text:
    Bessie E. Kippen, Appellee, v. Robert J. Kippen, Appellant.
    Gen. No. 40,574.

      Opinion filed June 28, 1939.
    P. F. Murray, of Chicago, for appellant; John T. Murray, of Chicago, of counsel.
    Jambs W. Breen, of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff sued defendant for services rendered as governess, nurse and housekeeper for the three minor children of defendant. A jury returned a verdict finding the issues against defendant and assessing plaintiff’s damages at the sum of $1,500. Defendant appeals from a judgment entered upon the verdict.

Plaintiff’s verified statement of claim alleges: “1. That at the request of the defendant she rendered services as governess, nurse and housekeeper to the three minor children of the defendant, Josephine, Gerald and Edward, from November 15, 1931 to June 3,1935; that the sum of fifteen dollars ($15.00) per week is a just, fair and reasonable compensation for the services rendered by her to the said defendant; that the total amount due her for such services, at the rate of $15.00 per week, is $2795.00. 2. Plaintiff further alleges that during said period of time she purchased clothing and food for the said three minor children at various times, the total amount of which exceeds $700.00. 3. Plaintiff further alleges that the total amount due her . . . is $3495.00.”

The affidavit of defense avers that “1. The plaintiff did not, at the request of defendant, render services as governess, nurse and housekeeper to the three minor children of defendant from November 15th, 1931 to June 3, 1935; that the sum of $15.00 per week is not a just, fair and reasonable compensation for the services alleged to have been rendered by plaintiff; that there is no amount due to plaintiff from defendant for the alleged services, as stated in Paragraph 1 of the Statement of Claim. 2. That plaintiff did not, at the request of defendant, purchase clothing and food for the three minor children, as alleged in Paragraph 2 of the Statement of Claim. 3. That defendant is not indebted to plaintiff for services alleged to have been rendered by plaintiff to defendant for the period from November 15, 1931 to June 3, 1935, in the sum of $3495.00; that he is not indebted to plaintiff in any sum whatsoever for any alleged services or alleged purchases of clothing and food, as set forth in the Statement of Claim filed herein by plaintiff. 4. That defendant has, at all times during the period alleged in the Statement of Claim, cared for, maintained, educated and supplied the necessary food and clothing for his said children and a place of abode for them.”

Defendant is the brother of plaintiff. Plaintiff is a graduate nurse, belongs to the Bed Cross, and is an Army Beserve nurse. By his first wife defendant had three children, Josephine, Charles and Edward. Plaintiff and her mother owned the premises, 11036 Indiana avenue, in joint tenancy and not as tenants in common. Defendant, his first wife, and their three children lived there with the mother and plaintiff. The mother was “stone blind” and plaintiff was also obliged to take care of her. Defendant’s first wife died in 1924. That plaintiff took care of the children from their birth until June 3, 1935 (at which time Josephine was 16 years of age, Charles was 13, and Edward was 11), is not disputed, and defendant conceded that he never paid plaintiff anything for her services in taking care of the children. The instant judgment awards plaintiff nothing for her services prior to November 15, 1931. Defendant married his second wife October 8, 1929. The mother of plaintiff and defendant died February 8)\ 1935. Defendant testified that he and his second wife “graciously” left the children with plaintiff after the marriage so that “they [his mother and plaintiff] would have an income, so they would have something to fall back on. They had no income whatsoever, except the rent from upstairs.” Defendant’s second wife was a telephone operator, regularly employed during all of the time in question. Plaintiff testified that after defendant remarried he left the children to her “to clothe and to shelter and to look after,” and that she “clothed them and fed them and took care of them”; that during the years in question she was kept busy taking care of the children and her mother, and was on that account unable to practice her profession. She testified that about June 3, 1935, “my brother asked me to sign over the property ... or he would take the children”; that she said to defendant, “You take your children. It is the first time you offered. ... If you take your children, you will take my bill. I had those children twelve years. I raised a little cripple that was a little incubator baby, that weighed a pound and fourteen ounces. ... I did not object to his taking them. They were his children”; that defendant said “that he would take the children so far away that I would never see them.” Plaintiff further testified that “they took the children when I didn’t sign over,” but “the children came back” to her. Defendant admits that plaintiff loved the children dearly, and the evidence conclusively shows that the three children loved plaintiff and that they were unhappy during the time they lived with the father and stepmother. Two of the children, Josephine and Charles, testified for plaintiff. Defendant testified that when he told plaintiff that he was going to take the three children away from her she said, “Before you and that witch get them you are married to, that hussy you are married to gets them, you will pay me handsomely.” Plaintiff denied making-this statement. Defendant did not deny plaintiff’s testimony that he told her that unless she signed over the property he would take the children away from her.

This case, like most cases that involve similar situations between the parties, caused bitterness between a brother and sister. Each party was represented by able counsel. Plaintiff’s testimony was corroborated, in part, by two of the children. Defendant was the sole witness for the defense.

The first item in plaintiff’s claim is for services as a governess, nurse and housekeeper for the three minor children from November 15, 1931, to June 3, 1935. Plaintiff testified that the services she rendered were reasonably worth 25 dollars a week. Anna L. Rick, a nurse, testified that 18 dollars per week would be a reasonable price for a housekeeper, governess and nurse who has not had much experience, but the reasonable charge would be 25 to 30 dollars per week where the party had education and experience. Defendant offered no testimony bearing on the question of what would constitute a reasonable charge. His main defense in the trial court and here as to this item in plaintiff’s claim is that she does not claim that she had an express contract with him for her services and that she is obliged to rely upon an implied contract; that the law is that “where family relationship exists, there is no implied contract to pay for gifts or services rendered by one member of the family to the other members of the family.” During defendant’s direct examination the following occurred: “Q. Did she at any time, or did you at any time request her to take care of the children? A. I made no such guaranty or request of any kind. ... Q. At any time during that period of time did you request your sister to render any services to those children? A. No, I made no such request. ’ ’ The principal ease relied upon by defendant in support of his position is Faloon v. McIntyre, 118 Ill. 292. There it was held that in the absence of an express agreement to pay for the support and services as between parent and child the law will presume that what one may do for the other is done gratuitously and as the prompting of natural affection; that where a father and mother reside in the family of their son-in-law for several years, without any express contract to pay for their support, and the facts and circumstances fail to show that any compensation was intended or expected to be given or received, but rather indicate that no charges were to be made on either side, the son-in-law will have no right to recover any sum for the support of his wife’s parents. The Faloon case, under the facts, is not applicable to the instant one. The same may be said as to several other cases cited by defendant. In Schweitzer v. Commissioner of Internal Revenue, 75 F. (2d) 702, the court says (p. 704): “. . . the later decisions of Illinois, as well as other states and text-writers, support the respondent’s contention that there was a duty resting upon petitioner to support his minor children in a manner commensurate with his position in life. Peters v. Industrial Commission, 314 Ill. 560, 145 N. E. 629; Panther Creek Mines v. Industrial Commission, 296 Ill. 565, 130 N. E. 321; Polokow Corporation v. Industrial Commission, 336 Ill. 395, 168 N. E. 271; Superior Coal Company v. Industrial Commission, 304 Ill. 320, 136 N. E. 762; Charbonneau v. Norton, 263 Ill. App. 341.” It is a principle of natural law that it is the duty of a parent to support and maintain his own children, and under certain circumstances the law will imply a promise on his part to reimburse anyone who renders support and maintenance. (See Charbonneau v. Norton, 263 Ill. App. 341, 346, 347; Mullally v. Lott, 162 Ill. App. 533, 534.) We cannot say, under all the facts and circumstances of this case, that the jury were not justified in finding that there was an implied promise by defendant to pay plaintiff for her services. She sued for $2,795 for her services, and the jury, apparently, allowed her $1,100, which amounts to approximately six dollars a week for the period from November 15,1931, to June 3, 1935. As we view the record this award was inadequate compensation considering the nature of the services rendered.

The second item in plaintiff’s claim is that she purchased clothing and food for the three minor children at various times, the total amount of which exceeds $700. We are satisfied that the jury were warranted in finding from plaintiff’s testimony that during the period in question she spent $400 for the maintenance and support of the children, in addition to what defendant contributed for their support. It is true that defendant testified that he paid large amounts to his mother and plaintiff for the support and maintenance of the children. Plaintiff denied his testimony in that regard and the jury believed plaintiff’s testimony that she was obliged to spend $400 for the maintenance and support of the children, and we see no good reason to disturb their finding. The testimony of the two children tends to support plaintiff’s evidence. The trial court by entering judgment approved the verdict of the jury.

We have considered several technical contentions raised by defendant and find them without merit.

The judgment of the municipal court of Chicago is affirmed.

Jibdgment affirmed.

John J. Sullivan, P. J., and Friend, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Joseph T. Harrington, Plaintiff in Error.
    Gen. No. 40,602.
    Opinion filed June 28, 1939.
    Harrington & McDonnell, of Chicago, for plaintiff in error; Bernard J. McDonnell, of counsel.

      Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Yarnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

This writ of error is sued out to reverse an order entered by Judge Green, one of the judges of the municipal court of Chicago, adjudging Joseph T. Harrington, an attorney at law (hereinafter referred to as defendant), guilty of a direct contempt of court and sentencing him to confinement in the county jail of Cook county for the term of two days.

