author: Mr. Presiding Justice

text:
    The People of the State of Illinois, Defendant in Error, v. Barney Solomen et al., Plaintiffs in Error.
    Gen. No. 33,961.

      Opinion filed May 19, 1931.
    Thomas D. Nash, Michael J. Ahern and James J. McDermott, for plaintiffs in error.
    John A. Swanson, State’s Attorney, for defendant in error; Henry T. Chace, Jr., Edward E. Wilson and C. E. Lounsbury, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice

Scanlan delivered the opinion of the court.

. The defendants, Barney Solomen, Adolph Abernathy, Frank Harkelroad, William McLarin, Bernard P. Cooney, James Dorsey, Frank Smith, Frank Wittick, Linder Wilkinson and John Huntzinger were indicted for conspiracy and all found guilty by a jury.

Solomen, Abernathy, Harkelroad, McLarin and Cooney were fined $500 each. Dorsey, Smith and Huntzinger were each sentenced to six months’ imprisonment in the county jail and fined $500 each. Wittick and Wilkinson were each sentenced to imprisonment for one year in the county jail and fined $1,000 each. Judgment was entered on the verdicts and all of the defendants have sued out this writ of error.

The indictment consisted of six counts.- Count 1 charged a conspiracy to make and keep a fraudulent poll list and to aid and abet the judges and clerks of election to fail, refuse and neglect to perform their duties, etc.; count 2, a conspiracy to make a false return and statement of the number of votes cast, etc.; count 3, a conspiracy to open the ballot box and remove ballots therefrom and count ballots not cast by electors, etc.; count 4, a conspiracy to forge and counterfeit the indorsement of the initials of the judges of election, etc.; count. 5, a conspiracy to steal the poll list; and count 6, a conspiracy to steal the official blank ballots and to mark same and to count same, as so marked, as ballots cast by electors, etc. The defendants Solomen, Abernathy and Hqpkelroad were judges of election, and McLarin and Cooney, clerks of election, and together they constituted the election board of the 11th precinct of the 27th ward of the City of Chicago.

As we have concluded, after a painstaking consideration of the record in this case and the errors assigned, that the judgment of the criminal court of Cook county must be reversed and the cause remanded, and as the case may be tried again, we purposely refrain from analyzing and commenting upon the evidence. We shall therefore mention only such facts as are necessary in the consideration of errors assigned. The poll book of the precinct showed that there were 316 names of voters who were entitled to vote at the election in question. During the progress of the voting on the day of the election the election officials claimed that the ballot box was filled, and one of the defendants rolled a barrel up to the table on which the ballot box was standing and one of the judges then opened the box and the ballots therein were dumped into the barrel. The barrel was then rolled into an “empty voting booth” and the box was then locked, and the balloting proceeded. At the close of the election the ballot box was opened and the votes contained therein were dumped upon the table. The barrel was then rolled to the table by one Shapiro, and the ballots contained therein were also dumped upon the table. A count showed that there were then upon the table 716 ballots. The election commissioners’. office was notified of the situation and shortly thereafter several men from that office arrived. Thereafter the work of counting the ballots proceeded and the election officials made returns to the election commissioners that 716 ballots had been cast. It seems to be undisputed that the men from the election commissioners’ office told the precinct election officials that the entire number of ballots found should be counted. That there was an attempt made by some person or persons to violate the election laws was conceded by the defendants. All of the defendants seriously contested the charge made against them and undoubtedly the evidence bearing upon the question of the guilt or innocence of the defendants is conflicting. It is the settled law of this State that where the evidence is conflicting, the record, to sustain a conviction, must be reasonably free from substantial and prejudicial error. It was admitted that some persons conspired to violate the ballot box. Such a conspiracy is akin to treason, as it strikes at the very life of the Republic,' and the feelings of all honest men are, naturally, aroused by the very nature of the offense. The defendants earnestly contend that they have not had a fair and impartial trial and that the verdict of the jury is due to that fact alone, and they have argued many points in support of this contention. In our judgment, it is not necessary to refer to all of these.

About 48 hours after the polls closed, the defendants Abernathy, Solomen, Cooney, Harkelroad and Mc-Larin, the precinct election officials, were taken to the office of the election commissioners and there examined, intermittently, during several days, by Mr. Lavery, attorney for the commissioners, concerning the frauds perpetrated at the polling place. The questions put to these defendants and the answers they made thereto were reduced to writing, and during the presentation of' the State’s case in chief, the State’s attorney offered the statements in evidence upon the ground that they contained admissions of these defendants tending to establish their guilt. The defendants objected to the admission of the statements upon a number of grounds, only one of which we deem it necessary to consider. The arguments as to their admissibility were held in chambers, and counsel for the defendants there pointed out that many of the questions propounded to the defendants by Mr. Lavery, and that were a part of the statements that the State desired to read to the jury, contained charges, opinions, speculations, conclusions, and highly prejudicial insinuations of Mr. Lavery that plainly indicated the belief of the latter that the defendants, or some of them, were guilty, and that to permit such questions to go to the jury would be highly' prejudicial to the defendants. The court admitted that certain of the questions would not be admissible under the general rules of evidence, but he stated that the answers of the defendants would be unintelligible without the questions, and that “the jury should be instructed not to give any weight whatever to words of Mr. Lavery, . . . the proper way is to have it explained to the jury, that, of course, anything that Mr. Lavery says ... is entirely irrel-" evant and immaterial, and not on any circumstance to be considered.” The defendants also objected to each and every question and answer contained in the several statements. The court thereupon, over the objection of the defendants, admitted the statements, including the questions, in evidence, but no cautionary instruction bearing upon the questions of Mr. Lavery was given to the jury. The following excerpts from the statements will illustrate the nature of many questions put to the defendants by Mr. Lavery:

“Q. I do not think you were directly involved in this thing, but I think you have some suspicion that you have not yet told me about, and I want you to tell me that. I want to know if it is not your suspicion there was a deal there between the Republican fellows and the Democratic fellows to swap some of these ballots or gwipe some of.these ballots and get them marked somehow or another and pnt them into the barrel, so they could be counted?

Q. I am of this opinion, I think you did not carefully look into that barrel, and there may have been something in there. Now, that is my idea. I think that you think you looked, but you did not actually look to the bottom of that barrel.

Q. But you looked into the bottom of the barrel that the ballots were sitting on. I am satisfied that you did not look into the bottom of the barrel they brought over there.

Q. I am going to tell you something, I am satisfied that those ballots were in the barrel when they dumped the other ballots in there, and I think you are satisfied now that they were.

Q. Now, listen, the fact that Blank told you that and that he said Blank had been there and fixed it all up, you went back there at seven o ’clock convinces me that you suspected something, and you won’t tell me what it was.

Q. I just wanted to get what your attitude of mind was, whether there was a circumstance that had happened that had made you suspicious of some effort to get it and that you put it in the drawer for that purpose, because ordinarily you would leave it on the table.

Q. I am not trying to surprise you, Barney, you are a pretty clever fellow and you know your way around, and you have a good memory. You are sure. I understand, you can’t remember a particular thing in that hullabaloo. I want you to recall, as near as you can, about that polling book and whether you actually put them in the drawer. Your recollection a while ago was that you did.

Q. Let us be accurate about it. You know the G-od’s honest truth about it.

Q. And there was no 1shenanigan’ about that; it was all square?

Q. I want to find .out what happened about that. When you had the ballots put from the ballot box into the barrel, in the first place I suppose the ballot box was there, put on the table temporarily or on the floor until you- got another table, something before that, something that had the barrel that had the ballots?

Q. You are sure there was no ‘shenanigan’ up to that time?

Q. It is an inconceivable situation with forty people that those three judges, three blanks, aren’t going to raise hell if those books don’t show up?”

The election commissioners were fully warranted in making a thorough investigation of the outrageous frauds that had been committed in the precinct in question, and we have no criticism to make of the manner in which Mr. Lavery interrogated the election officials. He would have been derelict in his duty had he not thoroughly and effectively examined these officials, but it is apparent that many questions and statements he made to the defendants were not competent evidence against them in the present proceeding. The trial court, during the trial, and counsel for the State, in this court, justify the introduction of the questions that are objected to, upon the ground that the answers of the defendants to the questions would be unintelligible without the questions; that the answers would mean nothing without the questions. The counsel defend many of the questions admitted solely on the ground of necessity. Necessity never excuses incompetent and prejudicial evidence. In many of the so-called questions Mr. Lavery merely gave his opinions, suspicions and speculations, as to what had occurred at the polling place. Many of the questions did not call for an answer, and frequently the answers to questions tended only "to exonerate the party questioned, so that there was no basis for admitting these improper questions on the theory that they constituted admissions tending to prove the guilt of the party examined. It was the duty of the trial court to have deleted from the questions the incompetent and improper portions of the same, where that could he done. Where the entire question was improper, the objection to the same should have, been sustained. It is clear that the trial court erred in permitting many of the so-called questions of Mr. Lavery to be read to the jury, and who can say, with reasonable certainty, especially in view of the fact that no cautionary instruction bearing upon the questions was given, that the jury did not attach weight to the opinions of the attorney for the election board touching the frauds in question?

