text:
    Martha Hart Fitzgerald for Use of Foreman-State National Bank, Appellant, v. The First National Bank of Chicago and Richard I. Fitzgerald, Appellees.
    Gen. No. 36,778.
    Opinion filed December 11, 1933.
    Robert L. Wright, for appellant.
    John S. Hummer, for appellees; Hummer & Hummer, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This appeal is by garnishor from an order entered on April 15, 1933, discharging the garnishees. The garnishment was based upon a supposed personal decree entered November 10, 1932, in favor of the Foreman-State National Bank and against Martha Hart Fitzgerald, also known as Martha P. Hart, for the sum of $4,001.49. An execution issued on the decree and was returned “no property found” November 21, 1932. The affidavit for garnishment was filed December 3rd thereafter. The garnishees are the First National Bank of Chicago, Richard I. Fitzgerald and Martha P. Hart, administratrix of the estate of Ernest E. Hart, deceased.

The First National Bank answered in the garnishment suit that it held $332.61, but that the decree was void because defendant had not been personally served with summons. Richard I. Fitzgerald answered that the decree was void for the same reason. The summons for the garnishee, Martha P. Hart, administratrix, etc., was returned “Not found” and the case as to her continued. There was a hearing before the court without a jury, and April 15, 1933, the court found that the decree upon which the garnishment was based was void for want of personal service of summons upon defendant, Martha Hart Fitzgerald, and judgment in the case was entered accordingly.

The sole question to be decided is whether the finding of the trial court that the judgment, upon which the garnishment was based, was void is correct; and as the only evidence bearing upon that issue consisted of records of the court, there is no conflict as to the evidence.

The findings are to the effect that a summons in chancery returnable to the June term of the superior court issued for defendant, Martha Hart Fitzgerald, in a case of chancery begun against her by the Foreman-State National Bank; that it was returned by the sheriff of Cook county, Illinois, “Not found”; that an alias summons returnable to the July term was then issued but was not served; “that neither of said summons could be served upon said defendant because she wilfully concealed her whereabouts from the complainant and the said sheriff; that on the 25th day of August, 1932, an affidavit duly executed by the complainant’s attorney, setting forth that upon due and.diligent inquiry said defendant’s place of residence could not ' be ascertained and said defendant could not be found so that process might be served upon her, was filed in the court; that a notice of the pendency of the suit was on the 30th day of August, 1932, mailed to said defendant at 7100 South Shore Drive, Chicago, Illinois, the address stated in said affidavit as her last known place of residence, by the clerk of this court; that said notice was published on the 26th day of August, 1932, and once each week for four consecutive weeks thereafter in the Chicago Daily Law Bulletin, a secular newspaper of general circulation throughout the County of Cook and State of Illinois, published at Chicago, Illinois; that neither the defendant Fitzgerald nor the defendant Harbor Securities Corporation filed an appearance in the cause and both of said defendants were duly defaulted in an order entered on the 5th day of October, 1932, and the bill of complaint, as amended, was thereby taken as confessed as to said defendants; that said Martha Hart Fitzgerald was known prior to her marriage on June 7, 1931, to Richard I. Fitzgerald as Martha P. Hart; that on the 21st day of May, 1929, letters of administration for the estate of Ernest E. Hart, the deceased husband of said defendant, were issued to her by the Probate court of Cook County, Illinois, and she has continuously acted as administratrix of said estate ever since said date; that at all times during the pendency of this suit she has resided in the State of Illinois; that on or before March 26, 1931, she distributed to herself as sole heir-at-law of said Ernest E. Hart the sum of $29,354.84 in cash, in addition to a substantial amount of other personal property. . . .”

The decree further found that Martha Hart Fitzgerald was indebted to the Foreman-State National Bank in the sum of $4,001.49 on a certain stock subscription, and judgment was entered for that amount.

It is the contention of plaintiff that the service as shown by this record was legally sufficient to confer jurisdiction upon the superior court to enter this personal judgment; further, that defendant, Martha H. Fitzgerald, is estopped by her conduct in wilfully evading service of summons and in refusing to appear after receiving actual notice of the pendency of the suit and the entry of a decree therein, from making a direct or collateral attack upon the judgment which was rendered against her upon service as provided by the Chancery Act, and that the garnishees are therefore also estopped to deny the validity of the judgment. On the other hand, it is the contention of the garnishees that the decree is absolutely void for want of jurisdiction of the person of defendant because she was not personally served with summons.

Sections 12 and 13 of the Chancery Act, Cahill’s St. ch. 22, Htf 12,13 (App’x) (Smith-Hurd’s Ill. Rev. Stats. 1933, secs. 12 and 13, p. 252) provide, in substance, that whenever a complainant or his attorney shall file in the office of the clerk of the court where the suit is pending, an affidavit showing that any defendant resides or has gone out of the State, or on due inquiry cannot be found, or is concealed within the State, so that process cannot be served upon him, and stating the place of residence of such defendant, if known, or that upon diligent inquiry his place of residence cannot be ascertained, the clerk shall cause publication to be made as therein provided; that this notice may be given at any time after the commencement of the suit and shall be published at least once each week for three successive weeks, and that no default or .proceeding shall be taken against any defendant not served with summons, or a copy of the bill, and not appearing, unless the first publication be at least 30 days prior to the first day of the term of such court at which the default is proposed to be taken. The fifteenth section provides that the cause may be continued for want of due publication or service and that the same proceeding may be had at a subsequent term. The sixteenth section provides that a defendant who has been duly served in the way provided by the act, or by notice at the expiration of the time required to be given, may be defaulted, and the bill taken as confessed.

Section • 17 provides that upon showing sufficient cause at the next term and paying the costs, the defendant may have the decree entered vacated, and the cause shall then proceed as in other cases. The nineteenth section provides that when a final decree shall have been entered against a defendant who has been served by publication but not with a copy of the bill, and the defendant shall not have received the notice required to be sent him by mail, or otherwise brought into court, he, or his heirs or personal representatives, shall, within 90 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 .the decree, and that the court upon notice to the adverse parties shall set the petition down for hearing, and upon the hearing make proper decree in the case.

The Chancery Act does not appear to particularly define the nature or quality of the decree which may be entered against a defendant so served, but the garnishor plaintiff contends, upon the authority of Welch v. Sykes, 3 Gilm. (8 Ill.) 197; Nelson v. Chicago, B. & Q. R. Co., 225 Ill. 197, that the statute authorizes a personal judgment. In Welch v. Sykes, plaintiff sued in the courts of Illinois in an action of debt based on a judgment of a court in Maryland. There were several defendants. One of the defendants only was served with process. He appeared and filed two pleas setting up that he had never been served with process and had no notice of the pendency of the suit in Maryland. Plaintiff demurred to the pleas, and the demurrer was sustained and judgment entered. Upon appeal to the Supreme Court the judgment was reversed, the court holding in substance that it was competent for each State to prescribe the mode of bringing parties before its courts; that while its regulations in this respect could not have extraterritorial operation, they were binding on its own citizens; that for aught that appeared on the face of the pleas, the defendant might have been a resident of the State of Maryland and received such notice of the pendency of the suit as conferred authority on the court to hear the case and pronounce judgment; or if he "were a resident of another State, it may have been that he had retained an attorney and entered his appearance.

In Nelson v. Chicago, B. & Q. R. Co., supra (also reported at 116 American State Reports 133) it appeared that Nelson sued defendant railroad company in the circuit court of Kane county, Illinois; that summons issued to the sheriff and was returned by him not served because neither the president nor any of the officers or agents of the railroad company, with whom the statute provided a copy of the summons might be left to effect service, could be found in the county. Thereupon, plaintiff proceeded under paragraph 5 of the Practice Act to procure service by publication and mail, as in chancery cases is provided in sections 12 and 13 of that act, Cahill’s St. 1933, ch. 22, fífí 12, 13 (App’x). The railroad company entered a special appearance and moved to quash the service. The motion was sustained, and plaintiff electing to stand by the service, the suit was dismissed and an appeal taken to the Supreme Court. That court held in substance that it was the intention of the legislature to provide that a personal judgment could be obtained against a railroad company in this manner; that section 5 was not void or unconstitutional as providing for procedure which did not constitute due process of law, and that while service of process “either actual or constructive” upon a nonresident defendant outside of the limits of the State where the action was pending would not authorize the rendition of a personal judgment or decree, such service was sufficient upon which to base a decree changing the marital status in a proceeding for divorce, or a judgment or decree disposing of property situated°in the jurisdiction of the court wherein the action was pending; that each State might determine for itself by what method process might be served upon its citizens within its boundaries, and service of process within the State in the manner pointed out in the statute (if the method of service of process provided for amounted to due process of law) would be sufficient to authorize the courts of the State within whose jurisdiction the service of process was had to pronounce a personal judgment or decree against a defendant so served. The court cited Welch v. Sykes, 3 Gilm. (8 Ill.) 197; Smith v. Smith, 17 Ill. 482; Bickerdike v. Allen, 157 Ill. 95, 29 L. R A. 782, as well as Bardwell v. Collins, 44 Minn. 97; Pinney v. Providence Loan & Inv. Co., 106 Wis. 396, 50 L. R. A. 577, 80 Am. St. Rep. 41.