The material part of the judgment order, entered November 15,1938, reads as follows:

“That on this day, during a-regular session of this Court duly convened, while the court was in open session in Branch No. 44 in the Criminal Court House of Cook county . . . hearing a cause pending and undetermined before this court entitled People of the State of Illinois vs. Carl Casperson, . . . the said defendant, Joseph T. Harrington, appeared before the bar of this Court, pushed aside the witnesses who were present before the court to testify in said case . . . and addressed the Judge of this Court, in a loud and boisterous manner pushing witnesses, litigants and attorneys aside and having no interest in said case whereupon the following colloquy took place between the Judge of this Court and the said defendant:

‘ ‘ ‘ Mr. Harrington: I would like to interrupt. After I left the court room—

“ ‘The Court: Step aside. I have my call, and I am hearing this case on trial. Mr. Bailiff will you have this counsel step aside?

“ ‘Mr. Harrington: Judge—

“ ‘The Court: I have my call, I would like to hear this case.

“ ‘Mr. Harrington: I want to address you on a matter that you did after I left the court room, in reference to my own matter.

“ ‘The Court: Are you going to step aside?

“ ‘Mr. Harrington: I want to address the Court.’ And thereupon the court directed the bailiff of this court to remove the defendant from the bar of the court, and while the said bailiff was attempting to remove said defendant as aforesaid the defendant pulled away from said bailiff and continued loudly to address the court; and thereupon upon the order of the court two bailiffs took the said defendant Joseph T. Harrington into custody and removed him from the court room.

“And the Court, upon consideration of the premises, further finds that said conduct of the said Joseph T. Harrington as aforesaid was wilful and of such a nature as to impede the due administration of justice, and that the said Joseph T. Harrington is guilty of a direct contempt of this Court.

“And now the said Joseph T. Harrington, being personally present in open court, it is ordered and adjudged that the said Joseph T. Harrington is guilty of a direct contempt of this court, and that he be confined in the County Jail of Cook County for the term of two days.”

Immediately after the entry of the above order the trial court entered the following order: “Motion defendant to file stay bond pending application for supersedeas to Appellate Court sustained. Bail $100.00 instanter. Stay of Mittimus 30 days.” Upon the same day the court entered the following order: “Failure to give bail instanter Mittimus to issue.”

The first contention raised by defendant, a practicing lawyer at the Chicago bar for many years, is that the judgment order is insufficient in that “it is wholly silent as to the circumstances surrounding defendant’s appearance and his attempt to address the Court; the matter which he desired to bring to the attention of the Court and the capacity in which he appeared.” We think this contention is a meritorious one. Defendant filed a motion, supported by several affidavits, to vacate the judgment order. The motion was denied. Certain averments in the affidavits that bitterly attack findings of fact in the judgment order as unfair and not warranted by the actual facts cannot be considered ; but the affidavits set forth that on the same day that the contempt order was entered and shortly before the proceeding that resulted in that order, defendant, as counsel in another proceeding, appeared before Judge Creen, who was substituting for Judge Rooney in the felony branch, and during the course of the hearing of that proceeding the State’s Attorney made application for the release of certain exhibits that had been impounded by Judge Rooney; that Judge Creen ruled that because the exhibits had been impounded by Judge Rooney the State’s Attorney would have to make his application before Judge Rooney; that after the first proceeding had been disposed of defendant left the court room of Judge Creen and shortly thereafter he learned that Judge Creen, upon an ex parte motion of the State’s Attorney, had entered an order vacating the said impounding order and ordering that the exhibits be turned over to the State’s Attorney. The contempt order contains no findings as to the first proceeding, nor any reference to it. Indeed that order does not even find that defendant was an attorney at law. Defendant argues that the gravamen of the offense charged against him is that he interrupted the orderly procedure of the trial court’s work, but that if the trial court had made full and fair findings of fact as to the first proceeding it would clearly appear that it was necessary for defendant to at once inform the court that irreparable injury would result to defendant’s client from the action of the trial court in vacating the impounding order and ordering that the exhibits be turned over to the State’s Attorney; that if defendant failed to immediately call the attention of the court to the situation the exhibits would be no longer under the control of the court and any later attempt by defendant to have the court correct its action would be useless.

It is clear from the judgment order that defendant was attempting to convey to the trial court the fact that an emergency existed that required the court’s immediate attention; and it is equally clear that the trial court would not allow defendant an opportunity to state the reason why he was addressing the court. Plaintiff does not dispute defendant’s claim as to what occurred in the first proceeding, but it argues that what happened there did not justify defendant in “interrupting a court engaged in the trial of a case especially after the court admonishes the interloper to desist. ” We cannot agree with this argument of plaintiff. All judges know that occasions arise when an attorney, in the interests of justice, must interrupt the court while he is engaged in hearing a cause. Emergency motions are not uncommon, and a trial judge has no right to refuse to hear one merely because he is trying a cause. Justice would sometimes be defeated if such a practice were followed. The good faith of an officer of the court must be assumed until the contrary appears, and when an attorney states to the court that he desires to present an emergency matter it is the duty of the court to acquaint himself sufficiently with the nature of the motion so that he may properly determine whether or not the interests of justice demand an immediate hearing. While it is the duty of an attorney to show proper respect to the trial judge, it is also the duty of the trial court to show due respect and consideration to an attorney, and not to manifest hostility toward him. (People v. Rongetti, 344 Ill. 107, 122.) By the Ancient Precedents contained in the Canons of Judicial Ethics, adopted by the American Bar Association, judges are reminded that “patience and gravity of hearing is an essential part of justice,” and that a judge should not “show quickness of conceit in cutting-off evidence or counsel too short.” (Reports of American Bar Association, Vol. 62, 1937, pp. 1123, 1124.)

While the findings of fact contained in a direct contempt order must be assumed to be true, an order committing- one for direct contempt in the presence of the court “should be a full, certain and complete recitation of all the material facts occurring at the time and constituting the offense so that the reviewing court may be able to determine whether or not the same amounts to a contempt.” (See People v. Salbar, 282 Ill. App. 506, 508.) In that case it was said (p. 509):

“It does not appear in the order whether the contemnor was appearing in court as a lawyer in a trial of any one of the cases which the court was hearing, or appearing as a witness, an interloper, or otherwise. From the order presented for our consideration, this court cannot visualize the circumstances and the scene presented at the time.” The argument of the State’s Attorney that we must treat defendant as an “interloper” demonstrates that the judgment order does not contain a full and fair statement of all of the material facts. From certain averments in the affidavit filed by defendant in support of the motion to vacate the contempt order, it is reasonable to infer that Judge Green, at the time of the proceedings that resulted in that order, was angry with defendant for having made serious charges against certain public officials, in the first proceeding, which charges Judge Green, apparently, believed to be entirely unwarranted; but if such was his state of mind it was his duty, nevertheless, to maintain his judicial poise, and not to deny defendant a reasonable opportunity to state his reason for addressing the court. Justice demands that the contempt order in this case be reversed and the cause remanded.

The judgment order should have contained, in addition to the findings of fact already in the contempt order, sufficient findings of fact as to the first proceeding to apprise us whether or not the trial court in that proceeding refused to vacate the impounding order and whether or not the trial court in the absence of defendant vacated the impounding order and ordered the exhibits turned over to the State’s Attorney. The judgment order should also have contained a finding as to whether or not defendant appeared as an attorney in the first proceeding. Without such additional findings of fact it cannot be fairly determined whether the trial court was justified in finding defendant guilty of direct contempt.

For the reasons stated herein the contempt order in this case is reversed and the cause remanded so that such further proceedings may be had in the trial court as are not inconsistent with the views expressed herein.

Contempt order reversed and cause remanded.

John J. Sullivan, P. J., and Friend, J., concur.


author: Mr. Justice Huffman

text:
    Minnie E. Hapke, Administratrix, Appellant, v. Ward T. Huston, Appellee.
    Gen. No. 9,375.
    Opinion filed June 28, 1939.
    Vernon J. Knox, of Crystal Lake, for appellant.
    David B. Josltn, of Woodstock, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This is a suit brought by appellant as administratrix of her deceased husband’s estate, to recover damages for his alleged wrongful death. Appellee owned a dairy farm in McHenry county. The deceased was living upon this farm under written lease, which in general provided that appellee lessor, and deceased, were to divide the profits from the farm and the increase in livestock, equally.

The lessee, Mr. Hapke, was injured by a bull on the premises on September 20, 1936, from which injuries he died. This suit was brought by appellant as administratrix to recover damages on behalf of herself (as surviving widow), and children for his alleged wrongful death. It resulted in a verdict for appellant in the sum of $5,000. Motion of the defendant for judgment notwithstanding the verdict was granted and judgment entered for defendant non obstante veredicto. Appellant has prosecuted this appeal from such judgment.

