text:
    Richard Folsom, Appellee, v. Northern Trust Company, Appellant.
    Gen. No. 29,773.
    1. Banking — loss of rights against depositary paying forged cheeks by delay in giving notice of forgery. Where a bank paid certain forged checks purporting to be drawn against a depositor’s account and charged the checks to such account and delivered the canceled checks, together with statements, to the depositor, the latter lost his right of recovery against the bank by delaying six months after discovery of the forgery before notifying the bank.
    2. Banking — delivery of blank cheeks to nondepositor as negligence charging bank with payment of forged checks. The fact that a bank, before paying checks forged by the brother of a depositor, had delivered a book of blank checks to such brother upon his signing the depositor’s name to a receipt, without the depositor’s authority, did not charge the hank with negligence in subsequently paying such forged checks.
    3. Banking — effect of statute limiting time for notice of forgery to Inink paying forged checks. The statute of 1921 (Cahill’s St. ch. 16a, i 22), providing that no bank which has paid and charged to the account of a depositor any money on a forged check, issued in the name of the depositor, shall be liable for the amount paid unless the depositor shall within one year after the return of the voucher to the depositor notify the bank of the» forgery, held not intended to add anything to the common-law liability of banks in such cases, but that it was intended to place a limit upon the time within which an action may be brought to recover money paid upon forged checks; but that there is nothing in the statute to indicate that it was designed to enable a depositor to remain silent for a year after discovering a forgery, and hence six months’ delay in notifying the bank, after discovering a forgery, barred recovery by a depositor.
    4. Appeal and bbbob — duty of Appellate Court to review questions of law where no propositions of law presented. The Appellate Court is required to review questions of law in non jury cases, even where no propositions of law have been presented.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Reversed and judgment for defendant with a finding of facts.
    Opinion filed June 9, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    William S. Miller and Frederic H. Bengel, for appellant.
    Harry D. Irwin, for appellee.
   Mr. Presiding Justice Fitch

delivered the opinion of the court.

The defendant, a banking institution, appeals from a judgment against it for $1,050 in favor of plaintiff, a depositor. The bank paid that amount upon ten forged checks purporting to be drawn by the plaintiff, charged the same to plaintiff’s account, and delivered the canceled checks to him with statements of his account. Plaintiff then discovered the forgeries, but failed to notify the bank until six months later. In this action to recover the amount so paid, the defense of the bank is that plaintiff lost his right to recover by failing to notify it that the checks were forged as soon as he discovered the forgery or within a reasonable time thereafter.

In Leather Manufacturers’ Nat. Bank v. Morgan, 117 U. S. 96, it was held that where a depositor in a bank sends his pass book to be written up and receives it back with entries of credits and debits and his paid checks as vouchers, he is bound to examine the pass book and vouchers with due diligence and to report to the bank, without unreasonable delay, any errors which may be discovered; and if he fails to do so, and the bank is thereby misled to its prejudice, he cannot afterwards dispute the correctness of the balance shown by the pass book. The court said (p. 115) that a suit of this character is, in effect, a suit by a depositor “to falsify a stated account, to the injury of the bank, whose defense is that the depositor has, by Ms conduct, ratified or adopted the payment of the altered checks, and thereby induced it to forbear taking steps for its protection against the person committing the forgeries.” The court also said that if the depositor is guilty of negligence in not discovering and giving notice of the forgery, the bank is thereby prejudiced, because it is prevented from taHng steps, by the arrest of the criminal, or by an attachment of his property, or other form of proceeding, to compel restitution. That case is cited and followed in Findlay v. Corn Exchange Nat. Bank, 166 Ill. App. 57, and the same principle is recogmzed and applied in the latter part of the opimon in the case of First State Bank & Trust Co. v. First Nat. Bank of Canton, 314 Ill. 269, 273.

Plaintiff’s counsel attempt to avoid the force of those decisions by contending, first, that plaintiff did, in fact, notify the bank within a reasonable time; second, that the bank was itself negligent in paying the forged checks; and tMrd, that the rule announced in the foregoing cases was changed by statute in 1921.

The first of these contentions is based upon the plaintiff’s testimony that when he received the canceled vouchers in September, 1923, he “tried to locate the stubs to compare them with the checks,” that he “searched around” for the check book he had used at the time of the forgeries, but “did not locate it for some time,” and that he notified the bank in March, 1924, that he had found the book; that when he received the canceled checks he was “pretty sure” that they were not his checks, but “wanted to verify that with the stubs” of his check book; that he saw they were all made payable to his brother, whom he had not seen or heard from for over a year; that he learned his brother was in Kansas City and he wrote bim “telling him I wanted to see him.” We fail to see anything in these facts or circumstances to excuse the plaintiff’s failure to notify the bank of the forgeries for six months after receiving the canceled checks.

The claimed negligence of the bank is based upon the fact shown by the evidence that before the forgeries were committed the plaintiff’s brother obtained from the bank a book of blank checks without plaintiff’s authority by signing the plaintiff’s name to a receipt for such book. Photostatic copies of this receipt and of the forged checks are shown in the transcript of the record. The signatures are the same in all of them, except that in the receipt for the check book the brother’s signature appears beneath the name of the plaintiff. Plaintiff testified that the forgeries were “fair imitations” of his signature, which is confirmed, not only by a comparison of the signatures with plaintiff’s admitted signature in the record, but by plaintiff’s statement that while he was “pretty sure” the checks were forgeries, he was not satisfied until he found his old check book and compared them with the stubs therein. In our opinion, the mere fact that plaintiff’s brother obtained a check book from the bank (doubtless by misrepresentation) does not constitute negligence on the part of the bank. Under the circumstances, the bank could not reasonably be expected to assume that plaintiff’s brother intended to commit forgery from the mere fact that he asked in plaintiff’s name for a blank check book, especially when he signed his own name to the receipt.

As to plaintiff’s third contention, we think the statute of 1921 (Cahill’s St. ch. 16a, U 22) cannot be given the effect claimed by plaintiff. The act provides, in substance, that no bank, which has paid and charged to the account of a depositor, any money on a forged check issued in the name of such depositor, shall be liable to such depositor for the amount paid thereon, “unless * * * within one year after the return to said depositor of the voucher representing such payment, said depositor shall notify the bank that the check so paid is forged.” So far as we are advised, this statute has not yet been construed by the Supreme Court. Our own view of it is that the statute was not intended to add anything to the common-law liability of banks in such cases, but was intended to place a limit upon the time within which an action may be brought to recover money paid upon forged .checks. Prior to that statute, the depositor’s duty was to examine his bank statements and vouchers and to notify the bank of any forgery “without unreasonable delay.” The statute does not change that duty on the part of the depositor, but bars all recovery from the bank unless such duty is performed within one year from the time the forged checks are delivered to him. There is nothing in the statute to indicate that it was designed to enable a depositor in such a case to remain silent for a year after the discovery of the forgery, which is the practical effect of plaintiff’s contention.

Plaintiff also points out that no propositions of law were presented to the trial court to be marked “Held” or “Refused,” and contends that therefore the defendant is not in a position to question in this court the rulings of the trial court on questions of law. The contrary was held in Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago City Ry. Co., 300 Ill. 162. We do not understand that the decision in that case as to the duty of the Appellate Court to review questions of law, even where no propositions of law have been presented, was overruled by the recent case of Pressed Steel Equipment Co. v. Thornburgh Pressteel Co., 312 Ill. 359. The decision in the latter case concerns the practice in the Supreme Court in cases which come to that court through the Appellate Court, and overrules the former decision only “in so far as it departs from the previous decisions” concerning the practice of the Supreme Court in such cases. Both decisions cite with approval the case of Bradish v. Yocum, 130 Ill. 386, where it was held that in cases coming to the Supreme Court directly from the trial court, in which the Supreme Court “is authorized to pass both upon the facts and the law, * * * the inquiry is, did the facts, as they appear in the record, and the law, authorize the finding and judgment below?” The Appellate Court is in that situation in all nonjury cases coming to it for review.

For the reasons stated the judgment is reversed. As the case was tried by the court without a jury, the cause will not be remanded, but a finding of facts will be incorporated in the judgment of this court in favor of the defendant for costs.

Reversed and judgment for defendant with a finding of facts.

Barnes and Gridlet, JJ., concur.

Finding of facts. The court finds that, after the forged checks mentioned in the plaintiff’s statement of claim were paid by defendant, they were charged to plaintiff’s account and a statement thereof, with the canceled checks as vouchers, was sent by the defendant to the plaintiff; that the plaintiff then examined the same and discovered they were forgeries, but failed to notify defendant of that fact for six months thereafter, to the prejudice of the defendant; and that the defendant bank exercised reasonable care and caution in paying said forged checks.


source: Caselaw Access Project

author: Mr. Presiding Justice Fitch

license: Public Domain

text:
    Illinois Central Railroad Company, Appellant, v. Sam Belson and Max Lurie, trading as Belson & Lurie, Appellees.
    Gen. No. 29,813.
    1. Carriers — liability of consignee accepting goods for full interstate tariff rate. A consignee in an interstate shipment of goods who accepts such goods at the destination upon payment of less than the tariff rate on file with the Interstate Commerce Commission is liable to the carrier for the amount unpaid of the lawful freight charge, as he is presumptively the owner of the goods.
    2. Carriers — liability of consignee accepting goods for full legal freight rate regardless of ownership. The fact that the consignee of an interstate shipment of goods, who accepts the goods at the destination, is not the real owner does not lessen his obligation to pay the legal tariff rate when he accepts the goods.
    3. Carriers — admissibility of evidence of ownership of goods in action against consignee for freight charges. Evidence as to the alleged ownership of goods by another than the consignee in an interstate shipment was inadmissible in an action by the railroad company for the balance of the lawful freight charges, in the absence of proof of any notice to the railroad company of that fact.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. M. D. Hartigan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Reversed with judgment here and finding of facts.
    Opinion filed June 9, 1925.
    H. J. Deany and J. H. Wright, for appellant; Vernon W. Foster, of counsel.

