author: Mr. Presiding Justice

text:
    James K. Riordon, Trustee et al. (Complainants), Appellants, v. William McCabe et al. (Defendants), Appellees. William McCabe et al., Cross Complainants, v. James K. Riordon, Trustee et al., Cross Defendants.
    Gen. No. 8,024.

      Opinion filed August 29, 1929.
    James O. McMath, Barnes & Magoon and Kirkland, Fleming, Green & Martin, for appellants; Weymouth Kirkland, I. B. Kirkland and Claude Brown, of counsel.

      J. L. Spaulding, for appellees.
   Mr. Presiding Justice

Boggs delivered the opinion of the court.

Bills were filed by appellants, Biordon, Martin & Company, members and operators on the Board of Trade at Chicago, against appellees, to foreclose two trust deeds, covering 520 acres of land in Bureau county, given by appellees to secure the payment of a note for $25,000, dated August 27, 1921, and a note.for $30,000, dated October 15, 1921, both of said notes being held by appellants.

Answers were filed by appellees admitting the execution of said notes, and averring that the same were executed without any consideration, etc.; that said notes were given to secure losses on the Board of Trade, sustained by appellee William McCabe when he “gambled in grain, by making pretended purchases and sales of many million bushels of grain each year ; that the complainants acted as his agents in making these pretended purchases and sales; that they were all pretended and fictitious transactions, and that the said William McCabe .. . . never intended at the time of making said transactions or at any other time to make or receive delivery of said grain, and in all of which said purchases and sales the said William McCabe was gambling, and at all times continued to gamble, and at all times thereafter continued to gamble on the rise and fall of the market merely, and all of said sales and purchases at the time of the making thereof, were for the pretended delivery of the grain to some day in the future from the making of said pretended purchases and sales, and in all said transactions each one of them was settled and closed out be fore such delivery day arrived”; that all the bid and offer transactions were gambling, and were made with that intent; that both appellant partnership and appellee William McCabe intended and expected, as between themselves, that there would not be a delivery or receiving of the grain sold or purchased; that in all of said transactions appellants had full knowledge that the same were carried on by said McCabe as gambling transactions, and that appellants and its members at all times were acting in all said transactions as agents and representatives of the said William McCabe.

Eeplications were filed to said answers. Thereafter, appellees filed a cross-bill, setting forth in substance the matters and things set forth in said answers, and alleging that the said trust deeds and the notes secured thereby were given in settlement of a balance claimed to be owing to appellants on said gambling transactions and were therefore void, and prayed that the same be canceled, etc. Answers were filed to said cross-bill, and replications to said answers.

Said causes were consolidated, and were referred to the master to take the evidence and to report the same, together with his conclusions of law and fact thereon. The evidence was taken and reported by the master, and in his conclusions he found that the transactions in question were illegal and gambling; that the notes and trust deeds were void and not collectible, and recommended the dismissal of the original bill, and that the prayer of the cross-bill for cancellation, etc., be granted. Objections filed to the report of the master were by him overruled, and it was ordered that said objections stand as exceptions in the circuit court. On the hearing, the court overruled said exceptions, and entered a decree as recommended, dismissing said original bill for want of equity, and granting the relief prayed by said cross-bill. To reverse said decree, this appeal is prosecuted.

At the time of said hearing, appellee William McCabe was some 64 years of age. He had lived practically all his life in Fairfield township, bureau county, Illinois, following the occupation of farming. He began dealing’ on the Board of Trade as early as 1903, and continued tu do so at various times to and including the year 1923.

About 1918, appellant James K. Biordon and one Kempner were grain commission merchants, doing business as Kempner & Company, and' were later succeeded by the firm of Biordon, Windsor & Company. Windsor died, and thereafter the firm was organized and did business as Biordon, Martin & Company. Appellee William McCabe dealt with all of these firms, as well as with other brokerage firms doing business on the Chicago Board of Trade.

Beginning with January, 1919, appellee William McCabe’s transactions took on large proportions. Counting a purchase and sale as one transaction, appellants conducted for McCabe 1,709 distinct grain transactions. If the purchase and the. sale be considered as two transactions, there were 3,418. These transactions aggregated 27,868,500 bushels of grain, at a total contract price of $31,794,208.75. These transactions might be illustrated as follows:

In 1919, there was purchased 1,090,000 bushels of May corn, at a contract price of $1,500,018.50; 1,725,000' bushels of July corn, at $2,639,883; 1,460,000 bushels of September corn, at $2,383,389.50, etc. On July 18 there was sold for appellee William McCabe 310,000 bushels of grain, at a contract price of $354,826.50. On October 2, 1920, there was sold 315,000 bushels at $403,211. On October 22, 1920, there was a purchase of 330,000 bushels at $388,722.50. Nine daily transactions made by appellants for ' appellee aggregated 1,850,000 bushels at a contract price of $2,271,902.50. In whát was known as “bid and offer” transactions, appellants conducted for appellee William McCabe 227 separate transactions, involving 2,770,000 bushels of grain, at a contract selling price of $3,042,006.25. The record also discloses that appellee dealt in futures in provisions through appellants on said board, aggregating a total of 1,450,000 pounds of lard and ribs, at a total contract price of $352,770.00. The evidence discloses that not a bushel of grain or a pound of provisions was ever delivered, by means of warehouse receipts or otherwise, pursuant to any of the above-mentioned transactions. Appellants never accepted delivery oí any of said grain or any of said provisions, by warehouse receipts or otherwise; neither did they ever demand or request McCabe to accept or make delivery of any of said grain or provisions. All of said transactions, involving purchases and sales of grain and provisions for future delivery, were closed out by counter-purchases or sales before the delivery month, except in a very few instances. In not one of these transactions did appellee McCabe ever pay for, the grain purchased, but settlements were made between McCabe and appellants on the fluctuations of the market. In all, 319 separate transactions were opened and closed on the same day, involving an aggregate of 4,775,000 bushels of grain at a contract price of $6,825,613.25. Between March 22 and October 14, 1921, the date on which appellants ceased trading for appellee, with an overdraft on their books running between $37,000 and $97,000, they purchased for his account 1,150,000 bushels of grain for future delivery, at a contract price of $1,284,687, and sold for future delivery 1,355,000 bushels, at a contract priqe of $1,368,712.50. As further indicative of the character and volume of the business being transacted, on March 21, 1921, William McCabe had a credit balance on his account with appellants of $35,485.62, and on March 22, the following day, his account showed an overdraft or debit of $37,235.08; a loss of $72,720.70 in the two days.

In connection with the volume of business transacted by appellants for appellee William McCabe, the record discloses that the commissions charged by appellants against him aggregated the sum of $55,617, and that the taxes or internal revenue paid the government on his transactions aggregated $10,953.76.

Incident to the carrying on of said transactions, during the year 1920, McCabe paid to appellants, to go into his account, money, checks, drafts and certificates of deposit, aggregating the sum of $186,624.08; in 1921, $70,444.02, and in 1923, $1,200. McCabe drew out of said account in 1920, $125,048.49; in 1921, $4,333.70, and in 1923, $15,000. In addition thereto, the notes here involved were given during the year 1921.

The record also discloses that appellee William McCabe owned about 1,400 acres of farming land in Bureau county, and that at one time he had a bank account of something like $125,000; that the grain raised on his said farms was sold by him at the local grain markets, none of it being delivered on any of the trades which he was making on the Board of Trade ; that he was not in the stock business or any other business requiring any large amount of grain, but was in fact a seller rather than a purchaser of grain; that he did not own storehouses or cribs for the housing of grain in excess of that needed in his farming operations ; that he mortgaged one of his farms to the Mystic Workers for $60,000, which sum went into his account with appellants. The account kept between appellants and appellee shows that the transactions in question were settled on differences. The form of account sheets used by appellants has two columns, one headed “Dr. Difference” and the other “Cr. Difference,” in which are recorded the profits and losses on the different transactions carried on. All moneys received by appellants for appellee, whether from profits on the sale or purchase of grain, from checks or drafts paid in by appellee, went into the same account, and all payments made by appellants on behalf of appellee, whether to him personally, for government tax, or for-margins on purchases of grain, were paid out of this account. A daily report was made by appellants, showing the state of appellee’s account and the different transactions appellants were conducting for him, in futures on grain and provisions, bids and offers, etc.

It is first contended by appellants that “the facts do not support the decree.”

Section 130 of the Criminal Code, Cahill’s St. ch. 38, If 308, provides:

“Whoever contracts to have or give to himself or another the option to sell or buy, at a future time, any grain, or other commodity, stock of any railroad or other company, or gold, where it is at the time of making such contract intended by both parties thereto that the option, whenever exercised, or the contract resulting therefrom, shall be settled, not by the receipt or delivery of such property, but by the payment only of differences in prices thereof, or whoever forestalls the market by spreading false rumors to influence the price of commodities therein, or corners the market, or attempts to do so in relation to any such commodities, shall be fined not less than $10 nor more than $1,000, or confined in the county jail not exceeding one year, or both; and all contracts made in violation of this section shall be considered gambling contracts and shall be void. ’ ’

All transactions in grain are gambling, within section 130 of the Criminal Code above set out, if it was the understanding between the parties that no deliveries were to be made, but that purchases and sales were to be settled for on market fluctuations or differences. Schneider v. Turner, 130 Ill. 28-39; Pope v. Hanke, 155 Ill. 617-621; Jamieson v. Wallace, 167 Ill. 388-396; Weare Commission Co. v. People, 209 Ill. 528-639; Bartlett v. Slusher, 215 Ill. 348-352; Pard ridge v. Cutler, 168 Ill. 504-513; Hartwig v. Booth, 217 Ill. App. 70-74; White v. Turner-Hudnut Co., 322 Ill. 133-139.

