text:
    Ava Blue Grass Creamery Company, Defendant in Error, v. Sussman Brothers, Inc., Plaintiff in Error.
    1. Sales — when contract divisible. A sales contract by which defendant agreed to take the butter product of defendant in error for a year up to a certain weekly quantity, of agreed quality, at a price fixed, payable weekly, is divisible.
    2. Evidence — when offer of proof incompetent as hearsay. An offer of evidence to prove that defendant had received complaints from his customers about the quality of plaintiff’s butter as furnished him under a butter sales contract, was an offer of hearsay and incompetent in the butter maker’s suit to collect under the contract.
    3. Sales — when evidence incompetent to prove noncompliance with contract. An offer to prove that a butter factory promised to change its butter maker was incompetent against it in its suit to collect for nonpayment for the last month of a butter sales contract, as such evidence did not tend to show that the butter delivered to defendant was not up to contract quality.
    4. Sales — when evidence of noncompliance with contract requirements too vague. An offer to prove that a butter maker promised to make right at some future time a failure of quality in butter furnished defendant is incompetent in the former’s suit to collect for nonpayment under a butter sales contract because it is too vague as to what was promised and by whom.
    5. Sales — duty of purchaser to notify seller of nonconformity with contract standards. Evidence held to show that the purchaser of butter failed to notify the seller within a reasonable time after delivery and acceptance of same, that it did not conform to the contract requirements and hence, under Cahill’s St. eh. 121a, T[1f 51 and 52, the purchaser was barred from recouping damages against the seller growing out of such failure to comply with the contract.
    6. Saving questions fob review — failure to attach affidavit of merits to plea. To raise on appeal defendant’s failure to attach on affidavit of merits to his plea, plaintiff must bring such failure to the attention of the court on the trial by motion to strike or otherwise.
    Error by defendant to the Circuit Court of St. Glair county; the Hon. J. E. Gillham, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 19, 1927.
    Rehearing denied March 23, 1927.
    D. E. Keeps and Harold G-. Baker, for plaintiff in error.
    Kramer, Kramer & Campbell and Roland H. Wiechert, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court. Plaintiff in error, being engaged in the grocery business in East St. Louis, contracted with defendant in error, who operates a creamery at Ava, Illinois, to purchase from it “the entire output of butter manufactured by said party of the first part (defendant in error) at their plant at Ava, Illinois, not to exceed 3,000 pounds of butter per week, for the term of 1 year, beginning on the 1st day of January, 1924, and ending on the 31st day of December, 1924.

“The party of the first part (defendant in error) further agrees that the aforesaid butter shall be fresh and shall score from 85 to 92, that the said butter shall be packed in pounds, one-half pounds and quarter pounds and tubs as requested in advance by the party of the second part; the party of the first part agrees to make shipments of the said butter daily as manu-' factored; * * * the price to be 2 cents over St. Louis, Missouri, Standard Quotations; the party of the second part further agrees to pay the aforesaid purchase price for the said butter during the week following the receipt of the same.” Said contract also provided that each party should furnish one-half of the cartons used for said butter.

All of the butter delivered up to November 24, 1924, was accepted and paid for. The butter thereafter delivered by defendant in error to plaintiff in error, not being paid for, suit was instituted in the circuit court of St. Clair county to recover for butter delivered from November 24 to December 11, 1924, inclusive.

The special count of the declaration set forth the terms of said contract, alleged the delivery and acceptance of said butter, and that it had not been paid for. The declaration also contained the common counts. The pleadings of plaintiff in error, as finally amended, consisted of the general issue, with notice of recoupment or set-off of damages alleged to have resulted to plaintiff in error on account of the failure of defendant in error to deliver the full amount of butter contracted, and for damages arising from the alleged failure of said butter to reach the standard set forth in the contract sued on. A trial was had, resulting in a verdict and judgment in favor of defendant in error for $1,570.14, being the total amount sued for, and which included one-half of the cost of the cartons used in connection with the delivery of the butter under said contract. To reverse said judgment, this writ of error is prosecuted.

It is first contended by plaintiff in error that the court erred in holding the contract sued on to be a divisible contract; that, suit being brought to recover for butter delivered and accepted from November 24 to December 11, plaintiff in error had a right to recoup or set off any damages it may have sustained on account of the butter theretofore delivered to it, and which had been accepted and paid for, not being of the quality and standard provided for in said contract.

The holding that the contract sued on was divisible, we think is fully sustained by our Supreme and Appellate Courts. Harber Bros. Co. v. Moffat Cycle Co., 151 Ill. 84; Spring v. Slayden-Kirksey Woolen Mills, 106 Ill. App. 579; Slayden-Kirksey Woolen Mills v. Spring, 116 Ill. App. 27; Davenport Vinegar & Pickling Works v. Glaser, Kohn & Co., 150 Ill. App. 567; Robidoux v. Baltz, 153 Ill. App. 100; Amsler v. Bruner, 173 Ill. App. 337; North Shore Lumber Co. v. South Side Lumber Co., 176 Ill. 96; Maney Milling Co. v. Baker-Wignall & Co., 186 Ill. 390.

Whether or not the court was correct in holding that plaintiff in error could not go back of November 24, 1924, for the purpose of proving as a recoupment or set-off that the butter theretofore delivered to it, and which was accepted and paid for, was not of the quality required by contract, as a defense to defendant in error’s suit, the offer made by plaintiff in error of what it expected to prove was not competent. One of the offers made was as follows: “I offer to prove by this witness (David Sussman) that customers, such as the buyer for the T. M. C. A., Bobinette’s Restaurant and other persons, whom he knew, but whose names he can’t recall, returned the butter, complaining that the butter was bad and they couldn’t use it and those persons further refused to purchase butter from him or trade with him.” Evidence of that character was wholly incompetent, and, being objected to, the court rightly refused to admit the same, it being of a hearsay character. Another offer was that “beginning with May 9, 1924, and thereafter, while they received shipments of butter, and made payments for the same, that these were not voluntary' payments in the sense that they were accepting the butter as being in compliance with the fulfillment of the contract, but made because the plaintiff was promising to do certain things, to change butter makers, or get a new butter maker, or that they (defendant in error) would make it right at a future time, and it was because of these things that payments were made, and not because the butter received was in compliance with the contract.”

The mere fact that defendant in error may have promised to change its butter maker would not tend, in and of itself, to show that the butter delivered and accepted was not according to contract, nor that defendant in error agreed to make it right at some future time, without showing what the defendant in error promised to do or by whom the promise was made. Evidence was admitted by the court to the effect that butter had been returned and complaints had been made, but that evidence had to do with butter delivered between November 24th and December 11th.

There was no evidence offered to show that defendant in error did not deliver its entire output to plaintiff in error during the period covered by said contract, or up to December 11, 1924. Some of plaintiff in error’s witnesses testified to the effect that some of the butter had specks in it and was not sweet, but that testimony had to do with butter delivered after November 24th. No testimony was offered to the effect that the butter delivered prior to November 24th had been scored and did not score from 85 to 92, or that said butter was not fresh.

William Winkler, a witness on behalf of plaintiff in error, testified: “I sold this butter all year, not only during November and December. I sold it all year but my complaints came in November and December, so far as I know the butter was good up to then.” Arthur Niefert, a witness for plaintiff in error, testified on cross-examination: “All the butter that was sold to Winkler during November, from November 24 to December 11, was fresh butter that was shipped from the Ava Blue Grass Creamery Company during those periods.”

None of the witnesses who testified on behalf of plaintiff in error undertook to state the amount of butter which they claim did not comply with the standard set forth in the contract, whether it was only a few pounds or many pounds.

On rebuttal, H. M. Talbot testified for defendant in error that the first complaint that Sussman made with reference to said butter was in January, 1925.

Even though it should be held that if competent proof had been offered, plaintiff in error would have been entitled to have recouped damages which it may have sustained prior to November 24, 1924, it must fail for lack of such proof or the offer of such proof. The record in this case wholly fails to show that the plaintiff in error ever returned or offered to return any of the butter received prior to November 24, 1924, but the evidence is that said butter was accepted and paid for.

It should be further observed that sections 48 and-49 of the Uniform Sales Act, Cahill’s St. ch. 121a, W 51, 52, chapter .121%, p. 2269, Smith-Hurd’s Rev. St., 1925, provide as follows:

“§ 48. The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.
“ § 49. In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.”

We. think the record in this case conclusively shows that plaintiff in error accepted all of the butter shipped or delivered prior to November 24th, and paid for the same, but there is no sufficient showing that notice was given defendant in error within a reasonable time after the acceptance of said butter that plaintiff in error was claiming damages on account of the butter not being of the standard provided for in the contract.

On the contention made by defendant in error that no affidavit of merits was filed with the second plea of the general issue with notice of set-off, and that therefore plaintiff in error was not entitled to offer evidence under said plea and set-off, if defendant in error desired to take advantage of the fact that no affidavit was filed with said plea, it should have brought the same to the attention of the court on the trial, by a motion to strike the plea or otherwise. Not having done so, it is not in a position to raise the point at this time.

