text:
    Ike Kaplan and Herman Kaplan, Trading as Kaplan Brothers, Appellees, v. United States Fidelity and Guaranty Company, Appellant.
    Gen. No. 33,589.

      McSurely, P. J., dissenting.
    Opinion filed January 6, 1930.
    Rehearing denied January 20," 1930.
    Eugene P. Kealy, for appellant.
    Charles Rudolph and Winston, Strawn & Shaw, for appellees; Harold Beacom, Thomas A. Reynolds and Arthur D. Welton, Jr., of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal is by the defendant insurance company from a judgment in the sum of $6,000 entered upon the verdict of a jury. The action was in assumpsit upon an insurance policy issued on April 3, 1926, whereby defendant undertook to indemnify plaintiffs from loss on account of interior robbery.

The declaration recited the material terms of the policy and averred a loss at plaintiff’s store on August 31, 1926.

Defendant pleaded the general issue and by a special plea averred that there was a breach of a promissory warranty of the policy which provided that one or more custodians (as therein defined) should be on duty on the premises during the hours specified in the policy; a further breach of the policy was averred to be that the business of plaintiffs at delivery of the policy was that of conducting a ladies’ cloak and dress shop in which no fur goods were kept in stock, whereas at the time of the loss a part of the stock consisted of fur garments, which, it was averred, materially changed the risk; further that there was a breach of the promise in the policy that plaintiff’s would keep books and accounts in such a manner that the amount of the loss could be accurately determined by the company.

Defendant made a motion at the close of all the evidence that the jury should be instructed to find in its favor, which motion was denied, and it is urged that this motion should have been granted because of the breach of these several promissory warranties. It is also urged that the court erred in refusing to give an instruction relating to the books and accounts to be kept by the plaintiffs.

The policy provides that certain declarations numbered 1 to 18 contained therein “are declared by the Assured to be true,” and that the policy is issued in consideration thereof and the payment of the premium. Among these declarations were those to the effect that the property insured under the indemnity paragraph is “money, merchandise and securities” and that “the Assured’s business is Ladies’ Cloak & Dress Shop.” Another section of the policy provides that this insurance is “on property specified . . . while at least one or more custodian (s) are on duty therein.” The policy also provides:

“Custodian, as used in this policy shall mean: (1) The assured if an individual; (2) a member of the firm if the assured is a copartnership; (3) any officer of the assured, if the assured is a corporation; (4) any person not less than seventeen nor more than sixty-five years of age, who is in the regular employ of the assured and duly authorized by him to act . as paymaster, messenger, cashier, clerk or sales person, and while so acting to have the care and custody of property covered hereby. In no event shall a watchman or a porter be considered a custodian.”

The only employee of plaintiffs in the store at the time of the robbery was one Charles Pryor. The contention of defendant is that the duties, of Pryor were such that he must be held to be a watchman or porter and therefore could not be considered a custodian within the meaning of the terms of the policy.

The store of plaintiffs was located at the southwest corner of South Halsted and 64th Streets and was known as Mo. 6400 South Halsted Street. The building was a two-story brick extending all the way, back to the alley, the main entrance fronting on Halsted Street. There were large glass show windows on each side of the front and the building was set back from the building line about 15 feet and extended back to the alley. The only doorway in the rear of the store led out into the alley.

Plaintiffs occupied the first floor of these premises. The second floor was occupied by a nephew, Irving Kaplan, who conducted a millinery business. The entrance to the second floor was by an elevator leading down to the first floor salesroom.

Charles Pryor, a colored man, had been in the employ of plaintiffs some eight or ten years; he carried a key to the front door of the premises, and on the morning of August 31,1926, arrived at the store about 6: 30 a. m., according to his custom. It was his duty to take care of the store, look after C. O. D. orders, receive the money for these and deposit it in the bank for plaintiffs. His first duty in the morning was to deán up the store, which usually took two or three hours. He was usually the first one at the store in the morning, opened it and made it ready for business. If customers came in he received them and they waited until the owners' arrived. He received packages as ordered by plaintiffs and signed up for them. He delivered merchandise and collected money on it. He says that he was usually out in the afternoon making these deliveries and collecting money on C. O. D. packages, which he then deposited in the bank.

On this particular morning Pryor went into the store and first signed out the watchman on duty; after he did that he locked the front door and proceeded to do his work, cleaning up the store and getting things ready for business. A man came to the front door dressed as a policeman; he carried a big box and Pryor greeted him with a smile; he expected the supposed policeman to hand the box to him, but instead a gun was placed over his heart; he was directed to keep his hands in the air and was marched to the back of the room; he was laid down with his face to the stones and his hands and feet were tied, and he says that was the last he knew of what was going on that morning.

It is contended that Pryor was not a custodian as defined by the terms of the policy; that he could be considered only as a watchman or porter, which are expressly excluded from custodian as defined in the policy. It is also urged that at the time the robbery occurred Pryor was in the performance of duties such as would pertain to the employment of a porter, and that the phrase in the definition “and while so acting” means that .any employee authorized to act in any of the capacities enumerated must be actually doing some work in that capacity at the time the'loss occurs, before the policy can become effective. The second division of this court had occasion to consider a question substantially similar in Holland v. Royal Indemnity Co., 245 Ill. App. 614. In that case it appeared that the employee whose qualifications as a custodian were challenged performed services such as delivering merchandise during part of the time, while at other times most of his duties consisted of work which would ordinarily be performed by a janitor, such as taking charge of the furnace, washing windows, cleaning and sweeping the store. In his absence salesmen put coal in the furnace. He was sometimes permitted to sell a radio battery but was not permitted to" answer the telephone. It was there urged, as here, that if the employee could be considered as a custodian at all, it could be only while performing his duties as messenger and while having the insured property in his actual care and custody; and as he performed services of a messenger outside the store he could not be regarded as a custodian of property inside the premises. . The court there said:

“Inasmuch as his messenger service would begin while he was in the store we apprehend that while there he would come within the definition of a custodian. We construe paragraph 1 (e), above quoted, to include as custodian anyone within the premises at the time of the robbery who may be called upon while there to act in any of the capacities enumerated in said paragraph, and that it is immaterial that he may be also called upon to perform other services not strictly within the duties of his position, if present to perform the services required of him therein.”

It is true, as defendant urges, that the policy in that case, unlike the one here sued on, did not specifically exclude porters or watchmen from the class which might be considered as custodians. It is not contended here that Pryor was a watchman, but it is urged that the services performed by him were such as to make the term “porter” applicable to him.

The term “porter” literally means a doorkeeper or one who is in charge of a door or a gate. In the development of our language it has come at times to have a broader meaning, as, for instance, an attendant in a sleeping or parlor car who makes up the berth and waits upon the passengers. At other times it refers to one who carries burdens or luggage for hire, as at hotels or at railway stations.

The purpose of this provision in the contract is without doubt to secure the presence of persons of certain degrees of intelligence and capacity to care for insured property and (perhaps most important of all) persons whose character and reputation are such that the employer would trust them with important matters.

It must be held, we think, that the question of whether Pryor’s duties were such as to bring him within the classification of a custodian according to the meaning of the policy was for the jury, and if so we cannot disagree with the finding of the jury on this point. Defendant cites Pogue Co. v. Fidelity & Casualty Co. of New York, 299 Fed. 243, and Axe v. Fidelity & Casualty Co. of New York, 239 Pa. 569; but the facts in those cases are not at all similar to those appearing here.

It is urged that the provision of the contract with reference to the presence of a custodian was a promissory warranty and should be considered as a warranty rather than a representation, and that therefore it was necessary that the warranty should be literally fulfilled; that the contract of insurance would be invalid if there was a departure from the terms of the warranty in the slightest particular.

We do not understand that rule to be applicable to promissory warranties such as those considered here, but on the contrary we hold that such are in the nature of conditions subsequent and that substantial compliance therewith is sufficient. Cooley, Briefs on Insurance, vol. 2, p. 486; Cady v. Imperial Insurance Co., 4 Fed. Cas. 984; Lewits v. United States Fidelity & Guaranty Co., 227 Ill. App. 612; Peoples Fire Ins. Co. v. Pulver, 127 Ill. 246, 249.

It is also urged that plaintiffs cannot recover because after the policy was issued they put in a stock of fur clothing, which was a part of the goods lost and for which they now seek to recover. The goods in question were 52 fur coats and 147 dresses.

Defendant produced evidence tending to show that a representative of the insurance company inspected the store of plaintiffs prior to the time the policy was issued; that he found at that time that their goods did not consist in any part of furs. Defendant further offered evidence tending to show that a similar policy covering furs would have required the payment of a premium 400 per cent larger than defendant received. The court excluded this testimony, and it is urged not only that the increase of the risk avoided the policy but that there was error in this ruling of the court.

