text:
    Homer H. Schneider, defendant in error, v. Jay P. Bliss et al., plaintiffs in error.
    Gen. No. 32,911.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Harold O. Mulks, for certain plaintiffs in error. No appearance for defendant in error.
   Mr. Justice Matchett

delivered the opinion of the court.

Price Realty Securities Company, appellant, v. Eleanora Dropinski, appellee.

Gen. No. 32,945.

Action for commission in obtaining loan. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Albert B. George, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1928.

Affirmed.

Opinion filed January 21, 1929.

Rehearing denied February 4, 1929.

Julius L. Kabaker, for appellant. Ewart Harris, for appellee.

Mr. Justice Matehett delivered the opinion of the court.

Effie White, appellee, v. Protective Mutual Life Insurance Company of Illinois, appellant.

Gen. No. 32,963.

Action on life insurance policy. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. J. B. Lane, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1928.

Affirmed.

Opinion filed January 21, 1929.

Rehearing denied February 4, 1929.

Henry D. Brown, for appellant. Wendell B. Green, for appellee.

Mr. Justice Matchett

delivered the opinion of the court.

Sarah W. Sayre, appellant, v. Norbert A. Santschi, appellee.

Gen. No. 32,970.

Action for personal injuries sustained in automobile collision. Judgment for defendant. Appeal from the Superior Court of Cook county; the Hon. Harry C. Stuttle, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1928.

Reversed and remanded.

Opinion filed January 21, 1929.

Rehearing denied February 4, -1929.

John F. Voigt and Hume & Kennedy, for appellant. Philip H. Treacy, for appellee.

Mr. Justice Matchett

delivered the opinion of the court.

Ben Genson, appellee, v. A. L. Williams and Nannie May Williams, appellants.

Gen. No. 32,991.

Action on promissory note. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Martin H. Finneran, Judge, presiding. Heard in the first division of this .court for the first district at the October term, 1928.

Affirmed.

Opinion filed January 21, 1929.

A. L. Williams, for appellants. Hoffman & Golder, for appellee; Calmon R. Golder, of counsel.

Mr. Justice Matchett

delivered the opinion of the court.

Constance Rutkowski, appellee, v. M. Erens, appellant.

Gen. No. 33,009.

Action for personal injuries sustained in automobile collision. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. C. A. Hood, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1928,

Affirmed.

Opinion filed January 21, 1929.

Maxwell Landis, for appellant. Frank P. Sadler, for appellee.

Mr. Justice Matchett

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Stella Trysko, appellee, v. M. Erens, appellant.
    Gen. No. 33,010.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Maxwell Landis, for appellant. Frank P. Sadler, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Illinois Refrigerator Company, appellee, v. Charles F. Roberts and Ivan D. Tefft, appellant.
    Gen. No. 33,063.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Victor B. Scott, for appellants. Baker, Holder & Schmidt, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Midwestern Company, appellee, v. Warshawsky & Company, appellant.
    Gen. No. 33,099.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Schuyler, Weinfeld & Parker, for appellant; Wm. C. Graves, Fred Plotke and Carl J. Appell, of counsel. Albert Sabath, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Holdom

text:
    Joseph Harris, appellee, v. Chicago Title & Trust Company et al., appellants.
    Gen. No. 32,734.
    Heard in the third division of this court for the first district at the June term, 1928.
    Opinion filed January 30, 1929.
    Cooke, Sullivan & Ricks and Alden, Latham & Young, for appellant Chicago Title & Trust Company. Chapman & Cutler, for appellant Harris Trust & Savings Bank. Charles Martin, for appellant Addressing Machines Securities Company. Townley, Wild, Campbell & Clark, for appellee; Morris Townley, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Joseph Harris, appellee, v. Chicago Title & Trust Company et al., appellants.
    Gen. No. 32,735.
    Heard in the third division of this court for the first district at the June term, 1928.
    Opinion filed January 30, 1929.

      Cooke, Sullivan & Ricks and Alden, Latham & Young, for appellant Chicago Title and Trust Company. Chapman & Cutler, for appellant Harris Trust & Savings Bank. Charles Martin, for appellant Addressing Machines Securities Company. Townley, Wild, Campbell & Clark, for appellee; Morris Townley, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Interstate Optical Company, appellant, v. Illinois State Society of Optometrists and the Chicago Optometric Society, defendants. Illinois State Society of Optometrists and R. F. T. Lee, appellees.
    Gen. No. 32,799.
    Heard in the third division of this court for the first district at the June term, 1928.
    Opinion filed January 30, 1929.
    Bernard J. Brown and Jesse H. Brown, for appellant; Jesse H. Brown, of counsel. Nicholson, Crandall & Snyder, for appellees; John T. Chadwell and Francis G. Rearick, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Clarence H. Alexander, appellee, v. Charles Hoekstra and George H.. Hoekstra, trading as Hoekstra Overall Laundry, appellants.
    Gen. No. 32,823.
    Heard in the third division of this court for the first district at the June term, 1928.
    Opinion filed January 30, 1929.
    Kremer, Branand & Hamer, for appellants. Silber, Isaacs, Silber & Woley, for appellee; Donald N. Clausen, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Ryner

text:
    George Thomas Morris, defendant in error, v. Frank White et al., plaintiff in error.
    Gen. No. 32,904.
    Heard in the third division of this court for the first district at the October term, 1928.
    Opinion filed January 30, 1929.
    Hogan & Dougherty, for plaintiff in error. Clayton W. Mogg, for defendant in error.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    John H. Carbaugh, appellee, v. Chicago Title & Trust Company, as administrator with the will annexed of Charles A. Dickens, deceased, appellant.
    Gen. No. 32,941.
    Heard in the third division of this court for the first district at the October term, 1928.
    Opinion filed January 30, 1929.
    Kannally & Megan, for appellant; Charles P. Megan, of counsel. W. F. Mayer, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


author: Mr. Justice Wilson

text:
    John Burcz, appellant, v. Robert Peters, by his next friend, Edward Peters, appellee.
    Gen. No. 32,947.
    Heard in the third division of this court for the first district at the October term, 1928.
    Opinion filed January 30, 1929.
    La Buy & Liss, for appellant; Max C. Liss, of counsel. Harvey E. Wynekoop, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Henry Baldridge, plaintiff in error, v. Lucilius Drane and John W. Booker, defendants in error.
    Gen. No. 32,959.
    Heard in the third division of this court for the first district at the October term, 1928.
    Opinion filed January 30, 1929.
    Oavender & Milchrist, for plaintiff in error. Lyons & Sherrard, for defendants in error; Arthur A. Sherrard and Edward J. Lyons, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Robert E. Hogan, appellee, v. Joseph F. Bauer, appellant.
    Gen. No. 32,993.
    Heard in the third division of this court for the first district at the October term, 1928.
    Opinion filed January 30, 1929.
    Juul & Both, for appellant. No appearance for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Sam W. Lew, appellee, v. John Raklios, appellant.
    Gen. No. 33,032.
    Heard in the third division of this court for the first district at the October term, 1928.
    Opinion filed January 30, 1929.
    Rehearing denied February 14, 1929.
    Rose & Symmes, for appellant. Julius L. Kabaker, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    La Salle Steel Company, appellee, v. Joanna E. Downes, appellant.
    Gen. No. 33,062.
    Heard in the third division of this court for the first district at the October term, 1928.
    Opinion filed January 30, 1929.
    Rehearing denied February 14, 1929.
    O. W. Armstrong, for appellant. Hoffman & Golder, for appellee; Calmon R. Golder, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    Henry Brelie, appellee, v. David. Saul Klafter and Amanda E. Klafter, appellants.
    Gen. No. 32,815.
    Heard in the first division of this court for the first district at the June term, 1928.
    Hatchett, J., dissenting.
    Opinion filed February 11, 1929.
    Additional opinion filed February 27, 1929.
    Perlman, Goodman & Scolnik, for appellants. Loueks, Eckert & Peterson, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Percival B. Coffin, administrator of the estate of Henry F. McWilliams, Sr., deceased, appellee, v. City of Chicago et al., defendants, on appeal of City of Chicago, appellant.
    Gen. No. 32,997.
    Heard in the first division of this court for the first district at the October term, 1928.
    Matchett, J., dissenting.
    Opinion filed February 11, 1929.
    Samuel A. Ettelson, corporation counsel and William D. Saltiel, city attorney, for appellant; Stanley C. Armstrong and George D. Mills, assistant city attorneys, and Roy S. Gaskill and E. Marshall Amberg, assistant corporation counsel, of counsel. Finn & Miller, for appellee; Frank Johnston, Jr., of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. E. W. Damon, plaintiff in error.
    Gen. No. 33,006.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    John F. Cashen, Jr., for plaintiff in error. Robert E. Crowe, state’s attorney, for defendant in error; Edward E. Wilson, assistant state’s attorney, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    William Jaekel, appellant, v. Maurice V. H. Puckey et al., appellees.
    Gen. No. 33,030.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    Walter Zittenfield, for appellant. Frederick Mayer, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    The People of the State of Illinois, defendant in error, v. Victor J. Cerwinski, plaintiff in error.
    Gen. No. 32,922.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    T. Fred Laramie, for plaintiff in error. John A. Swanson, state’s attorney, for defendant in error; Edward E. Wilson, assistant state’s attorney, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    C. J. Gorman, defendant in error, v. T. J. Casey, plaintiff in error.
    Gen. No. 32,974.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    Rehearing denied February 25, 1929.
    Rose & Symmes and Philip J. O’Mahony, for plaintiff in error. Tyrrell, Higgins & Gladstone, for defendant in error; Maxfield Weisbrod and James H. Cronin, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Catherine G. Welter, appellee, v. Ruby H. Schell, appellant.
    Gen. No. 32,985.
    Heard in the first division of this court for the first district at the December term, 1928.
    Opinion filed February 11, 1929.
    Amos W. Marston and Sheridan E. Fry, for appellant. Earl J. Walker, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Vincent Sentowski, appellee, v. The Checker Taxi Company, appellant.
    Gen. No. 33,005.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    Cook & Albert, for appellant; Clyde C. Fisher, of counsel. Ernest C. Reniff and Gilbert Nelson, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Ralph Vicedomini, appellee, v. Leon Kirk and Odell L. Kirk, trading as Leon Kirk & Son, and Sam Orner, appellants.
    Gen. No. 33,093.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    Rehearing denied February 25, 1929.
    Harry J. Lurie and Morris A. Mills, for appellants. Solberg, Hummeland & Winans, for appellee; Kellam Foster, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Revere Electric Company, appellee, v. Claude W. Morris, appellant.
    Gen. No. 33,102.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    Austin L. Wyman, for appellant. Litsinger, Healy & Reid, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court,