Appellee William McCabe testified that it was his intention not to receive or deliver any of the grain alleged to have been purchased or sold by appellants for him, but to settle on the fluctuations of the market. Appellants, and certain of their officers who had to do with these transactions, testified that they were carried on according to the rules of the Board of Trade, and that it was not their intention at the time the transactions were entered into to settle on the fluctuations of the market.

The intention of the parties may be established, not merely by the assertion of the parties, but by the facts and circumstances attending the transaction, including the nature and manner of carrying on the business. Bartlett v. Slusher, 215 Ill. 348-350; Stewart v. Dodson, 282 Ill. 192-196; Hartwig v. Booth, 217 Ill. App. 70-75; Jamieson v. Wallace, supra, 388; Pope v. Hanke, supra, 617; Pratt & Co. v. Ashmore, 224 Ill. 587-591; First Nat. Bank of El Paso v. Miller, 235 Ill. 135-140.

Among the matters and things which may be taken into consideration in determining whether or not the transactions involved were gambling transactions are: The financial ability of the.dealer to handle the volume of grain dealt in (Towne v. Buckley, 230 Ill. App. 573-580; Jamieson v. Wallace, supra, 388); the facilities for handling- the grain purchased (Towne v. Buckley, supra, 473); the use or lack of use of such grain or • commodities (Weare Commission Co. v. People, supra, 546); the way in which previous transactions have been carried on and closed (Jamieson v. Wallace, supra, 386; Hartwig v. Booth, supra, 75; Pratt & Co. v. Ashmore, 224 Ill. 587-593; First Nat. Bank of El Paso v. Miller, supra, 142; Campbell v. McCorrell, 214 Ill. App. 342-346; Lampson v. West, 201 Ill. App. 251-257); the knowledge of the broker as to the financial ability, facilities for handling the grain, etc., and as to how former transactions had been closed (Towne v. Buckley, supra, 580; Hartwig v. Booth, supra, 74; Easton Farmers Grain Co. v. Fernandes Grain Co., 229 Ill. App. 102-107); the fact, if it be a fact, that in the closing of said transactions no grain had been delivered, but that the profits and losses were adjusted by way of differences in the market pricp and the contract or option price of the grain (Bartlett v. Slusher, supra, 348; Easton Farmers Grain Co. v. Fernandes Grain Co., supra, 107.)

On the question of appellants’ knowledge of the financial condition of appellee William McCabe, it should be observed that the mortgage of $60,000 to the Mystic Workers of the World was made by appellees in 1921, at the urgent request of appellants, in order to take care of the ■ overdraft of appellee William McCabe; that appellants took an active part in closing said transaction, and charged appellee for their services, expenses, etc., in connection therewith $938.25. The total amount of this loan, after the expenses were deducted, was passed by appellants to the credit of appellee William McCabe on their books.

From the facts and circumstances in the record, under the authorities above set forth, no other conclusion is warranted than that appellants had full knowledge of appellee’s financial ability, his facilities for handling the grain in question, and the manner in which other deals had been handled and had been settled for his account.

Counsel for appellants contend that appellee’s ability to have borrowed money on warehouse receipts would have enabled him to have carried into effect the transactions in which he was involved. This conclusion is not warranted by the record. Even though it be conceded that appellants’ intention was to carry into effect said transactions, the evidence, beyond any reasonable doubt, discloses that appellee’s intention was not so to carry them out, but was to gamble, and that intention was well known to appellants. That being true, if appellants aided appellee in so gambling on the Board of Trade, through them as brokers, they would be particeps criminis, and could not recover against appellees. •

In discussing a question of like character, the supreme court in Weare Commission Co. v. People, supra, at page 540 says:

“When the plaintiff in error bought the grain for Kruse upon the mere deposit of a margin, and without the payment of the whole of the purchase money, and when it, under the direction of Kruse, sold the grain before the time of delivery arrived, it certainly knew that there was a mere speculation on the part of Kruse in differences. Flower was certainly aware of the fact that Kruse, instead of waiting until the time of delivery should arrive, was selling out before such time of delivery, because the sale was made through plaintiff in error itself or Flower its agent. Parties are always presumed to intend the natural consequences of their acts. When Kruse gave the order for the purchase of the grain, and made his deposit, and then, as soon as there was a rise in the market price, sold out the grain, the presumption is that he intended, when he first made the purchase, to sell out as soon as there was a rise. And when the plaintiff in error, or its agent, aided him in the transaction, and helped him to carry out the transaction in this illegal way, it is idle to say that the plaintiff in error did not know what the intention of Kruse was. . . . ‘The question-of intention is a question for the jury or for the court, to be determined by a consideration of all the evidence. . . , The intention of the parties in such cases may be determined from the nature of the transaction and from the manner and method of carrying on the business. . . . An examination of the authorities . . . will show that the intention of the parties may be determined from a variety of circumstances. Among these circumstances, besides the mode of dealing between the parties, is the pecuniary ability of the party purchasing. If the purchases of a party, as ordered through a broker, are larger in amount than he is able to pay for, it is a strong circumstance indicating that there was no intention of receiving the property, but rather an intention to settle the difference between the market price and the contract price. Such intention may be also inferred where the party making the purchase never calls upon the party, ordering the purchase, for the purchase money, but only for margins. It makes no difference whether the real intention is formally expressed in words or not, if the facts and circumstances in proof show, that it was the real understanding, that there should be no actual purchase and.no delivery or acceptance of the property involved in the contract, but merely an adjustment of damages upon differences.’ (Jamieson v. Wallace, supra.)

Counsel for appellants contended on the oral argument that appellee had his own broker, and that by reason thereof the defense here sought to be made could not be maintained. This point is not well taken. The evidence shows that, while in many of said transactions McCabe gave his order directly to an independent broker to execute, the broker would make a memorandum showing such purchase or sale to have been made by the name of appellants with some other member of the Board for McCabe’s account, which card would be turned in to the office of appellants, and the transaction carried out by them. The commissions of such broker were paid by appellants. Appellants cannot relieve themselves of responsibility upon the

ground that they acted merely as an agent for their customer in these transactions. Pearce v. Foote, 113 Ill. 228-238; Weare Commission Co. v. People, supra, 542. In the latter case, the court says:

“There is and can be no such thing as agency in the perpetration of crimes or misdemeanors, or, indeed, in the doing of any unlawful act. All persons actively participating are principals. ‘If parties to speculative dealings intend merely to gamble in the rise and fall of prices, and the broker is privy to the unlawful design of the parties, and brings them together for the very purpose of entering into an illegal agreement, he is particeps criminis.’ (8 Am. & Eng. Ency. of Law,—1st ed.—pp. 1011, 1012.) ”

Counsel for appellants insist that, in determining this cause, weight should be given to the rules of the Board of Trade. In view of the character of the transactions involved, under the holdings of the Supreme and Appellate Courts, the rules of the board have no place in the determination of the issues as between appellants and McCabe. Pardridge v. Cutler, supra, 510; Weare Commission Co. v. People, supra, 543; White v. Turner-Hudnut Co., supra, 140. In Easton Farmers Grain Co. v. Fernandes Grain Co., supra, the court at page 105 says:

“If a contract be made contrary to law, it matters not whether it be made upon the Chicago Board of Trade or elsewhere. In Pardridge v. Cutler, supra, it was said: ‘It is not claimed that all dealings on the Board of Trade are gambling transactions while, perhaps, no one will deny that a part of the business transacted there is of that character. Plaintiff might have made bona fide purchases and sales for actual receipt and delivery in every instance, but the forms adopted could be used with equal facility, by counter purchases and sales and settlement of differences, for illegal and illegitimate dealings as between him and defendant. ... No one can be found to deny that parties, can gamble in differences under these rules as easily as to do a legitimate business, and it was wholly immaterial that the rules provided for legitimate methods. ’ ’ ’

Under the authorities above cited, the transactions involved herein were gambling transactions, so understood by appellants as well as by McCabe. Even conceding that this is not true, the evidence discloses beyond peradventure that appellee McCabe was intending by said transactions to gamble, through appellants as his brokers, and that that fact was. well known to appellants. That being true, if they assisted him, even under the rules of the board, in carrying on his gambling transactions, they are particeps criminis, and, being such, cannot recover.

It may be further observed that, appellants having received from appellee large sums of money in checks, deposits, proceeds of mortgage, etc., they, under the holding of the Supreme Court, are to be regarded as “winners” within the meaning of that word as employed in section 132 of the Criminal Code, Cahill’s St. ch. 38, ¶ 310. Kruse v. Kennett, 181 Ill. 199-205; Pelouze v. Slaughter, 241 Ill. 215-227; Moench v. Graff, 212 Ill. App. 42-47; Jamieson v. Wallace, supra, 400; Pearce v. Foote, supra, 237-238.

