text:
    Charles H. McKenna and Marie McKenna, Appellants, v. Morris Forman and Rose Forman, Appellees.
    Gen. No. 38,350.

      Opinion filed February 11, 1936.
    Schuyler, Weinfeld & Hennessy, of Chicago, for appellants; Henry E. Jacobs, of Chicago, of counsel.
    Levy & Schmetterer, of Chicago, for appellees.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

January 18, 1933, plaintiffs, Charles H. McKenna and Marie McKenna, secured a judgment by confession on a lease against defendants, Morris Forman and Rose Forman, for $5,396.62, which amount included alleged arrearages in rental instalments and attorneys’ fees. Execution was issued May 31,1934, which was returned August 30,1934, “no property found and no part satisfied.” Defendants filed their verified petition to vacate and set aside the judgment June 15, 1934. Plaintiffs filed their sworn answer to the petition to vacate on February 9,1935. The trial court on March 8,1935, refused to hear or set down or assign for hearing defendants’ motion to vacate the judgment on their petition to vacate and plaintiffs’ answer thereto, but entered the following order:

“Now comes the defendants and move the Court that the judgment rendered herein by confession be vacated and set aside, which motion the Court orders entered, and it is further ordered that said judgment be opened, that leave be and hereby is given to the defendant to appear and to make defense herein, that a trial of this cause be had notwithstanding said judgment, that said judgment stand as security, and that execution herein be stayed until the further order of this Court, and that the affidavit is to stand as affidavit of merits. ’ ’

March 20, 1935, plaintiffs filed their written motion to vacate the order of March 8,1935, which motion was denied April 8, 1935. This appeal seeks to vacate the order of March 8,1935, granting leave to defendants to appear and defend without allowing plaintiffs a hearing on the issues raised by defendants’ petition to vacate and plaintiffs’ answer thereto.

Plaintiffs contend that the trial court was without jurisdiction to entertain the motion of defendants for leave to appear and defend or to enter the order of March 8, 1935, granting them leave to appear and defend on their petition to vacate; that the extent of the power of the court was to either hear the cause presented by defendants’ petition to vacate the judgment and plaintiffs’ sworn answer thereto or to assign same to some other judge of the municipal court of Chicago for hearing upon said petition and answer, pursuant to section 21 of the Municipal Court Act; and that the entry of the order of March 8,1935, was contrary to the provisions of said section 21 of ‘ an Act in relation to a Municipal court in the City of Chicago.” (Ill.,State Bar Stats. 1935, ch. 37, H 409.)

Defendants’ theory is that judgments by confession do not come within the purview of section 21 of the Municipal Court Act and that a motion to vacate a judgment by confession in the municipal court is governed by the civil practice rules of that court and is addressed to the sound discretion of the court, calling for the exercise of its equitable powers over its own judgments.

The real question presented for our determination in this cause is whether section 21 of the act relating to the municipal court of Chicago provides the sole procedure for vacating judgments of that court, including judgments by confession. That portion of section 21 of the Municipal Court Act pertinent to this proceeding is as follows:

‘ ‘ That there shall be no stated terms of the municipal court, but said court shall always be open for the transaction of business. Every judgment, order or decree of said court final in its nature shall be subject to be vacated, set aside or modified in the same manner and to the same extent as a judgment, order or decree of a circuit court during the term at which the same was rendered in such circuit court: Provided, a motion to vacate, set aside or modify the same be entered in said municipal court within thirty days after the entry of such judgment, order or decree. If no motion to vacate, set aside or modify any such judgment, order or decree shall be entered within thirty days after the entry of such judgment, order or decree, the same shall not be vacated, set aside or modified excepting upon appeal or writ of error, or by a bill in equity, or by a petition to said municipal court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity.” (Italics ours.)

In DeStefano v. Miles, 268 Ill. App. 353, 357, this court quoted from Steudle v. Manthie, 185 Ill. App. 576 (abstract decision) as follows:

“Section 21, paragraph 284, of the Municipal Court Act, provides for the only method of giving to the Municipal Court jurisdiction to vacate judgments or orders entered by the Municipal Court after thirty days have intervened after the entry of a judgment or final order. ’ ’

In discussing this question in Welley v. Klein, 257 Ill. App. 171, the court said at p. 174:

“This section means that where a judgment is entered in the municipal court and 30 days have elapsed, the municipal court is without power to vacate or set it aside except it may be vacated or set aside if a motion is made under section 89 of the Practice Act, Cahill’s St. ch. 110, sec. 89, showing sufficient grounds under that section, or the judgment may be vacated and set aside upon petition being filed tohich alleges facts sufficient to cause the judgment to be vacated and set aside by a bill in equity if filed in the circuit or superior court.” (Italics ours.)

It has been repeatedly held that after 30 days have elapsed since the entry of a judgment in the municipal court by confession or otherwise, the same shall not be vacated, set aside or modified by that court except upon a petition in the nature of a bill in equity as provided in said section 21. It has also uniformly been held that the filing of the petition under sec. 21 is an independent proceeding in the nature of a new" suit. As to the appropriate procedure to be followed pursuant to the filing of such a petition, this court in Imbrie v. Bear, 230 Ill. App. 155, after stating that if plaintiff in that case had made a motion to strike defendant’s petition to vacate the judgment, it should have been granted for failure of the petition to vacate to set forth grounds for equitable interference, said at pages 158 and 159:

“Instead of making such a motion plaintiffs filed an answer to the petition, which the court struck on the theory that it was bound to take the averments of the petition as true, and that plaintiffs were not entitled to a hearing thereon.

“Section 21 of the Municipal Court Act (Cahill’s Ill. St. eh. 37, jf 409) manifestly contemplates conferring on such court only such power as a court of equity could exercise in a similar case under analogous proceedings, at least so far as they afford an opportunity for the formation of issues and a hearing thereon. It is an independent proceeding in the nature of a new suit, and not a mere incident to the original suit. The proceedings, therefore, in the absence of any specific statutory direction, should be appropriate to the relief sought (23 Cyc. pp. 947, 948), which require a hearing as to the existence of the grounds on which the relief is invoked. Judgments would stand upon a very insecure foundation if they could be set aside at any time on the mere filing of a petition regardless of the truth of its averments. But the statute manifestly contemplated in conferring such equitable power that it would not be exercised without an opportunity, as afforded in equity, for a hearing as to the existence of the grounds upon which it is invoked.”

It follows that plaintiffs had the right to file the answer which they did file to defendants’ petition to vacate the judgment and to a hearing as to the existence of the grounds on which the equitable relief of the court was invoked by defendants, same having been put in issue by the answer which traversed all the material allegations of the petition to vacate and alleged new matter pertinent to the issues.