text:
    Anthony J. Greenys and Julia Greenys, defendants in error, v. John Jonalis, plaintiff in error.
    Gen. No. 33,171.
    Heard in the first division of this court for the first district at the December term, 1928.
    Opinion filed February 11, 1929.
    Edward J. Green, for plaintiff in error; Harry F. Brewer, of counsel. Benjamin E. Cohen and Samuel Berke, for defendants in error; John M. Humphrey, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Alyce May Zemke, appellee, v. Morris W. K. Byrne et al., defendants. Morris W. K. Byrne, appellant.
    Gen. No. 32,982.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    Rehearing denied February 25, 1929.
    Henry M. Hagan, for appellant; Charles H. Aldrich and Chester D. Kern, of counsel. Litsinger, Healy & Reid, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    George P. Racine, appellant, v. R. E. Lubbers, appellee.
    Gen. No. 33,054.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    Joseph Granick and Edward N. Sherburne, for appellant. Moses, Kennedy, Stein & Bachrach, for appellee; Julius Moses and Walter H. Moses, of counsel.
   Mr. Justice Matchett

delivered the'opinion of the court.


text:
    J. Madison Pace, appellant, v. The Capitol Garage, Inc., and William M. Carleton, appellees.
    Gen. No. 33,090.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    Harry Hoffman, for appellant; Clyde C. Fisher, of counsel. No appearance for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Joseph Korman, appellee, v. Morris Goldman, appellant.
    Gen. No. 33,108.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed February 11, 1929.
    Rehearing denied February 25, 1929.
    Joseph Rosenberg, for appellant; Benjamin Rosenberg, of counsel. Koven & Perlman, for appellee; Henry H. Koven, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Gridley

text:
    Anna D. Sielaff, administratrix of the estate of William C. Sielaff, deceased, defendant in error, v. James E. Bennett et al., trading as James E. Bennett & Co., plaintiffs in error.
    Gen. No. 32,739.
    Heard in the second division of this court for the first district at the June term, 1928.
    Opinion filed February 14, 1929.
    Moses, Kennedy, Stein & Bachrach, for plaintiffs in error; Walter Bachrach and Isaac E. Ferguson, of counsel. Solberg, Hummeland & Winans, for defendant in error; Kellam Foster, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Rose Hornat, a minor, by Frank Hornat, her father and next friend, appellee, v. National Cash Register Company, appellant.
    Gen. No. 32,930.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    John A. Bloomingston, for appellant. Philip Rosenthal, for appellee; Stuart B. Krohn, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Louis Schwartz, appellant, v. Mathias Hoffman, appellee.
    Gen. No. 32,936.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    L. A. Sherwin, for appellant. Rathje, Wesemann, Hinckley & Barnard, for appellee; Francis E. Hinckley, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. B. A. Crenshaw, plaintiff in error.
    Gen. No. 32,946.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Rehearing denied February 27, 1929.
    J. Gray Lucas, for plaintiff in error. John A. Swanson, state’s attorney, for. defendant in error; Arthur Carlsten and Edward H. Taylor, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Lincoln National Life Insurance Co., complainant (Anna V. Barry, defendant-appellant), v. Joseph David Barry, Anna G. Barry, and Anna V. Barry, defendants (Joseph David Barry and Anna G. Barry, appellees).
    Gen. No. 32,961.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Frank A. O’Donnell, for appellant; Randolph Thornton, of counsel. Kelly & Murphy, for appellees; Frank F. Trunk and John E. Kelly, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Edward Ropp and F. L. Hanks, trading as Marvel Motor Co., appellees, v. John W. Barnes, appellant.
    Gen. No. 32,992.
    Heard in the second division of this court for the first district at the Octobter term, 1928.
    Opinion filed February 14, 1929.
    Sumner C. Palmer, for appellant.
    No appearance for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Rosalina Soldato, appellee, v. Congregazione di Mutuo Soccoro San Rocco di Modugno, appellant.
    Gen. No. 33,003.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Vito B. Cuttone, for appellant; Clyde C. Fisher, of counsel. Cairoli Gigliotti, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    Anton Leda, plaintiff in error, v. W. W. Klemm et al., defendants in error.
    Gen. No. 32,888.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Ruben B. Kilgore, for plaintiff in error; Joseph G. Gorman, of counsel. Edward I. Rothbart and Seymour M. Lewis, for defendants in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    E. J. Wentzel & Company, defendant in error, v. Charles Atkinson, plaintiff in error.
    Gen. No. 32,933.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Clement L. Harrell, for plaintiff in error. Joseph B. Lawler, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    S. N. Crowen, defendant in error, v. Hyman Meyer and Rose Meyer, plaintiffs in error.
    Gen. No. 32,943.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Gallagher, Shulman & Abrams, for plaintiffs in error.
    William McKinley and Paul E. Price, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Charles Bagviles, plaintiff in error, v. Western & Southern Life Insurance Company, defendant in error.
    Gen. No. 32,952.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Cohen, Tomas & Cohen, for plaintiff in error; George B. Cohen, of counsel. Hoyne, O’Connor & Rubinkam, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Manufacturers Terminal Company, appellant, v. Waukegan Foundry Company, appellee.
    Gen. No. 32,998.
    Heard in the second division of this court for the first district at the October term, 1928.

