the holdings of their respective clients.

The writ of error was sued out in this court seeking to reverse that decree.

It is contended by plaintiffs in error that the trial court erred in sustaining exceptions to the master’s report and in providing in the decree for all note-holders aggregating the sum of $10,000, participating in the mortgage indebtedness of $7,000 and in proportioning solicitor’s fees among the solicitors representing all of said notes.

The defendants in error in defending the decree of the circuit court say that all the notes which bear the signatures of the Skillmans are first mortgage notes, were negotiated by them and they received full value for the same; that neither the trust deed itself nor the notes secured thereby, provided for certification by the trustee; that certification by the trustee was not necessary to validate any of said notes and the forged certification did not affect their validity.

It therefore appears that the real question for determination is whether those notes bearing the genuine signature of the trustee to the certificate identifying the notes have equal or superior rights with those bearing the forged identification certificates. None of the notes was negotiated until several weeks after they were executed. Counsel for the defendants in error point out the fact that there are no authorities directly in point on the principal question in the case and that it must be decided on the fairness, justice and equities involved.

It is our judgment that all equitable principles are against the findings of this decree. It is clear from the record that the Skillmans made and executed the 10 notes about which there is no question, and the trust deed securing them, as a bona fide mortgage loan and as additional protection to the trustee as well as to purchasers of the notes had both the deed and notes fully identified by the said trustee. It is evident that all other notes were made for the fraudulent purpose of issuing duplicates of the original notes and negotiating their sale. The fact that the identification certificates were forged was evidence of the fraudulent intention and purpose of the makers. We believe these notes were never intended to be and were not secured by the trust deed. If such a practice were permitted there is nothing to prevent a dishonest mortgagor from issuing a series of notes securing them by a trust deed, securing identification thereof by a bona fide trustee, negotiating them into the hands of innocent purchasers for value, and then going out to the world and disposing of duplicate notes signed by himself but bearing forged identification certificates and thus cause innocent holders for value substantial losses because of such fraudulent conduct.

We do not feel that a court of equity should lend its aid to unscrupulous practices of that character and hold that the decree of the lower court be reversed and the cause remanded to the circuit court with directions to enter a decree for the plaintiffs in error in accordance with the views expressed herein.

Reversed and, remanded with, directions.


text:
    Taylorville Savings Loan and Building Association, Appellant, v. John Korenjack et al., Appellees.
    Gen. No. 8,834.

      Opinion filed June 15, 1934.
    J. E. Hogan, for appellant.
    Leal W. Reese, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an appeal from the circuit court of Christian county from a decree of that court denying a petition for the appointment of a receiver. The bill to foreclose a mortgage was filed to the August term, 1933, of said court. Personal service was had upon appellees who did not appear either in person or by counsel. A decree ordering foreclosure was entered on the 6th day of October, 1933, after the cause had been referred to the master in chancery, proofs taken and report as to amounts due on the note and mortgage reported back to the court. The decree found the original indebtedness to be $2,150, which together with interest and amounts advanced for insurance, taxes, and abstract, plus solicitors’ fees, amounted to the sum of $2,413.35, on the date the decree was entered.

The master’s report of sale showed that the property was sold to the appellants for the sum of $2,400 which was $280.21 less than the amount due on the day of sale, which was November 7, 1933. On November 10, 1933, the petititin for the appointment of a receiver was filed, alleging that the property was insufficient security for the amount of the indebtedness. On February 1, 1934, an order providing for a deficiency judgment against the appellees for $280.21 was filed nunc pro tunc as of November 10, 1933. On November 27, the appellees answered the petition for the appointment of a receiver denying the allegations of the petition. A hearing was had before the court on December 4, 1933, on the petition and answer.

The secretary of the Building and Loan Association and two of its directors testified that the premises were worth from $2,100 to $2,400 while the appellee John Korenjack testified that on October 18, 1930, he purchased the premises from appellant for the sum of $3,850, of which amount $1,750 was paid in cash; that since that time he had paid $600 in paving and sewer assessments against the property; that one of the officials of appellant offered him $3,500 for the property about a year before and that he had applied for a Home Owner’s Loan from the Government but that the appellant refused to take the bonds offered by the Home Owner’s Loan Corporation.

The mortgage contained the following covenant, among others: “In case of the filing of any bill to foreclose this mortgage, the Court may appoint the Secretary of this Association or any competent person receiver, with power to collect the rents, issues and profits arising out of said premises during the pend-ency of such foreclosure suit, and until the right of redemption expires, and such rents and profits so collected shall be applied first to the payments of taxes and the expenses of keeping said premises in good order and condition and the balance shall be applied toward the payment of said indebtedness.”

The power to appoint a receiver in any case is a power possessed and exercised by courts of chancery as a part of the general preventive jurisdiction. It is a remedy to be applied by such court whenever in its judgment the exercise of such power is necessary to prevent injury and do complete justice. Redington v. Craig, 270 Ill. App. 163.