During the closing argument of the State’s attorney, the following occurred: “Mr. Goughian (assistant State’s attorney): Smith was employed as a bailiff for a great number of years, no one appears here, no one appears from the Hartman Furniture Company, no one testifies in behalf of these parties as to their character or reputation. Mr. McDermott (attorney for defendants): If the Court please, that is objected to, and I move to withdraw a juror and continue the case for that statement. The Court: Objection overruled. Mr. McDermott: Exception. To which ruling of the Court, the defendants, and each of them, by their counsel, then and there duly excepted. Mr. Goughian: I will ask leave to withdraw that statement. The Court: Let me hear the statement. (Statement read.) The Court: That you object to? Mr. McDermott: Yes, Your Honor. Mr. Goughian: I will ask to withdraw that, if the Court please, and ask the jury to disregard it. The Court: All right, the jury will disregard it.” The defendants strenuously contend that this conduct of the State’s attorney constituted reversible error. In People v. Haas, 293 Ill. 274, 276-7, the court said:

“Plaintiff in error contends that the State’s attorney in his closing argument committed prejudicial error by commenting on the fact that plaintiff in error had not submitted testimony of previous good character, it being1 contended that the presumption of previous good character obtains, and it .was error on the part of the State’s .attorney to comment on the fact that there was no evidence offered on that point by the defendant. This question has not been passed upon in this State nor are the cases in harmony in other States. ...

“It is well settled in this State that a defendant’s character is presumed to be good until the contrary is proven, and that no evidence to impeach character is admissible against the accused until he has opened the door for such evidence by adducing proof of good character. In the trial of a criminal charge, where the character of the act depends largely upon the intention which prompted it, the character of the accused be-' comes important in determining guilt. There is no duty oil the part of the defendant to offer proof of good character. He may do so, but until he does the State has-no right to offer proof on that subject. The plain meaning of this rule is that the'reputation of the defendant as a law-abiding citizen cannot be attacked until he opens the door by offering proof of good character. It follows that the State’s attorney has no right to call to the attention of the jury the defendant’s failure to offer such proof, or to argue that the lack of such proof tends, under the facts of the case, to overcome the presumption of good character.”

The State concedes that the statement of the State’s attorney constituted error, but it contends that the action of the State’s attorney in withdrawing the statement and the action of the court in stating that “the jury will disregard it,” cured it. It must be noted that when the counsel for defendants objected to the statement and moved to withdraw a juror and continue the case, the trial court overruled the objection to the statement, thereby, in effect, sustaining the right of the State’s attorney to make the statement. The court’s language, in passing upon the State’s attorney’s motion to withdraw the statement, did not cure the effect of that ruling. The statement of the State’s attorney implied that the defendants had the right to offer evidence as to their character and reputation. While they had the right to offer evidence, if they saw fit to do so, as to their reputation, they had no right to offer evidence as to their character. The defendants were charged with one of the most serious offenses known to the law. As the number of ballots found in the box and the barrel when the polls were closed was approximately 400 more than there were registered voters, the fraud was certain of discovery, and the jury may well have concluded that the defendants, who the State’s attorney had intimated were men without good character or good reputation, were more likely to have committed the offense charged than men of good character and of good reputation. We cannot escape the conclusion that the statement of the State’s attorney had a strong tendency to prejudice the defendants.

During the argument of the same State’s attorney the following occurred: “Mr. Goughian: Now, in conclusion then, considering the defense testimony, you have only the testimony of Abernathy, offered by way of defense of himself. The other testimony stands unanswered. Mr. McDermott: If the Court please, that is objected to. Will you read that? The Court: That is purely argument. Mr. McDermott: He has no right to comment on the failure of any defendant to take the stand. The Court: That is not erroneous. To which ruling of the Court, the defendants, and each of them, by their counsel then and there duly excepted.” The defendants contend that the statement of the State’s attorney and the action of the court in passing upon the objection to the same constituted reversible error. None ■ of the election officials save Abernathy testified, and the defendants contend that the above statement was plainly intended to call attention to that situation. "We do not deem it necessary to pass upon the contention in so far as it bears upon the statement of the State’s attorney, but we think that there is merit in the argument that the language of the trial court in passing upon the objection is justly subject to the criticism that a jury would imply therefrom that the State’s attorney had the right to call attention to the fact that some of the defendants had not testified.

The defendants contend that the court erred in giving, at the instance of the State, the following instruction :

“The Jury is instructed that two, three or more persons indicted for conspiracy may be convicted, and others acquitted, if the facts proved by the State warrant such a verdict; but in this connection you are instructed that, in order to bring in a verdict of guilty, you must find from the evidence that at least two, or more, of the defendants did conspire together in the manner and for the purpose charged in the indictment or in one of the several counts thereof.”

The instant contention is undoubtedly a meritorious one. • The instruction authorizes a conviction “if the facts proved by the State warrant such a verdict,” thereby ignoring entirely the testimony offered for the defendants. In effect, it told the jury that they should convict or acquit on the case made by the State alone. It assumes that the State has proven certain facts, and the jury are only called upon to determine whether or not these facts were sufficient to make out a case of conspiracy. It ignores the essential element that the jury must find from the evidence “beyond a reasonable doubt” that two or more of the defendants conspired, etc. The instruction is otherwise bad and the giving of it constituted serious error.

The defendants contend that the court erred in giving, at the instance of the State, the following instruction :

“The Court further instructs the jury, as a matter of law, that if, from the acts of the parties as proven and from all the facts and circumstances in evidence, the jury believé beyond a reasonable doubt that the defendants, or some of them, did pursue the common object alleged in the indictment, or any of the several counts thereof, as charged in said indictment, and by the same means, one performing one part, and another, another part, so as to accomplish the common object, the jury will be justified in the conclusion that the defendants were engaged in a conspiracy to effect that object.” (Italics ours.)

It is clear that the instant contention is a meritorious one. The instruction authorizes the jury to conclude that all of the defendants were engaged in a conspiracy, if they believed from the evidence that the defendants “or some of them” were engaged in a conspiracy. All of the defendants that were tried were convicted, although the State’s principal witness, August Scholz, who testified that he took an active part in the conspiracy, stated that the defendants Cooney, McLarin, Harkelroad and Solomen were not present and took no part in the preliminary actions of the conspirators and had nothing to do with the marking of the ballots the night before the primary. As we have heretofore stated, we do not wish to analyze and comment on the evidence in the case, but for the purpose of passing upon the instant contention we may say that the jury, under the evidence, would not be subject to just criticism if they had found some of the defendants not guilty.

The defendants contend that the court erred in giving, at the instance of the State, the following instruction :

“The court further instructs the jury that one method of impeaching a witness is by showing that he has made statements out of court at variance with statements on the witness stand, and if the jury believe from the evidence that any witness in this case has made statements-at any other time or place at variance with his evidence in this case, you have a right to take such fact into consideration in determining the weight' to be given to the evidence of such witness.”

The instant contention is also a meritorious one. “It is a well established rule of law that a defendant or a witness cannot be impeached upon an immaterial statement.” (People v. Decker, 310 Ill. 234, 244.) The instant instruction violates this fundamental principle of law, and it was especially harmful to certain of the defendants because of the nature of some of the answers they made when interrogated by Mr. Lavery.

The court, at the instance of the State, gave to the jury the following instruction:

“The jury is further instructed that the proof of the conspiracy charged in the indictment need not consist of direct testimony, but may be proved by what is known as circumstantial evidence.

“Circumstantial evidence in a criminal case is the proof of such facts and circumstances connected with, or surrounding the commission of the crime charged, as tend to show the guilt or innocence of the charge, and if the facts and circumstances shown by the evidence in this case are sufficient to satisfy the jury of the guilt of the defendants, or any two or more of them, beyond a reasonable doubt, then such evidence is sufficient to authorize the jury in finding such defendants guilty as in their judgment the facts warrant. The law demands a conviction wherever there is sufficient legal evidence to establish the defendants’ guilt beyond a reasonable doubt, and circumstantial evidence is legal evidence.”

This instruction is one commonly used by State’s attorneys in conspiracy cases and it is based upon the theory of law that the State may prove its case by circumstantial evidence alone and it is drafted in a manner most favorable to the State. The giving of such an instruction is ordinarily proper, and the defendants cite it only in connection with their contention that the court erred in refusing to give to the jury two instructions offered by the defendants that state the well known principle of law that where a conviction for a criminal offense is sought upon circumstantial evidence alone the facts proved should exclude every reasonable hypothesis of innocence. (See People v. Ahrling, 279 Ill. 70, 80, and cases cited therein.) This vital principle of law was not stated in the said instruction of the State nor in any instruction given to the jury. Not only did the trial court refuse these two instructions of the defendants, but he struck out from a defendants’ instruction that was given, a statement of this principle of law. The court erred in not giving one, at least, of the two instructions of the defendants and in modifying the one that was given. In view of the fact that the aforesaid instruction for the State was given, justice to the defendants required that one of their instructions on the same subject be also given:

At the request of the State the court gave to the jury ten instructions on the law of conspiracy. Each of these contains only abstract propositions of law and none of them attempts to apply the law, as stated therein, to the facts or circumstances in evidence. The defendants contend that these instructions, especially in view of the number given on the subject, tended to mislead the jury to the prejudice of the defendants. It is a general rule that “instructions should be framed with reference to the circumstances of the case on trial, and not be expressed in abstract and general terms, when such terms may mislead instead of enlightening a jury.” (Chicago & Alton R. R. Co. v. Utley, 38 Ill. 410, 412.) The giving of instructions of this character is not to be commended, and trial courts are justified, under our practice, in refusing the same, and while it is true that it has been held that the giving of such instructions does not constitute reversible error if they are not calculated to mislead the jury, nevertheless, it is a settled rule that the giving of instructions which state merely abstract propositions of law and which might have a tendency to mislead the jury, is error. (See also the late case of People v. Parks, 321 Ill. 143.) We recognize the fact that in conspiracy cases it is a proper practice to give a few abstract instructions, if correctly drawn, bearing upon the subject of conspiracy, but after' a careful consideration of the said ten instructions, we have reached the conclusion that there is substantial merit in the contention of the defendants that these instructions, especially in view of the number given, were apt to mislead the jury, to the prejudice of the defendants.