      Opinion filed February 14, 1929.
    Rehearing denied February 27, 1929.
    William A. Rogan, for appellant; William C. Burns and R. Hamlin Petty, of counsel. Hamlin, Topliff & Cooper, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Manufacturers Terminal Company, appellant, v. Waukegan Foundry Company, appellee.
    Gen. No. 32,999.
    Heard in the second division of this court for the Mst district at the October term, 1928.
    Opinion filed February 14, 1929.
    Rehearing denied February 27, 1929.
    William A. Rogan, for appellant; William C. Burns and R. Hamlin Petty, of counsel. Hamlin, Topliff & Cooper, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Manufacturers Terminal Company, appellant, v. Waukegan Foundry Company, appellee.
    Gen. No. 33,000.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Rehearing denied February 27, 1929.
    William A. Rogan, for appellant; William C. Burns and R. Hamlin Petty, of counsel.
    Hamlin, Topliff & Cooper, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    American Bonding & Casualty Company et al., complainants, v. Chicago Bonding & Insurance Company et al., defendants. In re claim of Adolph J. Sabath, Nos. 352, 471, 472, appellant.
    Gen. No. 33,028.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Samuel P. Gurman, for appellant. Wetten, Pegler & Dale, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Max L. Rasoff, appellant, v. Yellow Cab Company, appellee.
    Gen. No. 33,034.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Martin M. Gross, for appellant. Samuels, Costello & Greenberg, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Benjamin Cooke, appellant, v. Louis Schneider et al., appellees.
    Gen. No. 33,055.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Ratner, Chapman & Ratner, for appellant; William E. Rafferty, of
    counsel.
    Pines, Morse & Stein, for appellees; Alvin E. Stein, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Benjamin Blumenthal, plaintiff in error, v. Barney Braverman, defendant in error.
    Gen. No. 32,918.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Rehearing denied February 27, 1929.
    Jacob Levy, for plaintiff in error; J. M. Gwin, of counsel.
    Hyland J. Paullin, for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Jesse R. Hunter, appellant, v. Jennie M. Hunter, appellee.
    Gen. No. 32,921.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Bush B. Johnson, for appellant. Frank J. Madden, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Frona Lee, appellee, v. Abraham Hassen, appellant.
    Gen. No. 32,940.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Rudolph & Arthur E. Frankenstein, for appellant. Hugh R. Porter, for appellee; Harry F. Brewer, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Anna Marie Brown, appellee, v. Yellow Cab Company, appellant.
    Gen. No. 32,949.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.

      Samuels, Costello & Greenberg, John E. Kehoe, and Busby, Weber, Miller & Donovan, for appellant; Benjamin Samuels, of counsel. Murphy O. Tate, for appellee; Leo M. Tarpey, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Aetna Acceptance Company, appellee, v. Carl H. Reese, appellant.
    Gen. No. 32,968.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Rehearing denied February 27, 1929.
    Edward A. Biggs and Edwin S. Goltry, for appellant.
    William S. Kleinman, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    William J. Croke, appellant, v. August H. Arnold, appellee.
    Gen. No. 32,986.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    McElroy, Rollo, Ehrhardt & Quigley, for appellant; Walter Wm. Pearson, of counsel.
    A. L. Schapiro, for appellee; Millard C. Eiseman, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Sol Simons for the use of S. Morris, appellee, v. Louis Slutsky, appellant.
    Gen. No. 33,031.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Rehearing denied February 27, 1929.
    Harold A. Fein, for appellant. Benjamin B. Morris, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Edward K. Howard, administrator of the estate of Edward P. Howard, deceased, appellee, v. City of Chicago, appellant.
    Gen. No. 33,052.
    Heard in the second division of this court for the first district at the October term, 1928.
    Opinion filed February 14, 1929.
    Samuel A. Ettelson, corporation counsel and William D. Saltiel, city attorney, for appellant; E. Marshall Amberg, Roy S. Gaskill and Cora B. Hirtzel, assistant corporation counsel, of counsel. Woods & Bishop, for appellee;.John E. Foster, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    Second District.
    Charles Westfall, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 7,931.
    Heard in this court at the May term, 1928.
    Opinion filed January 25, 1929.
    Early & Early, for appellant. Hall & Dusher, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    John W. Zwicker and Lillie E. Zwicker, appellants, v. Farmers State Bank of Preemption and John McManus, appellee.
    Gen. No. 7,958.
    Heard in this court at the October term, 1928.
    Opinion filed January 25, 1929.
    W. B. Schroder and Earl L. Scott, for appellants. Marshall & Marshall and Walter L. Mannon, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Frank E. Gibbons, appellant, v. J. D. Strutzel and Frank Strutzel, trading as J. D. Strutzel Auto Company, appellees.
    Gen. No. 7,974.
    Heard in this court at the October term, 1928.
    Opinion filed January 25, 1929.
    Hyer & Gill, for appellant. Frank E. Maynard, for appellees.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    First National Bank of Morrison, appellee, v. Fred Beswick, appellant.
    Gen. No. 7,980.
    Heard in this court at the October term, 1928.
    Opinion filed January 25, 1929.
    Myron C. Rogers, for appellant. W. A. Blodgett, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Presiding Justice Jones

text:
    Eugene Bolle, appellant, v. Chicago & Northwestern Railway Company, appellee.
    Gen. No. 7,920.
    Heard in this court at the May term, 1928.
    Opinion filed January 31, 1929.
    Ryan & Rosenthal and Paul MaeGuffin, for appellants; Joseph D. Ryan, of counsel. Nelson J. Wilcox and I. C. Belden, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    James N. Huston, appellant, v. W. B. Pusey, appellee.
    Gen. No. 7,943.
    Heard in this court at the October term, 1928.
    Opinion filed January 31, 1929.
    Rehearing denied February 12, 1929.
    Robert C. Carr, for appellant. W. B. Pusey, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Edward J. Gallagher, appellant, v. John W. Hayden, appellee.
    Gen. No. 7,950.
    Heard in this court at the October term, 1928.
    Opinion filed January 31, 1929.
    M. H. Cleary, for appellant. Frank T. Sheean, for appellees.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    The People of the State of Illinois, appellant, v. Robert Peters, appellee.
    Gen. No. 7,969.
    Heard in this court at the October term, 1928.
    Opinion filed January 31, 1929.
    John L. Brearton, state’s attorney, for appellant. John R. Connell, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


author: Mr. Justice Jett

text:
    Dee Elien Dady, appellant, v. Ralph John Dady, appellee.
    Gen. No. 7,916.
    Heard in this court at the May term, 1928.
    Opinion filed February 26, 1929.
    Bangs & Frankhauser, for appellant; Wendell McHenry, of counsel. Martin C. Decker and George W. Field, for appellee; Martin C. Decker, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Lisetta Bird, appellee, v. Charles Tyler, Jr., appellant.
    Gen. No. 7,924.

      Heard in this court at the May term, 1928.
    Opinion filed February 26, 1929.
    George W. Hunt, for appellant. Shelton F. McGrath, of counsel. Harry K. Ward, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Davis-Watkins Dairymen’s Manufacturing Company, appellant, v. William Ohlhaver Company, appellee.
    Gen. No. 7,954.
    Heard in this court at the October term, 1928.
    Opinion filed March 2, 1929.
    John W. Bennett, for appellant; Walter H. Shurtleff, of counsel. Mighell, Gunsul & Allen, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    Third District.
    Clara L. Janssen, appellee, v. H. Fred Janssen, appellant.
    Gen. No. 8,229.
    Heard in this court at the April term, 1928.
    Opinion filed October 15, 1928.
    W. St. J. Wines, for appellant. John G. Friedmeyer, A. M. Fitzgerald and H. C. Moore, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    A. E. Satterlee, administrator of the estate of Kathryn E. Satterlee, deceased, appellant, v. Chicago & Eastern Illinois Railway Company, appellee.
    Gen. No. 8,232.
    Heard in this court at the April term, 1928.
    Opinion filed October 15, 1928.
    Lester K. Vandever and M. J. Brown, for appellant. Hill & Burlington, for appellee; H. T. Dick, of counsel.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    Fourth District.
    George W. Ludwig, appellee, v. Ella E. Burgess et al., appellants.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.