On the whole record, we are of the opinion and hold that no substantial error prejudicial to plaintiff in error occurred on the trial of said cause, and that therefore the judgment of the trial court should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    The People of the State of Illinois ex rel. Albert G. Hirsch, Defendant in Error, v. Charles F. Nagel and Margaret Nagel, Plaintiffs in Error.
    1. Appeal and sss¿R.cm,-r-incorporation in record of proceedings in vacation. Proceedings in habeas corpus before a judge in vacation cannot be certified by the judge and filed with the clerk of the court of which he is judge and thereby be made a part of the record.
    2. Habeas corpus — procedure governed by statute. The writ of habeas corpus is guaranteed by the Illinois bill of rights but the proceedings and practice to obtain that right are governed by statute, Cahill’s St. ch. 65.
    3. Appeal and error — review of habeas corpus proceedings in vaca* tion. Although a writ of error will lie to review the record of a habeas corpus proceeding in a circuit court, it will not lie to review habeas corpus proceedings before a judge in vacation.
    4. Parent and child — right of father to custody. That the father is not as affectionate toward and as attentive to his son as respondents felt he ought to be, will not cause the Appellate Court to reverse the finding of the trial judge made in vacation that the father, as the natural guardian under Cahill’s St. ch. 64, If 4, is competent and fit to have the custody of the child.
    5. Appeal and error — review of findings. The Appellate Court will not reverse the findings of the trial court in a trial without a jury nor of a chancellor where the witnesses are heard by him, unless the findings are manifestly contrary to the weight of the evidence.
    Error by defendants to the Circuit Court of Monroe county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1926.
    Writ of error dismissed.
    Opinion filed February 19, 1927.
    McG-lynn & Me Glynn, for plaintiffs in error.
    A. H. Fridrichs, State’s Attorney, and A. 0. Bollinger, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court. In May, 1926, one Albert G. Hirseh of Monroe county presented a petition for a writ of habeas corpus to the Hon. George A. Crow, one of the circuit judges of said county, during the vacation after the March and before the September term of said circuit court. Said petition charged that Charles N. Hirsch is a minor child of the petitioner, aged three years; that the mother of said child is dead, “and that said child is now unlawfully held and detained by Charles F. Nagel and Margaret Nagel, and unlawfully kept away from the petitioner and out of his care and custody, and that said detention is unjust and contrary to law.”

The respondents, Charles F. Nagel and Margaret Nagel, in their return to said petition, aver that they are the grandfather and grandmother, respectively, of said Charles N. Hirsch, whose mother, Lena Hirsch, their daughter, died on the 28th day of December, 1922. Respondents further allege in said return that the mother before her death requested the petitioner, the father of said child, to allow its care and custody to be delivered to its said grandparents, and that the petitioner agreed thereto; that, pursuant thereto, respondents took said child and have since had its possession and control; that said child was of delicate health and that they had given said child every care and attention possible, in order that it should become a healthy and strong child. It is further alleged in said return that petitioner and his present wife, he having remarried since the death of the mother of said child, are not experienced in the rearing of children, and that they were not in a position to give said child the attention it should have; that said petitioner has repeatedly stated and declared that he did not want said child, and that he preferred to have the respondents retain its care and custody; that it was only after his marriage with his present wife, and on account of the gossip of the neighbors to the effect that his present wife did not want the child in the home, that petitioner and his said wife began to demand that its custody be delivered to them.

A hearing was had in vacation before the Hon. J. F. G-illham, another of the circuit judges of said county, and an order was entered giving said child into the cafe and custody of its father. To reverse said order, respondents prosecute this purported writ of error.

While counsel for said petitioner raise no question in their brief or argument as to the right of respondents to prosecute said writ of error, still, as we view this matter, it is one of jurisdiction, and for that reason it is our duty to first determine whether or not a writ of error will lie to reverse this proceeding.

The purported record in this case clearly indicates that the entire habeas corpus proceeding was had in vacation. Was there then such record as would support a writ of error?

Writs of error lie to reverse records of courts, but, so far as we have been able to ascertain, they never have been held to lie to reverse proceedings had before a judge in vacation. The judge who heard this proceeding purported to sign a bill of exceptions, but we do not understand that there can be a bill of exceptions to proceedings had before a judge in vacation. At any rate, we do not understand that such proceedings can be certified to by the judge and then filed with the clerk of the court of which he is a judge and be thereby made a record of that court.

While the writ of habeas corpus is guaranteed in our bill of rights, the proceedings and practice in reference thereto are covered by statute. Cahill’s St. ch. 65. In Sullivan v. People ex rel. Heeney, 224 Ill. 468, the court in discussing this question at page 473 says:

“Chapter 65 of the Revised Statutes purports to cover the whole subject of the law in relation to habeas corpus. It creates a complete code of procedure, prescribing what the petition shall contain, the form of the writ and how it shall be served, and providing for the return and hearing. It not only fails to provide for an appeal, but contemplates second applications and writs, and places limitations upon the power of the court on a second writ which are inconsistent with the intention to allow an appeal. If it should be held that the statute authorizes an appeal, the right would be an absolute one, by which the execution of the order would be stayed and an illegal detention might perhaps be continued contrary to the intent of the habeas corpus act. An order in a habeas corpus proceeding for the custody of a child is held to be final for the purpose of a writ of error only in the sense that the parties are concluded under the particular circumstances existing when the order is made. ’ ’

It was a serious question with the Supreme Court in Cormack v. Marshall, 211 Ill. 519, as to whether the judgment rendered in a habeas corpus proceeding by a circuit court, or the order made by a circuit judge in vacation, was a final judgment or order. The majority of the court in that case held that it was, but Justices Wilkin, Cartwright and Scott dissented from that opinion, and at page 530 they say:

“We dissent from the foregoing opinion so far as it holds that a writ of error will lie to review a decision of a judge or court in a hateas corpus proceeding and that such a decision is res judicata. A hateas corpus proceeding may be before a judge in vacation, in which ease there is no record to be certified to an Appellate Court for review. An order as to the custody of a child in a hateas corpus proceeding is in its nature temporary and interlocutory, and we do not see how it can be res judicata in a subsequent proceeding in this court. ’

In the Gormack case there had been a hearing before the circuit court of DeKalb county, and an order or judgment was entered by said court. Thereafter an original petition in habeas corpus was presented in the Supreme Court, seeking to have that court go into the matter of the custody of the child, which was involved in that proceeding, and the Supreme Court there held that the proceedings and judgment rendered in the circuit court were res judicata, and that the Supreme Court therefore had no jurisdiction to entertain the petition for such writ, and in determining the case indicated that a writ of error would lie to reverse the record of a circuit court in a habeas corpus proceeding. That matter, however, was not specifically involved in that case, and the holding was largely obiter dictum.

In Mahon v. People, 218 Ill. 171, there had been a hearing in the circuit court of Cook county in a habeas corpus proceeding touching the custody and control of a child six years of age. An appeal was prosecuted to the Appellate Court for the first district, where, without objection, the cause was heard upon its merits and a judgment was entered in that court confirming the order of the circuit court. A writ of error was sued out of the Supreme Court to review the judgment of the Appellate Court. The court in discussing this question at page 173 says:

“It was agreed in the Appellate Court that the case should be heard by that court upon the merits, if the court was of the opinion that it had jurisdiction either on appeal or writ of error. The case, therefore, will be treated by this court as having been heard upon writ of error by the Appellate Court, and it will not be necessary to consider here whether or not an appeal will lie from the final order of the circuit or superior courts of this State in habeas corpus proceedings relating to the custody of a child. Suffice it to say that such orders may be reviewed by writ of error, which disposes of the question raised in this case.”

In Sullivan v. People, supra, the court at page 473 says:

“It is first contended by appellant that no appeal from the order of the circuit court was allowed by law, and that the judgment of the Appellate Court was therefore void. It must be considered as the settled law of this State, that if a habeas corpus proceeding for the custody of a child is instituted in a court of record a writ of error will lie to review the judgment of the court. That was the effect of the decision in Cormack v. Marshall, 211 Ill. 519, and it was expressly decided in Mahon v. People, 218 Ill. 171. That can only be upon the ground that the order of the court is final and of such a nature that a writ of error is a writ of right under the common law system as adopted in this State. The Practice Act authorizes appeals from and writs of error to all circuit courts from all final judgments, orders or decrees within the scope of that act, but that general provision does not cover cases where there is a special statute regulating the procedure which does not authorize an appeal, — at least where the provisions of the special statute are inconsistent with a right of appeal.”

While the Supreme Court has definitely held, as above stated, that a writ of error will lie to review the record in a habeas corpus proceeding had in a circuit court, the reasoning of the court in the cases above quoted clearly indicates that such writ will lie in habeas corpus proceedings only where the proceedings were had in court, and cannot extend to proceedings had before a judge in vacation. As was said by Justices Wilkin, Scott and Cartwright in their dissenting opinion, there is no record to be certified to by the clerk in a proceeding had before a judge in vacation.