The material facts in this case are not in dispute. Appellee was a resident of Evanston in Cook county. The farm was operated as a dairy farm. The deceased lived upon the farm, together with his family, and operated it as tenant for appellee, from the latter part of 1933 until his death in September, 1936. The bull, used upon the farm when the deceased became tenant in 1933, was sold in the early part of 1935, and the bull which injured the deceased was purchased on February 19, 1935. It appears the deceased from time, to time, sold such cows as he did not think were profitable to the dairy business, and that he exercised his own judgment as to the cows so sold and the price therefor. Appellee does not appear to have known anything about the operation of the dairy farm nor to have given it any of his attention. His business agent and farm manager was one Kenneth C. Brown. Mr. Brown went with the deceased at the time the bull in question was purchased in February, 1935. The bull was taken to the dairy farm at the time of its purchase. The bull appears to have given no trouble nor manifested any bad temper until the spring of 1936. Up until that time, the deceased’s son had been handling the bull, but he states that in the spring of 1936, the bull became ugly and hard to handle and that his father took charge of it and from that time on handled it himself. It further appears that during the summer of 1936, the administratrix and her husband spoke to Mr. Brown, the farm manager, about the ugly temper of the bull. Following this, the farm manager and Mr. Hapke went together to a stock man and bought a younger bull. This was in the month of July, 1936. The new bull was brought to the farm. Mr. Brown states he said to the deceased that since they had the new bull, no doubt he would sell the old one, to which the deceased replied that he had decided to keep them both for a while; that he wanted to turn the young bull out with the young heifers and keep the old bull in the barn for the larger cows. Mr. Brown says he suggested to the deceased that if he was going to keep the old bull, he should keep him locked up and watch him carefully, to which the deceased replied that he would.

The evidence shows that the deceased did look after the bull in question and kept him safely locked and tied in the barn, except when he released him for service, and that at all times when he-was handling this bull, he used a pitchfork to make him behave, as well as having a ring in his nose to which a rope was attached. On the morning in question, the deceased had gone into the barn and released the bull and turned him out into the cowyard, whereupon the deceased turned his back toward the bull to close the barn door, at which time the bull struck him from behind, producing the injuries from which he died. The deceased’s son and appellant were at the barn when the accident happened. The son ran to his father’s aid with a pitchfork, whereupon the bull ran away.

Appellee and Ms farm manager Brown, were called as witnesses by the plaintiff. Appellee stated that he did not look after the farm and that Mr. Brown attended to all such matters and had the authority so to do. Appellee had owned the farm about 10 years. He did not know what breed the bull was and says he never saw it but once or twice. He stated* that Mr. Brown, who also lived in Evanston, visited the dairy farm on the average of once a week, and represented him and was authorized to act for him. Appellee says there had been different bulls on the farm, and that he knew about the purchase of the new bull some five or six weeks before the accident to Hapke. Brown was the only witness called on behalf of the defendant. His testimony is about the same matters as testified to by him as witness for plaintiff, which matters were also gone into by appellant and her son, in their testimony.

Appellant relies upon the rule of law that the keeping of an animal known to be vicious or likely to injure others, is, of itself, such negligence as will render the keeper liable in damages, for injuries done by such animal, as in the case of Ahlstrand v. Bishop, 88 Ill. App. 424. Appellee relies upon the rule that a landlord is not liable to a tenant for injuries caused by an ugly or vicious animal where the tenant had full knowledge of such characteristics, as in the case of Hosmer v. Carney, 228 N. Y. 73, 126 N. E. 650 (1920). In support of this rule, appellee further refers to 3 C. J. S. p. 1098, sec. 13a; 6 Am. Jur. p. 290, sec. 197. In this regard it is held in Talmage v. Mills, 80 N. Y. Supp. 637 (1903), that before a tenant on shares can recover for injuries inflicted by a vicious bull, left on the farm by the owner, he must show that such owner had knowledge of the animal’s viciousness and failed to disclose same to the tenant. The general doctrine appears to be that if the plaintiff knew of the ugly and vicious character of the bull, he is deemed to have assumed the risks incidental to its custody and may not recover. Donohue v. Frank E. Scott Transfer Co., 141 Ill. App. 174, 176, 177; St. Louis National Stockyards v. Morris, 116 Ill. App. 107, 109; Althardt v. Consolidated Coal Co., 165 Ill. App. 504, 506, 507.

Appellant seeks to avoid the above rule by the ease of Lettis v. Horning, 22 N. Y. Supp. 565 (1893). In that case, however, when the bull became ugly and vicious, and the defendant was notified of the fact, “he refused to consent to have the animal shut up, day or night.” He further refused to allow a ring to be placed in the bull’s nose, to which a rope or chain could be attached. The court found that he declined to consent for the plaintiff to take proper measures to prevent the bull from doing injury. The court found further that the plaintiff endeavored to induce the defendant to consent that he might take proper measures with the bull to prevent it from doing him injury, to which defendant refused. In the case at bar, the plaintiff’s evidence shows the deceased took whatever measures and precautions to insure his safety in handling this bull, that he desired. He had a ring in its nose with a rope attached thereto. The bull was continuously kept in the barn in a stanchion where he was confined and tied except when released for service, and the deceased handled the bull with a pitchfork. Thus plaintiff’s evidence clearly establishes the fact that the deceased was fully aware of the bad temper and vicious characteristics of the animal, and that he took such measures as he chose to guard against injury. There is no evidence that appellee or his farm manager Brown ever gave any directions or orders to deceased as to how he should keep or handle the bull, except Brown’s suggestion to deceased that he keep him locked up and watch him carefully. Brown’s first knowledge of the bull’s viciousness was received from the deceased and his family. On the morning in question, when the deceased released the bull from his stanchion in the barn and turned him out in the cow yard for service, he was acting wholly upon his own volition. He knew the characteristics of this animal, and so long as he was facing the bull with a pitchfork, he was successful in handling it without injury. It was when he turned to close the barn door that the bull struck him.

Under the facts in the case and law applicable thereto, no liability rests upon the appellee. The judgment of the circuit court is therefore affirmed.

Judgment affirmed.


author: Mr. Justice McSurely

text:
    Ella F. Bostwick and Continental Illinois National Bank and Trust Company of Chicago, as Trustees under the Will of F. M. Bostwick, Deceased, Appellees, v. Ella F. Bostwick et al., Appellees. Fisher T. Bullard, Appellant.
    Gen. No. 40,550.
    Opinion filed June 30, 1939.

      John F. Manierre, of Chicago, for appellant.
    John F. E. Hippel, Franklin Spencer Edmonds and Edmonds, Obermayer & Rebmann, of Philadelphia, Pa., for appellee Ella F. Bostwick.
    Gottlieb & Schwartz, of Chicago, and House, Gross-man, Vorhaus & Hemley, of New York, N. Y., for appellee Charles William Hlavac; Harry E. Smoot, of Chicago, and N. Ranson, of New York, N. Y., of counsel.
    Charles J. Breck, of New York, N. Y., for appellee Frances B. Mehmel.
    Harry Fleck, of Chicago, for certain appellees.
    Wilson & McIlvaine, of Chicago, for certain other appellees; William B. McIlvaine, Jr., and Kenneth F. Montgomery, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

The trustees of the last will and testament of F. M. Bostwick, deceased, filed a complaint seeking the construction of certain parts of the will. The particular question is whether a bequest to the “heirs” of three named daughters of the testator’s sister should be construed so that the surviving husband of one of the daughters, who died leaving no children, take his wife’s share, or should the share go to one of the daughters named, who is living, and the children of the other daughter who died. The trial court held that the husband of neither of the tw.o deceased daughters was included within the term “heirs” and that the undistributed income, amounting to approximately $7,000, should be distributed to the surviving daughter and the two surviving children of the deceased daughter.

Fisher T. Bullard, the surviving husband of Anna Bullard, claiming to be the sole heir at law of his deceased wife, appeals, contending he should receive the share to which his deceased wife would be entitled were she living.

F. M. Bostwick died May 23, 1929, and his will was admitted to probate July 3rd of the same year. The provisions of the will dealing with the residuary estate are as follows:

“IV. The balance of my property, real and personal, of every description shall be divided, one-half to be given to my wife (including therein $50,000 already given to her) to be hers absolutely, the balance to be placed in trust, the net income from which, after trustees expenses and compensation, to be paid as follows :—

1 ‘ One-half to my wife, Ella F. Bostwick, during her lifetime. One-half to my sister, Lizzie B. Wadley, or in the event of her death, then such portion of income shall be divided and paid equally to her three daughters, Anna Lillian Bullard, Frances B. Mehmel and Mary Emily Hlavac or their heirs.

“V. At the death of my wife the entire income from my estate shall go to my sister, Lizzie B. Wadley, or her heirs, in the manner set forth in Article IV hereof.

“VI. The trust shall continue for ten years, provided my wife is not living at the end of that period. If she shall still be living then the trust shall continue until her death when it shall be dissolved and the principal given to my sister, Lizzie B. Wadley, or in case of her death, divided equally between her three daughters, mentioned in Article IV or their heirs.” The last three words of Article IV — “or their heirs” — is the subject matter of this controversy.

The testator’s wife, Ella F. Bostwick, is still living and is receiving her half of the income. Lizzie B. Wadley, the sister of the testator, who by Article IV was to receive the other half of the income, died March 4,1936, thus terminating her life interest. Frances B. Mehmel, one of the three daughters of Lizzie Wadley, is still living. Mary Emily Hlavac died December 9, 1933, leaving surviving two children and a husband, Charles Hlavac, who disclaims any interest in the share of his deceased wife. Anna Lillian Bullard, an adopted daughter of Lizzie Wadley, died March 23, 1933; she never had any children and left her surviving Fisher T. Bullard, her husband, who is claiming her share as her only heir.