      D. F. Moore, for appellants. Walter W. Williams and Thurlow G. Lewis, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Bertha Dressel et al., appellants, v. L. R. McKinley, appellee.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Eugene W. Kreitner, for appellants. P. K. Johnson, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court,


text:
    George Albrecht et al., plaintiffs in error, v. August Lohse et al., defendant in error.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Robert Ferdinand Tunnell, for plaintiffs in error. Barnett, Wilson & Tichenor and Warnock, Williamson & Burroughs, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    N. C. Gochenour, Trustee, etc., appellee, v. The Farmers and Merchants State Bank et al., appellants.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Holt & Holt, for appellants. John A. Matheny and Wm. M. Albert, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    S. E. Phelan, appellee, v. Zwick Mercantile Co., appellant.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    H. F. Knox, for appellant. William H. Hart, William W. Hart and Marion M. Hart, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Belleville Bank & Trust Company, administrator, etc., appellee, v. Biebel Roofing Company et al., appellant.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    P. C. Otwell and P. K. Johnson, for appellants. Clyde D. Miller, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr, Justice Newhall

text:
    The People of the State of Illinois, defendant in error, v. Selso Cruz et al., plaintiffs in error.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Charles A. Karch, D. E. Keefe and Philip G. Listeman, for plaintiffs in error. H. C. Lindauer, state’s attorney, for defendant in error; Curt C. Lindauer and John T. Thomas, assistant state’s attorneys, of counsel.
   Mr, Justice Newhall

delivered the opinion of the court.


author: Mr. Justice Newhall

text:
    E. S. Bundy and D. W. Stull, defendants in error, v. Leo I. Dwyer, plaintiff in error.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    D. F. Moore and John A. Logan, for plaintiff in error. Moses Pulverman and Tillman B. Cantrell, for defendants in error.
   Mr. Justice Newhall

delivered the opinion of the court,


text:
    Anna Read, appellee, v. Terminal Railroad Association of St. Louis, appellant.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Kramer, Kramer & Campbell and R. E. Costello, for appellant. Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.


text:
    Nora Scherpe, appellee, v. George M. Miller, appellant.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    John C. Roberts and R. E. Costello, for appellant; Roger E. Chapin, of counsel. Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.


text:
    Jesse Sutton, appellee, v. Home Insurance Company, appellant.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Rehearing denied February 26, 1929.
    B. O. Sumner, for appellant. Gee & Gee, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.


text:
    A. P. Chamberlain, appellee, v. East St. Louis Yellow Cab Co., appellant.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Raymond B. Hendricks, for appellant; R. V. (Justin, of counsel. Clyde D. Miller, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.


text:
    Benjamin Harrison, by Elmer Harrison, his father and next friend, appellee, v. E. N. Langston, appellant, and Thomas Romaine.
    Heard in this court at the May term, 1928.
    Opinion filed February 1, 1929.
    Ralph Cook, for appellant. MeGlynn & MeGlynn, for appellee.
   Mr, Justice Newhall

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    L. J. Goeppner, defendant in error, v. Auto Owners Underwriters, plaintiff in error.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    E. D. Telford and Miller & Streeter, for plaintiff in error. Holt & Holt and June C. Smith, for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Hazel Rettle, appellee, v. East St. Louis & Suburban Railway Co., appellant.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Farmer & Klingel, for appellant. Louis J. Grossmann, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    The Kansas & Sidell Railroad Company, appellant, v. B. F. Parker et al., appellees.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Milo D. Yelvington and'O’Hair & McClain, for appellant. William E. Isley, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Crews State Bank & Trust Co., appellee, v. Laura B. Humes, appellant.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    G. F. Taylor, for appellant. Byron Piper, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Robert Nicklich, appellee, v. John Souris, appellant.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    J. J. Buffington, for appellant. P. K. Johnson, for Appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Agnes Santha, executrix of the estate of Steve Santha, deceased, appellee, v. Steve Lasslo, appellant.
    Opinion filed February 1, 1929.
    Harry Faulkner, for appellant. M. R. Sullivan, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr, Justice Wolfe

text:
    Allie Jones, appellant, v. Illinois Bell Telephone Company, appellee.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    L. A. Cranston, for appellant. Ropiequet & Freels and Cutting, Moore & Sidley, for appellee; John W. Freels, of counsel.
   Mr, Justice Wolfe

delivered the opinion of the court.


text:
    Rockford Amusement and Refreshment Company, Appellee, v. Harry H. Baldwin, Sheriff of Winnebago County, Illinois, and County Board of Supervisors of Winnebago County, Illinois, Appellants.
    Gen. No. 7,961.

      Opinion filed February 21, 1929.
    William D. Knight, State’s Attorney and A. B. Louison, Assistant State’s Attorney, for appellants.
    Frank E. Maynard, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

Rockford Amusement and Refreshment Company, a corporation, obtained a judgment awarding a writ of mandamus, directing the Board of Supervisors of. Winnebago County et al., to issue a license to that company to maintain and operate a dance hall and road house. The respondents in that case perfected an appeal which is now pending in" this court [251 111. App. 599].

After said appeal was perfected, appellee filed a bill in chancery against the sheriff and board of supervisors, for an injunction restraining them from interfering with appellee and its business of conducting a dance hall and road house at the location involved in the mandamus proceeding, until the determination of the appeal in that case. The trial court granted a temporary injunction and overruled a general demurrer to the bill. Appellants elected to stand by their demurrer and a decree was entered making the injunetion permanent. This appeal is prosecuted to reverse that decree. The right to relief in this case is based upon a claim of irreparable injury resulting from a loss of anticipated income from the operation of the dance hall pending the appeal in the mandamus proceeding.

Section 1 of the act to regulate dance halls or road houses, Cahill’s St. ch. 34, ff 195, provides: “It shall hereafter be unlawful for any person or persons to operate or maintain a public dance hall or road house for the use of the general public outside of the limits of any city, village or incorporated town without first obtaining a license therefor from the county board of the county where the public dance hall is situated, in accordance with the provisions of this Act.” Since the enactment of that law, the right to engage in such business and to be protected by law in its prosecution can no longer be claimed a common-law right, but is a right which the statute prescribes. (People v. Cregier, 138 Ill. 401.) The mere fact that a license must be applied for and obtained under the terms of the statute, necessarily implies that no one has a right to operate or maintain a dance hall outside the corporate limits of cities and towns without a license. The statute expressly prohibits the conducting of any such business without first obtaining a license. The obtaining of such a license is a prerequisite to any right to engage in that business.

While it has been held that the statute is mandatory as to all persons and corporations who bring themselves within its provisions (Grove v. Board of Sup’rs of Piatt Co., Ill., 246 Ill. App. 241) it is of no consequence in this proceeding that appellee had applied for a license and had fully complied with the statute. The remedy by mandamus was complete and adequate. Appellee would not be justified in proceeding with the operation and maintenance of the dance hall without the license which the law requires and which the county board must grant when the law is complied with. Equity will not interfere because of the existence of a complete and adequate remedy at law. The fact that appellee may suffer losses from anticipated profits or that the refusal of a license was due to arbitrary and wrongful action of the county board will afford no ground for the interposition of a court of equity. (Grace Missionary Church v. City of Zion, 300 Ill. 513; Film Classics of Illinois v. Dever, 234 Ill. App. 614.) Injunction and mandamus are not correlative remedies in the sense of being applicable to the same subject matter. (Film Classics of Illinois v. Dever, supra; Fletcher v. Tuttle, 151 Ill. 41.)

Inasmuch as appellee had not obtained a license from the county board to operate and maintain a dance hall, its operation without a license would be unlawful, and the effect of an injunction would be to permit appellee to operate its dance hall in violation of the law. A court of equity has no such power. (City of Chicago v. O’Hare, 124 Ill. App. 290.) The provisions of the statute cannot be nullified by a chancery proceeding seeking to prevent the officers from enforcing it. If the administrative officers do not properly, exercise their functions under the law, the remedy is by mandamus. (Film Classics of Illinois v. Dever, supra.)

A somewhat similar-situation arose in Vitagraph Co. of America v. City of Chicago, 209 Ill. App. 591, and it was there held that a bill for injunction presented no cause for equitable relief.

For the reasons herein expressed, the decree is reversed and the cause remanded with directions to sustain the demurrer and dissolve the injunction.

Reversed and remanded with directions.


text:
    People’s National Bank of Monmouth, Defendant in Error, v. Walter Fernald, Commissioner, Plaintiff in Error.
    Gen. No. 7,984.
    Opinion filed February 21, 1929.
    Everett L. Werts and Hartzell, Cavanagh & Martin, for plaintiff in error.

      Louis H. Hanna and Charles E. Lauder, for defendant in error.
   Mr. Presiding Justice Jones

delivered the opinion of the - court.

An action was instituted'by People’s National Bank of Monmouth against Walter Fernald, commissioner of highways of Gladstone township in Henderson county to recover on an alleged interest-bearing anticipation warrant for $1,000. The warrant was issued by a former commissioner of highways of that township in payment of 1,667 tons of crushed stone, alleged to have been sold to the township by the Monmouth Stone Company.