Before we observed that this purported record was entirely made up of proceedings before a judge in vacation, we had gone into the merits of the same, and had reached the conclusion that the case should be affirmed. WThile the claim of respondents appealed to us strongly, yet we were of the opinion, in view of the rights of the father to the custody and control of his child unless unfit for such duty, and in view of the fact that the judge who heard this case saw and heard the testimony of the various witnesses who testified for the respective parties, and had a better opportunity to determine the weight to be given to their testimony than we could have, that we would not have been warranted in reversing the order giving the custody of said child to the petitioner. Cahill’s St. ch. 64, H 4; Cormack v. Marshall, supra, 523; Wohlford v. Burckhardt, 141 Ill. App. 321; Harmon v. Starbody, 219 Ill. App. 603.

In Cormack v. Marshall, supra, the court at page 523 says:

“We regard the rights of the parent as superior to those of any other person, when that parent is a fit person to have the custody of children and is so circumstanced that he can provide the necessaries of life and administer to the requirements of such a charge. The mere fact that some other person may have more money or property in any form is not one that appeals to us.”

It is not contended in this case that the father was not morally fit or financially able to take care of his child. The most that was said against him was that he was not as affectionate and had not been as attentive to his child as the respondents felt he should have been.

The finding of the trial court in a trial without a jury, or of a chancellor in a proceeding where the witnesses are heard by him, will not be reversed unless the finding is manifestly contrary to the weight of the evidence. Hoffman v. Hoffman, 316 Ill. 204-214; Burandt v. Burandt, 318 Ill. 218-226; Springer v. David Bradley Mfg. Co., 191 Ill. App. 45-59.

As the custody of a child was involved in this proceeding, we thought it not amiss for us to state our views of the case on the merits.

For the reasons above set forth, the writ of error will he dismissed, at the cost of the respondents, Charles F. Nagel and Margaret Nagel.

Writ of error dismissed.


text:
    Andrew Bannat, Executor of the Estate of Adam Smok, Deceased, Appellee, v. Edward C. Zulley, Appellant.
    1. Pleading — necessity for verification to plea to jurisdiction.' A plea to the jurisdiction need not be verified.
    2. Estates op decedents — award under Compensation Act as part of estate. A lump sum award made under the Workmen’s Compensation Act, Cahill’s St. ch. 48, H 201 et seq., paid to the attorney of an injured party during the latter’s lifetime passed beyond the control of the provisions of that act or the powers of the commission and upon the injured man’s death became a part of his estate.
    3. Estates op decedents — duty to reduce estate to possession. It is the duty of the executor of an estate to acquire possession of money due his estate including the award paid to decedent’s attorney for injuries sustained by decedent and to institute suit therefor if necessary.
    4. Pleading — when limited appearance immaterial in determining character of plea. That a plea is made on limited appearance is immaterial in determining the question whether it was a plea to the jurisdiction or a plea in bar after defendant was regularly served with process, which is sufficient to give the court personal jurisdiction.
    5. Pleading — when plea is in har and not to' the jurisdiction. A plea which sets up the defense that money claimed in an executor’s action to be withheld by an attorney who received it as a lump sum award from the industrial commission in settlement for injuries to executor’s decedent, should be paid under the Workmen’s Compensation Act to the widow and children, instead of the estate, and setting up the pendency of a petition to the industrial commission to determine the proper disposition of the award is not a plea to the jurisdiction but in bar.
    6. Pleading — when plea and affidavit may he stricken. Under Cahill’s St. ch. 110, H 55, the court was justified in striking from the files the plea and defendant’s attached affidavit which did not purport to be an affidavit of merits, after plaintiff had filed his declaration with affidavit of merits.

      7. Abatement and revival — when pendency of petition before industrial commission does not defeat right to sue for award. That defendant had, prior to the instant suit by an executor to obtain a lump sum award paid for his decedent to defendant by the industrial commission, filed his petition with the commission to have it determine the rights to such money award, does not defeat plaintiff’s right to sue.
    8. Interest — when attorney holding lump sum award under Compensation Aet liable for. An attorney who was paid a lump sum award from the industrial commission for his client’s injury under the Workmen’s Compensation Act, who knew of his client’s death in June, 1921, and who did not file with the industrial commission his petition to determine the rights to such money until January, 1925, may be Charged with interest thereon in the executor’s suit to recover the sum for his estate.
    9. Judgment — when may be entered for amount set out in affidavit of merits on striking plea. The court may properly enter judgment for plaintiff for the amount set forth in his affidavit of merits after striking from the record defendant’s plea upon the latter’s neglect to file an affidavit- of merits in response to plaintiff’s.
    Appeal by defendant from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the . October term, 1926.
    Affirmed.
    Opinion filed February 19, 1927.
    Louis Beasley, for appellant.
    O. E. Pope and H. P. Driemeyer, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court. An action in assumpsit was instituted in the circuit court of St. Clair county by appellee as executor of the estate of Adam Smok, deceased, against appellant for the recovery of the amount of a certain bank check of $800 issued by appellant to said deceased in his lifetime.

The declaration consists of the consolidated common counts, and a special count alleging in substance that appellant in the lifetime of said decedent represented him as his attorney in the prosecution of a claim for compensation against the American Manufacturing Company, and that as a result thereof there came to the hands of appellant the sum of $1,076.55; that appellant retained $276.55 therefrom, and gave to said Adam Smok his check on the Southern Illinois National Bank for the sum of $800; that before said check was presented for payment, said bank was instructed by appellant not to pay the same; that said check, or the amount thereof, was not paid to the said Smok in his lifetime, or to appellee as the executor of said estate, alleging damages, etc. With said declaration was filed an affidavit of merits setting forth the amount due to appellee as such executor to be $983.33.

To said declaration appellant filed what he designates as a plea to the jurisdiction. Said plea purported to be on limited appearance, and among other things alleged that Adam Smok “sustained personal injuries arising out of and in the due course of his employment with the American Manufacturing Company, resulting in his total and permanent disability; that a claim was prosecuted under the Workmen’s Compensation Act by appellant as attorney for Smok, and that the Industrial Board on May 27th, 1925, awarded Smok the sum of $1,069.55; that immediately thereafter said sum was forwarded to appellant and his partner by said American Manufacturing Company, and that Smok, after receiving $269 from appellant and his said partner, directed appellant to hold said balance of $800, without charge or expense to them, and thereupon appellant made and delivered to Smok a check for $800, drawn on the Southern Illinois National Bank; that thereafter Smok became affected with tuberculosis, from which he afterward died; that appellant made several attempts to communicate with the widow and minor children of said deceased at their supposed places of residence in the United States of America and in Europe, by forwarding letters to their respective places of residence according to the information as to their whereabouts furnished to appellant by the said Adam Smok in his lifetime, and being unable to receive a reply to Ms letters, tMs defendant and Ms said partner afterward, on the 29th day of January, A. D. 1925, filed their petition with the Industrial Commission of Illinois, setting out the facts substantially as above, and stating further that this defendant and his said partner have been and still are in the possession of the sum of $800, which they are willing, ready and offer to pay to the said widow and the minor children of the said Adam Smok, or to any person or persons designated by the'Commission,” etc.; that said industrial commission acknowledged the receipt of said petition, and informed appellant that said matter would be set for hearing, and that said proceeding before the industrial commission was still pending. Said plea prayed judgment “if this court ought to take cognizance or assume to exercise jurisdiction over this cause, so based upon the claim for compensation,” etc., and prayed to be dismissed with his costs. Said plea was verified by the affidavit of appellant, in which he stated that he knew the contents of the plea, and that the same was true.

Thereafter, on January 27,1926, a motion was made by appellee to strike said affidavit and plea from the files, on the ground that no affidavit of merits was filed with the plea, which motion was allowed. Thereafter, on February 24,1926, appellant moved the court to set aside said order, and to grant him leave to file an additional affidavit with his said plea. This affidavit purported to go into the facts with reference to how the fund in question was derived by said deceased, and that it was a payment to him as compensation awarded by the industrial board; that during the month of June, 1921, appellant received information regarding the death of Adam Smok, and to the effect that he tried to communicate with the widow and children of said deceased; that he was holding this $800 “gratuitously and merely for convenience of the said Adam Smok, and that the defendant was not to be charged with interest on said sum of money or any part thereof.”

The court denied the motion of appellant for leave to file said affidavit, and entered judgment nil dicit against appellant for $983.33. To reverse said judgment, this appeal is prosecuted.

Practically the only question involved in this case is whether the plea filed by appellant was in fact a plea to the jurisdiction.. If it was a plea to the jurisdiction, it was not necessary that it be verified. Cahill's St. 1925, ch. 1, HI; Howe v. Thayer, 24 Ill. 246-247; Drake v. Drake, 83 Ill. 526; Beck & Pauli Lithographing Co. v. Monarch Brewing Co., 131 Ill. App. 645. This proposition is practically conceded by counsel for appellee.

Appellant concedes that he holds and has held since about May 27, 1921, the sum of $800' of the funds which were paid to Adam Smok from the gross allowance made to him on the hearing before the industrial commission, the only question being as to whether that sum belongs to the estate of said deceased or whether under the Workmen’s Compensation Act [Cahill’s St. ch. 48, H 201 et seq.] it should be paid directly to his widow and minor children.