It is not always a matter of right that a receiver be appointed after decree and sale. In the case of First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140, the court said: “We hold, then, both upon the principles of equity that lie at the foundation of the chancery court, and upon authority, a receiver may sometimes be allowed after decree and sale, and that a mortgagee does not, in all cases, exhaust his security by a foreclosure and sale. It is, however, a power that the chancellor will be slow to exercise except in an extreme case, and to prevent palpable wrong and injustice. ’ ’

In the present case we do not believe the court abused its discretion in denying the petition for the appointment of a receiver. There was no proof that the appellees were insolvent; indeed John Korenjaek testified that he was the owner of a three-room house at Nokomis that was free from incumbrance.

The proof as to the values by officers of the appellant was not convincing and it was well within the discretion of the court to say that the allegations of the petition were not sufficiently proven.

The decision of the trial court in denying the prayer of said petition is therefore affirmed.

Affirmed.


author: Per curiam.

text:
    The People of the State of Illinois, Defendant in Error, v. Adolph G. Anderson and Oscar B. Widdows, Plaintiffs in Error.
    Gen. No. 8,784.
    Opinion filed June 15, 1934.
    Williamson & Winkelmann, Herrick & Herrick and Barr & Thomas, for plaintiffs in error; L. R. Herrick, R. E. Winkelmann and J. G. Thomas, of counsel.
    Otto Keener, Attorney General, and Jewell I. Dilsaver, State’s Attorney, for defendant in error.
   Per curiam.

In this case the plaintiffs in error, Adolph G. Anderson and Oscar B. Widdows, were indicted by the grand jury in Coles county circuit court under Cahill’s St. ch. 38, If 38 (section 61 of chapter 38 of the Smith-Hurd Revised Statutes, 1933), on two counts, which charge them with unlawfully, corruptly, ,wilfully, fraudulently and feloniously receiving a deposit from Oliver Busby of $140 and which was then and there accepted by them as and for a deposit in the Citizens State Bank of Oakland, Illinois, a corporation, he, the said Oliver Busby, not then and there being indebted to said Citizens State Bank of Oakland, Illinois, and that on the date of receiving said deposit the said Citizens State Bank of Oakland was insolvent; and that the said Adolph Gr. Anderson and Oscar B. Widdows, and each of them, then and there at the time of so receiving said deposit had knowledge and each of them well knew that the said Citizens Bank of Oakland was then and there insolvent.

The plaintiffs in error entered a plea of not guilty and thereupon there was a trial on the charge contained in the indictment, and the jury under the instructions of the court found them guilty of embezzlement in manner and form as charged in the indictment and fixed their fine at $250' and further fixed their punishment in the penitentiary for one year. The plaintiffs in error made a motion for a new trial which was overruled; also made a motion in arrest of judgment which was overruled and were thereupon sentenced. This writ of error is prosecuted for reversal of the judgment, on which they were sentenced.

The main error which has been assigned in the case and argued is the instruction given by the court concerning the form of the verdict which they should return.

The court by its instruction as to form of verdict instructed the jury as follows:

“If you find one or more of the defendants guilty, the form of your verdict may be: ‘We, the jury, find the defendant or defendants (naming him or them), guilty of embezzlement in manner and form as charged in the indictment, and we fix his, or their, fine at ■- Dollars (filling in the blank with the amount of said fine, not less than double the amount as you determine from the evidence was so embezzled), and we further fix his or their (naming him or them) punishment in the penitentiary for - years, (filling in the blank for any term of years, not less than one nor more than three years), and we further find from the evidence that the defendant,-, (naming him), is now about the age of -years; and that the defendant,-, (naming him), is now about the age of-years; (filling in the blanks with the age of each defendant as you determine, from the evidence, his age to be).’

“If you find the defendant or defendants not guilty, then the form of your verdict may be: ‘We, the jury, find the defendant (naming him) or defendants (naming them) not guilty. ’ ”

It is justly contended by the plaintiffs in error that this instruction was in derogation of the statute which gives the jury in this kind of a case an option to determine whether, in addition to the fine fixed, they will also fix a punishment by confinement in the penitentiary. The statute referred to is as follows: “And upon conviction thereof, shall be fined in a sum double the amount of the sum so embezzled and fraudulently taken, and in addition thereto, may be imprisoned in the State penitentiary, not less than one nor more than three years.”

It is clear that under the instruction referred to the jury could draw no other inference than that they were in duty bound to fix the penitentiary punishment as well as the fine. People v. Siemen, 351 Ill. 433; People v. Munday, 293 Ill. 191; People v. Paisley, 288 Ill. 310; Meadowcroft v. People, 163 Ill. 56; People v. Tallmadge, 328 Ill. 210.