To sustain the trial court’s action in refusing to grant plaintiffs a hearing on their answer to defendants’ petition to vacate the judgment by confession, as well as to sustain the court’s order of March 8, 1935, granting them leave to appear and defend, defendants rely on Buie 190 of the Civil Practice Buies of the municipal court and the note appended thereto, and on authorities that announce the rule in the circuit and superior courts relating to motions and petitions to vacate judgments by confession, where such motions have been made after term time or more than 30 days after the entry of such judgments under the Civil Practice Act. They also cite cases to sustain their position wherein petitions were filed in the municipal court under sec. 21 to vacate judgments by confession and no answers were filed thereto or hearings demanded thereon.

Buie 190 of the Civil Practice Buies of the municipal court and its accompanying note are as follows:

“A judgment by confession may be opened with leave to the defendant to plead whenever the evidence introduced by him, by affidavit or otherwise, taken by itself alone, is sufficient to establish a good defense to the plaintiff’s claim in whole or in part.

“Note: While upon a motion to vacate a judgment and for leave to plead counter-affidavits may be filed by "the plaintiff, the court cannot decide the question upon the weight of the evidence if the evidence for the defendant makes a prima facie case.”

It will be noted that this rule and its appended note are silent as to when or at what stage of the proceedings the remedy therein provided may be invoked, and it is only fair to assume, inasmuch as the rule fails to mention the time when the remedy may be exercised and takes no cognizance at all of laches, which has always been recognized as a bar, that it has reference only to an application to open up a judgment by confession within 30 days after its entry. Otherwise the rule would be in contravention of sec. 21 of the Municipal Court Act, which it has been shown contemplates such proceedings as are afforded in equity, including the filing of an answer to the petition to vacate and a hearing on the issues raised by such petition and answer. If Rule 190 and the note supplementing it were intended to apply to a petition in the nature of a bill in equity filed more than 30 days after the entry of a judgment by confession to vacate same, what possible purpose would it serve to file an answer when under the rule the court is empowered and directed to ignore such answer? The right of the municipal court to make such rules regulating the practice therein as may be deemed necessary and expedient for the proper administration of justice in that court is recognized, but the rules of practice adopted by the court must not be inconsistent with statutes in relation to substantive law. Quoting Rosier v. Williams, 92 Ill. 187, this court said in Wilson v. Gill, 279 Ill. App. 487, at p. 490: “While circuit courts, and other courts of record, have undoubted power to make all reasonable rules for the transaction of the business of the courts, yet their rules must be in furtherance of law, and not in contravention of it. All rules of court must be subordinate to the general laws of the State, and such as are not are binding on no one.” Rule 190 is clearly inconsistent with that portion of sec. 21 of the Municipal Court Act which pertains to the filing of a petition in the nature of a bill in equity to vacate a judgment by confession entered by that court where more than 30 days elapsed since the entry of the judgment, and, we think, could have been intended to apply only to applications to open up judgments by confession with leave to appear and defend when such applications are made when less than 30 days have intervened after the judgments were entered.

In the circuit and superior courts the established rule has been that where a motion to vacate a judgment by confession was made after the expiration of the term at which it was entered, it was addressed to the sound discretion of the court and calls for the exercise of the equitable powers of the court over its own judgments. This rule continues to prevail in those courts where a similar motion is made under the Civil Practice Act more than 30 days after the entry of the judgment. The same rule would undoubtedly be also applicable to like motions in the municipal court were it not for the fact that sec. 21 of the Municipal Court Act as repeatedly construed by this court and the Supreme Court prescribes the procedure to be followed on motions to vacate judgments in that court. While judgments by confession are not specifically mentioned in sec. 21, it comprehends “every judgment, order or decree of said court, final in its nature.” A judgment by confession has all the qualities, incidents and attributes of other judgments. The clerk of the trial court in making the entry of such judgments records the conclusions and findings of the law and the judgment is of the same character as any other. (Blake v. State Bank of Freeport, 178 Ill. 182.)

We have carefully examined all the cases cited by defendants and in not one of them do we find any language that questioned or denied the right of a plaintiff to answer the petition of a defendant to vacate a judgment by confession entered in the municipal court of Chicago, where said petition was filed more than thirty days after the entry of such judgment or his right to a hearing on the issues raised by such petition to vacate and the answer thereto. In our opinion, diligent defendants with a meritorious defense and anxious for a final determination of all the issues involved should prefer such a hearing where the equitable powers of the court would be brought into play to ascertain whether the judgment was proper, fair and just.

Plaintiff’s had a substantial vested property right in their judgment, of which they could not be legally divested by a rule of practice promulgated by the municipal court, which is inconsistent with sec. 21 of the Municipal Court Act, the true intent of which, we think, was to afford plaintiffs a hearing on the issues of fact raised by their answer to defendants ’ petition to vacate.

For the reasons stated herein the order of the municipal court of March 8, 1935, granting leave to defendants to appear and defend and of April 8, 1935, denying plaintiffs’ motion to vacate the order of March 8, 1935, are reversed and the cause is remanded with directions to allow plaintiffs a hearing on their answer to defendants’ petition to vacate the judgment.

Reversed and remanded with directions.

Soanlan, P. J., and Friend, J., concur.


source: Caselaw Access Project

author: Mr. Justice John J. Sullivan

license: Public Domain

text:
    Balaban and Katz Corporation, Appellee, v. Murray Rose et al., Defendants. Appeal of Murray Rose, Appellant.
    Gen. No. 38,694.
    Opinion filed February 11, 1936.
    Rosenberg, Toomin & Stein, of Chicago, for appellant; Benjamin Rosenberg, of counsel.
    Spitz & Adcooic, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse an interlocutory order entered by the circuit court November 27, 1935, denying the motion of Murray Bose (hereinafter referred to as the defendant) to dissolve a temporary injunction issued November 9, 1935, upon the verified complaint of Balaban & Katz Corporation, plaintiff, without previous notice to Bose. The verified return of the service of notice for the application for an injunction pendente lite shows that it was served only upon the defendants Eddie Bio and Larry Bio. The other defendants named in the complaint, Balph Bio, Charles Bio and Murray Bose were not served.

Plaintiff’s complaint alleges that it operates approximately 35 motion picture theatres in the City of Chicago, including the Chicago and Uptown theatres; that it enjoys a high reputation and exhibits exclusive reputable motion pictures and vaudeville entertainment ; that the defendant Murray Bose is the owner of a certain vaudeville act known as “Bio Brothers”; that the defendants performed their act for plaintiff at the Chicago Theatre during the period commencing October 11,1935, and ending October 17,1935, and also performed their act for plaintiff at the Uptown Theatre October 25, 26, and 27, 1935; that the defendants’ contract with plaintiff attached to the complaint contains a provision that' they would not perform publicly or privately in any manner whatsoever for any person, firm or corporation between the date of the contract and 30 days after the termination of the engagements set forth therein in the city or cities wherein such engagement or engagements shall have been performed, or within 50 miles thereof, without the written consent of plaintiff; and that the compensation to be paid to the defendant Murray Bose was computed in part upon the consideration that for a period of 30 days the defondants would not perform their act for any person other than plaintiff without its consent.

