text:
    Sophie Lipinska, Appellee, v. The Alliance National Bank, Appellant.
    Gen. No. 31,531.
    1. Banking — inferences from size of deposit. No inferences can be drawn against a depositor in her suit against a bank for failure to credit her with the full amount of a deposit, from the large size of the deposit or its being deposited by a friend, on a showing that she frequently made deposits in that way of near that amount and had ample income to do so.

      2. Banking — grounds for crediting deposit contrary to ledger. In an action by a depositor to secure credit for the alleged full amount of a deposit, only a small part of which was credited to her on the books of the bank, the entry of the full amount in her pass book and the testimony of the one who made the deposit that the full amount was deposited made the judgment for her proof against reversal in spite of the bank teller’s evidence and the bank ledger entry showing a much smaller deposit.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. John A. Swanson, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed October 19, 1927.
    Rathje, Wesemann, Hinckley & Barnard, for appellant.
    Harry Brown and Milton O. Naramore, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

The defendant, The Alliance National Bank, was a corporation operating in the city of Chicago and performed a regular hanking business, and among other departments had a savings department. The appellee, Sophie Lipinska, was a depositor of the bank and had been for a considerable space prior to the time of the deposit of the amount involved in this litigation. It appears that the appellee did not have a checking account in said bank, but that her dealings were confined to her deposits in the savings department. Her first deposit was made January 14, 1922, and the deposit in question was made October 23, 1923. Appellee’s cause of action was in assumpsit, to recover from the bank the sum of $8,000, under a deposit alleged to have been made by her on October 23, 1923, and which she claims was a deposit in full of $9,400, but which appellant claims was only $1,400. A jury was waived by the parties on the hearing below and the cause tried to the court, resulting in a verdict and judgment of $8,000 in favor of appellee.

There are no questions of law involved in the proceeding. The matter is purely one of fact, as to whether or not the deposit was $9,400 or $1,400. In view of the size of the deposit and particularly in view of the fact that the deposit consisted of currency, it is well to consider the dealings of the parties prior to that time and appellee’s custom in the making of her previous deposits and her ability to make a deposit of the size in question, as bearing on the probability of the truth of her contention. The record, as shown by her deposit book and concerning which there is no question, except as to the one item involved, shows from January 14, 1922, up to and including November 13,1923, a large number of deposits ranging in amount from $1,000 to $10,478.18. The average amount of each deposit'was apparently in the neighborhood of between $5,000 and $6,000. Appellee, herself, testified that she was a physician, practicing in the city of Chicago, with offices on Milwaukee avenue; that she was a medical graduate and had been practicing for approximately 20 years; that she had a large number of patients, sometimes running as high as 100 to 125 in a day; that she was in the habit of keeping the payments made by them until there was a considerable sum accumulated, and she would then send these deposits to the bank by somebody acting as her agent in that regard. It further appears from the testimony, and is not controverted, that she had large savings account in three or four other banks in Chicago; that she was the owner of several apartment buildings, which provided her with a large rental, and from all the circumstances in evidence, this court is of the opinion that the depositing of this amount in currency and small bills was not an unusual occurrence, and that no inference could result from such deposit, against appellee, by reason of the manner in which it was deposited or the amount involved. She further testified that she recalled the making of the deposit and that she, herself, never went to the bank; and that she had called Mrs. Becker, who made the deposit for her, on the night previous to the day in question; and that she gave her the $9,400; that she counted the money and it was in $300 packages; and that it was a very large bundle when the packages were finally prepared for Mrs. Becker to take to the bank. She further testified that there were no checks in the deposit of $9,400, and that the bills were fives, tens and twenties. She had been solicited to become a stockholder of the bank, and did so and was a stockholder at the time of this proceeding. She testified further that upon the return of her book which contained a memorandum of her deposits made by the bank, she examined it and found there was a deposit of $9,400, as of October 23, 1923, credited to her account in said bank, and that this was the book returned to her by Mrs. Becker. It is conceded that the deposit book of the appellee contains this item for this amount.

Mrs. Becker, who made the deposit for appellee, testified that she had -known the appellee for 18 or 20 years; that she had had business transactions with her and had made deposits for her, prior to the deposit in question. She stated that she recalled the deposit of October 23, 1923, and that it consisted of a large bundle, made up of packages of $300 each, all in currency; that the window was opened by the teller to permit the bundle to be passed over and counted; and that after he had counted the money he had stated to her there was $9,400. Mrs. Becker stated that she had understood there was $9,300; that she thereupon called Dr. Lipinska on the telephone and told her of this fact and the doctor said it was all right, that it was $9,400'. She further testified that there were 31 packages, made up, as she understood it, of $300 each. She further testified that the teller, after counting the money, returned the savings book to her with the entry now contained therein; that on November 13, about three weeks later, she again made a deposit on behalf of the appellee, at The Alliance National Bank, of over $8,000.

The matter remained in this situation until about April or May, 1924, at which time Charles Nowinski, a real estate agent in Chicago for a number of years, and acting as agent in the management of some of appellee’s real estate holdings, was sent to the bank to withdraw $16,000. He talked with a Mr. Adams, connected with the bank, who, after a few minutes, returned and said there must be some mistake as the doctor did not have as much money as that coming to her. This witness testified that appellee’s total rentals from property were approximately $120,000 a year. The bank apparently began an investigation of its records, and the witness, Nowinski, accompanied by Mr. Rushkewicz and two other men, then went to •the doctor’s office. At this meeting it appears there was some talk about the conduct of the teller and his liability, if any, and the witness Rushkewicz stated that in this conversation appellee said that she did not know whether the deposit was $1,400 or $1,300; that she didn’t know much about it. This conversation, however, was denied by appellee although she admitted the parties had been to see her, but stated she told them the deposit was $9,400. Nowinski corroborates her in this; that nothing was said by her about the amount being $1,400.

The bank records consisted of a ledger sheet in the name of appellee. It shows a deposit on October 23, 1923, of $1,400, leaving her with a balance at that time to her account of $23,235.99. Appellant also introduced in evidence, as part of the bank’s records, a deposit slip showing a deposit by Sophie Lipinska, on October 23, 1923, of $1,400; but the same deposit slip contains a memorandum to the effect that her balance was $31,235.99. The difference between the bálance, as shown by this deposit slip and the balance as shown by the ledger of the bank, would be $8,000, the amount in controversy.