The other defendants, including Ella F. Bostwiek, testator’s widow, oppose the claim of Fisher T. Bullard upon the theory that “or their heirs” appearing at the end of Article IV does not mean persons designated under the statute of descent (ch. 39, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 110.193-110.204]) which includes husbands as heirs, but should be limited to blood heirs or descendants. Fisher T. Bullard’s theory is that the words “or their heirs” must be given a legal meaning under the statute of descent, and that he is, therefore, the only heir of Anna Lillian Bullard and entitled to her share. He also contends that the court improperly permitted the introduction of extrinsic evidence concerning the surrounding circumstances at the time the will was executed, which evidence substantially influenced the court in finding against his claim.

The evidence to which Bullard objects was intended to show who was the author of the language used in the will, the argument being that the language was that of a layman and not of one versed in the law.

The word “heirs” appears three times in the provisions of the will under consideration. Article IV provides that upon the death of testator’s sister, Mrs. Wadley, her share of the income of the trust shall be divided equally among her three daughters, naming them, “or their heirs.” Article VT provides that upon the dissolution of the trust the principal is to go to Mrs. Wadley, or in the event of her death to be divided among her three daughters, “mentioned in Article IV or their heirs.” But Article V provides that at the death of the testator’s wife the entire income shall go to Mrs. Wadley “or her heirs, in the manner set forth in Article IV.” Manifestly the word “heirs” as thus used in Article V refers to the three daughters named in Article IV and referred to in Article VI, and not to the husbands of such daughters who would not be heirs of Mrs. Wadley; So that, in view of the rule that words occurring more than once in a will are presumed always to be used in the same sense (Abrahams v. Sanders, 274 Ill. 452, 458) the sense in which the testator used the word “heirs” is in doubt, and, as a general rule, evidence to explain the meaning of doubtful language used in a will is admissible. (Dell v. Herman, 365 Ill. 261, 264; Rettig v. Zander, 364 Ill. 112, 120, and many other cases.

The evidence introduced as to the surrounding circumstances was intended to ascertain whether the will was drawn by a layman or by a lawyer, presumably versed in the technical meaning of the words used. It might be said in passing that the presumption that a lawyer, in drafting a will, invariably uses with mathematical precision the necessary technical words, is contradicted by daily observation and experience.

Counsel for Bullard argues that the words ££ or their heirs” were used in a strictly technical, legalistic sense, because the language of the entire will indicates it was drawn by a lawyer. His opponents argue to the contrary. The evidence on this point is somewhat ambiguous. Mrs. Bostwick was asked who prepared the will, and answered, “Charlie Wadley”; she was then asked who wrote the will, to which she replied, “Mr. Bostwick.” Mr. Bostwick was assistant general superintendent of the Pullman Company, not a lawyer. Charles A. Wadley, his sister’s husband, who apparently had something to do with the composition of the will, was a close friend of the testator but there is no direct evidence that he was a lawyer. But whether or not the verbiage of the will is that of a lawyer is not of decisive importance. The court properly admitted this evidence for what it was worth.

In Blade v. Jones, 264 Ill. 548, the court said in speaking of the construction of the words “heirs at law” used in a will drawn by a lawyer, that presumptively they are used in their technical sense, but that this presumption “has never been resorted to where to do so would be to defeat the intention of the testator as expressed in his will,” and that it is fundamental in construing wills that the court should, if possible, give effect to the true intention and meaning of the testator as expressed in the language used in his will, “and this is to be ascertained from a consideration of the will in all of its parts and details, bearing in mind the scope and plan of the testator as expressed by the whole will. ’’ (Citing cases.) While the words in question used in Article IV and VI might cloudily indicate the intention to use the word “heirs” as including the husbands of the named daughters, yet the same word, “heirs,” used in Article V excludes them, as manifestly neither Charles William Hlavac, the surviving husband of Mrs. Wadley’s daughter Mrs. Hlavac, nor Fisher T. Bullard, surviving husband of Mrs. Bullard, daughter of Mrs. Wadley, could be considered as the heirs of Mrs. Wadley. We hold the testator intended that in case of the death of any of the three named daughters, the heirs of Mrs. Wadley, only the heirs of Mrs. Wadley should take, which would exclude the husbands of the deceased daughters.

This construction finds support in Belleville Sav. Bank v. Aneshaensel, 298 Ill. 292, where it was said: “This court has not hesitated to hold that the widow or the husband will not be included under the designation ‘heirs’ or ‘heirs-at-law,’ notwithstanding the provisions of our statute, where the facts are such that we are not bound by any rule of law or of property to make a different ruling.”

Moreover, the testator designates what persons were covered by the words ‘ ‘ or her heirs ’ ’ by naming them in Article IV, and the husbands of none of the daughters named appear. Applicable is the language in Pollock v. Pollock, 328 Ill. 179, 192: “A technical construction of words and phrases will not be carried to the extent of defeating the obvious general intention of the testator.” (Citing cases.)

Among other points made by counsel for Fisher T. Bullard is that testator could not have used the word “heirs” as meaning “blood heirs” for the reason that Anna Lillian Bullard was an adopted daughter of the Wadleys. The mother and father and two brothers of the testator died in the yellow fever epidemic in Memphis, Tennessee, in 1877, leaving him with a young sister, Lizzie, to whom he devoted himself ; this sister afterward married Charles A. Wadley, a close friend of the testator. As we have said, apparently Wadley assisted the testator in composing the will. Two children were born to Mrs. Wadley and in 1901 the Wadleys adopted Anna Lillian who afterward married Fisher T. Bullard. Evidently the testator and the Wadleys treated the adopted daughter, Anna Lillian, as a blood relation, and there is every indication that in drawing the will she was so treated and given the same standing as was given the other two daughters. There is no suggestion that it was intended to distinguish between them in any way.

This is another case emphasizing how little help decisions are to a court in attempting to construe a will. As was said in Boyle v. John M. Smyth Co., 248 Ill. App. 57, 70, “. . . decisions upon will construction cases are of less value as guides or authorities than is the case in any other subject of the law. . . .” Counsel, representing different interests in this case, have largely attempted to demonstrate their respective claims by citing cases or presenting arguments tending to support their respective positions with mathematical certainty. This cannot be done. We can only conclude from the relations between the testator, his widow and Mr. and Mrs. Wadley, that the intention of the testator was that one-half of the income from the trust should go to those who inherited through his sister, Mrs. Wadley.

Other considerations lead us to the conclusion that the trial court correctly construed the will in holding that neither of the husbands of the two deceased danghters should be included within the term “heirs,” and that the decree of the trial court ordering distribution accordingly of the undistributed income in the hands of the trustees was proper, and it is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


text:
    Henry A. Klein, Appellant, v. Joseph Mangan and John Toman, Appellees.
    Gen. No. 40,610.
    Matchett, P. J., dissents.
    Opinion filed June 30, 1939.
    Rehearing denied August 9, 1939.
    Edward E. Newmann and Irving E. Sideman, both of Chicago, for appellant; Ode L. Rankin, of Chicago, of counsel.
    Whitty & McG-ah, of Chicago, for appellees; William E. Moran, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

The appeal from the decree in this case was taken directly to the Supreme Court, which, holding that no freehold was involved, transferred the cause to this court. Klein v. Mangan, 369 Ill. 645. We take the statement of facts from that opinion:

‘ ‘ The question at issue is whether a judgment creditor of the husbands of the owners of the equity of redemption in real estate (the husbands having joined with their wives in the execution of the mortgage foreclosed) may redeem from a sale under foreclosure within the statutory period allowed judgment creditors.

“Harriet Brody and Minnie Brody were seized of the fee simple title to certain lots in Cook county. These owners, on February 2, 1931, executed their note for $6000 in which their respective husbands, Samuel Brody and Louis L. Brody, joined, and to secure the note they all executed a trust deed conveying the property to a trustee. Default having been made, the trust deed was foreclosed, the premises were sold by the master to the plaintiff (appellant) and a certificate of sale issued to him and recorded, which he still owns. A deficiency judgment was entered against all four of the note makers, and the receiver continued in possession. No one sought to redeem within the initial statutory period of twelve months. On the last day of the succeeding three-months’ period within which judgment creditors might redeem, the appellee Joseph Mangan obtained a judgment by confession in the superior court of Cook county against the above named Samuel Brody and Louis L. Brody. An execution was issued thereon, which appellee Mangan placed in the hands of the sheriff together with the sum of $6557.50, being the amount of sale, interest, costs and charges accrued, for the purpose of mailing redemption of the property from the master’s sale under the provisions of section 20 of the Judgment act. (Ill. Rev. Stat. 1937, chap. 77, par. 20, p. 1900.) The sheriff accepted the money, issued a certificate of redemption which was recorded, and the sheriff then advertised a sale of the premises.

“Appellant filed his complaint against Mangan and the sheriff of Cook county for an injunction restraining the sheriff’s sale and praying that the purported redemption be declared void; that the injunction be made permanent; that appellee Mangan be restrained from asserting any right, title, interest or estate in the premises; that the master be directed to issue a master’s deed to appellant and that his title to the property be established and quieted from the claims of Mangan or anyone claiming under him, and for general relief. A temporary injunction was granted. After a" hearing on the complaint and answer, the trial court decreed that the redemption was valid, dissolved the injunction and dismissed the complaint for want of equity. ’ ’

That opinion finds that “The interests of Samuel Brody and Louis L. Brody in the premises are those merely of inchoate dower rights. Such a right, prior to becoming consummated by the death of the respective wives, is ‘a mere intangible, contingent expectancy, and not only is not an estate in land but does not even rise to the dignity of a vested right. ’ (Bennett v. Bennett, 318 Ill. 193; Goodkind v. Bartlett, 136 id. 18.) An inchoate right of dower is not such a right as can be enforced by any proceeding. Bigoness v. Hibbard, 267 Ill. 301.”