It is the contention of appellant that this fund must be paid to the widow and minor children of said deceased, and that it is no part of the estate of said deceased, and that his executor has no interest therein. On the other hand, counsel for appellee insists that there being a gross award to Adam Smok, made by the industrial commission, and which award was paid ’ by said American Manufacturing Company, it therefore became his money, and that upon his death it passed to his estate," and should be paid over to appellee as the executor of said estate.

Said award having been paid to Smok in his lifetime, it passed beyond the control of the provisions of the Workmen’s Compensation Act, or the administrative powers of the industrial commission, and upon his death it became a part of his estate. This being true, it was the duty of his executor to acquire possession thereof, and to institute suit for that purpose, if need be. The court therefore had jurisdiction of the parties to this proceeding, and of the subject matter thereof. The fact that said plea purports to be on limited appearance is not material, for the reason that the court did not depend on the appearance of appellant being entered, as appellant had been regularly served with process which gave the court jurisdiction of his person.

An examination of said plea clearly discloses that, if appellant’s theory of the case is correct, its effect was not to abate the present suit, but to defeat all right of recovery on the part of appellee as such executor. It is the theory of appellant in said plea that this fund of $800 in his possession was not a part of the estate of said decedent, but belonged to his widow and minor children, not as heirs of his estate under the laws of descent, but under the provisions of the Workmen’s Compensation Act. If, then, the theory of the plea is correct, there could be no recovery by appellee in this suit or any suit, in the trial court or in any court. The plea in effect is a plea in bar. People ex rel. Vick v. Kirkham, 301 Ill. 45; Bradley v. Federal Life Ins. Co., 216 Ill. App. 602.

In People ex rel. Vick v. Kirkham, supra, the court at page 49 says:

“In quo warranto proceedings the proper practice is for the respondent to file a plea. (People v. Percells, 3 Gilm. 59.) Whether he pleads in bar or in abatement would depend on the nature of the defense. ‘A plea in bar of the action may be defined as one which shows some ground for barring or defeating the action and makes prayer to that effect. * * * Pleas in bar are addressed to the merits of the claim and as impairing the right of action altogether, whereas pleas in abatement tend merely to divert, suspend or defeat the present suit.’ (Pitts Sons’ Manf. Co. v. Commercial Nat. Bank, 121 Ill. 582.) It is plain from a reading of the body of this plea that it contends that the curative act validated the organization of this district, and that it was, in effect, a plea in bar, although possibly, under the authorities, the beginning and ending might be construed to indicate a plea in abatement.”

The character of a plea is to be determined from the effect of the defense set up, and if that defense be one in bar, it will be held to be a plea in bar, notwithstanding in its beginning and ending it may indicate a plea in abatement.

Appellee having filed an affidavit of merits with his declaration, it was necessary that an affidavit of merits be filed with appellant’s plea, and in default thereof, the court was warranted in striking the affidavit to the plea, which did not purport to be an affidavit of merits, and the plea, from the files. Cahill’s St. ch. 110, f[ 55; New York Nat. Exch. Bank v. Reed, 232 Ill. 123-125; Firestone Tire & Rubber Co. v. Ginsburg, 285 Ill. 132; Loeb v. Loeb, 170 Ill. App. 492-493; Colfax Grain Co. v. Bradford, 225 Ill. App. 419-422.

In Firestone Tire & Rubber Co. v. Ginsburg, supra, the court at page 134, in discussing a question of this character, says:

“Where an affidavit of merit.is insufficient it is proper practice to strike it from the files, and the plaintiff is then entitled to judgment as in case of default. After an affidavit of merits has been stricken from the files 'it is not necessary to strike the pleas from the files, although the practice is not improper and is common.” Citing Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516.

Appellant also insists that, even though appellee is entitled to said funds, he, appellant, having filed his petition with the industrial commission, that that commission has jurisdiction and has the right to determine as to whether or not appellee is entitled to recover. We do not think this point is well taken. The industrial commission is not a court. Its duties are largely administrative duties. However that may be, if appellee is entitled to this fund as a part of the estate of his testator, certainly it must be conceded that he has a right to prosecute a suit therefor in a court of law, and that has been true from time immemorial.

It is next contended by appellant that, even though it be conceded that appellee is entitled to recover, he can only recover the principal amount of $800, for the alleged reason that appellant was holding said funds merely for the convenience of Smok before his death, and that after his death appellant was unable to find the widow and minor children of said deceased, and for the further reason that said deceased had stated to appellant that he would not be required to pay interest.

We do not think this point well taken. According to the affidavit tendered by appellant, he knew of the death of Adam Smok in June, 1921. He waited from that time until January 29, 1925, before he filed his petition with the industrial commission, in which he asked that commission to determine to whom said money should be paid. It might further be observed that, if we are right in holding that the court did not err in striking the affidavit and plea from the files, then the court was warranted in entering judgment for the amount set forth in the affidavit of merits filed by appellee. New York Nat. Exch. Bank v. Reed, supra, 125.

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    Threldkeld Grocery Company, Appellee, v. United States Fire Insurance Company, Appellant.
    1. Equity — grounds for jurisdiction. The loss of a policy of fire "insurance which is not under seal does not of itself give a court of equity jurisdiction of a suit to collect on the policy for fire loss.
    2. Equity — inadequacy of legal remedy. After plaintiff had lost his fire insurance policy on his store building, had sold the building receiving back a mortgage, had with the mortgagor notified the insurance agents of the sale and mortgage and loss of the policy and asked them to copy the policy with indorsements to protect owner and mortgagee to which the agents agreed, he had a right to invoke equity to collect his loss as mortgagee, for law afforded no adequate relief.
    3. Courts — -conflict of jurisdiction. An action of assumpsit on an insurance policy, abandoned upon transfer by leave of court to the chancery docket, does not operate to bar a bill for equitable relief on the theory that the common-law court having acquired jurisdiction would retain it.
    Appeal by defendant from the Circuit Court of White county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 19, 1927.
    Elwyn R». Shaw, John ft. MacNeil and Conger & Elliott, for appellant.
    Endicott & Endicott, Harry Anderson and John M. Eckley, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court. A bill in equity was filed by appellee in the circuit court of White county against appellant setting forth that on December 5, 1922, appellant issued a policy of fire insurance covering a frame store building then owned by appellee in Carmi, Illinois, for $1,100, and a certain barn or stable for $100; that said policy was thereafter misplaced or lost by appellee; that on May 28, 1923, appellee sold said premises to one Orville Barnett and took a mortgage back on the same for $1,460 to secure a part of the purchase price; that ap.pellee thereupon notified McAllister and Becker, local agents of appellant company, of the sale of said property and of the mortgage back to appellee, and requested said agents to cause the proper indorsements to be made on said policy showing the transfer of said premises to Barnett and to protect appellee as such mortgagee, and averring that said agents promised so to do, and further agreed to deliver to Barnett a copy of said lost policy, with said indorsements; that on July 25, 1923, said store building was destroyed by fire, and that notice thereof was given said agents by appellee and Barnett. Said bill prayed that appellant be required to prepare and produce a copy of said policy, and to attach thereto said indorsements showing the assignment of said policy to Barnett as the owner of said premises and with the proper loss clause to appellee as mortgagee.

To said bill appellant filed an answer, admitting the execution of said policy, but denying that it had been notified of the transfer of said property to Barnett or of the mortgage from Barnett to appellee, and averring that the transfer of said property and the making of said mortgage without notice to appellant, under the provisions of said policy, rendered the same null and void. Said answer further averred that appellee had an adequate remedy at law.

A hearing was had before the chancellor in open court, a finding was made in favor of appellee and a decree was rendered against appellant for $1,100, and awarding execution if the same was not paid within 60 days. To reverse said decree, appellant prosecutes this appeal.

The suit was originally brought in assumpsit, but by leave of court said cause was transferred to the chancery docket, and the bill above-mentioned was filed, with the answer thereto. While other errors were e assigned, the only one discussed by counsel for appellant in his brief is the one raising the question as to whether or not a court of equity has jurisdiction in this proceeding.

It is first contended by counsel for appellant that the policy sued on, not being under seal, its loss does not in and of itself give a court of equity jurisdiction.

This statement of the law we concede to be correct. Fisher v. Sievres, 65 Ill. 99; Clingman v. Hopkie, 78 Ill. 152; 10 R. C. L. 37. It will be observed, however, that the loss of the policy of insurance in this case is not the only ground on which appellee relies for equitable relief. The bill alleges, and the testimony on the part of Threldkeld is to the effect, that not only was the policy of insurance lost, but that after its loss and the sale of said premises by appellee to Barnett, appellee and Barnett called on appellant’s agents and notified them of the loss of said policy and the sale of said premises, and also of the making of the mortgage from Barnett to appellee, with a request that said agents prepare a copy of said policy with the necessary indorsements so as to protect Barnett as owner and appellee as such mortgagee, and that said agents agreed to attend to the matter.