Anthony Karoleski, the teller, testifying as to the occurrence on October 23, stated that he recalled a deposit made by Sophie Lipinska, but that he did not know Mrs. Becker; that he wrote the deposit slip in the forenoon; that he recalled Mrs. Becker making a deposit on October 23,1923; that he counted the money and saw that it was $1,400; that he asked her what the amount was and she said it was $1,300; that he then told her there was a difference of $100, and asked her to call up Dr. Lipinska, which she did. He further testified that the deposit notation in the pass book was in his handwriting; that the denominations of the currency were fives, tens, and singles; that there were no checks; that the money was done up in a package and wrapped up in bundles and tied up in a newspaper; that he recalled that at the time of the entry he looked at it sideways and took the one for a nine, and that the amount of the balance on the deposit slip he took from the pass book; and that the first time he knew there was any discrepancy in the amount was sometime in July of the next year, or about nine months after, when it was called to his attention by the bank.

From the foregoing facts it would appear that two witnesses have testified positively as to the amount of the deposit made on Octdber 23, and that it was $9,400. In addition to this the pass book bears the notation of $9,400 as having been deposited on that date, and the deposit slip made out during the day, while bearing the number $1,400, also bore the balance of $31,235.99. Opposed to this is the testimony of the teller who testified that the amount was $1,400; that the notation of $1,400 on the book was made by him after the deposit had been made on the forenoon of that day; that he had taken the balance which appears on the deposit slip, from the pass book and that he had made a mistake in entering the amount in the pass book, by mistaking the figure one for a nine. As a circumstance, it also appears that the appellee made a further deposit, within three weeks, of over $8,000 made up of small bills; that the amount was allowed to lie in the bank until April or May of the following year before she made any attempt to withdraw it and called their attention to it. It must also be borne in mind that the teller must necessarily have taken in a large number of deposits from October 23, until this matter was called to his attention the following year, and his testimony must, therefore, be considered in connection with the volume of business done by him,

As we view it, it was purely a question of fact which was passed upon by the trial judge, who had the benefit of seeing and hearing the witnesses, and it is impossible for this court to say, as a matter of law, that the facts are so manifestly against the weight of the evidence as to require a reversal of the judgment by this court, and for that reason, the judgment of the circuit court is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Wilson

license: Public Domain

text:
    The Parent Manufacturing Company, Appellee, v. Oil Products Appliance Company, Appellant.
    Gen. No. 31,553.
    1. Pleading — how defense set forth in affidavit of merits. An affidavit of merits need not specify the nature of the defense but only reasonably inform the opposing party of the defense to be interposed at the trial.
    2. Confession of judgment — extent of discretion in setting aside. The considerable discretion of the court in passing on a motion to set aside a judgment by confession should be applied by considering whether there are equitable reasons for permitting the defendant to put in his defense.

      3. Confession of judgment — affidavit in support of motion to set aside. An. affidavit in support of a motion to set aside a judgment by confession on notes, on the ground of no consideration, should state facts showing there was no consideration, including the circumstances of signing, execution and delivery by the defendant.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. John A. Swanson, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed October 19, 1927.
    Winston, Strawn & Shaw, for appellant.
    Ernest Peacock, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

Judgment by confession on certain promissory notes was entered at the May term, 1926, of the circuit court, by the plaintiff against the defendant, Oil Products Appliance Company. The judgment was for $4,377.50. Execution issued upon said judgment and thereupon defendant appeared and filed an affidavit, which, in effect, stated that the first knowledge defendant had of the judgment was on the 19th of June, 1926, and immediately made a motion to set aside the judgment. That motion was denied by the circuit court. It appears from the record that the motion was made in apt time. The only question involved is as to whether or not the defense set up in the affidavit was such as to so require the circuit court to set aside the judgment, and giving the defendant an opportunity to plead. The only grounds set up in the affidavit were as follows: “Affiant further states that no consideration in law or in fact was given for said notes and that there was an absence of consideration.” The trial court refused to grant the motion and this appeal was perfected and is now before this court for consideration. The matter, as presented here, is upon the abstract filed herein, the record of the cause, and the brief and argument of counsel for appellant. It is insisted that the affidavit states a good defense to the action and that, therefore, the court abused its discretion in not granting" the motion to set aside the judgment. In. support of this contention counsel cite Reddig v. Looney, 208 Ill. App. 413; Matthiessen v. Duntley, 307 Ill. 36, and Goding v. MacArthur Co., 181 Ill. App. 373; and other cases, to the effect that under the rules of the Appellate Court and also under section 55 of the Practice Act, Cahill’s St. ch. 110, ¶ 55, a defendant is not required in his affidavit of merits to specify the nature of his defense, but that it is sufficient if it reasonably inform the defendant of the defense which was interposed at the trial. We understand this to be the correct rule of practice under the rules of the Municipal Court and the Practice Act, but that upon motion to set aside and avoid a judgment by confession, a different rule is applicable. In considering a motion to set aside a judgment by confession, the trial court has considerable discretion, but in applying its discretion it should consider whether there are equitable reasons why the judgment should be opened and the defendant permitted to put in a defense. (Mumford v. Tolman, 157 Ill. 258.)

It is true that as a matter of pleading, a plea setting up the fact that there was an entire want of consideration for the notes would be sufficient to introduce proof on that issue, but on the question of setting aside a judgment it would be insufficient unless accompanied by the facts which would show that there was, in fact, no consideration for the notes. It may be argued that this would require negative'proof which it would be impossible to supply, but there is no doubt it would have been possible for the defendant below to set up the circumstances under which the notes came into the hands of the plaintiff, and how and why they happened to be signed and executed and delivered by the defendant, together with other facts, with reference to want of consideration as would appeal to the equitable consideration of the court.

From our view of the case as shown by the record, we are of the opinion that the affidavit was insufficient and the judgment of the circuit court will, therefore, be affirmed.

Judgment affirmed.