It should also be pointed out that the proof in this case concerning the insolvency of the bank, which the People were required to show by evidence beyond a reasonable doubt as well as the knowledge of the plaintiffs in error of such insolvency, was insufficient under the holding of the Supreme Court in People v. Clark, 329 Ill. 104.

For the reasons stated the judgment and sentence is reversed and the cause remanded.

Reversed and remanded.


text:
    Mae E. Broadbent, Administratrix of the Estate of Fred Walter Broadbent, Deceased, Appellee, v. C. C. Kagey, Appellant.
    Gen. No. 8,800.
    Opinion filed June 15, 1934.
    Dobbins & Dobbins, for appellant.
    Busoh & Harrington, for appellee; Earl O. Harrington and C. E. Tate, of counsel.
   Per curiam.

In this case Mae E. Broadbent, administratrix, brought suit in the circuit court of Champaign county against C. C. Kagey, the appellant, to recover damages suffered by the next of kin of the deceased intestate in consequence of the alleged wrongful killing of the deceased in an automobile accident on Boute 25 in the City of Champaign at the intersection of Springfield avenue and Neil street. The declaration filed in the case upon which the plaintiff’s right to recover is based consists of five counts. The first count charges general negligence. The second count charges that the defendant was driving at a high and dangerous rate of speed. The third count charges a failure to give warning of the approach of defendant’s car. The fourth count charges the defendant with driving his car on the wrong side of the street. The fifth count, which is an amended count, charges that “the defendant wilfully and wantonly drove and propelled his automobile into, upon and against the plaintiff’s intestate with great force and violence; and as a direct result, in consequence of the wilful and wanton conduct of the defendant as aforesaid, plaintiff’s intestate was then and there knocked down to and upon the pavement, and the plaintiff’s intestate then and there was injured, and as a result thereof died.”

There was a trial by jury in this case; and the jury returned a general verdict as follows: “We, the jury, find the defendant guilty and assess plaintiff’s damages at $5,000.00.” The defendant entered a motion for a new trial which was denied, and a judgment was rendered on the verdict. This writ of error is prosecuted for reversal of the judgment.

Concerning the facts in this case, it is undisputed that on the 29th of November, 1932, the defendant, C. C. Kagey, was driving his light Chevrolet coupe north along Boute 25 in the City of Champaign, appreaching the business section. Route 25 enters Champaign from the south along Neil street.

, At about 5:30 p. m. of said day the deceased, a retired storekeeper, came up to Neil street from the east along Springfield avenue on the north side, carrying a box containing some groceries under his right arm. When he came to within about a foot of the point where the sidewalk drops off to the pavement he stopped and looked south and north. After standing about a minute without looking further, he proceeded to walk straight across onto the pavement going west, stepping directly in front of the car of the defendant approaching from the south with its headlights on. The defendant jerked his car to the west so that it “reared up,” but the deceased walked or fell into the side of defendant’s car and collided with a little pilot rod extending upward from the outer edge of the right front fender and fell into the right rear fender, hitting his head against this fender as defendant threw his car to the west to avoid him.

There is no evidence in the record from which the jury could have reasonably drawn the inference that the plaintiff in error wilfully and wantonly drove and propelled his automobile into, upon and against the plaintiff’s intestate, as charged in the fifth count of the declaration; and therefore no evidence upon which the jury would be warranted in finding a verdict of guilty under that count.

It is well settled as a matter of law that a general verdict returned in a case where the declaration contains both negligence, and also a count charging wilful and wanton injury, cannot stand; and that it is error to render a judgment upon such a verdict under these circumstances. Grinestaff v. New York Cent. R. R., 253 Ill. App. 589, 596; O’Neall v. Blair, 261 Ill. App. 470; Streeter v. Humrichouse, 261 Ill. App. 556; Robbins v. Illinois Power & Light Corp., 255 Ill. App. 106, 122.

In the Grinestaff case this court said: “The cause went to the jury on all the counts in the declaration, and there was a general verdict. If appellee, therefore, has not established the fifth count and made out a case of wilful or wanton injury, the verdict cannot stand. The injury could not have been caused wilfully or wantonly and negligently at the same time. ’ ’

In the O’Neatt case above referred to, this court passed upon the same question which is here presented for determination and we there said :

There is no evidence in the record of any wilful or wanton act or conduct on the part of the appellant in causing the injury; yet the legal effect of the general verdict is to convict him of the charges of wilful and wanton injury to the appellee. The fact that the declaration may have contained other counts charging negligence does not cure the error nor tend to support the verdict. These counts are not in the same class and do not charge the same or a similar offense.”