The complaint further alleges that subsequent to the completion of the performance by the defendants of their contract with plaintiff, they entered into a contract to perform their act at the State-Lake Theatre, beginning on November 9,1935; that plaintiff has absolutely no interest in the ownership of the State-Lake Theatre; that the act which the defendants agreed to perform at the State-Lake Theatre is identical with the one performed at the Chicago and Uptown theatres; that in the event the defendants perform at the State-Lake Theatre they will be performing within 30 days after the termination of their engagements at the Chicago and Uptown theatres; and that the defendants are about to perform said act in defiance of the terms and provisions of their contract with plaintiff, wherein they agreed not to perform in the City of Chicago for a period of 30 days after the termination of their engagement at the Chicago and Uptown theatres.

It is further alleged that plaintiff maintains a policy of first-run, exclusive motion pictures and vaudeville entertainment at the Chicago Theatre, which is a superior policy to that maintained at the State-Lake Theatre; that plaintiff charges a higher price at the Chicago Theatre than the State-Lake Theatre charges; that the public is induced to patronize plaintiff’s theatre in preference to the State-Lake Theatre despite the higher admission prices by reason of the fact that the attractions at plaintiff’s theatre have a substantial priority in time of appearance over the State-Lake Theatre; that it would be destructive of the business of plaintiff if attractions at its said theatre were to appear within 30 days thereafter at the State-Lake Theatre; that plaintiff maintains a high-grade motion picture and vaudeville entertainment at the Uptown Theatre, which is superior to the policy maintained at the State-Lake Theatre; that on Fridays, Saturdays and Sundays plaintiff exhibits the finest feature pictures at the Uptown Theatre together with a number of vaudeville acts of unusual ability; that plaintiff charges a higher admission price at the Uptown Theatre than is charged by the State-Lake Theatre; that the public is induced to patronize the Uptown Theatre in preference to the State-Lake Theatre despite the higher admission price by reason of the fact that the attractions at the plaintiff’s theatre have a substantial priority in time of appearance over the State-Lake Theatre; and that it is necessary for plaintiff to insist that the vaudeville actors appearing at these theatres shall not perform in any theatre within the area described in said contract within 30 days after performing at plaintiff’s theatres.

It also averred that plaintiff has no adequate remedy at law in that damages resulting to it would be impossible of calculation and that the only relief available “is that available to it in equity through the prerogative of injunction, including an injunction pendente lite, restraining the defendants.”

The complaint concludes with the prayer that the court issue its writ of injunction restraining and enjoining defendants and each of them from performing any vaudeville act of any nature whatsoever publicly or privately for any person, firm or corporation in the City of Chicago or within 50 miles thereof without the Avritten consent of plaintiff until and including November 26,1935, and, in particular, restraining and enjoining defendants and each of them from performing at the State-Lake Theatre from the date of the issuance of said writ of injunction until and including November 26, 1935; that the court issue a writ of temporary injunction until and including November 26, 1935, or until the further order of the court; and that such other and further orders be entered as to the court may seem proper.

Notwithstanding that defendant Murray Bose had received no notice of the filing of the complaint or of the application for the temporary injunction, the order for injunction entered November 9, 1935, recites that “due notice was served upon the defendants” and provides as follows:

“On motion of Balaban & Katz Corporation, a corporation, complainant herein, by Spitz and Adcock, its solicitors, the Court finding that due notice was served upon the defendants, the Court having considered the verified complaint heretofore filed herein, having heard the argument of counsel and now being fully advised in the premises,

“Orders that a writ of injunction issue herein forthwith directed to and restraining and enjoining the defendants, Murray Bose, Eddie Bio, Larry Doe alias Larry Bio, Balph Doe alias Balph Bio and Charles Doe alias Charles Bio, and each of them, from performing any dancing or vaudeville act of any nature whatsoever, publicly or privately in any manner whatsoever, for any person, firm or corporation, in the City of Chicago, Illinois, or within fifty (50) miles thereof, without the written consent of the complainant, until and including the 26th day of November, 1935, and, in particular, restraining and enjoining said defendants and each of them from performing at the State-Lake Theatre, located at 190 North State Street, Chicago, Illinois, during any time from the date of this order until and including the 26th day of November, 1935.

“The Court Further Orders that the Complainant shall give a surety bond to be approved by the Court in that penal sum of Cue Thousand Dollars as security for the issuance of said writ of injunction.”

Murray Bose, appearing specially, made a written motion November 20, 1935, supported by his affidavit, to dissolve and vacate the injunction entered against him November 9, 1935. His affidavit set forth that he resided in the City of New York and was engaged in business as a manager and producer of acts; that he was not served with notice of any kind or character of the pendency of plaintiff’s suit or of the application for an injunction against him; and that said injunction was entered without notice to him of any nature whatsoever.

On November 27,1935, an order was entered denying the motion of defendant to dissolve the injunction theretofore issued against him November 9, 1935, after finding inter alia “from an examination of the motion of Murray Bose presented in open court this day . . . that the said Murray Bose is a resident of the City of New York and State of New York, and at the time said injunctional order was entered . . . was without the jurisdiction of the Court and could not have been conveniently served with notice of the application for said injunctional order.”

While other points are urged we deem it necessary to determine only the question as to whether the trial court erred in issuing the injunction against defendant without notice to him when it did not appear from the facts alleged in the complaint or affidavit accompanying same that the rights of the plaintiff would have been unduly prejudiced “if the injunction did not issue immediately, or without such notice.”

A careful examination of the complaint discloses that it neither prayed for an injunction without notice nor contained a single averment of fact that would justify the issuance of an injunction under the statute without notice, and, while the injunction order of November 9, 1935, recites that “due notice was served upon the defendants,” the record clearly shows and it is conceded that no notice of the filing of the complaint, the pendency of the suit or of the application for the temporary injunction was given to defendant Murray Bose. All decisions of this court and of the Supreme Court are to the effect that an order awarding a writ of injunction without notice will not be sustained unless facts are made to appear that the plaintiff will be unduly prejudiced if notice was given. (Clare v. Marks Bros. Theatres, Inc., 246 Ill. App. 621 [Abst.].) In passing upon this question in Grabarski v. Stankowicz, 179 Ill. App. 45, the court said at pp. 47 and 48:

“It is also claimed that there were no grounds for issuing the injunction without notice. The statute provides that no injunction shall be granted without previous notice of the time and place of the application ‘unless it shall appear, from the bill or affidavit accompanying the same, that the rights of the complainant will be unduly prejudiced if the injunction is not issued immediately or without such notice. ’ Ill. Revised Statutes, chapter 69, sec. 3. In this case the bill and affidavits merely allege on information and belief that ‘your orators will be irreparably damaged’ unless an injunction is issued without notice, but neither the bill nor the affidavits set up any facts which would warrant such a conclusion.

“ ‘When a statute requires that a certain conclusion shall be made to “appear” as a ground of proceeding by any tribunal, the facts from which that conclusion follows must be proved to that tribunal, and it should not accept the opinion of anybody else upon the matter.’ Werner Co. v. First Nat. Bank of Miamisburg, 55 Ill. App. 321.