      Hirsch, Chaikin & Bloch, for appellees.
   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Plaintiff sued defendants to recover a balance due it for freight charges and war tax on an interstate shipment of 240 barrels of potatoes from Comfort, North Carolina, to Chicago, consigned to the defendants. Plaintiff proved that the shipment was transported by the plaintiff and its connecting carriers from Comfort, North Carolina, to Chicago, and was delivered to defendants as consignees, who signed a receipt for the same and paid the charges, then demanded, of $268.22, instead of $349.30, the amount actually due under the tariff rate then on file with the Interstate Commerce Commission, thereby leaving a balance due of $81.08; and that Belson & Lurie’s name was on the waybill and on the original bill of lading as consignee. One of the defendants testified that he bought the carload of potatoes on the tracks and that while he paid the freight charges to the railroad company he merely advanced the amount so paid for the benefit of the real owner of the shipment, who, he testified, was the Produce Sales Company. The testimony as to defendants’ alleged agency was objected to and the objection overruled. This was the only defense, and there is no evidence that the alleged agency of defendants was known to the plaintiff. Thereupon, the court found against the plaintiff, on the theory that although defendants were “ultimate” consignees, yet they were not liable for the freight charges because they were acting as agents for a third party who was the real owner of the shipment.

The finding and judgment are clearly erroneous. In Pittsburgh, C., C. & St. L. Ry. Co. v. Fink, 250 U. S. 577, it was held in a very similar case that a consignee in an interstate shipment of goods who accepts the same at the destination upon payment of less than the tariff rate on file with the Interstate Commerce Commission is liable to the carrier for the amount unpaid of the lawful freight charges. The decision in that case was reaffirmed in New York Cent. & H. River R. Co. v. York & Whitney Co., 256 U. S. 406. In such a shipment the consignee is presumptively the owner of the goods (Elgin, J. & E. Ry. Co. v. Rockwell Lime Co., 213 Ill. App. 25), and his obligation to pay the full amount of the lawful freight charges arises from such presumptive ownership, the acceptance of the goods and the services rendered by the carrier. (Pennsylvania R. Co. v. Titus, 216 N. Y. 17.) The fact, if true, that the consignee is not the real owner of the goods does not lessen the obligation of the consignee to pay the legal tariff rate when he accepts the goods. (Pittsburgh, C., C. & St. L. Ry. Co. v. Fink, supra.) Moreover, the evidence as to the alleged ownership of the Produce Sales Company was inadmissible in the absence of proof of any notice to the railroad company of that fact.

As the trial court should have found for the plaintiff and entered judgment against the defendants for $81.08, that judgment will be entered here.

Reversed with judgment here and a finding of facts.

Barnes and Gridley, JJ., concur.

Finding of facts. We find, as facts, that the defendants were consignees in the interstate shipment of goods described in the plaintiff’s statement of claim, that defendants took delivery as such consignees and paid the charges, then demanded, of $268.22, that the lawful charges then due thereon for freight and taxes amounted to $349.30, leaving $81.08 due - and unpaid.


author: Mr. Justice Barnes

text:
    Talitha H. Kellner et al., Executors of Last Will and Testament of Barbara E. Kellner, Deceased, Plaintiffs in Error, v. George K. Schmidt et al., Defendants in Error.
    Gen. No. 29,452.
    1. Appeal and ebbob — sufficiency of replication to pleas of release of errors. A replication to a plea of release of errors, which neither denied nor confessed and avoided the principal averment, that not only the items in the assignments of error but others decided adversely to the trustee in question were included in and formed component parts of the sum found due and accepted by plaintiffs in error, was fatally defective.
    2. Appeal and ebbob — admission on writ of error by motion to carry bach demurrer. A motion to have a demurrer to a replication to a plea of release of errors carried back to the plea admitted the principal averments of the plea, as did the failure to take issue thereon.
    3. Appeal and ebbob — estoppel by acceptance of benefits under decree to assign error therein. A party cannot, after enforcing and accepting payment of the sum found due, avail himself of the benefits of the decree and then be heard to question, by writ of error, unfavorable rulings which entered into the determination of the amount found due, whether or not the decree be separable.
    4. Appeal and erbob — effect of sustaining pleas of release of errors. Sustaining of pleas of release of error results in a dismissal of the writ of error as to the parties who filed the pleas.
    5. Mastees and commissionebs — compensation of master on setting aside void stipulation of parties fixing fees. Where parties had stipulated as to amount to be allowed to the master in chancery as fees, and thereafter one party repudiated the stipulation and relied upon the rule of the circuit court prohibiting the accepting, prior to the disposition of all objections, of any stipulation as to the amount of the fee, the stipulation was held contrary to said rule, and to the public policy of the State, and therefore void as to the parties objecting; the amount of $17,500, as a fee, was permitted to stand except as to the objector, and, as to him, the amount to be paid the master was fixed on the basis of $13,348.40, and the master was ordered to repay to such objector an amount fixed on the basis of his proportionate share of the taxed costs.
    6. Appeal and ebbob — when Appellate Court will not reverse finding of chancellor as to master’s fees. The Appellate Court will not interfere with the finding of the chancellor as to master’s fees where the record is voluminous and many questions were involved, numerous items were considered and extensive arguments heard and hriefs considered, unless it is clearly pointed out that the court was manifestly wrong.
    7. Masters and commissioners — limit of compensation to masters in chancery. The per diem allowance of $34 to the master in chancery was held the maximum under the theories stated in Klekamp v. Klekamp, 275 Ill. 98.
    8. Masters and commissioners — control of court over master’s compensation. Where a master in chancery claimed that one of the parties objecting to the amount of his fee was estopped because he voluntarily paid his proportion of the fee stipulated to be paid, it was held that the question was not solely between the master and the parties, but one between the court and one of its officers, as the court has the power to determine the reasonableness of the master’s charges and to require him to return what was found to be an excess payment made in violation, at least in part, of a rule of court; and an order requiring the master to return a stated amount was proper under the circumstances, although no petition or other pleading was filed by the objector.
    Error by plaintiffs to the Circuit Court of Cook county; the Hon. Ira Ryneb, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed June 9, 1925.
    Rehearing denied June 20, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Wyman, Hopkins, McKeever & Colbert, for plaintiffs in error; Vincent D. Wyman and Austin L. Wyman, of counsel.
    Rosenthal, Hamill & Wormser, for defendants in error.
   Mr. Justice Barnes

delivered the opinion of the court.

' This writ seeks a review of that portion of a decree restating the final account of George K. Schmidt and Charles J. Schmidt, deceased, as trustees under the last will and testament of Kaspar G. Schmidt, deceased, and directing payment of the sum found due from the trustees to the beneficiaries of said trust. It also seeks reduction of the allowance made to the master in chancery to whom the cause was referred for a statement of the account.

One of the four beneficiaries of the trust provided for. in the said will was Barbara E. Kellner, now deceased, and the plaintiffs in error are the executors of her last will and testament. The other beneficiaries were made defendants in error, but are not complaining of the decree.

There are nine assignments of error. All except No. 9, which relates to the allowance to the master in chancery and which will be considered later, relate to rulings of the chancellor upon exceptions to the master’s statement of the account. To such assignments of error defendants in error, George K. Schmidt, the surviving trustee, and the executors of the estate of Charles J. Schmidt, deceased, a former trustee, have filed pleas of release of errors. The pleas of each are three in number and substantially alike. They are designated in the record as “second amended pleas,” but as they displace all previous pleas they will be referred to simply as “pleas.”

To the first plea plaintiffs in error have filed a replication, to which said surviving trustee and the executors of the estate of the deceased trustee have demurred.

The first plea is to assignments of error Nos. 1, 3, 5, 6, 7 and 8, and avers in substance that the net sum found due by the decree to said plaintiffs in error on a complete examination of and adjudication with reference to the trustees’ account was $16,118.83, and that it included as component parts thereof adjudication of not only the several items referred to in said six assignments of error, decided in favor of the trustees and against plaintiffs in error, but also other items decided in favor of plaintiffs in error and against the trustees; that there was also assessed against trustee George K. Schmidt, as costs due to plaintiffs in error, the sum of $1,282.86 on a complete balancing of the equities on the whole decree; that after the entry of said decree and before assigning errors herein plaintiffs in error sued out a writ of fieri facias to enforce the collection of said sum of $16,118.83, with interest and costs, by virtue of which the sheriff collected the same in full of said George K. Schmidt, delivered the moneys to plaintiffs in error, and returned the writ fully satisfied.

