text:
    Bernard W. Snow, Bailiff of the Municipal Court of Chicago, for use of William Ainsworth, Appellant, v. J. W. Breene et al., Appellees.
    Gen. No. 32,338.
    Opinion filed May 2, 1928.
    Sinden & Hassell, for appellant; Clyde C. Fisher, of counsel.
    No appearance for appellees.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is a suit by the bailiff of the municipal court of Chicago, for use of William Ainsworth, upon a replevin bond, which was given to the bailiff of the municipal court on December 22, 1926, by the defendant, J. W. Breene, as principal, and the defendants, Edward Arzt and Gertrude Arzt, as sureties, in a replevin suit in the municipal court, in which Breene replevied a Ford coupe. The bond recited, “Now, if the said J. H. Breene, Plaintiff, shall prosecute his suit to effect, and without delay, and make return of said property if return thereof shall be awarded, and save and keep harmless the said Bailiff in replevying the said property, and pay all costs and damages occasioned by wrongfully suing out said Writ of Replevin, then this obligation,” which was to pay $500 to the bailiff of the municipal court, “to be void; otherwise to remain in full force and effect.”

On April 29,1927, the defendants filed an affidavit of merits, in which they set up the following:

“That the defendant, J. W. Breene, being the holder of a chattel mortgage on the car replevined herein, prior to the suing out of the replevin writ, repossessed himself by virtue of said writ under the provisions of said chattel mortgage and now holds said car lawfully under said mortgage.

“That the said William Ainsworth and counsel were cognizant of the defendant Breene’s lien or chattel mortgage, prior to the suing out of said writ, should have surrendered possession to him, the said J. W. Breene, upon his lien coming to their notice, and are now estopped from a recovery on the replevin bond.”

There was a trial before the court without a jury. On behalf of the plaintiff, there was introduced in evidence the testimony of four witnesses, Hassell, Brown, Rech and Salavitch, and also certain exhibits. On behalf of the defendants, there was introduced in evideuce the testimony of the defendant Edward Arzt, and certain exhibits.

The evidence of Salavitch is that he was in the automobile business in Chicago; that he bought the car from L. J. Rech and sold it to William Ainsworth; that at that time he did not know there was a chattel mortgage on it, but found out, probably, a month later, when it was replevied and taken away from Ainsworth. When asked if the mortgage was on record, he answered, “No, sir.” The record shows that one Sharp, who cross-examined Salavitch", said, “It is in South Dakota,” evidently meaning that the chattel mortgage, whether or not it was on record, was in South Dakota.

Rech testified that the fair cash market value of the car at the time in question was from $350 to $425.

Counsel for the plaintiff then introduced in evidence the files and records of the replevin suit in the original case. They showed that that suit was commenced on December 23,1926, by filing an affidavit for replevin and a bond on December 31, 1926; that the property was delivered to the plaintiff therein on December 24, 1926. They further showed that the replevin suit was dismissed on January 12, 1927, for want of prosecution.

The writ of replevin in that cause, which was issued on December 22, 1926, showed on the back of it that the property was delivered to J. W. Breene on December 24, 1926. The order of court in that cause showed that the cause came on in its regular course for trial, and that the plaintiff, though called in open court, came not, and that for want of prosecution it was ordered that the plaintiff be nonsuited, the suit dismissed, and that the defendant have judgment, as in case of nonsuit, and that a writ of retorno habendo issue. That order was entered on January 12, 1927. A writ of retorno habendo was issued and directed to the defendant J. W. Breene, and was dated January 18, 1927. That writ shows that it was returned, the defendant not found, and no property of the defendant found in the city of Chicago on which to levy.

The evidence of the witness Bech is to the effect that on August 10, 1926, he bought the car from one John Wilson, and received from him a certificate of ownership, which certificate of ownership was dated January 25,1926, and signed by the secretary of state of the State of South Dakota. The certificate of ownership certified that the secretary of state had used reasonable diligence to ascertain whether the facts stated in the application were true, and that he was satisfied that the applicant, John Wilson, was the true and lawful owner of the motor vehicle, and entitled to have it registered in his name. On the back of that certificate there was an assignment to James Biley. Bech further testified that he wired the secretary of state of South Dakota to find out the name of the owner, and see if the license number correspond with the certificate, and that he received a reply by wire. He further testified that the fair reasonable market value of the car in Chicago was $350; that the James Biley mentioned in the assignment was the name of a man who worked for him in the shop at the time, and that he bought the car in his name instead of using his own, and that he sold it to Salavitch; that the car was delivered and sold to him with the statement that there was no mortgage on it and that it was free from all incumbrances.

The evidence of Albert Hassell, who was attorney for Ainsworth in the replevin suit, is to the following effect: That Ainsworth brought the replevin summons to him; that he looked into the law as to whether the bill of sale was prior and superior to the alleged chattel mortgage which Ainsworth stated Breene claimed; that he, Hassell, appeared in court on the return day and spent practically all the morning there; that Judge McKinley was there that day; that the case was reset, put over two or three weeks; that it was then called for trial and dismissed for want of prosecution; that a fair and reasonable charge for such legal services would be $75.

On behalf of the defendants, the defendant Edward Arzt testified as follows: “All that I know is that Mr. Breene sold Wilson the car and the car was mortgaged”; that “Wilson beat it with the car and he heard later he was down here and his car was in a garage on Madison street and he came down and located the car. The car was sold out in South Dakota by a resident there — Joe Breene.”

After that testimony, the following colloquy took place:

“The Court: And he took back a mortgage at the time he sold the automobile did he? A. Yes.

“Mr. Hassell: I object — not the best evidence.

“The Court: Some cash payment down?

“Mr. Sharp: And a mortgage taken back. Here it is.

“Mr. Hassell: I object to the mortgage — no foundation laid — no proof that it is admissible.

“The Court: Well, now, what is the objection to this? It has all got to come out sooner or later. If you haven’t got it prepared, let’s continue the case until you have it prepared.”

There was then offered in evidence, on behalf of the defendants, a chattel mortgage dated December 6, 1925, given by John Wilson, the mortgagor to the Lebanon State Bank of Lebanon, South Dakota, covering the Ford coupe, a team of mules, two sets of harness, one wagon and rack, and one disc to secure his note, of October 1, 1926, for $360.

The defendants also, offered in evidence an assignment of the chattel mortgage by the Lebanon State Bank, the mortgagee, and the note to ,J. W. Breene, dated December 15, 1926.

Arzt, when asked if it was recorded in South Dakota, answered in the affirmative ; that Breene sold the car to Wilson; that “Wilson had a young kid with him, and he goes back and tells Breene” where Wilson had left the car, and that Breene found the car at Madison street and Albany avenue; that he then took the car by replevin and moved it to South Dakota.

On cross-examination Arzt testified that he had never been arrested in South Dakota, and never saw the car until after he saw it on Madison street; that all he knew was that Breene told him after he came down to look at the car; that he was not present when the car was sold to Wilson; that he never saw Wilson in his life, and did not know his signature.

At the close of all the evidence, the cause having been tried before the court without a jury, the trial judge found the issues against the plaintiff, and entered judgment that the plaintiff take nothing by his suit, and that the defendant recover his costs.

No brief has been filed on behalf of the appellees.

In our opinion, the evidence fails to establish any defense on the part of the defendants. The bond was given the bailiff of the municipal court on December 22, 1926, with J. W. Breene as principal and the defendants, Arzt, as sureties; and the bond provided that if they failed to prosecute their suit with effect, and save and keep harmless the bailiff in replevying the car and pay all costs and damages by reason of suing out the writ of replevin, then they were to be liable.

Upon the trial in the instant case, it was shown that the car was not returned, and it then behooved the defendants to show why a judgment should not be entered against them on the bond for damages suffered by the plaintiff.

We do not think that the evidence sufficiently shows that the defendant was justified in refusing to return the car.

The evidence as to the chattel mortgage is vague, and the note which it was supposed to secure was not offered in evidence, or produced. Inasmuch as the defendants claim title by virtue of a chattel mortgage given to secure an indebtedness evidenced by a promissory note, it was incumbent upon them to produce such note, or account for its absence. The mortgage follows the debt. Then, too, none of the statutes of the State of South Dakota pertaining to chattel mortgages, nor any of the decisions of the Supreme or Appellate Courts of that State construing such statutes, or showing what the law of that State was, were offered in evidence, 'and the record being in that situation, we are not entitled to assume that even if there was a chattel mortgage on the car at the time it was sold by Wilson, the owner to Rech, that Rech was bound thereby, being, at that time, without knowledge of any such chattel mortgage. The evidence of Rech is to the effect that he bought the car on August 10, 1926, from Wilson, and received a certificate of ownership, dated January 25, 1926, which was signed by the secretary of state, and that the certificate of ownership certified that the secretary of state had used reasonable diligence to ascertain whether the facts stated in the application were true; that he was satisfied that the applicant, John Wilson, was the true and lawful owner of the motor vehicle, and entitled to have it registered in his name. The evidence shows that Breene sold the car to Wilson; that Wilson sold it to Rech, and that Rech, in the name of James Riley, who worked in his shop and whose name was on the back of the certificate as assignee, sold it to Salavitch, and that Salavitch sold it to Ainsworth. There is no evidence that Ainsworth knew at the time he bought the car that there was any chattel mortgage on it; in fact, Salavitch testified that at the time he bought it from Rech he did not know that there was a chattel mortgage on it. In St. Paul Cattle Loan Co. v. Hansman, 215 Ill. App. 190, it was held that where live stock commission men sold certain steers for their owners without actual or constructive notice that they were subject to a chattel mortgage in Wisconsin, they were vested with the right to sell the steers and to pass good title to the purchaser. This court said in that case:

“The courts of this State will not enforce a mortgage executed out of this State conveying personal property against a bona fide purchaser for value in this State who has neither actual nor constructive notice of its existence,” citing Dawes v. Rosenbaum, 179 Ill. 112.