It is clearly apparent from what this court decided in the foregoing cases that the judgment of the trial court, which is based upon the general verdict as in the cases cited, is therefore erroneous and must be reversed. And the judgment is, therefore, reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Hall

text:
    First District.
    Charles B. Smith, appellant, v. Gordon C. Thorne and R. E. Schmidt, appellees.
    Gen. No. 36,604.
    Opinion filed May 2, 1934.
    Rehearing denied and opinion modified May 15, 1934.
    Winston, Strawn & Shaw, for appellant; Harold A. Smith and Douglas C. Moir, of counsel. Bernard W. Vinissky, for appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Chicago Title and Trust Company v. August Guttropf et al., on appeal of William A. Sheehan, receiver. In re Joseph Fleming and William H. Fleming, appellees, v. William A. Sheehan, receiver, appellant.
    Gen. No. 36,638.
    Opinion filed May 2, 1934.
    Hutson, Traeger & Bolger, for appellant. Lee, Phelps & Cleland and Barney L. Hollywiek, for appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


author: Mr, Presiding Justice Hall

text:
    Edward Van der Molen, appellant, v. Chicago Rapid Transit Company, appellee.
    Gen. No. 36,679.
    Opinion filed May 2, 1934.
    Hershenson & Hershenson, for appellant; Edward Hershenson, of counsel. Addison L. Gardner, for appellee; William G. Wood, of counsel.
   Mr, Presiding Justice Hall

delivered the opinion of the court,


text:
    Aline L. Friedberg, complainant, v. Frank Flower et al., defendants. Mamie Parris, administratrix of the estate of Maggie McKimmon, deceased, appellee, v. Frank Flower, appellant.
    Gen. No. 36,688.
    Opinion filed May 2, 1934.
    Ossian Cameron and Edward H. ¡3. Martin, for appellant. Henry K. Loeb, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Caledonian Insurance Company of Scotland et al., plaintiffs in error, v. Imperial Assurance Company of New York, defendant in error.
    Gen. No. 36,735.
    Opinion filed May 2, 1934.
    Arthur W. Klein, for plaintiffs in error. P. C. Sheehan, for defendant in error.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    M. M. Sugg, appellee, v. Erwin Kostka, appellant.
    Gen. No. 36,887.
    Opinion filed May 2, 1934.
    Rehearing denied May 16, 1934.
    McKenna, Harris & Schneider, for appellant; James J. McKenna, Louis Gershon and Abraham W. Brussell, of counsel. Sam W. Gilbert and S. S. Day, for appellee; John J. Sherlock, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    The People of the State of Illinois ex rel. John Moroney, appellee, v. James P. Allman et al., appellants.
    Gen. No. 36,745.
    Opinion filed May 2, 1934.
    William H. Sexton, Corporation Counsel, for appellants; Otto F. Weiner and William V. Daly, Assistant Corporation Counsel, of counsel. Johntry & FitzGerald, for appellee; John H. Johntry, John O’O. FitzGerald and George F. Ort, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    A. W. Noyes, appellee, v. Anton J. Roemer, defendant, on interlocutory appeal of Anton J. Roemer et al., appellants.
    Gen. No. 36,774.

      Opinion filed May 2, 1934.
    Jacob Schug and Martin Piepenburg, for appellants. No appearance for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson v. West Town State Bank, on appeal of Otto H. Berz, appellant. Thomas B. Roberts, receiver, appellee.
    Gen. No. 36,814.
    Opinion filed May 2, 1934.
    Welch & Hoffman, for appellant. XJrion, Drueker, Bishop & Boutell, for appellee; Lewis D. Wilson, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    In re Estate of Thomas Crutcher, deceased, John Crutcher, appellant, v. Straus National Bank and Trust Company of Chicago, administrator of the estate of Thomas Crutcher, deceased, appellee.
    Gen. No. 36,823.
    Opinion filed May 2, 1934.
    George S. Barnes and B. G. Clanton, for appellant. Ratner, Chapman & Ratner, for certain appellee. Lee Cohn, for certain other appellee; William B. Ratner, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Oliver A. Bestel, appellant, v. H. H. Brigham et al., defendants. Mead F. Russell and May E. H. Russell, his wife, appellees.
    Gen. No. 37,001.
    Opinion filed May 2, 1934.
    Tatge & Tatgo, for appellant; Robert F. Kolb, of counsel. No appearance for appellees.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Marion G. Wilson, executrix of the estate of William Garnett, deceased, defendant in error, v. Raymond E. Prochnow, plaintiff in error.
    Gen. No. 37,287.