Plaintiff sued as assignee of the warrant. Defendant filed a plea of the general issue and three special pleas. The first special plea averred that the order sued on is directed to the treasurer of the town of Gladstone road and bridge fund, and that there is no such officer. The second special plea is not in issue here. The third special plea averred that subsequent to the date of said warrant the Monmouth Stone Company became a bankrupt; that thereafter a Federal marshal was placed in charge of the property of the bankrupt, including said stone, which he refused to permit defendant to take; that the stone was permitted to lie exposed to the weather, whereby it became worthless, and that therefore the consideration for the warrant had wholly failed. A demurrer was sustained to the first special plea. A replication was filed to the third special plea and a similiter to the general issue. Judgment was entered upon a verdict for $933.33 in favor of plaintiff.

The principal question in this case is whether or not the warrant in question is sufficient on which to base a right of action. The warrant reads as follows:

“Order No.-Gladstone, 111., March 3, 1924.
Treasurer, Town of Gladstone
Road and Bridge Fund $1,000.00
“Pay to the order of Monmouth Stone Company the sum of One Thousand Dollars, for 1667 tons crushed stone.
“Road-Bridge-.
G. W. Sandy
Highway Commissioner.
Town Clerk
Approved March 3, 1924 C. R. A. Marshall County Supt. of Highways Henderson County, Til.”

“This warrant is issued in anticipation of the 1923 road and bridge levy of Gladstone Township when collected and bears interest at the rate of five per cent until paid.

Section 1 of the act in relation to warrants for public money, Cahill’s St. ch. 146a,‘ provides that warrants payable on demand shall be drawn and issued upon the treasurer of any county, township, etc., or against funds in his hands, only when at the time of the drawing and issuing of such warrants there shall be sufficient money in the appropriate fund in the treasury to pay the same. Section 2 provides that whenever there is not sufficient money in the treasury of any county, township, etc., to meet and defray the ordinary and necessary expenses thereof, it shall be lawful for the proper authorities thereof to provide a fund to meet said expenses by issuing and disposing of warrants drawn against and in anticipation of any taxes/ already levied by said authorities for the payment of such expenses, to the extent of 75 per cent of the total amount of any such tax levied. Provided, that such warrants shall show upon their face that they are payable solely from said taxes when collected and not otherwise.

It is claimed by defendant that the warrant in question is payable on demand, and therefore void, unless there was sufficient money in the treasury to pay it at the time it was issued. As a general rule, instruments which express no time of maturity are payable on demand. The warrant states on its face that “This warrant is issued in anticipation of the 1923 road and bridge levy of Gladstone Township when collected and bears interest at the rate of five per cent until paid.” The language clearly indicates that it was issued in anticipation of taxes levied for the road and bridge fund of 1923 when collected. Courts will take judicial notice of the time when taxes are collected. We are of the opinion that the warrant shows on its face that it is not a demand warrant, but an anticipation warrant. Demand warrants on public funds do not bear interest, and this one expressly provides for the payment of interest.

Defendant insists that the warrant should state upon its face that it is to be paid solely from the road and bridge fund when collected. A similar issue arose in Gray v. Board of School Inspectors of Peoria, 231 Ill. 63. In that case it is said; “These warrants say that they were issued in ‘anticipation of taxes of 1905.’ ” The language implies that the treasurer of the school fund shall pay them from the taxes of 1905 and that, fairly construed, means the school fund only.” It is to be noted that the warrants in that case did not state whether they were to be paid from the school fund or from the building fund, while in the case at bar, the warrant specifies that it is payable out of the road and bridge fund. In view of the Gray case, it must be held that the warrant shows on its face that it was an anticipation warrant payable solely out of the taxes then levied and to be collected for the road and bridge fund. It therefore sufficiently complies with the statute,

It is complained that plaintiff’s second given instruction ignored the issues on the questions of the deterioration of the stone and of the defendant’s being prevented from obtaining it. Both questions were fully presented to the jury by an instruction on behalf of defendant. Instructions are to be taken as a series, and the giving of the instruction complained of in connection with defendant’s instruction was not error.

Defendant insists that the amount of damages fixed by the jury was inconsistent with the evidence and that if plaintiff was entitled to any verdict, it should .have been for $1,000 and interest as provided in the warrant. The verdict was rendered for the exact sum which the record shows was paid for the warrant by plaintiff, and the bank is not here complaining of the amount awarded by the jury. Defendant cannot be heard to say that the damages assessed against him are too small. (Heyman v. Heyman, 210 Ill. 524; Reid v. Houston, 20 Ill. App. 48; Hedenberg v. Graham, 69 Ill. App. 142.)

Defendant contends that the trial court erred in permitting a witness to testify to the contents of plaintiff’s books of account and to the method of entering credit to plaintiff. No reason is assigned why such testimony is said to be incompetent, and it is not pointed: out where such testimony is to be found in the abstract or in the record. Courts of review will not consider alleged errors where a party merely calls attention to them, asserting they are errors. (City of Benton v. Blake, 259 Ill. 211; Western Tube Co. v. Pederson, 128 Ill. A.pp. 637.) Not being argued, the alleged errors are waived. (Dumbeck v. Walsh, 179 Ill. App. 239.)

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

Judgment affirmed.


text:
    Richard C. Howard, Appellee, v. Louis Mueller, Mayor of the City of Peoria, et al., Appellants.
    Gen. No. 7,927.

      Opinion filed February 15, 1929.
    Harry C. Heyl, Corporation Counsel, and Robert B. Kavanaugh, City Attorney, for appellants.

      George J. Jochem and George B. Sucher, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

Richard C. Howard, appellee, filed his petition for a writ of mandamus against appellants as officers of the City of Peoria to compel his reinstatement as a patrolman in the police department of that city and the payment of his salary as such patrolman. The petition alleges that on December 13, 1910, the City of Peoria adopted an ordinance creating a police department, embracing among other officers, 75 patrolmen and such other number of detectives and police patrolmen as thereafter from time to time should be fixed by the city council; that an act of the General Assembly,' providing for a board of fire and police commissioners [Cahill’s St. ch. 24, ft 958 et seq.] was adopted at an election held on April 5, 1910; that such board was thereafter appointed as by law provided, and that ever since the adoption of said act, said board has been maintained and still exists; that during the year 1922, petitioner applied to said board for an appointment as patrolman, successfully passed an examination as to his qualifications therefor, and was placed on the eligible list; that he was assigned to duty on September 20, 1922, and discharged the duties of patrolman from that time up to June 15, 1926, when the superintendent of police, without authority, summarily discharged him and caused his name to be removed from the roll of police officers of the city. The petition further alleges that no written charges were ever filed against him with said board and that no hearing has ever been granted to him upon any charges whatsoever.

Appellants filed an answer admitting the passage of the ordinance creating a police department, the adoption of the act relating to the board of fire and police commissioners, and the appointment of said board. The answer denies all the other material allegations of the petition. A trial was had by a jury resulting in a verdict for petitioner. Judgment was entered upon the verdict. The City of Peoria was not made a party to the proceeding, and for that reason the trial court refused to permit the jury to pass upon the question of salary. No cross error has been assigned and the claim for salary has been withdrawn from this proceeding, and therefore that question is eliminated from this appeal.

Appellee testified that he passed the examination for patrolman in 1922; that he afterwards received his appointment as patrolman and went to work on September 20, 1922, continuing his duties until he was discharged on June 15, 1926. He filed an oath and bond as patrolman for each of the calendar years 1924 and 1925. He also filed his oath and bond as sergeant for the calendar year 1926. These bonds were approved by the city council and were admitted in evidence. None of them shows by what authority he was appointed, and they are the only oaths or bonds offered in evidence. The record shows that appellee was carried as a patrolman on the rolls which were certified by the chief of police to the city comptroller and that he was paid as a patrolman. The ordinance referred to in the pleadings provides: “Sec. 1455: Department Established. — There is hereby established an executive department of municipal government of the City of Peoria, which shall be known as the ‘Police Department, ’ and shall embrace one Superintendent of Police, one Captain of Police, one Lieutenant of Police, three Sergeants of Police, one Roundsman, two Police Matrons, three Patrol Operators, four Detectives, seventy-five Patrolmen and such other number of Detectives and Police Patrolmen as hereafter from time to time be fixed by the City Council.”