In our opinion, the judgment of the trial judge must be reversed, as it is clearly against the weight of the evidence, and judgment will be entered here in favor of thé plaintiff in the sum of $452.74, being $350, the reasonable value of the car, $75, for attorney’s fees, and $27.74, being interest at 5 per cent per annum on $425 from January 12, 1927, to date.

Reversed and judgment here.

Holdom and Wilsort, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Harry J. Lurie, Appellee, v. William Brewer, Appellant.
    Gen. No. 32,282.

      Opinion filed May 2, 1928.
    Zedbick T. Bkaden and Mobbis, Cashin & Dickebson, for appellant.
    John Fosteb, for appellee; Sydney R. Dbebin, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action brought by plaintiffs against the defendant for rent for use and occupation of the store premises at 629 East 43rd street, Chicago, occupied, as a drug store by the defendant. The rent claimed is for the months of June, July, August and September, 1925, and a balance of $10 due for May, 1925. Plaintiffs proved their ownership of the premises and the occupancy during the time aforesaid by the defendant. It appears that the defendant allowed the store in question to be operated in the name of his son, Chester W. Brewer, but that as a matter of fact paid plaintiffs for the use of said store at the rate of $150 a month from July, 1924, to May, 1925, and that thereafter during the time aforesaid defendant continued in the possession of said store without the payment of rent. Plaintiffs introduced evidence of the rental value of said premises, and it was fixed at the sum of $150 a month, being the rental value inferentially placed thereon by the defendant himself, as that was the monthly rental he actually paid while his son Chester was in the colorable occupancy of the premises, but in fact the defendant occupied the premises and operated the drug store.

There was originally a judgment by default, which was vacated and set aside, and the defendant let in to defend on the merits. There was a trial before the court and a finding and judgment in favor of plaintiffs for the sum of $610, from which judgment defendant prosecutes this appeal.

Since the perfecting of the appeal the death of Julia D. Lurie has been suggested and the cause allowed by order to proceed in the name of the surviving plaintiff, Harry J. Lurie.

There was received in evidence for plaintiffs a bill filed in the superior court by William Brewer, defendant herein, against the mayor and chief of police of Chicago, in which Brewer alleged inter alia that he had been the owner and proprietor of a certain establishment, to wit, a drug store located at 629 East 43rd street, Chicago; that the place was leased by him at a monthly rental of $150, and that in addition thereto he has chattel mortgages outstanding conveying the fixtures of said drug store; that he is also liable for weekly payments to employees to the amount of $85 per week.

In defendant’s affidavit of merits he denies plaintiffs’ claim as alleged in their statement of claim; denies that plaintiffs were the owners of the premises in question in July, 1924, or at any other time; denies that he, at and prior to July, 1924, was the actual owner of the drug store at 629 East 43rd street, Chicago, or at any other place in manner plaintiffs allege in their statement of claim; denies that he permitted the drug store to be operated under the nominal ownership of his son as averred by plaintiffs in their statement of claim; denies that he paid plaintiffs $150 per month from July, 1924 to May, 1925, as alleged in said statement; and denies that he owes the plaintiffs any sum of money whatever; denies that the fair and reasonable rental value of the premises is as set forth in plaintiffs’ statement of claim, $150 a month, and denies singly and collectively each and every allegation of plaintiffs in their statement of claim.

We think it is a reasonable inference from what the record contains that, at one time or another, defendant committed wilful and corrupt perjury; that is, either in his bill for injunction, wherein he swore that he had been the owner and proprietor of the drug store at 629- East 43rd street, and that it was leased by him for a monthly rental of $150 a month, etc., or in his affidavit of defense wherein he denies that at and prior to July, 1924, he was the actual owner of the drug store at 629 East 43rd street. The averments of the bill for injunction and those of the affidavit of defense of defendant are contrary to each other. We mention these facts as affecting the credibility of the defendant Brewer and evidencing not only his unreliability, but his willingness in a reckless way to commit such perjury as he might deem necessary to suit the condition in which he finds himself, first as complainant in the bill for injunction, and secondly, in defending the suit at bar.

We think it clear from the proofs that the defendant did conduct the drug store himself in a colorable way under the name of his son, and that under the law plaintiffs had a right to treat him as an undisclosed principal. Whether the relation of landlord and tenant existed between the parties is immaterial so far as the right which plaintiffs had to proceed against defendant for the rent claimed for the months of June, July, August, September and part of May, 1925, as they proved that during that time he was in possession of the premises and operating therein a drug store. We think W. C. Walsh & Co. v. Taylor, 142 Ill. App. 46, is apropos of the facts in this case and therefore controls it as a matter of law, where the court said:

“Appellant contends that as the relationship of landlord and tenant did not exist between him and appellee, no action can be maintained for use and occupation. Where one party occupies the premises of another, without any agreement for the payment of rent, the law implies a promise on the part of the occupant to pay for the use and occupation of such premises the reasonable rental value thereof.

“On proof of ownership of plaintiff and occupation by defendant, the owner is entitled to recover the reasonable rental value for the time of such occupancy, unless an agreement is proven to exist between the parties that the occupancy was to be without rent. Oakes v. Oakes, 16 Ill. 106; Rose v. Day. 21 Ill. App. 139.

“Where the relation of landlord and tenant does not exist a contract to pay rent will be inferred from the mere occupation of the premises, and an action of assumpsit may be maintained for use and occupation. Alexander v. Alexander, 52 ibid. 195.

“Appellant makes no claim that the rental value of the barn is not in the sum fixed by the verdict of the jury and the judgment of the court.

“Aside from the presumptions of law, the statutes of this State in terms give the same remedies to owners against occupants where the relation of landlord and tenant does not exist, as such owner would have if such relationship existed.”

’ We think the foregoing is on all fours with the case at bar and a complete refutation of defendant’s contention. (Jackson v. Reeter, 201 Ill. App. 29.)

No countervailing proof was offered by defendant as to the rental value of the premises for the months for which plaintiffs claimed rent from defendant. If it is true, as claimed by defendant, that Chester Brewer made a deposit of $170 on the lease of the premises held by him, such deposit “to apply as rent for the month of April, 1928, ’ ’ this in no way affects disputes between the parties to the suit.

Counsel assign and argue for error the sustaining by the trial court of an objection to the question put to plaintiffs’ witness Hunt “To whom were you looking for the rent? ” Objection thereto was properly sustained. The question was not as to whom plaintiffs were looking to for rent, but as to whether defendant was liable or not.

When the cause came to trial defendant moved for a change of venue without a petition therefor, and also made a motion for a continuance. There was no error committed in the denial of either of these motions.

Defendant contends that the judgment is in favor of plaintiff when it should have been in the plural number. We think that taking the record altogether the judgment may be read as being in favor of the plaintiffs, for at the most it is but a clerical error. All of the recitations both in the pleadings, affidavits and other recitals, both by the plaintiffs and the defendant, refer to plaintiffs in the plural and not in the singular. Any recitals inconsistent with the foregoing are typographical errors and the legal effect thereof will be given by the court. It would be ridiculous to reverse this judgment on such a flimsy pretense that in one instance in the transcript, but not in the judgment, the plaintiffs were recited in the singular instead of the plural number.

This is a fourth-class action in the municipal court of Chicago, where no written pleadings are necessary. The claim is what the evidence makes it, as this court held in Paris Flouring Co. v. Imperial & Cotto Milling Co., 181 Ill. App. 215, and also the Supreme Court in Edgerton v. Chicago, R. I. & P. R. Co., 240 Ill. 311.

There is no merit either in fact or law to the defense of defendant. Under the proofs the trial court could not have arrived at any other conclusion than that evidenced by its finding and judgment. Therefore the judgment of the municipal court is affirmed.

Affirmed.

Taylor, P. J., and Wilson, J., concur.


text:
    J. L. Gross, Appellee, v. John Johnson, Appellant.
    Gen. No. 32,308.

      Opinion filed May 2, 1928.
    Joseph O. McKiernan, for appellant.
    Charles W. Lamborn, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action in tort and is of the fourth class under the Municipal Court Act, Cahill’s St. ch. 37, 389 et seq., in which plaintiff claims damages to his Chevrolet sedan automobile, resulting from defendant’s servant negligently driving his team of horses drawing a wagon into the rear of plaintiff’s automobile while it was standing at the west curb on South Halsted street, in the city of Chicago, on March 30, 1925.

There was a trial before the judge without a jury, with a finding for the plaintiff with damages assessed at $161.24, upon which judgment was entered, and defendant brings the record here for review by appeal.

In the conclusion to which we have arrived there must be a reversal for procedural error on the part of the trial judge. Consequently, we do not pass upon the facts or the merits of the controversy except to observe that the claim of plaintiff for damage by reason of the loss of the service of his automobile while it was being repaired was a proper element of damage, for which plaintiff may recover if there is evidence adduced proving that he was damaged. While evidence was received upon the trial regarding such damage, it was not heeded by the trial judge in arriving at his finding.