The question thus arises as to what, if anything, could be made subject to levy of an execution in the sheriff’s hands, or, is Mangan, a defendant, a “judgment creditor” entitled to redeem under sec. 20, ch. 77, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.171]. This section in short provides that a judgment creditor may pay off the certificate holder through the sheriff’s office, thus leaving the interests of the title holders subject to execution. The sheriff levies the execution but his sale and deed carry only the rights of the particular judgment debtor against whom the execution runs.

Applying this to the instant case, when the redemption money was received by the sheriff there was nothing upon which the execution could attach. The husbands had no interest in the property subject to execution, and any sale by the sheriff would pass nothing. If the sheriff had sold and given his deed to Mangan and the master had made his deed to plaintiff upon the theory that no redemption had been had, and the opposing titles had been tried in an action of ejectment, the court would have held with the master’s deed for the reason that the sheriff’s deed conveyed nothing because the judgment debtors had no estate to convey. As counsel for plaintiff correctly says in his brief, “This is the test of the right of the defendant in this case to redeem as a judgment creditor of the owners of inchoate, contingent dower rights in the lands mortgaged. The sheriff’s, deed would convey only what title the husbands had, and none other, which, it is seen, is nothing. If the sheriff could convey nothing by his deed, the judgment creditor could redeem nothing by his effort to redeem.”

Supporting this is Schroeder v. Bozarth, 224 Ill. 310, 318, where the husband and wife owned separate tracts of land which they included in a joint mortgage; there was a foreclosure and a judgment creditor of the husband redeemed all of the lands, receiving a sheriff’s deed; he went into possession and remained for some 30 years. It was held that the husband had only a life estate in his wife’s portion of the property sold and that the deed from the sheriff conveyed only the husband’s property and his life estate in his wife’s property, the court saying that “while the redeeming judgment creditor was forced to redeem from the foreclosure en masse, as the premises were sold under the foreclosure decree in that manner, he only acquired such title by such redemption and re-sale as Asa Bozarth had in and to the lands in controversy, which was a Ufe estate.” In Fischer v. Eslaman, 68 Ill. 78, title to the premises was vested in two persons as tenants in common; they executed a mortgage which was subsequently foreclosed and thé premises sold to the person holding the mortgage; subsequently a judgment was entered against Balls, one of the tenants in common; execution was issued and the requisite sum of money to redeem was paid to the sheriff, execution levied, the property sold and the sheriff’s deed issued. It was held that the sheriff’s deed conveyed no interest of the tenant in common with Balls since the judgment was against Balls only and the redemptioner merely acquired his interest, becoming a tenant in common with the person to whom the property had been sold by the master, the court saying, “It surely could not be supposed that because a party had a judgment against a particular individual he thereby became a judgment creditor of any and every body else whose property had been sold at master’s or sheriff’s sales, and had not been redeemed within twelve months. ...” In Meyer v. Mintonye, 106 Ill. 414, there was a foreclosure and after 12 months a redemption by a judgment creditor whose judgment had lapsed. It was held that the redemption sale conveyed no title and the sheriff’s deed was void. In Fitch v. Wetherbee, 110 Ill. 475, the court, in discussing the question of who might be a “judgment creditor” within the meaning of the act providing for a redemption, said it must be a judgment creditor of a debtor “whose property is the subject of contention among his creditors.” All of these eases are based upon the principle that a judgment creditor, to be entitled to redeem from a foreclosure sale must have an execution which may be levied on some tangible interest in the land susceptible of sale under an execution.

Counsel for defendants argue that the right of a judgment creditor to redeem does not depend upon any lien on the land bnt that this right is given to any judgment creditor of a mortgagor. Cases are cited in which judgment creditors of ‘ ‘ the mortgagor ’ ’ are entitled to redeem, but examination of such cases shows that invariably the word “mortgagor” is used to describe the owner of the land and not one having a dower interest only. Bigoness v. Hibbard, 267 Ill. 301, is cited by defendants. In that case it was held that a widow, who had joined her husband in his lifetime in a mortgage for the purpose of releasing her dower, may redeem from the mortgage “by the payment of the mortgage debt and have her dower in the land.” But in that case the dower right had been consummated by the death of the husband.

It is conceded that redemption statutes should be liberally construed, but this does not mean such a construction as will create new rights. It is significant, as stated by counsel for plaintiff, that no case appears in the books holding that a judgment creditor can redeem from sale property in which the judgment debtor has no interest subject to execution.

We hold that Mángan, the judgment creditor, has merely tendered a redemption which restores only an inchoate, possible right, which is no part of the land and which cannot be levied upon; that the tender was inoperative, and that plaintiff was entitled to his deed from the master in chancery.

The decree is reversed and the cause is remanded with directions to the superior court to award a decree to plaintiff in conformity with the prayer of the complaint, and for such further proceedings as are consistent with what we have said in this opinion.

Reversed and remanded with directions.

Matchett, P. J., dissents.

O’Connor, J., concurs.


author: Mr. Justice O’Connor

text:
    Celia Stollery, Appellant, v. A. A. Sprague and Britton I. Budd, Receivers for the Chicago Rapid Transit Company, Appellees.
    Gen. No. 40,553.

      Opinion filed June 30, 1939.
    Rehearing denied August 9, 1939.
    Frederick J. Bertram, of Chicago, for appellant; Ernest A. Eklund, of Chicago, of counsel.
    Gardner, Foote, Morrow & Merrick and James K. Miller, all of Chicago, for appellees; Walter M. Fowler, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants to recover damages for personal injuries claimed to have been sustained on account of the negligence of defendants in the operation of one of their elevated trains. There was a jury trial, a verdict and judgment in defendants’ favor and plaintiff appeals.

The record discloses that shortly after 2 o’clock on Sunday, December 29, 1935, plaintiff boarded an elevated train operated by defendant receivers at the Wilson avenue station; the train, consisting of three cars, was bound for Jackson Park on the south side of Chicago. As the train rounded a curve near the Willow street station about three miles south of Wilson avenue, plaintiff was standing holding to a strap. Other standing passengers swung against her causing her to release her hold and fall, as a result of which she claims she was injured. The evidence is further to the effect that when plaintiff boarded the train the seats were all occupied and it was necessary for her to stand and hold onto the strap; that as the train proceeded south more passengers boarded the car so that quite a number of persons were standing at and prior to the time of the accident.

Plaintiff was the only occurrence witness and she testified that the car gave a lurch as it rounded the curve near the Willow street station and she fell11 over and onto the man who was in front of me, and he helped me up”; that she immediately felt pains in her back but did not take the name of the man nor any other passenger; that she remained standing on account of the crowded condition of the car until the train reached Roosevelt road or 12th street; that when she reached her destination at 63rd and South Park avenue she walked down the stairs from the elevated station and took a cab to her sister’s home, 7456 Eberhart avenue, where she was going to visit; the cab driver assisted her into her sister’s home where she lay down on the davenport and. had “a terrible pain in her hip” for several hours; that she left her sister’s home that evening at about 9 o’clock, took a cab to the elevated station at 63rd street, rode home on the elevated, arriving there at about 10:30; that from that time on she was unable to do much work and on January 4th following called, a doctor. The doctor treated her until March 28th and it was stipulated that if he were present he would testify that upon examination of plaintiff he found she was suffering from “a sprain of the muscles and ligaments of the right hip joint and leg,” and that she complained of great pain which prevented her from walking; that she was confined to her bed for about three weeks.

Another doctor treated plaintiff beginning the latter part of March. He testified he examined her and found that “on pressure on the right lower back, especially on the lower part around the pelvis” and on the back of the right leg, she complained of considerable pain; that “There were no injuries except from pressure on the nerves.” On cross-examination the doctor testified that in making the examination he noted she had “a condition of the spine and pelvis that was due to something at the time of her birth. We call it a hereditary or congenital deformity of the spine. She was born that way. ’ ’

Defendants’ position was that the case was a blind one, and they called witnesses who operated trains at about the time plaintiff claims she was injured. Their testimony is to the effect that there was no unusual lurch and that no complaint was made about anyone being injured. Defendants first heard of the matter when, January 14, 1936, they received a letter from plaintiff’s counsel.

In her amended complaint plaintiff set up sec. 1157, Revised Code, 1931, p. 325, which provides that anyone operating cars on an elevated railroad shall furnish a sufficient number of cars to carry passengers comfortably and without crowding and that the passengers shall not exceed the seating capacity of the carriers; and it was alleged defendants violated this provision of the ordinance as well as another provision of the same ordinance making it unlawful to drive such trains at a high rate of speed; that this provision was also violated, and it was charged defendants “wilfully, recklessly and wantonly drove and caused said train to jerk and lurch with great violence,” as a result of which other passengers were thrown against her causing her to fall as a result of which she was injured.

Defendants in their answer denied that the ordinance was in full force and effect, but alleged that on the contrary it was invalid and not binding upon them.