Bickerdike v. Allen, 157 Ill. 95, is cited by both parties to this controversy. That was (in the trial court) a proceeding in the nature of scire facias, provided for by the then section 26 of the Practice Act (which is now section 43 of the same chapter), Cahill’s St. ch. 110, ¶ 43 (App ’x), (Smith-Hurd’s Ill. Rev. Stats. 1933, ch. 110, sec. 43.) After the judgment had been revived complainant brought a creditor’s bill based upon it, and defendant by way of answer set up that section 26 was unconstitutional as being in conflict with section 2 of article 2 of the Constitution of Illinois, which provides that no person shall be deprived of life, liberty or property without due process of law, and that the judgment was void because the service upon defendant was by publication instead of personal service. The court in its opinion stated in substance that where defendant was a nonresident of the State and the proceeding was not in rem but in personam, the publication of notice and the mailing of a copy thereof, without personal service or appearance, would not give a court of this State jurisdiction over the person of the defendant, so as to make a judgment in personam against him valid and impervious to collateral attack, except in cases affecting the personal or civil status and capacities of the citizen of the State toward a nonresident and except in cases where corporations might have been deemed to have assented in advance to receive such service. The opinion cites Pennoyer v. Neff, 95 U. S. 714. The opinion further stated that section 26 so far as it applied to defendants residing outside of the State could not be upheld as a valid law, but asserted that the scire facias proceeding was not a proceeding in rem, certainly not where the original judgment sought to be revived was a judgment in personam; that if the statute had provided for bringing in a resident of the State by publication of the notice without the mailing of any notice to him, the same objection would lie as in case of a nonresident. However, it was said that the statute required both publication and mailing to the address of the defendant, and that if a defendant resided in the State and had a known residence but concealed himself so that process could not be served, if the notice as specified in the statute was sent by mail and if he received the notice so sent, it was notice just as much as if a summons had been served on him. The opinion further stated:

“In such case the judgment cannot be said to have been rendered without jurisdiction over the defendant. The proceeding by scire facias to revive a judgment is not a new suit, but merely the contimiation of the old one. It does not determine the obligations of the defendant to the plaintiff as involved in the original controversy and as settled by the former judgment, but merely seeks a revival of the former judgment in order to have execution of it. The defendant cannot show any matter which was pleaded or might have been pleaded in the former action. The only defenses which can be set up in the scire facias proceeding are that no judgment was rendered, of, if one was rendered, that it has been satisfied or discharged. (21 Am. & Eng. Ency. of Law, pages 855, 864; Smith v. Stevens, 133 Ill. 183.)

“Hence, we are inclined to think that section 26, taken in connection with section 12 of the Chancery act, is a constitutional enactment so far as it provides for service by publication of notice and mailing a copy thereof to residents of the State, whose residence is stated in the affidavit.”

As defendant points out, we think there is a vast difference between the proceeding to adjudicate the rights and differences between parties in the first instance and the proceeding by scire facias to revive a judgment by which such rights have been adjudicated. As the opinion states, such a proceeding is not a new suit but merely a continuation of the old one. At any rate, the opinion does not by any means hold that the procedure provided for under sections 12 and 13 of the Chancery Act, Cahill’s St. ch. 22, 1HI12, 13 (App’x), is sufficient to give jurisdiction of the person, but only that it does so when had pursuant to section 26 of the Practice Act, Cahill’s St. ch. 110, 1Í 43 (App’x). No case is cited, and it is believed none can be found in the books, holding that the service of process as provided for in sections 12 and 13 when not based upon some other statutory provision showing the intention of the legislature, is sufficient to authorize a personal judgment.

We cannot think that it was the intention of the legislature in the enactment of sections 12 and 13 to authorize personal judgments upon process which consist simply of notice by publication and mailing. Such construction would place in great peril the substantial rights of citizens within the State. It is conceded that service of this sort is contrary to the common law and purely statutory, and therefore the provisions of the statute should be construed most strictly in favor of the defendant. We know of no case in any court where service of this kind, in the absence of some specific statutory provision limiting it to a particular kind of action, has ever been held to confer jurisdiction to render a personal judgment. While not controlling, it is significant as indicating the policy of this State, that the new Practice Act, which will go into effect January 1,1934 (see Laws of Illinois, 58th General Assembly, 1933, section 14, pp. 784 to 836), Cahill’s St. ch. 110, If 142, and which treats of service by publication and mailing, provides in substance for such service only “in any civil action affecting property or status within the jurisdiction of the court, or in any action at law to revive a judgment or decree.” It is apparent, we think, that this section is intended to re-enact the law on this subject as it now exists.

In this opinion we have not discussed the question of whether it might not be lawful and constitutional within the meaning of the due process clause for the legislature in its discretion to enact a law which would provide for service by publication and mailing in all cases. The decision of that question is, in our opinion, unnecessary to the determination of this case. We do hold that sections 12 and 13 of the Chancery Act may not be interpreted to show such intention of the legislature. Whether such a statute, if enacted, would be held invalid as against fundamental rights is a serious question.

The leading case upon this subject is Pennoyer v. Neff, 95 U. S. 714, where Justice Field, reviewing Cooper v. Reynolds, 10 Wall. (U. S.) 308; Webster v. Reid, 11 How. (U. S.) 437, and other cases, held that such service of process as to a nonresident, was clearly invalid. There is language in the opinion and in the authorities relied on therein from which it might be reasonably argued that such statute would also be invalid even as to residents. As indicating the evolution of the law and the tendency of the courts in this regard the cases of De la Montanya v. De la Montanya, 112 Cal. 101, 32 L. R. A. 82, and Raher v. Raher, 150 Iowa 511, 35 L. R. A. (N. S.) 292, as well as McDonald v. Mabee, 243 U. S. 90, are interesting.

We have not overlooked the arguments of plaintiff based upon the evidence introduced before the trial court as to the conduct of defendant as disclosed by the records and proceedings in the probate court where she was acting as administratrix. That argument, however, really assumes the point at issue. No evidence at all could be introduced against defendant until she had been in a lawful manner summoned before a court duly constituted under the law of the land. However vexatious her conduct may have been, this would not justify a construction of the statute which would subject every person and all the property of the State to vexatious litigation. We hold that service by publication and mailing under provisions 12 and 13 of the Chancery Act, in the absence of some other supporting statute, did not authorize the rendition of a personal judgment.

The judgment upon which this garnishment proceeding is based being void, it follows that the court properly discharged the garnishees, and the order of the court in that regard is affirmed.

Affirmed.

0 ’Connor and McSttrely, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    In re Estate of John J. Fitzgerald, Deceased. Edmund S. Cummings, Executor, etc., Petitioner, Appellee, v. Mary Fitzgerald et al., Respondents. Luella Fitzgerald Creagh et al., Appellants.
    Gen. No. 36,809.

      Opinion filed December 11, 1933.
    Kelly & Crawford, for appellants; James A. Daley, of counsel.
    Cummings & Wyman, for appellee; Perel & Perel and Ernest Clark, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by respondents, heirs at law and next of kin and legatees of John J. Fitzgerald, deceased, from a decree entered March 24, 1933, by the probate court upon the petition of the executor for leave to sell the real estate of the deceased for the" purpose of paying debts. The proceeding was under section 98 of the Administration Act, Cahill’s St. ch. 3, If-99 (Smith-Hurd’s Ill. Rev. Stats. 1933, ch. 3, sec. 98, p. 95). The petition of the executor was filed August 29, 1932. It avers that John J. Fitzgerald died at Chicago, Illinois, October 19, 1925; that the executor had filed his inventory which was approved March 4, 1926; that the account showed a total amount of debts of $7,953.50 and total personal estate of the value of $5,201.97, leaving a deficiency of $2,751.53. The petition also avers the filing of a bill of appraisement and the approval of the inventory and bill of appraisement by the court; and avers that Mary A. Fitzgerald had advanced $1,400 to pay claims allowed and costs of administration. The petition describes the real estate which is said to be incumbered by a trust deed dated July 3, 1916, given to secure an indebtedness of $15,-000 evidenced by three notes, all of which indebtedness has been paid with the exception of $2,000, which remains unpaid; and avers that the real estate is also incumbered by a trust deed dated October 2, 1925, securing two notes for $1,000 each, payable one and two years after date; that Rosie Novak is the legal owner and holder of these unpaid notes.

The petition sets forth the names of the heirs at law and next of kin; and shows that Mary Fitzgerald Hickey, sister of the deceased, died intestate subsequent to his death, leaving her husband, Patrick Hickey, and her son, David Raymond Hickey, her only heirs at law and next of kin; that subsequently Patrick Hickey, her husband, died intestate, leaving him surviving said David Raymond Hickey, his, son, so that David Raymond Hickey is now the only heir at law of Mary Fitzgerald Hickey.

The petition also avers that John J. Fitzgerald by his last will and testament bequeathed to the Catholic Bishop of Chicago $200 to be invested and the income used for the perpetual care of his grave in Calvary cemetery, and devised all the rest and residue of his estate to his wife, Mary Fitzgerald, to have and to hold for and during her natural life; that upon her death John J. Fitzgerald devised all the rest and residue of said estate to his nephews and nieces, Luella Fitzgerald, Maurice Fitzgerald, David Fitzgerald, Gertrude Fitzgerald, Veronica Fitzgerald and Ernamelinda Patricia Fitzgerald, and the survivors of them, in equal parts, share and share alike, subject, however, to the payment by them to his sister, Mary Hickey, and his nephew, David Raymond Hickey, of $1,000 each, and to Catherine Evans, Agnes Dunn Felker and Elizabeth Dunn $500 each, or to such of them as shall then be living; that Luella Fitzgerald is now Luella Fitz-gerald Creagh; Gertrude Fitzgerald, now Gertrude Fitzgerald Backus; Veronica Fitzgerald now Veronica Fitzgerald Wynne; Ernamelinda Fitzgerald now Ernamelinda Fitzgerald Wynne; Catherine Evans now Catherine Evans Shields; and Elizabeth Dunn is deceased.

The petition also sets up that the real estate is improved by a three-story brick and stone apartment building occupied by tenants of the deceased, all of whom are interested and made parties, together with unknown owners. The petition prays that the defendants might answer and the court might ascertain the rights of the parties and direct the petitioner to sell so much of the real estate as should be necessary to pay the just debts of the deceased, according to the law, and subject to the lien of the trust deed for unpaid indebtedness and to the liens for unpaid taxes and special assessments. Petitioner verified the petition as true in substance and in fact.

Respondents, Luella Fitzgerald Creagh, Maurice Fitzgerald, Gertrude Fitzgerald Backus, Ernamelinda Fitzgerald Wynne, Veronica Fitzgerald Wynne and David Fitzgerald, answered that the petition should be dismissed for want of jurisdiction to consider the same or enter any order or decree. They averred that the petition was not true and correct, in that it did not contain a full and true statement of the assets of the estate or of the claims against it; averred that the deceased died seized and possessed of personal property of an amount and value of more than sufficient to pay all the alleged claims and the alleged widow’s award, and that the widow had in her possession property of the deceased of a greater value than the amount of the alleged deficiency of personal property, and that the claim of the widow for advances might not be lawfully asserted or adjudicated in this proceeding.