A preponderance of the evidence we think showed that a “ladies cloak and dress shop” is accustomed to carry fur coats as a part of its stock in trade, and we think it is exceedingly doubtful under the language of the contract in evidence whether it would have been permissible for defendant to show the contrary.

The cases cited by defendant as to the avoidance of the policy by changes in the nature of the business which increased the risk, construe policies (unlike this one) containing clauses providing for an avoidance of the policy under such condition. Traders’ Ins. Co. v. Catlin, 163 Ill. 256, as also a number of cases cited from other jurisdictions, are therefore not in point.

The policy stated the nature of the business that was carried on and described the property insured in connection therewith as “money, merchandise and securities. The word “merchandise” would seem to be broad enough to include fur coats, and the contract, which was prepared and submitted by defendant, it would seem, would have expressly excluded fur coats if it had been the intention so to do. The court did not err in refusing the peremptory instruction requested on the ground that the risk had been increased, nor in excluding offered evidence tending to show that a business conducted as a fur business would have called for a higher premium rate. There is evidence tending to show that defendant used a form of indorsement excluding furs from the articles to be insured where that was the intention. This form of indorsement was not attached to this policy.

It is further urged that plaintiff’s cannot recover because of failure to comply with a condition inserted in the policy that books and accounts should be kept by the insured in such manner that the defendant could accurately determine therefrom the amount of the loss. This defense appears to be an afterthought, since in a written communication denying its liability to plaintiffs prior to the commencement of suit the point was not urged. The argument of defendant on this point proceeds upon the theory that this condition constituted a warranty rather than a representation, and that the slightest deviation therefrom would prevent a recovery. This is not the law, as appears from the cases already cited. As was stated by the Supreme Court of Minnesota in Olson v. Great Eastern Casualty Co., 149 Minn. 353, it is sufficient compliance with a provision of this sort “if the books were kept in such manner that, with the assistance of those who kept them or understood the system on which they were kept, the amount of purchases and sales could be ascertained and cash transactions distinguished from those on credits, although it might be slow and difficult to do this.” That the contention is without merit here would appear from the fact that the accountant for defendant who examined the books kept by plaintiffs found the value of goods lost only $100 less than the amomit of plaintiffs ’ claim.

The burden of proof was upon defendant in this respect (Benes v. Bankers’ Life Ins. Co., 282 Ill. 236), and the proof submitted was not sufficient to sustain the allegation of the plea. The purpose of this provision is to protect the defendant from excessive claims, and as there was practically no difference between the parties as to the amount of damages, the point is without merit. Israelstam v. United States Casualty Co., 201 Ill. App. 512; Tucker v. American Bonding & Casualty Co., 223 Ill. App. 266; Leiman v. Metropolitan Surety Co., 111 N. Y. S. 536. Defendant does not contend that the judgment is excessive.

For the reasons already stated the court did not err in refusing an instruction upon this point which was requested by defendant.

There is no substantial error in the record, and the judgment of the trial court is therefore affirmed.

Affirmed.

McSurely, P. J., dissents.

O’Connor, J., concurs,


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Donald Bailey, Appellee, v. Diamond T. Motor Car Company, Appellant.
    Gen. No. 33,412.
    Opinion filed January 6, 1930.
    Rehearing denied
    West & Eckhart, for appellant; John Neal Campbell and Joseph D. Bryan, of counsel.
    William C. Greatman, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover one-third of the value of an automobile truck under the provisions of paragraph 28, ch. 95, Cahill’s 1927 Statutes. There was a verdict and judgment for $1,333.33 in plaintiff’s favor.and defendant appeals.

The record discloses that plaintiff bought an automobile truck from the defendant, the price of which was something more than $4,500; that he .paid part of the purchase price and gave a chattel mortgage on the truck to secure the balance. Apparently there was default in payment and the defendant company took possession of the truck under the chattel mortgage. It then foreclosed the chattel mortgage and at the foreclosure sale the truck was sold to it for $2,700, leaving a balance which defendant claims of $727.50.

The provision of the statute upon which the suit was predicated provides that “upon the making of said sale the mortgagee shall make out a statement showing the items of personal property sold, the names of each purchaser and the amount for which each article sold, and also an itemized statement of the necessary reasonable expenses incurred in taking, keeping and selling said property, and shall deliver the same to the mortgagor or some one of them in person or by mail, and if he fails so to do within ten days after said sale, the owner of said property may sue for and recover one-third of the value of the property so sold, from the mortgagee. ’ ’

In his statement of claim plaintiff alleged that the defendant after the foreclosure failed to give the notice required by the statute, and he further alleged that at the time of the foreclosure sale “the reasonable value of said truck was $4,000. ’ ’

The defendant filed an affidavit of merits and "set up that the notice of the sale had been given as required by the statute. Evidence was offered on behalf of the plaintiff tending to show that he had not received the notice, while defendant offered evidence tending to show that he had mailed the notice.

After the jury were selected, counsel for plaintiff made a statement of what he expected to prove. This was followed by a statement of opposing counsel in which he stated among other things, “we will also show you that the truck, which is the basis of this suit, was not worth at the time of the foreclosure the amount of money that is claimed by the plaintiff as the value. The plaintiff has claimed $4,000 as the value, of the truck at the time, and we will show you by evidence that it was not worth that much money.”

Afterwards, at the close of plaintiff’s evidence, defendant moved the court to direct a verdict in its favor because no proof has been made of the value of the truck at the time of the sale. The motion was denied on the ground that the allegation of the statement of claim setting up the reasonable value of the truck had not been denied. Some time afterwards, during the progress of the trial, the defendant asked leave to amend its affidavit of merits so as to traverse this allegation, but the. motion was overruled.

The court instructed the jury orally on the theory that the defense of the defendant interposed, viz., that it had mailed the notice of the foreclosure as required by the statute, was an affirmative defense and, therefore, the burden was upon the defendant to prove this fact by the preponderance of the evidence.- This was objected to by counsel for the defendant. While the court gave further instructions, it did not change the instructions in this respect.

We think the instruction was erroneous. The basis of plaintiff’s suit was, and he so alleged in his statement of claim, that defendant had not given him the notice; therefore the burden was on him to prove this essential fact. The evidence on this point was conflicting. It was the crucial point in the case. We are therefore of the opinion that defendant had not had a fair trial under the law, and for the giving of the instruction the judgment must be reversed.

A great deal is said in the briefs as to whether plaintiff was required to prove the reasonable value of the truck at the time in question as he had alleged, this allegation not being traversed by the defendant; and reference is made to certain paragraphs of Bule 15 of the municipal court of Chicago, which is in the record. It is argued that a paragraph of this rule is in conflict with another paragraph of the same rule on the question whether, in the state of the record, plaintiff was required to prove the reasonable value of the truck. But since we have decided to reverse the judgment on the ground of the faulty instruction we think it would serve no useful purpose to discuss this question, because upon a redocketing of the case in the municipal court undoubtedly the defendant will be given leave to amend his affidavit of merits in this particular, if he so requests.

We think we ought to say that upon the retrial of the' case the court should admit evidence offered by the defendant as appears in the record tending to show that it made no charge for taking, keeping or selling the truck. This evidence was offered as tending to show that the notice of the sale, which defendant . claimed to have given, complied with the statute.

The judgment of the municipal court of Chicago is reversed and the .cause is remanded for a new trial.

Reversed and, remanded.

McSurely, P. J., and Matchett, J., concur.


text:
    Isabelle Harper, Appellee, v. Drexel State Bank, Appellant.
    Gen. No. 33,568.
    Opinion fled January 6, 1930.
    Eugene P. Kealy, for appellant; Chester E. Lewis, of counsel.
    No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendant to recover $450. The substance of her statement of claim is that about November 28, 1927, she presented to the . defendant bank a cashier’s check issued by the defendant on November 4, 1927, for $450, payable to Mrs. Mayetta Watson and purporting to bear the indorsements of Mrs. Watson and.I. Moll; that upon presentation of the check she inquired of defendant’s official whether it was good; that he examined it and advised her that the check was good but refused to cash it for plaintiff because she was unknown at the bank; that thereafter plaintiff advanced money to I. Moll, from whom she had obtained the check; that Moll became indebted to her in other respects hereinafter mentioned; that afterwards payment of the check was refused because it had been stolen from Mrs. Watson, the payee.

The defendant denied that it had told, plaintiff the check was good; denied that it was presented to defendant by plaintiff, and averred that Mrs. Watson, the payee, had advised the defendant that the check had been stolen from her and payment was thereafter stopped. There was a trial before a judge and a jury and a verdict and judgment in plaintiff’s favor for $200.