“ ‘A mere statement of a conclusion in an affidavit is not sufficient to make it appear that the complainant will be unduly prejudiced if the injunction is not issued without notice. ’ Brough v. Schanzenbach, 59 Ill. App. 407.”

In Brin v. Craig, 135 Ill. App. 301, the court used this language at pp. 306 and 307:

‘ ‘ This court has spoken many times in no uncertain voice in condemnation of the practice of granting an injunction without notice unless it is made clearly and indisputably to appear from the facts recited and verified, that the rights of a complainant will be unduly prejudiced unless the same be granted without notice. No presumptions are to be indulged in favor of action without notice, but parties must, on facts stated and sworn to, bring themselves within the exception of the statute before being entitled to an injunction without notice. Failing to do so, an injunction granted will be held to be improvident and dissolved. . . .

“The granting of an injunction without notice is to be discountenanced except in a proper case, where the statute has been strictly complied with, and as said in Chicago City Rys. Co. v. Montgomery Ward & Co., 76 Ill. App. 536, ‘The extraordinary remedy of injunction without notice should not be allowed except in extreme cases.’ ”

Although the point is not urged in its brief, plaintiff insisted upon the oral argument of this cause that the filing of defendant’s motion to dissolve the injunction constituted 'a waiver of notice of the application for same and cited Sheehy v. Koerber, 282 Ill. App. 543, in support of this contention. In that case the defendant’s motion to dissolve the injunction set up specific grounds, some of which went to the merits of the complaint, and it was held that the question whether the injunctional order was issued without notice was immaterial because by the motion, which took the place of the old demurrer, the defendants admitted the allegations of the complaint to be true. We fail to see how the conclusion reached by the court in that case can be at all applicable to the situation presented here. In this case, appearing specially, defendant’s motion was made for the sole purpose of dissolving the injunction on the sole ground that it was applied for and entered against him without notice of any kind.

This was an interlocutory order for an injunction entered on an ex parte application in so far as the defondant Murray Rose was concerned. Prior to January 1, 1934, when the Civil Practice Act became effective, an aggrieved defendant might in such case appeal to this court by simply filing a bond. However, the Civil Practice Act (Ill. State Bar Stats. 1935, ch. 110, If 255, Rule 31), in order to afford the trial court an opportunity to correct any error it might make in the entry of such orders, changed the practice in this State by providing: “Where an interlocutory order or decree is entered on an ex parte application, the party proposing to take an appeal therefrom shall first present, on notice, a motion to vacate the order or decree. Appeal may be taken if the motion is denied or if the court does not act thereon within seven days from its presentation.” This procedure is also incorporated in Rule 31 of the Rules of Practice and Procedure of our Supreme Court and Rule 21 of the Rules of Practice of this court.

Thus in order to protect his right to appeal it was incumbent upon defendant to move in the trial court to dissolve the injunction unlawfully issued without notice. Where the record is conclusive that defendant had no notice of the application for the injunction and there was no prayer in the complaint for an injunction without notice, and where the complaint contained no averments of fact from which the conclusion might be drawn that plaintiff “will be unduly prejudiced if the injunction is not issued immediately or without such notice” as was the case here, can it be held that, because the hearing on his motion to dissolve resulted in the denial of same, such hearing amounted on his part to a waiver of notice 1 We think not. Rule 31 of the Supreme Court and Rule 21 of this court specifically provide that an “appeal may be taken if the motion is denied.” Under said rules, if the defendant proposes to take an appeal from the entry of an injunctional order without notice on an ex parte application, he must first move to dissolve for want of notice. The defendant having complied thus far with the rule heretofore set forth, it is fallacious to argue that his motion to dissolve or the hearing on same constitutes a waiver of his objection of lack of notice, which bars him from his sole ground and right of appeal.

In any event the purpose of notice is to secure a party a hearing, which the defendant in this proceeding did not receive, even on his own motion to dissolve .the injunction. When this motion was first presented on November 20, 1935, the court, after declaring that Bose was “an out-of-town defendant, who wants affirmative relief,” and insisting that defendant post a $10,000 bond as the only condition upon which his motion would be heard, continued the hearing on same to November 27, 1935. When the motion came up for hearing again on the last mentioned date, the record discloses that, instead of allowing a hearing on the same, the court, at the suggestion of plaintiff’s counsel, entered a five-page order, which, in addition to denying defendant’s motion to dissolve the injunction, contained numerous findings of fact, including the finding that “Murray Bose could not have been conveniently served with the notice of the. application for said injunetional order,” in an obvious attempt to bolster up the original order of November 9, 1935, granting the injunction. Thus, even though we should assume that a hearing on his motion to dissolve would constitute a waiver of his failure to receive notice of plaintiff’s application for the injunction, defendant could not be held to have so waived, because he was not afforded a hearing as contemplated by law. It requires no citation of authority to sustain the proposition that the order of November 9, 1935, must stand or fall on the record as it was on the date of its entry, and that after the motion to dissolve was presented, any order entered by the court in an endeavor to cure manifest error in the entry of the in junctional order was itself erroneously entered. In Bauer v. Lindgren, 279 Ill. App. 397, Mr. Justice Scanlan, writing the opinion for this court, said at p. 406:

“Complainant attempts to justify the order of November 3 by a reference to pleadings subsequently entered in this cause. This interlocutory appeal is from the order of November 3 and we must determine the appeal by the record as it was on that date.”

In our opinion the temporary injunction of November 9,1935, was improvidently issued in this cause and defendant’s motion of November 20, 1935, to vacate same should have been allowed. Therefore, the order of the circuit court of November 27, 1935, is reversed and the cause is remanded with directions to sustain defendant Rose’s motion to vacate the injunctional order of November 9, 1935, as to him.

Reversed and remanded with directions.

Scahlah, P. J., and Friekd, J., concur.