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


author: Mr. Presiding Justice Barry

text:
    Lee A. Friend, Appellee, v. William Borrenpohl, Appellant.
    1. Judgments — jurisdiction to render judgment in vacation. In the absence of statute, a trial judge has no jurisdiction to render judgment in vacation, nor can such jurisdiction be given by a stipulation of parties made otherwise than as directed by statute.
    2. Judgments — sufficiency of stipulation for entry in vacation. A stipulation between parties for judgment in vacation must be for a final judgment, to make the judgment effective as meeting the requirements of Cahill’s St. ch. 37, ¶ 112.
    3. Judgments — after what term entered in vacation. A judge, upon taking a ease under advisement, has no jurisdiction to enter judgment in any other vacation than that immediately succeeding the term at which the cause was submitted.
    4. Appeal and error — from void judgment as demanding dismissal. An appeal will be dismissed where it is taken from a judgment void by reason of not being entered until the second vacation after the term at which the cause was submitted, as the judge had no authority to grant an appeal or fix an appeal bond in such case.
    5. Appeal and error — when damages not assessed. Damages will not be assessed against one appealing from a judgment which was void because of not being entered until the second vacation after the term at which the cause was submitted.
    Appeal by defendant from the Circuit Court of Washington county; the Hon. F. R. Dove, Judge, presiding.
    Heard in this court at the October term, 1927.
    Appeal dismissed and damages denied.
    Opinion filed November 5, 1927.

      June C. Smith, for appellant.
    H. H. House and Noleman & Smith, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

This case was tried at the October term, 1926, before the court, without a jury, and was taken under advisement. At that time a stipulation was entered of record to the effect that each party should file his brief by a certain time; that when the judge reached a conclusion he should send his findings and a memorandum of his judgment to the clerk of the court, and that the findings and judgment should be-entered by the clerk as of the date of the trial.

In vacation, after the April term of the trial court, the judge, sent his findings, etc., to the clerk with instructions to enter the same of record upon receipt thereof, as of the date of the trial. Instructions as to the appeal orders were also given to the clerk. The clerk entered the findings, judgment and appeal orders in vacation on September 9, 1927, as of October 27, 1926. That was the second vacation after the cause was taken under advisement. The judgment so entered was for $5,900. Defendant filed his appeal bond and is perfecting his appeal to the next term of this court.

At the present term appellee filed a short record showing what had occurred, as above stated, and moved for a dismissal of the appeal and for the assessment of damages. The trial judge had no jurisdiction or authority to enter judgment in vacation, in a case of this kind, other than such as is conferred by sections 30 and 31 of the Circuit Courts Act (Callaghan’s Ill. St. An. Ch. 37, Pars. 111 and 112; Cahill’s St. ch. 37, ¶¶ 111 and 112) which read as follows:

“When a cause or matter is taken under advisement by a judge of the circuit court, or of the superior court of Cook county, and the cause or matter is decided in vacation, the judgment, decree or order therein may be entered of record in vacation, but such judgment, decree or order may, for good cause shown, be set aside, or modified, or excepted to, at the next term of the court, upon motion filed on or before the second day of the term, of which motion the opposite party or his attorney shall have reasonable notice. If not so set aside or modified, it shall thereupon become final.”
“If it is stipulated, of record, that a judgment, decree or order so entered of record shall be final, then such judgment, decree or order shall have the same force and effect as if it had been entered at the term preceding the time it is entered, subject to the right of appeal or writ of error: Provided, it shall not take effect as a lien, except from the date of the entry thereof.” Appellee says that the first of these sections has no application because the parties stipulated of record that a judgment might be rendered in vacation as of the date of the trial. There was no stipulation that the judgment when entered in vacation should be final and for that reason there was no compliance with the second section above quoted. In the absence of a statute no judgment can be rendered by a judge in vacation. The parties could not confer any jurisdiction upon the trial judge that was not conferred by the statute. 33 C. J. 965. Neither section of the statute was complied with. The statute is the sole measure of a judge’s authority to enter orders in vacation. People ex rel. Swigart v. Golden Rule, 114 Ill. 44.

We are of the opinion that the legislature intended to authorize the judge to take a case under advisement and to confer jurisdiction upon him to enter judgment during the vacation immediately succeeding the term of court at which the cause was submitted. We cannot believe that the statute was intended to allow a judge to hold a case under advisement until one or more succeeding terms of the same court shall have passed, and to then enter a judgment in vacation. We are convinced that the vacation referred to in the statute is that immediately following the term of the court at which the cause was submitted and taken under advisement. If a judge may hold a case under advisement during a vacation succeeding the next term of court he might hold it over for several terms and finally enter judgment in vacation several years after the cause was submitted. Such a construction would lead to complications and confusion, and is unreasonable.

We are not wholly without authority. A Maine statute provided that any justice of the Supreme Judicial Court may in vacation render judgment heard by him in term time. The court said: “Undoubtedly the enactment means that he may in vacation render judgment in a matter or cause heard by him in term time next preceding such vacation.” In re Robinson, 116 Me. 125, 100 Atl. 373. In the case at bar the judge caused a purported judgment to be entered during the second vacation after the term of court at which the cause was taken under advisement. The judgment was entered at a time not authorized by the statute and is null and void, as the judge was without jurisdiction to enter it. The motion to dismiss the appeal must be allowed as the judge had no authority to grant an appeal or fix the amount of the appeal bond. The judgment being absolutely null and void for want of jurisdiction, it is the same as if no judgment had been rendered. For that reason it would be improper to assess damages against appellant.

Appeal dismissed and damages denied.


author: Mr. Presiding Justice Shurtleff

text:
    William Ross Bane, Appellee, v. Edward E. Bane et al., Appellants.
    Gen. No. 7,983.
    1. Estates op decedents — when equity will administer. Only in extraordinary eases will a court of chancery exercise its general jurisdiction to take upon itself the administration of estates and supersede that of the probate court.
    2. Equity — duty to determine all controverted questions. It is the duty of a court of chancery, having jurisdiction of the parties and of the subject matter, to do complete justice and to determine all controverted questions.
    3. Wills — creation of trust by devise of estate for sale. The devise in a will of all the real and personal property for the purpose of sale in itself creates a testamentary trust in case the executors or trustees are required under the will to establish a trust from the proceeds and enforce contributions from other devisees to make up any deficiency in the trust fund.
    4. Estates op decedents — enforcing contributions in equity. Equity may decree a contribution from other devisees to complete the amount of a devised trust fund for one devisee, even though his complaint alleged no facts to support a contribution, as long as the other devisees did not object and evidence showed advancements made to them from which a duty to contribute might be inferred.
    5. Estates op decedents — sufficiency of bill to invoice equitable jurisdiction of. A bill which alleges that complainant’s trust fund as devised to him would be depleted by the executors’ efforts to charge upon it expenses of the estate and an unreasonable attorney’s fee, and that he was entitled to contribution from other devisees in ease the realty could not be sold for enough to cover the fund and that other trustees should be appointed, sufficiently invokes the equitable powers of chancery to require its taking jurisdiction of the entire estate, stating the account and passing on all the items thereof, including the attorney’s fee, which had been incurred by the trustees in defending a suit to contest the will, brought by complainant.
    6. Estates op decedents- — necessity of stating basis for denying solicitor’s fees to trustees. A decree finding that trustees were not entitled to solicitor’s fees for defending against a suit for new trustees, but not stating the basis of the finding, will be reversed for further determination.