It appears that the trial judge, at the time of the trial, was attempting to preside at two trials at the same time, that of this suit and of another which was in the court room, and this case in the judge’s chambers. During the hearing of this case the trial judge absented himself many times to go into his court room to hear the other case there on trial. This was unethical judicial conduct and cannot be too strongly condemned. No judge should attempt'to try two cases at the same time, for as in the case at bar, an injustice will necessarily result in one, if not in both cases. No exigency of the business of the court can justify such action. During a part of the trial the defendant was excluded by the judge from the hearing, and was not permitted to be present as he had a right to be during all of the time his case was on trial. As said in Odum v. Corn Products Refining Co., 173 Ill. App. 348: “We know of no law that prevents interested persons from being present at the hearing of their case, even though their unfortunate condition was such as to enlist the sympathy of the jury.”

In Loftus v. Chicago Rys. Co., 293 Ill. 475, 476, it was said:

“It is not permissible in the trial of either a civil or criminal case for the trial judge to absent himself from the court room during the argument of the case or at any other step in the proceedings of the trial before the jury. It is the duty of the trial judge, in every instance when he finds it necessary to absent himself from the court room when the trial is in progress, to suspend all judicial proceedings until his return. Such absence of the judge necessarily invites misconduct of some kind on the part of the attorneys, spectators or other persons, and gives the parties to the suit no chance whatever of protecting themselves against such misconduct or of preserving proper exceptions through rulings of the court that might be made on objections raised to such misconduct. This court has frequently declared the rule that the absence of a judge during the argument or other active proceedings in a trial before a jury is to be regarded as fatal error in a civil case unless it shall appear to the reviewing court that the cause of the complaining party was not prejudiced by what occurred in court during the judge’s absence. (Wells v. O’Hare, 209 Ill. 627; Meredeth v. People, 84 id. 479; Durden v. People, 192 id. 493.)”

Defendant had a right to be present during the whole of the trial and it was a denial of his constitutional right for the trial judge to deprive him of that legal privilege.

The foregoing unjudicial action of the court was not only subversive of the right of the litigant, but resulted in the judge endeavoring to expedite the trial by having counsel state what they expected to prove by certain witnesses, and then instructing opposing counsel to cross-examine. This conduct of the judge was highly improper and deprived the parties of substantive rights which the judge should observe in the trial by permitting counsel to place their witnesses upon the witness stand and allowing counsel to examine such witnesses and opposing counsel to cross-examine them. Such.is the usual practice in the ordinary conduct of lawsuits.

At one stage of the trial the court remarked to counsel for the plaintiff, “What will your other witness testify to, counsel?” (Referring to the plaintiff.) Counsel thereupon told in detail what he expected to prove by the plaintiff, after which the court said:

“Is there any doubt, without admitting the truthfulness of the testimony, is there any doubt- that this witness will testify to that, without admitting the truth of his testimony?”

Whereupon counsel for defendant said to the court: “I would much rather, if the Court please,.have the witness testify.”

Whereupon the court observed to the plaintiff witness: “You have been sworn, have you?” who answered, “Yes, sir.”

Then the court said to the witness, “Did you hear what counsel said?” The witness, “Yes, sir, your Honor.”

Then the court asked the witness this question: “Is that the substance of your testimony?” to which he answered, “Yes, sir.”

Then the court said to defendant’s counsel, “Suppose you cross examine him.” Counsel replied, “I want to enter an objection to the method of examining the plaintiff, for the record.”

The improper and irregular conduct on the part of the judge deprived the plaintiff of his right to testify in the usual manner, and also invaded the right of the defendant to hear the testimony from the lips of the plaintiff and to cross-examine him thereon.

The court said, addressing defendant, “Mr. Johnson will you step out?” Mr. Johnson answered, “Yes.” His counsel then said to the court, “I think the defendant is entitled to be in here,” and the court replied, “No,” to which action of the court defendant’s counsel excepted.

For the irregular, unjudicial and erroneous conduct of the trial judge in absenting himself several times during the trial of the case, for the exclusion of the defendant during part of the time'from the trial, for his taking the statement of plaintiff’s attorney as to what the testimony of his client would be if put upon the witness stand, and compelling counsel for defendant to cross-examine the plaintiff upon such statement, the judgment of the municipal court is reversed and the cause is remanded for a new trial in consonance with law and ethical judicial procedure.

Reversed and remanded.

Taylor, P. J., and Wilson, J., concur.


text:
    John Anuzis, Appellee, v. Louis Gotowtt, Appellant.
    Gen. No. 32,320.
    Opinion filed May 2, 1928,
    Z. H. Kadow, for appellant.
    No appearance for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The plaintiff has failed to follow this appeal in this court.

Plaintiff sued the defendant to recover $360, which sum defendant held as the lessor in a lease to one Stanley Katauskis, demising certain premises for a term of five years commencing October 1, 1923, and ending on September 30, 1928.

The action is grounded on a rider to the above-mentioned lease in the following words:

“It is further understood that the lessee has deposited the sum of $360.00 as security for the specific performance of this lease, and that the said deposit of $360.00 so made shall draw interest at the rate of 3% per annum, and that at the expiration of this lease, the money shall be refunded to the lessee, except as hereinafter provided; in the event of the conviction of the lessee for any offense in violating any of the sections of the Volstead Act, then the said $360.00 so deposited with the lessor, shall be forfeited by the lessee and shall be retained by the lessor as liquidated damages.

“It is further agreed that lessee will not sell, barter or give away in any shape or form any liquor that is prohibited by the Volstead Act, and in the event that the lessee will be convicted in violating any of the provisions of the Volstead Act, then this lease will be terminated, and the deposit of $360.00 retained by lessor as hereinabove provided. ’ ’

The lessee in the lease assigned the term therein granted to one Joe Stock, who was the original plaintiff in this action. The plaintiff herein on the trial was substituted for Joe Stock, who was dismissed out of the suit. An examination of the record shows that Stanley Katauskis assigned his interest in the lease to himself, but as the parties treated the assignment as in fact being to Joe Stock, we will so treat it for the purposes of this opinion.

The date of the assignment of the lease to Joe Stock is the 31st day of March, 1925. At that time more than three years of the term remained. There is no writing or formal assignment in any way, shape or manner from Joe Stock to the plaintiff, John Anuzis, and while it is true that the record shows that the plaintiff individually paid to the defendant certain of the rent reserved to be paid by the lease, there was no attornment by defendant to the plaintiff, all of the receipts for rent being given in the name of the assignee Joe Stock.

On a trial before the court, by agreement, there was a finding and judgment for $360, and defendant brings the record here for review.

It will be observed that plaintiff has no written evidence of his interest, if any, in the demised premises. The evidence demonstrates that he is a stranger to the defendant landlord, or as his counsel designated him at the trial, a trespasser, without any rights in the demised^ premises or in the deposit of $360, which the landlord defendant was bound to respect. Furthermore the money was deposited “as security for the specific performance of this lease,” the terms of which had two and one-half years yet to run when the assignment by Stanley Katauslcis to Joe Stock was made. It therefore follows for two reasons that the plaintiff has no interest in or claim to the deposit of $360 made by the lessee, Stanley Katauskis, first, because there is no contractual relationship, express or implied, between him and the defendant; and secondly, because the term not having expired neither Joe Stock nor the plaintiff would have any right to recover that sum from defendant. This is made patent from the fact which inferentially appears from the evidence, that some of the covenants of the lease have not been specifically performed. Stock testified that he had not paid the December, 1925, rent or the January, 1926, rent, and that no rent was paid by him since that time, and that the last rent paid was January, 1926, by the plaintiff in this suit.

It was held in Springer v. De Wolf, 194 Ill. 218, that the lessee cannot shake off his contractual liability by making such an assignment, and that where there is no assumption by the assignee of the obligations of the lease, then as between the lessor and the assignee there is privity of estate only, and the assignee is liable for the rent while such privity of estate exists and no longer, but the assignee may terminate such liability by assigning the lease and going out of possession. Citing Consolidated Coal Co. v. Peers, 166 Ill. 361.

As between defendant and his tenant, Stanley Katauskis, the latter still remains liable to perform the covenants of the lease, including the payment of rent. Furthermore, in no circumstances could plaintiff recover the $360 deposit short of a written specific assignment of that sum, as neither he nor Joe Stock, the assignee of the lease, had any written assignment of the amount deposited under the terms of the rider to the lease. (Williams v. Short, 194 Ill. App. 479.) Under the terms of the lease, notwithstanding the assignment by the tenant to Joe Stock, Stanley Katauskis, the lessee in the lease, is under the terms of the lease liable for rent to the end of the term. Under the terms of the rider to the lease Stanley Katauskis, the lessee, were he seeking to recover the $360 deposit, would not under its terms be entitled to recover.

For the foregoing reasons the judgment of the municipal court is reversed, and as the trial was before the court without a jury by agreement, we will do here what the trial court should have done, enter a judgment for the defendant.

Reversed and judgment here.

Taylor, P. J., and Wilson", J., concur.


author: Mr. Justice Hóldom

text:
    Edward Coulson, Appellee, v. Wenzel Hotels, Inc., Appellant.
    Gen. No. 32,332.
    Opinion filed May 2, 1928.
    Sylvanus George Levy, for appellant; Edgar Bern-hard, of counsel.
    John A. Blake and Arthur Abraham, for appellee.
   Mr. Justice Hóldom

delivered the opinion of the court.

This is a suit between plaintiff, who claimed to be a guest at the Berkshire Hotel, and defendant, proprietor of that hotel owned and operated by the Wenzel Hotels, Inc., for the loss of certain wearing apparel valued in his statement of claim at $577.50. The claim is grounded upon the contention that the wearing apparel was lost from the room of the plaintiff through the negligence of defendant. Defendant denies that the relation of guest and innkeeper at the time of the loss of plaintiff’s wearing apparel existed between them, and, on the other hand, defendant contended on the trial that plaintiff was not a guest but a permanent lodger in the hotel.