The only evidence in the record concerning appellee’s appointment as a patrolman consists of his own testimony. No certificate of his appointment or record of the police department relating thereto was introduced or offered in evidence. There is no evidence in the record that appellee had ever been appointed as one of the 75 patrolmen mentioned in the ordinance, or that he was entitled to one- of such 75 offices. Nor was it shown that additional offices had been created as provided by the order and that he held one of such additional offices. The provision in section 1455 above quoted, that the police department shall embrace such other number of detectives and policfe patrolmen as hereafter from time to time be fixed by the city council, cannot be regarded as creating any office of patrolman. (Bullis v. City of Chicago, 235 Ill. 472; Moon v. Mayor, 214 Ill. 40.) The carrying of appellee’s name upon the payroll or the certification of the payrolls containing his name was not evidence of the legal existence of his office as police patrolman. (Bullis v. City of Chicago, supra; Kenneally v. City of Chicago, 220 Ill. 485.) If there was no such office as that which appellee was claiming to hold, it was wholly unnecessary to file charges against him before discharging him from the employment of the city. Under such a situation, he might be discharged at any time without cause and without notice. (Bullis v. City of Chicago, supra.)

Mandamus is an extraordinary remedy. It is necessary that the petition and the proof show a clear right to the writ. Where a petitioner claims a right to an office, it must affirmatively appear that the office legally exists and that the petitioner is lawfully entitled to hold it. It is not enough that he was acting in an official character, but it must be shown that he was an officer de jure and hot de facto. (People v. City of Chicago, 327 Ill. 62; Moon v. Mayor, supra; People ex rel. Sullivan v. Weber, 86 Ill. 283; Stott v. City of Chicago, 205 Ill. 281.) It was incumbent on appellee to show that he was one of the 75 patrolmen provided for in the ordinance, or that additional offices of patrolmen had been created and that he held one of such additional offices. The doctrine of estoppel does not apply to the facts in this record. (Bullis v. City of Chicago, supra.)

Appellants complain of the trial court’s refusal to admit in evidence certain rules and regulations of the police department relating to qualifications of patrolmen. The offered evidence is not preserved in the record, and it is not suggested wherein such rules or regulations show that appellee was not qualified for the office at the time he claims to have been appointed. We are unable to say that the court erred in excluding the evidence.

Testimony was offered by appellant to show that appellee waived the filing of written charges, notice to him, and a hearing on the charges. The trial court refused to admit the testimony and also refused an instruction relating to the question of waiver. Appellee failed to prove that he was an officer de jure. Until such proof was made, evidence on the question of waiver was immaterial. If upon another trial appellee’s incumbency as an officer de jure is established, then evidence tending to prove such a waiver would be competent. (People ex rel. McLaughlin v. Board of Police Com’rs of City of Yonkers, 174 N. Y. 450, 67 N. E. 78.) But a party may waive the advantage of a statute intended for his sole benefit. (Phelps v. Phelps, 72 Ill. 545.)

On March 1, 1926, after a hearing before the board of fire and police commissioners, appellee was reduced in rank from sergeant and suspended 30 days. He did not report to the board at the end of his suspension, or thereafter, although he went on duty as a patrolman. He filed no bond or oath as patrolman after his suspension, and the only bond he filed for the calendar year 1926 was his sergeant’s bond above mentioned.

Appellants offered in evidence an ordinance requiring each patrolman before entering upon the duties of his office to give a bond in the sum of $1,000 with surety to be approved by the city council. It is urged that the trial court erred in refusing to admit the ordinance in evidence. The petition in this case prays for appellee’s reinstatement as a patrolman. The record does not show that the offices of sergeant and patrolman are alike in duties or in any other respect. It is urged by appellee that the term “Policeman” in its generic sense includes every member of the police force, whatever be his grade or rank; that a police captain is a policeman, notwithstanding his superior rank, but this can be true only when it is used alone as a generic term, and as descriptive of the whole police force, officers as well as men, and not when officers and men are carefully segregated from each other in apt terms of distinctive organization. (State ex rel. Crow v. Vallins, 140 Mo. 523, 41 S. W. 887; 43 C. J. 762.) At the time of appellee’s suspension, he had been reduced to the rank of patrolman. A suspension from office makes the one suspended ineligible for the remainder of the same term until his reinstatement or the withdrawal of the charges. (State v. Dart, 57 Minn. 261; 59 N. W. 190; 29 Cyc., Officers, pages 1405,1406.) The office becomes as to the person suspended for the time being as though it did not exist.

The record does not show that appellee was ever reinstated after his suspension or that the charges upon which he was suspended were ever withdrawn. It is therefore apparent that until his reinstatement or the withdrawal of such charges, he was not from the time of his suspension a patrolman de jure. Appellee never qualified as a patrolman for the year 1926, and we are of the opinion that the court erred in refusing to admit the ordinance in evidence and to instruct the jury as to its effect.

For the errors above pointed out, the judgment of the trial court is reversed and the cause remanded.

jReversed and remanded.


author: Mr. Presiding Justice Holdom

text:
    May McConnaughy, Appellant, v. Frank J. Gage, Appellee.
    Gen. No. 32,830.

      Opinion filed February 27, 1929.
    Rehearing denied March 19, 1929.
    A. J. W. Appell and Van C. Winans, for appellant.
    Hutson & Traeger, for appellee; John Donald Bolger, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is a suit brought to enforce the payment of the following document:

“Chicago, Ills. 12/15 1916.
“Received of Mrs. Y. M. MeConnaughy Pour Thousand and Seven and no/100..................Dollars
( Certificate for $3033.60 )
( “ “ $ 973.40 )
( ) to be repaid to her and
( --)
( $4007.00 )
to bear 6% interest until paid in full.
$4007.00 . Prank J. Gage”

and the complaint declares upon that document as constituting plaintiff’s cause of action.

In defendant’s affidavit of merits he denies that he borrowed the $4,007 as alleged in plaintiff’s statement of claim, and in toto every other averment of such statement, and then sets up as an affirmative defense that the plaintiff furnished defendant with certain moneys for the express purpose of paying interest, taxes and other charges upon real estate in which plaintiff was a part owner; that he disbursed the same in accord with her directions, etc.; and denies that he is liable to account to plaintiff for said sum or any part thereof mentioned in the complaint.

Upon the cause being called for trial defendant procured, against the protest of plaintiff, leave to file an amendment to his affidavit of merits, in which he pleads the five-year statute of limitations, and avers that the cause of action in said complaint is barred by the five-year statute of limitations. A jury was impaneled and the case proceeded to trial, and the plaintiff to sustain her claim introduced in evidence the document above recited, and also called the defendant to the witness stand under section 33 of the Municipal Court Act, Cahill’s St. ch. 37, Ü 421, who testified, a& abstracted: ‘ ‘ My name is Frank J. Gage. I am in the real estate business, and I am the defendant in this case. The paper which is shown me is Plaintiff’s Exhibit 1 and my name appears thereon and everything on there is my handwriting. Q. You signed it? A. Yes, sir.”

Thereupon the document was marked plaintiff’s Exhibit 1, and at the suggestion of counsel for the defendant the document was read to the jury. Thereupon plaintiff rested her case. Defendant proffered no evidence.

The foregoing is all the evidence proffered or received on the hearing. Plaintiff thereupon moved for an instructed verdict in her favor, and tendered the motion in writing accompanied by a suitable iilstruction, with an appropriate form of verdict, all of which on the objection of defendant the court refused and denied plaintiff’s motion to instruct a verdict in her favor. After the court’s ruling the defendant made a motion to instruct the jury to return a verdict in his favor, which the court allowed and instructed the jury to return a verdict in favor of the defendant, which the jury did, whereupon plaintiff made motions for a new trial and in arrest of judgment, both of which being overruled the plaintiff preserved an exception to the action of the court in so doing. Thereupon the court entered judgment upon the verdict in favor of the defendant, to which plaintiff excepted, and plaintiff brings the record to this court for our review on appeal.

The bone of contention for our solution rests in the construction to be given to the document hereinbefore recited, which evidences the rights of the parties.

In the municipal court the parties, plaintiff and defendant, rested the case upon the document offered by plaintiff, and the evidence of the defendant. The rights of the parties are to be determined in this appeal on such proofs and none other.