The replication to said plea is to the effect that plaintiffs in error objected to each of the items mentioned in said six assignments of error; that they were separate, independent of and disconnected from and have no relation to other items in said trustees' account, and that the decree is separate and distinct with respect to each item of the account; that plaintiffs in error were allowed an appeal as to parts and portions of the decree mentioned in said assignments of error; that the appeal operated as a severance of the same from the remaining portions of the decree, and that they have heretofore dismissed their writ of error as to all parts and portions of said decree not specifically set forth in said assignments of error.

All these allegations are to the effect that the decree is severable, and some of them merely argumentative. But the fatal defect of the replication is that it neither denies nor confesses and avoids, as it should (2 Cyc. Law & Proc. p. 1008), the principal averment in the plea that not only the items in said assignments of error but others decided adversely to the trustees were included in and formed component parts of the sum found due and accepted by plaintiffs in error. The motion of plaintiffs in error to have the demurrer carried back to the plea admits such averment, as does the failure to take issue thereon. (Thoeming v. Hawkins, 291 Ill. 454.)

Nor are any of the allegations in the replication inconsistent with such averment. The several items referred to in the assignments of error might relate to parts of the account distinct from and independent of other parts or items thereof, and each and all, nevertheless, enter into and become a component part of the total sum decreed due.

Such averment of the plea thus standing admitted presents the question of law whether plaintiffs in error, after enforcing and accepting payment of the sum found due and thus availing themselves of the benefits of the decree, can be heard to question unfavorable rulings which entered into the determination of the amount found due them.

That one who has accepted the benefits of a decree cannot afterwards prosecute a writ of error to reverse it has been frequently passed on by the Supreme Court of this State. (Thomas v. Negus, 7 Ill. 700; Morgan, v. Ladd, 7 Ill. 414; Holt v. Rees, 46 Ill. 181; Corwin v. Shoup, 76 Ill. 246; Moore v. Williams, 132 Ill. 591; Trapp v. Off, 194 Ill. 287; Scott v. Scott, 304 Ill. 267; Gridley v. Wood, 305 Ill. 376.) That being so we need not consider eases cited from other jurisdictions. Many of them are to the effect that a party who has received and accepted a part of a judgment or decree to which he is absolutely entitled, and whose right thereto will not be affected by a reversal, may have the judgment or decree reviewed as to parts that are controverted. In most of such cases, however, the sum collected or paid includes only an admitted or uncontroverted part of the demand and is clearly sever-able from matters controverted. But this is not such a case. Here an accounting was had which required the adjudication of controverted items on both sides of the account to determine the balance, and involved rulings favorable as well as unfavorable to both sides. The balance, therefore, does not represent admitted or uncontroverted items alone, nor merely those decided adversely to plaintiffs in error. Into it is merged all the items and rulings of the court for and against the interests of each party.

But whether or not the decree in such a case is severable, plaintiffs in error having availed themselves of its benefits must be held, both under the general rule (3 C. J. 682; notes to 29 L. R A. [N. S.] 2) and the authorities in this State, to have accepted the unfavorable as well as the favorable rulings.

The basic facts here calling for its application are not different from those in Gridley v. Wood, supra, where, as here, a party demanded and received payment of that part of a decree in her favor and then sued out a writ of error to reverse that part against her interest. The payment in that case, contrary to this, was of an unquestioned part of the decree. Ñevertheless, the Supreme Court, following the rule it had previously laid down, said: “She could not do this. She was bound, if she accepted the benefit of the decree, to accept the whole decree, and her receipt of that which was in her favor operated as a release of errors of that part of the decree which was against her interest.” (p. 382.) We think that holding is clearly against the theory of the replication that a party may accept the benefits of a decree — even though it be severable — and have it reviewed as to rulings or parts of the decree unfavorable to him.

Interpreting its earlier cases (Thomas and Morgan cases, supra) as holding that “a party cannot avail himself of that portion of a decree which is favorable to him, and secure its fruits, and then reverse in an appellate court such portions as militate against him,” the Supreme Court in the Holt case, supra, elaborating upon reasons for the rule, said:

“If a decree is to be reversed, the parties should be placed in statu quo. It would be manifestly unjust to permit Clapp to take all the money the decree gives him, and then speculate upon the possibilities of getting more by means of a writ of error. Suppose the decree should be reversed, and on another hearing, the court upon some new evidence, should find due him a still smaller sum. This might easily happen, * # *. But if paid into court under the pressure of a decree, and after a reversal of such decree, it is ascertained by the court that its former decree was for too large a sum, the party having paid would be entitled to a restoration of the excess. * * * We are clearly of opinion, that a party cannot accept money, directed to be paid him by a decree, and then ask a reversal on the ground that it did not give him enough. His acceptance was a ratification.” (p. 183.)

If, as according to the pleas, there were controverted items on both sides of the account, a reversal of this decree might entail like difficulties as to placing the parties in statu quo.

We think, therefore, the plea is good and the replication does not present a valid answer thereto. Hence the demurrer to the replication must be sustained.

To the second and third pleas, plaintiffs in error have filed general demurrers. The second plea is as to the second assignment of error “in deducting from the allowance for trustees commissions of George W. Kellner, deceased, the sum of $2,432.79.” The plea contains substantially the same averments as in the first plea as to the sum, interest and costs, found due plaintiffs in error, and its enforced collection, and alleges that on a complete examination of and adjudication in said accounting commissions to the extent of $20,000 were allowed the trustees, and deducted from the gross trust estate to be distributed; that the share thereof allowed George W. Kellner (as one of the former trustees, now deceased, whose share is claimed by plaintiffs in error as executors of the estate of his sole legatee) was $3,333.33 less $2,432.79 excess payments which had been made by the trustees to him for the period he acted as trustee, with interest, and which was charged back to them in the accounting and of which plaintiffs in error were allowed their share as beneficiaries of said excess payments; that said commissions and overpayment were considered and included in the balance of $16,118.83, and that the item $2,432.79 thus became an inseparable part of the trustees’ accounting.

The second plea, therefore, is the same in effect as the first plea, namely, that the determination of the item complained of was the result of balancing debit and credit items entering into the account of said George W. Kellner as one of the trustees, all of which were included in the balance or sum so found due and accepted by plaintiffs in error. For the same reasons it must be sustained and the demurrers thereto overruled.

The third plea, which is to each and all of said assignments of error, alleges that the net amount of costs found due plaintiffs in error on a complete balancing of the equities of the whole decree was $1,282.86, the payment of which was enforced by the writ of fieri facias sued out by plaintiffs in error and accepted by them as aforesaid.

This plea merely amplifies averments as to costs contained in the other two pleas, and not being prepared to say that enforced payment of the costs alone, without regard to whether there was also satisfaction of the entire decree, estops questioning the latter, we are inclined to sustain the demurrer. But sustaining the demurrer to the third plea can have no practical effect if the other two pleas be sustained; for as they together are to all said eight assignments of error the sustaining of them must result in a dismissal of the writ of error as to the defendants in error who filed said pleas. (Trapp v. Off, 194 Ill. 287, 303.) So, as to them, and all other defendants in error, except Sigmund Zeisler, they not having appeared or been brought into this court by process, that will be the order of this court.

The writ remains before us, however, upon the only remaining assignment of error to be considered, that relating to the allowance to Sigmund Zeisler for his services other than taking and reporting the evidence, rendered as master in chancery and special commissioner, pursuant to the various orders of reference, to which Zeisler has assigned cross errors.

These orders were made in various cases that were consolidated, involving two bills, a cross-bill and seven separate appeals from orders of the probate court. The matters at issue were before said Zeisler from February 12, 1915, to December 1, 1920, when he ceased to be master in chancery. Thereafter the matters were re-referred to him as special commissioner. As such he rendered his final report June 17, 1922. He took a great mass of evidence, heard extended arguments and considered submitted briefs from time to time on numerous issues of law and fact, many of which the decree properly finds were complex and intricate in their nature. The decree also finds that pursuant to an order of court entered February 6, 1921, the “parties herein” paid $7,500 to said Zeisler on account of his services herein, other than taking and reporting evidence; and pursuant to stipulations made two other payments to him on such account, $5,000, May 1, 1921, and $5,000, June 17,1922, the latter after said Zeisler had completed his final report and had ruled upon all objections thereto and had directed it to be filed.

The decree finds that such payments were made in four equal shares, one by the Kellner executors, subject, however, to the taxation and apportionment of the costs by the decree of court herein.

It also finds that there was a rule of court in part as follows:

“(b) No master shall, prior to the disposition of all objections to such report, request of or accept from any party litigant, or his counsel, any stipulation as to the amount of his master’s fees. Nor shall he, prior to the taxation of his fees, request or receive any payment on account of his services upon such reference except for fees already accrued for taking and reporting of testimony at the statutory rate, and taxable stenographer’s fees.”

The decree further finds that on the hearing of the matter of taxation, etc., all the parties except plaintiffs in error stood by said stipulations and did not object to the court’s taxing the master’s and commissioner’s fees in accordance therewith; that the aggregated payment of $17,500 was not unreasonable in view of the character and extent of the services rendered by said Zeisler. But upon the objection of the Kellner executors to taxing his fees on the basis of said stipulations the court held that they were contrary to said rule of court and to the public policy of the State, and, therefore, were void and not binding upon the Kellner executors.