author: Mr. Presiding Justice Hall

text:
    First District.
    The People of the State of Illinois for the use of Ida Slavik et al., appellant, v. United States Fidelity and Guaranty Company and John B. Dicus, appellees.
    Gen. No. 38,597.
    Opinion filed December 23, 1935.
    A. G. Dicus, for appellant. Robertson, Crowe & Spence, for appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Lillian G. Armstrong, plaintiff in error, v. The Travelers Insurance Company, defendant in error.
    Gen. No. 37,692.
    Opinion filed December 27, 1935.
    Richard P. Garrett, for plaintiff in error. Kirkland, Fleming, Green & Martin, for defendant in error; William H. Symmes, Jay Fred Reeve and Edward C. Caldwell, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Margaret A. Treacy, appellee, v. Freeport Motor Casualty Company, appellant.
    Gen. No. 37,814.
    Opinion filed December 27, 1935.
    George F. Engelbreit, for appellant. Solomon & Borden, for appellee; Charles H. Borden and Vernon C. Reich, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. William Davis, plaintiff in error.
    Gen. No. 37,993.
    Opinion filed December 27, 1935.
    Rehearing denied January 7, 1936.
    Samuel A. Aronfeld, for plaintiff in error; Elwyn E. Long, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Peter J. Norich, Jr., plaintiff in error.
    Gen. No. 38,119.
    Opinion filed December 27, 1935.
    James F. Lyons, for plaintiff in error; Elwyn E. Long, of counsel. Thomas J. Courtney, State's Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    Nerses Bedrosian, appellee, v. Herman Schoenstadt and Henry Schoenstadt, trading as Piccadilly Hotel, appellants.
    Gen. No. 37,888.
    Opinion filed December 27, 1935.
    Reuben J. Feldman, for appellants. I. W. Kaufmann, for appellee; Morris H. Cohen, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Arthur J. Schmitt, appellant, v. J. Pilling Wright et al., appellees.
    Gen. No. 37,932.
    Opinion filed December 27, 1935.
    Rehearing denied January 7, 1936.
    Wisner, Davis & Walsh, for appellant. Rosen, Francis & Rosen, for appellees; John F. Rosen, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson v. Cicero Trust and Savings Bank. Petition of Elizabeth A. Minkus, appellee, v. William L. O’Connell, appellant.
    Gen. No. 37,979.
    Opinion filed December 27, 1935.
    Sehnaekenberg, Hansen & Towle> for appellant; Elmer J. Schnackenberg, of counsel. Levinson, Becker, Peebles & Swiren, for appellee; Don M. Peebles and H. M. Neuburger, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. William Davis, plaintiff in error.
    Gen. No. 37,992.
    Opinion filed December 27, 1935.
    Rehearing denied January 7, 1936.
    Samuel A. Aronfeld, for plaintiff in error; Elwyn E. Long, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Lillian Radtke, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 38,033.
    Opinion filed December 27, 1935.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Estelle M. Wells, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Charles Krassek and Atlas Fish Company, appellees, v. Samuel Wax et al., appellants.
    Gen. No. 38,558.
    Opinion filed December 27, 1935.
    Edward M. Keating and Albert E. Buceiere, for appellants. Levy & Schmetterer, for appellees.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Denis E. Sullivan

text:
    Emily Budek, administratrix de bonis non of the estate of Joseph Budek, deceased, defendant in error, v. City of Chicago, plaintiff in error.
    Gen. No. 37,965.
    Opinion filed December 27, 1935.
    William H. Sexton, Corporation Counsel, and A. M. Smietanka, City Attorney, for plaintiff in error; Quin O’Brien and Adam E. Patterson, Assistant Corporation Counsel, of counsel. Joseph D. Ryan and Louis P. Miller, for defendant in error.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Viney Banks, etc., appellant, v. S. A. T. Watkins, appellee.
    Gen. No. 37,974.
    Opinion filed December 27, 1935.
    A. L. Williams, for appellant. George G. Bliss, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Seanlan

text:
    Anna Henderson, plaintiff in error, v. Mary Parsill et al., defendants in error.
    Gen. No. 37,656.
    Opinion filed December 30, 1935.
    Ernest Saunders, for plaintiff in error. Cassels, Potter & Bentley, for defendants in error; Claud D. Raber and E. Douglas Schwantes, of counsel.
   Mr. Presiding Justice Seanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Park Ridge Park District, appellant, v. Industrial Commission of Illinois, appellee.
    Gen. No. 38,063.
    Opinion filed December 30, 1935.
    Rehearing denied January 11, 1936.
    Daniel S. Wentworth, Robert F. Dewey and Leon Weiss, for appellant. Otto Kernel', Attorney General, for appellee; Daniel D. Carmell, of counsel.
   Mr. Presiding Justice Seanlan

delivered the' opinion of the court.


author: Mr. Presiding Justice Scanlan

text:
    Frank Kracker, appellee, v. James W. Burke, appellant.
    Gen. No. 38,077.

      Opinion filed December 30, 1935.
    Charles E. Selleck and Henry Eekhardt, for appellant. Bernard I. Denny, for appellee; Leo B. Condit, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Etta Wolf, appellant, v. Michael S. Roth et al., defendants. Michael S. Roth, appellee.
    Gen. No. 38,105.
    Opinion filed December 30, 1935.
    Rehearing denied January 11, 1936.
    Sidney J. Wolf, for appellant. Danaher & Garriott, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Van Schaack-Mutual, Inc., appellee, v. LaFayette Drug Company, appellant.
    Gen. No. 38,121.
    Opinion field December 30, 1935.
    Rehearing denied and opinion modified January 11, 1936.
    I. J. Berkson, for appellant. Bennett & Colbaeh, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Elmer M. Leesman and Erwin W. Roemer, appellees, v. Robert E. Little, appellant.
    Gen. No. 38,132.
    Opinion filed December 30, 1935.
    Rehearing denied January 11, 1936.
    Robert E. Little, pro se; Harry Brown, of counsel. Leroy A. Mote, for appellees.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, plaintiff, v. Garfield State Bank, defendant. Clay Hess, administrator of the estate of Ezra Hess, deceased, appellant, v. John E. Sullivan, receiver of Garfield State Bank, appellee.
    Gen. No. 38,146.

      Opinion filed December 30, 1935.
    Gordon MeLeish Leonard, for appellant. Crowe, Gorman, Sheridan, Mulder & Wesselink, for appellee; Gerritt W. Wesselink, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Margaret Forster, appellee, v. John Hancock Mutual Life Insurance Company, appellant.
    Gen. No. 38,158.
    Opinion filed December 30, 1935.
    Hoyne, O’Connor & Bubinkam, for appellant; Nathaniel Bubinkam and William S. Allen, of counesl. Edwin A. Feldott, for appellee; John M. Pollock, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Peck and Hills Furniture Company, appellant, v. O. E. Merkling, appellee.
    Gen. No. 38,170.
    Opinion filed December 30, 1935.
    Castle, Osborn & Weiss, for appellant. Albert E. Hallett, Jr., for appellee. °
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Philip Gollner Company, Inc., for the use of South West Trust and Savings Bank, appellee, v. Equitable Fire and Marine Insurance Company, appellant.
    Gen. No. 38,181.
    Opinion filed December 30, 1935.
    Rehearing denied January 11, 1936.
    Hicks & Folonie, for appellant. Edward H. Morris, f,or appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Samuel Kalb, appellant, v. Leonard H. Berenson, appellee.
    Gen. No. 38,193.
    Opinion filed December 30, 1935.
    Clarence W. Shaver, for appellant. Irving B. Berg, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Carl A. Metz, appellee, v. Brisch Brick Company, appellant.
    Gen. No. 38,226.
    Opinion filed December 30, 1935.
    Litsinger, Healy, Reid & Bye, for appellant. Bennett & Colbaeh, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Morris Minkus, appellee, v. J. F. Fisher et al., appellants.
    Gen. No. 38,548.
    Opinion filed December 30, 1935.
    Scott, MacLeish & Falk, for certain appellant. Harry B. Daley, for certain other appellants; John J. Yowell, of counsel. Kahn & Kahn, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    Ohio Millers Mutual Insurance Company, appellee, v. Inter-Insurance Exchange of the Illinois Automobile Club et al., appellants.
    Gen. No. 37,981.
    Opinion filed December 30, 1935.
    Rehearing denied January 11, 1936.
    Ode L. Rankin, for appellants. Bradley, Harper, Huss & Rehm, for appellee; Samuel A. Harper and Walter Sczudlo, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Foreman-State National Bank, appellant, v. Charles A. Sistek et al., appellees.
    Gen. No. 38,026.
    Opinion filed December 30, 1936.
    Rehearing denied January 11, 1936.
    Robert L. Wright, for appellant. Bryant, Roberts, Hwass & Lewe and Alexander W. Jamieson, for appellees; John M. Bryant, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