      Appeal by defendants from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding.
    Heard in this court at the April term, 1926.
    Reversed and remanded with directions.
    Opinion filed October 31, 1927.
    Chas. M. Peirce, for appellants.
    Charles A. Zweng and C. B. Hughes, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

Appellee filed his bill of complaint in the circuit court of McLean county, praying for an accounting with the executors of the estate of George W. Bane, deceased, who were also named as trustees in the will; for the appointment of other persons as trustees; for the payment of interest upon the trust fund to complainant, and for contribution under the terms of the will by other children of the testator, beneficiaries of his bounty, and including the executors and trustees.

George W. Bane died February 24, 1924, leaving four children, Henry S. Bane, Edward E. Bane, Nora Skaggs, Katherine Virgiel, and a grandson, William. Boss Bane, son of a deceased son of testator, his only heirs at law. Said George W. Bane, deceased, left a last will and testament which had been duly probated, the second, third and fourth provisions of which were as follows:

“SECOND, I give, devise and bequeath to my executors, for the sole purpose of selling and converting into money all of my real and personal property of every kind and character and hereby authorize my said executors to convert the same into cash as soon as they can after my decease and I hereby give to said executors full power and authority to make title to said real or personal property with full power to said executors to make deed of conveyance for my said property and to sell the same at either public or private sale as in their judgment may be to the best interest of my estate.
“THIRD, After my property has been converted into money I will and direct that my executors hereinafter named first pay my funeral expenses and indebtedness and that out of the residue they pay to Edward E. Bane and Henry S. Bane, trustees, for my grandson, as herein provided the sum of Ten Thousand Dollars ($10,000.00) and I hereby direct said trustees to hold said money and the income derived therefrom until my said grandson arrives at the age of Twenty-one (21), at which time I direct that said trustees pay annually to my said grandson the net income of the said sum of Ten Thousand Dollars, which said sum is to be either loaned or invested in real estate or bonds at the discretion of my herein named trustees and held by them as such trustees and should my grandson survive to the age of Thirty years I will and direct that my said trustees turn over to him all of the net income and principal or title to land at which time it is my will and I direct that he become the owner of said Ten Thousand Dollars ($10,000.00), or lands so purchased by my trustees in lieu thereof in fee simple. Should said grandson depart this life prior to the coming of age of Thirty years, then it is my will and I direct that said Ten Thousand Dollars ($10,000.00) be equally divided between my children Henry S. Bane, Edward E. Bane, Nora Bane Skaggs, and Katherine E. Bane Virgiel, and in case of the death of either of my said children so last above prior to date of such distribution then it is my will that the parent’s share so dying, be distributed with the child or children of such child of mine so dying, share and share alike. And having heretofore distributed to my said last named children certain lands and moneys it is my will and I direct that in case of insufficiency of my assets to pay my just debts derived out of the real and personal property owned by me at the time of my death, that each of said children of mine herein named, Henry S. Bane, Edward E. Bane, Nora Bane Skaggs and Katherine E. Bane Virgiel, contribute in equal proportion a sufficient sum so that the trustees hereinabove named of my grandson, William Boss Bane, shall receive the full Ten Thousand Dollars ($10,000.00), and in case there is any surplus of my property after the payment of my just debts and funeral expenses, so derived by my executors or paid to them by my children, then in that event, such surplus so in the hands of my executors, I will and direct shall be divided in equal proportion between Henry S. Bane, Edward E. Bane, Nora Bane Slcaggs, and Katherine E. Bane Virgiel, my children, share and share alike and it is my will and I direct that in case of the death of either of said children, the child or children of any such deceased child shall take the parent’s portion, share and share alike.
“FOTJBTH, I hereby nominate and appoint my sons, Edward E. Bane and Henry S. Bane, executors of this my last will and testament and direct that they be allowed to qualify and act without bond.”

Within the year after the probate of the will, appellee, the grandson, presented his bill of complaint to the circuit court of McLean county to contest the will of his grandfather, charging that the testator was mentally incompetent to make a will and was under the improper restraint and undue influence of said appellants named as executors and trustees. There was an amended bill filed, charging that the testator had made an agreement to execute a will or distribute 600 acres of land among five branches of the family, appellee to receive one-fifth interest thereof. Additional undue influence was also charged. Appellee had employed two attorneys in Indiana, where he resided, and with them were associated two attorneys in Illinois. Appellants employed an attorney, answered the bill and a great deal of legal work was performed in preparing the case for trial: Seventy-five to one hundred witnesses were interviewed, instructions were drawn and ,the defendants'’ case, managed and- controlled by the executors and trustees, was fully prepared for trial. When a jury was called to try the case, complainant announced that he had no testimony to offer and the cause was dismissed at the costs of the complainants. For the legal services performed, appellants, out of the funds of the estate, paid the sum of $2,500, and the testimony of numerous witnesses is uncontradicted that the amount was reasonable and a usual and customary fee charged and paid for the services performed.

Appellants, as executors, submitted their account and report to the probate court of McLean county, in said estate, asking an allowance for said attorney’s fees and other expenses of said will contest. Before the probate court had passed upon said report, appellee presented this bill of complaint, setting out the amount of property owned by testator at the time of his decease, and charging that, in value, it would be about sufficient to make up complainant’s legacy and the trust fund, if such bills and charges were not deducted therefrom, but that such deductions, if made, would deplete and destroy the said trust fund; that said complainant became 21 years of age on March 9, 1924, and became entitled to interest upon said fund from that date; that complainant was entitled to contribution, in any event, from said four children to the end that said trust fund should equal the sum of $10,000; that the real estate had not been converted into money, and the complainant could not state whether a contribution would be necessary; that Edward E. Bane and Henry S. Bane had neglected their duties as trustees, had not qualified, had not collected and protected the trust fund or collected the income and paid the same to the complainant. The bill charged that Edward E. Bane and Henry S. Bane were residuary legatees and were opposed to the interest of the complainant in connection with said trust fund, and in acting as such executors they were attempting to reduce and destroy the trust fund by seeking to charge the costs of administration, including an unreasonable attorney’s fee, to said trust fund; and complainant alleged that it was necessary that a suitable trustee be appointed by the court, etc. We have substantially given the prayer of the bill.