At said hearing said Zeisler filed a statement of his services, and insisted on the validity of said stipulations. The decree finds that such statement was true in substance and fact; that in the services rendered by said Zeisler between February 12, 1915, and June 17, 1920, he actually spent 392 3/5 full working days, and that an intelligent discharge of the duties of a master in chancery would in ruling upon the evidence and reaching his conclusions of law and fact, and reporting the same, require at least that length of time, for which it allows him $34 per day.

Thereupon the court ordered that except as to the Kellner executors the fee for such services stand at $17,500, to which the other interested parties assented, but as to the Kellner executors the compensation for said Zeisler’s services as aforesaid should be taxed as part of the costs at $13,348.40, (being at $34 per day for 392 3/5 days) and the court ordered that said Zeisler repay to the Kellner executors $622.74, being 3/20 of the difference between the two sums aforesaid, and on the basis of their proportionate share of the taxed costs.

Plaintiffs in error urge that the court erred in these several findings, contending that the special commissioner’s final report is unnecessarily voluminous; that he spent and charged for an unnecessary length of time, of which he kept no accurate record, and part of which was due to his failure to consider the case while the testimony and arguments were fresh in his mind, and because he did not require the parties to proceed more rapidly to a final conclusion as urged to do by the Kellner executors; and that the facts of the case were not complicated nor the questions of law intricate.

The cross errors are to the effect that the court erred in requiring said Zeisler to repay any sum of money whatever because there was no petition or proper pleading on which to base the order, because the moneys were paid voluntarily, because plaintiffs in error were estopped from questioning the validity of said stipulations, because the stipulations were not contrary to public policy and void, and not contrary to said rule of court, and because a greater compensation than $34 per day was permissible.

Presumably these several contentions were urged upon the consideration of the court at the time of taxing the costs, and doubtless it was better able from its greater familiarity with the questions involved in the case, as disclosed not only by the record but by the arguments heard upon the exceptions, to determine how much time would reasonably be required by the master in considering and reaching his conclusions, in view of the questions involved, the numerous items considered, the many controversies over them, and all the circumstances of the case. As the chancellor was in so much better position to determine the question than we are, we ought not to disturb his specific findings thereon unless it is clearly pointed out that the court was manifestly wrong. Contrary conclusions and general statements to the contrary by counsel for plaintiffs in error are not sufficiently convincing or substantiated to justify us in reversing the decree in this respect or to enable us to say with any degree of approximation what was the maximum of time the master could consistently and reasonably have spent in the rendition of his services. It would impose a burdensome task on this court, with such a voluminous record to examine, to attempt to say so. It would practically require us to reconsider in the position of the master, without regard to the many things that consume time and are not disclosed in a record, every item of extended accounts and every controversy of fact and law submitted to him.

We have, however, looked into the record to determine the character of the questions of fact and law involved, and have examined the master’s report. The abstracts contain over 11,000 pages, and the printed master’s and special commissioner’s report 224. The pleadings and parties were numerous. There was involved an accounting both with executors and with trustees covering many items and running for over a period of 15 years. The total receipts in the executors’ account were $1,874,246.40, and the disbursements $1,406,636.65, of which $63,772.19 were disallowed. Am appeal on these matters is now pending in this court. A restatement of the trustees’ account as set forth in the decree shows receipts of $804,431.34, disbursements $716,563.96, and there were items disallowed and charged to the trustees, covering over 7 pages of the decree, aggregating $47,283.08. The questions raised by the writ of error relate to the matter. An examination of the master’s report shows that very many of the items were objected to and considered by him, and we are not prepared to say that the report goes into a more extensive consideration of the same than was necessary in order to present to the chancellor an intelligent and adequate understanding of the questions of law and fact he was called upon to decide. The transcript of the testimony covers 7,225 pages and the exhibits contain 7,000 folios of 100 words each. The briefs of plaintiffs in error submitted to the master covered 1,525 pages, including hundreds of pages of citations of authorities closely typed. Over 125 objections were made to the report, concerning principaEy questions of law, and there were many contested questions of fact, as shown by the evidence and the master’s report. Some of the delay in closing the case complained of was incident to the master’s iE-health, and some attributable to counsel. "Whether there was unnecessary delay, however, we need not consider if from all that is disclosed "by the record and the undisputed testimony of the master hearing upon the time taken by him, and in view of the better opportunity of the court to determine whether the master actually and reasonably consumed as much time as was allowed him for his services, we are unable to say that the chancellor was wrong in his findings thereon.

Nor are we disposed to change the decree upon the contentions made by the master. The per diem allowance of $34 was the maximum under the theories stated in Klekamp v. Klekamp, 275 Ill. 98.

As to the claim of estoppel against plaintiffs in error in having voluntarily paid the master their proportion of the $17,500, and as to the fact no petition was filed in the matter (which was seemingly unnecessary in view of the fact, as found by the decree, that the payments were made subject to taxation and apportionment of the costs by the decree, and also in view of the fact that on the hearing of the motion to tax costs the master voluntarily appeared and testified) we think it enough to say that the question is not solely one between plaintiffs in error and the master, but one between the court and one of its officers, it being one within the power of the court to determine the reasonableness of the master’s compensation and to require him as an officer of the court to return what was found to be an excess payment made to him in a case referred to him by the court and made in violation, at least in part, of a rule of court.

So far, therefore, as the decree relates to the compensation to be paid to the master and special commissioner, defendant in error Sigmund Zeisler, it will be affirmed, and the writ of error will be dismissed for the reasons stated as to all other defendants in error, at plaintiffs in error’s costs.

The decree affirmed as to defendant in error Zeisler, cmd the writ of error dismissed as to all other defendants in error.

Fitch, P. J., and G-bidley, J., concur.


author: Mr. Justice Gridley

text:
    Edward C. Loew, Appellant, v. Harry F. Krauspe, Appellee.
    Gen. No. 29,649.
    1. Appeal and error — appealability of order setting aside judgment for errors of faet. An order entered in proceedings in the nature of a writ of error coram nobis, under section 89 of the Practice Act, Cahill’s St. ch. 110, 1f 89, to vacate a judgment entered during a prior term, based on a finding that errors of fact were committed in the rendition of such judgment, is an appealable order.
    2. Judgments — power to set aside after judgment term has passed. After the judgment term has passed, a judgment cannot be set aside except for certain errors of fact committed in the proceedings, and then in the manner provided by section 89 of the Practice Act, Cahill’s St. ch. 110, f 89.
    3. Judgments — when vacation of judgment for errors of fact improper. When a case, after proper affidavit and notice duly served and filed, had been placed on the short cause calendar the effect was to strike it from the general calendar which the particular judge was calling; and where such case was then placed on the short cause call of the judge assigned to try all short cause cases, for a certain day, and on that day the judge was engaged and the case was placed on the short cause call for a later day by the clerk, the failure to call the case on the first day did not constitute a continuance resulting in striking the case from the short cause calendar, and there was no default or misprision of the clerk in placing the case on the call for the later day, without prior service and filing of a new notice and affidavit; and where default judgment was entered on such later day, an order entered after the judgment term in proceedings in the nature of a writ of error coram nobis, setting aside such judgment, based on a finding that errors of fact were committed in the rendition of such judgment, by reason of the manner of setting and the trial of the case, was reversed.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. John A. Swanson, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Reversed.
    Opinion filed June 9, 1925.
    Statement by the Court. By this appeal the plaintiff, Loew, seeks to set aside an order- of the circuit court of Cook county, entered June 9, 1924, granting the written motion of the defendant, Krauspe (in the nature of a writ of error coram nobis under section 89 of the Practice Act) [CahilPs St. ch. 110, [f 89].to set aside a judgment for $4,000, rendered against him on February 18, 1924; setting said judgment aside and ordering that the cause be restored to its proper place upon the regular trial calendar, but without prejudice to the right of Loew to have the same placed upon the short cause calendar.
    On August 23, 1923, Loew, by Charles Hudson, his attorney, commenced an action in assumpsit against Krauspe. The declaration claimed damages in the sum of $5,590 for the alleged breach of a written contract of sale of certain shares of the stock of a corporation. On October 16 Krauspe entered his appearance, by D ’Ancona & Pflaum, attorneys, and filed a plea of the general issue and an affidavit of merits stating facts tending to show a defense. On January 25, 1924, Hudson, for Loew, made and filed the usual affidavit and caused to be served on defendant’s attorneys the usual notice to place the cause on the short cause calendar, and the same was placed thereon by the clerk of the court, all in accordance with section 27 of the Practice Act [Cahill’s St. ch. 110, [[ 27]. When the suit was begun it had been placed on a law calendar (Ho. 4) to be called by Judge Scanlan, but after-wards he was assigned, because of an emergency arising, to hear a special chancery calendar, and during February, 1924, was hearing chancery cases. By order of the judges of the circuit court Judge Swanson had been assigned to try all short cause cases and this particular case was placed on a calendar of cases to be tried before him on'Monday, February 18, 1924, due notice having appeared in the Daily Law Bulletin. The case was reached for trial on that day, but neither defendant nor anyone for him appeared, and after a hearing on plaintiff’s evidence alone the jury returned a verdict in plaintiff’s favor for $4,000, and the court entered judgment thereon.
    On May 6, 1924, after the term at which the judgment was entered had passed, defendant, by his attorneys, obtained leave to file and filed a written motion “to set aside the judgment * * * and to restore said cause to the calendar where the same properly belongs.” The motion was supported by the affidavits of defendant and others, which were read at the subsequent hearings, as were also the counter affidavits of plaintiff’s attorney. Testimony also was heard and certain documentary evidence introduced.
    In the written motion, after stating the commencement of the suit, the filing of the declaration and plea and the placing of the case upon the short cause calendar upon due notice as above mentioned, defendant alleged in 'Substance that in a certain book, kept in the general office of the clerk of the court and entitled “Assignment Notice Short Cause Calendar,” there appeared on a certain page, prior to February 18, 1924, the numbers, names and dates of filing short cause notices, of six cases, of which the case of Loew v. Krauspe (hereinafter referred to as the Loew case) was the second, but not the name of any judge who was to call them; that the Loew case was ready to be called as a short cause case on February 11; that Judge Swanson’s minute clerk did not place any of these cases on the “call sheet” of cases for February 11 before said judge, but placed all of them on the call sheet for February 18, and not in the same order as they were on the short cause calendar — the Loew case being the sixth instead of the second; that it is provided in section 28 of the Practice Act [Cahill’s St. ch. 110, [[ 28] as follows:

      “It shall be the duty of each judge of a court of record engaged in the trial of suits on the common law docket to set apart and designate at least one day in each week * * * for the trial of suits upon the ‘Short Cause Calendar,’ and such suits shall be tried and disposed of on said days in the order in which they are placed upon such calendar, and such * * * calendar shall be a continuous calendar, and suits once placed upon it shall remain thereon until disposed of in their order.”
    That when said short cause notice was served on defendant’s attorneys they were not given any notice that the cause would be called before Judge Swanson instead of Judge Scanlan; that the cause was not called as a short cause case on February 11 by Judge Scanlan, or Judge Swanson, or by any other judge of the circuit court, and no notice of any “continuance” of said cause was given defendant or his attorneys; that “neither the clerk nor any judge of the court had any power to continue said cause from February 11th to February 18th, and that if it was called for trial on February 18th, by reason of any continuance or pretended continuance, such continuance resulted in striking the cause from the short cause calendar, and it should not again have been placed on such calendar without giving a proper notice to defendant”; and that defendant has a meritorious defense to plaintiff’s action (setting forth facts tending to show such defense).
    Plaintiff filed an answer to defendant’s motion or petition in which he stated that the same should not be allowed (a) because the term at which the judgment was entered had passed; (b) because the court in entering the judgment had complete jurisdiction of the subject matter and the parties; (c) because the judgment was not entered by reason of any mistake of fact; (d) because neither defendant nor his attorneys had been deceived or misled in any way ; and (e) because the cause had been regularly put at issue, called and tried, and the judgment regularly entered.

      The bill of exceptions discloses that on the hearing of the motion defendant’s attorney, Mr. Pflaum, introduced in evidence a page of said short cause calendar book, showing the numbers and titles of six law cases in regular order, also the dates of the filing of the several notices and affidavits required by the statute, and also the dates when the causes could first be placed for trial on the call of a judge. The first case is Wright v. Monroe Trust Go. and the date mentioned for first placing it on the call is January 21, 1924; the second is the Loew case and the date for first so placing it is February 11; of the other four cases the said first date of two is February 11 and of the remaining two February 18. There was also introduced the “call sheet” showing Judge Swanson’s call, previously published in the Law Bulletin, for February 11. On this sheet appears in typewriting the number and title of the Wright case, under the heading “Short Cause,” as the only short cause case to be called on that day. Underneath appears the further heading “Trial call,” following which are the numbers and titles of 18 other cases (not short cause cases) and under the further heading “On Trial” are the numbers of two cases on trial, entitled “In re Howard.” On the sheet also appear in ink the minute clerk’s indorsements, showing the disposition of certain of the cases, and, as to the Wright case, the indorsement is “Hold February 18th, S. C. Cal’d’r.” There was also introduced Judge Swanson’s call sheet for Monday, February 18, previously published in the Law Bulletin. On this sheet, under the heading “Short Cause,” appear the numbers and titles of the six cases above mentioned — the Wright case being the first, and the Loew case being the sixth instead of the second; then follow the numbers and titles of six other short cause cases; then follows the “trial call” for “2 p. m.,” giving the numbers and titles of cases, other than short cause cases, to be called that afternoon. On the sheet also appear in ink the minute clerk’s indorsements as to the disposition of all five of said short cause cases which preceded the Loew case, and the indorsement as to the Loew case, “Verd. Fdg. $4000, Jnd’t. on Verd.” The affidavits of Harry Blitzsten and Benjamin Jaife, attorneys in the employ of defendant’s attorneys, were to the effect that when the notice was served to place the Loew case on the short cause calendar said case was on general calendar No. 4, assigned to Judge Scanlan; that on February 11 and 18, 1924, said judge was not hearing law cases from said calendar but certain chancery cases under a general order of the judges of the court entered October 5, 1923; that no notice had been served on defendant’s attorneys by plaintiff, either prior to February 11 or February 18, that the Loew case had been transferred to any other judge; and that the first notice that they, or defendant, or any of his attorneys, had of the entry of the judgment was on April 18, 1924, when an execution was served on defendant. The record of the proceedings above mentioned in the Loew case, resulting in said judgment against defendant, was introduced in evidence, and it appeared from a stipulation made in open court that on February 11 Judge Swanson did not hear any short cause cases— being on that day engaged in hearing various cases on his regular trial calendar — and thereafter, with the exception of one case on February 14, did not hear any short cause cases until February 18.
    On the hearing, on behalf of plaintiff, there were introduced in evidence certain rules of the circuit court, one to the effect that the assignments of cases among the several judges should from time to time be determined by the order of the executive committee of the judges; — another to the effect that said committee had power, upon an emergency arising, to transfer any case or cases to any judge; — and a third, regarding short cause cases, to the effect that “Monday of each week” is set apart as the day for the trial of cases “upon the Short Cause Calendar”; that notice to place a case on. such calendar must be filed with the clerk not later than 11 days before the Monday on which the case is set; and that all cases not reached for trial on the Monday designated shall “stand continued until the following Monday.” There was also introduced a general order of the judges of the court, entered of record July 16, 1923, relative to the assignment of seven judges to hear seven common-law calendars, commencing at the September term, 1923, and as to the assignment of certain judges to hear chancery cases. In this order Judge Swanson was assigned to hear “short causes,” and it was further ordered that all assignments of the several judges should be printed on the inside of the covers of the calendars to be printed and distributed by the clerk to the members of the bar. There was also introduced an order of the judges of the court, entered December 10,1923, to the effect that all pending cases appearing on calendar No. 4, previously assigned to Judge Scanlan, be transferred to and heard by Judge McQ-oorty. The affidavits of plaintiff’s attorney, Hudson, stated in substance that said general order of July 16, 1923, was complied with by the clerk; that the calendars were printed and distributed, on the inside covers of which appeared the assignment of Judge Swanson to hear cases from the “Short Cause Calendar”; that defendant’s attorneys were subscribers for the Law Bulletin and had been since said order was entered; that neither defendant’s attorneys nor any of their assistants were in Judge Swanson’s court on February 18, 1924; that the “call” of all cases, to be heard by Judge Swanson on February 18, was published in the said Law Bulletin on February 16, the same as in the “call sheet” made out by the clerk; that after said judgment had been entered by Judge Swanson he (Hudson) had a conversation with defendant’s attorney, Pflaum, on April 21,1924, at which Pflaum stated in substance that the reason for the absence of de fendant or any of his attorneys from Judge Swanson’s court room on February 18, 1924, was that his docket clerk had “made a bull,” and that said clerk after receiving the short cause notice “did not follow it up.” The making of these statements was not denied by Pflaum. The affidavit of said docket clerk, however, was introduced by defendant and read in evidence, to the effect that from the time of the commencement of the suit he each day read the Law Bulletin; that after receiving said short cause notice he read the bulletin of Friday and Saturday, February 8 and 9, preceding Monday, February 11, and did not find said Loew case noted on the calls of either Judge Seanlan, Judge McGfoorty or Judge Swanson; that he had no knowledge of the placing of said case .upon any trial call for February 18; that “he did not read the Bulletin of Friday, February 15th, or Saturday, February 16th; and * * * that he did not therefore call to the attention of the lawyers in said office in charge of trials that said cause was noted on the trial call of Judge Swanson for February 18, 1924.”
    Charles Hudson, for appellant.
    D’Ancona & Pflaum, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

After a review of the petition or motion, plaintiff’s answer thereto, the affidavits and documentary evidence introduced on the hearing, and the exhaustive briefs and arguments of respective counsel, we feel constrained to hold that the circuit court erred in entering the order appealed from, viz., setting aside said judgment for $4,000 against defendant, etc. Said order, based as it was on a finding that errors of fact were committed in the rendition of the judgment, is an appealable one. (Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, 526.) Defendant’s motion to set aside the judgment was not made until after the term at which it was entered had passed. It is well settled that, after the term has passed at which a court having jurisdiction of the subject matter and of the parties has entered a judgment, such judgment cannot be set aside by said court except for certain errors of fact committed in the proceedings, and then in the manner as provided by section 89 of our Practice Act [Cahill’s St. ch. 110, ft 89]. (Kelly v. City of Chicago, 148 Ill. 90, 96; People v. Weinstein, 298 Ill. 264, 269; Pisa v. Rezek, 206 Ill. 344, 345; Consolidated Coal Co. v. Oeltjen, 189 Ill. 85, 87; Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, 519; Marabia v. Mary Thompson Hospital, 309 Ill. 147, 152.) In the Oeltjen case it is stated that the motion is not one which is addressed to the equitable powers of the court, nor one which the court may allow or deny in its discretion. In the Cramer case it is said (p. 521) that “the motion is not intended to relieve a party from the consequences of his own negligence,” and (p. 522) that “the error in fact which may be assigned under the motion must be some fact unknown to the court which, if known, would have precluded the rendition of the judgment.” In the Marabia case (p. 153) there are listed certain errors of fact, which may be corrected by motion under the statute, viz.: “The disability of parties, the incapacity of the plaintiffs to sue or the disability of the defendants to defend, such as infancy, coverture, death of one or more of the parties, death of a joint party, insanity”; and the court says: “Any of these facts, if known to the court, would prevent the entry of a judgment, and it is to error arising out of lack of knowledge by the court of such facts that the writ of error coram nobis, or the motion which is its substitute, applies, and not to lack of knowledge on the part of the court of facts constituting a cause of action or a defense to it.”