As there must be a reversal of the judgment and a new trial awarded for procedural errors and unjudicial conduct of the trial judge, we do not decide the facts of the case, but leave such decision to the court on the next trial of the case.

There was a trial before court and jury with a verdict in favor of the plaintiff, and an assessment of damages at the sum of $502, upon which the trial court entered a judgment, to reverse which judgment defendant assigns for error and argues for reversal the refusal of the court to admit evidence proffered by defendant in an effort to show that plaintiff was a “lodger” and not a “guest,” and also the refusal of the court to receive evidence proffered by defendant in an attempt to prove that defendant was not negligent, and for improper, prejudicial remarks made by the trial judge on the trial of the cause in the presence and hearing of the jury.

The crucial question involved in this trial, as raised by the pleadings, was whether or not plaintiff was a lodger or a guest. Whichever plaintiff was is a matter of pertinent and necessary inquiry from the witnesses testifying in the cause. As the relationship of the parties, as demonstrated by the evidence, fixed the liability of defendant, it was very material that evidence proffered, bearing upon such questions, should have been admitted in evidence by the court, and not excluded, as the court persistently did.

The rule regarding the difference is well stated in Vigeant v. Nelson, 140 Ill. App. 644, where the court said:

“Nor was the plaintiff in error such a guest. He had contracted for a stay by the week at a fixed price, and it has been frequently held that if a boarder enter into a contract, even with an innkeeper, for such a fixed period, at a stipulated price, he ceases to be a guest and becomes a boarder. Between a boarder and the keeper of the place, be it hotel or boarding house, where he boards, there is no such relation as makes the latter an insurer of his goods against loss by theft or otherwise.”

And in Gray v. Drexel Arms Hotel, 146 Ill. App. 604, it was said:

“The plaintiff testified on cross-examination that the Drexel Arms Hotel was her only place of residence from the time she first registered there, and that she considered it her home. * * *

“In our opinion the evidence establishes the relation between the plaintiff and defendant as that of boarder and boarding house keeper or lodger and lodging house keeper, and that the relation of guest and innkeeper did not exist. Hale on Bailments and Carriers, 267, 272; Clifford v. Stafford, 145 Ill. App. 247, and authorities there cited.

“Such being the relation of the parties there was, at most, only a bailment of the property for mutual benefit, and the defendant could only be held to the use of ordinary care in relation to the property of the plaintiff left in her room during her absence from the hotel. Cooley on Torts, pp. 761, 762; Hale on Bailments and Carriers, 242.”

The foregoing statements of the law are recited for the purpose of showing how erroneous the trial judge acted in refusing evidence on the question as to whether plaintiff was a lodger or a guest.

Counsel for defendant asked many questions of his witnesses in an attempt to prove his contention that plaintiff was a lodger and not a guest, to every one of which an objection made by plaintiff was sustained, and there are pages of questions found in the record on this point, which the court excluded.

The court also made prejudicial remarks in the hearing of the jury. Some of those prejudicial remarks are the following:

“The Court: It don’t make any difference. The man was there' as a guest, no matter whether he was going to stay a month or a day. The hotel don’t change its character about the nature of a guest, the way they register. Proceed. If I am wrong let the Appellate Court reverse me.”

The foregoing was an improper statement of the law, which prejudiced defendant materially. Again the court said:

“Is there any denial that this was a regular hotel, that accepted guests of all kinds? Is there any denial that anyone could not go there at any time and register and be given a room?”

Then follows this colloquy between court and counsel:

Counsel for defendant: “Well, any residential hotel that Would—

“The Court: You accepted transient?” to which counsel replied: “Yes, sir. I do not think this is a question for argument before a jury.” And the court retorted: “You leave the implication here that this was not a hotel. I understand it was a hotel.”

Those remarks were certainly most prejudicial to the defense which defendant rightfully endeavored to interpose, because it had a tendency to lead the jury to believe that when a man registered at a hotel he was a guest, whereas it was a question of fact to be proven whether he was a guest or a lodger, in order to fix the responsibility of the hotel defendant. The court then made this remark:

“Mr. Bernhard, are they suing your client as the Berkshire Hotel Company, or are they suing the Wenzel Hotels, Incorporated, the owners of all these eight hotels?” to which Mr. Bernhard answered: “I object to such a remark before the jury.”

The objection was well taken. The court should not have made such a remark. The effect was prejudicial and the remarks of the court were entirely uncalled for.

When a witness answered that the plaintiff arrived at the hotel after the robbery took place, checked out and came back, a subsequent arrival at the hotel, the court said: “That does not make any difference. Objection sustained.”

The prejudicial conduct of the judge was made glaringly manifest, because he said “Objection sustained” when no objection had been interposed. Other remarks of'the court were upon a similar line. These remarks of the trial judge were uncalled for, highly detrimental to the rights of the defendant, and were calculated to impress upon the jury that the judge was exerting himself in the interest of the plaintiff.

For the erroneous rulings of the court found in the record, the intemperate and improper remarks of the court appearing in the record, and some of which are above recited, the judgment of the municipal court is reversed and the cause is remanded for a new trial in accordance with the law and judicial precedent.

Reversed and remanded.

Taylor, P. J., and Wilson, J., concur.


text:
    Audrey Leideck, Appellee, v. City of Chicago and Ray Demmett, Defendants, on Appeal of City of Chicago, Appellant.
    Gen. No. 32,396.

      Opinion filed May 2, 1928.
    Samuel A. Ettelson, Corporation Counsel, and William D, Saltiel, City Attorney, for appellant; Arthur Donoghue and Charles M. McDonnell, Assistant City Attorneys, and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.
    E. Leslie Cole and Charles C. Spencer, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action on the case brought by the plaintiff against the defendant City of Chicago for injuries which she sustained in an accident by being run into and injured by an automobile owned and operated by the City of Chicago, by its servant, Ray Demmett.

The accident occurred on June 4, 1924, when the plaintiff was a minor. However, since that time she has attained her majority, and the cause was prosecuted to judgment in her own name.

The suit originally was against the city and its servant, Ray Demmett, but as to Ray Demmett, on motion of plaintiff, the action was discontinued.

There was a trial before court and jury and a verdict in favor of plaintiff and against the city in the sum of $15,000. On defendant’s motion for a new trial there was remitted from the verdict. $3,000. After the remittitur motions for a new trial and in arrest of judgment made by defendant were overruled and a judgment on the verdict, less the remittitur, for $12,000 was entered against defendant. The record is now before this court for review on the appeal of defendant.

The declaration, as originally filed, consisted of eight counts. On motion-of plaintiff leave was given to withdraw the sixth, seventh and eighth counts of the declaration.

The first count charges that the City of Chicago carelessly, negligently, etc., operated, moved and controlled its automobile, by its servant and agent, whereby and by means whereof said automobile was so driven and propelled by the defendant by its servant and agent that it was carelessly and negligently moved, driven and thrown with great force and violence to and upon the body of the plaintiff.

The second count is similar with the added averment that the plaintiff at the time of the occurrence in question was exercising due care and caution for her own safety.

The third count varies from the second in averring that the automobile of the city was driven with great force and violence without any warning against the body of the plaintiff.

The fourth count is a charge of general negligence by Bay Demmett, the servant of defendant, and the fifth count adds to the general charge of negligence that the servant of defendant drove the automobile at a high rate of speed upon and against the body of plaintiff, by reason whereof she was thrown to and upon the ground and greatly hurt, wounded and injured, and her eyes, head, arms, legs, and body were severely bruised, wounded and crushed and the nerves and nervous system of plaintiff were greatly and permanently impaired, and her spine and spinal column, shoulders, knees, ankles and hips were severely and permanently injured and she suffered great external and internal injuries and was otherwise greatly and severely wounded and injured.

To the declaration as thus composed defendant interposed pleas of not guilty and nonownership of the automobile.

Defendant assigns and argues for reversal:

(1) That the verdict and judgment are against the manifest weight of the evidence;

(2) Error in admitting improper, incompetent and irrelevant evidence on behalf of plaintiff against the objection of defendant;

(3) That the damages assessed are excessive; and

(4) Error in giving to the jury at the instance of plaintiff instructions numbers 8 and 9.

The servant of the city, Bay Demmett, was examined as a witness both for the plaintiff and defendant, and his testimony conclusively proves, that he was the servant of the defendant at the time of the accident, in charge of its automobile and engaged in and about the business of the city at the time of the accident. Consequently we will pay no further attention to the question of ownership and control of the automobile which injured the plaintiff, holding that such ownership and control is undisputably proven by the testimony of Demmett, the city’s servant at the time operating the automobile.

At the time of the injury plaintiff was a school girl 16 years of age and was on her way to the Calhoun school for the morning session. She was walking in an easterly direction on Washington boulevard near the southeast corner of that boulevard and Francisco avenue. Plaintiff testified that she remembered when she was struck. She had placed one foot on the sidewalk at the foregoing corner. While the rate of speed at which the automobile was driven at the time of the accident is in conflict, it appears that defendant’s servant did not have, as he should have had, sufficient control of the automobile at the crossing where the plaintiff was injured, to have observed her in time to have prevented the accident.