Plaintiff contends that the verdict and judgment are against the manifest weight of the evidence, and in support of this counsel say the evidence shows that plaintiff was injured while a passenger on defendants’ elevated train without fault on her part, and that this is sufficient to raise a presumption of negligence on the part of defendants.

We are of opinion that whether defendants drove the car too fast around the curve, in view of the fact that there were passengers standing, so as to cause it to give a severe lurch, was a question for the jury. The testimony of defendants’ trainmen who operated the southbound trains (in one of which plaintiff was obviously a passenger) was to the effect that there was no unusual lurch as the train rounded the curve. It is common knowledge that all elevated trains in Chicago sway or lurch more or less in rounding curves, and that this is unavoidable.

Upon a consideration of all the evidence we are clearly of opinion we would not be warranted in disturbing the verdict of the jury confirmed as it was by the trial judge, all of whom saw and heard the witnesses, on the ground it was manifestly against the weight of the evidence.

Plaintiff further contends that the court erred in excluding the overcrowding ordinance above referred to. We are unable to agree with this contention. The power to regulate the speed and overcrowding of elevated cars has been withdrawn from cities by the passage of the Public Utility Act in 1913. Northern Trust Co. v. Chicago Rys. Co., 318 Ill. 402; City of Chicago v. Alton R. R. Co., 355 Ill. 65; City of Geneseo v. Illinois Northern Utilities Co., 363 Ill. 89.

Complaint is also made that the court erred in sustaining objections to questions put by counsel for plaintiff to one of the attending physicians which would tend to show a causal relation of plaintiff’s injuries to the pain she claims to have suffered. On the other side counsel for defendants contend that the questions asked the doctor called for no answer that would show a relation between the “alleged injuries and the ailments which the doctor found.” The two questions to which the objections were sustained are: “Q. Doctor, will you describe to the jury the functions of the nervous system, how the nervous system controls the muscles, and how it operates ?

“ Q. Will you describe how the functions of the body are controlled by the nervous system?” We think neither of these questions called for an answer as to whether, in the opinion of the doctor, there was a causal relation between plaintiff’s injuries, claimed to have been sustained as a result of the accident, and the conditions he found upon examination. Much of the doctor’s testimony we have not mentioned, but we think upon a consideration of all of it that plaintiff was not prejudicially affected even if it should be thought that the ruling was somewhat technical.

Complaint is also made that the court erred in refusing to give instructions 1, 2, 3, 4, 5 and 6 requested by plaintiff. No. 1 said that the “duty of care and of abstaining from injuring another” applied to the deformed and sick and weak as well as to the strong and healthy. By No. 3 it was sought to have the jury instructed that where a passenger train is overcrowded and the employees operating the train know of such condition it is their duty to exercise additional care commensurate with the dangers, etc. We think these instructions are covered by others given. The issues were simple and easily understood, and we are clear that the jury was not misled. Refused instructions 4 and 5 had to do with the overcrowding ordinance, which we have held was properly excluded, and it was therefore not error to refuse such instruction.

Complaint is also made to instructions 1, 2, 7, 8, 10, 11, 14, 15, 17 and 18 given at defendants’ request. By instruction 1 the jury was told that it was not required to believe a thing to be a fact simply because some witness had sworn to it if it believed from the evidence and conduct of such witness that his testimony was improbable. We think the instruction was not erroneous.

The substance of instruction number 2 was that before plaintiff could recover for any of the ailments complained of, she must show they resulted from the accident and not from other causes. The objection to this instruction is, we think, hypercritical.

The principal objection to instruction 7 is that it ignores the claimed negligence alleged as to violation of the city ordinance. From what we have said it is obvious the objection is untenable. By instruction 8 the jury was told that plaintiff was a competent witness, yet the jury had a right in weighing the evidence to take into consideration that she was the plaintiff, etc. This instruction has been approved in many similar cases. Instruction 10 also was a stock instruction to the effect that plaintiff must prove her case by a preponderance of the evidence; that if the evidence was evenly balanced or preponderated in favor of defendants the verdict should be “not guilty.” Obviously this instruction was proper.

It is said that instruction 15, although a stock instruction requiring the placing of the burden of proof upon plaintiff, specified 4 things that plaintiff must prove by a preponderance of the evidence before she could recover, the fourth of which was that the negligence, if any, “was the proximate direct cause of the plaintiff’s injury. ” It is said this instruction might be proper in some personal injury suits but not in those involving common carriers where the suit was brought by a passenger, etc. We-think the objection is untenable.

By instruction 17 the jury was told that while defendant company was required to exercise the highest degree of care for the safety of its passengers reasonably consistent with the practical operation of its train, yet defendants were not insurer of the absolute safety of the passengers, and that if it had performed all its legal obligations to its passengers by exercising such care there could be no recovery. We think there is no merit in the objection.

Instruction 18 told the jury that if it believed from the evidence that plaintiff was injured as the result of a mere accident without negligence on the part of plaintiff or defendants, it should find defendants not guilty. We think it obvious that the instruction was entirely proper.

We have examined all the other instructions and find that none of them is reversibly erroneous; nor was there any such error in refusing any of the tendered instructions.

The court gave 7 instructions at plaintiff’s request and 16 requested by defendants. We think the objection made by plaintiff, that the court gave an excessive number of instructions on behalf of defendants is well taken. Generally a less number of instructions is more helpful to the jury, but upon a consideration of all of them we think the verdict and judgment ought not to be disturbed.

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

Judgment affirmed.

.Hatchett, P. J., and HcSukbly, J.? concur.


author: Mr. Justice Edwards

text:
    Violet Smith, Appellant, v. Monumental Life Insurance Company, Appellee.
    Opinion filed July 21, 1939.
    T. A. 0’Couhor, of East St. Louis, for appellant.
    Pope & Driemeyer, of East St. Louis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Plaintiff brought suit to recover on an insurance policy in the sum of $150, issued by defendant upon the life of her father on August 29, 1936, he afterward dying on April 7, 1938; the complaint being in the usual form.

Defendant answered, inter alia, that the policy expressly provided that it was entered into by defendant “in consideration of the representations in the application for this policy, which are hereby made a part of this contract.” The answer further averred that the insured therein warranted that he never had heart disease and had never been treated therefor, but that such statement was untrue.

To the answer plaintiff replied that although the insured had been treated by a physician about May 9, 1936, the same being prior to the issuance of the policy, who examined him and found that he was suffering from a heart ailment, that such physician did not inform the insured of such fact, and that at the date of the issuance of the policy the insured was apparently in good health and unaware of any condition of ill health at such time.

Defendant moved for judgment on the pleadings and the motion was argued and by the court taken under advisement; whereupon the plaintiff moved for and was allowed to dismiss the suit. Plaintiff at once brought another action in the same court, on the same policy, the complaint being the same as the one filed in the first suit. Defendant moved to vacate the order of dismissal, which motion was sustained, the order of dismissal set aside, and the cause reinstated. Thereafter the court sustained the said motion for judgment on the pleadings and entered judgment for deféndant in bar of the action. Plaintiff appeals from both rulings of the court.

As to the order setting aside the former order of dismissal, the law is that a motion to set aside a non-suit or dismissal is addressed to the discretion of the trial court, and its ruling thereon will not be disturbed except where such discretion clearly appears to have been abused; 18 Corpus Juris 1172, sec. 67. We see no reason upon this record to hold that the court acted imprudently in allowing such motion, and its ruling in that behalf is sustained.

The insured’s warranty as to sound health and free-" dom from heart disease was an integral part of the contract of insurance and must have been true as a fact to justify a recovery on the policy; Spence v. Central Accident Ins. Co., 236 Ill. 444; Metropolitan Life Ins. Co. v. Moravec, 214 Ill. 186. If the representation was false it avoided the policy regardless of whether the insured knew that he was afflicted with a heart disorder or not. It is the fact of the truth of the warranty which is decisive, and if false there can be no recovery however innocently it is made; Continental Life Ins. Co. v. Rogers, 119 Ill. 474.

The trial court correctly gave judgment for defendant on the pleadings.

Judgment affirmed.


text:
    Mrs. Claude Reed, Appellant, v. Alton Water Company and City of Alton, Appellees.

      Opinion filed July 21, 1939.
    G. Edmond Cook, of Madison, for appellant.
    Wheeler, Oehmke & Dunham, of East St. Louis, for certain appellee; E. Fred- Gerold, Jr., of East St. Louis, of counsel.
    Frank W. Tunnell, Corporation Counsel, for certain other appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

During the winter of 1935-1936, which was severely cold, a water meter of the Alton Water Company became frozen and as a consequence the escaping water ran into Doris street and thence down a hill to where Doris street intersects Broadway. Here the accumulating water froze and formed an ice coating over the pavement of about six inches in depth, the surface of this ice being rough and bumpy and more or less honeycombed with holes.

On February 25, 1936, plaintiff, together with her husband and child, were visiting at the home of Earl Henry in Wood River. At about seven o’clock in the evening they started for Alton, Earl Henry driving the car, and with him in the front seat was plaintiff’s husband, Claude Reed. The plaintiff, Mrs. Reed, occupied the rear seat with her baby and two children of Henry. Shortly before they reached the intersection of Broadway and Doris streets another car, driven by Edwin Rhodes, passed them; the latter reduced his speed when he saw the ice hummocks, and had just gotten his two front wheels on the ice when the car driven by Henry ran into the rear of his car.