An examination of the demurrer filed by appellant to the declaration in the assumpsit suit will disclose that it specifically raises the point that appellee’s declaration was not good for the reason that it failed, after having alleged the sale of said premises, to aver that said policy had been assigned to Barnett and a loss clause in favor of appellee had been attached to said policy, in other words, the demurrer disclosed deficiencies in appellee’s declaration of a character which it was impossible for appellee to meet in a common-law suit. Had the policy as originally issued been produced on the trial of said common-law suit, it would not have made out a case in favor of appellee, even though the other necessary proofs had been made.

Counsel for appellant in their brief cite the case of People v. Small, 319 Ill. 437. In that case the court at page 444 in discussing the juridiction of courts of equity says:

“It may be stated as a general rule that courts of equity will not entertain jurisdiction of suits for accounting where law courts are competent to afford an adequate and ample remedy, (County of Cook v. Davis, 143 Ill. 151,) but where there is a clear right and there is no adequate remedy at law, or where the remedy is not plain, adequate and complete and adapted to the particular exigencies, equity will take jurisdiction. (Townsend v. Equitable Life Assurance Society, 263 Ill. 432; Story’s, Eq. Pl. — 6th Ed. — sec. 473; Pomeroy’s Eq. Bern. — 2nd Ed. — sec. 930.) The remedy at law which precludes relief in equity must be as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. (Fletcher’s Eq. PL, sec. 208.)”

To the same effect is Warfield-Howell Co. v. Williamson, 233 Ill. 487-497; Parkhurst-Davis Mercantile Co. v. Merchant Underwriters at the Indemnity Exchange, 237 Ill. 492; People v. Bordeaux, 242 Ill. 327.

We are of the opinion and hold that the record in this case presents a case for equitable relief.

It is also contended by counsel for appellant that, suit having been originally instituted on the common-law side of the docket, the court having taken jurisdiction would retain it to the exclusion of a court of equity, even though a court of equity might also have concurrent jurisdiction with a court of law. That principle does not apply here, for the reason that the common-law suit was abandoned, on leave having been given to transfer the cause to the chancery side of the docket.

We are further of the opinion, from the examination we have made of the record, that the case was also rightly decided on the merits,

For the reasons above set forth, the judgment and decree of the trial court will be affirmed.

Decree affirmed.


text:
    David H. Zbinden, Appellee, v. E. R. DeMoulin, Appellant.
    1. Appeal and error — time for filing bill of exceptions. The mere signing of a bill of exceptions by the trial judge, within the time fixed by order of court for filing, does not make it a part of the record; it must be filed with the clerk of the court in which the cause was heard within the time fixed in the order.
    2. Appeal and error — duty of clerk as to filing of bill of exceptions. It is the duty of the clerk of the court to file a bill of exceptions as of the date presented to the judge for signing, after the latter has delayed signing until long after the time fixed in the order for filing, even without the judge’s order nunc pro tunc, provided always that the bill is deposited with the clerk as soon as practicable after the trial judge has signed it.
    3. Appeal and error — when bill of exceptions not filed in time. If a record affirmatively shows that counsel for appellant, upon receiving the bill of exceptions signed by the trial judge long after the time fixed in the order for filing, kept the bill five days for abstracting before giving it to the clerk for filing, a motion to strike the bill will be allowed.
    4. Appeal and error — affirmance on striking bill of exceptions. After a bill of exceptions has been stricken as filed too late, in the absence of assignments of error reaching the common-law record, the trial court’s judgment will be affirmed.
    Appeal by defendant from the Circuit Court of Bond county; the Hon. J. F. GriLLHAM, Judge, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed February 19, 1927.
    Robert E. Wright and Nolemaw, Smith & Dallstream, for appellant.
    Lame, Dryer & Beowh and Hiles, Newell & Browh, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court. This is an appeal prosecuted by appellant to reverse a judgment for $5,000 obtained by appellee against him in the circuit court of Bond county on a declaration charging a personal injury to appellee by reason of the alleged negligence of appellant.

A motion was made by appellee to strike the bill of exceptions from the files and dismiss said appeal or affirm said judgment, on the ground that said bill of exceptions was not filed within the time fixed by the court rendering said judgment, nor within a reasonable time after said judge had signed the same. This motion was taken with the case.

The judgment in this case was entered on October 31, 1925. At said time, an appeal was allowed to this court, the bill of exceptions to be presented within 90 days from said date. The bill of exceptions was presented to the trial judge on November 14, 1925, but was not signed by him until February 12, 1926, and was not filed with the clerk of said court until February 20, 1926, being eight days after the same was signed by said judge.

A bill of exceptions or a certificate of evidence does not become a part of the record until it is placed on file. Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n v. Leonard, 166 Ill. 154; Hall v. Royal Neighbors of America, 231 Ill. 185; Williams v. De Roo, 316 Ill. 23-25. In the latter case, the court in discussing this question at page 25 says:

“Though a certificate of evidence has been signed and sealed by the chancellor within the time fixed by the order of the court for filing a certificate, it does not become a part of the record unless it is filed with the clerk of the court in which the cause was heard, within the time fixed by the order.” Citing Hall v. Royal Neighbors of America, supra; Illinois Improvement & Ballast Co. v. Heinsen, 271 Ill. 23; Holmes v. Parker, 1 Scam. (Ill.) 567.

In answer to the motion of appellee to strike said bill of exceptions from the record for failure to file same in proper time, Robert B. Wright, one of the attorneys for appellant, filed an affidavit, setting forth that the bill of exceptions came to his office through the mail on February 15,1926; that, without examining the same, he went to Springfield on certain business he had there, and, on his return on February 16, proceeded to abstract said bill of exceptions and thereafter, on February 20, 1926, delivered said bill of exceptions to the clerk of said court, by whom it was filed.

Counsel for appellant contends that it was the duty of the trial judge to have entered a nunc pro tunc order at the time of signing said bill of exceptions, directing the clerk to file the same as of November 14, 1925, being the date the same was presented to said judge, and that, in the absence of such order, it was the duty of the clerk to have filed the same as of said date.

Counsel’s statement of the law is fully borne out by the authorities, where the bill of exceptions has been deposited with the clerk as soon as practicable, after having been signed by the trial judge. Hall v. Royal Neighbors of America, supra; Hill Co. v. United States Fidelity & Guaranty Co., 250 Ill. 242; Illinois Improvement & Ballast Co. v. Heinsen, supra; City of Lake Forest v. Buckley, 276 Ill. 38; Madden v. City of Chicago, 283 Ill. 165.

The material question, however, to be determined on this motion is as to whether appellant caused said bill of exceptions to be filed within a reasonable time after the same had been signed. The record clearly discloses that said bill of exceptions was signed on February 12, and was not taken to the clerk’s office by counsel for appellant until February 20, although he had had actual possession of the same since February 15, and constructive possession thereof since February 12, the date on which it was signed.

If it be held that affidavits in this character of case are proper (which we are not holding), there is nothing in the affidavit of Robert B. Wright tending to excuse his failure to file said bill of exceptions at least as early as February 15. If the attorney for a party appealing holds a bill of exceptions an unreasonable time after the same has been signed, before depositing it in the clerk’s office to be filed, then the appeal court is warranted in striking the same from the record. Hall v. Royal Neighbors of America, supra, 192; Illinois Improvement & Ballast Co. v. Heinsen, supra, 25; City of East St. Louis v. Vogel, 276 Ill. 490; Illinois Improvement & Ballast Co. v. Heinsen, 187 Ill. App. 443.

In Illinois Improvement & Ballast Co. v. Heinsen, supra, the Supreme Court at page 25 says:

“In Hall v. Royal Neighbors, 231 Ill. 185, this court held that the Appellate Court rightly struck a bill of exceptions from the record in its court because it had been filed in the circuit court fourteen days after the time in which it should have been filed and twenty-one days after it had been signed by the judge. The court there held that where the bill of exceptions is presented to the trial judge and duly signed within the time fixed by the order of the court for filing it, but the party presenting the bill neglects to file it until after the time fixed has expired, the bill is not properly a part of the record and will be stricken from the record on motion. Under that case and the decisions there cited, this bill of exceptions was not filed within the time authorized by law.”

This case was cited and approved in Williams v. De Roo, supra, page 25.

It is the duty of appellant, not of the trial judge, to see that bill of exceptions is properly filed. Hall v. Royal Neighbors of America, supra; Illinois Improvement & Ballast Co. v. Heinsen, supra. In Hall v. Royal Neighbors of America, supra, the court at page 190 says:

“The appeal was granted upon condition that the appellant should file its bill of exceptions on or before thirty-five days, and it was signed and sealed by the judge of the court seven days before the expiration of the time allowed, so that the failure to file it was not due to any neglect or delay of the judge in signing and sealing the same.

“Counsel for appellant say that when a bill of exceptions is signed and sealed, it, ‘in legal contemplation, is lodged with the clerk, and whether, in fact, it be in his actual possession or not, it should be, and in legal contemplation, is, in his possession, and whether he performs the ministerial act of affixing his file-mark at the date it became a part of his record, or later, makes no difference.’ That is saying the law contemplates that a bill of exceptions is filed when it is not filed, and we cannot give our assent to a proposition so absurd.”