The • defendants contend, and with some force, that the court erred in the giving, at the instance of the State, of several other instructions and in refusing several instructions offered by the defendants, but to refer to each of these specifically would extend this opinion to an unwarranted length.

The defendants contend that the trial court seldom ruled directly upon objections made by them; that instead of ruling directly he would proceed, in the hearing of the jury, to give his interpretation of the answer of the witness, sometimes the effect of the same and the law bearing upon the objection, and they strenuously argue that on many occasions the effect of this procedure was that the evidence given by the witness for the prosecution, and the effect of the same, was emphasized, and the objection made to appear to the jury as trivial in its nature. A careful reading of the record shows that this contention is not without some merit. Where a trial court deems it necessary to state, for the benefit of the record, his understanding of the purpose and effect of testimony and his reasons for overruling the objection made, the safe and fair procedure is to call the counsel to the bar of the court and there, out of the hearing of the jury, make such statements as he deems proper, in passing upon the objection.

The defendants contend that while a clerk from the election commissioners’ office was testifying on direct examination in reference to the custom and method of doing business and preserving the ballots, etc., in the office of the election commissioners, they made an objection to a certain question, and the court, instead of ruling directly on the objection, stated, in the hearing of the jury, “That is his testimony, and that is very important testimony,” and they insist that this statement was unwarranted and prejudicial. The statement was, of course, improper, but we do not find that the defendants made any objection to the same.

We are satisfied that the defendants have not had a fair and impartial trial and the judgment of the criminal court of Cook county, as to each defendant, is reversed and the cause remanded. In conclusion, we wish to state that nothing contained in this opinion should be considered as an intimation by this court that the State was not warranted, under the evidence, in prosecuting all of the defendants.

Reversed and remanded.

G-ridley and Keener, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Scanlan

license: Public Domain

text:
    Lee Strong and Chicago Title & Trust Company, Complainants, v. Ben Friedman et al., Defendants. In re Garard Trust Company, Receiver, for the Approval of its Current and Final Reports and Accounts, Appellant. Henry S. Lederman, Appellee.
    Gen. No. 34,712.

      Opinion filed May 19, 1931.
    Rehearing denied May 29, 1931.

      SoNNENSCHEIN, BeRKSON, LaUTMANN, LeVINSON & Morse, for appellant; Ben Bothbaum and Bernard Nath, of counsel.
    Wolfson & Fireman, for appellee; Harry J. Fireman, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

This is an appeal by G-arard Trust Company, receiver, from an order disallowing certain items stated in its first and final reports and accounts.

The verified bill sought to foreclose a first mortgage trust deed securing an issue of bonds totaling $285,000 and prayed a partial foreclosure of the mortgage.for nonpayment of interest and a principal prepayment. The mortgaged property consists of certain land and a six-story building located thereon,- commonly known as 5218-5222 Kenwood avenue, Chicago. The building, an apartment hotel, contains 65 furnished apartments. Neither the trustee nor the bondholders had any mortgage or lien upon the furniture or personal property in the building. The receiver, appellant, was the actual owner of the five bonds which co-complainant Strong alleged, in the bill, he owned, and it also acquired other bonds secured by the trust deed as they became in default. Strong, an employee of appellant, was a mere dummy complainant. Appellant was, in fact, the complainant. Upon motion of complainants appellant was appointed receiver. The solicitors for Strong thereafter also acted for appellant. The bill made Ben Friedman, a bachelor,, Ernest A. Hoerich, as Trustee, etc., Jacob S. Friedman and Beva Friedman, his wife, and the- unknown owner or owners, etc., defendants. None of these parties answered or demurred to the bill. Albert Pick & Company held a chattel mortgage on the furniture and furnishings in the building, and after appellant took possession of the premises the former commenced proceedings to foreclose the mortgage through the said solicitors, who, it appears, were its regular attorneys. Without informing, the chancellor of the situation, Strong, acting for appellant, purchased the furniture and furnishings at the foreclosure sale for the sum of $23,000. $1,000 of this amount was then paid in cash to Pick & Company by appellant out of receivership funds, and Strong gave to Pick & Company a chattel mortgage on the furniture and furnishings for the balance, $22,000, payable in instalments of $500 each month, together with interest. The same solicitors represented Pick & Company in this matter. Thereafter, appellant, without authority from the chancellor, paid, from month to month, the chattel mortgage notes, which Strong had executed. The total sum paid, including the $1,000, was $5,096.25. The last payment was made in August, 1929. Henry S. Lederman, appellee, the owner of a junior mortgage, was not made a party to the bill, but on July 26, 1929, apparently by leave of court, he filed an answer to the bill. This answer did not make any charges of any kind against appellant. In September, 1929, appellant presented a petition which averred that Strong purchased the furniture at the chattel mortgage sale and that he was “now the owner of all the furniture and furnishings located in said hotel”; that “Strong has offered to lease the furniture and furnishings now located in said hotel to your petitioner during the term of this receivership at a monthly rental of $550.” The petition alleged that it would cost in excess of $25,000 to purchase new furniture to replace the old, and appellant prayed that it be allowed to pay to Strong a rental of $550 per month for the furniture. No mention was made in this petition of the relationship of the several parties interested, nor were the true circumstances of the Pick transaction stated, nor was the fact that payments had theretofore been made by appellant to Pick & Company on account of the chattel mortgage mentioned. Appellee filed an answer to this petition, in which he denies that Strong purchased the furniture and states that appellant “has been paying the sum of $550 per month upon said furniture to Albert Pick & Company, out of the moneys received by said Receiver from the rents, income and profits of the premises described in the bill of complaint on file herein, without the lawful authority of'this court,” and he questions the authority of appellant to purchase the furniture out of the rents and profits of the receivership property. In December, 1929, appellee filed a verified petition in which he avers “that he has recently discovered that the Gfarard Trust Company, a corporation, receiver herein, is the true and lawful owner of the various bonds and interest coupons sought to be foreclosed by the complainant herein; . . . that while said bill of complaint and supplemental bill of complaint aforementioned allege that Lee Strong is the owner of the principal bonds and interest coupons therein referred to, in truth and in fact, it will appear from an examination and investigation of the records of the Garard Trust Company, a corporation, that the said . . . Company is the actual owner of said principal bonds and interest coupons; . . . that through some pre-arrangement between said . . . Company, . . . who is acting as receiver herein, and Albert Pick & Company, a corporation, and the solicitors for the complainant herein, it was arranged to foreclose the chattel mortgage heretofore existing on the furniture and equipment in the premises described in the bill . . . and ... it was understood and agreed that the complainant herein was to purchase the chattels referred to in said chattel mortgage, and that the receiver herein . . . was to pay Albert Pick & Company the sum of $500 per month out of the rents, income and profits of the receivership premises”; that pursuant to said prearrangement appellant paid to Pick & Company several thousand dollars on account of the purchase price of said chattels; that the chattel mortgage sale was held by Strong’s solicitors without the statutory notice in such cases made and provided; that appellant is not a proper .person to act as receiver “because of its diverse interest herein, ’ ’ and the petition prays that appellant be removed as receiver and a new receiver appointed. Appellant then tendered its resignation and the chancellor entered an order accepting it and ordering appellant to file its final account and report on or before January 20, 1930, and appointing Joseph H. Optner receiver. On January 25, 1930, appellant filed its final report and account. Appellee filed objections to certain items in the first and final reports and accounts. Upon a hearing the chancellor sustained objections to the sum of $5,096.25 that had been paid by appellant on account of the chattel mortgage notes executed and delivered to Pick & Company by Strong, and also to certain other items, and appellant was ordered to recast its account. At the time of this hearing appellant was in the hands of a receiver, and it appeared that it had not turned over to the new receiver any of the funds that belonged to the receivership, although it had promised, some time before, to turn over at once to the new receiver $8,000 or $9,000.

The only point raised by appellant is thus stated in its brief: “Appellant upholds payments of $5,096.25 on the furniture. . . . The only question before tin's court is whether appellant is entitled to an allowance for the moneys paid by it to Pick & Company.”