The jury might reasonably find from the evidence that just prior to the accident three automobiles were being driven close together, going in an easterly direction on Washington boulevard; that defendant’s automobile was the last of the three; that when about half way between Sacramento and Francisco avenues defendant’s automobile was driven past the second of the other two automobiles on its left-hand side, then between the two automobiles and past the first thereof on the wrong or right-hand side across Francisco avenue, and the plaintiff was struck just as she was raising her foot to step on the sidewalk on the south side of the street; that defendant’s automobile was driven past the other two automobiles and between them and across Francisco avenue at an excessive rate of speed, some witnesses testifying that it went from 30 to 35 miles an hour, and others, on behalf of defendant, that it was not going to exceed 20 miles an hour, and that after the plaintiff was struck by defendant’s automobile she was dragged a distance of more than 50 feet; and further, that as a result of the accident plaintiff sustained large contused abrasions on the left side of the face, temple, cheek and chin and an incised wound on the chest over the sternum, several large contused abrasions on the right leg, hip and ankle on the external side, a deep contused puncture wound on the inner side of the right ankle, that wound being infected; that the left arm at the wrist and left elbow was likewise abrased and infected; that she suffers from tenderness over the spine of the last rib over the coccyx, contusion on the right side of her head about two inches above the ear, and contusion on the left side of her head; that within six weeks after the accident the wounds were, nearly healed and her condition somewhat improved, but that plaintiff’s mental condition is impaired; and while there is some contention as to whether the mental condition is properly attributable to the accident, the medical attendants of plaintiff testified that such mental condition is attributable to the accident.

An examination of the evidence convinces us that the verdict is amply sustained as to the negligence of the servant of the city in charge of its automobile when the accident occurred. Even the evidence of the driver himself condemns-his driving as negligent, tending to recklessness. The manner in which he drove the automobile, as above recited, was negligent and in utter disregard of the rights of pedestrians upon the crossing where the accident occurred. The testimony as to the negligent driving of defendant’s automobile was supported by the testimony of two disinterested witnesses, one Feldman and one Tennison, who were driving cars in the same direction in which the defendant’s car was being driven by its servant'Demmett. In passing the Tennison car defendant’s servant did so on the right-hand side, when he should have passed it on the left as provided in Cahill’s St. ch. 95a, If 41; that according to their testimony he was going at a rate of speed between 30 and 35 miles an hour. That with the exercise of the slightest degree of care Demmett could have avoided striking the plaintiff, for when he struck her she was in the act of putting her foot upon the curb.

Demmett drove defendant’s automobile at the time of the accident in utter disregard of the rights of pedestrians upon the crossing, a place where pedestrians had a right to be. It is evident that an impartial jury could not have done otherwise than to find from the evidence that the driving of Demmett was negligent. The argument of the city that the verdict was contrary to the greater weight of the evidence finds no support in the record, and there is no evidence in the record tending to show that plaintiff was not in the exercise of ordinary care for her own safety at and immediately prior to the time of the accident.

It is defendant’s contention that a question asked Dr. A. V. Allen, the attending physician of plaintiff, was erroneous. The question was: “Q. From your observation of this girl, including your treatment of her since the time you treated her in June, 1924, down to the present time, what have you observed, or what opinion have you formed in regard to her mental condition?” The question was pertinent and proper. The mental condition of plaintiff was in evidence, and no one was better able to give an opinion regarding her mental condition than Dr, Allen, her attending physician. Dr. Allen had wide experience in treating mental cases for many years, and was abundantly qualified to give evidence on that subject, particularly bearing in mind the fact that he was her medical advisor and treated her from the time of the accident to the date of the trial.

We find no other objection made to any other testimony given upon the trial, and therefore the objections now made in this court are not well taken.

On the question of the claimed excessiveness of the damages awarded, there is a contradiction in the evidence of the witnesses testifying pro and con as to the mental condition of plaintiff, and as to whether or not such mental condition existed prior to the accident, or that it occurred subsequent thereto, and is attributable to the accident. So far as the physical injuries of the plaintiff are concerned, they are of a very serious nature as appears from the recitation of such injuries heretofore in this opinion.

Dr. Allen testified that she was confined to her bed for six weeks; that since the accident she has lost weight and has a rapid heart; that she is hard of hearing and that her mental condition is impaired; that a year before the trial such mental condition at times was bad, and that before the accident her mental condition was fairly good.

Dr. Krome supported the foregoing testimony of Dr. Allen in every material particular, and he also gave it as his opinion that the accident was sufficient cause for plaintiff’s mental condition and that such mental condition was permanent.

Dr. Adams, a specialist on nervous diseases, who examined plaintiff just before the trial, testified that he found that plaintiff was in a badly erotic condition as evidenced by marked exaggeration of her reflexes; she was unstable mentally; that she was very emotional, crying easily; that he found some angulation at the fourth lumbar vertebrae and some curvature of the lumbar spine. Dr. Adams testified: “I have an opinion as to her mentality at the time I examined her. I would1 call it very abnormal. I mean that her mind is not functioning right; that she is — I do not like to say this, but bordering on a lost mind and dementia. ’ ’

This medical testimony was supported by the testimony of lay witnesses, including her father, two sisters, an aunt, and several neighbors. Some of these witnesses testified that plaintiff prior to the accident was a strong, healthy girl and that since that event she was nervous and irritable and lacks ambition.

The only medical evidence introduced by defendant was that of Dr. Samuel Brock, who testified hypothetically. The only observation he had of plaintiff was as he sat in the court room for a short time, and he concluded that plaintiff’s then mental condition was not attributable to the accident.

The only testimony which in any way may be said to be in contradiction of the testimony regarding plaintiff’s mental condition before the accident is that of a teacher, Martha J. Mellon, who was teaching in the Calhoun school which plaintiff attended. Miss Mellon taught plaintiff one full year, and as she said “possibly part of another” before June, 1924. She knew the family well and at the time of the death of plaintiff’s mother, she went to the home. She testified that plaintiff always appeared to her to be nervous and seemed to be excited over the least little thing. When she could not get her lessons she would cry; that she said one time that it was difficult for her to concentrate upon her work; that she read in a little excited way; that she “never was able to do anything with numberwork”; that she could talk quite well, but did not read or figure as one ought at her then age, and that she was not very good in geography or history; that if plaintiff was conversing with her outside of school at at intermissions she seemed very capable and conversant particularly on musical subjects “and such as that.” That was her gift to be able to play the piano without any notes. “I think that is the one thing I found her capable of doing, and we let her play the piano down on the first floor very often in the marching of the pupils, and I think that is about the only thing I ever knew her able to do.” In class work she was listless and questions often had to be repeated to her.

On cross-examination this witness testified that her testimony regarding plaintiff related to matters which occurred in the Calhoun school four, or five years before the trial.

Mrs. Winnie Wynn, the aunt of the plaintiff, testified inter alia that plaintiff had to be watched all the time; that she was moody; “that prior to the accident she was a bright and healthy girl, but now sits and cries and picks herself. You can’t talle to her. Sometimes you can and sometimes you can’t. She cries and carries on and wants to know if she is going to die.” Before the accident she would wash and iron and clean and take care of her little sisters, did her share of the housework; that since the accident she would not do anything, that she just sits and picks herself, twists her hands and legs; that is all she does, that she doesn’t do anything at all, all the time, all day long.

We think that the jury might well find, from all of the evidence regarding plaintiff’s mental condition, that it was as testified to by her medical attendants and witnesses, attributable to the accident in question.

The jury’s verdict was $15,000 and on the motion for a new trial a remittitur of $3,000 therefrom was entered, and a judgment entered for $12,000. All the evidence considered regarding plaintiff’s physical injuries and her mental condition attributable to the accident, we are unable to say that the amount of the verdict is excessive compensation for such injuries. It was the particular province of the jury to determine the amount to be awarded plaintiff, and we find nothing in the record which would lead us to believe that their verdict was the result of passion or prejudice, or that the amount of the judgment is more than compensation to plaintiff for the injuries she sustained as the result of the negligent conduct of defendant’s servant Demmett.

Defendant contends that instructions Nos. 8 and 9 should not have been given. Instruction No. 8 reads:

“The statute of the State of Illinois provides that any person operating a motor vehicle on a public highway, shall, on overtaking any other vehicle, pass on the left side thereof.”

The instruction is a partial recital of section 40 of the Motor Vehicle Act, Cahill’s St. ch. 95a, 41. The instruction certainly was pertinent because it was in evidence that Demmett passed to the right of the Tennison car when he should have passed to the left. It is also argued that the instruction is not based on any count in the declaration. It would be proper to give such an instruction where the declaration charges negligence generally, as several of the counts in the declaration in the instant case do. That was the negligent driving of the car, because it was in violation of the method prescribed by the statute. Furthermore it was not necessary to plead the statute, but only facts which brought the violation counted upon within the statute. Chicago & A. R. Co. v. Dillon, 123 Ill. 570.

Instruction No. 9 reads:

“The statute of the State of Illinois, in force at the time of the happening of the accident in question, provided as follows:

“No person shall drive a motor vehicle designed and used for the carrying of not more than seven persons upon any public highway in this state at a speed greater than is reasonable and proper having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person. If the rate of speed of any such motor vehicle operated upon any public highway in this state where the same passes through the closely built up business portions of any incorporated city, town or village exceeds ten (10) miles an hour, or if the rate of speed of any such motor vehicle operated on any public highway in this state where the same passes through the residence portion of any incorporated city, town or village exceeds fifteen (15) miles an hour, such rates of speed shall be prima facie evidence that the person operating such motor vehicle is running at a rate of speed greater than is reasonable and proper having regard to the traffic and use of the way or so as to endanger the life or limb or injure the property of any person.”