Respondents further answered that the widow’s award was false, fraudulent, null and void, and that the appraisers appointed to fix and determine the same did not proceed in the manner provided by law and did not endeavor fairly and impartially to appraise the same, did not consider the manner and mode of life of the deceased and of the widow, and did not consider the condition of the estate of the deceased, but on the contrary said appraisers, without consulting each other and without any investigation whatsoever, executed the appraisement of the widow’s award without consideration of the matters and things above mentioned at the suggestion of the widow or her representatives, for the purpose of defeating all rights of the respondents; that the will of the deceased granted Mary Fitzgerald a life estate in said real estate; that the real estate was improved by a building containing 12 apartments, from which there has been derived since the death of the deceased large sums of money each and every month, to wit, $600; that Mary Fitzgerald has received the same but has not accounted there-for; that if she account for the same, there would be nothing due her on account of the alleged claims and the alleged widow’s award.

The answer also avers that the petition was not filed in good faith for the purpose of satisfying the just claims against the estate, but on the contrary the same was filed for the purpose of depriving the respondents of the estate devised to them; that if the real estate had been sold within a reasonable time of the death of the deceased the same would have brought full fair cash value thereof; that by reason of the uncertain nature of the estate left to the respondents under the will, and the delay of Mary Fitzgerald in asserting her rights, if any, under the award, and the belief thereby induced in the respondents that the same had been abandoned, and .that Mary Fitzgerald did not intend to endeavor to enforce the same, respondents have been disabled from talcing any steps or proceedings to dispose of the same or protect their interests therein; that at the present time, by reason of various economic conditions, there is no market value for real estate in Cook county, Illinois, and that said real estate, if sold at the present time, would bring far less than the same would have brought if the real estate had been sold within a reasonable time after the death of the deceased. Respondents, therefore, asserted that Mary Fitzgerald and petitioner are estopped in equity and good conscience from bringing and prosecuting this proceeding, and prayed that the petition might be dismissed.

The decree entered recites that the cause came on upon the petition taken as amended and as confessed by the other defendants and upon the records of the court and the evidence introduced, and the testimony of witnesses heard and examined in open court; that the court has jurisdiction of the parties and the subject matter, and that all of the material allegations of the petition are true; that John J. Fitzgerald died testate and his will was admitted to probate in the pro-' bate court of Cook county; that Cummings was appointed executor and qualified and filed an inventory and bill of appraisement of all the assets, which were approved by the court; that Cummings has rendered a just and true account of all the personal estate and debts; that this account has been duly approved by the court; that the personal estate was inadequate to pay the just claims and debts of the deceased; that the deficiency amounted to $2,751.31, besides the necessary costs and expenses of administration. The court finds heirship as set forth in the petition and. the bequests and provisions of the will as therein averred; that the deceased died, having claim and title to the real estate described; that Rosie Novak is the legal holder and owner of the $15,000 note and the two $1,000 notes; that the real estate is improved as alleged; that no person, other than those mentioned in the decree, have any interest; that it is necessary to sell the real estate to pay the deficiency and the costs and expenses of administration now due and to accrue, and to pay any claims which should be allowed thereafter. Petitioner had given an additional bond as required by the statute, and it is therefore ordered, adjudged and decreed “that the petitioner proceed according to law and advertise and make sale of the real estate above described or so much thereof as may be necessary to pay the said deficiency,’ ’ etc., and that “it is further ordered, adjudged and decreed by the court that said sale be made to the highest and best bidder .for cash at public auction held at the board room of the Board of Appeals of Cook County, Room 337, County Court House, in the City of Chicago, County of Cook and State of Illinois, between the hours of ten o’clock A. M. and five o ’clock P. M. on the day fixed for such sale; that said petitioner make report of said proceedings in this behalf according to law, and that no deed or deeds be delivered until such sale has been reported to and approved by this court. ’ ’

The proceedings upon the hearing are preserved by certificate of evidence, and it appears therefrom that the principal contention of respondents who appeal was that they were not barred in this proceeding from contesting, the award theretofore made to the widow which they offered to prove by the appraisers had not been fixed fairly and impartially. They now argue that the court erred in rejecting the evidence offered and assert that the allowance of a widow’s award, like the allowance of any other claim against an estate, is only prima facie correct, and that upon a proceeding to sell real estate a respondent may show that any such claim should not be allowed. They cite Hopkins v. McCann, 19 Ill. 113; Moline Water Power & Manufacturing Co. v. Webster, 26 Ill. 233; Marshall v. Rose, 86 Ill. 374; Burr v. Bloemer, 174 Ill. 638; and the recent case of Ankrom v. Doss, 270 Ill. App. 464. Marshall v. Rose, and similar cases, were decided prior to the enactment of the act of July 1, 1909, which amended section 75 of the Administration-Act so as to provide that the allowance of the widow’s award as made by the appraisers should be subject to review by the court, and that upon petition by the widow, the executor or administrator, heir, legatee or devisee, or creditor of the estate, the court might hear evidence, and upon such hearing increase or diminish the award. Cahill’s St. ch. 3, If 76. (Smith-Hurd’s Ill. Rev. Stats. 1933, ch. 3, sec. 75, pp. 91, 92.)

In Hodson v. Hodson, 277 Ill. 137, it appeared upon writ of error to the Appellate Court of the Third District that the trial court held that there could be no review of the award after the close of the term at which it was approved, and that after the time for taking appeal to the circuit court, the judgment became final and could be afterward set aside only for fraud, collusion, accident or mistake. The Supreme Court, however, held that the county court did not lose jurisdiction at the close of the term at which the judgment was entered, for the reason that the jurisdiction over an estate was a continuing jurisdiction which remained until the estate was closed. The Supreme Court also held that the right of a legatee to have a review of the award by the court under the statute arose at the time the award was approved; when he had been brought into court for the probate of the will; that the will having been probated and his status as a legatee and devisee established he was bound to take notice of the award, and that the injury to him was as great at that time as when he filed his petition, 15 months thereafter; that although there was no limitation, the petition was an appeal to the equitable powers intrusted to the court, and that one asking relief must act with reasonable promptness; that by making no objection to the award for 15 months, the legatee waited an unreasonable time, and that his petition was properly dismissed.

While this case is cited by respondents, it seems to us that the reasoning of the opinion is against their contention. In that case, the petitioner who sought to have the award reviewed was held precluded by a delay of 15 months. The delay here as indicated by the record is more than six years. Here, as there, the respondents, it must be presumed, had notice of the application for probate of the will and were made parties to the proceeding and bound by the allowance of the widow’s award and are now precluded from contesting the amount through their acquiescence in the same for many years.

Respondents contend that the petitioner is barred and estopped by laches from obtaining a decree for sale of the real estate. They concede that the statute does not prescribe any definite limitation in a proceeding of this character but say that the creditors have always been required to proceed within a reasonable time; that by analogy to the statute limiting judgment liens to seven years, an unexplained delay of seven years from decedent’s death, has been held to constitute laches. They say each case is to be decided on its own facts, and that under particular circumstances a shorter delay than seven years will constitute such laches. They cite Moore v. Ellsworth, 51 Ill. 308; Bishop v. O’Conner, 69 Ill. 431; Furlong v. Riley, 103 Ill. 628. We understand the rule to be that by analogy to the statute of limitations as to the lien of judgments, the application of an executor to sell land must be made within seven years, unless the delay is satisfactorily explained, and that where it is so explained a lapse of even a much longer time will not bar the proceedings. White v. Horn, 224 Ill. 238; Hurlbut v. Talbot, 273 Ill. 299. No case is cited where a limitation1 of less than seven years has been applied and the facts here do not justify a shorter limitation.

Respondents also contend, citing Cahill’s Ill. St. ch. 3, if 71, that the petition does not state a cause of action. Respondents, however, did not demur but answered.

They also urge that the decree is erroneous, in that it does not specifically direct the publication and posting of notice as required by Cahill’s St. ch. 3, if 110. The decree, however, directs that the executor proceed according to law and advertise and make sale of the real estate, and the statute definitely directs the notice which must be given.

Moreover, this objection was not urged in the trial court. If the sale as made is irregular in any respect, respondents will have the opportunity to make their objections thereto upon the filing by the executor of his report of sale.

For the reasons indicated, the decree of the probate court is affirmed.

Affirmed.

O’Connor, and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    John W. Snyder et al., Appellants, v. Aetna Construction Company et al., Defendants. The Northwestern Terra Cotta Company et al., Appellees.
    Gen. No. 36,762.

      Opinion filed December 11, 1933.
    Rehearing dfenied December 27, 1933.
    Marshall Solberg and Paul B. Fischer, for appellants ; ’Kellam Foster, of counsel.
    Cassels, Potter & Bentley, for appellees; Leslie H. Vogel and William R. Rodenberg, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Complainants, some of the stockholders of the Aetna Construction Company, filed their bill seeking to recover certain moneys they claimed belonged to them; defendants filed demurrers, which were sustained; leave was given to amend the bill as to certain defendants, but it was dismissed for want of equity as to the defendants The Northwestern Terra Cotta Company, the Chicago Title & Trust Company and H. J. Lucas, receivers of The Northwestern Terra Cotta Company; complainants appeal from this decree.

Complainants seek to recover moneys which they allege were wrongfully paid by The Northwestern Terra Cotta Company to four of the officers of the Aetna Construction Company for the purpose of procuring a sale of the assets of the Aetna Construction Company to The Northwestern Terra Cotta Company.

The bill alleges that in February and March, 1928, and for a long time prior thereto, the business affairs of the Aetna Construction Company were conducted by defendants E. C. Pronger, Herman F. Pronger, Wm. H. Pronger, and Charles A. Phelps, an attorney; that for a long time prior there were few if any directors’ meetings, and no statements or reports made to the stockholders; that the directors, except the Prongers and Phelps, had very little information about the affairs of the company; that shortly prior to February, 1928, the Prongers and Phelps negotiated with a view of selling the assets of the Aetna company to the Northwestern company; that prior thereto the business of the Aetna company had been prosperous; that pursuant to the negotiations the Northwestern company bought the business and assets of the Aetna company for $390,000; that the terms of the sale were approved by the stockholders of the Aetna company, the sale was consummated and the purchase price was paid.