Appellants and the other residuary legatees answered the bill, denying all charges of negligence and fraud, denying the right of complainant to ask or demand contribution, and averring that certain lands had not been sold on account of the litigation provoked by complainant. The answers denied that the costs of said will contest suit were exorbitant and averred the right to pay shell expenses out of the entire estate, including the costs and expenses of the executors incurred in defending said will. The answers further averred that as soon as the real estate could be sold and there was a sufficient fund on hand to pay the funeral expenses, just debts and costs of administration, anything remaining would be turned over to the trustees to make up said fund. The answers averred it was inequitable to ask the residuary legatees to contribute to a fund which complainant could deplete and waste by unnecessary and uncalled for litigation. Appellants denied the necessity for the appointment of other trustees in place of those provided for in said will, and denied all misconduct and mismanagement. There was a replication filed and the cause was referred to the master in chancery.

Complainant offered only the testimony of the executors as to certain dispositions of property made in 1920 by the testator to the defendants to the bill, and that the executors, since the answers were filed, had sold different parcels of real estate, amounting to over $3,000. There was no proof made of negligence, mismanagement or fraud on the part of the executors, or any proof submitted why another trustee should be appointed. The proof on the part of appellants, that the attorney’s fees and other costs in the will contest case were reasonable and just, was elaborate and uncontradicted. Without objection by any party, the current reports of the executors in the probate court were offered and an account stated by the master; there was no exception taken to stating the account. There are exceptions to the disposition of items. The master reported that the executors had in their hands on September 19, 1925, the sum of $3,846.58; that subsequently the executors realized from sales of real estate $4,725, from saw logs $2.50; that they had in their hands a United States Government bond for $1,000, equivalent to cash, and that they had in their hands, without taking into consideration said attorney’s fee, the sum of $9,574.08. The master found that the four children of the testator were ready, able and willing to contribute the sum of $425.92 to make said trust sum amount to $10,000; that the said attorney’s fee of $2,500 was a reasonable charge for the services performed, which were brought about by the improvident conduct of the complainant in instituting said suit; that it was the duty of the executors to defend said will and the trust therein contained, and that said attorney’s fee should be deducted from the said fund. The master further found that $60 were paid out for expenses by the executors in connection with said suit and $208.66 for items of rent and interest from the funds coming into the executors’ hands; that until the sale of the real estate, which occurred October 3, 1925, it was impossible for the executors to turn over the fund as a trust fund, and that inasmuch as the complainant by his own misconduct had deferred the time of conversion, the period of income on said fund should date from the sale of said real estate on October 3, 1925, and the items of rent and interest reported should be added as an accumulation to the trust fund. The master’s report further found that Edward E. Bane and Henry S. Bane were suitable and proper persons to qualify as trustees and should do so by giving suitable and proper bond. Appellants made no objections to this report, but moved for its adoption before the court. Appellee objected to the report for the following reasons: It found that it was the duty of the executors to defend the will; that they represented the interest created by the trust fund; that the trust fund should be charged with the necessary and reasonable expenses of the will contest; that the master should have found that the will created a trust fund with contingent beneficiaries and that the will created a charge on the children of testator to contribute to the trust fund; that the master should have found that the executors under the law should defend the single issue as to the competency of testator, and that the costs, having been taxed against the complainant, should be charged to the estate as a part of the costs of administration. These objections were overruled by the master and made exceptions before the chancellor. The chancellor, in the decree, in part approved the master’s report and in part sustained exceptions to it, and of his own motion held that it was the duty of the probate court to determine what amount, if any, said executors should be allowed in defending the suit to set aside the will of George W. Bane, deceased. The court found that the executors had converted the real estate into cash, and after paying the indebtedness of the estate, including the expenses of attorneys, incurred in defending the will contest suit, the executors have on hand $7,074.78, “which amount will be further reduced by costs and expenses of the public sale of real estate, auctioneer fees, bills, probate courts costs,” etc. The decree found that the four children of deceased should contribute and pay into the trust fund the sum of $425.92 upon their voluntary offer to do so, in full satisfaction of that provision in the will, and that under the law no contribution could be exacted; that Edward E. Bane and Henry S. Bane are suitable and proper persons to be and are appointed trustees, as provided in the will, and fixed their bond at the sum of $10,000, with sureties to be approved by the court. The court further found that the trustees should be charged with interest on the net amount of the trust fund in their hands, after all deductions approved by the court, from October 3, 1925, to be paid to appellee annually thereafter during his life until he reached the age of 31 years. It was ordered that no allowance be made to the trustees for solicitor’s fees in this proceeding and that the costs of the suit be paid by the executors and included in their final report.

Appellants have assigned error upon this decree and bring the record, by appeal, to this court for review.

The decree does not state a final account, although the master found: “The net assets of the estate might have been on that date (October 3, 1925), turned over to the trustees and the deficits contributed by the children of the testator, and there has been nothing subsequent to that time which has accrued to prevent such transfer and contribution.” The master’s report did state an account, under the pleadings, to which no one filed exceptions, and, so far as this court can determine, nothing in addition was brought into the case before the chancellor except the costs and charges of the executors in selling the land. Error is assigned in that the court did not take jurisdiction of the items of the attorney’s fee and the expenses in defending the will contest case on the part of the executors, and determine the equity of the allowances. It failed to do so on the ground that it had no jurisdiction and referred those items, with others, to the probate court for determination, and to pass upon the final report of the executors and to state an account. It is true that a court of chancery will not exercise its general jurisdiction to take upon itself the administration of estates and supersede that of the probate court except in extraordinary cases (Shepard v. Speer, 140 Ill. 238; Patterson v. Patterson, 251 Ill. 153, 180); still, it is a familiar rule that it is the duty of the court of chancery, having jurisdiction of the parties and of the subject matter, to do complete justice and to determine all controverted questions. (Whitman v. Fisher, 74 Ill. 157; Moore v. Brandenburg, 248 Ill. 232, 239; Maguire v. City of Macomb, 293 Ill. 441, 453, and Herrick v. Lynch, 150 Ill. 283, 288.)