Counts four and five of the declaration charge excessive speed. Therefore this recitation of the statute, Cahill’s St. ch. 95a, IT’23, to the jury is in accord with the averments of the declaration and a proper subject matter for the jury’s consideration. The statute would be admissible also under any count charging general negligence. The statute defines in terms as to what is excessive speed under certain conditions, such as passing through crowded, built-up business portions and residence portions of the city. A like instruction in Morrison v. Flowers, 308 Ill. 189, which recited a portion of section 22 of the Motor Vehicle Act, Cahill’s St. ch. 95a, TT 23, the court held was properly given.

In Chicago, B. & Q. R. Co. v. Haggerty, 67 Ill. 113, the court said:

“Still, the instruction in this respect was given in the language of the statute, and we could hardly pronounce to be error the laying down the law in the words, of the law'itself. Had defendant’s counsel been apprehensive that the jury might be misled by the.instruction as to the character of the presumption, he. might have asked, on his part, an explanatory instruction to the effect that the presumption was not a conclusive but only a prima facie one.” Town of Fox v. Town of Kendall, 97 Ill. 72; Duncan v. People, 134 Ill. 110; Kessler v. Washburn, 157 Ill. App. 532.

In the Kessler case, supra, the court held that an instruction given in the language of the act was proper. (Ward v. Meredith, 220 Ill. 66.) In the Ward case, the court said:

“We have held in many cases that no error is committed by giving an instruction in the substantial language of a statute; that the instruction must be regarded as sufficient when it lays down a rule in the words of the law itself.” (Hartje v. Moxley, 235 Ill. 164.)

Had defendant’s counsel been apprehensive as in the case of Chicago, B. & Q. R. Co. v. Haggerty, supra, he might have given an instruction as therein indicated. This he failed to do and furthermore, if it should be held here as in Harris v. Piggly Wiggly Stores, 236 Ill. App. 392, that the instruction should not have been given, then following Stansfield v. Wood, 231 Ill. App. 586, the giving of the instruction would not be reversible error where the evidence in the case was as in the instant case so conclusive of negligence that the giving of the same could not have misled the jury to a wrong conclusion upon the facts. And as held in the Stans field case, supra, we hold here that the giving of the instruction was not reversible error as applied to the facts in this case.

Criticism of instruction No. 9 seems to revolve about the term “prima facie” as used in the statute. In Ehrenheim v. Yellow Cab Co., 239 Ill. App. 403, the court used this language:

“Counsel argue in substance that, because of the use of the words ‘prima facie’ the instruction would not be understood by the ordinary jury and would tend to mislead them. The giving of a similar instruction was held to be erroneous in Stansfield v. Wood, 231 Ill. App. 586, 590, but, under the pleadings and facts of that case, not so erroneous as to require a reversal of the judgment. In the present case we are of the opinion that the record is such that the giving of the instruction could not reasonably have affected the result of the trial, and that, notwithstanding the giving of the instruction, the judgment should be affirmed.”'

The foregoing language is equally applicable to the instant case.

In Webster’s New International Dictionary, “prima facie” is defined as “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted.”

It is the opinion of this court that the jurors were not puzzled about the interpretation of those two words, and that their verdict so evidenced.

Section 18 of the constitution of 1870 provides that “all laws of the State of Illinois, and all official writings, and the executive, legislative, and judicial proceedings shall be conducted, preserved and published in no other than the English language.” By the Act of 1923, section 177, chapter 127, Cahill’s St. ch. 17b, 118, the legislature changed “English language” to “American language,” which in legal effect and intendment is the same thing.

The expression “prima facie” has been regarded as English for many centuries. Originally they were Latin and so were many of our present English words. In volume 7, p. 1357, entitled “A New English Dictionary bn Historical Principles,” edited by Sir James A. H. Murray, published at Oxford in 1909, it is stated that many quotations from English writers contain the expression “prima facie,” going back as far as the year 1420. This would tend to make the expression “prima facie” a part of the English language for 500 years, and we think that it being so generally used may be so considered, and as one of the qualifications for a juror is that he be “well informed and understand the English language” we will assume that the jurors in the instant case were so qualified, and therefore well understood the meaning of the expression “prima facie. ’ ’ Such expression is oftentimes used in instructions and never yet, so far as we are advised, has been held improper or erroneous by the Supreme Court.

Being unable to discover any reversible error in the record, the judgment of the superior court is affirmed.

Affirmed.

Taylor, P. J., and Wilson, J., concur.


author: Mr. Justice Wilson

text:
    George C. Adams et al., Appellants, v. Dora Eisenstein and Josephine Silverberg, Appellees.
    Gen. No. 32,207.

      Opinion filed May 2, 1928.
    Rehearing denied May 17, 1928.
    Adams & Baker, for appellants'; J. 1ST. Baker, of counsel.
    Perlman, Goodman & Scolnik, for appellees; Avern B. Scolnik, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

Prom the facts in this cause it appears that Dora Eisenstein and Josephine Silverberg, the defendants herein, were the owners of a certain piece of property located in the city of Chicago and known as 5001-5005 South Parkway and 409 and 411 East 50th street, upon which there was an apartment building. On the 28th day of August, 1926, one Siegel E. Young entered into a purchase contract with the defendants, by the terms of which they agreed to convey and sell to him the property in question for the total sum of $92,150. The terms of payment were $5,000 cash at the time of execution of the contract, and the assuming and agreeing to pay a then second mortgage against said premises, amounting to the sum of $39,000; $5,150 on October 5, 1926; $200 on the fifth day of each and every month thereafter for nine months; $5,000 on August 5, 1927; the sum of $200 on the fifth day of each and every month thereafter until the entire balance due had been paid, with interest at 7 per cent per annum, payable monthly. It appears that later the said Young assigned, for value received, all his rights, title and interest in and to said contract, to the complainants, G-eorge C. Adams and Minerva J. Adams, which assignment was with the consent of the defendants, and thereafter the said George C. Adams and Minerva J. Adams entered into possession of said premises, receiving the rents and profits therefrom and making improvements aggregating $859, and were in possession at the time of the commencement of this suit. It also appears from the evidence that on October 27, 1926, the complainants entered into an agreement with the defendants whereby they paid the defendants the sum of $2,000 in cash, and caused the rents from the building to be turned over to the defendants and applied on the purchase price of the premises. It appears from the evidence that the complainants have given certain notes which were due on the various dates set out in the agreement. The note falling due on October 5, 1926, for $5,150, was not paid at maturity, and in the meantime the payment of $2,000 became due on the first mortgage. This was paid by the defendants so that it is apparent that on that date the complainants had defaulted on the terms of the contract. On October 27, 1926, the parties entered into the agreement hereinbefore referred to, which was reduced to writing, whereby the complainants paid the sum of $2,000 which was to apply on the money paid by the defendants on the interest of the first mortgage and which should have been paid by complainants. Under the agreement between the parties,, it was further agreed that the rents of the premises were to be paid to the defendants and were to apply on the purchase price, and a written order was given to that effect to the defendants, directed to Hoffman & Becker, agents of the complainants, who were in charge of the collection of rents accruing from the various tenants in the building. These agents proceeded to keep an account of the rental collections and the expenses of the building, and then paid the balance over to the defendants. This agreement of October 27,1926, provided further:

“This, however, to be without prejudice to any rights of the undersigned under the terms of the aforesaid contract.”

The contract referred to was the original contract and contained a clause to the effect that in case of failure of the said party of the second part to make any of the payments due thereunder, or to perform any of the covenants in said agreement, the contract could be forfeited at the option of the first party, and thereby all payments theretofore made should be forfeited and considered as liquidated damages, and the first party should have the right of re-entry. A further provision in the original contract provided that the time of payment should be the essence of the contract. It appears further from the testimony that further defaults were made in the payments due on the original contract; that the rents were not sufficient to take care of the payments, and the defendants elected to declare the whole amount due on the contract, and served a notice of forfeiture upon the complainants. The complainants, failing to make the payments as demanded in the notice served upon them, the defendants instituted a suit in the municipal court for forcible entry and detainer and for possession of the premises. This ease was continued from time to time and on March 15, 1927, complainants filed their bill in the superior court of Cook county, praying for an accounting and injunction to restrain the forcible entry and- detainer suit. After hearing by the trial court the bill was dismissed and it is from this judgment that this appeal is perfected to this court.

It appears from the testimony that there was due, according to the statements of Hoffman and Becker, $6,466.92, on March 5, 1927, to the defendants on the purchase contract which had been entered into, after allowing credit for all rents collected. It also appears that the complainants did not have this sum nor were they able to procure it in order to make payment, in full or in part, upon the purchase contract. Under the terms of this original purchase contract, the complainants were required to pay the interest on the mortgages and as a result of their failure to do so, it became necessary for the defendants to make these payments in order to protect the property from foreclosure. Undoubtedly, under the authorities, equity will not declare nor enforce a forfeiture where it is harsh or inequitable to do so, but all the authorities recognize that competent parties may make a contract as to penalties or forfeitures, and that courts of equity, as well as courts of law, will recognize the rights of the parties as to such penalties or forfeitures. Lang v. Hendenberg, 277 Ill. 368. In the case at bar the amount paid in was not so great or so nearly a complete payment of the amount required under the contract as to create a situation where it would be repugnant to a court of equity to enforce the forfeiture. Moreover, there is no offer on behalf of complainants to pay or provide for the amount due under the agreement and it would not be fair to the defendants to compel them to carry the burden and expenses of the property and allow complainants to have the benefit thereof.