The bill charges that in connection with this sale the Prongers and Phelps obtained a large sum of money from the Northwestern company, that this was concealed from the officers and directors of the Aetna company, except the Prongers and Phelps, and did not come to the knowledge of complainants, stockholders in the Aetna company, until a few months before filing this bill; that these secret payments to the Prongers and Phelps amounted to $185,000, $25,000 being paid to each of these men as an ostensible consideration that they would abstain from entering into the terra cotta business for 10 years; that $25,000 was paid to the Prongers for some trucks and trailers, which was highly in excess of their real value; that the remaining $60,000 was paid to Herman F. Pronger in the form of a salary at the rate of $1,000 a month for five years; the bill alleges that these sums were paid by virtue of a collusive understanding between the Northwestern company and the Prongers and Phelps; that the real purpose of those payments was that the Northwestern company might acquire the assets and business of the Aetna company at less than its actual value, and that the purpose of the Prongers and Phelps in entering into this secret agreement was to obtain a private and illicit profit for themselves by virtue of their ability to deliver assets of the Aetna company to the Northwestern company for a consideration much less than their value, and to secure the collusive co-operation of the Prongers and Phelps in delivering the assets and business of the Aetna company to the Northwestern company for an inadequate consideration.

The bill alleges that the Prongers and Phelps took advantage of their positions as officers and directors of the Aetna company to deliver its assets to the Northwestern company for an inadequate consideration and to obtain for themselves, individually, large sums for which they furnished no adequate consideration and which in reality were secret and illegal profits obtained by a breach of their obligations to the Aetna company and its stockholders; that at the date of the sale the Prongers were financially embarrassed and that the Northwestern company knew this and knew that the payments made to the Prongers and Phelps would equitably belong to the Aetna company and in equity and good conscience the payments were for and on account of the Aetna company, which should be permitted to recover the same and distribute the amount among the complainants and- other stockholders.

We hold that the bill makes out a case for equitable relief against The Northwestern Terra Cotta Company and its receivers, and they should be required to answer.

The demurrers admit that the Prongers and Phelps, were the Aetna company’s agents in making the sale. Under such circumstances all secret profits of the agents inure to the benefit of the principal. The rule is stated in 1 Mechem on Agency (2nd ed.), sec. 1224, pp. 894, 895:

“The well settled and salutary principle that a person who undertakes to act fox another shall not, in the same matter, act for himself, results also in the other rule, that all profits made and advantage gained by the agent in the execution of the agency belong to the principal. And it matters not whether such profit or advantage be the result of the performance or of the violation of the duty of the agent, if it be the fruit of the agency.”

In March v. Eastern R. Co., 40 N. H. 548, it was held that minority stockholders had a right to maintain a bill against the directors of their own corporation to prevent misapplication of funds and compel the distribution of these funds as dividends among its stockholders. Brennan v. Barnes, 232 N. Y. S. 112, sustained the action brought by stockholders to recover certain property which it was claimed the majority of the directors permitted to be transferred without consideration, the opinion saying that the stockholders could enforce their claim ‘ against the guilty directors and against others participating with them in the unlawful transfer of the property of the corporation.” In Brock v. Poor, 174 N. Y. S. 186, the stockholders brought a suit to compel certain officers and directors to account for certain profits realized by them personally by the fraudulent diversion and sale of the assets of the corporation. An additional party defendant was a corporation which defendants had organized to which to transfer these assets; it was alleged that the additional defendant had full knowledge of the fact and benefited by the transaction. It .was held that, not only could the complaining stockholders maintain their suit to compel restitution on accounting, but that the corporation to which the assets of the first corporation had been conveyed was a proper party. The frequently cited case of Public Shoe Stores, Inc. v. Goldstein and Dunsay, 233 N. Y. S. 73, is in point. There Dunsay was a director and exclusive manager of the plaintiff’s business; he represented to his directors that the business was operating at a loss and that it would be of advantage to sell to Goldstein; the directors acted on this recommendation and sold to Goldstein upon the terms suggested by Dunsay; it was shown that Dunsay received $15,000 from Goldstein as a bribe for bringing about the sale of plaintiff’s business; this was in addition to the amount paid to plaintiff. It was held that both Dunsay and Goldstein were liable, the court saying that Dun-say was a trustee in respect to this sale, and that, “He could not receive or participate in any compensation beyond that which his fellow directors would receive as consideration, and the person who knowingly participated in and aided him in committing this breach of trust and misapplication of the funds of a trust is equally liable with the trustee.” See also Wood v. MacLean Drug Co., 266 Ill. App. 5, and cases there cited.

Defendants argue earnestly that even if a fraudulent conspiracy existed, the bill was fatally defective in failing to allege that the consideration passing from the Northwestern company to the Aetna company was inadequate. The bill contains sufficient allegations to this effect. It asserts that the Prongers and Phelps undertook to deliver the assets of the Aetna company to the Northwestern company “for a consideration much less than the value of such assets.” And again, that the object of the arrangement was that the Northwestern company should acquire the business and assets of the Aetna.company “for an inadequate consideration.” But the bill would be good without such allegations, for the charge is that the Prongers and Phelps received for themselves money which was part of the purchase price paid by the Northwestern company, and that the stockholders of the Aetna company are entitled to all the money paid for their business.

The bill of complaint is not multifarious. As we have said, it is an attempt to recover part of the moneys paid by the Northwestern company for the business of the Aetna company. To do this involves the ascertainment and collection of the amounts, the ascertainment of the proper parties among whom the moneys should be distributed, and other matters involving an accounting against the Northwestern company and also other defendants. Complainants are seeking to establish a fund from various sources which they allege should be distributed among the stockholders. If the circumstances justify a joinder of demands against different defendants, the fact that different forms of relief may be required does not render a bill multifarious. 21 C. J., pp. 315, 424. It is a well settled principle that the avoidance of a multitude of suits is, in itself, a ground for equitable jurisdiction. Abbott v. Loving, 303 Ill. 154; Miller v. Hale, 308 Ill. 275; O’Connor v. Board of Trustees, 155 Ill. App. 460 (affirmed 247 Ill. 54); North American Ins. Co. v. Yates, 214 Ill. 272; Kiefer Tanning Co. v. Alliance Ins. Co., 266 Ill. App. 362. Many other cases might be cited. As is well known, on January 1st next, when the new Civil Practice Act goes into effect, joining of many causes of action in one proceeding will be permitted and approved.

The bill purports to be brought by complainants in their own behalf and on behalf of any other stockholders of the Aetna company similarly situated who may desire to join complainants in this proceeding and become parties thereto and share the costs thereof. Defendants asserted, as ground for special demurrer, that the bill showed nonjoinder of necessary parties complainants in that it did not purport to be brought on behalf of all the stockholders of the Aetna company. This form of bringing suit has been approved. The bill is brought on behalf of other stockholders similarly situated. Where persons interested in obtaining relief are very numerous, one or more may sue on behalf of himself or themselves and all others of the same class who may choose to come in and contribute to the costs and expenses of the suit. The rule is so stated, with supporting citations, in 21 C. J., pp. 287 and 292, note. We do not read Hayden v. Perfection Cooler Co., 227 Mass. 589, as holding to the contrary. In that case the bill was filed by two stockholders of a going corporation, alleging unlawful diversion by certain directors of moneys belonging to the corporation. The opinion holds that the bill should contain the allegation that the suit is brought for the benefit of the corporation, and leave was granted to amend the bill accordingly. The decision in that case does not apply to the instant bill.

Defendants, by special demurrer, claimed laches. The bill alleges that for a long time prior to the sale of its assets the Aetna company was dominated by the Prongers and Phelps, who concealed the facts as to the condition of the company from the stockholders; that unsuccessful efforts were made to obtain this.information until about June 6, 1930, when an investigation was made which finally resulted in procuring part of the data which was made the basis of the bill. The bill alleges a course of obstructive tactics on the part of defendants, which excuses any delay in filing the bill. Furthermore, there is nothing to show that the Northwestern company was prejudiced in any way by the delay in filing the bill, and under such circumstances there is no laches. Schultz v. O’Hearn, 319 Ill. 244.

For the reasons indicated we hold that the general and special demurrers filed on behalf of the Northwestern Terra Cotta Company and its receivers should have been overruled and these defendants ruled to answer.

The decree of the superior court is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

Matchett, P. J., and O’Connor, J., concur.


author: Mr. Presiding Justice Sullivan

text:
    First District.
    William R. Johnson, defendant in error, v. John Frehr et al., plaintiffs in error.
    Gen. No. 36,396.
    Opinion filed October 10, 1933.
    Fein & Stone, for plaintiffs in error. Cornelius J. Harrington and John E. Johnson, for defendant in error; Clyde C. Fisher, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Ophelia Lott, defendant in error, v. Underwriters Mutual Life Insurance Company, plaintiff in error.
    Gen. No. 36,412.
    Opinion filed October 10, 1933.
    Bibb, Prescott & Tyree, for plaintiff in error; Louis C. Tyree, of counsel. Mo appearance for defendant in error.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    John Saltis, appellee, v. Albert J. Horan et al., appellants.
    Gen. No. 36,446.
    Opinion filed October 10, 1933.
    Michael B. Morris, for appellants. No appearance for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Dolores Hernandez, appellee, v. Albert J. Horan, appellant.
    Gen. No. 36,464.

      Opinion filed October 10, 1933.
    Benjamin E. Cohen, for appellant. Freyburger, Baker & Rice, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Arthur L. Johnson, appellee, v. Meyer A. Block, appellant.
    Gen. No. 36,514.
    Opinion filed October 10, 1933.
    Joseph H. Hinshaw, for appellant; Oswell G. Treadway, of counsel. No appearance for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Fred Flotke, appellee, v. Libbie Greenberg et al., defendants. In re Petition of Chicago Title and Trust Company, appellant.
    Gen. No. 36,557.
    Opinion filed October 10, 1933.
    Miller, Gorham, Wales & Adams, for appellant. No appearance for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Richard A. Pick, appellee, v. State Mutual Life Assurance Company, appellant.
    Gen. No. 36,582.
    Opinion filed October 10, 1933.
    Poppenhusen, Johnston, Thompson & Cole, for appellant; Edward J. Fleming, of counsel. Decker & Golden, for appellee; Milton Perlman, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Mae Kleinman, trading as Haskell Finance Company, appellant, v. Herman Severin, appellee.
    Gen. No. 36,603.