In Moore v. Brandenburg, supra, the court held: “A court of equity having been properly appealed to for relief, will not, if the bill is sustained by the proof, stop with merely declaring the title of defendants in error to be invalid, but will retain jurisdiction for the purpose of adjusting all the rights of the parties, even though in doing this it may be, in part, administering purely legal remedies.”

As the court said in Herrick v. Lynch, supra: “There was no necessity of litigating over these accounts by piecemeal.” The real question raised reverts back to the more important question as to whether appellee’s bill stated a ground for equitable relief. It is shown in this case that at the time the decree was entered all of the assets of the estate, real and personal, had been converted into cash. It is reasonably inferable from the testimony and from the master’s report that all claims and debts against the estate had been paid, and that the costs and expenses of administration had been paid, except the items in dispute. The estate had been administered upon. In Whitman v. Fisher, supra, the grounds for equitable jurisdiction were stated:

“The facts in-the case at bar bring it clearly in the equitable jurisdiction of a court of chancery as thus defined. The personal estate of the testator was in the hands of the executors, and they were charged with its administration in a manner other than as directed by the statute. This created in them a special trust. With the funds of the estate, they were directed to erect a family residence near Janesville. From what source, whether from the real or personal effects, the means for that purpose were to be derived, the will is silent. It was a question with the executors, whether the condition of the estate would justify the expenditure of a sum of money sufficient to erect a residence for the family as directed in the will. The widow of the testator, who was also one of the executors, was given the control of all the property of the testator until his youngest child became of lawful age, ‘for their support, education and maintenance.’ How was she to control all the property of the estate for the ‘support, education and maintenance’ of the family? No directions were given in the will.
“These difficulties arising in the execution of the trusts imposed upon the executors, and which they had undertaken to perform, made it eminently proper for them to apply to a court of equity for its aid and direction in the premises. We have no doubt of the jurisdiction of a court of equity to afford the requisite relief. 2 Story’s Eq. Jur., §961; Hooper v. Hooper, 9 Cush. 127; Dimmock v. Bixby, 20 Pick. 368.”

. The devise in the Bane will of all of the real and personal property for the purpose of sale, in and of itself, creates a trust. Hall v. Irwin, 7 Ill. 176, 182. The whole basis of the will was to create a testamentary trust for the benefit of appellee to the amount of $10,000, with the demise to and power in the executors or trustees to take and sell real estate, and the authority to the same trustees to enforce contributions up'on any equitable ground in case the estate did not reach the sum of $10,000. It is true the bill of complaint alleged no facts upon which a contribution could be decreed; but the defendants did not urge the defect and consented to a decree providing for a contribution without objection, and much testimony having been taken as to advancements made to the other children, we must conclude that some equity existed in appellee’s behalf upon which contribution could be enforced, otherwise testator’s children would not have consented to the decree as entered. The charges in the bill all invoke equitable powers of a court of chancery and we must conclude that the court erred in not taking jurisdiction of the entire estate, stating the account and passing upon the various items of thé account that are not disposed of in the decree.

The only further assignment of error we deem necessary to consider upon this appeal is the one based upon that part of the decree finding that no allowance be made the trustees for solicitor’s fees in this proceeding. We are unable to determine the basis of the finding. Whether it was the determination of the chancellor that the item should not be passed on in this proceeding, but should be referred to the probate court for final adjustment, or whether it was the view of the chancellor that appellee, by his bill, secured the appointment and qualification of testamentary trustees and the equity of contribution established and therefore no allowance should be made to the executor-trustees in any event, we do not find amplified in the record, and therefore the assignment of error should be sustained and the item referred back to the court for further determination.

Inasmuch as the other matters raised by the assignments of error have not been passed upon by the lower court, they are referred back to that court for its determination.

The decree of the circuit court of McLean county is reversed and the cause remanded to that court, with directions to take jurisdiction of the settlement of the entire estate, to pass upon and determine the merits of the items of attorney’s fees, expenses and costs in the estate, and in the two suits in the circuit court to state the account of the executors and trustees. In all other respects the decree of the circuit court is affirmed.

Reversed and remanded with directions.


text:
    Charles Grove et al. for use of Roy Hamm Post No. 101 American Legion, Appellees, v. The Board of Supervisors of Piatt County, Illinois, and Harvey Fay, County Clerk of Piatt County, Illinois. The Board of Supervisors of Piatt County, Illinois, Appellant.
    Gen. No. 8,059.
    1. Mandamus — definition of writ. The writ of mandamus is a writ commanding an official or official board to perform a ministerial act where the law imposes the duty to act and no discretion is vested in the official or board.
    2. Mandamus — what rules govern pleading. Mandamus is governed by the rules of pleading applicable to other actions at law.
    3. Mandamus — nature of petition required. The petition for mandamus, which under the statute takes the place of an alternative writ at common law and performs the office of a declaration, must state facts showing a clear and undoubted right to compel the party sought to be coerced to act.
    4. Statutes and resolutions — granting license for public dance hall as compulsory. The provision of Cahill’s St. eh. 34, ¶ 198, that permits “may” be issued for public dance halls is to be construed as meaning that they “shall” be issued on compliance with requirements.
    5. Constitutional law — validity of statute to regulate public dance halls. The law regulating public dance halls, Cahill’s St. ch. 34, ¶¶ 195-203, being capable'of either an interpretation which would make it unconstitutional as prohibiting such halls or one making it valid as permitting them under restrictions, is held a valid, mandatory act as to all persons and corporations bringing themselves within the provisions of the act.
    6. Mandamus — right to petition in behalf of another. One who has a right to petition and sue in his own behalf may do so irrespective of whether he is doing so for some other person or an association or corporation.
    7. Exhibitions and shows — right to apply for dance hall permit for another’s use. One. may apply for a permit to operate a public dance hall under the provisions of Cahill’s St. ch. 34, ¶ 198, and will be bound by the terms of the permit, although he may be applying for the benefit of some other persons or a corporation.
    Appeal by defendant from the Circuit Court of Piatt county; the Hon. Geo. A. Sentel, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed October 31, 1927.