Appellant concedes that no order was ever entered by the chancellor authorizing it to make the payments to Pick & Company, and it further concedes that “the receiver should not have made payments with respect to the chattel mortgage,” and that it had no right to make such payments, but it claims that they were “authorized by Frank M. Hickok, formerly the trust officer, who thought that a court order had been obtained authorizing the payments.” Appellant cites the familiar chancery rule that where it' clearly appears that the court would have authorized an expenditure by the receiver had the order been applied for, it may do so subsequent to the making- of the expenditure, and it contends that under this rule and the facts the chancellor should not have sustained the objection to the said payments. In considering this contention we must assume, under the evidence, that if the application for the order had been presented before the expenditures were made, appellant would have therein deceived the chancellor as to the facts. Even the averments in the petition of September 25, 1929, as we will hereafter show, were false and intended to deceive the chancellor. It would be a serious reflection on the honesty or intelligence of the chancellor to argue that he would have entered such an order had he been fully apprised of the actual situation and the real relationship of appellant to the suit. When the facts were brought to the attention of the chancellor by appellee, appellant, to prevent the entry of a removal order, resigned. At the time of the instant hearing the chancellor had before him the facts, and he expressed, in strong, terms, his condemnation of the conduct of appellant in the premises. The argument, therefore, that he would have authorized the expenditures in question if appellant had applied for an order in reference to the same, seems an idle- one. Moreover, an order obtained by fraud or deception would afford no protection to appellant. The cases cited in support of this contention can be readily distinguished, upon the facts, from the present case. In Atwood v. Knowlson, 91 Ill. App. 265, the expenditures were for taxes, insurance and necessary repairs. In Driever v. Shephard, 259 Ill. App. 239, the receiver made disbursements in accordance with the provisions of the trust deed foreclosed, as well as in compliance with the prayer of the answer of the objector. In Thompson v. Phenix Ins. Co., 136 U. S. 287, and in Brown v. Hazlehurst, 54 Md. 26, the receivers paid fire insurance premiums. In Smith v. U. S. Express Co., 135 Ill. 279, the receiver was ‘ ‘ empowered to institute suits in law or equity for the recovery of any assets,” etc., and a suit was instituted and a recovery made by the receiver, and the court disposed of the “fruits of his litigation” and it was held that this amounted to a ratification of his act. In none of these cases was the good faith or honesty of the receiver questioned. Appellant also cites the rule that a receiver may exercise some discretion in certain matters relating to the care and management of the property in his custody, and it contends that this rule governs the instant question. In Sprague, Warner & Co. v. Iowa Mercantile Co., 186 Iowa 488, 172 N. W. 637, cited in support of this contention, the court states that a chancellor may ratify certain acts of a receiver, performed without an order of the court, where it appears that “the officer has acted in good faith, and what he has done appears to have been beneficial to the parties interested.” That case, upon the facts, is not similar to the instant one. There the receiver was ordered to conduct the business, and the litigation grew out of a contract that had been made for the purchase of merchandise for future delivery. “A receiver will not ordinarily be permitted to make any expenditures which will seriously diminish the fund intrusted to his charge, without the sanction and authority of the court, and it is his duty to apply to the court for instructions as to the expenditures.” (High on Receivers, 4th Ed., sec. 798.) In Hooper v. Winston, Trustee, 24 Ill. 353, it appears that Hooper had been appointed receiver of a hotel, “to sell and dispose of said property,” and he incurred expenses amounting to $3,710.97 in the operation of the hotel prior to the sale of the same, and in his final account asked to be allowed this sum. The trial court disallowed it. The Supreme Court, in affirming the chancellor, said: “In the management of the McCardel House, although the receiver was.required to keep it in operation until the sale, he had, as an officer of the court, but very little discretion allowed him, and should have applied to the court, by a brief petition, setting out -the facts and asking for a reference, whether such and such expenditures would be for the benefit of the interested parties, and necessary to keep the house in operation, or for whatever other purpose the expenditure may have been desired. No single act, calculated to diminish seriously the fund, could the receiver do, on his own mere motion, and in the exercise of his discretion. The thing is unheard of, and the claim set up here to do so cannot be allowed. And he should have sold the property at the earliest practicable moment, so that keeping it in operation should not seriously have diminished the fund.” In Heffron v. Milligan, 40 Ill. App. 291, Rice, the receiver, employed Milligan, a contractor, to repair a building and the latter estimated that it would cost between $4,500 and $5,000 to make the repairs. The receiver told him “to look through the hotel and see what repairs were needed, and put it in proper shape. ’ Thereafter, on motion of the receiver, an order was entered allowing him to make repairs not to exceed $5,000. Prior- to the entry of this order the contractor had made repairs, under the orders of the receiver, to the amount of $1,256.24. The trial court allowed the entire claim. This court reversed the order of the trial court as to the. repairs that were made before the entry of the order. In the opinion the court said: “The general rule is well settled, that a receiver will not be allowed to incur liabilities for repairs against the estate in his hands, or be credited with any outlays therefor which are not made by leave of court first applied for and obtained. The exception to the rule is, that his action may be approved by the court where repairs are made without permission if the sum expended or incurred is very small, or if it be shown that he acted in good faith and for the best interests of the property intrusted to him, or that it was necessary to act immediately, in order to prevent damage. Beach on Receivers, Sec. 282; High on Receivers, Sec. 798. This rule is recognized and applied in its utmost strictness in this State, as shown by Hooper v. Winston, 24 Ill. 353. . . . No exigency existed which justified proceeding with the work without authority. We see that no authority would have been given to proceed as was here done. Evidence of the justice and fairness of the claim is lacking. We are not disposed to relax the salutary rule that has been so often announced with reference to such unauthorized expenditures by receivers or trustees, and we have not the right to do so if we were so disposed. We cannot deal generously and accommodatingly with property in the hands of the court. In order to prevent lax administration, the temptation to which is so great, the rules which limit the discretion of officers of the court, the wisdom and propriety of which receive frequent demonstration but seldom more pointed illustration than in this case, must be rigidly enforced.” We know of no Illinois case which would have justified the chancellor in ratifying the acts of appellant now under consideration. All the authorities recognize the fundamental principle of law that where an expenditure was made without leave of court the receiver must show, among other things, that it was made in good faith and that the receiver was not guilty of cmy fraud or deception in connection with the same.

Appellant, the complainant in fact, resorted to subterfuge and deception to have itself appointed receiver. As the chancellor stated, its conduct in that regard violated “the moral as well as the legal code” and constituted a fraud upon the court. Appellant, acting through its dummy, Strong, was the real purchaser of the furniture, and it partially paid for the same out of receivership funds under the guise of rents and without an order of court. There is much force in the contention of appellee that appellant was not an “amateur receiver whose experience and training may not have been such as to instill in his mind the sanctity of his office,” and that its acts show bad faith and fraudulent intent. It is apparent from the evidence that if appellee had not filed an answer and opposed the actions of appellant, the latter, without an order of court, would have continued to pay Pick & Company, under the guise of moneys paid to Strong for rent for the furniture, the amounts due it under the chattel mortgage, and if that company had been paid in full, Strong, the tool of appellant, could then have claimed to be the owner of the furniture. It is significant that appellant, in its so-called offer of proof, made no offer to prove by anyone connected with Pick & Company that the latter, in its dealings with appellant, knew anything about the so-called rental scheme. Appellant states that it could not sign the chattel mortgage and notes and therefore it had Strong acquire the legal title to the furniture and sign the said instruments, but. that “Strong will be glad and hereby formally offers to convey it to the second mortgagee, if he will assume the co-complainant Strong’s liability for the balance due on the chattel mortgage which Strong executed so that the receiver might be able to use said furniture.” This is an assertion by appellant that it still has the power to control Strong’s actions. However, in the proceedings before the chancellor, Strong, personally, made no offer in respect to the furniture. It there developed that Pick & Company was seeking to recover possession of the furniture from the new receiver, and one of appellant’s solicitors (also a solicitor for Pick & Company) stated to the court that if Pick & Company was not paid in full it was “going to take their furniture.”

Appellant states that as soon as it discovered that there was no order authorizing the payments to Pick & Company it filed its petition of September 25, 1929, and it contends that this petition shows its good faith in the entire matter. We think it shows, clearly, the bad faith of appellant. The facts relating to the relationship of the parties and the salient circumstances surrounding the entire matter now under investigation are not stated nor mentioned therein. The petition was verified and it avers that Strong purchased the furniture at the chattel mortgage sale and that he is now the owner of it; that he has offered to lease the furniture and furnishings to the receiver “during the term of this receivership,” at a monthly rental of $550, and it prays that it may be authorized to pay such sums to Strong “for the rental of the furniture and furnishings.” No mention is made of the fact that the so-called rental plan was but a scheme to enable it to pay Pick & Company for the furniture, and that appellant had for months paid large sums of money to Pick & Company in furtherance of that scheme. The petition was worded in a way to convey the idea to the chancellor that appellant was informing him of a new proposition and asking his approval of the same, but its real purpose was to secure the approval of the chancellor not only for future payments, but for all payments made “during the term of this receivership.” Appellant concedes that it acted “irregularly,” but it insists that its intentions were honest. If the Pick transaction, sometimes called, by appellant, a rental plan, were an honest one, why did it persist, in this petition, in deceiving the court as to the facts of the matter ? Why did it countenance perjury in that document? Designed to obtain, by improper means, an order from the chancellor, the petition was but another fraud practiced upon the court. It demonstrates the bad faith and dishonesty of appellant and warranted contempt proceedings against it when the chancellor was apprised of the facts. The answer of appellee to the bill, filed July 26,1929, as we have heretofore stated, made no charges of any kind against appellant. The petition of appellee in which he made the charges against appellant was' not filed until December, 1929. Had it been filed prior to September 25, 1929, it is clear that the petition of appellant of that date would not have been presented to the chancellor. The mere filing of the December petition of appellee brought about the resignation of appellant.

From the very inception of this case appellant practiced deception, perjury and fraud upon the court. The verified bill alleges that Strong is “the legal holder of said interest coupons and bonds herein sought to be foreclosed,” whereas appellant was the legal holder of said instruments and the real complainant. It would not have been appointed receiver had it not been for the fraudulent allegations of the bill. Instead of employing independent counsel, it had the same solicitors represent it as actual complainant and as receiver. It then permitted its solicitors to represent Pick & Company in the transactions relating to the chattel mortgage. It had its dummy, Strong, acquire the legal title to the furniture and furnishings, and under the guise of paying rent for the same it paid Pick & Company for the furniture out of the funds of the estate. In its reports and accounts and petitions it sought to deceive the court by false statements. In view of the record, it is surprising that the chancellor took no steps to punish it for contempt. In their relations with chancellors, honest receivers are not compelled to resort to subterfuges, deceptions and perjury. Appellee contends, and with much force, that the actions of appellant in certain other matters also tend to show its bad faith in the administration of the receivership property. However, we do not deem it necessary to refer specifically to these other matters.