Counsel for appellee mention in one part in their printed argument the “default or misprision of the clerk” in erroneously placing the Loew case on the “call” for February 18, 1924, instead of February 11, when it was first ready to be tried as a case properly on the short cause calendar; and in another part of their argument they state that there were “three undisputed errors of fact,” viz.: (a) “The unauthorized act of the minute clerk in placing the case on the trial call on February 18th when it had been set for trial on the short cause calendar for February 11th.” (b) “The unauthorized act of the minute clerk in placing the case on the trial call of Judge Swanson, when it properly belonged to the trial call of Judge McG-oorty.” (c) The fact that the case was not called or tried on February 11, although “set for trial on the short cause calendar” for that date, but was called and tried on February 18, “constituted a continuance of the case which, by virtue of the statute and the law, resulted in striking it from the short cause calendar, and it could not again be placed thereon without the service and filing of a new notice and affidavit.” Under the allegations of defendant’s petition and the evidence presented on the hearing of his motion we fail to find any “default or misprision” of Judge Swanson’s minute clerk in placing the case on Judge Swanson’s call for February 18, instead of February 11. Doubtless he acted under the orders of Judge Swanson in making up the calls for both of those days. While the evidence discloses that the case was ready to be tried as a short cause case on February 11, it also appears that Judge Swanson was engaged on February 11 in completing the hearings, previously entered upon, of two cases, entitled “In re Howard,” and doubtless he, in directing the number of cases to be placed on his call for February 11, took into consideration the fact that he would be so engaged. Furthermore, it is provided in section 28 of the Practice Act [Cahill’s St. ch. 110, 28] that the short cause calendar “shall be a continuous calendar and suits once placed upon it shall remain thereon until disposed of in their order.”

As to the three “undisputed errors of fact” above mentioned, appellee’s counsel in two instances make the erroneous assumption that the case was set “for trial” on the short cause calendar for February 11. The evidence discloses that the first time the case was set for trial was when it was placed on Judge Swanson’s call for February 18. And we fail to see wherein Judge Swanson’s minute clerk committed any unauthorized act in placing the case on Judge Swanson’s trial call for February 18, or that the case should have been placed on Judge McGoorty’s trial call. It clearly appears from the evidence that by general orders of the judges of the circuit court, of which all attorneys were given timely notice, Judge Swanson had been assigned to hear all short cause cases of said court. And when the case, after proper affidavit and notice duly served and filed, had been placed on the short cause calendar, the effect was to strike it from calendar No. 4 of the general calendar, which Judge McGoorty by order of the judges was then calling. (Section 31, Practice Act.) [Cahill’s St. ch. 110, [[ 31.] As to appellee’s counsel’s point “c,” above mentioned, it is evident that they have in mind the provisions of section 30 of the Practice Act [Cahill’s St. ch. 110, [[ 30], as follows: “A suit upon the ‘ Short Cause Calendar’ may be passed or continued for good cause shown the same as other suits, and if so passed or continued it shall lose its place upon such calendar, but may be again placed thereon. ’ ’ The evidence does not disclose that the Loew case was ever passed or continued. After it was placed on the short cause calendar, the first time it was set for trial was on Judge Swanson’s call for February 18, the day it was tried.

For the reasons indicated the order of the circuit court appealed from, entered June 9, 1924 (setting aside the judgment for $4,000 rendered against Harry F. Krauspe on February 18, 1924) is reversed.

Reversed.

Fitch, P. J., and Barnes, J., concur.


text:
    William Reeda, Appellant, v. Anton Wagner, Appellee.
    Gen. No. 29,658.
    Lanplobd akd tenant — when lease not forfeited by lessee for nonpayment of taxes. Where a lease provided that the lessee was to pay the general taxes levied, against the property, in time to prevent “any sale or forfeiture” for taxes, and that the lessor might have the option of paying the taxes when they became due and payable, and that the lessee should on the next rent day pay any such amount laid out by the lessor, together with interest, and where the lessee, upon being notified of the amount so paid, offered to pay the same and the lessor claimed that such payment came too late, in accordance with the terms of the lease, the lessee could not be dispossessed in forcible detainer proceedings instituted on June 10 because of his failure to make payment with interest by June 1. Application for judgment and order of sale is not made until the June or subsequent term of the county court, and taxes may be paid at any time before the sale.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. William E. Vines, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed June 9, 1925.
    William Jaffe, for appellant.
    No appearance for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

Plaintiff filed in the municipal court of Chicago a complaint in forcible detainer, alleging that he was entitled to the possession of certain premises in Chicago, known as 1252 N. Clark street, and that the defendant, Anton Wagner, unlawfully withholds possession from him. On the trial the court directed the jury to return a verdict finding the defendant not guilty. Such verdict was returned and,, after plaintiff’s motions for a new trial and in arrest of judgment had been overruled, judgment was entered against plaintiff for costs and he appealed. Defendant has not filed a brief in this Appellate Court.

Wagner, as assignee of the lessee in a certain Written lease, was a tenant of the premises with the consent of Reeda, the lessor, paying him the monthly rent. The lease did not expire until April 29, 1928. When Wagner accepted the assignment and took possession he agreed to be bound by all of the covenants and conditions of the lease, except as to the amount of the rent which was increased from $110 to $135 per month. Reeda brought the present suit for possession on the ground that Wagner had made default, under the terms of the lease, in not repaying to Reeda, within proper time after demand, the amount of the general taxes, $444.38, levied on the premises for the year 1923, and which Reeda had paid on May 2, 1924. In clause (a) of the fourth paragraph of the lease it is provided that the first annual taxes to be paid by the lessee shall be those for the year 1923, that the lessee shall deliver to the lessor from time to time receipts for all tax payments within 30 days after the respective payments evidenced thereby, and that “all such payments shall be made in apt time to prevent my sale or forfeiture thereforIn clause (b) of said paragraph it is provided that the lessor “shall at his option have the right at all times during said demised term to pay any taxes, * * * remaining unpaid after the same shall have become due and payable, and to pay, cancel and clear off all tax sales, forfeiture liens, charges and claims upon said demised premises or reversionary interest therein, which under the terms of this lease it is the duty of said lessee to pay, and to redeem said demised premises * * * from the same, * * * and the amount so paid, including reasonable expenses, shall at the option of the lessor be so much additional rent due from the lessee to the lessor at the next rent day after such payment, with interest at the rate of 7 per cent per annum from the date of payment thereof by the lessor until the repayment thereof to the lessor by the lessee.” In paragraph twenty-first of the lease it is provided that if default should be made in the payment of the rent, or in any of the covenants to be kept by the lessee, the lessor might at his election, without notice or demand of rent, declare the term ended and re-enter the premises either without or with process of law.

The evidence further disclosed that on April 22, 1924, Eeeda wrote Wagner, advising him that the general taxes for the year 1923 on the premises were $444.38, that taxes generally had been “boosted,” and requesting, him to send a check by return mail for the amount and to “then come in and see me about arrangements to pay for services in keeping the taxes down on your property”; that on May 1, 1924, Reeda mailed a bill to Wagner to the effect that the amount for said taxes was due to Reeda from Wagner; that on May 2, 1924, Reeda paid said taxes to the county collector and obtained a tax bill marked paid; that on and after June 11, 1924, Wagner, through his attorney, at different times mailed two checks to Reeda in payment of the amount of said taxes, which checks were returned by Reeda for the reasons, as testified by him, that the same were “not legal tender and insufficient in amount and coming too late in accordance with the terms of the lease”; and that on July 10, 1924, Reeda commenced the present action.

At the time of the entry of the verdict against Reeda, the court stated in substance that the failure of Wagner to repay to Reeda by June 1, 1924 (the next rent day) the amount of the taxes so paid by Reeda on May 2, 1924, together with interest on said amount at the rate of 7 per cent per annum from the date of said payment by Reeda, did not constitute a default in the payment of rent under the terms of the lease.