      Opinion filed October 10, 1933.
    Meyer A. Ginsburg, for appellant. Marovitz & Marovitz, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Adolph Goelitz, Sr., appellee, v. Benjamin L. Lathrop et al., defendants. Benjamin L. Lathrop, appellant.
    Gen. No. 36,923.
    Opinion filed October 10, 1933.
    Rehearing denied October 23, 1933.
    Slottow & Leviton and Ralph C. McCoy, for appellant; Charles Leviton and Harold P. Shane, of counsel. Lloyd C. Whitman, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Mary Ellen Leonard, appellant, v. Realty and Commercial Finance Company, Inc., appellee.
    Gen. No. 36,276.
    Opinion filed October 10, 1933.
    Rehearing denied October 23, 1933.
    Robert J. Burdett and John H. Bishop, for appellant. Schuyler, Weinfeld & Hennessy, for appellee; Henry E. Jacobs, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    John W. McDowell et al., defendants in error, v. George C. Hield and Willard J. Hield, plaintiffs in error.
    Gen. No. 36,474.
    Opinion filed October 10, 1933.
    Loucks, Eckert & Peterson, for plaintiffs in error. Winston, Strawn & Shaw and Miller, Elliott & Westervelt, for defendants in error; Frank T. Miller and John D. Black, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Sarah Braverman, appellee, v. Terrill Bond and Mortgage Company et al., appellants.
    Gen. No. 36,522.
    Opinion filed October 10, 1933.
    Joseph B. Lawler and C. Ray Smith, for appellants. Shulman, Shulman & Abrams, for appellee; Meyer Abrams, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Jack Persky, plaintiff in error, v. Great Northern Finance Company, defendant in error.
    Gen. No. 36,535.
    Opinion filed October 10, 1933.
    Jacob Kosbie, for plaintiff in error. William McKinley and Paul E. Price, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Ruth V. Jennings, appellee, v. Natalie Ashmenckas, appellant.
    Gen. No. 36,579.
    Opinion filed October 10, 1933.
    Cassels, Potter & Bentley, for appellant; Ralph F. Potter, Leslie H. Vogel and E. Douglas Schwantes, of counsel. Royal W. Irwin, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Jennie Boekholder, appellee, v. The Great Atlantic and Pacific Tea Company, appellant.
    Gen. No. 36,588.
    Opinion filed October 10, 1933.
    Ashcraft & Ashcraft, for appellant; Russell F. Locke, of counsel. Daniel M. Dever and James T. Moore, for appellee; Daniel V. Gallery, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    William Robb, administrator of the estate of John Robb, deceased, appellee, v. Olive A. Leitch, trading as West Suburban Realty Company, appellant.
    Gen. No. 36,600.
    Opinion filed October 10, 1933.
    Olive A. Leitch, for appellant. Carl A. Bade, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    New England Mutual Life Insurance Company, appellee, v. John W. Keogh and Robert B. Peck, defendants, on appeal of John W. Keogh, appellant.
    Gen. No. 36,782.

      Opinion filed October 10, 1933.
    Rehearing denied October 23, 1933.
    John W. Keogh, pro se. Judah, Reichmann, Trumbull & Cox, for appellee; Randolph Thornton, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    James Hamilton Lewis, appellant, v. Mary A. Braun et al., appellees.
    Gen. No. 36,180.
    Opinion filed October 10, 1933.
    Rehearing denied October 23, 1933.
    Andrew R. Sherriff, for appellant; Richard S. Folson and Thomas James Norton, of counsel. Ellis D. Whipp, for appellee Mary A. Braun. Cassels, Potter & Bentley, for appellee Canadian Pacific Ry. Co.; Edwin H. Cassels and Raymond W. Hamill, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    First Acceptance Corporation, appellant, v. Overland Motor Company, appellee.
    Gen. No. 36,313.
    Opinion filed October 10, 1933.
    West & Eckhart, for appellant. Mayer, Meyer, Austrian & Platt, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Heat Utilities Corporation, complainant, v. Eugene Massey et al., appellees, on appeal of Denis J. Walsh, appellant.
    Gen. No. 36,368.
    Opinion filed October 10, 1933.
    Michael J. Sullivan and Morris J. Drezner, for appellant. Deming, Jarrett & Mulfinger, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Mae Steele Howell, administratrix of the estate of Martin A. Howell, deceased, appellant, v. The Equitable Life Assurance Society of the United States, appellee.
    Gen. No. 36,440.
    Opinion filed October 10, 1933.
    John A. Sheean, for appellant. Mayer, Meyer, Austrian & Platt, for appellee; Frederic Burnham and Miles G. Seeley, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court,


text:
    Jeanette Hunt, defendant in error, v. Frank V. Schorsch, plaintiff in error.
    Gen. No. 36,498.
    Opinion filed October 10, 1933.
    Theodore Johnson, for plaintiff in error; Elmer H. Heitmann, of counsel. Melville, Block, Samuels & Seeley, for defendant in error; Paul W. Pretzel, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Daniel Lavorini, administrator, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 36,541.
    Opinion filed October 10, 1933.
    Rehearing denied and opinion slightly modified October 23, 1933.
    Hoyne, O’Connor & Rubinkam, for appellant. Chas. G. Palmer, for appellee; Clyde C. Fisher, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Floyd P. Gaines, appellee, v. The Western Union Telegraph Company, appellant.
    Gen. No. 36,551.
    Opinion filed October 10, 1933.
    Rehearing denied October 23, 1933.
    Francis R. Stark and West & Eckhart, for appellant; Joseph D. Bryan and Wm. Emmet Jones, of counsel. Jacob Legion Tenny, for appellee; B. M. Steiner, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Frank J. Shriner, appellee, v. National Fire Insurance Company, appellant.
    Gen. No. 36,597.
    Opinion filed October 10, 1933.
    Hicks & Folonie, for appellant. No appearance for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    National Life Insurance Company, appellee, v. Celia A. O’Shaughnessy et al., defendants. E. Weingarden, appellant.
    Gen. No. 36,764.

      Opinion filed October 10, 1933.
    Jerome L. Siegel, for appellant. Eckert & Peterson, for appellee; John D. Peterson and William U. Bardwell, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The Medical Protective Company, appellee, v. McCabe and Sons Real Estate Improvement Corporation et al., defendants, on appeal of McCabe and Sons Real Estate Improvement Corporation, appellant.
    Gen. No. 37,015.
    Opinion filed October 13, 1933.
    A. W. Martin and Edward H. S. Martin, for appellant. Ashcraft & Ashcraft, for appellee; Norman L. Olson, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Hall

text:
    In re Estate of Mike Jandrich, also known as Mike Janolic, also known as Mike Janlic, deceased, on appeal of The Catholic Bishop of Chicago, appellant, v. The South Chicago Savings Bank et al., appellees.
    Gen. No. 36,223.
    Opinion filed October 25, 1933.
    Charles B. Collins, for appellant; Edmond L. Mulcahy, of counsel. George A. Rooney, for appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Lexington-Chicago Building Corporation, appellant, v. Hudson Motor Company of Illinois, appellee.
    Gen. No. 36,233.
    Opinion filed October 25, 1933.
    William M. Tannenbaum and Jacob Zalkind, for appellant. Walter Cowburn, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Guy Howe, appellee, v. Konstanty Kowalski, appellant.
    Gen. No. 36,242.
    Opinion filed October 25, 1933.
    Z. H. Kadow and Harry M. Biedka, for appellant; Fred W. Story, of counsel. O'Brien & Hanrahan, for appellee.
   Mr. Presiding Justice Hall

delivered the 'opinion of the court.


text:
    Alfred E. Kahn, appellee, v. Walter Starck, appellant.
    Gen. No. 36,252.
    Opinion filed October 25, 1933.
    Joseph H. Hinshaw, for appellant; Oswell G. Treadway, of counsel. No appearance for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Harrisburg Coal Mining Company, complainant below, v. Ender Coal and Coke Company, defendants below. The People of the State of Illinois, appellee, v. John H. Evans, appellant.
    Gen. No. 36,265.
    Opinion filed October 25, 1933.
    Rehearing denied November 7, 1933.
    William A. Rogan, for' appellant. Kirkland, Fleming, Green & Martin, for appellee; Howard Ellis, William H. Symmes and J. B. Martineau, Jr., of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Henry P. Johnson and John J. Johnson, trading as Johnson Brothers Coal Company, appellees, v. Charles Alekno and Olga Alekno, appellants.
    Gen. No. 36,274.
    Opinion filed October 25, 1933.
    J. P. Waitches, for appellants. Kirkland, Fleming, Green & Martin, for appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Avedis Bogosian, administrator of the estate of Hasadoor Manoogian, deceased, appellant, v. American Express Company, appellee.
    Gen. No. 36,283.
    Opinion filed October 25, 1933.
    Novak & Turek, for appellant. Tenney, Harding, Sherman & Rogers, for appellee; Roger R. Leech and William W. Miller, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Gertrude Ruth Sessler, executrix of the estate of Hugo Herman Sessler, deceased, appellant, v. Nielsen Brothers Cartage Company, appellee.
    Gen. No. 36,314.
    Opinion filed October 25, 1933.
    Joseph & Burr and Nat M. Kahn, for appellant; Nat M. Kahn and William C. Napier, of counsel. McKenna, Harris & Schneider, for appellee; Abraham W. Brussell, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebel

text:
    James S. Nix, appellant, v. Chicago Great Western Railroad Company, appellee.
    Gen. No. 36,153.
    Opinion filed October 25, 1933.
    John G. Riordan, for appellant. Winston, Strawn & Shaw, for appellee; Ralph M. Shaw, Walter H. Jacobs and Charles J. McFadden, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Tony Tallarico, appellee, v. Newark Fire Insurance Company, appellant.
    Gen. No. 36,208.
    Opinion filed October 25, 1933.
    Decree and opinion slightly modified November 7, 1933.
    Hicks & Folonie, for appellant. Livingston & Kaufman, for appellee; William McKinley and Paul E. Price, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Habel, Armbruster & Larsen Company, appellant, v. Joseph Graziani et al., appellees.
    Gen. No. 36,230.
    Opinion filed October 25, 1933.
    L. A. Sherwin, for appellant; L. A. Sherwin and Charles C. Kirshbaum, of counsel. Louis J. Leo and William C. Scherwat, for appellees; Louis J. Leo and Robert J. Hatton, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Leonard C. Reid, appellee, v. George G. West, trading as Perfection Auto Station, and Meyer Rothschild, defendants, on appeal of Meyer Rothschild, appellant.
    Gen. No. 36,239.