Appellant was appointed receiver on November 2, 1928. On June 18, 1929, it filed its first report and account, covering the period to April 30, 1929. On June 18, 1929, this report was approved by a chancellor other than the one who appointed appellant receiver and passed upon its final report and account. When the first report and account was approved, appellee had not filed his appearance in the cause and there was no party to raise objections to it. Appellant concedes that the approval of the first report and account was subject to review thereafter, but it contends that “in view of the fact, however, that appellant at all times acted in good faith and that the expenditures for the use of the furniture were beneficial to the estate and essential to the operation of the property, the Court should not have set aside the order approving the first report. ’ ’ The first report and account is a lengthy document. It contains the following: “Tour Receiver further respectfully represents that it was obliged to cause a detailed inventory to be made of said furniture and fixtures, in order to satisfy the owner of said Chattel Mortgage, but found that numerous furnishings covered by said Chattel Mortgage were not on hand or had been used up through previous wear and tear; but that your Receiver was able to arrange with the owner of said Chattel Mortgage to allow the Receiver the use of said furnishings upon the payment of the sum of $500 per month, the same to be applied in reduction of the said Chattel Mortgage debt, and that during the period covered by this First Account, your Receiver has been obliged to pay out on account of the use of said chattels the total sum of $3,000,. as will more fully appear from the schedules hereto attached, all of which said payments were duly made pursuant to an order of this Court dated December 4, 1928.” In the account, under the heading, “Cash Receipts and Disbursements from All Sources and for All Purposes for Period from November 2, 1928 to April 30, 1929,” appears the following item: “Expenditures Under Special Orders: A-3 Chattels — Court Order Dated Dec. 4, 1928 $3000.00.” It is plain that the chancellor would conclude' from the report and account that the expenditures had been specially authorized by a court order and he would therefore have no reason to inquire into the merits of the matter. The statement therein as to the arrangement made in - reference to the furniture and furnishings was false, and was intended to mislead the court. The report does not tell the court that appellant bought the furniture in the name of its dummy, Strong, and that the legal title to the same was then in the name of the latter, who held it for appellant, and that the expenditures were made in payment of ‘ the chattel mortgage notes executed by Strong. Appellant claims that Hickok, its former trust officer, “believed that a court order had been obtained, and directed all of said payments under the mistaken belief that a court order had been obtained.” During the hearing upon the final report and in its offer of proof, appellant failed, entirely, to state any facts upon .which Hickok based his belief. Appellant makes the following significant concession: “How appellant’s trust officer came to-believe that an order had been entered on that date has never been explained.” In view of the plain facts, the argument “that appellant at all times acted in good faith,” and that therefore it must be assumed “that he acted in good faith in his belief in the existence of such an order,” is without force.

Appellant contends that the order appointing it receiver gave it the implied authority to make the expenditures in question. As the trust deed covered only the land and the building, there is no merit in this contention.

Appellant states that when the objections to its report were filed it asked that the reports and the objections be referred to a master, and that the court erred in denying its request. There is no warrant for this contention. The record shows that the first and final reports and accounts of appellant, and the objections thereto, came on to be heard before the chancellor, without objection, and that the chancellor proceeded to consider the various objections to the reports and accounts, and that after there had been several sessions of court, during which the chancellor took up with the counsel the various objections and stated his views in reference to the same, and after he had stated that he would not allow the payments made by appellant to Pick & Company, and had strongly denounced the conduct of appellant, the following occurred: “Mr. Levinson (solicitor for appellant): I would like to suggest this: I would like to make a record with respect to the items of furniture. I don’t want to take your time. Since your Honor has passed on it, it is almost a formal matter. I suggest that we go before a Master and make formal proof. The Court: In the light of the court’s holding, they will have to pay the expenses. Mr. Levinson: Perhaps we can make an offer of proof. I will make my record. Perhaps we will do that. We will come in with an offer of proof and draft order, let us say on Tuesday or Wednesday?” Appellant never made a motion for a reference to a master. It is clear that it abandoned even its suggestion to go before a master and it subsequently came before the chancellor and presented a written offer of proof. Appellant suggested a reference only as to the Pick & Company payments and as there was no question of accounting involved therein, there was no necessity for a reference.

The record .shows that appellant “presented an offer of proof, which, by order of court, was then and there refused,” and appellant contends that the chancellor erred in this ruling, and it further contends that the facts set up in the offer of proof must be regarded as true and that it therefore must be assumed “that the expenditures made for the use of the furniture were highly beneficial, were reasonable, and were essential to the profitable operation of the hotel property. ’ ’ The so-called offer was presented in writing. Appellant did not call any witness or produce any documentary evidence in support of it. In Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 328-9, the court said: “Appellant, in fact, offered no evidence upon the matter. No witness was put upon the stand; no question was asked. Nothing was done except a mere conversation or talk had between counsel for appellant and the court. Such procedure as that does not amount to an offer of evidence, and the remarks of the court did not amount to a refusal to admit evidence. There can be no refusal to admit that which has not been offered, and counsel cannot, by engaging in a mere conversation with the court, although it may relate to the procedure, by merely stating what he desires to do, get a ruling from the court upon which he can predicate error: If appellant desired to make the contention it now makes, it should have at least put a witness upon the stand and proceeded far enough that the question relative to the point it is now said it was desired to offer evidence upon was reached, and then put the question and allow the court to rule upon it, and then offer what was expected to he proved by the witness, if he was not allowed to answer the question ashed.” (Italics ours.) In Harman v. Indian Grave Drainage District, 217 Ill. App. 502, 509, it was said: “This offer of proof was made before the court had ruled upon the objection to the question and was, therefore, premature. It is not proper to make an offer of proof until the court has sustained an objection to a question propounded for the purpose of eliciting the desired evidence.” In Stevens v. Newman, 68 Ill. App. 549, the court said: “Appellants offered to prove the ‘allegations of their petition. ’ This was insufficient. The witnesses should be called and questioned, or documentary evidence produced. A mere statement of an offer to prove is not anything upon which a court is called upon to act.” (See also Nelson v. Miller, 195 Ill. App. 233, and Lussky, White & Coolidge, Inc. v. Kennelly, 261 Ill. App. 638 [Abst.].) The offer was made after the chancellor had decided that he would sustain the objections to the Pick & Company payments. It appeared during the proceedings that there had been other hearings. and also conferences between counsel and the court and that the court and counsel were already familiar with the facts of the cáse. The material and controlling facts that bear upon the Pick & Company payments are not seriously disputed, and when these are considered, together with .the admissions of record, the justice of the chancellor’s ruling becomes evident. Moreover, the alleged facts stated in the offer would not warrant a change in the ruling. Appellant’s protestations of good faith can have no weight when tested in the light of its entire conduct in this cause. In its reply brief appellant has seen fit to question the good faith of appellee and it apparently thinks that this subject should be considered in determining the instant question. It is a sufficient answer to this argument to say that the acts of áppellant are the sole matter before us for consideration.

“A receiver is an indifferent person between the parties to a canse, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it. He is not the agent or representative of either party to the action, but is uniformly regarded as an officer of the court, exercising his functions in the interest of neither plaintiff nor defendant, but for the common benefit of all parties in interest. He should be a person wholly impartial and indifferent to all parties in interest. Being an officer of the court, the fund or property intrusted to his care is regarded as being in custodia legis for the benefit of whoever may finally establish title thereto, the court itself having the care of the property by its receiver, who is merely its creature or officer, having no powers other than those conferred upon bim by the order of his appointment, or such as are derived from the established practice of courts of equity.” (High on Receivers, 4th Ed., sec. 1.) “A receiver is frequently spoken of as the ‘hand of the court,’ and the expression very aptly designates his-functions, as well as the relation which he sustains to the court.” (Ib. sec. 2.) As a servant of the court he must be absolutely honest in the performance -of all of his duties, and this rule demands that he practice the utmost fairness and frankness in all his dealings with the court. Due largely to the present great worldwide depression, there are, as we find upon inquiry, approximately 13,000 foreclosure, suits now pending in the circuit and superior courts of Cook county, and the number is constantly increasing. Many banks have closed their doors. The number of business failures is very large. The courts must hold receivers to a strict account, or thousands of unfortunate people may be unjustly deprived of their interests in property that is in custodia legis. If the contention of appellant were to be sustained, it would not be long before courts of chancery would be plagued with an evil and intolerable condition in receivership matters.

The order of the circuit court of Cook county should be and it is affirmed.

Affirmed.

Gridley and Keener, JJ., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Anthony Kissane, Otherwise Called Red Kissane, Plaintiff in Error.
    Gen. No. 34,774.

      Opinion filed May 19, 1931.
    Rehearing denied May 29, 1931.
    George Hans and Burke & Crane, for plaintiff in error; James M. Burke, of counsel.
    John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and Grenville Beardsley, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

In the criminal court of Cook county, defendant (plaintiff in error), Anthony Kissane, otherwise called Bed Kissane, was found guilty by a jury of the charge of carrying concealed, on or about his person, a revolver, and was sentenced to imprisonment in the county jail for the term of one year and to pay a fine of $300.