Plaintiff testified in her own behalf that in November, 1927, she was conducting a boarding house and cafe at 2215 Sheffield Avenue, Chicago; that on the Sunday after Thanksgiving (the calendar discloses that in 1927 Thanksgiving day was Thursday, November 24), a man giving his name as I. Moll came to her cafe with a party of four and had a turkey dinner; that after the dinner he asked her if she would take his personal check in payment of the dinner and she refused because she did not know him; that thereupon Moll produced the check involved in this case, which was a cashier’s check dated November 4, 1927, drawn by the defendant bank to the order of Mrs. Mayetta Watson for $450; on the back appeared the names Mrs. Mayetta Watson and I. Moll; that Moll asked her if she would take the check as-security until he could get the money; that she refused to do this but upon reconsideration showed the check to one of her regular customers who was then in the dining room; that he examined it and told her the check was all right since it was a cashier’s check; that Moll then went away and left the check with her and she gave him some ten or fifteen dollars; that on the following morning, which was Monday, she and Moll went to the .¿Etna State bank, located a few blocks from plaintiff’s place of business, where she carried an account, and requested that bank to cash the check for her; that the .¿Etna bank refused to do so because she did not have $450 in the bank; that she did not deposit the check there; that on the next day, Tuesday, she drove out to the south side to defendant’s bank, exhibited the check to the assistant cashier of that bank and asked him if it was good; that he examined it, turned it over and looked at the reverse side and said that the check was good; that it “is as good as money in your hand”; that she thereupon asked him to cash the check for her, which was refused on the ground that she was not known at the bank; that the assistant cashier thereupon inquired if plaintiff had a bank in which she kept an account and being advised that she had, he told her to deposit the check at her bank, which she agreed to do; she further testified that Moll was a guest at her hotel and restaurant, and after she returned from defendant’s ba>nk Moll ordered a dinner prepared for the next evening for 24 of his guests, the dinner to be served about 9 o’clock Wednesday evening; that plaintiff, having been assured by the Drexel Bank .that the check was good, prepared a dinner and advanced Moll $150 on the check; that on Wednesday evening shortly before the dinner was to be served Moll disappeared and no guests appeared for the dinner; that the next day she presented the check to the .¿Etna State Bank, when she was informed by an official of that bank that the check had been stolen from the payee, Mrs. Watson.

Plaintiff’s testimony that she had presented the check to the defendant bank was corroborated by the witness who drove her to the Drexel Bank. He testified that upon arriving at the defendant bank plaintiff presented the check to the assistant cashier and asked him to cash the check for her, and he told her the check was all right, that the money was in the bank but that he could not cash the check for her because she was not known at the bank,

The assistant cashier of the defendant bank gave testimony which we think was not as specific as it might have been in many respects. His testimony was to the effect that plaintiff never presented the check at the bank; that a few days after the check was issued on November 4, Mrs. Watson, the payee of the check, called at the bank and told him the check had been stolen from her and he stopped payment. Mrs. Watson testified that she lived at Nashville, Tennessee, came to Chicago in September, 1927, and made a deposit in the defendant bank; that in the early part of November she decided to return home and went to the defendant bank with her friend, Mrs. Klass, and got the cashier’s check, which represented the “balance of money she had in the bank; that four or five days after she obtained the check it was stolen from her in the downtown district by a man who grabbed her handbag in which she had the check; that this occurred on the evening of November 8, and the next morning she went to the defendant bank and advised them of the fact; that thereafter she called nearly every day to see whether the check had been presented for payment.

Her testimony as to calling at the bank after the loss of the check was corroborated by Mrs. Klass, who said they called repeatedly at the bank. There is other evidence in the record, but we think it unnecessary to refer to it because we have reached the conclusion that, upon a careful consideration of all the evidence in the record, the verdict of the jury is against the manifest weight of the evidence.

The uncontradicted evidence is that the check was stolen from Mrs. Watson about November 8 and the next morning she notified the defendant bank and thereafter called almost daily for two or three weeks on the defendant bank, making inquiries concerning the check. Plaintiff, according to her testimony, got the check in question on November 27, which was the Sunday after Thanksgiving in 1927, and the following Tuesday, she says, she presented it to the defendant bank. This is denied by officials of the bank. It seems obvious that if Mrs. Watson had notified the bank about November 9 that the check had been stolen — and this evidence is uncontradicted — the assistant cashier of the defendant bank would not have told plaintiff on November 29 that the check was good.

Moreover, we are of the opinion that even if the testimony of plaintiff be taken as true, she cannot recover. The circumstances surrounding the presentation of the check by plaintiff to the defendant bank, according to her own testimony, shows that the assistant cashier of that bank did not purport to pass on the genuineness of the indorsements on the check; obviously, he did not know Moll’s signature. Plaintiff’s own testimony shows that she had taken the check under rather peculiar circumstances. At the time the check was presented to her at her restaurant it was about 30 days old. The next day her bank refused to cash it for her, and on the following day, according to her testimony, she went to the defendant bank. She made no statement there as to what had taken place between herself, Moll, and her own bank.

We think there was nothing in the inquiry plaintiff made of the assistant cashier that would warrant the inference that she was inquiring about the genuineness of the indorsements on the check, and unless this were done, even on plaintiff’s own theory of the case, no recovery could be had. Central Nat. Bank v. Drosten Jewelry Co., 203 Mo. App. 646, 220 S. W. 511; Parke v. Roser, 67 Ind. 500. It is unfortunate that plaintiff was swindled by Moll but this is no reason why defendant bank should be mulcted.

The judgment of the municipal court of Chicago is reversed and the cause is' remanded.

Reversed and remanded.

McSurely, P. J., and Matchett, J., concur.


text:
    Isaac Bloom, Appellee, v. Mrs. John A. Kahl, Metropolitan Life Insurance Company, Garnishee, Appellant.
    Gen. No. 33,592.

      Opinion filed January 6, 1930.
    Hoyne, O’Connor & Rubinkam, for appellant.
    No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the

court.

Isaac Bloom brought an action of attachment against Mrs. John A. Kahl to recover $165 which he claimed to be due for rent for the premises known as 5618 West Division Street, Chicago. The affidavit for attachment set up that after allowing all just credits and set-offs, defendant was indebted for rent in the sum of $165, and that the defendant was about to depart from this State with the intention of having her effects removed from this State. A summons was issued in which the Metropolitan Life Insurance Company was named as garnishee. The bailiff’s return shows that he was unable to find any property of the defendant on which to levy the writ and that the garnishee was served. '

Mrs. Kahl, the defendant, was served by publication. She did not enter her appearance and judgment by default was entered against her.

The garnishee filed an answer stating that it held no property belonging to the defendant, and on a trial before the court without a„ jury, the court found the issues against the garnishee and that there was $171.10 due and owing from the garnishee to the defendant. -Judgment was entered on this finding and the garnishee appeals.

On February 14, 1929, the garnishee filed its sworn answer, in which it stated that it had no property in its possession belonging to the defendant. It however admitted that it had a check “payable to Mamie Kahl, which has been delivered to her, but has no information as to whether Mamie Kahl and Mrs. John A. Kahl are one and the same persons.” The case went to trial on March 8, 1929, and at the close of the plaintiff’s evidence the garnishee apparently having no evidence to offer, the court stated that there would be a judgment against the garnishee for $165. Thereupon, counsel for the garnishee stated he would like to file a “complete answer, file an amended answer before judgment is entered, for this reason. This is not a garnishment suit. We are brought in as garnishee by virtue of the attachment writ.” After considerable discussion between court and counsel, the court ordered that the garnishee be given time within which to file its amended answer and the case was continued. An amended answer was filed in which it was stated that the garnishee had no funds belonging to the defendant and some other matters which will be hereinafter mentioned. When the case came up for disposition, some time after the amended answer was filed, the court asked counsel for the garnishee if he had any evidence to offer. ■ Counsel then stated what they had set up in their amended answer, and further, that since these matters were sworn to in the answer, they must be considered as true and no evidence was needed. Afterwards the garnishee offered in evidence a copy of the attachment writ which was served upon it, and the court certified that in considering the case he took into the case the consideration of Bule 10 of the municipal court, which is in the record.

Whatever may be the procedure when the garnishee filed a sworn answer, which is not denied, has ,no appli: cation here because the evidence had all been heard by the court before its amended answer was filed and obviously the filing did not wipe out all the evidence.