The complainants rely particularly, as a ground for reversal, on the fact that at the time the supplemental agreement of October 27, 1926, was entered into, and before the written instrument or agreement was executed, there was an understanding between the parties to the effect that on or about the 26th day of October, 1926, Mrs. Eisenstein, one of the defendants, agreed to waive all rights of forfeiture of the contract, if the complainants would assign to the defendant the right to collect the rents from the premises and apply the same on the contract, and that, thereupon, relying upon this agreement, the Adamses stated that they would make this assignment of all rents and pay $2,000 towards the payment of the note which had already accrued. This offer of testimony was refused by the trial court, and we think justly so. If there was such an understanding there was no valid reason why it should not have been inserted in and made a part of the supplemental or additional agreement entered into October 27, 1926, after the alleged conversation had taken place between the parties. It is a safe rule of law that parties are presumed to incorporate in the written instrument all the terms and conditions discussed by them prior to its execution. If this were not the fact, but few agreements would be able to stand in a court of law when called upon to answer the test. It is true that there are certain exceptions, as where fraud has entered into the agreement, but this case does not appear to come within that exception and we believe the trial court correctly refused to permit the testimony in question to be introduced in evidence. Verbal promises and agreements made during negotiations leading up to the execution of a written contract become merged in the written contract. Cronk v. Thomas F. Lee Land Co., 210 Ill. App. 634; Lanum v. Harrington, 267 Ill. 57. There was, moreover, no need to go into the question of an accounting, and there apparently was no dispute of the figures, most of which were furnished to the trial court by Hoffman and Becker, agents of the complainants, and as to the amounts due under the contracts, those amounts were easily ascertainable through ordinary calculation of the trial court. In view of the fact that it was apparent from the testimony that the payments of rent were insufficient to provide for . and take care of the payments due under the original contract, and particularly in view of the fact that the agreement of October 27, 1926, expressly declared that the right of forfeiture under the original undertaking was .not waived, we agree with'the learned chancellor that the defendants had a right to declare the contract at an end and to seek to obtain possession of the premises.

For the reasons stated in this opinion, the decree of the superior court is affirmed.

Decree affirmed.

Taylor, P. J., and Holdom, J., concur.


text:
    Automatic Screw Machine Products Company and Jensen, Nehls & Company, Appellees, v. Benedict Manufacturing Company et al., Appellees. John P. Novak, Appellant.
    Gen. No. 32,288.

      Opinion filed May 2, 1928.
    Rehearing denied May 17, 1928.
    Arthur H. Jones, for appellant.
    Nicholson, Crandall & Snyder, for appellees.
   Mr. Justice Wilson

delivered the opinion of the court.

From the facts in this case it appears that the Automatic Screw Machine Products Company, a corporation, and the Jensen, Nehls & Company, a corporation, filed their certain bill as complainants against the Benedict Manufacturing Company, charging that one John Benedict, president and manager of the said defendant company, had absconded, and that there was danger of the assets of the corporation being lost unless a receiver was appointed for the benefit of creditors, and praying that a receiver be appointed to protect and take care of the assets of the corporation. The Benedict Manufacturing Company, defendant in that action, appeared and consented to the appointment of a receiver, and thereupon the Union Bank of Chicago was appointed as receiver under an order of court. Some time later an amendment to the bill of complaint was filed, making J. Henry Mueller and John P. Novak parties defendant, and summons was issued directed to the sheriff of Cook county commanding that he summon said defendants to appear before the court the first day of the February term of 1926. The said additional defendants were duly served but defaulted and thereupon the amended bill was taken as confessed against them and an amended decree, based upon the bill as amended, was entered by the court. The amendment to the original bill, making Novak and Mueller parties defendant to the original bill, was predicated upon their liability as stockholders, by reason of the fact that the corporation and its assets were unable to satisfy the claims of creditors. The amended decree entered in said cause found that Novak, by reason of his stock liability, was indebted to the corporation for the benefit of its creditors in the sum of $9,800, and the decree provided that this amount should be paid by the said Novak to the receiver, the Union Bank of Chicago, and the clerk of the court was directed to issue execution against Novak for said amount.

The petitioner in this proceeding, John P. Novak, charges in his petition that he did not have notice of the final decree and the order upon him to pay said amount, until he had been served with execution as provided in said decree. By his petition in said cause he asks that the court review said decree and correct it, on the ground that he is unable to pay said amount, and also for irregularities in the original proceeding. The trial court considered said petition and heard evidence in regard thereto, and after a full consideration of the matter, denied the prayer of the petition asking for leave to file a bill of review in said cause. It is urged on behalf of the petitioner that there were no averments in the original bill on which the amended bill was based. We are not in accord with this contention. The original bill appears to have been one asking that the affairs of the corporation be wound up and that a receiver be appointed and the property of the corporation conserved for the benefit of creditors. The amended bill appears to have been one to enforce the stockholders’ liability and was germane to the original bill and appears to have been filed after it became apparent that the corporation did not have sufficient assets to satisfy the claims.

It is urged on behalf of the petitioner that the Union Bank of Chicago is a new party to the suit and that the court had no legal right to make a judgment run in favor of said Union Bank of Chicago. We can find no force in this contention. The Union Bank of Chicago was acting for and on behalf of the court for the purpose of marshalling and protecting the assets of the corporation for the benefit of the creditors, and in that connection was acting as an arm of the court, and the power to collect placed in said receiver was for the purpose of expediting the collection of assets and conserving the property for the benefit of creditors. It was a usual and customary way for a chancery court to carry out the purposes of the decree and to do equity. Such a practice has been recognized by the Supreme Court of this State in the case of Gillett v. Chicago Title & Trust Co., 230 Ill. 373. There appears to be no other practical way by which the court could operate under the same or similar circumstances. The corporation itself could not collect, as it was defunct and had no operating management.

It is further urged by petitioner that the court had no authority to provide for the fees of counsel in its decree, but that such fees should be entered as costs. If such is the law, the petitioner as a party defendant to the amended bill had full opportunity to question the power of the court at the time the decree was entered if he had seen fit to enter his appearance and participate in the proceedings and we do not believe the decree could be attacked on that ground by a bill of review, after petitioner had been given full opportunity to be heard.

There appears to be but one vital question, so far as we can see,, in the case, namely, that the petitioner comes under the exception that not being able to pay the amount provided in the decree, he, therefore, is entitled to have the decree reviewed, in order that he may be equitably relieved of a burden which he is unable to assume. It is a generally recognized rule that a bill of review cannot be maintained to amend, reverse or set aside a decree unless the complainant has performed the decree or obtained an order dispensing with performance, before the filing of said bill. The exception to this rule is when it is apparent that the decree has extinguished a right, or the party shows himself absolutely unable to comply with the decree. Kuttner v. Haines, 135 Ill. 382; Ricker v. Powell, 100 U. S. 104. In the Bicker case, supra, the court said in its opinion:

“The rule is well settled, subject, however, to some exceptions, that ‘Before a bill of review * * * can be filed the decree must be first obeyed and performed. * * * Thus, if money is directed to be paid it ought to be paid before the bill of review is filed; though it may afterwards be ordered to be refunded.’ 2 Dan. Ch. Pr. 4th ed., 1582; Story, Eq. PL, sec. 406. Chancellor Kent thus states the rule and the reason of it in Wiser v. Blachly, 2 Johns. Ch. 488: ‘In the first place, the party asking for a bill of review must generally show that he has performed the decree; especially if it be * * * a decree for the payment of money, and he must likewise pay the costs, and nothing will excuse the party from this duty but evidence of his inability to perform it. Williams v. Mellish, 1 Vern., 117; Fitton v. Macclesfield, 1 Vern., 264; Cooper, Eq. Pl., 90; note to Bish. of Durham v. Liddell, 2 Bro. (P. C.), 63. This appears to be a settled rule, laid down both in the ancient and modern books; but the petitioners have paid no attention to this rule, for there is no offer to perform any part of the decree or even’to bring the money into court, or any pretext of poverty, want of assets, or other inability to do it. There is wisdom in the establishment of such a provision, and it ought to be duly enforced. Its object is to prevent abuse in the administration of justice, by filing of bills of review for delay and vexation, or otherwise protracting the litigation, to the discouragement and distress of the adverse party. ’ ”

Petitioner herein states that he is unable to satisfy the decree against him, and therefore asks that he be allowed to file his bill of review in said cause. As we have stated, in our opinion, it appears from the record that he was summoned to appear at the time the amendment to the bill was filed, and it further appears from the record that he himself filed a claim in said cause against the corporation. Moreover, it appears from the briefs filed in this cause that his deposition was taken and that it was from facts brought out upon his deposition that the bill was amended so as to create a stockholder’s liability. It is urged that this fact is not before this court, and we do not consider it except that it indicates that the trial court, in denying the petitioner leave to file his bill of review, had such and similar facts before it at that time, and had a right to consider them in view of the fact that a court always takes cognizance of its own records and proceedings. The only consideration, therefore, that could be given it in this court would be that it was one of the numerous things that might enter into the ruling of the trial court when called upon to use its discretion as to whether or not the petition should be allowed. The principal and controlling fact, however, in the cause, appears to be that the petitioner has not offered to perforin, either in full or in part. He was examined as a witness before the trial court, and from his testimony it appears that he owned a one-half interest in a piece of real estate located in the city of Chicago. From his testimony and that of other witnesses, it appears that the value of this property was somewhere in the neighborhood of $11,000, with an incumbrance thereon of $5,300. We do not find in the petition nor in the record any offer to perform any part of the decree, and we are of the opinion that a party seeldng to file a bill of review, in order to relieve himself of the obligation of satisfying the judgment, or decree, must first tender performance or satisfaction of the decree or judgment, and if unable to tender performance or satisfy the decree or judgment in full, then he should tender such amount in satisfaction of the decree as he is capable of doing, before a court of equity will open a decree for the purpose of allowing a bill of review to be filed. There being no tender on the part of petitioner, of any part of the amount of the decree to be paid, we are of the opinion that the learned chancellor did not abuse his discretion in refusing the prayer of the petition.