author: - Mr. Justice Friend

text:
    The West Side Trust and Savings Bank, appellant, v. Liquid Carbonic Corporation and Drexel Ice Cream Company, appellees.
    Gen. No. 38,040.
    Opinion filed December 30, 1935.
    Lowes & Lowes, for appellant. John O. Wagner, for certain appellee. Soelke, Koehn & Loewy, for certain other appellee.
   - Mr. Justice Friend

delivered the .opinion of the court.


text:
    Anne Stoneberg, appellee, v. Richard H. Spoo, appellant.
    Gen. No. 38,069.
    Opinion filed December 30, 1935.
    Lederer, Livingston, Kahn & Adler, for appellant; Harry H. Kahn and Archie H. Siegel, of counsel. Krohn & MacDonald, for appellee; Stuart B. Krohn and Ian P. MacDonald, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Marie Larsen, complainant, v. Samuel Fox et al., defendants. W. O. Dicus, appellant, v. Marie Larsen and Otto C. Rentner, appellees.
    Gen. No. 38,082.
    Opinion filed December 30, 1935.
    Louis Jaffe, for appellant. Henry F. Antes, for certain appellee,
   Mr. Justice Friend

delivered the opinion of the court.


text:
    The Minute Freezer Corporation, plaintiff in error, v. Alliance Casualty Company, defendant in error.
    Gen. No. 38,093.
    Opinion filed December 30, 1935.
    Bernard J. Brown, for plaintiff in error. Wendell H. Shanner, for defendant in error; Charles Laughlin, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    American Motorists Insurance Company, appellant, v. Inter-Insurance Exchange of the Illinois Automobile Club et al., appellees.
    Gen. No. 38,113.

      Opinion filed December 30, 1935.
    Rehearing denied January 11, 1936.
    Bradley, Harper, Huss & Rehm, for appellants; Samuel A. Harper and Walter Sezudlo, of counsel. Ode L. Rankin, for appellees; Lord, Lloyd & Bissell, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Lumbermen’s Mutual Casualty Company and Central Manufacturers’ Mutual Insurance Company, appellants, v. Inter-Insurance Exchange of the Illinois Automobile Club et al., appellees.
    Gen. No. 38,114.
    Opinion filed December 30, 1935.
    Rehearing denied January 11, 1936.
    Bradley, Harper, Huss & Rehm, for appellants; Samuel A. Harper and Walter Sezudlo, of counsel. Ode L. Rankin, for appellees; Lord, Lloyd & Bissell, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Lloyd L. Hughes, appellee, v. A. F. Denemark, appellant.
    Gen. No. 38,152.
    Opinion filed December 30, 1935.
    Both petitions for rehearing denied January 11, 1936.
    Freeman & Freeman, for appellant; Harry Freeman and William H. Becker, of counsel. Packard, Barnes, McCaughey & Schumacher, for appellee; Russell J. McCaughey, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    The People of the State of Illinois for the use of Robert C. Hooper, appellant, v. John F. Hesterman et al., defendants. Arthur C. Marriott, appellee.
    Gen. No. 38,162.
    Opinion filed December 30, 1935.
    Edwin Hamilton, for appellant. Charles M. Haft, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Louis Davis, appellee, v. Henry D. Babson et al., defendants. 1324 North Clark Street Building Corporation, appellant.
    Gen. No. 38,219.

      Opinion filed December 30, 1935.
    John J. McMahon, for appellant. Posner •& Waxman and Benjamin M. Edidin, for apnellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Thilde L. Sonnenberg, appellee, v. Arabella R. Orr et al., appellants.
    Gen. No. 38,630.
    Opinion filed December 30, 1935.
    Heile, Cavender, Milehrist & Kaiser, for appellants. Spitz & Ad-cock, for appellee; Edward Blackman, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Archie Schimberg and S. H. Alster, trading as Friedman, Schimberg & Alster, appellees, v. Merchandise Bank and Trust Company, appellant.
    Gen. No. 37,954.
    Opinion filed December 30, 1935.
    Potter & Gray, for appellant; George Delbert Gray, of counsel. Friedman, Schimberg & Alster and Maurice Walk, for appellees.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    John Croft, defendant in error, v. Harry P. Pearsons et al., plaintiffs in error.
    Gen. No. 38,072.
    Opinion filed December 30, 1935.
    Lloyd C. Whitman, for plaintiffs in error. Hugo J. Thai, for defendant in error.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    John W. Dobbins, defendant in error, v. Harry P. Pearsons et al., plaintiffs in error.
    Gen. No. 38,073.
    Opinion filed December 30, 1935.
    Lloyd C. Whitman, for plaintiffs in error. Hugo J. Thai, for defendant in error.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Presley L. Neville, defendant in error, v. Harry P. Pearsons et al., plaintiffs in error.
    Gen. No. 38,074.
    Opinion filed December 30, 1935.
    Lloyd C. "Whitman, for plaintiffs in error. Hugo J. Thai, for defendant in error.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Mary Lang Cummer, appellee, v. William M. Cummer, appellant.
    Gen. No. 38,080.
    Opinion filed December 30, 1935.
    Rehearing denied January 11, 1936.
    Carpenter, Neltnor & Scolnik, for appellant; Charles E. Carpenter and John C. Melaniphy, of counsel. William C. Greatman and Abraham W. Brussell, for appellee; Abraham W. Brussell, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Murray Hill Apartments Building Corporation, appellant, v. Mrs. John W. Floto, also known as Dorothy Floto, appellee.
    Gen. No. 38,129.
    Opinion filed December 30, 1935.
    Harris F. Williams and L. A. Wheeler, for appellant. Landis, Landis So Landis, for appellee; Alvin Landis and Sidney T. Feinberg, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Martin Tarracciano, alias Martin Terry, alias Frank Baldiano, plaintiff in error.
    Gen. No. 38,139.
    Opinion filed December 30, 1935.
    James M. Burke and George M. Crane, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth, John T. Gallagher, and Richard H. Devine, Assistant State’s Attorneys, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice MeSurely