      Opinion filed October 25, 1933.
    Rehearing denied November 7, 1933.
    Samuel S. Siegel and Harry Leviton, for appellant. Litsinger, Healy, Reid & Bye, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Sheridan F. Betes, appellee, v. Robert Halloman et al., on appeal of Clifford O. Stark, appellant.
    Gen. No. 36,248.
    Opinion filed October 25, 1933.
    B. G. Clanton, for appellant. Greenfield & Reiff, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Charles R. Hamsley, appellee, v. Charles C. Stannard and Ora Stannard, appellants.
    Gen. No. 36,280.
    Opinion filed October 25, 1933.
    Cheney, Evans & Peterson, for appellants; Albert Peterson, of counsel. Montgomery, Hart, Pritchard & Herriott, for appellee; Louis E. Hart, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Nathan Gumbinsky, appellant, v. Moe Rosenberg, appellee.
    Gen. No. 36,302.
    Opinion filed October 25, 1933.
    Rehearing denied November 7, 1933.
    Weissenbach, Hartman, Craig & Okin, for appellant; E. S. Hartman, of counsel. Bernard J. Brown, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Lillian Bear, appellant, v. Godfrey Cohn and William D. Meyering, sheriff, appellees.
    Gen. No. 36,311.
    Opinion filed October 25, 1933.
    Sidney F. Brown, for appellant. Lowenhaupt & Wolff, for appellees; James R. O’Leary, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Jeanette Mitchell, appellant, v. Peter Barkules, appellee.
    Gen. No. 36,320.
    Opinion filed October 25, 1933.
    Adams & Adams, for appellant; J. Thompson White, of counsel. Herman L. Epstein, for appellee; Milton M. Adelman, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Nelson, complainant, v. Northwestern Trust and Savings Bank, defendant, on appeal of Julius Fafinski, appellant, v. David E. Shanahan, receiver of Northwestern Trust and Savings Bank, appellee.
    Gen. No. 36,348.
    Opinion filed October 25, 1933.
    Charles J. Main and Sydney R. Drebin, for appellant. Louis J. Behan and William J. Corrigan, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Mary Krafcisin, appellant, v. Walter E. Heller and Company, Inc., et al., appellee.
    Gen. No. 36,357.
    Opinion filed October 25, 1933.
    Louis Greenberg and George M. Tearney, for appellant. Chavin & Quadow, for appellee; Arthur Quadow, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    John J. Pinta and Anna Pinta, appellees, v. Joseph Kral et al., appellants.
    Gen. No. 36,375.
    Opinion filed October 25, 1933.
    Rehearing denied November 7, 1933.
    Charles A. Churan, for appellants. Hortsman, Linder, Pelnar & Bernard, for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.


author: Mr. Justice Wilson

text:
    Tony Mantegna, administrator of the estate of Joseph Pecore, deceased, plaintiff in error, v. Cuono Arrachiello and Felicia Arrachiello, defendants in error.
    Gen. No. 36,323.

      Opinion filed October 25, 1933.
    Charles J. Trainor, for plaintiff in error. John A. Bloomingston, for defendants in error.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Frankie A. Price, appellant, v. George S. Price, appellee.
    Gen. No. 36,354.
    Opinion filed October 25, 1933.
    J. Edward Jones, for appellant. Abraham Greenfield, for appellee; William E. Anderle, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Dorothe E. Owen, appellee, v. City of Chicago, appellant.
    Gen. No. 36,372.
    Opinion filed October 25, 1933.
    William H. Sexton, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for appellant; Frank H. Novak and Jacob Schug, Assistant City Attorneys, and Carl J. Appell, Assistant Corporation Counsel, of counsel. John B. King and Philip Rosenthal, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Andrew Szymczak, defendant in error, v. Henry Wlostow, plaintiff in error.
    Gen. No. 36,418.
    Opinion filed October 25, 1933.
    Rehearing denied November 7, 1933.
    Sumner C. Palmer, for plaintiff in error. No appearance for defendant in error.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Walter J. Vanderslice, appellee, v. Sarah E. Edwards and William C. Edwards, appellants.
    Gen. No. 36,438.
    Opinion filed October 25, 1933.
    Rehearing denied November 7, 1933.
    Alec W. Glaskay and Elmer D. Brothers, for appellants. Maloney & Wooster, for appellee.
   Mr. Justice Wilson

delivered the opinion pf the court,


text:
    Guardian Warehousing Company, appellant, v. Royce A. Kelley, appellee.
    Gen. No. 36,447.
    Opinion filed October 25, 1933.
    Nathan Haffenberg and Joseph Rosenbaum, for appellant. No appearance for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    George L. Holloway, appellee, v. Francis O. Moline et al. John Griffiths and Son Company, appellant.
    Gen. No. 36,476.
    Opinion filed October 25, 1933.
    Hamer & Campbell, for appellant; Chester D. Kern, of counsel. Daniel L. Madden, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Providence Institution for Savings, appellee, v. Mildred J. Davidson et al., appellants.
    Gen. No. 36,945.
    Opinion filed October 25, 1933.
    Rubenstein & Becker, for appellants; Harry Becker, of counsel. Scott, MacLeish & Falk, for appellee; George W. Swain and Walter S. Underwood, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    The Lincoln National Life Insurance Company, appellee, v. Philip Stamler and Sarah Stamler, appellants.
    Gen. No. 36,989.
    Opinion filed October 31, 1933.
    Rehearing denied November 20, 1933.
    Hart, Frank & Shomberg, for appellants; Victor P. Frank, of counsel. Frank E. Donahue, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Paul E. Fleming, appellant, v. Lucia A. Ward, appellee.
    Gen. No. 36,325.

      Opinion filed November 6, 1933.
    Rehearing denied November 20, 1933.
    Bloom & Wester, Charles R. Brown and Hugh W. Housum, for appellant; Charles R. Brown and Hugh W. Housum, of counsel. White & Hawxliurst, for appellee; Homer C. Dawson, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    J. W. Sullivan, appellee, v. Theo. A.. Schmidt Lithographing Company, appellant.
    Gen. No. 36,327.
    Opinion filed November 6, 1933.
    Rehearing denied November 20, 1933.
    Follansbee, Shorey & Schupp, for appellant; Robert W. Schupp and John E. Gavin, of counsel. William H. Kailes, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Walter Freeman and Universal Credit Company, appellees, v. The Home Insurance Company, New York, appellant.
    Gen. No. 36,596.
    McSurely, J., dissenting.
    Opinion filed November 6, 1933.
    William J. LaVelle, William McKinley and Paul E. Price, for appellant. Ellis & Westbrooks, for appellees; Richard E. Westbrooks, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellee, v. Jane Geraghty et al., defendants, on appeal of Solomon Brown, appellant.
    Gen. No. 36,702.
    Opinion filed November 6, 1933.
    Leo S. Samuels and Edmund P. Kelly, for appellant; Ernest Samuels, of counsel. Butz, von Ammon & Marx, for appellee; Frederick Z. Marx, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Charles W. Friedman, plaintiff in error, v. The Aetna Casualty and Surety Company, defendant in error.
    Gen. No. 36,729.
    Opinion filed November 6, 1933.

      Walter P. Altenburg, for plaintiff in error; Robert G. Phelps, of counsel. Defrees, Buckingham, Jones & Hoffman, for defendant in error; Wilfred M. Doherty, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Boleslaw Shimanis and Anna Shimanis, executors under the will of Mikolas Paukszta, also known as Mike Paukszta, deceased, appellants, v. Walter Krecunas, also known as Walter Kraucunas, appellee.
    Gen. No. 36,891.
    Opinion filed November 6, 1933.
    J. P. Waitches, for appellants. Norman C. Barry, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Henry J. Ottenstroer, appellee, v. The Belt Railway Company of Chicago, appellant.
    Gen. No. 36,584.
    Opinion filed November 6, 1933.
    J. Raymond Barse, Samuel Kassel and John A. Bloomingston, for appellant; Roy S. Gaskill, of counsel. William Walter McCallum and Murphy O. Tate, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Archie I. Bernstein and Isador Becker, defendants in error, v. Abe Allen et al., plaintiffs in error.
    Gen. No. 36,605.
    Opinion filed November 6, 1933.
    Rehearing denied November 20, 1933.
    Pope, Dooley & Friedman, for plaintiffs in error; Arnold D. McMahon, of counsel. Alfred Beck, for defendants in error.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Patrick Moylan, plaintiff in error, v. Felix Coune and Franklin Bergenthal, defendants in error.
    Gen. No. 36,609.
    Opinion filed November 6, 1933.
    V. Russell Donaghy and Stuart B. Krohn, for plaintiff in error; Stuart B. Krohn, of counsel. Miller, Gorham, Wales & Adams, for defendant in error Felix Coune; Herbert C. DeYoung, of counsel. Cassels, Potter & Bentley, for defendant in error Franklin Bergenthal; Ralph F. Potter, Leslie H. Vogel and E. Douglas Schwantes, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Daniel Serritella and Harry Hochstein, plaintiffs in error.
    Gen. No. 36,620.
    Opinion filed November 6, 1933.
    Thomas D. Nash and Michael J. Ahern, for plaintiffs in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Grenville Beardsley and Albert Woll, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Bernard R. Rosenberg, appellee, v. Sam Kantorowitz, appellant.
    Gen. No. 36,812.
    Opinion filed November 6, 1933.
    Rehearing denied November 20, 1933.
    Louis T. Herzon, for appellant. Fagenholz & Kaplan, for appellee; B. M. Steiner, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Elizabeth Brown Cowell, appellant, v. George E. Corbett, Jr., appellee.
    Gen. No. 36,830.
    Opinion filed November 6, 1933.
    Leslie H. Whipp, for appellant. No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Joseph Shedbar, appellee, v. The Stock Yards Trust and Savings Bank, appellant.
    Gen. No. 36,894.
    Opinion filed November 6, 1933.
    Rehearing denied November 20, 1933.
    Arthur Abraham, for appellant. Armin G. Kusswurm and Alberto N. Gualano, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Ernest Freeberg, appellant, v. J. W. Manz, appellee.
    Gen. No. 36,906.
    Opinion filed November 6, 1933.