      Opinion filed May 2, 1934.
    Wm. Scott Stewart, for plaintiff in error. Thomas G-. Vent, for defendant ih error.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Wilson

text:
    Florsheim Shoe Company, defendant in error, v. Benjamin D. Ritholz, plaintiff in error.
    Gen. No. 36,998.
    Opinion filed May 2, 1934.
    Rehearing denied May 16, 1934.
    Aaron Soble, for plaintiff in error; Irving Goodman, of counsel. Osborne, Kline & McGurren, for defendant in error; Wilson L. Kline, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Marvin F. Tackett for use of Charles A. Wolf, appellee, v. Charles Cress and W. G. Tackett, appellants.
    Gen. No. 37,052.
    Opinion filed May 2, 1934.
    Kirkland, Fleming, Green & Martin and Beckman, Todd, Hough & Woods, for appellants; John W. Browning, of counsel. Pritzker & Pritzker, for appellee; Stanford Clinton, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    B. Given, appellee, v. Hattie H. Lofton, appellant.
    Gen. No. 37,064.
    Opinion filed May 2, 1934.
    Rehearing denied May 16, 1934.
    Bibb & Tyree, for appellant; Louis C. Tyree, of counsel. Wexler & Block, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    In re Application of Elizabeth G. Richter to register title, Petition of August A. Timke et al., appellants, v. Henry M. Seligman, appellee.
    L. R. No. 2593.
    Gen. No. 37,087.
    Opinion filed May 2, 1934.
    John R. O'Connor, Alben F. Bates and William M. Webster, for appellants. Henry M. Seligman, pro se.

   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Hamlin K. Buchman, appellant, v. Howard F. Bishop, appellee.
    Gen. No. 37,096.
    Opinion filed May 2, 1934.
    Rehearing denied May 16, 1934.
    Louis I. Schubert, for appellant. Whitman, Miller & Coon, for appellee; Russell Whitman and Claude H. Coon, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Frank M. Dooley, executor of the last will and testament of Effie Beam, deceased, appellant, v. Lillian Stevens, appellee.
    Gen. No. 37,120.
    Opinion filed May 2, 1934.
    David J. A. Hayes, for appellant. Samuels, Greenberg, Wolfe & Solomon, for appellee; David H. Greenberg, Edward Wolfe and Sidney M. Glick, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    James Baratta, appellee, v. Bowman Dairy Company, appellant.
    Gen. No. 37,132.
    Opinion filed May 2, 1934.
    Montgomery, Hart, Pritchard & Herriott, for appellant; Louis E. Hart and L. Edward Hart, Jr., of counsel. Irving G. Zazove, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Commercial Light Company, appellant, v. A. Fischer, appellee.
    Gen. No. 37,141.
    Opinion filed May 2, 1934.
    Morris Aronson, for appellant. No appearance for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


author: Mr. Presiding Justice Matchett

text:
    James L. Gross, appellee, v. Fred V. Maguire et al., defendants, on appeal of Thomas J. McNamara, appellant.
    Gen. No. 37,489.

      Opinion filed May 8, 1934.
    Martin Walsh, for appellant. No appearance for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Daniel Biblin, appellee, v. Fred V. Maguire et al., defendants, on appeal of Joseph P. Corr, appellant.
    Gen. No. 37,490.
    Opinion filed May 8, 1934.
    V. I. Ohrenstein and Peter J. Rosenblatt, for appellant. No appearance for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Leo V. Roeder, appellee, v. Fred V. Maguire et al., defendants, on appeal of John D. Gibbons, appellant.
    Gen. No. 37,491.
    Opinion filed May 8, 1934.
    Alfred E. Roth, for appellant. No appearance for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Ike Copalman, appellee, v. Morris Dubov et al., defendants, on appeal of Anne Strongin, appellant.
    Gen. No. 37,546.
    Opinion filed June 7, 1934.
    Rubenstein & Becker, for appellant; Harry Becker, of counsel. No appearance for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Catherine M. Kennedy, administratrix of the estate of Frederick R. Kennedy, deceased, defendant in error, v. Lincoln Funeral System Association and R. H. McGavock, plaintiffs in error.
    Gen. No. 37,218.
    Opinion filed June 11, 1934.
    Gaines, McCoy & Kelley, for plaintiffs in error; Harris B. Gaines, of counsel. No appearance for defendant in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Matehett

text:
    Horatia R. Stockton, defendant in error, v. City of Chicago, plaintiff in error.
    Gen. No. 37,319.
    Opinion filed June 11, 1934.
    William H. Sexton, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for plaintiff in error; Quin O’Brien and James J. Danaher, Assistant Corporation Counsel, and Robert E. Dowling, Assistant City Attorney, of counsel. Robert S. Cook and Albert B. Holeeek, for defendant in error.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    Caroline Cross, defendant in error, v. William C. Gascon, plaintiff in error.
    Gen. No. 37,269.
    Opinion filed June 11, 1934.
    Thompson, Tyrrell & Chambers, for plaintiff in error; Lavern W. Thompson, of counsel. Paul V. Pallaseh and Ewart Harris, for defendant in error.
   Mr. Justice MeSurely

delivered the opinion of the court.


text:
    Byron F. Verdung, appellee, v. Frank Bobrytzke et al., appellants.
    Gen. No. 37,467.
    Opinion filed June 11, 1934.
    James M. Slattery and John K. Murphy, for appellants. Thomas F. Reilly and Charles B. Collins, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice O ’Connor

text:
    Langley and Company, Inc., appellee, v. Halsey, Stuart and Company, Inc., appellant.
    Gen. No. 37,360.
    Opinion filed June 11, 1934.
    Isham, Lincoln & Beale and W. A. Morrow, for appellant; Walter M. Fowler, of counsel. Hopkins, Starr & Godman, for appellee.
   Mr. Justice O ’Connor

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Carmela Caputo, appellee, v. The Fidelity Life Association, formerly known as The Mystic Workers, appellant.
    Gen. No. 37,369.