None of the funds paid in by appellee to appellants were applied on the purchase of any grain or provisions, and it was not intended they should be so applied. They were intended to be and were applied in settlement of losses on transactions carried on by appellants for appellee, and for the purpose of protecting appellants from losses on_future transactions. Under the above authorities, appellants fall under the designation of winners. This is true, even though the evidence also discloses that the amounts paid in by appellee were applied by appellants in payment of losses, etc., resulting to them from transactions on behalf of appellee.

In Kruse v. Kennett, supra, the court at page 205 says:

“It is forcibly and vigorously urged the ‘remedies’ provided by section 132, by the express terms of the section, are to be enforced only against one who was ‘winner’ in the transaction, and that the defendants (appellees) herein were but the brokers or commission merchants engaged by Savage to conduct the negotiations. . . . That contention cannot be regarded as an open one in this court. We held in Pearce v. Foote, supra, and Jamieson v. Wallace, supra, that if one acting as broker or commission man for another in the purchase of grain or stocks, under contracts which are gambling contracts under section 130, receive from such other money or property to be used, and which is used, in the payment of losses incurred in the transaction, the broker or commission man is a ‘winner, ’ within the meaning of that word as employed in the statute in question. . . . It is clear they won such sums so paid to them by Savage, and the fact they lost the same sums to other parties does not make them any the less ‘winners.’ ”

Appellees insisted that the assignment of errors is not sufficient to bring before this court the merits of the case. While the assignment of errors is not as specific as it should be, we have deemed best to consider the case on the merits.

Under the facts and circumstances disclosed by the record, none of the contentions made by appellants for a reversal of said cause are well taken. The decree of the circuit court is therefore affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Michael Lindenberger, Appellee, v. Frank J. Klapp, Appellant.

      Opinion filed June 22, 1929.
    Maurice V. Joyce and Dan McGlynn, for appellant.
    Pope & Driemeyer and Joseph A. Troy, Jr., for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an appeal from the judgment of the circuit court of St. Clair county, Illinois, in favor of Michael Lindenberger against Frank J. Klapp in the sum of $45,000, in an action of trespass on the case for the alienation of the affections of Lindenberger’s wife, Eda M. Lindenberger. At the close of the trial the jury returned a verdict in favor of the plaintiff in the sum of $90,000. Appellant interposed a motion for a new trial. At the conclusion of the argument the court stated that the verdict was excessive, and that, unless the appellee entered a remittitur of $45,000 he would grant appellant’s motion for a new trial and set the' verdict aside. Appellee entered a remittitur of $45,000' from the verdict. The court then overruled appellant’s motion for a new trial and entered judgment on the verdict for $45,000.

The appellant, Frank J. Klapp, married Catherine Reuter, and appellee, Michael Lindenberger, married a sister of Mrs. Klapp. Appellant Klapp and his wife had a daughter, Eda May Klapp, aged about 11 years at the time of the trial. In the year 1925 appellant and his wife took a boy known as Jack Klapp, Jr., for the purpose of adoption. The appellee Lindenberger and his wife took a girl in February, 1926, then about the age of 18 months, and adopted her. After these children were taken into the respective homes, Mrs. Lindenberger and Mrs. Klapp mutually agreed that in case of the death of either, the survivor should take care of and help raise these children. Mrs. Klapp was stricken down with pneumonia and shortly before her death on March 2, 1925, she exacted from her sister, Mrs. Lindenberger, a promise to take care of her children. Shortly after the death of Mrs. Klapp the Lindenberger family moved into the home of the appellant Klapp and until November 11, 1926, all lived in the same home. The record does not disclose that at any time the appellee Lindenberger made any complaint about the actions or conduct of the appellant towards appellee’s wife until he left Klapp’s home on November 11,1926.

Nearly two years after appellee left the home of the appellant he started this suit.

It is insisted by the appellant that the verdict of the jury is contrary to the weight of the evidence in the case. We are not disposed to discuss this assignment of error as the case will have to be reversed and remanded for a new trial on other errors in the case.

The plaintiff called Clara Harding, a maid who had lived in appellant’s home from August 1 to Decernher 2, 1926, as a witness. She detailed a conversation that she had had with Mrs. Lindenberger. This evidence was given over the objection of the defendant and was properly excepted to. We are of the opinion that it was error to admit this testimony. (McArthur v. Hopson, 184 Ill. App. 487; Fox v. Fuchs, 241 Ill. App. 242; Townshend v. Townshend, 84 Vt. 315, 79 Atl. 388.)

The defendant testified in his own behalf. An offer was made to prove by the defendant that he had had conversations with the wife of the plaintiff on several occasions, shortly after the plaintiff left his wife and the home of the defendant, in which he, the defendant, had tried to secure a reconciliation between the plaintiff and his wife. An objection was sustained to the offer and this evidence was not admitted. The defendant, by his counsel, duly excepted to the ruling of the court. We think this evidence should have been admitted under the authorities as laid down in the cases of Fox v. Fuchs, supra; Dunn v. Dunn, 241 Ill. App. 11, and Bailey v. Bailey, 94 Iowa 598, 63 N. W. 341.

The next asignment of error is that the court erred in giving instructions on the part of the plaintiff. Some of the instructions, we think, are erroneous and should not have been given. Instruction No. 3 is: “The jury are instructed that while as a matter of law the burden of proof is upon the plaintiff and it is for him to prove his case by a preponderance of the evidence, still, if the jury find that the evidence' bearing upon the plaintiff’s case preponderates in his favor, although but slightly, it will be sufficient for the jury to find the issues in his favor.” This instruction has been criticized and giving it held to be error. In Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, 210, a similar instruction was given and the court held that this instruction should have been refused; that if the jury had been instructed, it was the duty of the plaintiff to prove his case by a preponderance of the evidence; that any further effort to state the rule which was to govern the jury in weighing the evidence was only confusing.

In the case of Teter v. Spooner, 305 Ill. 198, 211, the court in passing upon a similar instruction used the following language: “The use of the adjectives 'slight’ and ‘clear,’ with reference to the preponderance of. the evidence required to sustain an issue, is only confusing to the jury. They ought not to be used in instructions in any case. Nobody knows what is a ‘slight’ preponderance, or a ‘clear’ preponderance of the evidence, although every one knows what is meant by a ‘preponderance’ of the evidence.” By far the greater number of witnesses testified on behalf of the defendant. Only two testified for the plaintiff on his case in chief, and for that reason we think that instruction No. 5, given for the plaintiff, does not correctly state the law as it ignores the fact that the jury should take into consideration the number of witnesses testifying for or against a proposition, in deciding where the preponderance of the evidence lies. A similar instruction to No. 5 was given in Noone v. Olehy, 297 Ill. 160, 169. The court held that this instruction was erroneous and should not have been given. The same rule is given in Rudin v. Wheelock, 241 Ill. App. 249; also in Nieman v. Schnitker, 181 Ill. 400.

Instruction No. 6, given on behalf of the plaintiff, we think, is erroneous as it assumes a controverted fact, namely: That the plaintiff is entitled to recover damages. Such an instruction has been condemned in the cases of Gorrell v. Payson, 170 Ill. 213; and Dady v. Condit, 188 Ill. 234. We do not think that the court by giving appellant’s 10th instruction cured the error in appellee’s instruction No. 6.

During the closing argument to the jury counsel for the appellee said: ‘‘Boys, the question that you have to determine is, whether a rich man like Klapp can break up a poor man like Lindenberger’s home and enjoy his wife, or whether the poor devil has any rights in this world.” We think this argument was improper and the trial court very properly sustained an objection to it and instructed the jury to disregard this statement. The purpose of an argument to a jury is to enlighten them what the evidence is in the case and the law applicable thereto, and any argument that tends to inflame or prejudice the jury is objectionable. Both our Supreme Court and Appellate Courts when their attention has been called to the same have not hesitated to reverse a case on this ground alone, when an objection has been made to the improper argument in the trial court. The attorney in this case was not talking about the evidence, but was attempting to create prejudice, and a judgment founded on a verdict tainted with such an argument cannot be permitted to stand. In the case of Nicklich v. Schnitker, decided by this court at the October term, A. D., 1928 (not reported in full), we held: “If counsel persisted in an improper argument to the jury and an objection is made and sustained, said argument coming from counsel of ability, age and experience in the practice of law, and if it tends to excite the passions and prejudice of the jury, neither the attorney nor his client may complain if the verdict is set aside for that reason alone.” (Illinois Power & Light Corp. v. Lyon, 311 Ill. 123; City of West Frankfort v. Marsh Lodge, 315 Ill. 32; Wabash R. Co. v. Billings, 212 Ill. 37, 42; City of Centralia v. Ayres, 133 Ill. App. 290, 294.)

The jury by their verdict gave the plaintiff $90,000 damages, but the trial court held this amount unreasonable and excessive, and required the plaintiff to enter a remittitur of $45,000. It is the contention of the appellant that under the circumstance of this case the verdict of $90,000 was so excessive it showed that the verdict was the result of prejudice and passion on the part of the jury and any remittitur that might have been ordered by the trial judge could not cure this error. In some cases no doubt the trial judge has a right to order a remittitur. The appellant does not contend that this is not the law, but claims it does not apply to a case where the damages are grossly excessive.