The evidence shows that the garnishee had issued its policy on the life of John Kahl and that after his death claim was made for the proceeds of the policy and it was paid by the garnishee to Mamie Kahl, 1304 North Pine Street, Chicago, after the service on the garnishee, and the evidence shows that Mamie Kahl was John Kahl’s wife. There is no merit in the contention that the evidence fails to show that the garnishee was not indebted to Mrs. John A. Kahl, the defendant. The garnishee itself paid Mamie Kahl (Mrs. John Kahl) after it was served with the writ in this case. Something also is said in the brief that the garnishee was misled by counsel for the plaintiff as to what money plaintiff was trying to reach in the hands of the garnishee. If there were any duty on the plaintiff to point out this fact to the garnishee, we think the record discloses they acted in perfect good faith and did not in any way mean to mislead the garnishee. In answer to a letter from counsel for the garnishee, inquiring as to what money plaintiff desired to reach, plaintiff’s counsel replied that there was a check payable to Mrs. John A. Kahl in the hands of the manager of the garnishee in its office at 5201 West 26th Street, Cicero. There is nothing in the record that indicated that this was not the fact. However, we think it clear that it was not the duty of plaintiff to point out to the garnishee the precise place where the check, the proceeds of which it sought to reach, was located. The garnishee ought to so conduct its business that when it is advised of the policy involved, this would be sufficient.

It also contended that the summons which was served on the garnishee was not in accordance with Rule 10 of the municipal court. Rule 10 provides:

“In All Garnishment Cases: Every garnishee upon coming into court shall be required to file a written appearance; provided, the sworn answer of a corporation shall be deemed a sufficient appearance.

“In all garnishment cases the copy of the writ to be left with the garnishee shall bear an endorsement of the business of the principal defendant, with his (ór its) business and residence address so far as known, together with the date and amount of the judgment and the costs to date of writ.”

It is obvious that this rule does not apply in attachment cases and therefore has no application here.

A further contention is made by garnishee that since service was had on the defendant, Mrs. Kahl, by posting a notice, and since she did not enter her appearance, “the Municipal Court has no jurisdiction to enter judgment against the original defendant as the grounds for attachment set forth in the attachment affidavit are not mentioned in the Municipal Court Act”; and particularly section 48 of that act. The answer to this is that there' are no grounds for attaeh- • ment mentioned in the Municipal Court Act. Section 48 of the Municipal Court Act, Cahill’s St. ch. 37, 436, has to do with the service on the principal defendant by posting or publication. All grounds for attachment are mentioned in section 1 of the Attachment Act (sec. 1, Cahill’s St. ch. 11).

What is said by counsel for the garnishee, that all proceedings in attachment must be in strict conformity with the Statute on Attachment, and that where there is no personal service on the principal defendant but service is by publication, there must be a res in the hands of the garnishee, is obviously sound. But as stated, the evidence discloses that there was a res in the hands of the garnishee at the time of the service of the writ upon it and that it was afterwards paid Mrs. Kahl.

Defendant was served by posting notices as provided by section 48 of the Municipal Court Act, Ca-hill’s St. ch. 37, If 436, and the record discloses that the clerk mailed a notice to the defendant at 5618 West Division Street, Chicago. And the garnishee’s position seems to be that since the evidence discloses that the principal defendant lived at 1304 North Pine Street, Chicago, this rendered the service on the defendant invalid. The argument seems to be based on the theory that in the affidavit for attachment, the defendant’s address was given as 5618 West Division Street, but an examination of the affidavit discloses that this is not the fact, for it there appears that plaintiff was claiming rent from the defendant for the premises at 5618 West Division Street and not that that was defendant’s place of residence to which notice might be sent by the clerk of the municipal court, under section 48.

A further contention made by the garnishee, that all portions of the record must be proven to sustain a judgment against garnishee is without merit. All of the record was before the court and obviously needs no proof. Boksa v. Buchaniec, 245 Ill. App. 602.

But, upon looking into the record we find that in the affidavit for attachment there is no averment as to the residence of the defendant, Mrs. Kahl, nor is it stated that she is not a resident of this State, or has departed from this State, or on due inquiry cannot be found, or is concealed within the State so that process cannot be served upon her. In the absence of at least one of such allegations, there was no warrant for serving her by posting notices, nor was there any warrant in mailing the notice to 5618 West Division Street, because there was no averment that the defendant lived there at any time. There being no service upon the defendant, the judgment against her was void and where a garnishee is served in an attachment proceeding, no valid judgment can be entered against it where the judgment of the principal defendant is void. Rabbitt v. Weber & Co., 297 Ill. 491. In the Babbitt case it was held that a notice of an attachment case was insufficient to confer jurisdiction on the defendants where the notice was mailed to a place where the defendants did not reside and where there was no statement in the affidavit for attachment -as to the place of residence of the defendant. In that case it was held that the judgment against the principal defendant was void. That case is precisely in point and the rule announced there renders the judgment in this case void. We think we ought to say that this point was not mentioned in the trial court.

The judgment of the municipal court of Chicago is reversed and the cause is remanded.

Reversed and remanded.

McSurely, P. J., and Matchett, J., concur.


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    Rosie Kreda, Plaintiff in Error, v. Abraham Kreda, Defendant in Error.
    Gen. No. 33,650.
    Opinion filed January 6, 1930.

      Slottow & Leviton, for plaintiff in error; David Palsy, of counsel.
    Gabel & Gabel, for defendant in error; Harry P. Gabel, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Rosie Kreda filed her bill of complaint against her husband, the defendant, for separate maintenance. The defendant filed a plea in which he set up that several years prior to the filing of the bill in the instant case, a decree was entered in Russia dissolving the marriage between the parties. The case was heard upon the bill and plea. The court found that a decree of divorce had been entered in Russia as pleaded and dismissed complainant’s bill for want of equity.

The defendant, over objection, offered in evidence a document in the Russian language, which it is said was a decree of divorce entered on the petition of the wife in Russia in 1911, dissolving the marriage relation. There was also offered in evidence a document which purports to be a translation of the alleged decree of divorce from the Russian into the English language. No one testified that the translation was a correct translation and without someone testifying under oath or affirmation that the translation was correct, it was inadmissible in evidence. As we said in the case of City of Chicago v. Donaldson, 227 Ill. App. 611 (number 27,229, not reported), “We know of no way of proving matters in a court of record in this State except under oath or affirmation. There was no oath or affirmation so far as the child was concerned. Testimony given in a case in court must have the sanction of an oath. 1 Greenleaf on Evidence (16th Ed.), sec. 328; 3 Wigmore on Evidence, sec. 1824; R. v. Brasier, East, PI. Cr. 1-443.”

In Loehde v. Glos, 265 Ill. 401, the court said (404): “The system of laws and judicial proceedings had always permitted the admission in evidence of testimony or depositions or instruments in a foreign language.Instruments in a foreign language may be the very foundation and basis of rights, and such instruments are always admitted in evidence in the courts, with testimony explanatory of their proper meaning in English. ”

' An examination of the record discloses the fact that the decision of the chancellor was based on the alleged decree of divorce and since it was improperly admitted in evidence, the decree must be reversed.

A further point is made by the complainant that the decree was not admissible in evidence on the ground that it was not properly authenticated, and authorities are cited to this point. Although this went to the entire case of the defendant, his counsel, in his brief filed here, .makes no answer to the argument. Such an argument as has been filed is of no assistance to the court in arriving at a correct decision. This was a vital point in the case and it was the duty of counsel to answer the contention of the other side. An examination of the authorities cited by counsel for the complainant leads us to the conclusion that the decree was improperly authenticated. Thompson v. Mason, 4 Ill. App. 452, and authorities there cited.

Complainant offered evidence to the effect that she knew nothing of the alleged divorce decree entered in .Russia until several years after it was contended the decree had been entered; that she did not appear before the rabbi nor did she file a petition in any court. Other evidence was offered on her behalf tending to show that the.defendant had procured the alleged decree of divorce through fraud on his part.

The defendant gave testimony to the effect 'that the complainant had been the moving cause and that there Was no fraud, but apparently the court ignored this , phase of the case and decided it on the foreign decree. Obviously,. if the testimony offered on behalf of the complainant was true, the decree was void, even if it had been proven that the decree was properly authenticated. Mount v. Scholes, 120 Ill. 394; 34 C. J., page 1170. For the reasons stated above, the decree of the superior court of Cook county is reversed and the cause is remanded.

Reversed and remanded.

McSurely, P. J., and Matchett, J., concur.


text:
    George Eimer, Defendant in Error, v. Christie Miller, Plaintiff in Error.
    Gen. No. 33,665.

      Opinion filed January 6, 1930.
    Aaron R. Eppstein, for plaintiff in error.