      Abraham Lepine, for appellant; George C. Bliss, of counsel. B. S. Quigley and McKenna, Harris & Schneider, for appellee; James J. McKenna, B. S. Quigley and Abraham W. Brussell, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    M. K. Nagle, appellee, v. J. L. Hanson Company, appellant.
    Gen. No. 36,572.
    Opinion filed November 6, 1933.
    Rehearing denied November 20, 1933.
    Otto Schusterman, for appellant. Harold L. Feigenholtz, for appellee; Sidney Rubin, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Irene Spiering, appellee, v. E. A. Skubic and Harris Bros. Company, defendants, on appeal of Harris Bros. Company, appellant.
    Gen. No. 36,677.
    Opinion filed November 6, 1933.
    Stanley L. Shetler, for appellant. William J. Corrigan, for appellee; Donald M. Keenan, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Theodore C. Evers, relator, plaintiff in error, v. The Commissioners of Lincoln Park et al., defendants in error.
    Gen. No. 36,680.
    Opinion filed November 6, 1933.
    Bernard P. Barasa, for plaintiff in error; Henry M. Seligman, of counsel. James M. Slattery, for defendants in error; William H. Beckman and George E. Woods, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Rathbun-Grant-Heller Company, appellee, v. Donald F. Campbell, appellant.
    Gen. No. 36,689.
    Opinion filed November 6, 1933.
    Gilbert T. Graham, for appellant. John M. Lee and Earl V. Brown, for appellee; Thomas J. Carroll, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Fred A. Ellis and Company, defendant in error, v. Mrs. John Smith, plaintiff in error.
    Gen. No. 36,743.
    Opinion filed November 6, 1933.
    Ernest Saunders, for plaintiff in error. Klaas & Porter, for defendant in error; Louis Klaas and Sidney S. Alexander, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Nicholas Wallano, defendant in error, v. Dorothy Wallano, plaintiff in error.
    Gen. No. 36,753.
    Opinion filed November 6, 1933.
    John B. Fruchtl, for plaintiff in error. Bernard P. Barasa, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Harriet E. Doll et al., trading as Norm Company, plaintiffs in error, v. Eggers Furniture Company, defendant in error.
    Gen. No. 36,766.
    Opinion filed November 6, 1933.
    Friedman, Schimberg & Alster, for plaintiffs in error; Bernard Witney, of counsel. Victor E. La Rue and John F. Bellair, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Standard Insurance Company of New York, appellant, v. American Fire and Marine Insurance Company and American Indemnity Company, appellees.
    Gen. No. 36,775.
    Opinion filed November 6, 1933.
    P. C. Sheehan, for appellant. Jones & Key, for'appellees; C. D. Jones, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    George L. Wilkinson, appellant, v. Ethel Louise Swanson, administratrix of the estate of Charles Pegler, deceased, appellee.
    Gen. No. 36,797.

      Opinion filed November 6, 1933.
    Joseph E. Winterbotham, for appellant. H. L. Howard and William Greene, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Frank C. Rathje, appellee, v. Peter Vasillos et al., defendants, on appeal of Milton H. Slepyan, appellant.
    Gen. No. 37,191.
    Opinion filed November 17, 1933.
    Sabath, Perlman, Goodman & Rein, for appellant; Alexander T. Spare, of counsel. No appearance for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Joseph F. Meyr, administrator of the estate of Lawrence Meyr, deceased, appellee, v. A. Vincent Sons Company, appellant.
    Gen. No. 36,254.
    Opinion filed November 21, 1933.
    Church, Haft, Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel. Aaron R. Eppstein and Elmer M. Walsh, for appellee; Aaron R. Eppstein, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Blanche L. Cook, appellee, v. Axel Johnson, appellant.
    Gen. No. 36,480.
    Opinion filed November 21, 1933.
    Rider & Thuma, for appellant. Royal W. Irwin, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    O. J. Salinger, plaintiff in error, v. Greenebaum Sons Investment Company, defendant in error.
    Gen. No. 36,494.
    Opinion filed November 21, 1933.
    Rehearing denied December 4, 1933.
    Shulman, Shulman & Abrams, for plaintiff in error; Meyer Abrams, of counsel. Poppenhusen, Johnston, Thompson & Cole, for defendant in error; Henry J. Brandt and Edward J. Fleming, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Morris Levy et al., trading as L. & L. Mfg. Co., appellees, v. Goldblatt Bros., Inc., appellant.
    Gen. No. 36,525.
    Opinion filed November 21, 1933.
    Pritzker & Pritzker, for appellant. Schofield & Wood, for appellees; Frank Schofield and David H. Kraft, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    John S. Metcalf Company, appellee, v. Indemnity Insurance Company of North America, appellant.
    Gen. No. 36,569.
    Opinion filed November 21, 1933.
    Rehearing denied December 4, 1933.
    Shanner & Shanner, for appellant. Richmond H. Day, for appellee; John B. Carson, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    John B. Mailers, Jr., et al., appellees, v. West Side Braiding and Emboidery Company, appellant.
    Gen. No. 36,675.
    Opinion filed November 21, 1933.
    Charles A. Williams and L. A. Sherwin, for appellant. Mayer, Meyer, Austrian & Platt, for appellees.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Minnie Lussem, executrix, et al., appellants, v. Giulio Petito et al., appellees.
    Gen. No. 36,727.
    Opinion filed November 21, 1933.
    Harry H. Felgar, for appellants. Gustav E. Beerly, for certain appellees; Roy S. Gaskill, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.


text:
    Leslie P. Coleman, appellee, v. Herman Heuser, appellant.
    Gen. No. 36,538.

      Opinion filed November 21, 1933.
    Rehearing denied December 4, 1933.
    David D. Stansbury and George F. Callaghan, for appellant. A. H. Brown and A. J. W. Appell, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, complainant, v. Builders and Merchants Bank and Trust Company, defendant. Hilmer Johnson, appellant, v. Will H. Wade, receiver, appellee.
    Gen. No. 36,584.
    Opinion filed November 21, 1933.
    Lavin & Jaffe and Milton O. Olson, for appellant; William Jafile and Ira S. Kolb, of counsel. Urion, Drueker, Bishop & Boutell, for appellee; William B. Gemmill and Theodore L. Hamer, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    James Toomey et al., appellees, v. John E. Toomey, as executor of the last will and testament of Mary L. O’Connor, deceased, and as an individual, appellant.
    Gen. No. 36,621.
    Opinion filed November 21, 1933.
    Thomas J. Courtney and William J. McGah, for appellant. Thomas D. Nash and Michael J. Ahern, for appellees; Martin J. McNally, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    William Brandenburg Company, complainant, v. Martha Melvin et al., defendants, on appeal of Hollister-Whitney Company, appellant.
    Gen. No. 36,640.
    Opinion filed November 21, 1933.
    Ogren & Cross, for appellant. Hutson, Traeger & Bolger, for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Sadie Smith, appellant, v. West Side Trust and Savings Bank, appellee.
    Gen. No. 36,661.

      Opinion filed November 21, 1933.
    Hyman Soboroff, for appellant. John M. Lee and Earl V. Brown, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Clara L. Schirding, appellant, v. Walter F. E. Swanson et al., appellees.
    Gen. No. 36,713.
    Opinion filed November 21, 1933.
    H. J. Thai, for appellant. Ignatz Spitz, A. G. Humphrey, A. S. & E. W. Froehlieh and Eckert & Peterson, for certain appellees; Earle G. Hallen, of counsel. Charles Horgan and James L. Henry, for certain other appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Consumers Petroleum Company, appellant, v. Yellow Cab Company and Benzoline Motor Fuel Company, appellees.
    Gen. No. 36,087.
    Opinion filed November 21, 1933.
    Rehearing denied December 4, 1933.
    William Jaffe, for appellant. Samuels, Costello & Greenberg, for appellees; Edward Wolfe and Gabriel D. Wellner, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    William T. Woodley, defendant in error, v. Alexander Weir et al., defendants. Agnes Weir et al., plaintiffs in error.
    Gen. No. 36,152.
    Opinion filed November 21, 1933.
    James F. Hutchison, for plaintiffs in error. Wolf son & Fireman and Arthur 'Chittick, for defendant in error; Harry J. Fireman, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    John J. Fleming, etc., appellee, v. Michael Olyniec and Veronica Olyniec, defendants. In re Petition of C. L. Noruk, intervening petitioner, appellant.
    Gen. No. 36,429.

      Opinion filed November 21, 1933.
    Arthur J. Hughes, for appellant; Frank Michels, of counsel. No appearance for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Irwin T. Gilruth, receiver for Stony Island State and Savings Bank for use of Ellen N. Norton, appellee, v. Lawrence Barrett, appellant.
    Gen. No. 36,449.
    Opinion filed November 21, 1933.
    Lowenhaupt & Wolff, for appellant. Joseph E. Winterbotham, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The Baltimore and Ohio Railroad Company, appellee, v. Chicago Wood Products, Inc., appellant.
    Gen. No. 36,458.
    Opinion filed November 21, 1933.
    Frederic L. Goff, for appellant. H. D. Sheean and E. W. Lademann, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson v. Division State Bank et al. C. W. Davenport, receiver, appellant, v. William F. Duha, intervening petitioner, appellee.
    Gen. No. 36,528.
    Opinion filed November 21, 1933.
    Rehearing denied December 4, 1933.
    D ’Ancona, Pflaum & Kohlsaat, for appellant; W. R. Arrington, of counsel. Meyer W. Rosin, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson v. Division State Bank et al. C. W. Davenport, receiver, appellant, v. Philip Plonsky, appellee.
    Gen. No. 36,529.

      Opinion filed November 21, 1933.
    Rehearing denied December 4, 1933.
    D’Ancona, Pflaum & Koklsaat, for appellant; W. R. Arrington, of counsel. Meyer W. Rosin, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Marcella Fricot, plaintiff, v. Daniel Brady, defendant. P. L. McArdle, defendant in error, v. Daniel Brady, plaintiff in error.
    Gen. No. 36,637.
    Opinion filed November 21, 1933.
    Rehearing denied December 4, 1933.
    Joseph F. Elward, for plaintiff in error. Patrick L. McArdle, pro se.