Defendant contends that “the action of the Court in erroneously refusing to hear and determine the question of the legality of the seizure before the trial is an error for which the judgment of conviction should be reversed.” A verified petition, filed by defendant before the commencement of the trial, recited that on November 11, 1929, his person was forcibly seized and searched by the police of the City of Chicago, and a certain firearm was seized from his person "by the police; “that he has demanded a copy of the Warrant by virtue of same and that he has diligently searched the records of this Honorable Court, and can find no such warrant and that he verily believes that the said police had no such warrant; . . . that at the time of the said arrest he was not violating any of the ordinances of the City of Chicago, or the laws of the State of Illinois, or the United States of America, and that he had not prior to the said arrest been implicated in the commission of any crime nor did said police have reasonable grounds to believe that he had been so implicated; . . . that said search and seizure was'.illegal, unlawful, and that it was violative of the rights guaranteed him by the terms of the Fourth Amendment to the Constitution of the United States and Sections 2 and 6 of Article 2 of the Constitution of Illinois and for the Court to admit as evidence against him upon his trial the property unlawfully seized would be violative of the rights guaranteed bim by the terms of the Fifth Amendment of the Constitution of the United States and Section 10 of Article 2 of the Constitution of the State of Illinois.” The petitioner prayed “that a hearing be. had as to- the source of said evidence and that said property unlawfully seized be suppressed and excluded as evidence against him upon his trial.” The trial court refused to hear and determine, at that time, the question of the legality of the seizure and denied the motion of defendant to suppress the evidence, but held that when the People offered the revolver in evidence, during the trial, he would then hear and determine the petition, out of the presence of the jury. Even if it be assumed, for the purposes of this writ of error, that the trial court erred in not hearing and determining the petition before the beginning of the trial, nevertheless, defendant was not harmed thereby. During the trial, when the People offered the revolver in evidence, defendant renewed Ms motion to suppress, and thereupon the trial court excused the jury and proceeded to hear and determine the petition. The arresting officer then testified (inter alia) that the Lake View Trust & Savings Bank had been robbed by a man two days before the arrest of defendant; that all of the members of the police department were furnished with a description of the man who committed the robbery; that the description furnished was that of a man between five feet eleven inches and six feet tall, sallow complexion, slender build, “and a kind of pointed nose”; that immediately after the police received the description, the witness and his police partner talked the matter over and decided that the “description fitted Kissane.” The witness stated that he had no warrant for the arrest of defendant and that he arrested him because his general appearance “tallied with a man who held up the Lake View Trust & Savings Bank two days before.” The witness further testified that he knew defendant well, that the latter was well known to the police as a gangster, that he had been charged with murder, robbery and “racketeering,” and that the witness had arrested him prior to the time of the arrest in question; that in the present case he arrested defendant before he searched him and found the “gun.” Defendant did not offer any evidence in rebuttal of this testimony and the trial court thereupon denied the motion to suppress the evidence. The jury was then recalled and the trial proceeded.' “Undoubtedly the law is that where an arrest is made by an officer who has reasonable ground for believing that the person arrested is implicated in the commission of a crime, such officer has a right to arrest without a warrant and to search the arrested person without a search warrant. (People v. Caruso, 339 Ill. 258, and cases cited.) ” (People v. DeLuca, 343 Ill. 269, 271. See also People v. Swift, 319 Ill. 359.) “To justify an officer in making the arrest without a warrant his ground for belief that the person to be arrested is guilty of a crime must be such as would influence the conduct of a prudent and cautious man under the circumstances. (Kindred v. Stitt, supra.)” (People v. McGurn, 341 Ill. 632, 636.) In People v. DeLuca, supra, the judgment of conviction was reversed because it appeared that the defendant was searched without a search warrant in an effort to discover evidence and an arrest was afterwards made solely on the strength of the discovery, and it was held that the evidence thus obtained was violative of the constitutional rights of the defendant and should have been suppressed on his motion duly made. In People v. McGurn, supra, the judgment was reversed for the same reason. In the instant case the. People and defendant agree that the arrest was made before the search. The arresting officer testified that as he approached defendant he touched him on the shoulder and told him that he was under arrest, at the same time showing him his police star. Defendant testified that when the officer approached him he' “ stuck his gun” in the back of defendant and at the same time said to him, “You are going to the can.” There was no rebuttal evidence offered by defendant, and we are of the opinion that the People made out a prima facie showing that the officer had reasonable grounds for believing that defendant was the man who robbed the Lake View bank. Defendant does not contend to the contrary. His position is that “the action of the Court in refusing to hear and determine the legality of the search before the trial, was reversible error,” and that the hearing had during the trial did not cure the error, regardless of what the proof then showed. We are unable to agree with this contention. People v. Brocamp, 307 Ill. 448; People v. Castree, 311 Ill. 392; and People v. Brooks, 340 Ill. 74, cited by defendant, do not support this contention. In People v. Brocamp, supra, the trial court, before the trial, denied the motion to suppress and refused to give the defendant any hearing whatever upon his motion. When the prosecution, during the trial, offered the property in evidence, the defendant again objected to the introduction of the evidence on the ground stated in his motion. The trial court, without a hearing, again denied the motion. The Supreme Court held that ‘‘ it was the duty of the trial court to inquire into the truth of the charge of defendant, and, if it be found to be true, to sustain his objection to the introduction of all exhibits that were claimed by him as his property and taken from his home by means of unlawful search and seizure.” People v. Castree, supra, and People v. Brooks, supra, are to the same effect. The sole purpose of the inquiry is to determine the legality of the search and seizure, and in the instant case when the revolver was offered in evidence defendant renewed his motion to suppress and thereupon a hearing upon his petition was had. It is plain that he was not harmed by the mere fact that the court heard the petition after the trial began. The order that was entered at the time of the preliminary motion was not a final one, and defendant had the right to renew his motion to suppress and he took advantage of that right, and he is now in no position to justly complain of the procedure followed by the trial court. Had the trial court heard and determined the petition before the commencement of the trial the ruling, under the evidence, would have been the same. So far as we are aware, there has been no. decision of our Supreme Court which sustains the instant contention. In our judgment it would work a grave injustice to the People to hold that they would be prevented from introducing competent evidence merely because the trial court refused to pass upon a motion to suppress before the commencement of the trial. While, as we have heretofore stated, defendant does not claim that the People did not make out a prima facie showing on the hearing of the petition, he does argue “that the testimony of the officer, Drury, is unreasonable, improbable, highly unsatisfactory, and unworthy of belief,” and should have been disregarded m toto by the trial court in determining the petition. Defendant, upon the motion, did not see fit to introduce any evidence in rebuttal and the trial court “was not called upon to pass upon the credibility of the arresting officer, and he would have no right to disregard his testimony, as it was not inherently improbable. It is apparent from the verdict that the jury believed the testimony of the officer, and the trial court, by entering judgment, has approved the verdict. It is significant, as the People argue, that defendant introduced no evidence as to his general appearance. The jury saw him on the witness stand and must have concluded that his appearance corresponded with the description of the man who robbed the Lake View bank. That the bank was robbed was not disputed by defendant. He stated that at the time he was arrested he knew that it had been robbed, from articles he read in the papers, but that he did not “hold up” the bank. But even if it could be held that the search and seizure in the instant case was illegal and that the trial court should have granted the motion to suppress the evidence, nevertheless, the error in that regard would not call for a reversal of the judgment, for the following reason: The arresting officer, in his direct evidence before the jury, testified that he searched defendant and found in the latter’s right inside overcoat pocket a 38-caliber revolver loaded with “six bullets, high powered bullets,” and that he took the revolver away from defendant. Defendant made not the slightest objection to this evidence. It was only when the State’s attorney offered the revolver in evidence that defendant made the following objection: “Mr. Hans (attorney for defendant) : I object to that, if your Honor please, I object to the introduction in evidence at this time. I would like to make a motion to suppress the introduction of it, and object to its introduction.” In People v. Soltis, 328 Ill. 494, the defendant filed a petition to suppress and exclude the evidence gained by the search and the trial court, after a hearing, overruled the motion. In its opinion the Supreme Court states (p. 502): ‘‘Upon the trial the plaintiff in error objected to the introduction in evidence of the revolver claimed to have been found upon him but his objection was overruled, and he now insists that he has been deprived of his constitutional rights. The testimony of witnesses that the revolver was found concealed on his person was received without objection and showed that the plaintiff in error was guilty of the offense with which he was charged.' The introduction of the revolver in evidence added nothing to the value or strength of the testimony. The whole matter depended upon the credibility of the witnesses as to the finding of a revolver on the person of the plaintiff in error. The showing of a revolver to the jury as the one found added nothing to and detracted nothing from the value of the testimony of the witnesses.” So in the instant case, if defendant’s objection to the introduction of the revolver had been sustained, the evidence, admitted without objection, would have shown the guilt of defendant.

Defendant contends that “the decision of the municipal court sustaining* the motion to suppress the evidence was res judicata of the question of the legality of the search and seizure.” He was arrested on November 11, 1929, and on November 12, 1929, an information was filed against him in the municipal court of Chicago charging that he had concealed, on or about his person, a deadly weapon, to wit, a revolver, in violation of section 4, paragraph 141 (4), ch. 38, Cahill’s Revised Statutes. The record of the municipal court shows that defendant was not arraigned under the charge and no plea was entered by him, but on November 26, 1929, he filed a “petition to suppress evidence.” The hearing on this petition was postponed from time to time, and on March 21, 1930, the following order was entered: “Motion defendant to suppress evidence sustained. Defendant discharged.” The indictment in the instant case1 was returned on March 3, 1930, so that the order upon which defendant relies was entered 18 days after the return of the indictment. The present contention was raised by defendant for the first time upon the argument for a new trial. When the instant case was called for trial, but before the plea of not guilty was entered, defendant requested the court to pass upon a plea of former acquittal which he had entered. In support of this plea the aforesaid record of the municipal court was cited, and the trial court, after a consideration of the same, overruled the plea; Defendant now concedes, as he must, that as he did not plead to the information in the municipal court, “his guilt or innocence was not in issue.” On the motion for a new trial defendant abandoned his plea of former acquittal and urged, for the first time, that the legality of the search and seizure was a collateral issue raised in the municipal court and that the decision of that court sustaining the motion to suppress the evidence is res judicata of the question in the present proceeding. It is a fundamental rule that the defense of res judicata should be interposed or invoked in the proceedings, and the instant contention of defendant was not raised by plea or otherwise before or during the trial. It is apparent that defendant, after .the trial, discovered that there was no merit in his plea of former acquittal and then, ■ on the motion for a new trial, shifted his position and raised the instant contention. However, there is no merit in the contention, even if it were properly raised. Res judicata is a thing adjudged. The doctrine of res judicata is that a question once determined by a judgment on the merits is forever settled so far as the litigants are concerned. Even in the municipal court the ruling of the trial judge suppressing the evidence was not a final one and he,' or some other trial judge, might later reconsider the motion to suppress and vacate the order theretofore entered and enter one denying the motion to suppress. If the municipal court had entered an order denying the motion to suppress, defendant might later renew the motion, or, if he had been found guilty of the charge, he might, if a new trial were granted him, again move to suppress the evidence, and, in such event, he would be entitled to a hearing upon the motion. (See People v. Fox, 319 Ill. 606, 608-9, where a somewhat similar question is passed upon by the court.) As there was no final judgment in the municipal court, the action of that court in passing upon the admissibility of the evidence in question, could not preclude the trial court in the instant case from passing upon the admissibility of the same evidence. The cases cited by defendant do not support the present contention.