      No appearance for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against Frank Miller, Christie Miller, Frank Cushna and Elmer Schumacher to recover damages for personal injuries. Before the trial Frank Miller died and the suit was dismissed as to him and as to Frank Cushna. The case was tried before a judge and a jury and on June 2, 1928, there was a verdict finding the defendants, Christie Miller and Elmer Schumacher, guilty and assessing plaintiff’s damages at $9,500. • Plaintiff and defendants each entered a motion for a new trial and on June 9 defendants’ motion was withdrawn, plaintiff’s motion was allowed and a new trial awarded. Afterwards, on . January 17, 1929, the case was again tried. The jury returned two separate verdicts, one finding the defendant Schumacher guilty and assessing plaintiff’s damages at $3,000 and the other finding Christie Miller guilty and assessing plaintiff’s damages at $9,000. Both defendants made a motion for a new trial. After-wards, on motion of plaintiff, the verdict against Schumacher was vacated and the suit as to him dismissed. The defendant Miller’s motion for a new trial was overruled and judgment of $9,000 entered on the verdict. He was allowed an appeal to this court upon filing a bond and bill of exceptions. No bond was filed but afterwards he sued out this writ of error.

The record discloses that on April 15, 1926, plaintiff, who was about 45 years old, was working for the defendant Frank Miller, the latter being a contractor in the business of constructing tile partitions in buildings. The building on which plaintiff was working on the day in question was located at the northeast corner of 22nd Street and Highland Avenue, Cicero. 22nd Street runs east and west and Highland Avenue north and south. The defendant Christie Miller was also working for his father, Frank Miller. He lived with his father at 3038 Ardmore Avenue, Chicago, which is several miles north of the place where plaintiff was working. They finished their day’s work at 4:30 in the afternoon but were requested to stay after working hours to remove some tile that had been left over from the fourth floor of the building so that plasterers would not be detained the next morning when they came to work. Plaintiff .and defendant Christie Miller proceeded to do this, which required about an hour’s time. When this was done both men got into Miller’s Ford truck, the truck being driven by Miller north in Highland Avenue, and when they were crossing 16th Street, an east and west street, a collision occurred between the truck and a Dodge sedan automobile which was being driven west by the defendant Schumacher in 16th Street. Plaintiff was so severely injured that it was necessary to amputate his left leg, and he was otherwise injured.

. One of the defenses interposed was that plaintiff and his employer, Frank Miller, were under the Workmen’s Compensation Act, Cahill’s St. ch. 48, H 201 et seq., and therefore the common-law action would not lie. On this question plaintiff’s theory was that he had finished his day’s work before he got into the Ford truck and was on his way home and therefore the Workmen’s Compensation Act did not apply. On the other hand the defendants ’ contention was that at the time of the accident plaintiff and the defendant Christie Miller had not completed the day’s work but were driving north to go to a building at number 2621 West Chicago Avenue, where Frank Miller had recently finished a job and there load the truck with left over material, and when this was done plaintiff, who lived at 2509 West Chicago Avenue, a short distance away, would go to his home, and Christie Miller was to proceed north to his home on Ardmore Avenue with the material which he was instructed to return the next morning to the party from whom it had been purchased and receive credit therefor.

Plaintiff has filed no brief in this court but it appears from the record that both parties assumed the law to be that if plaintiff’s work had been completed before the accident, the compensation act would not apply. This undoubtedly is the law. Schweiss v. Industrial Commission, 292 Ill. 90; Wabash R. Co. v. Industrial Commission, 294 Ill. 119; Wicks v. Cuneo-Henneberry Co., 234 Ill. App. 502, same case affirmed in 319 Ill. 344. This question was submitted to the jury who found in favor of the plaintiff and the defendants contend that the finding is against the manifest weight of the evidence, the argument being that plaintiff’s testimony to the effect that his day’s work was done before the accident was uncorroborated and he was contradicted by three other witnesses, viz., William Mullenberg, foreman on the job, Louis Underwood, a laborer, and Christie Miller, the defendant. And the case of Peaslee v. Glass, 61 Ill. 94, is cited, in which case it was said: “Where the issue rests upon the sworn affirmation of one party and the sworn denial of the other, both having the same means of information and both unimpeached, and testifying to a state of facts equally probable, a conscientious jury can only say that the plaintiff has failed to establish his claim. Without saying that this court would set aside a verdict for the plaintiff, rendered in such cases, on the ground alone that it was not sustained by the evidence, we must set aside one resting only upon the evidence of the plaintiff when that is contradicted not only by the defendant but also by another witness, and there are no elements of probability to turn the scale. Such is the present case.” The Peaslee case only holds that the court will reverse a judgment when the verdict of the jury rests alone on the testimony of the plaintiff and he is positively contradicted by the defendant, who is corroborated by an unimpeached witness. That' case has, however, often been cited as holding that a verdict will be set aside which rested alone upon the testimony of one party who is contradicted in toto by another where both appear to be equally credible. The case does not so hold. What is said on this question applies to the trial court but not to a court of review, and is but dictum (Hately v. Kiser, 162 Ill. App. 542) and never has been announced as the law in this State by our Supreme Court. See Federal Coal Co. v. Peerless Coal Co., 239 Ill. App. 650; Buck v. Morris, 234 Ill. App. 649 (not reported); Mills & Co. v. Duke, 232 Ill. App. 277; Simpson v. Foreman, 236 Ill. App. 646; First State Bank of Plano v. Isaacs, 221 Ill. App. 658; Hately v. Kiser, 162 Ill. App. 542; Sears, Roebuck & Co. v. Mears Slayton Lumber Co., 226 Ill. App. 287; West Chicago Street R. Co. v. Lieserowits, 197 Ill. 607; Libby, McNeill & Libby v. Cook, 222 Ill. 206; Herring v. Porits, 6 Ill. App. 208.

We have carefully considered the testimony of all the witnesses on this point and are of the opinion that we would not be warranted in holding that the verdict of the jury in favor of the plaintiff’s version is against the manifest weight of the evidence.

Complaint is also made that the verdict of the jury finding that the defendant, Christie Miller, was not without fault which proximately contributed to the plaintiff’s injuries, is against the manifest weight of the evidence. As is usually the fact in such cases, there was variant evidence as to how the accident occurred. The evidence on behalf of plaintiff tended to show that the Ford motor truck, in which he was riding, was traveling from 18 to 20 miles an hour and that it reached the intersection before the Dodge sedan which Schumacher was driving, while there was other evidence to the effect that the Ford motor was traveling at a much greater rate of speed than the Dodge car and that the Dodge car reached the intersection first. All of the witnesses agreed, however, that the Dodge car struck the Ford truck at or near the right hind wheel, the Ford truck passing in front of the Dodge car.

The jury was instructed as to the law where automobiles meet at intersections, such as the one involved. No complaint is made and we think none could be made, that the defendant did not receive the benefit of this law in the instructions. We think the question was a proper one for the jury and we are unable to say that their finding is against the manifest weight of the evidence. Nor are we able to say that the finding of the jury that plaintiff was not guilty of contributory negligence is against the manifest weight of the evidence. He testified that as the Ford truck was approaching 16th Street he called the driver, Christie Miller’s, attention to the fact of the approaching sedan. We think the question whether the plaintiff was exercising due care for his own safety was likewise a question for the jury to determine.

The defendant further contends that there is a variance between the declaration and the proof. An examination of the abstract of record fails to show that any such variance was pointed out on the trial. In these circumstances the point is not saved. If there was a variance and it had been pointed out, plaintiff would have a right to amend. But in any event, we. think the contention is not borne out by the record. In the first count it was alleged that Frank Miller and Christie Miller, defendants, carelessly and improperly managed the motor vehicle and that Cushna and Schumacher carelessly drove and managed the other vehicle and that through such negligence plaintiff was injured. The point made by the defendant is that the declaration, after charging the negligent driving of the two machines, alleged that plaintiff was injured through the improper conduct of Cushna and Schumacher. While the declaration might have been drawn more accurately, we think it is sufficient after verdict. The third count of the declaration charged both Miller and Schumacher with driving their respective cars in excess of 15 miles an hour, which was greater than was reasonable and proper, having regard for the traffic and use of the way, according to the statute. We think this count was good.

A further point seems to be made that the evidence shows that plaintiff was a mere licensee while riding in the Ford truck, while the declaration alleged that he was a passenger. Plaintiff’s evidence tends to show that he was traveling gratis in the Ford truck. We think the word “passenger” in the declaration is comprehensive enough to designate the relation of plaintiff to the defendant at the time in question. In Barnett v. Levy, 213 Ill. App. 129, and Masten v. Cousins, 216 Ill. App. 268; Lasley v. Crawford, 228 Ill. App. 590; sec. 692, Berry on Automobiles, 6th Ed., it was stated in substance that where one is riding gratis in the automobile of another, the latter is bound to exercise reasonable care for the safety of his guest, and if he does not do so and the guest is injured, he is liable. The question whether there were different degrees of care required in ■ certain circumstances was not discussed and is not involved in this case because it was submitted to the jury on the theory that the defendant . was required to exercise ordinary care for the safety of plaintiff.

An interesting discussion of the degree of care required where one is traveling gratis in the motor car of another may be found in Massaletti v. Fitzroy, 228 Mass. 487; O’Brien v. Woldson, 149 Wash. 192.