For the reasons stated in this opinion, the order of the circuit court will be confirmed and approved.

Order denying leave to file bill of review confirmed and approved.


author: Mr. Presiding Justice Barnes

text:
    William G. McNulty and John P. McNulty, Trading as William G. McNulty & Brother, Appellants, v. J. J. White, Appellee.
    Gen. No. 32,343.

      Opinion filed May 8, 1928.
    .Cassels, Potter & Bentley, for appellants; Kenneth B. Hawkins, of counsel.
    Stebbins, Carey, L’Amoreaux & Hurtubise, for appellee; J. E. Hurtubise and James C. Byrne, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

At the January term of the circuit court appellants obtained a judgment as by default against defendant for $9,601.91. Defendant (appellee herein) had duly entered his appearance through his attorneys but had failed to file any pleadings within the time extended therefor. At the next term after the entry of said judgment defendant presented a motion to vacate the same under section 89 of the Practice Act, Cahill’s St. eh. 110, H 89, and with leave of court filed a petition and affidavit by one of his attorneys in support thereof on April 29, 1927. On the same day plaintiffs filed a general demurrer to the petition. Later, on May 13, petitioner filed two more affidavits supporting the petition, and the matter came on for hearing June 1, 1927. On that day before the hearing plaintiffs filed two affidavits taking issue on what we regard as immaterial matters, and also a motion to expunge from the record “all the testimony, affidavits and other evidence heard in support of the petition and to exclude the same and dismiss the petition.”

The order recited that the cause came up for hearing upon said petition, affidavits, demurrer and motion to dismiss the petition and strike the affidavits from the record, and ordered that the demurrer be overruled, the motion of plaintiffs to dismiss the petition-and strike from the record be denied, the petition be sustained, -and said judgment and the order of default be vacated and set aside. From said order this appeal is taken.

The brief first filed by appellants in this court having discussed as error only the overruling of the demurrer, appellee replied that the demurrer had been waived by the filing of counteraffidavits, and that under the rules of this court other assigned errors not argued must be deemed waived. Thereupon appellants wishing to argue the assigned error of denying their said motion to strike and dismiss, requested leave to file an additional brief. The cause not having been reached for hearing, we granted the leave, deeming it a proper exercise of discretion in order to bring the entire merits of the proceedings before us. In their additional brief appellants concede that by filing counter-affidavits they on general principles of practice would waive the demurrer, but urge that their motion to expunge or strike from the record “all the testimony and affidavits and other evidence heard in support of said petition, and to exclude the same and to dismiss the said petition” was in the nature of a demurrer to the evidence which it was error to deny.

We recognize that under the practice in this State in this kind of a proceeding counteraffidavits are treated as pleas to the petition or motion (People v. Crooks, 326 Ill. 266), and that in any case when pleas are filed while a demurrer is pending the demurrer is waived. (Grier v. Gibson, 36 Ill. 521, 522; Bennet v. Gilbert, 94 Ill. App. 505, 514.) But it is apparent from the order and the record that whether the court considered appellants’ motion in the light of a demurrer to the evidence or as reopening the demurrer to the petition, in either case the motion presented a question of law only. The bill of exceptions does not disclose that any evidence was in fact heard. If the affidavits were considered as such, the court must have regarded the controverted facts as immaterial and have deemed those uncontroverted as sufficient to support the petition.

But as we view it, no evidence being heard, the effect of the motion was a demurrer to the cause of action. In other words, in asking the court to disregard or strike the affidavits and to dismiss the petition it presented the question anew whether it stated proper facts upon which to predicate a motion to vacate the judgment, and therefore a question of law only, for the affidavits merely verifying the facts set up in the petition added nothing to its sufficiency if such facts were wholly immaterial and not errors of fact.

We shall briefly summarize the facts relied upon. After reciting the facts of record, as aforesaid, including the fact that other defendants than appellee were made parties to the suit, the petition alleges in the first paragraph that there was a dismissal of said other parties defendant without notice to the attorneys for appellee or the other defendants. It is too obvious for discussion that this allegation states no error in fact which in such a proceeding must be some fact unknown to the court and which, if known, would have precluded the rendition of the judgment. (Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, 522.) Besides, if the court wrongfully dismissed the other defendants out of the case it constituted an error of law and not one of fact and would have been reviewable on appeal or writ of error.

The second paragraph of defendant’s petition merely recites the history of the case and does not purport to set forth any error of fact.

Passing for a moment the allegations in the third paragraph of the petition, we shall briefly refer to the allegations in the remaining paragraphs.

The fourth and fifth paragraphs of the petition allege that when damages were assessed neither defendant nor his attorneys were present, and that the record falsely recites that the parties to the suit were present by their respective attorneys. In People v. Noonan, 276 Ill. 430, a like proceeding where the motion to vacate the judgment was urged on like recitals in the judgment order -and the averment that they were incorrect, the court said it was only concerning matters of which the judgment itself is silent that the court may entertain a motion under section 89 of the Practice Act, Cahill’s St. ch. 110, 89, to correct errors in fact; that affidavits in support of such motion cannot be heard to contradict the record, and that under such a state of facts no relief could be had under said section 89. (p. 434.)

The sixth paragraph of the petition sets forth a state of facts tending to show that when appellee’s attorney who had charge of the pleadings was reminded that the time for filing a plea in said case was about to expire, he, through confusion or inadvertence as to the case referred to, failed to file it. Unquestionably such failure must be deemed negligence or a mistake of fact by counsel but not an error in fact which if known by the court would have prevented entering the judgment (Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, 522; Chapman v. North American Life Ins. Co., 292 Ill. 179); for a motion under section 89, Ca-hill’s St. ch. 110, U 89, is not intended to relieve a party from the consequences of his own negligence. (Loew v. Krauspe, 320 Ill. 244.) Even when a motion to vacate the judgment is made during the term the judgment was entered it will not as a rule be entertained where the default is due to negligence or lack of diligence. (Schultz v. Meiselbar, 144 Ill. 26.)

The seventh paragraph alleges that the defendant has a good and meritorious defense. But it has been held that lack of knowledge by the court of facts in the case which constitute the defense is not an error of fact which can be corrected by such a motion. (Marabia v. Mary Thompson Hospital of Chicago for Women and Children, 309 Ill. 147, 155.)

It is unnecessary to analyze the affidavits in support of these allegations if as we hold they do not constitute errors of fact reviewable under said section 89, Cahill’s St. ch. 110, li 89, nor to consider them so far as they present merely a question of professional ethics in failing to give appellee’s counsel notice of taking default or of assessment of damages.

Coming now to consideration of the allegation in the third paragraph of the petition of the failure to give such notice, the question presented and the main one discussed is whether such failure constitutes an error in fact upon which a motion under section 89 may be predicated. On this question rule 20 of the circuit court has been brought before us, which reads: “No motion will be heard or order made in any cause without notice to the opposite party, when an appearance of such party has been entered, except where a party is in default or when a cause is reached on the call of the trial calendar.” That notice of taking a default need not be given under such rule seems to be conceded, but it is urged that the rule does not dispense with notice of the assessment of damages, it being a recognized right of a defendant who has appeared and been defaulted to appear and cross-examine plaintiff’s witnesses, and introduce witnesses on his part on the question of damages. While this is true, and the opportunity to exercise the right would probably be given if requested of the court, it does not follow that a defaulted defendant is entitled to such notice under the rule. Its plain meaning is that notice need not be given to a party when or after he is “in default” for want of taking issue under our practice.

A different interpretation urged is that stated in Straus v. Biesen, 242 Ill. App. 370, that as a default tó plead admits the cause of action, but not the amount of damages, it is not a “complete default” under the rule. The question arose there on a writ of error, and therefore as an alleged error of law and not one of fact. The construction of the rule, however, was in conflict with that of another division of this court in Precision Products Co. v. Cady, 233 Ill. App. 72, and, in our opinion, with the decision in Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, on which the ruling in the Cady case was based. In the Cramer case a default was taken and the damages assessed without notice after defendants’ pleas were stricken from the files for want of an affidavit of merits, and judgment was entered. After the expiration of the term in which the judgment was entered a motion was made under said section 89, Cahill’s St. ch. 110, if 89, to vacate it, setting up as an alleged error in fact the failure to give notice under the rule above stated, which, as the opinion indicates, included want of notice of the assessment as'well as of tailing the default. The court said that the rule itself excepted from the requirement of notice any case where the party was “in default,” and ‘ ‘ that the rule did not apply. ’ ’ It also said if there was any error in entering default and judgment it was error of law and not of fact. The decision, therefore, seems to be conclusive not only of the proper construction of the rule but of the point that if there was a violation of the rule it constituted an error of law and not one of fact.

"Whether, therefore, we deem plaintiffs’ motion to dismiss the petition and to strike the affidavits as a demurrer to the evidence, on the theory that the court treated the affidavits as such, or in practical effect, a demurrer to the petition, it raised a question of law only, and we think the court erred in denying the motion, it appearing neither by the petition nor by the affidavits in support thereof, whether considered as evidence or not, that any of the matters alleged in either constituted an error in fact.

Accordingly the judgment order vacating the judgment in the case and setting aside such def ault will be reversed.

Reversed.

G-ridlby and Scanlan, JJ., concur.