text:
    Lemaire, Inc., for the use of Charles V. Falkenberg, appellant, v. Robert P. Gust, appellee.
    Gen. No. 38,456.
    Opinion filed December 31, 1935.
    A. A. Pantelis, for appellant; Charles V. Falkenberg, of counsel. No appearance for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellee, v. Joseph A. Geilen et al., defendants. Central Republic Trust Company et al., intervening petitioners, on appeal of William L. O’Connell, appellant.
    Gen. No. 38,530.
    Opinion filed December 31, 1935.
    Concannon & Dillon, for appellant. Shulman, Shulman & Abrams and A. Edmund Peterson, for appellee; Meyer Abrams, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Sarah Minton, appellee, v. Irene Thompson Smith and Margaret Hamann, trading as The Minton Hat Co. and Novelties, appellants.
    Gen. No. 38,308.
    Opinion filed December 31, 1935.
    Rehearing denied January 14, 1936.
    Peabody, Westbrook, Watson & Stephenson and Joseph McCormack, for appellants. Edwy Logan Reeves and Charles Francis Baker, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Baker Walsh and Company v. Illinois National Casualty Company et al. T. H. Reiter, appellant, v. Illinois National Casualty Company et al., appellees.
    Gen. No. 38,337.
    Opinion filed December 31, 1935.
    John A. Brown, for appellant. Otto Kerner, David J. Kadyk, William C. Clausen, A. M. Fitzgerald and William P. Roberts, for certain appellees.
   Mr. Justice Matchett

delivered the opinion of the court,


author: Mr. Justice Hatchett

text:
    Mary Peciukaitis, appellee, v. Julian Miaczynski et al., appellants.
    Gen. No. 38,375.
    Opinion filed December 31, 1935.
    Irrmann & Niemira, for appellants; Thadeus Niemira, of counsel. Olis, Vasalle & Lapinskas, for appellee.
   Mr. Justice Hatchett

delivered the opinion of the court.


author: Hr. Justice Hatchett

text:
    Joseph Crowell, appellee, v. Guy A. Richardson et al., appellants.
    Gen. No. 38,535.
    Opinion filed December 31, 1935.
    Frank L. Krie-te, John W. Freels and Arthur J. Donovan, for appellants; John R. Guilliams, of counsel. Royal W. Irwin, for appellee.
   Hr. Justice Hatchett

delivered the opinion of the court.


text:
    Julia E. Green, appellee, v. Chicago Title and Trust Company et al., defendants, on appeal of John P. Schaefgen, appellant.
    Gen. No. 38,677.
    Opinion filed December 31, 1935.
    Joseph H. Heinzen, for appellant; William Rifkind, of counsel. John W. Browning, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Alma R. McCauley, appellant, v. Hettie J. King, appellee.
    Gen. No. 38,425.
    Opinion filed December 31, 1935.
    Rehearing denied January 13, 1936.
    Teed, Kammermann & Johnson and T. Fted Laramie, for appellant; Hugh É. Johnson and T. Fred Laramie, of counsel. Ward H. Harris and Frank E. Foster, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Fanny Samuels, appellee, v. Arthur E. Frankenstein and Rudolph Frankenstein, defendants. Arthur E. Frankenstein, appellant.
    Gen. No. 38,498.

      Opinion filed December 31, 1935.
    Arthur E. Frankenstein, pro se. Leslie. A. Kohn, for appellee; William Rosenthal, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    James W. Breen, appellee, v. Edward J. Kelly et al., appellants.
    Gen. No. 38,663.
    Opinion filed January 18, 1936.
    Rehearing denied January 29, 1936.
    Barnet Ho des, Corporation Counsel, Hiram T. Gilbert, Special Assistant Corporation Counsel, and Jacobson, Merrick, Nierman & Silbert, for appellants; David Silbert, Hiram T. Gilbert, Joseph F. Gross-man and Hubert C. Merrick, of counsel. James W. Breen, pro se.

   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Roy Seley, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 38,287.
    Opinion filed February 3, 1936.
    Rehearing denied February 17, 1936.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Cassels, Potter & Bentley, for appellee; John R. Whitman, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Harry Sargent, appellee, v. The Prudential Insurance Company of America, appellant.
    Gen. No. 38,312.
    Opinion filed February 3, 1936.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Irving N. Stenn and Aaron Soble, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    A. H. Marrettick, appellee, v. James J. Topp and Christine Topp, appellants.
    Gen. No. 38,476.

      Opinion filed February 3, 1936.
    Sonnensehein, Berkson, Lautmann, Levinson & Morse, for appellants; I. E. Ferguson and Jesse H. Brown, of counsel. Maxwell L. Rubin, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellee, v. Stephen J. Wall et al., defendants, on appeal of Gertrude Faegenson, appellant.
    Gen. No. 38,490.
    Opinion filed February 3, 1936.
    Irving G. Zazove, for appellant. Arkin & Berman, for appellee. Kirkland, Fleming, Green & Martin, for appellee Schiff Bondholders' Protective Committee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Joseph Hamilton, plaintiff in error.
    Gen. No. 38,561.
    Opinion filed February 3, 1936.
    Herman Asehin, for plaintiff in error; Elwyn E. Long, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Richard H. Devine and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Jerome M. Deutsch, plaintiff in error, v. Reliance Life Insurance Company, defendant in error.
    Gen. No. 38,517.
    Opinion filed February 3, 1936.
    Cohon & Goldstein, for plaintiff in error; Samuel S. Cohon and Irving Goldstein, of counsel. Moses, Kennedy, Stein & Baehrach, for defendant in error; Walter Baehrach, Arthur Magid and J. H. Oppenlieim, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    Stella Swanigan, appellee, v. Mamie G. Dill, appellant.
    Gen. No. 38,524.

      Opinion filed February 3, 1936.
    Adams & Baker, for appellant; George O. Adams, of counsel. Loren B. Roekey, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    W. T. Kinder, appellee, v. Denoyer-Geppert Company, appellant.
    Gen. No. 38,359.
    Opinion filed February 3, 1936.
    Rehearing denied February 17, 1936.
    Arthur Chittiek and John A. Niemeyer, for appellant. Hopkins, Sutter, Halls & DeWolfe, for appellee; Donald J. DeWolfe and Stephen M. Reynolds, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Antonelle Mroz, appellee, v. William P. Martin et al., defendants, on appeal of Daniel D. Craft et al., appellants.
    Gen. No. 38,472.
    Opinion filed February 3, 1936.
    William Rif kind, for appellants. Jacob Levy, for appellee; Edward McTiernan, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Thomas G. McGay, appellee, v. The Equitable Life Assurance Society of the United States, appellant.
    Gen. No. 38,088.
    Opinion filed February 11, 1936.
    Mayer, Meyer, Austrian & Platt, for appellant; Frederic Burnham, Frank D. Mayer and Richard Grossman, of counsel. Frederick A. Brown and Ernest S. Gail, for appellee; G. Gale Roberson and David A. Canel, of counsel.
   Mr. Presiding Justice Seanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Bernard P. Maza, plaintiff in error.
    Gen. No. 38,240.
    Opinion filed February 11, 1936.