Defendant has seen fit tó make a part of the bill of exceptions the entire argument of his counsel in the trial court in support of the motion for a new trial. In that argument counsel stated that only two grounds were urged in support of the motion: one, that the court erred in refusing to hear and determine the motion to suppress before the commencement of the trial, and, two, that the decision of the municipal court sustaining the motion to suppress the evidence was res judicata of the question ' of the legality of the search and seizure. In this court he raises several additional grounds.

Defendant contends that the court erred “in admitting incompetent evidence of a prejudicial nature over' the defendant’s objections.” The arresting officer testified that when he arrested defendant the latter told him that he was ‘1 working for Jake Lingle. ’ ’ The following then occurred: “Q. Now, who was Jake Lingle 1 Mr. Hans (attorney for defendant): I object to that. The Court: He may answer, if he knows. ... A. He was.a man that was recently murdered.” Defendant contends that the objection should have been sustained. On the cross-examination of the officer counsel for defendant interrogated him for the purpose of showing that defendant told the witness that he was working for Lingle and that so far as the witness knew, defendant was working for Lingle. The question of the State’s attorney was intended to bring out the business' of Lingle and there was nothing objectionable in it. The answer was not responsive to the question and if the counsel for defendant thought that it was prejudicial he had a right to make a motion to strike it, but he did not see fit to do so. The present contention is clearly an afterthought. However, we are unable to see how the statement that Lingle was recently murdered could prejudice defendant,, and Ms counsel, apparently, did not think it did at the time the answer was made. Defendant further argues in support of his contention that the court erred in permitting the arresting officer “to volunteer from the witness stand statements of a prejudicial nature which were not responsive and tended to arouse the passions and inflame the prejudices of the jury.” In support of this contention defendant first cites certain answers made by the arresting officer at the time of the hearing on the motion to suppress the evidence, the jury not being present. The argument that statements made by the arresting officer when the jury was not present could arouse the passions and inflame the prejudices of the jury, is, of course, an idle one. In support of the instant contention defendant also cites the following part of the cross-examination of the arresting officer by counsel for defendant: “Q. Do you know anybody who ever was in court at any time Anthony Kissane was convicted? A. No, but he was in charge of murder — Mr. Keele (State’s attorney): I object. He has answered. Mr. Hans (attorney for defendant): Q. He was charged with murder, is that true? The Witness: A. He was also charged with the Bound Out robbery. Mr. Hans: Q. He was charged with murder, is that true? A. Yes sir. Q. Was he acqmtted or convicted? A. I believe he was acquitted. Q. Do you know personally whether he ever was charged with murder ? A. Why yes he was charged with murder in the Car men’s hall. Q. Do you know personally? A. No, I wasn’t there at the trial, but I read the papers. Q. Were you there at the time of the arrest?'A. No sir. Q. Were you in court at the time of the trial? A. No sir. . . . Q. Do you know who arrested him? A. Yes sir, Fred Tapscott. Q. You do? A. Yes. Q. Did you know, or, do you know anythmg about the evidence in that case? A. The evidence in the case as I understand it was— Q. Did you know, or did you not i A. I heard Kissane went in 'with a shot gún and shot up the carmen’s hall. Q. You did? A. Yes sir. Q. You were not there, were you? A. No I was not there. Q. You read it in the paper? A. I read some of it in the paper, yes. Q. Sure. You say he is a well known gangster, just what do you mean by gangster, officer ? A. Man that lives by the gun. Q. By the gun? A. Yes.” There was further cross-examination of this witness, along the same line. Defendant contends that, the attitude of the policeman showed hostility and contempt for defendant and his counsel and that the court erred “in permitting this conduct on the part of this witness, an officer of the law, who insisted on volunteering statements highly prejudicial to the defendant.” All of this testimony was brought out by counsel for defendant, and no objection was made by him to any of the answers and no motion was made to strike out any of this testimony. In fact, no complaint of any kind in reference to the answers or the attitude of the witness was made. The present contention is without the slightest merit. If the trial court, of his own motion, had interfered with the cross-examination, defendant might then have some grounds to complain. During the direct examination of defendant he testified that he had never been convicted of any felony, although the police had caused him trouble by illeg*ally arresting* him numerous times. The present claim that the answers of the police officer prejudiced defendant is also an afterthought. The plain purpose of the cross-examination was to show to the jury that while the police had often arrested defendant they had-never been able to convict him of any of the charges made. Counsel for a defendant in a criminal case cannot voluntarily and intentionally bring out certain evidence, allow the same to stand, and then in this court complain that the defendant was injured thereby. In support of his present contention defendant cites cases like People v. Battaglia, 339 Ill. 297, that have no application to a record like the present one. In the case mentioned the court held that where the competent evidence in the record fails to show the defendant’s guilt beyond a reasonable doubt and the conviction in the lower court is likely to have been induced by an incompetent statement volunteered by a police officer that he took the defendant “off a street car . . . with three other pickpockets,” the conviction must be reversed, although the statement, upon motion of the defendant, was stricken out by the court. In that case the defendant, immediately after this statement was made, moved the court to withdraw a juror and continue the case, which motion was overruled.

Defendant contends that the court erred in overruling the motion for a new trial. In support of this contention he merely states that the case was tried “with, an utter disregard of the established rules of procedure as laid down by the decisions of the Supreme Court.” We assume that this statement refers to the first contention of defendant, that the court erred in refusing to hear and determine the question of the legality of the seizure before the commencement of the trial, and we have already passed upon that contention.

We have now considered all of the contentions raised by defendant. The judgment of the criminal court of Cook county is affirmed.

Affirmed.

Gteidley and Keener, JJ., concur.


text:
    First District.
    In re Petition of Anton J. Vesely under the Insolvent Debtors’ Act. Fred H. Meyer, respondent, appellant.
    Gen. No. 34,540.
    Opinion filed March 24, 1931.
    Guerine & Brust, for appellant; Guy C. Guerine and Sidney R. Tarkoff, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Inger Andersen, appellee, v. Jacob Klein, appellant.
    Gen. No. 34,576.
    Opinion filed March 24, 1931.
    Cassels, Potter & Bentley, for appellant; Kenneth B. Hawkins, of counsel.
    William T. Baird, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Richard J. Laffey, appellee, v. City of Chicago, appellant.
    Gen. No. 34,607.
    Opinion filed March 24, 1931.
    Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Samuel L. Golan, Assistant City Attorney, and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.
    Murphy O. Tate and Lloyd T. Bailey, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    James C. Ward, appellee, v. Grand Trunk Western Railway Company, appellant.
    Gen. No. 34,616.

      Opinion filed March 24, 1931.
    McOordie, Dent & Freeman, for appellant; Sidney K. Jackson, of counsel.
    Murphy O. Tate and Sehroeder & Metzger, for appellee; Werner W. Sehroeder, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Stanley J. Lassa, appellee, v. Paul S. Bergamini, appellant.
    Gen. No. 34,625.
    Opinion filed March 24, 1931.
    Charles J. Russell, for appellant.
    Blum & Jacobson, for appellee; Reuben S. Flacks, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Anna G. Flood and Emmet T. Flood, appellees, v. James Houlihan, appellant.
    Gen. No. 34,634.
    Opinion filed March 24, 1931.
    Rehearing denied April 6, 1931.
    Henry N. Miller and John M. Grimes, for appellant.
    Laurence M. Fine, for appellees.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Benzoline Motor Fuel Company, appellee, v. Consumers Petroleum Company, appellant.
    Gen. No. 34,646.
    Opinion filed March 24, 1931.
    William Jaffe, .for appellant; Bennison F. Bartel and Alexander J. Isaacs, of counsel.
    Samuels, Costello & Greenberg, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Lussky, White & Coolidge, Inc., appellee, v. Thomas F. Kennelly, appellant.
    Gen. No. 34,667.
    Opinion filed March 24, 1931.
    John J. Kelly, for appellant; Edwin J. Buckley, of counsel.
    Haffenberg, Kopald & Burns, for appellee; Joseph Rosenbaum, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Peoples State Bank of Arlington Heights, appellee, v. Herman F. Redeker et al., appellants.
    Gen. No. 34,386.
    Opinion filed March 24, 1931.
    Rehearing denied April 6, 1931.
    Benedict J. Short, Joseph Z. Willner and Hugo J. Thai, for appellants; Joseph Z. Willner and Bernhardt Frank, of counsel.
    C, H. Sippel, Emmet J. Cleary and Oliver B. Opsahl, for appellee; C. H. Sippel, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Sheridan Electric Sign Service, plaintiff in error, v. Sam Kerman, defendant in error.
    Gen. No. 34,481..
    Opinion filed March 24, 1931.
    Walter P. Murphy .and Robert L. Floyd, for plaintiff in error.
    Louis J. Victor, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    John Ehardt and Mathias Ehardt, plaintiffs in error, v. Max Sugarman, defendant in error.
    Gen. No. 34,499.
    Opinion filed March 24, 1931.
    Smietanka, Poulton & Bryant, for plaintiffs in error; Morton John Barnard, of counsel.
    Cummings & Wyman, for defendant in error; Harold Engstrom, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Max Lowell Cable and Alex H. Spitz, trading as Cable & Spitz, appellees, v. C. O. Dobroth and R. Dobroth, trading as R. Dobroth & Company, appellants.
    Gen. No. 34,528.
    Opinion filed March 24, 1931.
    David J. Murphy, for appellants.
    No appearance for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Helen Bruszewski, plaintiff in error, v. Victor Neamond, defendant in error.
    Gen. No. 34,554.
    Opinion filed March 24, 1931.
    Rehearing denied April 6, 1931,