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Hazel L. Wright, appellee, v. Stevens Brothers Corporation, appellant.
    Gen. No. 36,649.
    Opinion filed November 21, 1933.
    Rehearing denied December 4, 1933.
    Judah, Reichmann, Trumbull & Cox, for appellant. Robert L. Wright, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Stella W. Friedman, appellee, v. Cadillac Motor Car Company, appellant.
    Gen. No. 36,696.
    Opinion filed November 21, 1933.
    Miller, Gorham, Wales & Adams, for appellant. Aaron H. Cohn, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    First Union Trust and Savings Bank, complainant, v. Division State Bank et al., defendants. Esther Homer et al., appellees, v. First Union Trust and Savings Bank, appellant.
    Gen. No. 36,808.
    Opinion filed November 21, 1933.
    Tatge & Tatge and Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellant; Robert F. Kolb, David Levinson, Abraham Fish-man and Isaac E. Ferguson, of counsel. Wolf & Love, for appellees; Stephen Love, Louis F. Davis and George Broide, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Fannie Burkhardt, appellant, v. Henry Burkhardt, appellee.
    Gen. No. 36,671.
    Opinion filed December 11, 1933.
    Julius S. Neale, for appellant; Richard R. Klein, of counsel. Vernon W. Foster, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Louisville and Nashville Railroad Company, appellant, v. Piowaty-Berliner, Inc., appellee.
    Gen. No. 36,791.
    Opinion filed December 11, 1933.
    Charles P. Hamill, for appellant; Lee J. Frank, of counsel. No appearance for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Peter C. McArdle, appellee, v. City of Chicago et al., appellants.
    Gen. No. 36,903.
    Opinion filed December 11, 1933.
    William H. Sexton, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants. Edward J. McArdle, Jr., for appellant; E. J. McArdle, Sr., of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Antoinette Kotel, defendant in error, v. Walter J. Kotel, plaintiff in error.
    Gen. No. 36,977.
    Opinion filed December 11, 1933.
    P. T. Harrington, for plaintiff in error. John Blase Meccia, for defendant in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Florence D. Crosthwait et al., appellants, v. Harry L. Street et al., appellees.
    Gen. No. 36,749.

      Opinion filed December 11, 1933.
    Rehearing denied December 27, 1933.
    Millard R. Powers and Schuyler, Weinfeld & Hennessy, for appellants. Wilson & Mellvaine, for appellees; J. F. Dammann and K. F. Montgomery, of counsel. ,
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Hamilton Investment Company, appellant, v. Sara Hickey McKinley et al., appellees.
    Gen. No. 36,821.
    Opinion filed December 11, 1933.
    Rothbart & Lewis, for appellant; Seymour M. Lewis and J. M. Rosenfield, of counsel. No appearance for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Boulevard Bridge Bank, defendant in error, v. Telephone Secretarial Service, Inc., plaintiff in error.
    Gen. No. 36,917.
    Opinion filed December 11, 1933.
    Rehearing denied December 27, 1933.
    B. I. Salinger, Jr., for plaintiff in error. Ungaro & Sherwood, for defendant in error; W. W. Patterson, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Lewis Gowen and Illinois Office Supply Company, appellants, v. Frank Thornber and Frank Thornber and Company, appellees.
    Gen. No. 36,969.
    Opinion filed December 11, 1933.
    Eckert & Peterson and Chilton P. Wilson, for appellants; Hibbs & Pool and Raleigh M. Shaw, of counsel. Dixon,. Devine, Bracken & Dixon and Jerome F. Dixon, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Clapp, Riley and Hall Equipment Company, appellee, v. L. B. Fugitt Construction Company et al., defendants, on appeal of United States Fidelity and Guaranty Company, appellant.
    Gen. No. 36,999.
    Opinion filed December 11, 1933.
    Eugene P. Kealy, for appellant. Sidney N. Ware, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    County of Cook for use of Western Contractors Supply Company, appellee, v. L. B. Fugitt Construction Company et al., on appeal of United States Fidelity and Guaranty Company, appellant.
    Gen. No. 37,000.
    Opinion filed December 11, 1933.
    Eugene P. Kealy, for appellant. Sidney N. Ware, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Joseph L. Gill, appellee, v. L. Montefiore Stein et al., trading as Stein, Alstrin and Company, appellants.
    Gen. No. 36,644.
    Opinion filed December 11, 1933.
    Moses, Kennedy, Stein & Bachrach, for appellants; S. Sidney Stein, Hirsch E. Soble and Arthur Magid, of counsel. Arnd, Gavin, Griffin & Hanley, for appellee; Richard I. Gavin and Frederick Arnd, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Milton S. Yondorf, appellee, v. Fred Newman et al., defendants, on appeal of Ida Factor, appellant.
    Gen. No. 36,815.
    Opinion filed December 11, 1933.
    Welch & Hoffman, for appellant; Maxwell L. Rubin, of counsel. Decker & Golden, for appellee; David L. Golden and Milton Perlman, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Bert Newtson et al., appellees, v. Josef Wagner, Sr., appellant.
    Gen. Nos. 36,833-36,882.
    Opinion filed December 11, 1933.
    Rehearing denied December 27, 1933.
    Grablowski & Kanak, for appellant. Jenkins & Kirkpatrick, for appellees; Donald Kirkpatrick and Martin Burns, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Max Oswald, appellee, v. Mary Courtney, trading as M. Courtney and Sons, appellant.
    Gen. No. 36,897.

      McSurely, J., dissenting.
    Opinion filed December 11, 1933.
    Rehearing denied December 27, 1933.
    John A. Bloomingston, for appellant. Joseph D. Ryan and Louis P. Miller, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Wolfe

text:
    Second District.
    The People of the State of Illinois, defendant in error, v. Samuel Wade and Henry Fritzinger. Henry Fritzinger, plaintiff in error.
    Gen. No. 8,652,
    Opinion filed September 20, 1933.
    Rehearing denied December 2, 1933.
    George W. Sprenger, for plaintiff in error. Oscar E. Carlstrom, Attorney General, J. J. Neiger, Assistant Attorney General, and R. O. Hanson, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court-


text:
    Cecile Martin, appellee, v. Cable Piano Company, appellant.
    Gen. No. 8,657.
    Opinion filed October 24, 1933.
    Rehearing denied December 2, 1933.
    George R. Warner and Werner H. Sommers, for appellant. Alsehuler, Putnam, Plannigen & Johnson, for appellee; W. C. O’Brien and Edward P. Streit, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Ella Minehan Coffey, appellant, v. Locomotive Engineers' Mutual Life and Accident Insurance Association and John Henry Maley, appellees.
    Gen. No. 8,663.
    Opinion filed October 24, 1933.
    Burrel Barash, for appellant. Hardy, Hardy & Hardy, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    Lafayette C. Luttrell, as administrator of the estate of Dorothy Marie Luttrell, deceased, appellant, v. The Chicago, Burlington and Quincy Railroad Company, appellee.
    Gen. No. 8,522.

      Opinion filed October 24, 1933.
    Rehearing denied December 2, 1933.
    Clyde Smith, for appellant. Dixon, Devine, Bracken & Dixon (R. L. Bracken and C. W. Krohl), for appellee; J. C. James, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Belt Line Brick Company, appellee, v. The Flexotile Floor Company et al., appellants.
    Gen. No. 8,526.
    Opinion filed October 24, 1933.
    Hinchcliff, Miller & Thomas, for appellants; Chas. A. Thomas, of counsel. Welsh & Welsh, for appellee; O. K. Welsh, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Ernest Beckman, appellee, v. J. A. Roose and Frank Peterson, trading as Superior Transit Company, appellants.
    Gen. No. 8,535.
    Opinion filed October 24, 1933.
    Large & Reno and W. J. Berry, for appellants. Carl A. Swenson, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    H. G. Beardsworth et al., appellees, v. Whiteside and Rock Island Special Drainage District et al., appellants.
    Gen. No. 8,700.
    Opinion filed November 22, 1933.
    Craig & Craig, McCalmont, Ramsay & Little and Charles C. McMahon, for appellants. Wood & McNeal, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    Edna Brandt, appellee, v. Harvey Franklin, appellant.
    Gen. No. 8,670.
    Opinion filed December 6, 1933.
    Robert J. Wing and Arthur L. Pukler, for appellant. Alschuler, Putnam, Flannigen & Johnson, for appellee; W. C. O’Brien, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Henry F. Lawrence, plaintiff in error, v. Emma J. Glos, defendant in error.
    Gen. No. 8,691.
    Opinion filed December 6, 1933.
    Rehearing denied January 10, 1934.
    B. W. Rosenstone, for plaintiff in error; Weightstill Woods, of counsel. Hadley, Weaver & Woodward, for defendant in error; Charles W. Hadley, Palmer Leren and William C. Atten, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    The City of Waukegan, appellee, v. Edith T. Higley et al., defendants, on appeal of George W. Cummings, appellant.
    Gen. No. 8,698.
    Opinion filed December 6, 1933.
    McGilvray, Eames, Vaughan & Tilley, for appellant; Franklin E. Vaughan, of counsel. William R. Behanna, Corporation Counsel, for appellee; Charles L. Whyte, Jr., of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Margaret A. Hess and J. L. Hess, trading as The Hess Agency, appellees, v. Howard Murray, appellant.
    Gen. No. 8,704.
    Opinion filed December 6, 1933.
    Rehearing denied January 10, 1934.
    Henry C. Warner, for appellant. A. H. Hanneken, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Charles E. Berry, receiver of Farmers State Bank of Princeville, appellant, v. Frank German and Sue D. Redfern et al., appellees.
    Gen. No. 8,706.
    Opinion filed December 6, 1933.
    Clarence W. Heyl, for appellant. Galbraith & Monk, for appellee Frank German. C. R. Birkett, for appellee Sue D. Redfern.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Richard Kutchback, by Lyle Kutchback, his next friend, appellant, v. Oliver Miller, appellee.
    Gen. No. 8,715.

      Opinion filed December 6, 1933.
    Rehearing denied February 6, 1934.
    Reuben R. Tiffany and Albert H. Manus, for appellant. Heard & Heard and Burrell, James & Burrell, for appellee; Oscar E. Heard, Oscar E. Heard, Jr., Louis H. Burrell, Harold D. James and David M. Burrell, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    Third District.
    Jess Sheets, as administrator of the estate of Walter F. McWade, deceased, appellee, v. Chicago and Eastern Illinois Railway Company, appellant.
    Gen. No. 8,752.
    Opinion filed October 13, 1933.
    Rehearing denied and opinion modified January 5, 1934.
    Acton, Acton & Baldwin, for appellant; K. L. Richmond and W. M. Acton, of counsel. Graham & Dysert, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Illinois Power and Light Corporation, appellant, v. Albert Overstreet, appellee.
    Gen. No. 8,755.
    Opinion filed October 13, 1933.
    H. M. Steely and H. M. Steely, Jr., for appellant; Herbert Haase, of counsel. Lewman & Carter and Hutton & Clark, for appellee; I. Ray Carter and H. Ernest Hutton, of counsel.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Frank Kehl, appellee, v. Earl Corbett and Minnie Corbett, appellants.
    Gen. No. 8,758.
    Opinion filed October 13, 1933.
    William N. Hairgrove, for appellants. Leavitt C. Arnold, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.