The record here affirmatively shows that counsel for appellant not only failed to deposit the bill of exceptions with the clerk immediately after the same came into his possession, but that he used said bill of exceptions for some four or five days for the purpose of making an abstract before depositing it. We therefore hold, under the authorities cited, that appellant retained said bill of exceptions for an unreasonable time after the same was signed by the trial judge, and that the motion to strike said bill of exceptions should be allowed.

There is no contention that any of the assignments of error in this case reach the common-law record. That being true, and the bill of exceptions having been stricken from the files, the judgment of the trial court must be affirmed. People v. Lucor, 317 Ill. 423-425, citing: People v. Rosenwald, 266 Ill. 548; Haines v. Knowlton Danderine Co., 248 Ill. 259; Wurlitzer Co. v. Dickinson, 247 Ill. 27; Lassers v. North-German Lloyd S. S. Co., 244 Ill. 570; Hall v. Royal Neighbors of America, supra; Illinois Improvement & Ballast Co. v. Heinsen, supra; People v. Tananevicz, 285 Ill. 376.

Judgment affirmed.


author: Mr. Justice Higbee

text:
    The People of the State of Illinois, Plaintiff in Error, v. Donald Redfearn, Defendant in Error.
    1. Bastards — when insolvency of defendant admitted. On a proceeding to enforce an award under a judgment in bastardy proceedings a demurrer to a petition setting up defendant’s commitment and discharge under the judgment and his insolvency, and exceptions to his answer setting up the same facts, constitute an admission of the fact of defendant’s insolvency.
    2. Bastards — when. defendant not in contempt after commitment. After the defendant in a bastardy proceeding has been discharged from the 6-months ’ imprisonment for failure to furnish bond to make payments thereunder in accord with _ Cahill’s St. eh. 17, H 9 and eh. 72, f 4, on the ground of his insolvency, he cannot be held guilty of contempt of court and further imprisoned for failure to malte the payments.
    Error by plaintiff to the County Court of Marion county; the Hon. W. G. Wilson, Judge, presiding. Heard in this court, at the October term, 1926.
    Affirmed.
    Opinion filed February 19, 1927.
    Petition for certificate of importance denied February 24, 1927.
    Chas. F. Dew, State’s Attorney, for plaintiff in error.
    Holt & Holt and Basil Wilson, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.

In July, 1924, Donald Redfearn, defendant in error, was convicted of a charge of bastardy in the county court of Marion county, and by judgment of the court was ordered to pay to the mother of his illegitimate child, which was born October 15, 1923, the sum of $200 for the first year after the birth of such child and $100 for each year for nine years thereafter, such payments to be made in equal quarterly instalments on the first day of October, January, April and July of each year. Defendant in error was further ordered to give bond in the penal sum of $1,400 with security to be approved by the court for the payment of said sums.- It was further ordered that if he neglected or refused to give bond he should be committed to the county jail until he complied with such order or was otherwise discharged by due process of law.

On September 8, 1924, defendant in error, having failed to comply with the order of the court, was 1 ‘ sentenced to confinement.in the county jail for the period of six months, said time to be spent at hard labor in the State Farm at Vandalia, Illinois.” On July 28, 1925, the State’s' attorney of Marion county filed a verified petition for citation setting out the foregoing facts and further alleging that defendant in error had refused to pay the first instalment of $200 and that the first year from said judgment had elapsed, and praying that a citation be issued againt defendant in error returnable on the first day of the November term, 1925, of the said county court of Marion county, requiring him to show cause why he should not be held in contempt of court “for the non-payment of the sum of $200 as by order of court he was directed as well as the quarterly instalment of $25 now due.” The citation was issued and served on defendant in error, who filed an answer admitting his conviction and the judgment of the court and alleging that he did not comply with the order of court, because at the time of said order he was insolvent and had no property, real or personal; that he has continued to be insolvent and has had no property at all times thereafter; that by reason of his insolvency he was unable to give the bond required and was thereupon committed by order of said court to the State Farm of Illinois to remain until he should comply with such order or be discharged in due course of law; that he was retained at said State farm for the full period of six months and thereupon discharged in due course of law; that he in no way or manner intended to act in contempt of court and he therefore asked to be discharged.

Defendant in error also filed his petition setting up practically the same facts as his answer above referred to and also containing apt allegations of his insolvency and therein moved the court for an order releasing and discharging him from further imprisonment. The State’s attorney filed exceptions to defendant in error’s answer and a demurrer to his petition. The court overruled the exceptions and the demurrer and as the State’s attorney elected to abide the exceptions and demurrer, the court entered judgment declaring the defendant insolvent, adjudging him not guilty under the petition and purging him of contempt of court. This writ of error was sued out to reverse that judgment.

The only question involved in this case is whether a person who has been convicted of the charge of bastardy, and has been committed to jail for six months for failure to comply with the order of the court can, after his release, be held guilty of contempt of court for failure to meet the payments ordered in the judgment of the court. 'Section 9 of the Bastardy Act [Cahill’s St. ch. 17, j[9] provides: “In case the defendant shall refuse or neglect to give such security as may be ordered by the court, he shall be committed to the jail of the county, there to remain until he shall comply with such order, or until otherwise discharged by due course of law. Any person so committed shall be discharged for insolvency or inability to give bond: Provided, such discharge shall not be made within six months after such commitment.” This section of the statute was complied with in this case and defendant in error was in confinement for six months after his commitment. The exceptions to defendant in error’s answer and the demurrer to his petition must be taken as admitting the allegations of the answer and petition, that he was at the time of his commitment and discharge, and now is, insolvent.

The Appellate Court for the second district in People v. McIntyre, 81 Ill. App. 519, where the right of the county court to make an order discharging the defendant in a bastardy case under similar circumstances was involved, said referring to the provision for discharge made by the statute as above quoted, “How is he to be discharged unless by the court ordering the commitment? As to this the statute is silent, but we think it means that the County Court may discharge upon the proof of facts warranting the release of the defendant as.therein provided.” That case further holds, in effect, that this provision of the Bastardy Act should be considered in connection with section 1 of the Insolvent Debtors Act (Cahill’s St. ch. 72, if 4) which gives the county court jurisdiction for the discharge from imprisonment of insolvent debtors and says, “Referring again to the bastardy act, that a defendant shall be discharged from insolvency on inability to give bond, we are satisfied that the County Court, upon a showing of insolvency, has the power, under the insolvent debtors act, to discharge a defendant committed and imprisoned under the bastardy act.” We do not wish to be understood as holding that a defendant in a bastardy suit, who has been condemned by the judgment of the court to make the payments provided for by law, cannot be committed to prison for failure to pay any one or more of the instalments thereof as they fall due, even though he may have been committed to jail for failure to give the bond required, and discharged at the expiration of six months, where the proof does not show that he is insolvent. But it is our opinion that defendant in error Donald Redfearn, having been imprisoned for six months under the Bastardy Act [Cahill’s St. ch. 17] for failure to give bond and then discharged, cannot now be held guilty of contempt of court for failing to make the payments required, and be further committed to jail when it is admitted, as it must be here, that he is insolvent, and has been insolvent since the entry of the judgment against him. It was therefore not error for the court to discharge defendant in error and the judgment should be affirmed.

Judgment affirmed.


text:
    J. W. Du Comb, Appellee, v. Edward Schwartzman, Appellant.
    1. Removal op causes — jurat where petition sworn to m another State. A petition for removal of a suit to Federal Court purporting to be sworn to before a notary in another State, the jurat of which contained no statement that the notary was authorized under the law of such State to administer oaths, is insufficient.
    2. Appeal and erroe — sufficiency of hill of exceptions to present rulings on removal of cause. Unless a motion and petition for the removal of a cause to the Federal Court, with- an amendment thereto showing that the jurat was administered by a notary thereto authorized under the laws of a foreign State, are included in the bill of exceptions, the rulings of the trial court thereon will not be before the Appellate Court for review.
    3. Highways and streets — when verdict in action for automobile collision sustained. On a conflict of evidence in a suit for personal injuries, the defendant offering proof that his truck with flat tire was too large to be driven off the road, that he left his lights burning on account of the mist, and that plaintiff was driving at negligent speed when he collided with defendant’s truck, and the plaintiff offering proof that he was only driving at from 16 to 23 miles an hour and that no lights were visible on defendant’s truck, the evidence was sufficient to support the jury’s verdict for the plaintiff.

      Appeal by defendant from the Circuit Court of Clinton county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 19, 1927.
    H. J. C. Beokemeyer and John T. Sluggett, Jr., for appellant.
    M. B. Johnston and Andrew 0. Niehoff, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This is an appeal by Edward Sehwartzman, defendant below, from a judgment of the circuit court of Clinton county against him in favor of J. W. Du Comb in the sum of $7,000 for personal injuries received by appellee when an automobile in which he was riding collided with a truck of appellant which was standing on the State hard road, a short distance east of the •village of Beckemeyer in Clinton county.