      Joseph A. Weber, for plaintiff in error.
    Willard O. Lindsay, for defendant in error; B. M. Shaffner, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    John Westwood, defendant in error, v. Rose Bodington, plaintiff in error.
    Gen. No. 34,566.
    Opinion filed March 24, 1931.
    Rehearing denied April 6, 1931.
    Charles J. Trainor, for plaintiff in error.
    Ernest C. Reniff, for defendant in error. .
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Harry Englestein, plaintiff and appellee, v. Dr. Simmons C. Hamilton and Dr. Clarence H. Payne, defendants, on appeal of Dr. Simmons C. Hamilton, appellant.
    Gen. No. 34,573.
    Opinion filed March 24, 1931.
    Morris & Cashin, for appellant; Thomas P. Harris, of counsel.
    Samuels, Lawton & Wittelle, for appellee; David Brandwein, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Kernel'

text:
    Joseph A. Laibl, appellee, v. Jerome P. Zelenka, appellant.
    Gen. No. 34,158.
    Opinion filed March 24, 1931.
    Charles T. Palmer, for appellant.
    Moss &• Ellman, for appellee; Walter E. Moss, of counsel.
   Mr. Justice Kernel'

delivered the opinion of the court.


author: Mr. Justice Kerner

text:
    Peter J. Manusos, defendant in error, v. Martin Grosby, plaintiff in error.
    Gen. No. 34,492.
    Opinion filed March 24, 1931.
    Irwin Grossman, for plaintiff in error; Ben A. Stewart, of counsel.
    M. L. Carmody, for defendant in error.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    John R. Geary, appellant, v. M. L. Koenig and N. W. Koenig, appellees.
    Gen. No. 34,503.

      Opinion filed March 24, 1931.
    Kelly & Murphy, for appellant.
    Clinton O. Thompson, for appellees.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    William H. Burn, appellee, v. Lee Sturges, appellant.
    Gen. Mr. 34,564.
    Opinion filed March 24, 1931.
    Scott, MacLeish & Falk, for appellant; John E. MacLeish and O. C. Sprague, of counsel.
    C. E. Stenning, C. C. Cunningham and C. L. Mahony, for appellee; Chester D. Kern, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Harry J. Fireman, appellee, v. Oliver F. Smith et al., defendants, on appeal of Oliver F. Smith, appellant.
    Gen. No. 34,579.
    Opinion filed March 24, 1931.
    Ossian Cameron and Edward H. S. Martin, for appellant.
    Wolfsohn & Fireman, for appellee; Arthur Chittick, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Michael M. Egan, appellee, v. Carlos Ames et al., appellants.
    Gen. No. 34,583.
    Opinion filed March 24, 1931.
    Samuel A. Bttelson, Corporation Counsel, and Francis J. Vurpillat, Special Assistant Corporation Counsel, for appellants.
    No appearance for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Merchants and Manufacturers Securities Company, appellant, v. John Duffy and Mrs. John Duffy, also known as Margaret Duffy, appellees.
    Gen. No. 34,589.
    Opinion filed March 24, 1931.
    Mort D. So Frank Goldberg, for appellant; Frank Goldberg and Jack Lasky, of counsel.
    Harry D. Knight, for appellees.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Thomas Magrames, appellant, v. Moraw Construction Company, appellee.
    Gen. No. 34,601.
    Opinion filed March 24, 1931.
    Earl V. Cates and Arthur Abraham, for appellants.
    Tannenbaum, Polikoff So Schmidt, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Edward T. Speakman, appellee, v. Dillwyn M. Bell, appellant.
    Gen. No. 34,610.
    Opinion filed March 24, 1931.
    Loucks, Eckert & Peterson, for appellant.
    Barthell So Rundall, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Lino Bros., Inc., appellee, v. P. J. Corrigan, appellant.
    Gen. No. 34,661.
    Opinion filed March 24, 1931.
    Rehearing denied April 6, 1931.
    Elmer D. Brothers and Jesse B. Luse, for appellant; William A. Adams and Lester C. Childs, of counsel.
    Church, Traxler & Kennedy, for appellee; M. B. Kennedy and Len Young Smith, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Mary Laskowski, appellant, v. Josef Laskowski, appellee.
    Gen. No. 34,679.
    Opinion filed March 24, 1931.
    Erwin E. Cowen, for appellant; Edward McTiernan, of counsel.
    Otto Schusterman, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


author: Mr, Justice Kerner

text:
    Elsie L. Nystrom, appellant, v. Albert H. Nystrom, appellee.
    Gen. No. 34,691.
    Opinion filed March 24, 1931.
    Leslie H. Whipp, for appellant.
    David J. Bentail, for appellee,
   Mr, Justice Kerner

delivered the opinion of the court,


author: Mr. Presiding Justice Matchett

text:
    Leon L. Loehr, administrator of the estate of Albert Dickinson, deceased, complainant, v. Emma Benham Dickinson et al., defendants. Chicago Historical Society, appellant.
    Gen. No. 34,605.
    Opinion filed April 6, 1931.
    Loesch, Scofield, Loeseh & Richards, for appellant.
    Follansbee, Shorey & Sehupp and Rosenthal, Hamill & Wormser, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Mary Venn, defendant in error, v. Edward B. Joyce, plaintiff in error.
    Gen. No. 34,874.
    Opinion filed April 6, 1931.
    Cohen & Berke, for plaintiff in error; Benjamin E. Cohen and Mayer Goldberg, of counsel.
    Irving E. Read and Kirkland, Fleming, Green & Martin, for defendant in error; David Jaeker and William H. Symmes, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Triangle State Bank, appellant, v. Milford F. Henkel, appellee.
    Gen. No. 34,889.
    O’Connor, J., concurs in part.
    Opinion filed April 6, 1931.
    Rehearing denied April 21, 1931.
    Deneen, Healy & Lee, for appellant; Harry W. Lippincott and Marshall A. Pipin, of counsel.
    James H. Turner, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Wilson & Scott Company, appellant, v. National Fiscal Corporation, appellee.
    Gen. No. 34,912.
    Opinion filed April 6, 1931.
    Rehearing denied April 21, 1931.
    Fred B. Houghton, for appellant.
    Watkins, Ten Hoor & Gilbert, for appellee; Theodore C. Diller, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Matehett

text:
    The Stearnes Company, appellant, v. Dr. George W. Funck et al., appellees.
    Gen. No. 34,921.

      Opinion filed April 6, 1931.
    Rehearing denied April 21, 1931.
    Edward E. Contarsy, for appellant; B. M. Steiner, of counsel.
    Edward J. Kelley and Newby & Murphy, for appellees; Edward J. Kelly and Olaire T. Driscoll, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Justice MeSurely

text:
    John Roland, appellant, v. William Ramsey, appellee.
    Gen. No. 34,924.
    Opinion filed April 6, 1931.
    W. G. Morgan, for appellant.
    W. C. Shipnes, for appellee.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    George F. Steger v. Chris G. Steger et al. Christina Hrountos et al., plaintiffs in error, v. George F. Steger et al., defendants in error.
    Gen. No. 34,845.
    Opinion filed April 6, 1931.
    Jacobson, Merrick, Nierman & Silbert, for plaintiffs in error.
    P. H. Bishop, for defendant in error George F. Steger. Trude & Kahane, for defendants in error Louise Rosena Steger et al. Brundage, Landon & Holt, for defendants in error Steger & Sons Piano Mfg. Co. et al.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Johnson Service Company, appellee, v. Paschen Bros., Inc., appellant.
    Gen. No. 34,979.
    Opinion filed April 6, 1931.
    Maxfield Weisbrod and John A. Taylor, for appellant; Maxfield Weisbrod, of counsel.
    Henry S. Shedd, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Frederick C. Sommers, appellee, v. Diversey Store Fixture Company, appellant.
    Gen. No. 35,009.
    Opinion filed April 6, 1931.
    Rehearing denied April 21, 1931.
    Jacob Levy, for appellant; J. M. Gwin, of counsel.
    No appearance for. appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Theodore B. Wells, by his next friend, Herbert J. Wells, appellee, v. Ann Naylor Wells, appellant.
    Gen. No. 35,086.
    McSurely, J., dissents.
    Opinion filed April 9, 1931.
    Rehearing denied April 21, 1931.
    Miller, Gorham & Wales, for appellant.
    Stevens, Carrier & Griffith, for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Presiding Justice Wilson

text:
    Henry Brott for use of Harry Wilk and Joseph Rozen, trading as Wilk & Rosen, defendant in error, v. Metropolitan Life Insurance Company, plaintiff in error.
    Gen. No. 34,555.
    Opinion filed April 15, 1931.
    Hoyne, O’Con-nor & Rubinkam, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Joseph C. Encher, trading as Lakes & Company, appellant, v. Anton Stakenas and Anele Stakenas, appellees.
    Gen. No. 34,584.
    Opinion filed April 15, 1931.
    Either & Either, for appellant.
    Kamfner & Halligan, for appellees; Irving Bilton, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.