The evidence discloses that the appellee had been afflicted" with a loathsome disease, once shortly before the separation from his wife, another time several years prior thereto; the last time the wife paid $75 for medical services to have him cured. The evidence further shows that the appellee before the separation and thereafter continued to drink to excess and to live and associate with undesirable people. There is testimony that tends to show that the affection that appellee’s wife had had for him was lost to him for sometime prior to the separation. All these facts and circumstances should be taken into consideration in arriving at the amount of the verdict. Treating the case as though the plaintiff had proven his case by a preponderance of the evidence, we are of the opinion that a verdict for $90,000 was grossly excessive and a re- ■ mittitur reducing the verdict • to $45,000 would still leave the verdict excessive; also, that the verdict of $90,000 was not justified from the evidence in the case, and that the jury were governed by prejudice and passion, or by some element that should not have entered into the determination of the issues in the case. In Wabash R. Co. v. Billings, 212 Ill. 37, it was said: “Where the damages allowed are so excessive that they can only be accounted for on the ground of prejudice, passion or misconception, a remittitur will not obviate the error, because' these elements may have entered, and probably did enter, into the finding of other facts important to the issue, if not the issue itself.” (Loewenthal v. Streng, 90 Ill. 74-76; Richter v. Tegtmeyer, 167 Ill. App. 478, 479; Gleason v. Byrne Const. Co., 178 Ill. App. 359; Belt Ry. Co. v. Charters, 123 Ill. App. 322; Chicago City Ry. Co. v. Fennimore, 78 Ill. App. 478.)

For the errors above mentioned, the judgment of the circuit court of St. Clair county is hereby reversed and the case remanded.

Reversed and remanded.


author: Mr. Presiding Justice Barry

text:
    The People of the State of Illinois, Defendant in Error, v. Ray Henley, Plaintiff in Error.

      Opinion filed July 26, 1929.
    Frank G. Thompson and Neil H. Thompson, for plaintiff in error.
    Joe Frank Allen, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The first count of the information charged plaintiff in error with the unlawful possession of intoxicating liquor and the second count charged unlawful transportation. He was found not guilty under the first count and guilty under the second. His first contention is that the information is insufficient to charge a criminal offense and that the court erred in denying his motion to quash. The record shows that he filed a plea of not guilty and thereafter made his motion to quash. A motion to quash an indictment after the defendant has entered a plea of not guilty cannot be considered unless leave is obtained to withdraw the plea. People v. Smith, 318 Ill. 114. We are of the opinion, however, that the information is sufficient and that if the motion to quash had been made at the proper time it should have been overruled.

The sheriff and his deputy testified that they met plaintiff in error north of Ina, Illinois, about 6: 30 p. m. on the day in question; that plaintiff in error was driving a Ford car; that after the meeting the sheriff drove his car down the road until he reached a point where he could safely turn around and that he and his deputy then followed the Ford car for some distance but were unable to overtake it; that while pursuing the car the containers were thrown from the Ford car along the highway; that these containers were picked up by the sheriff and his deputy and were found to contain intoxicating liquor.

Plaintiff in error denied that he was in the vicinity of Ina, Illinois, on the evening in question; that he went to his father’s house in Mt. Vernon about 6 o ’clock on the day in question and that about 6: 20 p. m. he took his father, mother and brother to the hospital in Mt. Vernon, and was at the hospital from about 6: 30 until 8 p. m. He was corroborated by the testimony of his three relatives aforesaid and by a Mr. Grepner who testified that he had been at the hospital for several days for treatment and that on the night in question plaintiff in error came to his room in the hospital about 7 p. m. and tallied with him and gave him a package of cigarettes.

In the state of the record it was highly essential that the jury should be accurately instructed. The People’s sixth given instruction told the jury that the rule requiring them to be satisfied of a defendant’s guilt beyond a reasonable doubt, in order to warrant a conviction, does not require that the jury should be satisfied, beyond a reasonable doubt, of each link in the chain of circumstances relied upon to establish the defendant’s guilt. That it is sufficient, if, tailing the testimony all together, the jury are satisfied beyond a reasonable doubt that the defendant is guilty. That instruction has been frequently condemned and the Supreme Court has often said it should not be given. People v. Rogers, 324 Ill. 224.

The People’s ttiird instruction concluded as follows:

“You are not at liberty to disbelieve as jurors, if you believe as men; your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered.” Such an instruction was held to be erroneous in People v. Gardner, 237 Ill. App. 211.

The sheriff testified on cross-examination that on the morning of the trial and before the case was called for trial, he gave his deputy and one or two others drinks from one of the containers. He also testified that one of the parties who drank some of the liquor on that morning was William M. Walker, who was a member of the jury that was trying the case at the time the sheriff testified. It does not appear from the record whether Mr. Walker had been summoned as a juror at the time he was treated by the sheriff, nor does it appear that the sheriff then knew that Mr. Walker was to serve on the jury. Neither does it appear what, if anything, was said by the sheriff to Mr. Walker at the time he gave him some of the liquor. Plaintiff in error moved the court to withdraw a juror and continue the case or allow a new trial. His motion was denied. We are of the opinion that the court should have allowed the motion. In the state of the record we cannot say that the giving of the portion of the liquor in question to one of the jurors who tried the case was not harmful to plaintiff in error. A sheriff should not use liquor in the manner disclosed by the record unless for the sole purpose of having a witness to testify as towhether or not it is intoxicating liquor. It is seldom necessary to even do that. To have a person sample the liquor in question and then serve as a juror in the same case is highly calculated to bring the administration of justice into disrepute. The court should have allowed the motion. For the reason aforesaid, the judgment is reversed and the cause remanded for a new trial on the second count of the information.

Reversed and remanded.


text:
    Samuel Merkel, Appellee, v. Isaac Woodside, Appellant.
    Opinion filed July 26, 1929.
    Rehearing denied September 26, 1929.
    L. A. Cranston, for appellant.
    D. F. Moore, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee filed his bill to compel appellant to remove a fence from a public highway between their properties. Appellee averred that for more than 20 years prior to the filing of the bill there had been a certain public road, highway and thoroughfare along the line in question; that said public highway for more than 20 years had been in general use by the public as a public highway and that by reason of the premises and by virtue of the statute the same had become and was and still is a public highway.

Appellant filed an answer in which he admitted that there was a public road, but denied that the same had been a public highway for more than 20 years. In his answer he also attempted to show that appellee was estopped from claiming that this was a public highway by prescription or user. He averred that in 1923 appellee and others filed a petition with the commissioner of highways praying that a public road be laid out of a width of 40 feet along the line in question; that a hearing was had in which the highway commissioners granted the prayer of the petition providing the petitioners would pay the damages and fix up the road; that by reason thereof appellee was estopped. There is no averment in the answer that anything more was done under the petition. There is no showing that the road petitioned for was ever opened or that a survey was made or a plat filed. Appellant also filed a plea of estoppel based upon averments similar to those set out in the answer.

The plea was set for hearing and held to be insufficient. Exceptions were sustained to the answer and the answer held insufficient. The court ruled appellant to plead and be elected to stand by his answer and plea. Thereupon he was defaulted and a decree entered in accordance with the prayer of the bill.

The bill averred that appellant erected the fence complained of on May 1, 1927. The averments of the answer and the plea were insufficient to establish an estoppel against appellee. Rodgers v. Hess, 325 Ill. 603. The court did not err in holding the answer and the plea insufficient to show an estoppel.

The bill was framed on the theory that the public highway in question had been acquired by user. The statute provides that a road which has been used by the public as a highway for 15 years, and which has not been vacated in pursuance of law, is a public highway. Cahill’s St. ch. 121, 153. The bill avers that the strip of ground in question had been used as a public highway for more than 20 years prior to the filing of the bill. Appellant answered that averment by admitting there was a public road, but denying that it had been a public highway for more than 20 years. It was not necessary that it should have been used as a public highway for 20 years. The averment in the answer might be true, and yet it may be that the road in question was used as a public highway for more than 15 years, the statutory requirement.

The use and enjoyment of a roadway by the public for the time required by the statute creates the presumption of a grant or a way by prescription, in the absence of proof that the use by the public was a permissive use rather than an adverse use. Where such use is shown, the burden is on one denying the existence of a public highway to show that the use was under some license or indulgence inconsistent with the claim of the right by the public. Lee v. Dickman, 316 Ill. 529; Mudge v. Wagoner, 320 Ill. 357.

We are of the opinion that appellant’s answer was insufficient to show that the roadway in question had not been used by the public for the statutory period of 15 years and that the court did not err in its holding in that regard. Appellant was given an opportunity to further plead but elected not to do so. In the state of the record the decree must be affirmed.

Affirmed.


text:
    Ethel Tonney, Appellant, v. Illinois Life Insurance Company, Appellee.
    Opinion filed July 26, 1929.
    Smith & Smith and June C. Smith, for appellant.
    Hugh T. Martin and Harry S. Parker, for appellee; Parker & Sauer, of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The appellant brought this suit on an insurance policy issued to her husband and in which she was named as beneficiary. The cause was tried before the court without a jury and there was a finding and judgment in favor of appellee.