Plaintiff contends that the document sued upon and in evidence is a note and defendant, on the contrary, contends that it is merely a receipt. The document fulfils all the requirements of the Negotiable Instruments Act to make it a note. It contains an unconditional promise to pay and to pay a sum certain in money, and while it does not contain the other requirement, a fixed or determinate future time of payment, it does in law constitute an engagement to pay the note on demand. In Knecht v. Boshold, 138 Ill. App. 430, it was held that this proposition stated a correct principle of law: “The court holds as a proposition of law that a note payable ‘after an indefinite time’ is in contemplation of law a note payable on demand. ’’ In White v. Smith, 77 Ill. 351, it was held that a note in which it is stipulated that the amount thereof was to be paid in such instalments as the directors of the payee might from time to time require, was a note payable on demand.

The note in question was not governed by the five-year statute of limitations, but being in writing was and is governed by the ten-year statute of limitations. Consequently the suit was commenced in apt time.

It is a familiar principle of law that a contract drawn by a party, who is charged with its execution, shall be construed in favor of the party in whose favor it is drawn and who is seeking to enforce it.

Defendant admits that the whole of the nqte is in his handwriting, and the law presumes that he knew that in the form in which he drew it, it was payable upon demand. It is not necessary for plaintiff to make a demand on defendant for payment. The commencement of the suit was in law a sufficient demand for payment. If defendant had sought to avail himself of the defenses set out in his affidavit of merits and the amendment thereto, he should have proceeded to make such defenses upon the trial, and having moved for an instructed verdict without so doing, in contemplation of law he waived all other defenses.

The introduction of the note in evidence, and the testimony of defendant unequivocally supporting the same, made a sufficient prima facie case entitling plaintiff to recover the amount due upon the note with interest as in said note specified. Libby, McNeil & Libby v. Cook, 222 Ill. 206; Visible M. G. D. Co. of America v. Suprunowski, 226 Ill. App. 107,. in which the court held that:

“When appellant offered the notes in evidence it established a prima facie case,' and in the absence of evidence to support the special pleas was entitled to a verdict. . . . The action of the court in directing a verdict in favor of appellee was contrary to the law and the evidence. ’ ’

In Victor v. Warner, 248 Ill. App. 35, it was held that the introduction of the note in evidence made out a prima facie case entitling the plaintiff to recover the amount due by its terms in the absence of countervailing proof.

Defendant argues that the insertion in parénthesis of the words and figures: .

‘ ‘ ( Certificate for $3033.60 )
( “ “ $ 973.40 )
( - )
( $4007.00 )”

rendered the meaning of the note incomplete or ambiguous/ and that oral evidence was admissible to explain the same. We think, however, that the parenthetical matter did not render the amount of the note ambiguous, for it stated the total of the two certificates as $4,007, the amount of the note. Furthermore, the court could not have committed error in this regard because defendant made no offer of proof one way or the other, but allowed the case to be determined upon the evidence of the note and his own testimony supporting the same in every particular, and without explanation we are entitled to assume that the words in parenthesis indicate that the defendant received the $4,007 in the form of money certificates. As held in McClenathan v. Davis, 243 Ill. 87, a promissory note being in the language of the maker, if the meaning is doubtful or ambiguous, such language will be construed most strongly against the maker. In Massie v. Belford, 68 Ill. 290, which is quite pertinent to the instant case, the court said:

“In the construction of written contracts, it is a well known rule of law that the intention of the parties who made the contract is to be determined from the whole instrument, and when the intention can be so ascertained it is the'duty of courts to carry it into effect. If a contract contains ambiguous words, or words of doubtful construction, such are to be construed most strongly against the party who executed the contract. If the contracting party uses, over his own signature, language of doubtful meaning, he cannot complain when the construction is favorable to the other contracting party, who is not presumed to have chosen the expression of doubtful meaning. (Walker v. Kimball, 22 Ill. 537; McCarty v. Howell, 24 Ill. 343).” When the motions for instructed verdicts were made by both of the parties, the questions presented for the court’s decision were questions of law and not of fact. The error which the court committed was in instructing a verdict for defendant, when it should have instructed a verdict for the plaintiff.

Therefore, we will do in our determination of the case what the trial court should have done, and we therefore reverse the judgment of the municipal court, and enter a judgment here for the plaintiff for the amount of the promissory note with interest at 6 per cent per annum from its date, December 15, 1916, to the date of the filing of this opinion, which is the sum of $6,941.45.

Reversed and judgment here for plaintiff for $6,941.45.

Wilsoh and Byneb, JJ., concur.


text:
    Wayne Moore and H. E. Gnadt, Appellees, v. Robbins Machinery & Supply Company, Appellant.
    Gen. No. 32,839.
    Opinion filed February 27, 1929.
    Rehearing denied March 19, 1929.
    David D. Stansbury and Alfred Roy Hulbert, for appellant.
    F. E. Brightman, for appellees; Edward D. Feinberg and M. Edward Abram, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The complainants filed their bill in an effort to escape the payment of a judgment for $5,297.17 rendered in the municipal court of Chicago against them and the Unit Sash Weight Company and V. A. Smith on February 26,1924. The relief prayed for, grounded on the averment that complaints are without remedy in the premises except in a court of equity, is that the defendant Robbins Machinery & Supply Company may be required to answer the bill but not under oath; that the judgment rendered against them may be set aside and vacated; that they may be granted a new trial in said cause in the municipal court, and that in the meantime defendant and the bailiff of the municipal court may be restrained from levying an execution upon said judgment, or otherwise attempting to enforce the same, and that upon a hearing of the cause such injunction may be made perpetual.

The proofs show without any material contradiction that plaintiffs in this suit and the defendants in the municipal court suit, at the instance of the defendant Robbins Machinery and Supply Company, were served with process of summons in the municipal court suit by the bailiff of the court, the defendant Snow, and that summons was returned, served upon the defendants and that the defendant V. A. Smith authorized a lawyer, named Ruehl H. Grünewald, to enter the appearance of his codefendants Moore and Gnadt, and to defend said suit for the three of them; this Grünewald did; that Grünewald on March 5, 1924, entered an appearance and made a demand for a trial by jury, but afterwards on April 10,1924, filed an affidavit of merits on behalf of complainants, V. A. Smith and Unit Sash Weight Company of Chicago; that such affidavit of merits was sworn to by V. A. Smith as the agent of complainants; that on April 14, 1924, the case in the municipal court being at issue was postponed to the next jury calendar, and thereafter on October 9, 1925, the cause came on for hearing on the regular call of cases before a judge of said municipal court; that complainants did not .appear either personally or by counsel, and thereupon the defendant Bobbins Machinery & Supply Company, plaintiff in said municipal court suit, appeared and procured an order of default to be entered against the complainants and the other defendants for their failure to appear either in person or by counsel. Whereupon the court heard the case and assessed the damages against complainants and their co-defendants in the sum of $5,297.17, and judgment upon the finding was thereupon entered; that on June 8, 1927, defendant, the plaintiff in the municipal court suit, caused an execution to be issued upon the judgment against complainants and their codefendants, and the same was served upon complainant Gfnadt on June 9, 1927; that defendant Bobbins Machinery & Supply Company’s answer admits the institution of the municipal court suit and avers that personal service was had upon complainants, two of the defendants in that suit, as would appear upon the bailiff’s return upon the summons; admits the appearance by Grünewald as attorney for complainants and the filing of the affidavit of merits, and admits that judgment was obtained by a default for $5,297.17 against the defendants in the municipal court suit, among which were complainants, and also admits the issue of execution and its service, and denies the averment in the bill that the defendants in the municipal court suit were not served with process, and denies that defendant received settlement of the judgment or that any part of that judgment was paid.

Defendant further answering denies that complainants made any attempt to vacate or set aside the municipal court judgment until the filing of the bill and charges that complainants were guilty of such laches as to bar them from any relief in a court of equity.