Appellant is a resident of the State of Missouri and filed a petition asking for the removal of this cause to the Federal District Court for trial. This motion was denied by the trial court. The only grounds for a reversal of this judgment argued by appellant are the action of the trial court in denying his petition for a removal of the case and the claim that the evidence shows that appellee was guilty of contributory negligence.

The petition for removal of this cause to the Federal Court purported to be sworn to before a notary public of the State of Missouri, but the jurat did not contain the statement that such notary had authority under the laws of the State of Missouri to administer oaths. It is admitted by all the parties to this suit that, under the.authority of Trever v. Colgate, 181 Ill. 129, the petition and jurat were in this respect insufficient. Appellant, however, claims that he entered a motion for leave to amend the jurat and file a certificate of the clerk of the circuit court of the city of St. Louis certified to under the Act of Congress that the notary whose jurat was affixed to the certificate was a notary public in and for the city of St. Louis, Missouri, duly commissioned and qualified as such on December 13, 1924, and that by the laws of the State of Missouri he was duly authorized as such notary public to administer oaths. It is further claimed by appellant that the court overruled this motion and proceeded with the trial of the cause. The alleged ruling of the trial court upon the motion for the removal of the cause is not before this court for review, for the reason that the motion and petition for the removal of this cause are not included in the bill of exceptions, and they can only become a part of the record by being included in a bill of exceptions. (Cromie v. Van Nortwick, 56 Ill. 353; Merchants’ Despatch Transp. Co. v. Joesting, 89 Ill. 152; Wabash, St. L. & P. Ry. Co. v. People, 106 Ill. 652.) Not only are the motion and petition for removal omitted but even the amendment failed to be included in the bill of exceptions and therefore we cannot consider the question of the removal of this appeal. (Peirce v. Walters, 164 Ill. 560; Bunyan v. American Glycerin Co., 230 Ill. App. 351.)

Appellant’s agent was driving a large truck between Beckemeyer and Carlyle, Illinois, along Route 12 of the State hard road on the day of the accident. It is contended by appellant that his driver had a flat tire; that it was impractical -for him with the large truck he had in charge to drive off the pavement; that he left his lights burning because it was a foggy, misty day, and that appellee was driving at such a rate of speed as to constitute negligence under those conditions ; that by reason of such negligence of appellee he ran into the rear of appellant’s truck and the accident occurred. Appellee and his driver, however, testified that they were driving from 16 to 23 miles an hour and that no lights were visible on the rear of appellant’s truck. They were corroborated by several witnesses who testified as to the fact there were no lights on the truck and that the truck had stood on the pavement for several hours. Without setting out the evidence in detail it is sufficient to say that if the jury believed appellee’s witnesses as against the driver of appellant’s truck, the evidence is sufficient to support the verdict. No argument is made concerning the giving or refusing of instructions or the admitting or refusing of evidencé and the damages allowed do not appear to be excessive.

The judgment will therefore be affirmed.

Judgment affirmed,


text:
    The People of the State of Illinois ex rel. Martin Drury, City Attorney, Defendant in Error, v. Eva Redd, alias Eva Muse, Plaintiff in Error.
    1. Intoxicating liquors — how long temporary injunction continues in efect. Under Cahill’s St. eh. 43, H 21, providing that a place selling intoxicants contrary to law is a common nuisance, and Cahill’s St. eh. 43, V 23, providing that if a judge is convinced by affidavits or otherwise that such nuisance exists he shall issue an injunction to restrain such acts with 5-days’ written notice to defendant of preliminary hearing thereon, if no such 5-days’ notice is given nor hearing had, the temporary injunction will not remain in force longer than 5 days and any act contrary to the injunction thereafter will not be in contempt thereof.
    2. Appeal and error — when matter set forth in printed argument not considered. If the abstract and record of a case on writ of error do not show any order making permanent a temporary injunction alleged to have been entered a month earlier than the one actually shown, the court cannot regard a copy of such purported order in defendant’s printed argument.

      Error by defendant to the City Court of East St. Louis; the Hon. William F. Bordees, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed.
    Opinion filed February 19, 1927.
    F. J. Tecklenburg, N. W. Farden and L. P. Zerweck, for plaintiff in error.
    H. C. Lindauer, State’s Attorney, and Martin Drury, City Attorney, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.

On August 20, 1925, the city attorney of East St. Louis filed in the city court what is referred to in the arguments as a bill for injunction against plaintiff in error under section 22 of the Illinois Prohibition Act [Cahill’s St. ch. 43, 23].

The bill alleges that on the 13th day of August, 1925, one Joseph Murphy purchased intoxicating liquor of plaintiff in error on the property described in the bill, and that on three different dates prior to the filing of the bill the police department of the city of East St. Louis had found intoxicating liquor upon said premises. The bill prayed that the court issue a temporary injunction restraining plaintiff in error and one M. A. Muse, who was also named as defendant, and their agents and servants from maintaining or assisting in maintaining the nuisance alleged to exist, and that upon a hearing of the cause upon the merits an injunction for the same purpose be issued for a period of one year. Later the bill was dismissed as to said M. A. Muse. A temporary injunction was ordered restraining plaintiff in error and her codefendant from continuing and maintaining the said nuisance until there should be a final hearing upon the merits of this cause and restraining them from removing any liquor or fixtures from said premises until the further order of the court. Upon the day this temporary injunction was ordered a chancery summons returnable to the September term, 1925, of the city court, was issued and served upon plaintiff in error and also an injunction writ restraining her from maintaining the alleged nuisance until a final hearing upon the merits of the cause. On the 23rd day of October, 1925, that being one of the days of the September term of said court, a decree was entered finding that plaintiff in error had been duly served with process of summons on the 20th day of August, 1925, but that she had failed to appear and default was entered against her, and it was adjudged that she be restrained from selling, keeping, bartering, delivering or storing any intoxicating liquor upon the premises involved, and that said premises should not be occupied for a period of one year from the date of the decree. On October 28, 1925, the said city attorney filed in the city court a petition for citation against plaintiff in error to appear and show cause why she should not be adjudged in contempt of court for a violation of the temporary injunction. This petition alleges that certain police officers on the 18th day of October, 1925, raided said premises and found in the possession of plaintiff in error upon the said premises a large quantity of intoxicating liquor. On October 30, 1925, an attachment was issued upon this petition against plaintiff in error, but was not served until the 21st day of May, 1926. Upon the trial under this attachment, plaintiff in error was found guilty of contempt of court and sentenced to ten months in jail and to pay a fine of $1,000. This writ of error has been sued out to reverse that judgment.

It is argued by plaintiff in error that the order finding her in contempt of court for violation of the injunction cannot stand for the reason that there was no injunction in force at the time she is alleged to have violated the same. Section 21 of the Prohibition Act [Cahill’s St. ch. 43, If 21] provides, in substance, that any room or house where intoxicating liquor is manufactured, kept or bartered in violation of the act is declared to be a common nuisance. Section 22 [Cahill’s St. ch. 43, U 23] provides that- if it is made to appear by affidavits or otherwise to the satisfaction of the court, or judge in vacation, that such nuisance exists, a temporary writ of injunction shall forthwith issue restraining the defendant from conducting or permitting the continuance of such nuisance until the conclusion of the trial. That section further provides:

“Upon the granting of said temporary injunction and five days’ written notice being given to the defendant, the court shall set the matter down for a preliminary hearing on the question of whether said temporary injunction shall be dissolved or remain in full force until the final hearing of the cause.” It should be noted that this temporary injunction was issued and served upon plaintiff in error on August 20,1925. The decree of the city court purporting to make that temporary injunction permanent was entered on the 23rd day of October, 1925. Plaintiff in error is charged with violating the injunction on the 18th day of October, 1925, or five days before the temporary injunction was made permanent. It also clearly appears from the evidence that plaintiff in error was not given the five days’ notice provided for in section 22 [Cahill’s St. ch. 43, [[23], upon the granting of the temporary injunction. She could not be found guilty of violating the permanent injunction on the 18th day of October because such permanent injunction was not issued until the 23rd day of October, therefore if guilty of contempt of court for violating an injunction it must have been the temporary injunction issued on August 20. Plaintiff in error contends this temporary injunction was void and not in force on October 18 for the reason that the five days’ notice for preliminary hearing, as to whether it should remain in force provided for in section 22 was not given her. This position is well taken. In People ex rel. Brundage v. Burchek, 302 Ill. 437, the court held that while this preliminary hearing need not be held within five days after the granting of the temporary writ, yet that upon the granting of the temporary writ the court must give five days’ notice that a preliminary hearing will be held for the purpose of determining whether the temporary writ shall remain in force until a hearing of the cause upon its merits, and that if this notice is given such temporary writ will remain in force until such hearing even though it did show such hearing was had more than five days after the temporary writ was issued. But it was expressly held that unless such five days’ notice was given, the preliminary injunction should be void and that the general rule that an injunction erroneously issued by a court having jurisdiction is not void, but is binding and valid on the party against whom it is issued until reversed or set aside, is not applicablé to a temporary injunction issued under section 22 of the Illinois Prohibition Act [Cahill’s St. ch. 43, [i 23]. In that case the alleged violation of the temporary injunction was ten days after it was issued and served, but as there had not been any preliminary hearing or notice given that the cause was set down for such hearing, there could be no conviction for a violation of such injunction. The Supreme Court reaffirmed this holding in People ex rel. Brundage v. Bruno, 303 Ill. 362, restating the doctrine “that where no notice has been given the defendant of a preliminary hearing and no such hearing has been had, the court issuing the injunction has no authority to continue it in force beyond the five day period.” In this case no notice of such preliminary hearing had been given, and no such hearing had been had. Therefore, the temporary injunction was not in force longer than five days after it was issued. It having been issued August 20, it was therefore not in force on October 18, the day plaintiff in error was found guilty of having violated it.