The sole question is as to whether appellee waived the payment of the quarterly premium which was due October 15, 1927, but which could be paid under the terms of the policy not later than November 15, 1927. The policy provided for 30 days’ grace after the payment was due. The undisputed evidence is that the agent spoke to the insured about the payment of the premium prior to November 11, 1927, and asked him if he had sent it in and he replied that he had not; that he was going to let the policy lapse; that he had taken out other insurance in another company. The agent had another talk with the insured on November 11, 1927. He then asked the agent how much the insurance would cost him a month and was informed that it would be about $10; but that they did not figure what it would be monthly. The insured said he wanted to pay $10 on it and the agent told him that would not keep his insurance in force; that it was not in conformity with the provisions of the policy; that he could either pay the premium annually, semiannually or quarterly, but that there was no provision for monthly premiums; that conversation took place on the street in front of the agent’s office. They then went into the office and the agent told him that by making out and signing a note he could get an extension of time. The agent filled out a note for the quarterly premium, $26.65, and asked the insured to sign it and if the same was approved by the company they would give him the extension of time which he desired. The insured said he did not want to do that; that he just wanted to pay $10. The agent then told him that would not keep his insurance in force but that if he wanted to sign the note it would be all right. The insured then said to the agent that he should take the $10 and send it in to the company and that if they did not want to handle it that way they could dispose of it.

The agent then took the insured’s check for $10 and mailed it to appellee with a letter informing appellee that the insured desired an extension of 30 days on the balance of his quarterly premium. November 11,1927, was Armistice Day and was on a Friday. The letter probably reached Chicago sometime Saturday but Saturday afternoon being a holiday it did not reach appellee until Monday, November 14, 1927. On November 16, appellee wrote the agent acknowledging receipt of the said letter and informed him that as payment of the premium was not made in full by November 15, the last day of the grace period, the policy had lapsed, and asked the agent to secure the application of the insured for reinstatement and to forward the same with the balance of $16.65; that the remittance of $10 would be held in suspense until the completed application for reinstatement and a remittance for $16.65 was received.

Very soon after the insured gave his check to the agent on November 11, 1927, he left for Arkansas and there was accidentally killed on November 16, 1927. On. the same day and long before appellee learned of the death of the insured, it had written the agent informing him that the policy had lapsed and that it would be necessary for the insured to make an application for reinstatement.

It clearly appears that before the insured gave the agent his check for $10' he was informed that the payment of that amount would not keep his policy in force. He was told that if he wanted an extension of time he should sign a note which the agent then and there filled out, but this he refused to do. In view of this undisputed evidence it cannot be successfully contended that payment of the quarterly premium on or before November 15, 1927, was waived by appellee. We find nothing in the record bearing upon the payment of other premiums prior to the one in question that would warrant us in holding that prompt payment of the premium in question was waived.

Finding no reversible error in the record the judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Harmon Clark, Plaintiff in Error.
    Opinion filed July 26, 1929.
    R. E. Smith, for plaintiff in error.
    Marion M. Hart, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

An information consisting of three counts charged plaintiff in error with the unlawful sale, unlawful possession of intoxicating liquors and with maintaining a common nuisance. He entered a plea of guilty to each count and the court sentenced him to the Illinois State Farm for a period of six months and fined him $1,000 and costs.

It is his contention that the record does not show that he was arraigned. While the record does not show a formal arraignment, it does show that plaintiff in error was present in court and entered a plea of guilty. It is fairly inferable that he was brought to • the bar of the court and duly arraigned and called upon to plead. People v. Pennington, 267 Ill. 45.

It is next contended that the judgment of the trial court is void because the court did not sentence plaintiff in error under each count of the information. In any event the judgment would not be void for that reason. There is no trouble whatever with- the judgment. The only question is as to whether plaintiff in error was properly sentenced. Where the only trouble is in regard to the sentence the judgment would simply be reversed with directions to the trial court to enter a proper sentence. Johnson v. People, 83 Ill. 431; People v. Elliott, 272 Ill. 592.

The sentence imposed upon plaintiff in error is not a proper sentence under the second or third counts of the information. It is a proper sentence under the first count, which charges an unlawful sale of intoxicating liquor. Under somewhat similar circumstances it has been held that the sentence should be construed as applying to the charge for which such a punishment might be imposed under the law. People v. Carr, 255 Ill. 203; People v. Lawrence, 314 Ill. 292. Under these authorities we think it unnecessary to reverse with directions to sentence plaintiff in error under each count of the information. No reversible error having been pointed out, the judgment is affirmed.

Affirmed.


text:
    Clyde Hagen, Appellee, v. Mabel Delatine et al., Appellants.
    Opinion filed July 26, 1929.
    P. K. Johnson, for appellants.
    Keefe & Listeman, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

This is an action of replevin brought by appellee to recover an automobile which had been seized under an execution by a constable, who is one of the appellants. The appellants sought to justify by virtue of an execution issued by a justice of the peace on a so-called judgment under date of February 13, 1928.

Mabel Delatine sued Grill Shaub and Anna Shaub before a justice of the peace on February 5, 1928, and the cause was heard on February 13. The docket of the justice of the peace reads as follows: “Mabel Delatine and Grill Shaub announces ready for trial, witnesses are sworn and heard and after hearing the evidence it is so judged by court Grill and Anna Shaub is guilty and assesses the plaintiff, Mabel Delatine, damages at $77.78 and costs of court, $6.40, this 13th day of February, 1928, execution immediately by affaid.” The trial court refused to permit appellants to introduce the said alleged judgment in evidence.

Unless we can say that the purported judgment is a valid judgment, upon which execution could issue, the court did not err in its ruling. The burden of proof was upon appellants to support the execution by proof of a valid judgment existing at the time the execution issued. Shue v. Ingle, 87 Ill. App. 522.

The entry of a judgment by a justice of the peace is absolutely essential before an execution can be issued. 35 C. J. 695. The statute clearly contemplates that no execution can be issued by a justice of the peace before he has-rendered judgment. Cahill’s St.' ch. 79, ft 120 et seq.

A verdict of a jury or a finding of the justice of the peace without the entry of a judgment is not sufficient to authorize the issuance of an execution. 23 C. J. 314; Sare v. Butcher, 141 Ind. 146, 40 N. E. 749; Lowther v. Davis, 33 W. Va. 132, 10 S. E. 20.

While no formal words are required of a justice of the peace in entering judgment, yet it is necessary that some kind of a judgment be entered. An- entry made by a justice of the peace was as follows: “June 10, 1924. The day of the trial, All evidents was herd. After hearing evidents for both plaintiff and defendant the Oort finds for plaintiff the amount of $15.30 and costs of suit.” We held that the said entry was not a judgment. Hogue v. King, 245 Ill. App. 314. If there was no judgment in that case we cannot see how it can be said that there is a judgment in the case at bar. It simply amounts to a finding upon which a judgment might have been entered, but it was not. In Metzger v. Wooldridge, 183 Ill. 174, the entry was: “And the court having heard the motion, court overruled same, and judgment on the verdict for $1,521.09. ’ ’ It was held that no judgment had been entered. In the absence of a valid judgment the justice of the peace had no power or authority to issue the execution levied upon the automobile in question. Appellants had no other claim against the car and no other defense to the action. For the reasons aforesaid, it is unnecessary to mention any of the other contentions made by appellants. The judgment is affirmed.

Affirmed.


text:
    Fred A. Burton, Appellee, v. Freeman Coal Mining Company, Appellant.

      Opinion filed July 26, 1929.
    Additional opinion filed September 11, 1929.
    Charles E. Feirich, for appellant.
    J. Roy Browning, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

This is an appeal from an interlocutory order appointing a receiver. Appellee filed his bill against appellant and twelve other persons in which he averred that he is the owner of 265.96 shares of the capital stock of appellant and that he claims to be the owner of all other outstanding shares; that appellant’s authorized capital is $250,000, divided into 2,500 shares, of which 531.93 shares are held in the treasury of the company; that of the shares in force the McElvains claim to be the owners of 1,702.11 shares; that appellant owns a mining property in Williamson county and that mining operation ceased on February 20, 1929. The bill avers that since January 20,1922, appellee has been in complete control of appellant and has had complete control and charge of the management of the company; that he had litigation in the superior court of Cook county with the McElvains and a decree was rendered requiring him to deliver the shares claimed by the McElvains to them; that he appealed to the Supreme Court and that court sustained the decree and held that all moneys of appellant expended by appellee during the time he had been in control of the company which were wrongfully expended, including the wages of miners and running expenses of the mine, should be repaid by appellee to appellant; that because of that holding appellee refused to pay the miners’ wages and the mine was closed on February 20, 1929; that more than 400 laborers were engaged in the mine and about $60,000 were due them for wages at that time; that 11 of the miners, who were made defendants to the bill, served a written demand for their wages and brought suit before a justice of the peace and that other miners threatened to do likewise; that such suits and threatened suits would injure and impair the value of the mine.

The bill avers that on February 20, 1929, the miners went out on strike; that the mine is now idle and that appellee believes that some of the miners will, in revenge and retaliation, destroy or seriously injure the mine unless a receiver is appointed; that the Supreme Court held that appellee’s control and operation of the mine was unlawful and not binding upon the McElvains ; that as to them appellee did not represent appellant and that as to appellant and the McElvains appellee was a trespasser; that by reason of that decision appellee is not willing to further control the property of the company and that the McElvains had refused to take possession and appellant is without any one in charge or control of its property, so that its property and business and credit are in imminent danger; that the value of appellee’s stock will be irretrievably lost unless the court appoint a receiver to take care of, manage and protect its property, business and affairs until the stockholders can meet and elect officers.