Complaint is also made to the ruling of the trial court on the admission and exclusion of evidence and in restricting cross-examination of the defendant Schumacher, who was called as a witness and testified for the plaintiff. We think that the court sustained .objections to questions put to this witness on cross-examination which should have been overruled. Some of the objections were highly technical and should not have been made. The objection to the testimony of Mrs. Bruce we think was properly overruled. Plaintiff offered evidence to the effect that Frank Miller was not at 22nd Street and Highland Avenue on the afternoon of the day of the accident. Defendant offered evidence to the contrary. In rebuttal plaintiff called Mrs. Bruce, who testified that she was a sister-in-law of plaintiff and was at the hospital where he was taken after the accident, about midnight, and there met Frank Miller; that Miller stated he was not at 22nd Street and Highland Avenue on the afternoon of the day in question because he was to see his doctor that afternoon. The objection to this testimony is that it was made out of the presence of Christie Miller, that Frank Miller was dead and could not contradict him. We know of no rule of law that would exclude this evidence although defendant was not in a position to contradict it. Frank Miller was not a party to the suit at the time the testimony was given, and we think the evidence was entirely proper.

Upon reading the entire testimony, we think that the error was not such as would warrant us in interfering with the judgment, nor do we think that the conduct of plaintiff’s counsel unduly prejudiced-the defendant. In fact we think the objections made are rather trivial and more technical than meritorious. Further complaint is made that the court erred in giving plaintiff’s instruction number 4, by which the jury were told that while plaintiff must prove his case by preponderance or greater weight of evidence, still the proof need not be the direct evidence of persons who saw the occurrence, but that the facts might also be proved by circumstantial evidence; but this instruction was inapt because all of the witnesses who testified concerning the happening of the collision were eyewitnesses; but we are also of the opinion that this instruction could not have prejudicially affected the defendant. A reading of the instructions given, we think, discloses the fact that defendant’s rights were at least, if not more fully, protected than the law warranted.

It is further contended that the court erred in receiving the two separate verdicts and afterwards setting aside the verdict as to the defendant, Schumacher, and permitting the plaintiff to dismiss as to him. We think the practice followed was proper. Bartolai v. Willett Co., 255 Ill. App. 630 (Abst.); Lasley v. Crawford, 228 Ill. App. 590; Nordhaus v. Vandalia R. Co., 242 Ill. 166.

The judgment of the circuit court of Cook county is affirmed.

Affirmed.

McSurely, P. J., and Matchett, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Samuel Malega, Plaintiff in Error.
    Gen. No. 33,699.

      Opinion filed January 6, 1930.
    Louis Greenberg, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Edw. E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

An information was filed in the municipal court of Chicago, charging the defendant, Samuel Malega, with unlawfully carrying revolvers concealed on his person. A jury was waived and the trial was before the court, where the defendant was found guilty, a fine of $20 imposed and he was sentenced to the House of Correction for ninety days. Afterwards, the defendant moved to vacate the judgment and filed a petition in support of his motion, which is not in the record. After a number of continuances of the matter, the motion was allowed and the judgment vacated. A change of venue was later allowed on motion of the defendant and on May 22,1929, the case came on for trial before another judge without a jury, defendant having elected to waive a jury, and after a hearing the defendant was again found guilty and sentenced to three months in the House of Correction. .It is to reverse this judgment that he prosecutes this writ of error.

The record discloses that about 3:30 o ’clock on the morning of February 16, 1929, a number of police officers in a squad car were driving west on 47th Street in Chicago when they saw the defendant walking west' on the south sidewalk of that street. He was walking fast. The squad car pulled over towards the south sidewalk and when it reached a point opposite the defendant the officers saw him take some dark object out of his right-hand overcoat pocket and throw it towards the south. Defendant kept on walking very fast' and turned into the building at 1947 West 47th Street, where he was arrested by one of the officers. He had some keys in his hand and was attempting to unlock the door at that number. He was searched by the officer to ascertain whether he carried any concealed weapons and not having found any, the officer was about to turn him loose when he was advised by the other officers that they had found three revolvers, one in the front of 1941 and two in front of 1943 West 47th Street. They then arrested the defendant and one of the officers testified that he then asked the defendant where he was going with the guns and why he threw them when he saw the officers coming, and that defendant replied, “You would not want me to keep them in my pocket until you searched me.” They then took the defendant in an automobile to the police station. The defendant testified that he did not throw any revolvers as testified to by the police, but that he threw an empty cigarette carton; that he was going about his business and was entering the premises at 1947, which was a real estate office, to get some clothes he had left there. In rebuttal two of the police officers testified that after placing the defendant under arrest, and when they were driving to the police station, defendant offered them $40 if they would release him. This testimony was not denied by the defendant.

The defendant contends that he was sentenced to confinement at labor in the House of Correction for three months under section 5 of the Deadly Weapon Act (Cahill’s St. ch. 38, IT 141 (5); par. 156, ch. 38, Smith-Hurd’s St. 1929); that under that section the punishment should have been in the county jail; that the sentence in the House of Correction is provided for by section 2 of-the Act of 1879 (Cahill’s St. ch. 38, IT 383; par. 390, Smith-Hurd’s St. 1929), but that that section applies only to misdemeanors which are defined and punishable under the Criminal Code; and that the Deadly Weapon Act is no part of the Criminal Code but is an independent act complete in itself. It is argued that the sentence to the House of Correction is unwarranted under the law. In support of defendant’s contention that the Deadly Weapon Act of 1925 is an independent act, the case of People v. Borgeson, 335 Ill. 136, is cited. In that case, the defendant was prosecuted under the Deadly Weapon Act of 1925, found guilty and sentenced to the House of Correction, and it was contended that defendant should have been punished under section 56 of the Criminal Code, and not the section of the Deadly Weapon Act. The court there held that the Deadly Weapon Act was complete in itself and repealed, by implication certain provisions in section 56 of the Criminal Code. It was there held that the Deadly Weapon Act was not unconstitutional. It might be observed, however, that although the point was not there raised or decided, and although the defendant there was prosecuted under the Deadly Weapon Act, he was sentenced to the House of Correction and not to the county jail.

Section 4 of the Deadly Weapon Act of 1925, Cahill’s St. ch. 38, ff 141 (4), provides in part that “No person shall carry concealed on or about his person a pistol, revolver or other firearm.” Section 5 provides, “Whoever shall violate any of the provisions of section 1 or section 4 of this Act shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars ($300) or imprisonment in the county jail for a period of not more than one (1) year, or both such fine and imprisonment.”

Section 2 of the Act of 1879 provides, “That hereafter any person convicted in any Court of Eecord of. any misdemeanor under the criminal code of this State, the punishment of which in whole or in part now is, or hereafter may be imprisonment in the county jail, the court in which such conviction is had, may in its discretion, instead of committing to jail, sentence such person to labor in the work-house of any city, town or county, where the conviction is had, or on the streets and alleys of any city, town or on the public roads of the county, under any street commissioner, city marshal, or person having charge of the work-house, streets, or public roads of such city, town or county, or to such labor under the direction of the sheriff as the county board may provide for.” The argument made by counsel for the defendant is that the punishment provided in section 2, just quoted, applies only where one is found guilty of a misdemeanor under the criminal code of this' State and that the Deadly Weapon Act is not a part of the criminal code of this State. We think this contention is unsound. What is often designated as the criminal code of this State is made up of • a great many different acts passed at different times by the legislature, and the makers of statutes generally place most acts defining crimes and providing for their punishment in chapter 38, Cahill’s St. ch. 38, of our statutes. But strictly speaking, we have no such thing as a code of our criminal law. We think the court was authorized in its discretion after the defendant was found.guilty, in sentencing the defendant to labor in the House of Correction under section 2 quoted above.

It is further argued that the defendant was not proven guilty beyond a reasonable doubt and that it was not proved beyond a reasonable doubt that the defendant carried the revolvers concealed upon his person which were found by the police officers. We have .carefully considered this evidence, most of which we have, above set forth, and are of the opinion that the finding is warranted by the evidence. In this connection counsel argues that it is incredible to believe that the defendant, who was in front of the premises of 1945 West 47th Street and was walking west, could throw the revolvers in front of the premises at 1941 and 1943 West 47th Street. But we think this is not a fair construction of the evidence in the record. The testimony indicates that plaintiff was walking rapidly west and that he was about in front of 1943 when he threw the pistols.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

McSurely, P. J., and Matchett, J., concur.


text:
    Capital State Savings Bank, Defendant in Error, v. Charles E. Larson and Bernhard Johnson, Plaintiffs in Error.
    Gen. No. 33,716.