The cause was heard by the chancellor and a decree entered, in which, after reciting what the court concluded were the facts in the case, it decreed that the judgment in the municipal court of Chicago recovered in Case No. 864515, wherein Moore and G-nadt complainants were defendants and judgment debtors, has been fully paid and the indebtedness represented thereby has been paid and satisfied as to the complainants herein, and further decreed that the defendant Bobbins Machinery & Supply Company enter upon the record of the municipal court, within ten days after the date of the decree, a full and complete satisfaction of the judgment against the complainants Wayne Moore and H. E. Gnadt in said municipal court; and it was further decreed that the defendant, Bobbins Machinery & Supply Company, its officers, agents, servants and employees, as well as its successors and assigns, and Bernard W. Snow, bailiff of the municipal court of Chicago, Cook county, Illinois, and as well his successor or successors in office, be, and each of them is, permanently enjoined and restrained from levying execution under judgment in the municipal court above recited, and from taking any action whatsoever under or by virtue of said judgment in the municipal court of Chicago, by levying execution or otherwise attempting to enforce said judgment, or in any way attempting to collect any part of said judgment or malting any claim whatsoever against the complainants or either of them or the property of either of them on account of or because of said judgment, or in any way asserting any claim whatsoever under said judgment against the complainants in this action or the property of either or both of said complainants. From the foregoing decree this appeal is prosecuted.

Complainant H. E. Gnadt, in Ms direct examination as a witness for complainants, answered tMs question:

. “Q. I will ask you whether or not any person purporting to be the bailiff of the Mumcipal Court, came to you and handed you a paper, purporting to be a summons to appear in that case? A. Not that I know of.”

That is all the testimony of Gnadt regarding the contention of the service of the summons upon him in the municipal court suit.

The complainant Moore, examined as a witness in his own behalf, the abstract shows, testified as follows:

“I was not served with summons in the Municipal Court suit, nor handed a document purporting to be a summons by a bailiff of the Municipal Court. I received no paper at all purporting to be anything from the Municipal Court of Chicago regarding the pend-ency of that particular suit. I never consulted any attorney until I got Mr. Brightman here after this thing came up. I never had any attorney employed before. Had no conversation at any time with any attorney about filing an appearance for me in that suit: I had no conversation with an attorney looking toward employing him in that case. I never knew V. A. Smith. He was pointed out to me, that is all. Never had a conversation with him regarding the case. Never talked to him in regard to going to an attorney in my behalf, nor concerning the filing of an affidavit of merits for me in defense of that suit. Never talked to anybody with respect to representing me in that case. I first learned of the Municipal Court suit last June when the judgment appeared of record in the Title & Trust Company papers.”

The testimony of Gnadt is colorless, — in legal effect it has no meaning. The answer to the question regarding whether or not he was served with a summons, “Not that I know of,” was no answer to the question and had no weight as a denial of service.

So far as the answer of Moore is’concerned, while he denies most emphatically that he was served with process or authorized Grünewald to appear for him, yet that does not change the situation, particularly in view of the return of service by the bailiff of the municipal court upon the summons in the municipal court case. A deputy clerk of the municipal court produced the summons with the service of each of the complainants indorsed thereon, which summons with its return was offered and received in evidence without any objection. The original was withdrawn and a photographic copy substituted by consent.

Complainants in their brief make the following statement :

‘' The suing out of a writ of execution after the court has lost jurisdiction to vacate its judgment is an indication of fraud.”

That would seem to us to be quite' an appropriate time, to sue out a writ of execution on a judgment after the term has passed when the judgment has become a finality. In other words, that was the ordinary course to pursue.

The contentions of complainants are wholly futile for the reason that even if their contentions were true, which is open to very much doubt, that Smith was not authorized to employ Grünewald to represent them and he did so without authority because then having paid no further attention to the suit after - the service of summons they must suffer a judgment against them by default for want of an appearance, so that if we read all their statements in the municipal court that Grünewald was out of the case, they are still in default.' If Grünewald was in the ease, then they were in default for lack of appearance at the time the case was called, and if he was not authorized to appear for them, and no one else did appear for them, then the defendant, plaintiff in the municipal court spit, was entitled to a judgment by default, being the judgment which it caused to be entered. Being served with process in accordance with the contentions of defendant, complainants not being in court, a judgment was properly entered against them by default.

There is no evidence in the record supporting the contention that either the debt was paid before the judgment or that the amount of the judgment was paid subsequent to its. being entered and, if there was, such evidence would be of no legal avail. If the amount of the debt was paid before the commencement of the suit, then that was a matter of substantive defense to that suit, and if the amount of the judgment was paid subsequent to its entry, then that was a matter that should have been disposed of within the jurisdiction of the municipal court upon. application to that court, setting forth that fact, and asking the court to order a satisfaction of the judgment. Neither of these defenses was made.

No evidence but that of complainants was received in an attempt to impeach the return of service by the bailiff of the municipal court upon the summons served upon them. The return of an officer in due form cannot be impeached by the unsupported testimony of the party served with process. Duffy v. Frankenberg, 144 Ill. App. 103, in which case the return was in due form by the proper officer, and this court said:

“He has solemnly so certified in his written return of the writ, and such return cannot be impeached by the unsupported testimony of the defendant in that writ, or collaterally by any number of witnesses.” Sullivan v. Niehoff, 27 Ill. App. 421; Davis v. Dresback, 81 Ill. 393.

In Lancaster v. Snow, 184 Ill. 534, it was held that the return of the sheriff of due service could not be impeached by the oath of the person upon whom service appears to have been made, and it was likewise held in Callender v. Gates, 45 Ill. App. 374, that a return of service by an officer is not overcome by evidence of the defendant contradicting that of the return of the sheriff. Botsford v. 0 ’Conner, 57 Ill. 72; and in 0 ’Conner v. Wilson, 57 Ill. 226, the rule was carried to the point where it was held that if the officer making the service was dead, his return of service could not be impeached by parol evidence. American Ins. Co. of Newark v. Keefer, 208 Ill. App. 571. We find no holdings of courts of review to the contrary, and the doctrine was affirmed in the more recent case of Marnik v. Cusack, 317 Ill. 362, in which the court said:

“The stability of judicial proceedings, however, requires that the return of an officer made in the due course of his official duty and under the sanction of his official oath, should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served, but only upon clear and satisfactory evidence. . . . The only question necessary for our determination is whether the return has been impeached by such clear and satisfactory evidence as to show that the summons was not served on the plaintiff in error.”

And the Supreme Court further said:

“The testimony of these deputies amounts to nothing, either to assist or impeach the service. Neither has any recollection but both relied upon their written memoranda. We must do the same, and the well established rule is that the return showing service cannot be overcome by the uncorroborated testimony of the defendant.”

The case of Marnik v. Cusack, supra, was a bill in equity very similar to the one at bar, and the court refused to interfere with the judgment rendered in faith of the service of the summons attacked.

In Duffy v. Frankenberg, supra, it was held a judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment in respect to its validity, verity or binding effect, by parties or privies in any collateral action or proceeding. And in French v. Baker, 21 Ill. App. 432, it was held that a judgment entered by default, where the court had jurisdiction, was as conclusive against collateral attack as a judgment in any other form.

In Harris v. Lester, 80 Ill. 307, it was held that the record of the court can never be contradicted, varied or explained by evidence beyond or outside the record itself. The record must be tried and construed by itself. This rule applies to evidence to contradict the finding of a court as to its jurisdiction by due publication of notice.

There is no finding in the decree impeaching the return of service upon complainants in the municipal court suit. The finding that the amount sued for in the municipal court was paid before the judgment was entered was a matter of defense in that court. There is no evidence of fraud on the part of the defendant in relation to the matters in controversy in the municipal court suit, which in any way misled tíomplainants or procured them to do or fail to do anything in relation to such litigation. The failure of complainants to make any defense which they may have had to the case in the municipal court.bars them from relief in equity. The municipal court had jurisdiction to entertain all the defenses which complainants bring into the case at bar for the first time in the bill in this cause, and if the judgment was improperly entered, they could, within the time allowed by statute, and the rules of the municipal court, have appeared and moved to vacate the judgment and for a new trial. Not having done so, they are impotent to invoke the aid of a court of conscience to relieve them against their own neglect in failing to make their defenses in the municipal court, which had jurisdiction, if moved in apt time, to give all the relief prayed by the bill. New York Life Ins. Co. v. Bangs, 103 U. S. 608.

There is nothing in the evidence in this case, in the remotest degree, tending to show that defendant did any act to prevent complainants from making their defense at law by fraud, circumvention, deceit or accident., 34 Corpus Juris, §§ 712-719.

The final decree, as rendered, is neither supported by the proofs, nor is it responsive to the prayer for relief prayed for in the bill.

For the errors in this opinion pointed out, the decree of the circuit court is reversed, and the cause is remanded with directions to dismiss the bill for want of equity.

Reversed and remanded with directions.

Wilsoh and Ryher, JJ., concur.