The bill avers that it is imperative that the receiver be appointed forthwith and that the injunction be granted restraining the 11 miners named as defendants from prosecuting their suits. The bill prays for a temporary injunction against the 11 miners and that on the final hearing such injunction be made permanent ; that the court forthwith appoint a receiver of the Freeman Coal Mining Company and for general relief,

The court granted the injunction and appointed a receiver without notice to any of the defendants.

It will be observed that there is no averment that appellant is insolvent. The main purpose of the bill seems to be to prevent bona fide creditors from prosecuting their claims to judgment and perhaps, incidentally, to place the corporation in the hands of a receiver friendly to appellee. It will also be observed that the prayer of the bill is for the appointment of a receiver for appellant and not simply to take charge of the mine.

Courts of chancery can appoint receivers of corporations only when expressly authorized by statute, and they have no general power to make such appointments. They are particularly disinclined to appoint a receiver for misconduct or mismanagement of a corporation, or for the purpose of merely preserving its assets, where the application is made by stockholders. While a stockholder may invoke the power of equity to appoint a receiver where the corporation is fraudulently mismanaged by its officers, the stockholders cannot invoke the jurisdiction of the court to take charge of all the company assets by a receiver and thus defeat action by the creditors under section 54 of the General Corporation Act, Cahill’s St. ch. 32, ¶ 54. Blanchard Bro. & Lane v. Gay Co., 289 Ill. 413; People v. Weigley, 155 Ill. 491.

We are of the opinion that the averments of the bill in this case were wholly insufficient to give the court jurisdiction to appoint a receiver. The order appointing a receiver is null and void. The decree is reversed and the cause remanded.

Reversed and remanded.

Additional Opinion on Petition for Rehearing.

Appellee says that what he wants is to have the assets of appellant placed in safe hands until his controversy with the McElvains regarding the ownership of the remainder of the stock is settled by the Supreme Court. He insists that the averments of his bill are clearly sufficient to entitle him to the appointment of a receiver under the following cases: Merrifield v. Burrows, 153 Ill. App. 523; Schmidt v. Johnson, 166 Ill. App. 623; Boyle v. Superior Court of City & County of San Francisco, 176 Cal. 671, 170 Pac. 1140, and In re New Jersey Refrigerating Co., 95 N. J. Eq. 215. In those cases it was made to appear that the directors were deadlocked and that no business could be transacted; that the directors and officers were unable to function, etc. There is no similarity between the averments of appellee’s bill and the bills in the cases above cited.

Appellee’s bill does not charge the insolvency of appellant or fraud and mismanagement on the part of any one other than the averment that the Supreme Court had held that appellee was a trespasser and guilty of unlawful acts. There is no averment that appellant is unable to function as a corporation because its board of directors is deadlocked, or for any other reason. There is an averment that since the decision of the Supreme Court he requested the Mc-Elvains to take possession of appellant’s property and that they refused to do so. There is no showing that the McElvains were directors or officers of the corporation. From all that appears in the bill, appellant may have a competent board of directors who are in every way capable of managing the corporate affairs better than the court could through a receiver.

The latest utterance of our Supreme Court on this subject is as follows: “In the bill under which the plaintiff in error was appointed receiver it did not appear that the corporation was insolvent or that its affairs were being mismanaged. It did appear that it was near insolvency, but it did not appear that the court or its receiver could manage the corporate affairs better than its officers, and the courts do not appoint receivers for the purpose of merely preserving 'the assets of the corporation where the application is made by stockholders, for the reason that the sovereign does not furnish public agencies for the carrying on of private enterprises.” Steenrod v. Gross Co., 334 Ill. 362-369. It seems to us that appellee’s contention is fully answered by the above quotation and his petition for a rehearing is denied. This appeal brought before us nothing but the order of the court appointing a receiver and as that order is null and void there is no cause to be remanded. The opinion heretofore filed is modified by striking out the remanding order and appellant’s petition for rehearing is denied.

Reversed.


author: Mr. Justice Newhall

text:
    Alice Sims et al., Plaintiffs in Error, v. J. H. Arehart, Administrator of the Estate of James H. Bush, Deceased, Defendant in Error.
    Opinion filed July 26, 1929.
    R. S. Rowland, for plaintiffs in error.
    Kasserman & Kasserman, for defendant in error.
   Mr. Justice Newhall

delivered the opinion of the court.

This case comes to this court on a writ of error from the circuit court of Jasper county: It was originally heard in the county court upon objections to the administrator’s report; taken to the circuit court on appeal where the judgment of the county court in overruling plaintiffs’ in error objections to the administrator’s report was affirmed.

James H. Bush died in Camp Merritt, New Jersey, in service as a soldier in the late war on December 10, 1918. He left no estate except United States War Risk Insurance in the amount of $10,000. His brother, Ivory Bush, who had previously died on October 10, 1918, in France, was the sole beneficiary named in his policy of insurance. The decedent, James H. Bush, left as his only heir at law his grandmother (the mother of his deceased father), Sarah Jolly, who died December 19, 1920'..

Defendant in error, J. H. Arehart, was appointed administrator of the estate of James H. Bush in 1927 and in 1928 as such administrator he received from or through the United States Veterans’ Bureau a remittance of $3,703.51, the proceeds of said insurance as belonging to said estate. A report was made by the administrator to the probate court in which he asked to distribute $2,800 of the fund to the heirs of James H. Bush. Plaintiffs in error, who are uncles and aunts of James H. Bush, filed objections to the report and the issue sought to be raised by the objections is as to whether the funds in the hand's of the administrator should be distributed as though Sarah Jolly had not survived James H. Bush. It is not denied that she was the sole heir at law under our statutes of descent of the said James H. Bush, but the contention is made that because a part of the insurance money had been paid to the plaintiffs in error by the United States Government prior to the payment to the administrator that they are now entitled to share in the fund, although they cannot trace their heirship 'to James H. Bush through the said Sarah Jolly.

The Bureau of War Bisk Insurance was first established by act of Congress in September, 1914, and several acts relating to war risk insurance were passed during and after the World War. In October, 1917, Congress passed a comprehensive War Bisk Insurance Act under which act the rights of the parties in this proceeding must be determined. Article 4 of the act of October 6, 1917, provides as follows: ‘1 The insurance shall be payable only to a spouse, child, grandchild, parent, brother or sister or to any or all of them. ... If no beneficiary within the permitted class be designated by the insured, either in his lifetime or by his last will and testament, or if the designated beneficiary does not survive the insured, the insurance shall be payable to such person or persons within the permitted class of beneficiaries as would under the laws of the state of residence of the insured be entitled to his personal property in case of intestacy. If no such person survive the insured, then there shall be paid to the estate of the insured an amount equal to the reserve value, if any of the insurance at the time of his death.”

Article 1 of said act of October 6, 1917, provides as follows: “In Articles 2, 3 and 4 of this Act unless the context otherwise.requires. . . . (4) The term ‘parent’ includes a father, mother, grand-mother, grandfather, step-father, step-mother, either of the person in the service or of the spouse.” Lewis’ 1928 “Laws Belating to IT. S. Veterans’ Bureau and War Bisk Insurance.”

Several minor changes were made by Congress in the War Bisk Insurance Act subsequent to the death of the insured, but these amendments did not change the vested rights of the original beneficiaries of the deceased, James H. Bush, in and to the insurance moneys in question.

The insured, James H. Bush, and his estate had a vested right in said insurance. His relations with the government were contractual; they were governed by the act of 1917.and. his rights became vested at the time of his death in December, 1918. The beneficiary whom James H. Bush had named in his policy, being his brother Ivory Bush, died before his death. No alternative beneficiary was designated in the policy of insurance and no will was made by the deceased, James H. Bush. Under the federal law' at the time of the death of the insured there was only one other person who could have been named beneficiary and that was his grandmother, Sarah Jolly. Under the War Bisk Insurance Act the grandmother was the only person who could be substituted as beneficiary because she was the only one who was within the permitted class, and in addition she was the only one who would have succeeded as heir to the personal property of James H. Bush. That law substituted the grandmother as beneficiary and until her death the insurance should have been awarded to her, and at her death the unpaid portion should have been paid to the estate of James H. Bush. No awards or payments were made under the policy in question until after the death of the insured’s grandmother, Sarah Jolly, when, in September, 1922, a partial distribution of the instalments of the insurance was made by the War Veterans’ Bureau to the seven uncles and aunts of James H. Bush. These instalments were paid monthly and from time to time there were certain changes' in the amounts of the monthly allowances. After these monthly instalments had been paid for sometime, one of the uncles and one of the aunts died and at the request of the War Veterans’ Bureau an administrator was appointed for the James H. Bush estate in May, 1927. The monthly allotments were paid the surviving uncles and aunts until the year -1928, when the War Veterans’ Bureau discontinued the payments and decided to pay the entire balance of the insurance, being the sum of $3,703.51, to the administrator of the estate of James H. Bush.

Plaintiffs in error contend that they are each entitled to a one-seventh share in this fund and the administrator by his report sought to distribute the entire fund to the heirs of Sarah Jolly, deceased, on the theory that Sarah Jolly at the time of the death of James H. Bush was the sole surviving next of kin.

The said act of 1917 expressly provides that: “The insurance shall be payable to such person or persons within the permitted class of beneficiaries as would under the laws of the state of residence of the insured be entitled to his personal property in.cáse of intestacy.” The insured, James H. Bush, was a resident of Illinois and under the laws of Illinois, Sarah Jolly, the grandmother of the insured, was his sole heir at law and lawfully entitled to said insurance as beneficiary. Upon the death of Sarah Jolly in December, 1920, her heirs became lawfully entitled to the proceeds of such insurance.