      Opinion filed January 6, 1930.
    . Ernest A. Eklund and Frederick J. Bertram, for plaintiffs in error.
    Gustav E. Beerly, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, as holder for value in due course of a promissory note, brought suit against the defendants to recover the principal and interest due on the note, together with court costs and attorney’s fees on the ground that the defendants had in writing guaranteed the payment of the note. Both defendants were served, Johnson was defaulted and Larson filed “an affidavit of merits denying any of the indebtedness claimed. After-wards the cause came on for trial without a jury, the defendants not appearing. The court heard the evidence, found the issues against the defendants and assessed the plaintiff’s damages at $2,742.50. Judgment was entered on the finding, and the defendant Larson prosecutes this writ of error.

Plaintiff in his statement of claim alleged that it was the holder for value in due course of a promissory note made by Carl O. E. Lind, dated November 20,1928, for $2,500, payable to the order of plaintiff 60 days after date; that the note was guaranteed in writing by the defendants, the guarantee on the back of the note being in the following words and figures: “For value received, we hereby guarantee the payment of the within note at maturity, or at any time thereafter, or if the maker or makers should become insolvent prior to such maturity, then (notwithstanding, this note be not due by its terms) promptly on the occurrence of such insolvency, with interest at seven per cent per annum ■ until paid, and agree to pay the same with all costs and expenses paid or incurred in collecting the same, hereby waiving demand of payment, notice, protest and notice of protest, and consent without notice, to any extension of time by the holder.

(Signed) Charles E. Larson
Bernhard Johnson. ’ ’

And it was further alleged that by reason of the foregoing the guarantors were liable upon the note with interest and court costs “and $250 as and for reasonable attorney’s fees.”

The defendant, Larson, in his affidavit of merits denied that plaintiff was the holder for value in due course of the note; alleged that no consideration was received by either of the defendants from the plaintiff; denied that he was indebted or liable to the plaintiff on the note for principal, interest, costs or attorney’s fees; denied that $250 was reasonable attorney’s fees and further denied any and all liability.

The evidence heard on the trial is not in the record before us. The defendant, Larson, contends that the statement of claim does not state a cause of action in that there is no allegation of the nonpayment of the indebtedness, -and since there was no cause of action stated, the judgment should be reversed. A number of authorities are cited which counsel for the defendant . say hold that without an allegation that default has been made in the payment of the note, no cause of action is stated against the guarantor, ‘and that in such case the judgment must be reversed.

In reply to this contention counsel for plaintiff says that the instant case, being one brought in the municipal court, it is not required that plaintiff’s statement of claim state a cause of action with the same particularity as a declaration at common law in other courts of record; that by section 3 of the Municipal Court Act, Cahill’s 1929 Statutes, ch. 37, If 391, page 865, it is provided, “in all cases of the fourth class . . . the issues shall be determined without other forms of written pleadings than those hereinafter expressly prescribed or provided for”; that section 40 of the same act, Cahill’s St. ch. 37, jf 40, provides that in “every case of the fourth class” (similar to the one at bar) plaintiff shall file a statement of claim which, “if the suit be upon a contract, express or implied, shall consist of a statement of the account or of the nature of the demand, . . . and such further information as will reasonably inform the defendant of the nature of the case he is called upon to defend.” Section 28, Cahill’s St. ch. 37, H 416, part 9, provides that “The judges of said municipal court may, by rules adopted in the manner prescribed by this Act, provide that the practice in cases of the first class shall be the same as in this Act provided for cases of the fourth class”; that rule 14 of the municipal court provides that “The pleadings in all cases of the first class shall be the same as in cases of the fourth class.” And that in view of the statute and rule of the municipal court, the statement of claim in the instant case is sufficient; that it complies with section 40 above quoted because it sets forth the contract upon which the suit is predicated and gives the defendant such information as reasonably informs him of the nature of the case he is called upon to defend; that this is shown by the fact that the only defendant that appeared filed his affidavit of merits without raising any objection to the sufficiency of the statement of claim. The defendant, in his reply brief, seems to concede that plaintiff’s contention would be sound if rule 14 of the municipal court were in the record. But he argues that since the rule is not in the record, it cannot be noticed by this court on appeal or writ of error. And a number of cases are cited which hold that this court will not take notice of the rules of the municipal court unless they are incorporated into the record. This undoubtedly was the law until July 1, 1929, when a statute passed by the legislature went into force and effect. That act is entitled, “An Act in Delation to Judicial Notice,” and by section 2 it is provided, “Upon the review by any court of appellate jurisdiction by appeal, writ of error or otherwise, of a judgment, order or decree of an inferior court, such court of appellate jurisdiction shall take judicial notice of all matters of which such inferior court lawfully took judicial notice, including all rules of practice adopted by such inferior court.” (Cahill’s St. 1929, ch. 51, 58, p. 1310). This statute being remedial, we think it requires us to take judicial notice of the rules of the municipal court although the instant case was commenced January 29, 1929, and a final judgment was entered April 18, 1929, which was before the act of the legislature went into effect. Furthermore, we think the act applies because the writ of error, which is the beginning of a new suit, was sued out of this court August 6, 1929, after the act in question was in full force and effect.

A further contention is made that the judgment is excessive in that it includes attorney’s fees of $250 and court costs of $15, the argument being that there is no warrant for such allowance in the written guarantees sued upon; that the guarantee only provides that the defendant shall be liable for costs and expenses incurred in endeavoring to collect the note; that there was no suit upon the note — at least there is no evidence in the record of this fact; but that the suit is upon the guarantee. We think this contention must be sustained. Abbott v. Brown, 131 Ill. 108. If plaintiff will, within ten days, remit from the judgment $15, court costs, and $250 attorney’s fees, the judgment will be affirmed, otherwise the judgment will be reversed and the cause remanded.

Judgment affirmed upon remittitur; otherwise reversed and remanded.

McSurely, P. J., and Matchett, J., concur.


text:
    Augusta Pfeil, Appellee, v. Max Loeb and Alice Loeb, Appellants.
    Gen. No. 33,721.

      Opinion filed January 6, 1930.
    Isaac B. Lipson, for appellants; Randolph Thornton, of counsel.
    No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, as assignee and owner of a promissory note, brought suit against the defendants, makers of the note, to recover the face value of the note with interest. The defendants moved the court to strike plaintiff’s statement of claim, which motion was overruled. The defendants elected to stand by their motion and refused to file an affidavit of merits. The court thereupon entered judgment in favor of plaintiff and against the defendants on the statement of claim for $1,452, and the defendants appeal.

The question for decision therefore is, whether plaintiff’s statement of claim was sufficient. The substance of the statement of claim is that the defendants made the note in question payable to the “Sheboygan Loan & Trust Co., or order” and that the note was “negotiated and assigned to her (plaintiff) by the Sheboygan Loan and Trust Company for a valuable consideration, . . . and that she is the actual, equitable and bona fide owner thereof,” A copy of the note was attached to and made a part of the statement of claim. The note was not indorsed by the payee or any one else. There is no assignment written upon it, and the defendants contend that their motion to strike the statement of claim should have been allowed because plaintiff did not have the legal title to the note and that the law requires that a suit based upon a promissory note must be brought in the name of the party having the legal title to the note.

In support of this contention counsel for the defendants cite a number of cases, most of which were decided before our Negotiable Instruments Act of 1907 went into effect. Section 49 of the Negotiable Instruments Act of 1907 provides: “Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transferer vests in the transferee such title as the transferee [transferer] had therein, and the transferee acquires, in addition, the right to enforce the instrument against one who signed for the accommodation of the transferer and the right to have the indorsement of the transferer if omitted by accident or mistake. But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made.” (Cahill’s St. ch. 98, [[69; Smith-Hurd’s Stat. 1929).

The statement of claim alleged in effect that the note had been assigned and transferred by the payee to the plaintiff for a valuable consideration. These allegations "being admitted (by the defendants by their motion to strike) the title to the note was by virtue of section 49, just quoted, vested in plaintiff because it is there expressly provided that where a note is transferred without the payee indorsing it, “the transferer vests in the transferee such title as the transferee had.” This was the holding in Farmers Bank of Downs v. Ryan, 223 Ill. App. 491. But the defendants further contend that there was no allegation in the statement of claim that plaintiff had complied with section 18, chapter 110 of our Practice Act, Cahill’s St. ch. 110, If 18. That section has to do only with nonnegotiable choses in action and is therefore inapt here. Section 5 of chapter 98 of our statutes, Cahill’s St. ch. 98, ff 3, provides, in effect, that an assignee of a negotiable instrument may sue in his own name.