      Opinion filed June 11, 1934.
    Rehearing denied June 25, 1934.
    Charles E. Sturtz, John W. Leedle and Charles P. Molthrop, for appellant. Joseph Z. Willner and Leo L. Weil, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    World Amusement Service Association, Inc., for use of J. J. Heffern, appellant, v. A Century of Progress, appellee.
    Gen. No. 37,378.
    Opinion filed June 11, 1934.
    Balford Quintín Shields, for appellant. Miller, Gorham, Wales & Adams, for appellee; Herbert C. DeYoung, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    World Amusement Service Association, Inc., for use of Henry C. Larson, appellant, v. A Century of Progress, appellee.
    Gen. No. 37,379.
    Opinion filed June 11, 1934.
    Balford Quintín Shields, for appellant. Miller, Gorham, Wales & Adams, for appellee; Herbert C. DeYoung, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    World Amusement Service Association, Inc., for use of Carrie Ellingson, as widow of A. S. Ellingson, deceased, appellant, v. A Century of Progress, appellee.
    Gen. No. 37,380.
    Opinion filed June 11, 1934.
    Balford Quintín Shields, for appellant. Miller, Gorham, Wales & Adams, for appellee; Herbert C. DeYoung, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    World Amusement Service Association, Inc., for use of Alfred H. Bakke, appellant, v. A Century of Progress, appellee.
    Gen. No. 37,381.
    Opinion filed June 11, 1934.
    Balford Quintín Shields, for appellant. Miller, Gorham, Wales & Adams, for appellee; Herbert C. DeYoung, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Martha Hinz, appellee, v. Fred Hotopp, appellant.
    Gen. No. 37,390.
    Opinion filed June 11, 1934.
    Albert C. Boehm, for appellant. Thomas J. Courtney, State’s Attorney, for appellee; Edward E. Wilson, J. Albert Woll and Henry E. Seyfarth, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Emile R. Shnable and John B. Quinn, trading as Shnable and Quinn, plaintiffs in error, v. The Sanitary District of Chicago, defendant in error.
    Gen. No. 37,192.
    Opinion filed June 15, 1934.
    Rehearing denied June 29, 1934.
    Leo Conlon, for plaintiffs in error. William Rothmann, Thomas F. Donovan and E. Beebe, for defendant in error; Frank Johnston, Jr., and Meyer C. Edelman, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Presiding Justice Sullivan

text:
    John T. Whitlock, trading as Cherokee Remedy Company, appellant, v. Cherokee Medicine Company et al., appellees.
    Gen. No. 37,014.
    Opinion filed June 15, 1934.
    Milford H. Olds, for appellant; John F. Bellair, of counsel. Hamlin IC. Buchman, for appellees; Mayer Goldberg, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Maurice Laskey, appellant, v. William J. Gormann, appellee.
    Gen. No. 37,024.
    Opinion filed June 15, 1934.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Georgia Brown, appellee, v. First Union Trust and Savings Bank, trading as Midway Apartment Hotel, appellant.
    Gen. No. 37,048.