It is quite evident that the Veterans’ Bureau in making the monthly allotments of insurance to the aunts and uncles of the deceased misconstrued the terms and provisions of the War Bisk Insurance Act and that afterwards, when said mistake was discovered, the Bureau discontinued such monthly allotments to plaintiffs in error and paid the entire balance of said insurance to the administrator of the estate of James H. Bush, and it then became the duty of the administrator under the directions of the probate court to distribute such fund in accordance with the laws of descent of the State of Illinois.

Some contention is made by plaintiffs in error that they acquired some rights by reason of the fact that the administrator filed a petition in the probate court to declare heirship and that by other acts and conduct of the administrator they were misled and did not, therefore, protest to the War Veterans’ Bureau because of the discontinuance of their monthly allotments of insurance.

We think there is no merit in these contentions of plaintiffs in error and we are of the opinion that the trial court did not err in overruling plaintiffs’ in error objections to the administrator’s report.

For the reasons aforesaid, the judgment of the circuit court of Jasper county is accordingly affirmed.

Affirmed.


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    Ulys Pyle, Appellant, v. Harry E. Puntney, County Superintendent of Schools of White County, Illinois, Appellee.

      Opinion filed July 26, 1929.
    Ulys Pyle, pro se.

    James M. Endicott, State’s Attorney, for appellee.
   Mr. Justice Newhall

- delivered the opinion of the court.

This was a petition for a writ of mandamus filed in the circuit court of White county "by appellant against appellee, Harry E. Puntney, superintendent of schools of White county, to compel appellee to approve the attendance of John W. Pyle, son of appellant, at the Carmi Township High School in accordance with the provisions of section 96, Cahill’s St., ch. 122, fi" 104, of “An Act to establish and maintain a system of free schools, ’ ’ as amended by an act approved July 7, 1927 (Session Laws 1927, page 806).

A general demurrer was filed by appellee to the petition, which demurrer was sustained by the trial court and appellant refusing to plead further his petition was dismissed and judgment was rendered against bim for costs, and from this action of the court this appeal is prosecuted.

Appellant as petitioner in the court below alleged that he was a resident of White county; that for the past six months he had been a resident of the Norris City Township High School District; that petitioner is married and has a son named John W. Pyle in the? second year of high school and who is now attending the Carmi Township High School; that petitioner for many years has been an attorney at law engaged in the practice of law in the City of Carmi in said county, during which time he maintained his law office in said City of Carmi; that prior to his making his residence in said Norris City Township High School District he resided in said City of Carmi and his children, including said John W. Pyle, attended the public schools of said city and said Carmi- Township High School; that in the summer of the year 1928 petitioner erected a residence in said Norris City Township High School District where he has since resided with his family; that said residence is located along State Boute No. 1 and is about seven and one-half miles from the City of Carmi; that your petitioner drives to and from his law office in Carmi daily; that the Carmi school is located along said Boute No. 1 and that your petitioner passes the same daily in driving to his said office; that your petitioner owns only one automobile which he uses in driving to and from his said office; that it is between four and five miles from petitioner’s residence to the Norris City Township High School which is at Norris City and in-the opposite direction from Carmi; that your petitioner has no means of conveyance for his said son to attend said Norris City school; that petitioner in his daily trips to his law office can bring his said son to and from the said Carmi school and that it is much more convenient for his said son to attend said Carmi Township High School than the said Norris City school; that said Carmi school is a recognized .high school; that'prior to the opening of said Carmi school in the fall of 1928 petitioner made known to the appellee the facts set forth in said petition and explained to him that it was more convenient for his said son to attend said Carmi school than said Norris City school and requested of the appellee as county superintendent to approve the attendance of his son at said Carmi Township High School as provided by law; that said county superintendent, though not denying but admitting it was more convenient that said John W. Pyle attend said Carmi Township High School than said Norris City Township High School, refused to approve such attendance, and still refuses though often requested so to do; that said county superintendent gave as his reason for such refusal that it would injure the Norris City Township High School if it had to pay the tuition for said pupil and probably would be the cause of other high school pupils in the county requesting the approval of transfer; that said John W. Pyle was under the age of 15 years and not legally qualified to drive an automobile; that the refusal of said county superintendent to approve the attendance was arbitrary and unjust and was not a proper exercise of his duty in the premises and injurious to petitioner in that if he does not approve the same your petitioner will be compelled to pay the said Carmi Township High School the tuition for said pupil.

Section 96, Cahill’s St. ch. 122, ¶ 104, of “An Act to establish and maintain a system of free schools,” as amended by an act approved July 7, 1927 (Session Laws 1927, page 806), among other things provides as follows: “Upon the approval of the county superintendent of schools any high school pupil may attend a recognized high school more convenient in some district other than the high school district in which he resides and the board of education of the high school district in which said pupil resides shall pay the tuition of such pupil, provided, said tuition shall not exceed the per capita cost of maintaining the high school attended.”

Appellant contends that the facts alleged in his petition, which are admitted by the demurrer, show that it is “more convenient” for appellant’s son to attend the Oarmi school than the Norris school; that appellee did not deny such contention but expressly admitted same and based his refusal for approval upon other grounds not warranted by the provisions of the statute.

The petition alleges that appellee refused to give his consent for transfer for the reason that it would injure the Norris school if it were compelled to pay the tuition of said pupil and probably would be the cause of other pupils requesting approval of transfer.

On the part of appellee it is contended that the courts will not interfere with the discretion which has been placed upon the county' superintendent by the legislature in determining whether or not he will give or withhold his approval of the transfer of a pupil from one high school district to another.

In Board of Education of Drummer Tp. High School Dist. No. 118 v. Board of Education of Sibley Community High School Dist. No. 115, 323 Ill. 152, the court held, with reference to said section 96, as follows (p. 157): “The statute aforesaid designates the county superintendent of schools as the party whose duty it is to determine the question of convenience and as the one to say what high school is more convenient to such high school pupils. The statute made him a ministerial officer for that very purpose, and his decision as such ministerial officer is valid and binding and cannot legally be disturbed in a collateral proceeding by any court in the absence of any showing of fraud. . . . We think it is also error to construe the words of the statute ‘more convenient’ to mean ‘nearer to.’ The ministerial officer aforesaid may find many reasons for correctly deciding that a high school is more convenient to a pupil than his own school although his own high school may be very much nearer to his residence. This might be so because of the character and condition of the roads leading to the respective schools from his home. It might be so in a case where he was so far away from either school as to necessitate his boarding at or near the school he should attend, and by reason of the further fact that he was unable to pay or have paid his board and had a near relative at one school who was ready and willing to furnish him board free of cost in order that he might have the benefit of a high school education, and that he did not have such a relative so accommodating to him in his own school district. It is the intention of the legislature that all pupils in this State shall have the opportunity of a high school education, and when for any reason a pupil is inconvenienced by including him in a non-high school district or in a high school district, it is his privilege to attend the high school that is more convenient to him when he has obtained the proper authority therefor, and there is no provision in our constitution that gainsays the right of the legislature to give the pupils of this State that privilege.”

In Board of Education of Princeton High School Dist. No. 500 v. Board of Education of Wyanet Community High School Dist. No. 510, 314 Ill. 83, it was held (p. 89): “Convenience of a school for the attendance of its pupils is a material element tending to produce a thorough and efficient system of free schools. The power conferred upon the county superintendent of schools by section 96 is an administrative and not a judicial or legislative power, and the act does not violate the constitutional inhibition by conferring this power upon him.”

As a general rule the courts will not review in a collateral proceeding the facts upon which a ministerial officer is called upon to decide in his official capacity in the absence of a showing of fraud, collusion or oppression. School Directors of Dist. No. 3 v. Babcock, 249 Ill. App. 305.

In VanDorn v. Anderson, 219 Ill. 32, it was held (p. 36): “Undoubtedly, it is the general rule that the writ of mandamus will not lie to compel the performance of acts or duties, which necessarily call for the exercise of judgment and discretion on the part of the officer or body, at whose hands their performance is required. (People ex rel v. Illinois State Board of Dental Examiners, 110 Ill. 180; Illinois State Board of Dental Examiners v. People, 123 id. 227.) But a writ of mandamus will issue to command the performance of an official act in a proper manner when such act is hi its nature ministerial, and not judicial. (Graham v. People, 111 Ill. 253; People v. Mayor of Alton, 179 id. 615.)”