A further point is made that judgment should not have been entered on plaintiff’s statement of claim because plaintiff’s affidavit of merits was made before a notary public of Sheboygan county, Wisconsin, and that the notary failed to certify that she was authorized and empowered under and by virtue of the laws of Wisconsin to administer oaths and that in the absence of such certification the purported affidavit is a nullity. We think this contention must be sustained under the decisions in our State. Desnoyers Shoe Co. v. First Nat. Bank, 188 Ill. 312; Ferris v. Commercial Nat. Bank of Chicago, 158 Ill. 237; Smith v. Lyons, 80 Ill. 600; Trevor v. Colgate, 181 Ill. 129.

Section 6, ch. 101, If 6, Cahill’s St., provides: “When any oath authorized or required by law to be made is made out of the State, it may be administered by any officer authorized by the laws of the State in which it is so administered, and if such officer have a seal, his certificate under his official seal shall be received as grima facie evidence without further proof of his authority to administer oaths.” In the Desnoyers Shoe Co. case it was said (p. 318) “By the general law merchant a notary public did not have power to administer oaths. Such authority is only conferred by statute, and will not be.presumed to exist, but must be proven. (Keefer v. Mason, 36 Ill. 406.) The supposed affidavit of J. B. Desnoyers, above set forth, sworn to in the State of Missouri, under said statute, as heretofore construed by this court, was void for the reason the notary made no certificate of his authority to administer oaths under the laws of the State of Missouri, and there was no other evidence of such fact filed therewith. . . .

“It is insisted by appellant that the jurat and seal of the notary public attached to the said affidavit established prima facie the fact that said notary public had authority, under the laws of the State of Missouri, to administer oaths. This contention cannot be sustained. In the casé of Trevor v. Colgate, 181 Ill. 129, on page 131, -the court say: ‘The position of counsel for appellees is, the certificate of the notary, under his official seal, that he has administered the oath, is made by said section 6 prima facie proof that the notary had authority to administer oaths. That construction cannot be accepted. The meaning of the section is, if the notary shall certify, under his official seal, that he has authority to administer oaths under the statute of the State under which he holds his commission, such certificate shall be prima facie evidence that he has such statutory authority.’ ”

Under the authorities cited we are compelled to hold that there was no affidavit to plaintiff’s claim and therefore the judgment must be reversed.

The judgment of the municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

McSurely, P. J., and Matchett, J., concur.


author: Mr. Presiding Justice Boggs

text:
    Vincent D. Lobdell, Appellee, v. G. O. Williams, Appellant.
    Gen. No. 8,114.
    Opinion filed January 3, 1930.
    B. A. Knight, for appellant.
    Hinchcliff, Miller & Thomas, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

An action in assumpsit was instituted by appellee in the circuit court of Winnebago county to recover on a note executed by appellant. The declaration consisted of the common counts, accompanied by affidavit of merits. To said declaration, appellant filed a plea of the general issue, a plea of the statute of limitations, and a notice of the defense of usury under the general issue. A trial was had, resulting in a verdict and judgment in favor of appellee for $600. To reverse said judgment, this appeal is prosecuted.

On the back of said note were three indorsements, as follows:

“July 18, 1917, Pd. Int. to July 22-17 $ 9.50
“July 18, 1917, on prin. 25.50
“Aug. 25, 1919, Pd. to apply on Int. 20.00”

It is conceded that, if these credits were properly indorsed, the plea of the statute of limitations would not be good. Appellant, however, insists that there is no sufficient proof of the payment by him of the amounts and at the times indorsed on said note. For the reasons hereafter set forth, it will not be necessary for us to pass on this question. Appellant, at the time of the execution of said note, resided at Rockford. In January or February, 1919, he removed to the State of Michigan, where he resided until October, 1927, and thereafter, until June, 1928, he was in the State of California. Appellant’s defense of the statute of limitations is therefore not well taken. Cahill’s St. ch. 83, § 19; Janeway v. Burton, 201 Ill. 78-80.

It is next insisted that, even though there be a right of recovery, the verdict and judgment are excessive, for the reason that the note here sued on was given in renewal of a balance on a urior note of $600, which was tainted with usury.

The record discloses that, m the early part of October, 1914, appellant applied to appellee for a loan of $500. Appellee stated that he did not have the funds to loan, but thought he could procure the same from certain parties in Chicago. Appellee, accompanied by appellant, went to Chicago, and obtained $500 from L. A. Kinsey & Son, which amount appellee delivered to appellant. Thereupon a note for $600, dated October 13, 1914, was executed by appellant, agreeing to pay appellee said amount four months after date, with interest at the rate of 6 per cent per annum after maturity. The evidence is further to the effect that, on March 22, 1917, said parties computed the amount owing on said note, and found the same to be $475; that appellant executed the note here sued on, which is as follows:

“$475.00
March 22, 1917.
“Thirty days after date I promise to pay to the order of Vincent D. Lobdell, four hundred seventy-five dollars payable at 127 W. State St., Rockford, Illinois. With interest at 6 per cent per annum, payable semi-annually. •
“G. O. Williams.”

Appellant testified that $500 was the only consideration he received for the execution and delivery of said note for $600. Appellee concedes that that was the only amount paid to appellant, but testified that appellant had agreed to pay him his expenses for going to Chicago, and commissions for procuring the loan. He did not testify as to what his expenses or commissions were, other than that his carfare one way was $3.08. He was asked, “What commissions do you refer toV’, and testified in answer thereto: “Whatever it all totaled up to make the $600 note, expense and commissions. I mean $100 represented my expense, trouble and commission.” Appellee, in his testimony, intimated that the loan in question was made by Kinsey & Son to appellant, but stated that the note was taken to him. However, on cross-examination he admitted that he had had possession of the note during all of the time.since the same was executed, and that he did not know whether, at the time he procured the $500 from Kinsey & Son, they were advancing the money to Mm, or whether he had that amount of money coming to Mm from them.

The only conclusion to be drawn from the evidence is that said loan was made by appellee to appellant. As appellant only received $500, said note of $600 was tainted with usury. Cahill’s St. ch. 74, § 5; Leonard v. Patton, 106 Ill. 99; Payne v. Newcomb, 100 Ill. 611-616; Ammondson v. Ryan, 111 Ill. 506-510; Jackson v. May, 28 Ill. App. 305-312; Springer v. Mack, 222 Ill. App. 72-74.

Some contention is made by counsel for appellee that appellant, in his defense, is not entitled to go back of the settlement at the time the note here in question was executed. This point is not well taken. • So long as any part of the original debt remains unpaid, the debtor may insist upon the deduction of the usury. Payne v. Newcomb, 100 Ill. 611-616; Jenkins v. International Bank of Chicago, 97 Ill. 568-579; House v. Davis, 60 Ill. 367-370; Cobe v. Guyer, 237 Ill. 568-573. In the latter case, the Supreme Court, in discussing tMs question, at page 573 says:

“It is contended by the defendant in error that the cancellation of the stock and the original securities and taking new notes of plaintiffs in error purged the transaction of usury. It is true that if, after a usurious transaction has been completely settled and closed, a new loan was made, the borrower will not be allowed to set up the usury in the former transaction against the new loan. Usury in one transaction cannot be availed of in another. But settlement and agreement upon the amount due and the giving of a new note do not preclude the defense of usury existing in the original transaction. So long as any part of the original debt remains unpaid, the debtor may insist upon the deduction of the usury. (Payne v. Newcomb, 100 Ill. 611; Jenkins v. International Bank, 97 Ill. 568; House v. Davis, 60 Ill. 367;) and only the balance of the principal remaimng after the application of the principal of all payments, whether of principal or interest, can be recovered. (Harris v. Bressler, 119 Ill. 467.)”

It is also insisted by appellee that the payments on interest by appellant were voluntarily made and that, that being true, he is not entitled to credit therefor. While usurious interest, voluntarily paid, cannot be recovered back where the note or loan tainted with usury has been paid in full and the transaction has been closed, yet, where any part of the principal or interest remains unpaid, the maker of the note is entitled to have credited thereon all payments made on interest, either on the original note or on the note or notes given in renewal thereof. Cobe v. Guyer, supra, 573; Stober v. Ehrhart, 223 Ill. App. 543-546; Mason v. Pierce, 142 Ill. 331-336.

It is admitted by appellee that the note here sued on was given in renewal of the balance owing on said note of $600. Under our holding, therefore, appellant would be entitled to credit for the $100 difference between said note of $600 and the amount received by him at the time of the execution of the note, and to the interest accruing on said $600 note from its maturity to the date of the note here sued on, being $87.90; also to the payments credited on the back of said note, entered thereon by appellee or by his authority, making a total credit of $242.90, reducing the principal of said $475 note to $232.10. As the amount owing to appellee, under our holding, is merely a matter of computation, it is not necessary to remand the cause.

The judgment of the trial court is therefore reversed and judgment is rendered here against appellant and in favor of appellees for $232.10.

Judgment reversed; judgment here.