We are of the opinion that the actions of the court in directing the verdict, and entering the judgment were proper. While the lease provided that the lessee should pay the general taxes each year, and that the lessor had the option to pay them when they became due and payable, yet, under clause (a) of the fourth paragraph of the lease, the lessee was required only to make payment for said taxes “in apt time to prevent any sale or forfeiture. ’ ’ Interest at one per cent per month on due and unpaid taxes does not commence to run until May 1 (Cahill’s St. 1923, ch. 120, sec. 177, 195); and application for judgment and order of sale for taxes on delinquent lands and lots is not made until the June or subsequent term of the county court (Cahill’s St. ch. 1.20, see. 1.85, 203); and taxes may be paid at any time before the sale (Cahill’s St. ch. 120, sec. 189, ]\ 207). Under the terms of the lease, Wagner was not obliged, in repaying Reeda for the amount of the taxes paid by the latter on May 2, to also pay interest on said amount from said date, and it appears that before the present action was commenced Wagner offered to repay to Reeda the amount paid by him on account of the taxes, which amount Reeda refused to receive. Under the somewhat peculiar facts disclosed we do not think that when the action was commenced Reeda was entitled to the possession of the premises and to dispossess Wagner, who was conducting a restaurant business on the premises by virtue of the lease which had several years yet to run.

The judgment of the municipal court should be affirmed, and it is so ordered.

Affirmed.

Fitch, P. J., and Barnes, J., concur.


text:
    William H. Roth, Appellee, v. Emil Lundin and Marie Lundin, Appellants.
    Gen. No. 29,767.
    1. Highways and streets — right of way at street intersections. Where two automobiles are approaching a crossing from different directions, the one reaching the crossing first has ■ the right of way.
    2. Limitations of actions — limitation on husband’s action to recover amount paid for medical services for wife. An action by a husband to recover the amount paid for doctor’s bills in curing his wife of injuries sustained in an automobile accident, held not within section 14 of the Limitations Act, Cahill’s St. ch. 83, If 15, requiring actions for injuries to the person to be brought within two years, but that it was governed by section 15 of the Act, Cahill’s St. ch. 83, If 16, and might be commenced within five years after the action accrued.
    3. Limitations op actions — computation of period of limitations. In actions for personal injuries required to be brought within two years, the first day is to be excluded and the last included, unless the last day is Sunday; and therefore an action brought by a husband to recover the expense of repairs to his automobile, and doctor’s bills paid in curing his wife of injuries sustained in the accident, commenced June 19, 1923, was held to have been brought within the two-year-statute of limitations, where the accident occurred June 19, 1921, even if it could be said that an action for the recovery of the doctor’s bill must be brought within two years instead of five.
    Appeal by defendants from the Municipal Court of Chicago; the Hon. William E. Viner, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed June 9, 1925.
    Frank H. Lennards, for appellants.
    John E. Crahen, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

On June 19, 1923, plaintiff brought suit in the municipal court of Chicago against defendants to recover damages resulting from the collision of their respective automobiles on the afternoon of June 19, 1923, at the intersection of Wilson and Winchester avenues, Chicago. In defendants’ affidavit of merits they denied all the material allegations of plaintiff’s statement of claim as to defendants’ negligence, and as to the expense incurred by plaintiff in the repair of his automobile and for the services of a physician in the treatment of plaintiff’s wife for personal injuries sustained. As a further defense defendants set up the statute of limitations of two years as to the physician’s services. On the trial without a jury the court ruled against defendants on the question of the statute of limitations, found the issues in plaintiff’s favor and assessed his damages at the sum of $533 in tort. This amount was arrived at by allowing him for payments made for the towing of his car, $25; for a new Ford sedan top at the then fixed price in Chicago for such tops, $333, — it being sufficiently shown that the old top was so damaged by the collision and the upsetting of the car that repairs on the old top were impracticable; and for said physician’s services, $175. Judgment was entered on the finding against defendants for $533 and they appealed.

Defendants’ counsel contends that the finding and judgment are manifestly against the weight of the evidence on the question of defendants’ liability, that the damages as assessed are excessive, and that the court committed reversible error in admitting over objection certain incompetent evidence offered by plaintiff. After an examination of the present record we cannot agree with any of these contentions. We think it clearly appears that the collision was the result of the negligence of defendants and without contributory negligence on the part of plaintiff, or his minor son, who was driving plaintiff’s car at the time and in which were seated plaintiff, his wife and daughter. Defendants were in their car, purchased with their joint funds, and traveling northward in Winchester avenue at an excessive rate of speed approaching* Wilson avenue, with Mrs. Lundin at the wheel. Plaintiff’s car was traveling westward on Wilson avenue and just as it reached Winchester had slowed down to a speed of less than 12 miles per hour. It reached the intersection first and had the right of way. Defendants’ car continued to move forward at an excessive rate of speed, and it struck plaintiff’s car, at a point west of the center of Winchester avenue, with such force as to cause the latter car to turn over, resulting in its top being practically wrecked and in such serious injuries to plaintiff’s wife that she lost three fingers of her right hand. She was taken to a hospital. The physician’s bill in question was for services in treating her for the injuries.

Defendants’ counsel also contends that as the accident occurred on June 19, 1921, and plaintiff’s suit was commenced on June 19, 1923, the action, as to the damages incurred to plaintiff for said physician’s services, was commenced one day too late under the provisions of section 14 of the Limitations Act [Cahill’s St. ch. 83, [[15], wherein it is provided in part that “Actions for damages for an injury to the person * * * shall be commenced within two years next after the cause of action accrued.”

In section 15 of said Limitations Act [Cahill’s St. ch. 83, [[ 16] it is provided in part that “Actions on unwritten contracts, expressed or implied, * * * or to recover damages for an injury done to property, real or personal, * * * and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.” And plaintiff’s counsel conténds in substance (1) that, inasmuch as plaintiff is not suing for an injury to his own person but for damages occasioned to him, by reason of his marital relationship to the injured party, the time limited for the commencement of his action is governed by section 15 of said Act rather than by section 14; and (2) that, even though the two-year limitation period be applicable, the action was commenced in time. In support of his first contention he cites the case of Bassett v. Bassett, 20 Ill. App. 543, 548, where it was decided that an action for an injury to the person, which must he commenced within two years, is limited to a direct physical injury, and that the time limited for the commencement of a wife’s action for damages for maliciously enticing her husband to separate himself from her is governed by section 15 and not section 14. In support of his second contention he cites the cases of Ewing v. Bailey, 5 Ill. (4 Scam.) 420, and Roan v. Rohrer, 72 Ill. 582. In the Roan case it is said (p. 583): “When an act is required to be performed within a specified time from a day named, the rule is, to exclude the day from which the time commences to run, and include the day on which the act is to be performed.” And in item 11 of section 1 of chapter 131 [Cahill’s St. ch. 131, fí 1], relating to the construction of statutes, it is provided: ‘ The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it shall also be excluded.”

The questions thus presented for decision are not wholly free from doubt. We, however, hold that the time for the commencement of plaintiff’s action for the recovery of all damages as enumerated in his statement of claim should be governed by section 15 of said Limitations Act and not by section 14; and that, even if it be considered that section 14 is applicable to the portion of his claim for the payment of said physician’s bill, his action for the recovery of the amount of said bill as damages was commenced in time. This latter holding may be considered as contrary to the per curiam opinion in Krug v. Outhouse, 8 Ill. App. 304, where, however, it is said (p. 305): “Item 11, sec. 1, ch. 131 of Underwood’s Statutes, referred to by counsel for appellant, is not applicable to this case, because it was enacted subsequent to the commission of the trespass.” This is not the fact with reference to the accident in question.

For the reasons indicated the judgment of the municipal court is affirmed.

Affirmed.

Fitch, P. J., and Barnes, J., concur.


text:
    Charles Fara for use of W. G. Tennant, Appellee, v. Reliable Furniture Manufacturing Company, Garnishee, Appellant.
    Gen. No. 29,825.
    1. Garnishment — sufficiency of service of statutory demand upon employee and employer by registered letter. Under section 14 of the Garnishment Act, Cahill’s St. 1923, eh. 62, If 14, providing that before bringing a suit for wages a demand in writing shall first be made upon the employee and employer for the excess over exemptions, and a copy of such demand shall be left with the employee and the employer at least 24 hours previous to bringing suit, service of notice or demand by registered letter was insufficient to support a judgment rendered in the municipal court of Chicago against the employer, in the absence of personal service.
    2. Municipal courts — time within which void judgment may be vacated. A void judgment of the municipal court of Chicago, as distinguished from an erroneous one, may be vacated after the expiration of 30 days from the judgment day.
    3. Municipal courts — time for vacating void judgments. Under section 14 of the Garnishment Act, Cahill’s St. 1923, ch. 62, 1f 14, requiring service of a demand in writing for payment to the creditor of the amount of a demand against a wage earner, in excess of exemptions, upon employer and employee, before commencing suit, the words, “a copy of such demand shall be left with him (employee) and with the employer,” mean personal service, and service by registered letter is insufficient to support a valid judgment; and a judgment rendered upon such service is void and may be vacated at any time, even though more than 30 days have elapsed between its rendition before the motion to vacate was made.