In the VanDorn case there was involved the question of compelling a county superintendent to issue a teacher’s certificate where the superintendent had decided that the applicant teacher possessed the necessary qualifications for teaching but the superintendent arbitrarily refused to issue the certificate and the court held that after the county superintendent had decided that the teacher possessed the necessary qualifications the issuing of the certificate was merely a ministerial act which could be required to be performed by the writ of mandamus. In Illinois State Board of Dental Examiners v. People ex rel. Cooper, 123 Ill. 227, it was held that the State Board of Dental Examiners, on the application of a graduate from a dental college for a license, has no discretion as to any other matter than the character of the college issuing the diploma, as to its being reputable or not; that when they have decided that such college is reputable their judicial or discretionary power is exhausted and the duty to issue the license becomes a ministerial one, and its performance may be enforced by mandamus. In People ex rel. Kincaid v. School Directors of Dist. No. 8, 267 Ill. 172, there was involved the right of the court to issue a writ of mandamus against school directors to compel the directors to approve the transfer of certain pupils from one school district to another. This case involved the construction of the School Act of 1913 providing for the transfer of pupils to a high school when there is no high school in the district in which they reside, and the court said (p. 180): “It is further contended by appellants that under the law in question school directors of the district from which such transfer is made have the right to select the high school district to which such pupils shall be transferred. That portion of the law is as follows: ‘The parent, or guardian, shall select the high school to be attended, subject to the approval' of the school directors of the home district. ’ It is contended by appellants in this case that in the exercise of their right they selected a different high school to which such transfer should be made from the one selected by the relator, as parent of the children desired to be transferred. This portion of the law is subject to a reasonable construction. Parents and school directors of the district from which the transfer is sought are supposed to work in harmony in the matter of transfers, and it is not the intent or purpose of the law to allow either to make an arbitrary selection of the high school to be attended. If the respondents, as directors of the home district, could show any valid reason why the transfer should not be made to the school selected by the parent or could show any reason why the transfer should be made to the school selected by them, such reason should be considered and passed upon by the court on its merits. Such selection should not be arbitrary in either case. ’ ’ In Cook v. Board of Directors of School Dist. No. 80, 266 Ill. 164, the court had under consideration a petition for writ of mandamus to compel the school board to comply with the provisions of the School Act of 1913 in regard to high school privileges for -graduates of the eighth grade and to transfer pupils who had finished the eighth grade in said school district to the high school. The case involved the constitutionality of the act of 1913 relating to the transfer of pupils above the eighth grade to a high school. A demurrer was filed to the petition which was sustained by the circuit court and petition dismissed and the appeal brought direct to the Supreme Court on the ground that the constitutionality of the statute was invblved. The court held the act valid, and with reference to the power of the court to issue mandamus it was said: “It is suggested that the assent of the board .of directors to the transfer of pupils to a high school involves the exercise of discretionary power, which will not be controlled by mandamus. The petition* avers and the demurrer admits that there" are unappropriated funds in the- district which may properly be applied to the payment of the tuition of relator”s' children in the high school. It is- further averred and admitted that the board of directors of the resident district withheld its assent to such transfer and declined to make any provision for the transfer of the relator’s children to the high school, and that no reason is assigned for such refusal. If any sufficient legal reason exists for the action of the board of directors it may be set up by way of defense, and the court will then determine whether the board of directors has any legal justification for withholding its assent to. this transfer. To hold that a board of directors could arbitrarily and without any reason refuse to assent to the transfer of pupils to a high school would place it within the power of any board of directors to nullify the will of the legislature. Manifestly, such was never contemplated when the law was passed. The duties devolving upon the board of directors under this law must be held to be mandatory, — at least to the extent that the board may not capriciously refuse to perform them.”

It being alleged in the petition and admitted by the demurrer that the county superintendent, in the exercise of his discretion, found and determined, and so declared that it was more convenient for appellant’s son to attend the Carmi school, but refused to grant his approval on the ground that it would injure the Norris City Township High School if it had to pay the tuition for said pupil and would probably be the cause of other high school pupils in the county requesting approval of transfer, is not sufficient legal cause to deny appellant’s son the privilege of attending the Carmi school. In Proviso Tp. High School No. 209 v. Oak Park, etc., Dist. No. 200, 322 Ill. 217, it was held (p. 219): “Taxes are not levied by a board of education for the private benefit of the board, the tax-payers or the pupils of the district, but to provide public funds for the purpose of establishing and maintaining a system of free schools, and these taxes are public property in the hands of the agents of the State for that purpose and are subject to the will of the General Assembly. ’ ’

After, as alleged in the petition for mandamus and admitted by the demurrer, the county superintendent had decided that it was more convenient for appellant’s son to attend the Carmi school, then upon coming to such decision the county superintendent’s discretionary power was exhausted and his duty to give his approval then became a mere ministerial act, the performance of which in a proper case could be enforced by mandamus.

The judgment of the circuit court of White county is reversed and the cause remanded to that court, with directions to overrule the demurrer and to permit appellee, if he shall be so advised, to plead to or answer the petition.

Reversed and remcunded with directions.


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    Hattie Dickey, Appellee, v. Charles E. Dickey, Appellant.
    Opinion filed July 26, 1929.
    Ralph Cook, for appellant.
    Daniel R. Webb, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal from an order denying the petition of appellant to vacate a decree of divorce entered in the" city court of East St. Louis granting to appellee a divorce' from appellant. ' -

Appellee filed a bill for divorce on November 3,1928, during the September term of the city court. Appellant was not served with summons but entered his appearance in writing on the day the bill was filed and a decree entered.

On November 10, 1928, during the said September term of the city court, appellant filed his petition and motion to vacate and set aside the decree, alleging that appellant was misled and misinformed as to the grounds of the divorce and that he signed the entry of appearance with the understanding that appellee would prove her case; that in the bill filed by appellee she charged appellant with adultery, giving no person or persons, or stating any time when said occurrence took place. The petition alleged that there were no witnesses heard in support of the bill of complaint except complainant, and that while appellant’s entry of appearance shows that one T. S. Morgan represented him in his case that he did not request or employ the said Morgan to represent him; that after the decree was entered appellant went to the bank in St. Louis where he and his wife had a joint account and found that on October 25, 1928, she had withdrawn from the bank all the money in the joint account amounting to $342.75; that she had taken from the safety deposit box a $100 Liberty Bond and a $2,000 mortgage, half of which appellant claimed belonged to him. The petition prayed that the divorce decree be set aside because it was obtained by fraud, misrepresentation and collusion. There is no record preserved of any testimony taken at the time the decree was entered.

On the hearing on petition to vacate the decree appellant' testified that he signed the entry of appearance in the court room; that he had no lawyer to represent him; that Mr. Webb, who represented the complainant, called him to-his office about the first of November and told him his wife was trying to get a divorce; that she did not have any grounds to get a divorce and she didn’t know what to do.about it; that appellant did not agree at that time to sign an entry of appearance and nothing was said at any time about a property, settlement. Appellant further testified that when appellee got her divorce he was sitting in the court room; that she was in the judge’s room and only Mr. Morgan, Mr. Webb and the judge were present; that he did not see any other witnesses; that Mr. Morgan afterwards gave him a copy of the decree and he then went to the bank and found that his- mortgage, Liberty Bond and money had been taken from the bank; that he did not admit to any one that he had committed adultery; that he did not pay anyone to represent him but on the morning the case was heard Mr. Webb brought Mr. Morgan up and introduced him and told appellant that Morgan was going to intercede for him; that he did not know Morgan before he came to the court room and that the arrangements with Morgan were made by Mr. Webb.

Appellee testified that she had left half of their joint account in the bank; that the mortgage belonged to her and that appellant knew all about the divorce going to be granted and that'they had talked it over some days before.

After hearing the testimony the court entered an order denying the motion and petition to set aside decree.

The decree for divorce,recited that the complainant appeared by Daniel B. Webb, her solicitor, and that the defendant having entered his appearance in writing and having failed to answer complainant’s bill of complaint in compliance with the standing rules of court, on motion of complainant’s solicitor, the court entered a default against the defendant for failing to answer, plead or demur to complainant’s bill of complaint and the same was taken as confessed.

The entry of appearance signed by appellant was entitled to the September term, 1928, of the city court and- is as follows:

“I, Charles E. Dickey, defendant in the above-entitled cause, do her-eby enter my appearance in said cause to the present. September, 1928, Term of said court, hereby waiving service of process of summons herein and consenting that any and all order may be made by said Court and entered in said cause, as fully and as completely as if I had been duly and: regularly served with process of summons at. least ten days before the first day of said present September, 1928, Term of said court.
(Signed) Charles E. Dickey, Defendant.
T. S. Morgan,
Solicitor for Defendant.”

The entry of appearance signed by appellant did not purport to authorize the entering of any default against appellant or for apy hearing of the cause without further notice to appellant. The record does not show that any rule was entered against appellant to plead or that there was any standing rule of court which would authorize- the- court: to enter a default upon the mere filing of appellant’s written appearance. The question of the power of the court to enter a default where a plain appearance is entered during term time is passed upon and discussed in the case of Flagg v. Walker, 109 Ill. 494, and it was held that, the case having been commenced in term time the defendant could not be compelled to submit to a trial’ of the cause at the same term.

In the case of Chatterton v. Chatterton, 132 Ill. App. 31, it was held that the entry of appearance which did not contain any condition waiving notice or consenting to the entry of a default had the same effect that service of process would have during the term at which the entry of appearance was filed; that the entry of appearance was simply a. substitute, for service of summons and stood in its place and that under the statute a defendant cannot be compelled to plead unless served with process ten days before the first day of the term to which the summons is returnable.

We are of the opinion that the trial court erroneously and prematurely entered default against appellant and that in view of the facts shown in this record as to the hearing and disposition of the divorce case it was the duty of the trial court to grant appellant’s petition to set aside and vacate the decree of divorce.

Accordingly, decree and order of the court below is reversed and the cause remanded with directions to set aside and vacate the decree of divorce entered in said cause.

Reversed amd remanded with directions.