      Opinion filed June 15, 1934.
    Abraham Lepine, for appellant; E. O. Terbell, of counsel. Blankenship & Baltz, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    2544 North Avenue Food Mart, Inc. for use of Claude Neon Federal Company, appellee, v. Leon Dickman and Frank Sampson, appellants.
    Gen. No. 37,140.
    Opinion filed June 15, 1934.
    Rieger & Rieger, for appellants; William Eeldman and Louis Shaffer, of counsel. Dana R. Simpson and James V. Kenny, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Samuel Donian, appellant, v. Louis Pappas, appellee.
    Gen. No. 37,232.
    Opinion filed June 15, 1934.
    Either & Either, for appellant. Richard Hill, Jr., for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Harriet A. Rife, appellee, v. William H. Rife, appellant.
    Gen. No. 37,238.
    Opinion filed June 15, 1934.
    Glenn P. Sayers, for appellant. Ina M. R. Campbell, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Royal A. Duke, appellee, v. Manxi and Kottas Company et al., appellants.
    Gen. No. 37,248.
    Opinion filed June 15, 1934.
    Einnell & Panutsos and Raymond W. Beach, for appellants. Henry W. Kenoe, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    University of Chicago, appellee, v. George R. Dater et al., on appeal of R. W. Johnston, appellant.
    Gen. No. 37,429.
    Opinion filed June 15, 1934.
    Milton M'. Adelman, for appellant. Tenney, Harding, Sherman & Rogers, for appellee; L. Dow Niehol, Jr., and William W. Miller, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Gage Structural Steel Company, complainant and appellee, v. O’Brien Brothers Construction Company et al., defendants. Material Service Corporation, intervening petitioner and appellee. Sanitary District of Chicago, appellant.
    Gen. No. 37,039.
    Opinion filed June 15, 1934.
    William Rothmann, for appellant; Edward A. McCarthy, Senior Assistant Attorney, of counsel. A. S. and E. W. Froehlich and Joseph Chavkin, for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Peter M. Hoffman for use of Isabel W. Knott, plaintiff in error, v. Maryland Casualty Company, defendant in error.
    Gen. No. 37,066.
    Action of debt on replevin bond. Judgment for plaintiff. Error to the Circuit Court of Cook county; the Hon. D. J. Normoyle, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1933.
    Opinion filed June 15, 1934.
    Rehearing denied June 27, 1934.
    Weightstill Woods, for plaintiff in error. Charles W. Lamborn, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Emilo Santo, appellant, v. Fred W. Vogt, appellee.
    Gen. No. 37,092.
    Opinion filed June 15, 1934.
    William Rif kind, for appellant. Sinden & Hassell, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Southway Hotel Corporation, appellee, v. Rebie Horton, appellant.
    Gen. No. 37,134.
    Opinion filed June 15, 1934.
    Rehearing denied June 27, 1934.
    Brown, Brown & Cyrus, for appellant; Sydney B. Brown and Bindley C. Cyrus, of counsel. Joseph Fisher, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Chicago Title and Trust Company and Supreme Council of the Royal Arcanum, appellees, v. Ethel Levy et al., defendants. Ethel Levy, appellant.
    Gen. No. 37,161.
    Opinion filed June 15, 1934.
    Nathan Shefner, for appellant. Vernon R. Loucks and A. J. Hennings, for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Rose Kimen, defendant in error, v. Atlas Exchange National Bank of Chicago, plaintiff in error.
    Gen. No. 37,308.
    Opinion filed June 15, 1934.
    Bibridge W. Rice, for plaintiff in error. Lloyd C. Whitman, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Josephine Kastro, administratrix of the estate of John Kastro, deceased, defendant in error, v. C. J. McGuire and Harry W. Nordendale, defendants. Harry W. Nordendale, plaintiff in error.
    Gen. No. 36,947.
    Opinion filed June 15, 1934.
    Jones & Key, for plaintiff in error; Wm. Y. Key and Robert G. Dreffein, of counsel. Irving G. Zazove, for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    James J. Brown, appellant, v. Leathern Smith-Putnam Navigation Company, appellee.
    Gen. No. 37,027.
    Opinion filed June 15, 1934.
    A. S. and E. W. Froehlieh, for appellant. Kremer, Branand & Hayes, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    C. E. Herrod, receiver of Universal State Bank, defendant in error, v. Michael Rozenski et al., defendants. Joseph J. Ezerski and Dominik Piwaronas, plaintiffs in error.
    Gen. No. 37,036.

      Opinion filed June 15, 1934.
    Kamfner & Halligan, for plaintiffs in error; Samuel M. Lanoff, of counsel. Litsinger, Healy, Reid & Bye, for defendant in error.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Lee Tire and Rubber Company of New York, appellant, v. Anthony J. Toren et al., appellees.
    Gen. No. 37,074.
    Opinion filed June 15, 1934.
    Rehearing denied June 27, 1934.
    Teller, Levit, Silvertrust & Levi, for appellant; Walter F. Dodd, of counsel. Jacob G. Grossberg and Julius L. Kabaker, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Bernice Larson, defendant in error, v. Max Raphael et al., defendants. Walter E. Rogan, plaintiff in error.
    Gen. No. 37,107.
    Opinion filed June 15, 1934.
    William C. Burns and Blaine G. Gernon, for plaintiff in error; Alvin G. Hubbard, of counsel. Hart & Shomberg, for defendant in error; Victor P. Frank, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Mary J. Vogelsang, appellee, v. S. S. Kresge Company, appellant.
    Gen. No. 37,119.
    Opinion filed June 15, 1934.
    Rehearing denied June 27, 1934.
    H. L. Howard and William Greene, for appellant. Philip Rosenthal, for appellee; John B. King, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, v. Arlington Heights State Bank. Michael Oefelein, intervening petitioner, appellee, v. Walter L. Plew, receiver, appellant.
    Gen. No. 37,149.
    Opinion filed June 15, 1934.
    S. J. Fulton, for appellant. H. J. Thai, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Jacob N. Maehl et al., appellees, v. Lew L. Balch et al., defendants. Ethel M. Balch et al., appellants.
    Gen. No. 37,158.
    Opinion filed June 15, 1934.
    Jacob G. Grossberg, for appellants. Teller, Levit, Silvertrust & Levi, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    In re Petition of Owen McGivney, appellant, Arrested at the Suit of Walter Krug, appellee.
    Gen. No. 37,217.
    Opinion filed June 15, 1934.
    Adams, Adams & White, for appellant; J. Thompson White, of counsel. Vincent G. Gallagher and Bernard MeDevitt, Jr., for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Wolfe