      Appeal by defendant from the Municipal Court of Chicago; the Hon. Theodore F. Ehleb, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Reversed and remanded with directions.
    Opinion filed June 9, 1925.
    Rehearing denied June 23, 1925.
    Frank H. Bicek and Q. J. Chott, for appellant; Frank H. Culver, of counsel.
    Gray & Nuttall, for appellee; Clarence A. Samuel, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On July 2,1924, a judgment for $521.78 was entered in a garnishment proceeding against the Reliable Furniture Manufacturing Company, in favor of Charles Fara for the use of W. G. Tennant, for failure of the garnishee to answer in compliance with an order of court entered on May 28, 1924. Execution was issued and levied on certain chattels of the Furniture Company which levy by direction of plaintiff’s attorney was released, and on September 16, 1924, the Furniture Company filed a motion and petition, supported by the affidavit of its president, John Kriz, asking that the judgment be vacated. After answer filed a hearing was had and evidence introduced, resulting in the court refusing to vacate the judgment, and the Furniture Company, by the present appeal, seeks to reverse that action.

On March 7,1924, Tennant caused a judgment to be confessed on a note against Fara for $521.78, including attorney’s fees. Execution was issued on March 10 and returned nulla bona on May 14. On the following day the present garnishment proceeding was commenced by the filing with the clerk of the municipal court of an affidavit, in attempted compliance with section 14 of the Garnishment Act (Cahill’s St. ch. 62, 1Í 14), in which it was alleged that one H. Young, at 12:15 o’clock p. m. on May 14, 1924, “had served the within notice and demand on Charles Fara by registered mail, debtor, by delivering to him a true copy thereof,” and had made at the same time a similar service “by registered mail” on the Furniture Company, “employer,” and that both copies so delivered had the time of service indorsed thereon, which was “more than 24 hours before the time of beginning suit.” The notice and demand referred to was signed by Tennant and was directed to Fara, “wage earner,” and to the Furniture Company, “employer,” and by it demand was made of them for the sum of $531.88 “out of moneys due, or which may become due, to Charles Fara as wages, under an act of the General Assembly of the State of Illinois in regard to garnishment.” On May 16 the garnishee summons was served on the Furniture Company, in which the Furniture Company was directed to appear in court on the morning of May 28 and answer unto “Charles Fara for use of W. G. Tennant” as to the rights, credits, property or moneys in its hands belonging to Fara. On the return day, May 28, the court entered an order extending the time 10 days within which the Furniture Company should make answer to the writ, but it did not thereafter file an answer and on July 2, the judgment against it for $521.78 was entered.

It is urged by counsel for the Furniture Company, for various reasons stated, that the court erred in not vacating the judgment of July 2, 1924, even though more than 30 days had passed after its rendition before the motion to vacate it was made. We shall only discuss one of counsel’s points, namely, that the judgment is void, under the provisions of section 14 of the Garnishment Act, in that before the garnishee summons was issued and served no proper demand in writing was personally served either upon Fara, the employee or wage earner, or the Furniture Company, the employer; and being void, as distinguished from being merely erroneous, it may be attacked at any time even after the expiration of 30 days from the date of its rendition.

We are of the opinion that the point is well taken and that said judgment, under said Act, is void, and that the court erred in not sustaining the motion of the Furniture Company to vacate it. It sufficiently appears that Tennant, at the beginning of the present garnishment proceeding, treated Fara as an employee of the Furniture Company and as a wage earner who was the head of a family and residing with the same. He attempted to comply with the provisions of section 14 of the Garnishment Act, when, before the summons was issued, he caused to be filed the affidavit mentioned showing that there was sent by registered mail on May 14, at 12:15 o’clock p. m., a demand in writing to both Fara and the Furniture Company for the payment of the sum mentioned out of moneys due or to become due Fara as wages. The provisions were not complied with, in that neither Fara nor the Furniture Company was shown to be personally served with the demand, and within 24 hours before the garnishment suit was commenced. A portion of said section 14 of said Act, as amended in 1923 (Cahill’s St. 1923, ch. 62, sec. 14) is as follows:

“Before bringing suit a demand in writing shall first be made upon the employee and the employer for the excess above the amount herein exempted, and a copy of such demand shall be left with him and with the employer, having endorsed thereon the time of service, at least twenty-four hours previous to bringing such suit. Such notice shall be filed with the justice, or clerk of the court, with the manner and time of the service of the same endorsed thereon, and the return duly sworn to before some officer authorized to administer oaths, before it shall be lawful to issue a summons in such case, or to require an employer to answer in any garnishee proceedings. Any judgment rendered without said demand being served upon the employee, and so proven and filed as aforesaid shall be void.”

Accordingly, the order of the municipal court of September 16, 1924, refusing to vacate said judgment of July 2,1924, is reversed, and the cause is remanded to said court with directions to vacate said judgment of July 2, 1924, against the Reliable Furniture Manufacturing Company.

Reversed and remanded with directions.

Fitch, P. J., and Barnes, J., concur.


author: Mr. Presiding Justice O’Connor

text:
    Maggie Barnes, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 29,437.
    Municipal corporations — hilling of police officer by riotous mob ■ as “lynching.” A police officer who, while in the discharge of his official duties, was shot while endeavoring to stop a riotous mob, and died as a result was not “lynched” within the meaning of section 5 of the “Act to suppress mob violence,” in force July 1, 1905, Cahill’s St. ch. 38, If 541, and hence a verdict for the defendant city was properly directed in an action by the mother of the officer.
    Error by plaintifi to the Municipal Court of Chicago; the Hon. Franklin J. Stranskt, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed June 17, 1925.
    E. H. Morris and Alva L. Bates, for plaintiff in error.
    Francis X. Busch, Corporation Counsel, for defendant in error; Cora B. Hirtzel, Asst. Corporation Counsel, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant, claiming that her son, John W. Simpson, had been killed by a mob and, therefore, she was entitled to recover by virtue of the provisions of “An Act to suppress mob violence,” in force July 1, 1905 [Cahill’s St. ch. 38, [f[f 537-542]. At the close of her case there was a directed verdict for the defendant, judgment was entered on the verdict and this writ of error followed.

The declaration was in two counts in each of which it was alleged that plaintiff’s son, John W. Simpson, was lynched by a mob in the City of Chicago; that she was dependent upon him for her support and damages were claimed by virtue of the Act of July 1,1905. A general demurrer was sustained to this declaration, plaintiff elected to stand by her demurrer, the suit was dismissed at her costs and she sued out a writ of error from this court, where, upon consideration, an-' other division of this court held that the declaration stated a good cause of action and that the demurrer should have been overruled. Accordingly the judgment was reversed and the cause remanded. Barnes v. City of Chicago, 225 Ill. App. 31. Upon the re-docketing of the case in the trial court, the defendant’s demurrer was overruled in accordance with the decision of this court and it filed a plea of the general issue. The case went to trial and at the close of the plaintiff’s evidence there was a directed verdict for the defendant.

Plaintiff’s evidence tended to show that about six o’clock on the evening of July 28,1919, a mob consisting of probably more than 100 people was assembled near Wabash avenue and 31st street in Chicago; that they were chasing one or more men east in 31st street and there was considerable shooting; that the deceased, John W. Simpson, a police officer of the City of Chicago, arrived on the scene about that time and endeavored to stop the mob and in the rioting he was shot as a result of which he died; that he left him surviving his mother, the plaintiff, who was dependent upon him for her support.

We think the evidence tended to show that there was a mob within the meaning of the Act and that it was assembled for the unlawful purpose mentioned in the Act, but we are of the opinion that the evidence showed that the deceased, Simpson, was not “lynched” by the mob and since section 5 of the Act [Cahill’s St. ch. 38, 541] limited recovery to the dependents of persons “lynched” by a mob, there could be no recovery and, therefore, a directed verdict was proper. Section 5 specifically provides that where a surviving heir is “dependent for support upon any other person who shall hereafter suffer death by lynching at the hands of a mob” such heir may recover damages from the city in which such lynching occurs in a sum not exceeding $5,000. “The word ‘lynching’ has been defined by legal as well as other lexicographers, and according to such definitions, and as the term is generally understood, the illegal act commonly termed ‘lynching,’ as defined by Rapalje & Lawrence is ‘mob vengeance upon a person suspected of crime.’ Law Dictionary, 778. It is ‘a term descriptive of the action of unofficial persons, organized bands, or mobs, who seize persons charged with or suspected of crimes, or take them out of the custody of the law, and inflict summary punishment on them, without legal trial, and without warrant or authority of law.’ Black’s Law Dictionary, p. 737. ‘A common phrase used to express the vengeance of a mob inflicting injury and committing an outrage upon a person suspected of some crime.’ State v. Aler, 39 W. Va. 558.” State v. Lewis, 142 N. C. 626.

In the instant case there is no evidence nor is there any intimation that Simpson had committed or was suspected of having committed an offense. He was a police officer and at the time was discharging his official duties and it cannot be said within any meaning of the term that he was “lynched” by the mob. It might well be that the law should cover such a case, but that is a question for the legislature and not for the courts. The legislature has seen fit to limit the liability of the city to the dependent heirs of such persons as are “lynched” by a mob.

All that was decided on the former hearing- in this court was that since each of the two counts of the declaration charged that Simpson was lynched by a mob, it stated a cause of action. When, however, the case went to trial, the evidence disclosed that Simpson was not lynched, there could, therefore, be no recovery and the directed verdict was proper.

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

Affirmed.

Thomson and Taylor, JJ., concur.