      Robert P. Shonkwiler, State’s Attorney, for appellant.
    Thos. J. Kastel, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

From an order of the circuit court of Piatt county awarding the writ of mandamus against the board of supervisors, an appeal is prosecuted. Appellees will hereafter be designated as petitioners and appellant as defendant. The petitioners presented to the defendant a petition “for and in behalf of Roy Hamm Post No. 101 American Legion” for permission to operate a dance platform or dance hall. They tendered the fee required and answered all questions tending to show that they were qualified to receive the license or permit asked for. The board refused to grant the license. Thereupon, a petition for writ' of mandamus was filed and on the hearing the writ was awarded.

The law under which the application was made substantially provides, Cahill’s St. ch. 34, ¶ 195: “It shall hereafter be unlawful for any person or persons to operate or maintain a public dance hall or road house for the use of the general public outside of the limits of any city, village or incorporated town without first obtaining a license therefor from the county board of the county where the public dance hall is situatéd, in accordance with the provisions of this Act.” By section 2, Cahill’s St. ch. 34, ¶ 196, county boards are given power to grant licenses for one year only and to revoke them. Section 3, Cahill’s St. ch. 34, ¶ 197, authorizes the continuance of those halls then in operation until the board at its next regular meeting shall issue or refuse to issue a license under the provisions of the act. Section 4, Cahill’s St. ch. 34, ¶ 198, provides: “A license to operate or maintain a dance hall may be issued by the county board to any citizen, firm or corporation of the State, who

“(1) Submits a written application for a license, which application shall state, and the applicant shall state under oath:
“(a) The name, address, and residence of the applicant, and the length of time he has lived at that residence;
“(b) The place of birth of the applicant, and if the applicant is a naturalized citizen, the time and place of such naturalization; '
“(c) That the applicant has never been convicted of a felony, or of a misdemeanor punishable under the laws of this State by a minimum imprisonment of six months or longer.”

He must establish that he is a person of good moral character and that the place or building where the dance hall or road house used for public dancing is to be operated or maintained reasonably conforms to all laws and health and fire regulations applicable thereto, and the observance of certain sanitary and moral regulations there prescribed.

By section 5, Cahill’s St. ch. 34, ¶ 199, the county board is authorized to make a thorough investigation to determine the fitness of the applicant and the truth of the statements made in and accompanying the application, the decision on an application to issue or renew a license to be rendered within 30 days after the application is received.

By sections 6, 7 and 8, Cahill’s St. ch. 34, ¶¶ 200, 201 and 202, provision is made for revoking licenses; immoral practices are forbidden, and penalties provided therefor and for making false statements in applications for license or renewal.

A demurrer to the petition was filed and overruled. An answer and a replication thereto were filed. The abstract shows that a demurrer was filed to the answer and on motion of defendants carried back to the petition and overruled. There is much confusion as to the actual proceedings in the circuit court as shown by the abstract.

But whatever the state of the pleadings in that respect, it is now insisted that the court erred in awarding the peremptory writ of mandamus. Petitioners insist that the insufficiency of the petition is not open to inquiry, a demurrer to it having been overruled, and that the judgment must be affirmed.

The writ of mandamus is a writ commanding an official or official board to perform a ministerial act where the law imposes the duty to act, and no discretion is vested in the official or board. Mandamus is governed by the rules of pleading applicable to other actions at law. (Dement v. Rokker, 126 Ill. 174; People ex rel. Edgar v. Board of Review of Cook County, 263 Ill. 326.) The petition for mandamus under the statute performs the function of a declaration in a suit at law (People ex rel. Rinard v. Town of Mount Morris, 145 Ill. 427; People ex rel. Payson v. Pavey, 151 Ill. 101), and takes the place of the alternative writ at common law (People v. Davis, 93 Ill. 133; City of Chicago v. People ex rel. Gray, 210 Ill. 84). It must state facts showing a clear and undoubted right to the relief demanded. (People v. Davis, supra; People ex rel. Molchan v. City Council of City of Streator, 258 Ill. 273; People ex rel. Albright v. Blair, 292 Ill. 139; People ex rel. Cooley v. Commissioners of Highways, 188 Ill. App. 56.) Unless the right of the relators to the relief is clear and undeniable and the party sought to be coerced is bound to act, the writ will not be awarded. (People ex rel. Brownrigg v. Brentano, 259 Ill. 359, 360.)

The act in question provides: “For the regulation of public dance halls or road houses used for public dances outside the limits of any city, village or town, " etc. and does not provide for their prohibition. In section four of the act the word “may” is to be construed as meaning ‘ ‘shall. ’ ’ Canal Com’rs v. Sanitary District of Chicago, 184 Ill. 597, 604, in which case the court held:

“The words ‘may’ and ‘shall,’ when used in a statute, will sometimes be read interchangeably, as will best express the legislative intent. The word ‘may’ will be construed to mean ‘shall’ when the public or third persons have a claim that the power ought to be exercised; but when the word ‘shall’ is used, where no right or benefit to any one depends on its imperative use that word may be held directory, merely, and by legislative intention to be used synonymously with the word ‘may.’ It is also permissible, in the construction of a statute, to transpose- words and sentences, if by so doing the legislative intention can be determined. ’ ’

The statute in question by its title merely purports to regulate dance halls, and if the act contains any power to prohibit, such powers would be unconstitutional and void. (People ex rel. Berlisheimer v. Busse, 231 Ill. 251, and People ex rel. Goldberg v. Busse, 240 v. 338, 342.) Where a statute admits of two constructions, one of which will render it valid and the other invalid, courts are bound to adopt the construction which will render it valid. (Baker v. Baker, 258 Ill. 418.) It therefore follows that the act in question is a valid, mandatory act as to all such persons and corporations who bring themselves within the provisions of the act.

The substance of defendant’s answer was a denial that a proper and sufficient petition was presented to the board of supervisors, although the answer did admit that the “purported” petition, set up in petitioners’ petition in this cause was presented and denied. That petition in all matters complied with the act, and contained by way of exhibits numerous affidavits of citizens as to the good moral character of the applicants, which are not contradicted or denied. The only issue raised by the pleadings was an issue of law, although proofs were presented and there was a hearing before the court; but no proofs were presented other than the petition, documents and affidavits which were presented to the board of supervisors. No propositions of law were presented and there was no motion in arrest of judgment.