text:
    Second District.
    Frand N. Reed, defendant in error, v. Frank S. Rivers et al., plaintiffs in error.
    Gen. No. 8,699.
    Opinion filed May 10, 1934.
    David G. Robertson, for plaintiffs in error. R. W. Churchill, for defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Bertha M. Phelps, appellee, v. Charles Bark et al., appellants.
    Gen. No. 8,711.
    Opinion filed May 10, 1934.
    Cliffe, Hamsmith & Castle, for appellants; A. E. Butters, of counsel. Frank E. Maynard, T. O. Prather and Lowell B. Smith, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court..


text:
    Bernard F. Pohren, appellee, v. R. W. Youngberg and Carl Erickson, trading as Blackhawk Welding Shop, appellants.
    Gen. No. 8,723.

      Opinion filed May 10, 1934.
    Rehearing denied June 25, 1934.
    Frank M. Ryan, for appellants. Hershenson & Hershenson and Welsh & Welsh, for appellee; Edward Hershenson, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Homer G. Sailor, appellant, v. Lewellyn A. Hendee et al., appellees.
    Gen. No. 8,732.
    Opinion filed May 10, 1934.
    Victor E. LaRue and John F. Bellair, for appellant; Milford H. Olds, of counsel. Runyard & Behanna, for appellees; William R. Behanna and Charles L. Whyte, Jr., of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    William F. Dixon, administrator de bonis non of the estate of Catherine Dixon, deceased, plaintiff in error, v. Catherine O’Brien, defendant in error.
    Gen. No. 8,745.
    Opinion filed May 10, 1934.
    R. H. Radley, ■ for plaintiff in error. Robert N. McCormick, for defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    D. L. Musselman, appellee, v. Estate of Mary Sala Olmsted, deceased, appellant.
    Gen. No. 8,752.
    Opinion filed May 10, 1934.
    Rehearing denied June 25, 1934.
    R. W. Olmsted, for appellant. Webber & Webber and Witter & Walker, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Evelyn Mussatta, appellee, v. Estate of Albert Kolterman, deceased, appellant.
    Gen. No. 8,763.
    Opinion filed May 10, 1934.
    Charles W. Helmug, for appellant. Arthur H. Shay, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    City Trust and Savings Bank of Kankakee et al. v. John H. Ader et al. Jay Lane and Hannah Lane, appellants, v. City Trust and Savings Bank of Kankakee et al., appellees.
    Gen. No. 8,772.
    Opinion filed May 10, 1934.
    John A. Mayhew, for appellants. H. H. Wheeler, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    E. M. Jenkins, appellee, v. N. J. Modaff, appellant.
    Gen. No. 8,777.
    Opinion filed May 10, 1934.
    Lord & Parker, for appellant; Maurice F. Lord and Gilbert L. Wood, of counsel. Robert J. Wing and Arthur L. Puklin, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    E. D. Webb, appellee, v. B. A. Knight, appellant.
    Gen. No. 8,592.
    Opinion filed May 10, 1934.
    Rehearing denied June 25, 1934.
    B. A. Knight, pro se. Shelby E. Hood, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    J. Victor Hulten and Bettie Hulten, appellants, v. Margaret Nolan et al., appellees.
    Gen. No. 8,765.
    Opinion filed May 10, 1934.
    Frank E. Maynard, for appellants. Wilbur E. Johnson, for appellee Rockford Finance & Thrift Co.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    United Cab and Drivurself, Inc., appellant, v. Alice Wiley, appellee.
    Gen. No. 8,780.
    Opinion filed May 10, 1934.
    Karl C. Williams, for appellant. Miller & Thomas, for appellee; Charles A. Thomas, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Ruth Eisenstein et al., appellants, v. Otto J. Erwin et al., appellees.
    Gen. No. 8,742.
    Opinion filed June 15, 1934.
    Large & Reno, for appellants. Solomonson & Solomonson, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Davis

text:
    Third District.
    The Wichita Flour Mills Company, trading as The Willis Norton Company, plaintiff in error, v. Oscar Shawver, defendant in error.
    Gen. No. 8,824.
    Opinion filed June 15, 1934.
    Harvey Gross, for plaintiff in error; Glen A. Wisdom, of counsel. Carson M. Purdunn and Samuel M. Scholfield, for defendant in error.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    E. J. Fleischli, appellee, v. Railway Express Agency, appellant.
    Gen. No. 8,827.
    Opinion filed June 15, 1934.
    Graham & Graham, for appellant; A. M. Hartung, of counsel. Osear J. Putting, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.