As a result of the collision Mrs. Reed suffered various injuries and was taken to a hospital for treatment. She afterward brought suit against the city of Alton and the Alton Water Company to recover damages for the injuries so sustained. A jury found the issues of fact in favor of both defendants, a motion for a new trial was overruled, and judgment entered upon the verdict, from which plaintiff has appealed.

Plaintiff urges that the verdict is contrary to the weight of the evidence, while defendants contend that she did not prove that she was, just prior to and at the time of the collision, in the exercise of due care for her safety.

It appeared that there was a street light at the intersection and that the accumulated ice was visible for some distance; that when Rhodes, in reducing his speed, pressed upon the foot brake, it caused the stop light on the rear of his car to become illuminated; that same might have been seen by the plaintiff, and that she did not warn the driver, Henry, as to the icy condition of the pavement, or the presence of Rhodes ’ car just ahead of them, and admonish him to slow down.

A further serious question was whether or not, at the time, Henry was intoxicated. The proof shows that Beed had been drinking, and, as Henry says, he thought he had better take him home; that about four o’clock p. m. Reed stated that he wanted to go down town for another drink; that he and Henry went out together, and that they did not return until about seven o’clock, when they started for Alton. Henry, upon examination in chief, stated that he drank no liquor that day; however, the proof shows that after the occurrence he was taken to the police station and locked up for the night; that he refused to give his name to the officers, was loud and boisterous the greater part of the night, and that he created a disturbance. Three police officers with a wide experience in the observation and handling of intoxicated persons, who saw and heard him and observed his condition, stated that he was drunk, one of them smelling liquor on his breath; in addition it appeared that Henry, while driving to Alton, killed Ms engine on a hill and allowed the car to roll down hill to a filling station where he spent about 10 minutes in an unsuccessful effort to start the car; that a person in another car offered to and did push the Henry car for about two blocks, and that -when he ceased doing so Henry pulled to the curb; that he then remembered or was reminded that the reason for his inability to start his car was due to Ms failure to turn on the switch, and that directly afterward he threw on the switch and without difficulty started the car.

Mrs. Reed testified that her husband was drunk at the time, but as far as she knew Henry had not been drinking. John Pinta, a bystander at the time of the collision, stated that he was about five feet from Henry, that he did not stagger, and “was not drinking that I know of.” Mrs. Reed testified that her husband was not drunk before he left with the Reeds for Alton. It appeared from the police records that the occurrence took place about half past nine o’clock, and that Henry was brought to the station 30 or 40 minutes later.

Whether or not Henry, during the drive from Wood River to Alton, was under the influence of liquor was a fair question for the jury, as will be seen from his conduct and manner of driving, his failure to remember that the switch of his car was turned off, his trying unsuccessfully for 10 minutes to start same and then, when he recollected or it was suggested to him. that he turn on the switch, he did so and at once started; his trip down town with Reed when the latter went avowedly to secure more liquor; the fact that they were gone two hours or more; that Reed was admittedly drunk, and that Henry, about a half hour following the collision, at the police station demeaned himself after the manner of an intoxicated person and was locked up until morning. All these various circumstances constituted abundant proof to justify the jury in finding" that Henry was drunk at the time of the accident.

Plaintiff had the burden of proving that she was not guilty of negligence which proximately contributed to cause the collision, and while the negligence of Henry, the driver, could not be imputed to her, still she was required to show that she was in the exercise of due care for her own safety. Whether she used such care, under the circumstances, in not noticing the car ahead of them until about to collide with it, or failing to note the condition of the street, and not warning the driver as to each of such facts, her riding in a car with a driver, after dark, who is proven to have been intoxicated at the time, were all circumstances for the consideration of the jury, and we think their finding was warranted by the evidence.

It is further contended that the trial court erred in giving to the jury certain instructions tendered by defendants. We have examined the charge and find that the objections made are technical. We think the instructions, as a series, were a fair exposition of the law pertaining to the case and where such is true the charge is sufficient; People v. Lawson, 331 Ill. 380; People v. Storer, 329 Ill. 536.

Lastly it is asserted that error was committed in permitting defendants’ witness Harry Young to testify that the water company had several hundred frozen mains and meters during the winter in question. We have examined the abstract as to such matter and find that plaintiff did not object on the trial to such testimony, hence she cannot be heard to complain on appeal; Postal Telegraph-Cable Co. v. Likes, 225 Ill. 249.

From the record we are satisfied that the verdict and judgment represent the substantial justice of the case, and where such is true the judgment must be affirmed; Ford v. Ford, 257 Ill. 341; Beseler v. Stephani, 71 Ill. 400.

Judgment affirmed.


text:
    Joseph Celner, Appellee, v. Tirrie O. Prather, Administrator of Estate of Julian Dyboski, Deceased, Appellant.
    Gen. No. 9,393.

      Opinion filed August 7, 1939.
    Ralph S. Zahm, of Rockford, for appellant.
    Carl A. Swenson, of Rockford, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellee brought this suit for personal injuries sustained in an automobile accident while riding as a guest of appellant’s decedent, Julian Dyboski. Appellee and two young ladies were riding with the deceased in his automobile upon State highway No. 2, enroute from Rockford to Oregon, Illinois. The accident happened at about 11:30 on the night of May 26, 1937, at a place a few miles north of Byron, Illinois. The automobile which the deceased was driving, hit the end of a concrete abutment adjacent to a culvert which crossed the road, wrecking the car, killing the driver thereof, and injuring appellee and the two young-ladies.

Appellee brought this suit for damages for his injuries sustained, claiming that the deceased driver was operating the autmobile in a wilful and wanton manner and that he sustained his injuries as the result of the wilful and wanton misconduct of the deceased, while riding as his guest. Appellee further alleges that he requested the deceased to drive the car more slowly and carefully, which the deceased refused to do; and that it was dark and raining and the pavement was wet.

The young ladies in the car did not testify, and there is no testimony in the case regarding the accident, by any witness who was present at the time. Dr. Moffatt and Dr. Culhane testified regarding appellee’s injuries. Frank Carmak, who was engaged in the automobile salvage business, testified regarding the condition of the car after the accident. Stanley Musialek, an automobile mechanic, also testified regarding the condition of the car following the accident. Orville .Vakener, an undertaker, and Max Weston, an attorney, testified as to the conditions they found existing following the accident. There is no dispute with respect to the fact that appellee was riding as a guest in the deceased’s automobile, that the accident occurred, and that appellee was injured. The only witnesses who testified, were called by the plaintiff below, and their testimony was concerning the existing conditions following the accident.

The evidence shows that it had been raining and the highway, at and near the place in question, a winding road. The evidence further discloses that the automobile was totally wrecked; that the two young ladies were severely and painfully injured; that appellee was injured; and the driver of the car killed. As previously stated, no occupant of the car testified regarding the accident. The facts before the jury were such as above indicated. There is nothing in evidence to disclose what was said between appellee and the deceased regarding the operation of the automobile, or in fact, in what manner the • automobile was being operated. The only thing the evidence discloses is that it struck the concrete abutment with great force and violence. Whether this was the result of the deceased’s wilful and wanton misconduct, or whether it might have resulted from mechanical causes connected with the car, or was the result of deceased’s negligence, cannot be determined from the evidence. Appellee urges that the force of the impact of the automobile with the concrete culvert, and on the opposite side of the highway from which the car was traveling, is sufficient evidence to establish wilful and wanton misconduct on the part of the deceased. Proof of a mere possibility is not sufficient. A theory cannot be said to be established by circumstantial evidence, unless the facts are of such a nature and so related, as to make it the only conclusion that could reasonably be drawn. It cannot be said one fact can be inferred, when the existence of another inconsistent fact can be drawn with equal certainty. From the evidence in this case there is no way to determine if the accident was the result of wilful and wanton misconduct on the part of the deceased, or from some unexpected mechanical cause over which he had no control, or such an accident as might have been the result of ordinary negligence.

Appellant assigns error upon the court’s refusal to grant his motion for a directed verdict and for judgment notwithstanding the verdict, based upon the ground that the evidence in the case was insufficient to establish wilful and wanton misconduct on the part of the deceased. Parties may at separate times produce different evidence on the same issue. Appellant assigns further error with regard to the overruling of the motion for a new trial, based upon the same reason as assigned with respect to the above motions. With this last point urged, we are in accord. Under the facts in the case, the trial court should have granted a new trial. The judgment is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Board of Education of Grant Community High School District No. 121, Lake County, Appellant, v. Board of Education of Richmond-Burton Community High School District No. 157, McHenry County, Appellee.
    Gen. No. 9,420.
    Opinion filed August 7, 1939.
    Charles E. Jack, of Waukegan, and Richard Fi Locke, of Glen Ellyn, for appellant.
    Floyd E. Eckert, of Woodstock, and Arthur G. Waite, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This was a suit by appellant district against appellee district for the collection of tuition money. Appellee district filed its motion to dismiss the complaint, which motion was in the nature of a demurrer. The court sustained the motion to dismiss. Appellant has prosecuted this appeal from the order of the court sustaining the motion.