In our discussion of this case, we have not overlooked the fact that the printed argument of defendant in error sets out in full what purports to be an order of said city court entered on September 22, 1925, making the temporary injunction permanent. It is sufficient to say that even if such an order entered on that date could have any force, we have carefully examined the abstract and record in the case and have been unable to discover this order. Under this state of the record what was said by the Supreme Court in the two cases above referred to is controlling in this case, and the judgment must therefore be reversed.

Judgment reversed.


text:
    Lazo D. Popovsky, Appellee, v. Granite City Trust and Savings Bank, Appellant.
    1. Negotiable instruments — right of indorsee in blank to fill im his own name. If the indorsements and assignments of a certificate of deposit are regular and legal, the assignee has authority to write in his name as assignee over the blank indorsements, without payee’s consent.
    2. Negotiable instruments- — that holder is merely nominal party in interest, no defense. Unless the maker of a promissory note has a defense against the equitable owner thereof, he cannot assert as a defense to the suit of the holder thereof that the latter is only the nominal party in interest.
    3. Negotiable instruments — rights of equitable owner as a defense in action on instrument. The legal owner by assignment of a certificate of deposit has a right to bring suit thereon in. his own name against the issuing bank which cannot defend on the ground that plantiff is only the nominal party in interest after admitting it has no defense against the alleged equitable owner by claiming the latter is wholly entitled to the certificate.

      4. Judgment — in action by legal owner as defense against equitable owner. Judgment on a certificate of deposit in favor of the assignee and legal holder against the bank maker will protect the bank against possible claims of the original payees’ estate which is alleged by the bank to be the equitable owner.
    Appeal by defendant from the City Court of Granite City; the Hon. M. B. Sullivan, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 19, 1927.
    Harry Faulkner, for appellant.
    Bandy & Forth, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This is an action in assumpsit brought by appellee, Lazo D. Popovsky, against the Granite City Trust and Savings Bank, appellant, based on a time certificate of deposit issued by appellant to Vasil N. Ajiovsky under date of February 10, 1925, payable 12 months after date upon return of the certificate properly indorsed, with interest at the rate of 4 per cent per annum. To the declaration, appellant filed the general issue and three special pleas. The first special plea avers that the certificate in question was- the property of the payee therein, Vasil N. Ajiovsky, at his death, and that the money due thereon was payable to the executor of his will. The second avers that appellee is neither the legal nor equitable owner of the certificate nor entitled to the proceeds thereof. The third avers that appellee is not the bona fide holder of the certificate in the regular course of business without notice and for a consideration. On trial before the court without a jury, a judgment was entered in favor of appellee for the amount due on the certificate, from which said bank has appealed. There is no question raised as to the genuineness of the signature on the back of the certificate of Vasil 1ST. Ajiovsky, the payee therein named. He was afflicted with tuberculosis and in a hospital in St. Louis. While there in December, 1925, he gave this certificate with two others to a friend by the name of Meschuroff who in turn delivered this one to appellee on January 8, 1926. Appellee in company with his aunt, Mrs. Turpenoff, took the certificate to the hospital on January 9, 1926, where Ajiovsky indorsed it in blank and gave it back to appellee. There is evidence also tending to show that the payee there told appellee to cash the certificate and keep the money and every year send $100 or $150 to his parents in the old country. Appellee had his stenographer write over the indorsements of the payee the words “payable to the order of Lazo D. Popovsky, January 12, 1926,” and he testified that he afterwards showed the special indorsement to Ajiovsky who said, “All right.” On January 13, 1926, appellee, Markovsky, an uncle of Ajiovsky, and one Lahey visited him at the hospital and after some conversation, relating to the sick man’s property, he requested that they have a will drawn for him immediately. Complying with his request, they went to the office of a lawyer and had a will drawn and together with the lawyer returned to the hospital where it was executed. This will bequeathed everything to appellee and Markovsky in trust and provided that they were to pay to the parents of the testator not to exceed $300 annually, and the two trustees were also named as executors.

Ajiovsky died on January 17,1926. It appears that the will was probated but appellee declined to accept his appointment as one of the trustees and executors. After the maturity of the certificate, appellee caused it to be deposited in the Granite City National Bank on his account. On February 12,1926, it was presented to appellant for payment which was refused and the certificate protested. Appellant stated the reason for protesting and not paying the certificate was that Ajiovsky was dead and had left a will and that there were other claimants to the sum named in certificate. The indorsement and assignment of this certificate to appellee was regular and legal and appellee, even without the consent of the payee, would have had the right to write in his name as assignee over the blank indorsement (Illinois Conference of Evangelical Ass'n of North America v. Plagge, 177 Ill. 431), and this made appellee the legal holder of the certificate.

It is no defense to an action on a promissory note that the plaintiff, although the holder of the legal title to the note, is merely the nominal party in interest, and that the beneficial interest in the note is in some one other than the plaintiff. It is a matter of no consequence, so far as the defendant is concerned, who may be the equitable holder of the note unless the defendant has a defense as against the equitable owner thereof. (Illinois Conference of Evangelical Ass'n of North America v. Plagge, supra; Feulner v. Gillam, 211 Ill. App. 348.) So in this case, appellee, being the nominal party in interest and the legal owner of the certificate in question, had the right to bring suit thereon in his own name and it was no defense that the estate of Ajiovsky was the equitable owner of the note, if such was the fact, unless appellant had some defense to the certificate which could be set up, if suit should be brought thereon by the executor of the payee. Such was not the contention of appellant. On the contrary, it contended that the certificate was the property of the estate of the payee. Appellant, however, cannot avail itself of that as a defense, in this suit, but it will be fully protected by the judgment in this case in favor of appellee, the legal holder, in the event suit should be brought against it by the executor of the payee, even though that estate of the payee was the equitable owner of the certificate. The judgment of the lower court is therefore correct and should be affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    McAllister & Schroeder, Appellees, v. Weber Motor Car Company, Appellant.
    1. Appeal and error — effect of failure to assign errors on record. 3SronconLplian.ee with Bule 15 of the Appellate Court for the fourth district providing that the assignment of errors and cross-errors must be written on, or attached to the record, leaves no issue for the court to try, and the appearance of the assignment of errors in the abstract alone will not suffice.
    2. Appeal and error — right to assign errors on record after submission. After a cause is finally submitted to the Appellate Court, it is too late for the appellant to obtain leave to assign errors on the record which it had neglected to write or attach to the record before submission, or for the coujt to require it done and the appeal must be dismissed.
    Appeal by plaintiff from the Circuit Court of Clinton county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1926.
    Appeal dismissed.
    Opinion filed February 19, 1927.
    0. A. McNeill and Case, Voyles & Stemmler, for appellant.
    Murray & Niehofe, for appellees.
   Per Curiam.

Bule 15 of this court provides that the assignment of errors and cross-errors must be written upon or attached to the record. In the case at bar, no assignment of errors has been written upon or attached to the record.

The requirement that, upon appeal or writ of error, there must be an assignment of errors written upon or attached to the record is not a mere matter of form to be considered waived if not objected to, but one of substance. The assignment of errors performs the same office in this court that a declaration does in a court of original jurisdiction, and is equally essential in the forming of an issue upon which the court can properly give, judgment. Ditch v. Sennott, 116 Ill. 288; Aetna Life Ins. Co. v. Sanford, 197 Ill. 310.

It is not sufficient that the abstract of the record shows an assignment of errors which is not written upon or attached to the record. Ditch v. Sennott, supra; Benneson v. Savage, 119 Ill. 135; Metropolitan Life Ins. Co. v. People, 205 Ill. 370. No errors having been assigned on the record, there is and can be no joinder in error, and therefore no issue for this court to try. Benneson v. Savage, supra.

The cause having been submitted for final determination, it is too late now for appellant to obtain leave to assign errors upon the record or for the court to require it to do so. Ditch v. Sennott, supra; Benneson v. Savage, supra. The failure to assign errors on the record necessitates a dismissal of the appeal even though alleged errors are argued in the briefs. Voges v. Davison, 306 Ill. 357.

This court has frequently called attention to the fact that it is essential that the assignment of errors must be written upon or attached to the record, and unless it is there is nothing for this court to consider. Maroni v. Paitson, 128 Ill. App. 205; Haagen v. Globe Printing Co., 128 Ill. App. 307. It is unnecessary to cite other cases. The appeal is dismissed at appellant’s costs.

Appeal dismissed.