Defendant contends that the petition presented to appellant by the petitioners was insufficient, for the reason that the petition was made by the petitioners “for and in behalf of Roy Hamm Post No. 101 of the American Legion,” etc., and insist that there are no qualifications relative to “The Roy Hamm Post No. 101 of the American Legion” set out in the petition. There is no merit in this contention. This is a suit at law and petitioners have the right to present the petition in their own behalf and to sue. As the Supreme Court said in Chadsey v. Lewis, 1 Gilm. (Ill.) 153, 159: “The suit is in the name of the proper person, and it makes no difference to the defendant for whose benefit it is brought. As was said in the case of McHenry v. Ridgeley (2 Scam. 309), the court will not inquire whether the plaintiff sues for himself, or as trustee for some other person. It is sufficient that he has the legal interest.”

In Brownell Improvement Co. v. Critchfield, 96 Ill. App. 84, 90, the court held:

“It is also contended by counsel for appellant that the suit is improperly maintained for the use of the Mexican Asphalt Paving Co., and in this behalf it is urged that the assignment of contracts to it by appellees is ineffectual to convey any right to a part, at least, of the damages recovered. But the appellees having the legal right to the damages, and the suit being maintained in their name as nominal plaintiffs, it is a matter of no consequence to appellant for whose use they sue or recover. In no event can appellant be prejudiced thereby. Atkins v. Moore, 82 Ill. 240.
“In that case the Supreme Court said:
“ ‘The party in whom is the legal right of action may, as respects the defendant, bring his suit for' the use of whatever person he likes; that it is no concern of the defendant, for whose use the action may be brought, and that it is not necessary that the one for whose use a suit may be brought, should have any interest or connection otherwise with the subject of the suit.-’ ”

This case was affirmed in 197 Ill. 61.

In Jones v. Maxton, 100 Ill. App. 201, 203, it was held: “All that was alleged in the declaration as to the party for whose use the suit was brought, while immaterial and unnecessary, did not vitiate the pleading,” and this case was affirmed in 197 Ill. 248.

As well might petitioners set out in their petition that the application was made “for the use” or “general benefit” of the citizens of any other organization, or the persons of any particular locality, and it would be descriptive only, immaterial, but would not vitiate the petition. A reference to the act in question demonstrates that while a corporation may apply for and be granted a license or permit, there might be some difficulties in making out a proper petition and showing, for example, “its place of birth,” and its “good moral character,” etc., all of which questions are not before the court in this case. Petitioners had the legal right to apply for the license and would be bound by the terms of any license or permit granted, and it is no concern of the defendant the particular class of citizens petitioners desired to serve, provided there was the necessity or desire to dance.

The only further contention made by defendant is that the provisions of the act render it optional with the board of supervisors to grant or refuse the permit. What we have already said fully covers that phase of the case.

Finding no error in the judgment of the circuit court of Piatt county, that judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Charles E. Jackson and D. F. Williams, Plaintiffs in Error.
    Gen. No. 8,060.
    1. Searches and seizures — sufficiency of complaint to search for intoxicants. A complaint, the basis of a search warrant for intoxicants, is insufficient if it is unreasonably indefinite as to location, and silent as to the occupancy of premises on which intoxicants were alleged to be made.
    2. Searches and seizures — necessity of alleging facts showing probable cause in search warrant complaint. A complaint for a search warrant for intoxicants cannot be based merely on suspicion but must charge facts showing probable cause for the warrant.
    3. Intoxicating liquors — nullity of search warrant as ground for suppressing evidence. A motion made before trial, to suppress evidence secured under a void search warrant and to quash the warrant, should be sustained.
    4. Criminal procedure — error in judgment without arraignment or , plea. A judgment upon a verdict of conviction is erroneously entered against defendants who have not been arraigned or entered plea. .
    5. Criminal procedure — preserving exceptions to erroneous judgment. Exceptions to a judgment of conviction, which is erroneously entered because the defendants have not been arraigned nor entered a plea, are properly preserved by a motion in arrest of judgment.
    Error by defendants to the County Court of Pike county; the Hon. Mark Bradburn, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded.
    Opinion filed October 31, 1927.
    L. T. Graham and A. M. Fitzgerald, for plaintiffs in error.
    Edwin Johnson, for defendant in error.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

Plaintiffs in error on information were charged in the county court of Pike county with having the possession of a still, designed for the unlawful manufacture of intoxicating liquor and by a separate count with unlawfully possessing, for the purpose of sale, certain intoxicating liquor, etc. The record does not show that plaintiffs in error were arraigned or pleaded to the information. The conviction is based upon testimony procured under a search warrant, the complaint for which warrant charged:

“That he has just and reasonable grounds to believe that intoxicating liquor is now being unlawfully made within prohibition territory to-wit: At and within a certain house belonging to one Jackson and Williams, along hard road near Florence, Ill., in the ........ of........in the county and state aforesaid; and that the following are the reasons for his belief, to-wit: Have seen suspicious trips being made from house to car carrying something which rattled like bottles or jugs.”

Plaintiffs in error, before the commencement of the trial, made a motion to suppress the testimony and evidence procured under the search warrant, and to quash the writ. This motion was denied. Section 29 of the Prohibition Act, Cahill’s St. ch. 43, ¶ 30, particularly sets out the facts which shall be charged in the complaint, and a form of complaint is given, requiring the affiant to state a description of the house, building or premises, etc., and the particulars as to the location sufficiently to identify it, stating the name of the person occupying the same, if known. The complaint in question was unreasonably indefinite as to the location of the premises, and silent as to the occupancy. In both of these respects the complaint was insufficient. (People v. Prall, 314 Ill. 518; People v. Shields, 309 Ill. 142; People v. Bishop, 225 Ill. App. 610; People v. Zalapi, 321 Ill. 484, 492.) Neither did the complaint charge any facts which were the ground of probable cause, but is based upon suspicion only and in that respect is deficient. People v. Elias, 316 Ill. 376; People v. Prall, 314 Ill. 518; People v. Shields, 309 Ill. 142; People v. Castree, 311 Ill. 392; Lippman v. People, 175 Ill. 101, and Myers v. People, 67 Ill. 503.) The motion to suppress the testimony and quash the search warrant should have been sustained. There having been no arraignment of plaintiffs in error or plea entered by them, there was no' issue to be tried and the verdict and judgment entered against them were erroneously entered. (People v. Kennedy, 303 Ill. 423; People v. McCoy, 240 Ill. App. 279, 280.)

Plaintiffs in error properly preserved their exceptions to the error by a motion in arrest of judgment. For the reasons stated the judgment of the county court of Pike county should be reversed and the cause remanded.

Reversed and remanded.