An order merely sustaining a demurrer to the complaint, and upon which no judgment is entered, is not a final adjudication. Freeman on Judgments (5th ed.) vol. 2, p. 1512, par. 717. This rule is observed in the case of Trebbin v. Thoeresz, 316 Ill. 30, 32; Barber v. Wood, 318 Ill. 415. In each of the above cases it is stated that under such circumstances, the court will of its own motion dismiss the appeal. It is further stated by Freeman in the paragraph above referred to, that a judgment for costs only, without a determination of the cause, is not a final judgment. This principle is announced in Williams v. Huey, 263 Ill. 275. Where a motion to dismiss a complaint, which is in the nature of a demurrer, is sustained, for such ruling to become final, a judgment should be entered for the defendant to the effect that the plaintiff take nothing by virtue of such action and that the defendant go hence without day, or words of similar import and meaning. Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200. This same principle is announced in the cases of County of Franklin v. Blake, 257 Ill. 354; Williams v. Huey, supra, and Prange v. City of Marion, 297 Ill. App. 353.

The appeal herein is dismissed.

Appeal dismissed.


author: Mr. Justice Wolfe

text:
    Mildred R. Duggan, Executrix of Estate of Kate O’Brien, Deceased, Appellant, v. Joseph Kupitz and Frank McCarthy, Appellees.
    Gen. No. 9,442.
    Opinion filed August 7, 1939.
    John V. Clinnin, of Chicago, for appellant.
    Charles Gr. Seidel, of Elgin, for appellee Frank McCarthy; John E. Toomey and James C. O’Brien, Jr., both of Chicago, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

This case comes to this court on an appeal from an order of the circuit "court of Kane county vacating a judgment that has heretofore been entered in said court by confession on a note wherein Kate 0 ’Brien was the plaintiff and Joseph Kupitz and Frank McCarthy were the defendants. The note is as follows:

‘ ‘ $1000.00 Hampshire, Ill., May 26,1923

‘ ‘ Two years after date, for value received, we promise to pay to the order of

Kate O’Brien

One Thousand 00/100 Dollars at the State Bank of Hampshire, with interest at 7 per cent, per annum payable semi-annually after date until paid.

“And to secure the payment of said amount I hereby authorize any attorney of any Court of Record, irrevocably, to appear for me in such Court, in term-time or vacation, at any time hereafter, and confess a judgment without a process in favor of the holder of this Note for such amount as may appear to be unpaid thereon, together with the costs and Reasonable dollars attorney’s fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution of such judgment, hereby ratifying and confirming all that my said attorney may do by virtue hereof.

‘ Cora M. Kupitz

Joseph C. Kupitz

Frank A. McCarthy.

Postoffice Gilberts, Ill.

No...............”

It will be observed from an examination of the note that it was signed by three parties, judgment taken against two. .

It was stipulated at the hearing of the case that at the time the judgment was confessed on said note, Cora M. Kupitz, one of the signers of the note was dead. After the judgment was taken, the defendants filed a motion to vacate and set aside the judgment. They alleged that the court was without jurisdiction to enter the purported judgment against Joseph C. Kupitz and Frank A. McCarthy, because the note is the joint undertaking of Cora M. Kupitz, Joseph C. Kupitz and Frank A. McCarthy, and that the warrant of attorney, in the note upon which judgment was entered by confession, is the joint undertaking of Cora M. Kupitz, Joseph C. Kupitz and Frank A. McCarthy and does not authorize the taking of a several judgment against two of the makers. The motion also stated that Cora M. Kupitz, one of the signers of the note, had died prior to the taking of the judgment and by reason of her death, the warrant of attorney, in said note thereupon, became revoked. The case was set for a hearing and the court found in favor of the defendants and entered an order vacating the judgment and quashed the execution that had been issued. It is from this order that the appeal is prosecuted.

The court, by his order, found that the note and warrant of attorney to confess judgments were the joint obligations of the three signers of the note and a judgment could not be taken against two of the signers. This is the main issue to be decided in the case. No authority has been cited where the note in question is in the precise language as in the present one. There can be no doubt that the note itself is a joint obligation of the three persons. The note is on the printed form, the word “I” is stricken out and the word “We” written above it. In the power of attorney, the word “I” is still in the note and perhaps it was an oversight of the scrivener that it was not stricken out and the word “We” inserted. The appellants cite the case of Farmers Exchange Bank of Elvaston v. Sollars, 353 Ill. 224, as sustaining their contention that this is a joint and several obligation. An examination of the note and warrant of attorney in that case discloses it is entirely different from the one in question and the court. states that from an examination of the note and warrant of attorney, it can easily be seen that it was intended to be a joint and several obligation. Applying the same reasoning to the present case, it can readily be seen that it was the intention of the parties that it should be the joint obligation, both in the note and warrant of attorney.

In the case of Barron v. Kimball, 124 Ill. App. 268, the facts were very similar to the one we are now discussing. The court there held that the lease and warrant of attorney to confess judgment, was a joint obligation and a judgment against one of the signers was void. Saulpaugh v. Born, 22 Ohio App. 275, 154 N. E. 166. The case of Mayer v. Pick, 192 Ill. 561, is perhaps the leading one on the subject in Illinois. It is there expressly held that a judgment against one signer of a note and warrant' of attorney, when the warrant of attorney is joint, is void. It is our conclusion that the note and warrant of attorney in this case are the joint obligation of the three signers of the note and the judgment by confession was void.

The appellant seriously contends that the court was without jurisdiction to hear the motion to vacate this judgment because the appellee did not file an affidavit, and state that they had a meritorious defense to the action, as is usually required to open up a judgment. Where a judgment is entered by confession without jurisdiction of the defendants, it will be considered absolutely void for want of power to confess it. A motion to vacate such a judgment is not addressed to the equitable powers of the court. It is not necessary for the mover to file an affidavit of merits, but he needs only to call attention of the trial court to the lack of jurisdiction to enter the judgment. Genden v. Bailen, 275 Ill. App. 382.

The judgment of the trial court should be affirmed.

Affirmed.


text:
    First State Bank of Shannon, Appellee, v. Anna I. Harter, Appellant.
    Gen. No. 9,417.
    Opinion filed August 18, 1939.
    5. D. Crowell, of Oregon, for appellant.
    R. M. Baton, of Mt. Carroll, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This appeal arises from a trial of the rights of property. Boyd Kreamer was the owner of an automobile upon which appellee bank held a chattel mortgage to secure his note in the sum of $300. Kreamer had an accident with this automobile in which the same was badly wrecked. Following the wrecking of the car, he went to the Shindle Motor Company and purchased a new automobile. He states he traded the old car in on the new one. It does not appear how much trade-in allowance was given him on the old car in the purchase of the new, nor does it appear how much he paid for the new one. At any rate, he received a clear bill of sale for the new car from the motor sales company, and upon such bill of sale, he made application to the secretary of State for license and certificate of title for the new automobile. This application was made under oath and discloses that there were no liens on the car. Upon such application, the secretary of State issued license and certificate of title to Kreamer for the new car, disclosing him to be the owner, that no liens existed thereon, and that he had been duly registered in the office of secretary of State as the lawful owner of the automobile, free from any lien.

After his purchase of the new car, Kreamer went to appellee bank where the bank issued to him a conditional sales contract for the purchase of same, which contract he signed under the designation of purchaser. At the same time it took from him an extended form of note for $300, such as is common to conditional sales contracts. Each instrument fully identified the other.

Appellant was a judgment creditor of Kreamer, and after his purchase of the new car, caused execution to issue upon which the sheriff made levy. This trial thereafter ensued between appellee bank as claimant and appellant as judgment creditor. The trial court found the issues for the bank.

The Uniform Sales Act (ch 121½, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 121.05 et seq.]), with reference to conditional sales contracts, clearly indicates that it is intended to operate as between the seller and the buyer of goods. The word “seller” as used in the act denotes ownership of the goods sold in the person making the sale, or an authority and power in such person to make the sale for the true owner of the goods sold (sec. 23 of act [Jones Ill. Stats. Ann. 121.27]). This conditional sales contract contained the usual and customary title retention clause. Title cannot be retained in one in whom title never existed. It is the purpose and intent of the law in providing for conditional sales contracts to protect the rights of the seller in the property sold. It is not within the intent or contemplation of the act that such contracts shall supplant or assume the legal identity of chattel mortgages. They are separate and distinct instruments and governed by separate and distinct acts. The bank claims that its lien on the first automobile is carried over to the new automobile. We are not here concerned with rights of the bank as between it and Kreamer. The bank could not well sell or convey what it did not own. Kreamer received a clear bill of sale for the car from the retail dealer. It was upon this instrument, together with his application to the secretary of State, that he received his certificate of title for the automobile.

The two prime essentials of a conditional sale are that the title to the goods sold must be retained in the seller, and that payment of the purchase price, or some part of it, is to be made at stated time or times in the future, whereupon the title ipso facto will pass to the buyer. Whatever the form given the promise to pay may be, it is obvious that it has its origin with and is a part of the contract of sale. With respect to Kreamer’s indebtedness to the bank, it had its remedy upon the chattel mortgage on the old car and against him upon the note. We do not consider the bank to be such a seller of the automobile in question as contemplated by the conditional sales act, nor that by virtue of such act, it could, as a creditor of Kreamer, execute such an instrument as it did in this case, and thus defeat appellant’s rights.

Judgment of the county court is reversed and judgment entered in this court for appellant, finding that the right of property in dispute is in her. Judgment here against appellee claimant for costs in this court and in the trial court.

Judgment reversed and judgment entered in this court.