      William Chones and Richard J. Cooney, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth, John T. Gallagher and Richard H. Devine, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    The First National Bank of Chicago, appellant, v. Harry S. Lorch et al., appellees.
    Gen. No. 38,295.
    Opinion filed February 11, 1936.
    Packard, Barnes, McCaughey & Schumacher, for appellant; George Packard, of counsel. Blech, Herson & Gordon, for appellees.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Frank M. McCarthy Coal Company, appellee, v. Eagle Indemnity Company, appellant.
    Gen. No. 38,332.
    Opinion filed February 11, 1936.
    K. A. Wilber and A. D. Weaver, for appellant. Weinberg, Kjellander, O’Farrell & Ames, for appellee; Harold R. Kjellander, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    C. J. Strehlow, appellee, v. Western Union Telegraph Company, appellant.
    Gen. No. 38,353.
    Opinion filed February 11, 1936.
    Rehearing denied February 24, 1936.
    West & Eekhart and Francis R. Stark, for appellant; Paul Hassell and Owen A. West, of counsel. John S. Flannery, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Robert Vernon Jones and Elsie Brown Jones, appellees, v. State Bank of Chicago, appellant.
    Gen. No. 38,185.
    Opinion filed February 11, 1936.
    D ’Ancona, Pfiaum & Kohlsaat, for appellant; Donald H. Mann and Colbert EtsHokin, of counsel. Stearns & Jones, for appellees,
   Mr. Justice Friend

delivered the opinion of the court.


text:
    William Handel, appellee, v. I. D. Opat, appellant.
    Gen. No. 38,194.
    Opinion filed February 11, 1936.
    Alden, Latham & Young, for appellant; Carl R. Latham and Norman A. Eorfist, of counsel. Abrams, Sherman & Lewis, for appellee; Irving S. Abrams, of counsel. •
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Thomas L. Leedom Company, appellant, v. William Slater, Jr., Inc., appellee.
    Gen. No. 38,203.
    Opinion filed February 11, 1936.
    Teller, Levit, Silvertrust & Levi, for appellant; H. J. Goldberger, of counsel. Mort D. & Frank Goldberg, for appellee; Lester L. Gold- . berg, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Martha Moore, appellee, v. Frank W. Brown, appellant.
    Gen. No. 38,233.
    Opinion filed February 11, 1936.
    Ernest Stout, for appellant. Landon L. Chapman, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Claribel Rubottom, appellee, v. Crane Company, appellant.
    Gen. No. 38,254.
    Opinion filed February 11, 1936.
    Alden, Latham & Young, for appellant, Krohn & MacDonald, for appellee; Stuart B. Krohn, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Dan Longo, appellee, v. Moulding-Brownell Corporation, appellant.
    Gen. No. 38,261.

      Opinion filed February 11, 1936.
    Rehearing denied February 24, 1936.
    Arthur J. Hughes, for appellant; F. O. Ludwig, of counsel. Schnackenberg, Hansen & Towle, for appellee; Elmer J. Schnaekenberg, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    John R. Martin, appellee, v. R. H. McElroy, Jr., appellant.
    Gen. No. 38,273.
    Opinion filed February 11, 1936.
    John Tone Kelly and Andrew D. Collins, for appellant. Peter J. Hower, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    In re Estate of Anna Stahl et al., minors. Casimir E. Midowicz, appellant, v. Anna Stahl et al., appellees.
    Gen. No. 38,347.
    Opinion filed February 11, 1936.
    Rehearing denied February 24, 1936.
    Roy D. Keehn and W. M. Keeley, for appellant. Ellis & Haekett, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Ella Figas, defendant in error, v. Leo Figas, plaintiff in error.
    Gen. No. 38,102.
    Opinion filed February 11, 1936.
    O’Connell & O’Connell and George McMahon, for plaintiff in error. Arnold M. Ehrlich and Elwyn E. Long, for defendant in error.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Irving W. Hersey, appellee, v. Chicago Technical College, appellant.
    Gen. No. 38,155.

      Opinion filed February 11, 1936.
    Rehearing denied February 24, 1936.
    Harry M. Ehrlich, for appellant. Musgrave, Oppenheim, Price & Ewins, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    George R. Benson, executor under the last will and testament of Catherine L. Benson, deceased, et al., appellees, v. Mid-States Manufacturing Company, appellant.
    Gen. No. 38,178.
    Opinion filed February 11, 1936.
    Nusbaum, Damon & Sturman, for appellant; M. Robert Sturman and Samuel J. Sherman, of counsel. Benjamin S. Mesirow, for appellees; Julius M. Lorenz, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    L. L. Buster, appellee, v. Indianapolis Life Insurance Company and Parker and Finney, Inc., appellants.
    Gen. No. 38,207.
    Opinion filed February 11, 1936.
    Deming, Jarrett & Mulfinger, for appellants. No appearance for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Anna Babinec, appellee, v. Sidney Jack Winter, appellant.
    Gen. No. 38,329.
    Opinion filed February 11, 1936.
    Silber, Isaacs, Clausen & Woley, for appellant; Donald N. Clausen and Herbert W. Hirsh, of counsel. Harold T. Halfpenny and James J. Trainor, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Peter Smith, appellee, v. County of Cook, appellant.
    Gen. No. 35,338.
    Opinion filed February 11, 1936.
    Thomas J. Courtney, State’s Attorney, for appellant; Hayden N. Bell, Jacob Shamberg, William P. Kearney, Gerald E. Hornidge and William T. Crilly, Assistant State’s Attorneys, of counsel. Coburn, Kearney & Coburn, for appellee; John J. Coburn, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    Second District.
    Konstanty Jackowicz, appellee, v. Kewanee Public Service Company, appellant.
    Gen. No. 8,935.
    Opinion filed October 11, 1935.
    Rehearing denied and opinion modified May 19, 1936.
    Thomas J. Welch and E. Bentley Hamilton, for appellant. James H. Andrews, Gregg A. Young and Harper Andrews, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Presiding Justice Huffman

text:
    In re Conservatorship of John Tomac, appellee, v. Frank T. Hines, administrator of the Veterans Affairs, appellant.
    Gen. No. 8,975.
    Opinion filed January 17, 1936.
    H. R. Pool and B. G. Erlandson, for appellant. Frank J. Wise, for Victor Tomac, conservator. James A. Bray, for appellee William M. Knutson; Donovan, Bray & Gray, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Theodore Van Beuning, appellant, v. L. O. Eagleton et al., appellees.
    Gen. No. 8,997.
    Opinion filed January 17, 1936.
    George W: Hunt and J. Edward Radley, for appellant. Harry Dale Morgan, for appellees; William L. Eagleton, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Lee William Bowen, by Chloe Bowen, his mother and next friend, appellee, v. Stephen Lewis, appellant.
    Gen. No. 8,999.
    Opinion filed January 17, 1936.
    Welsh & Welsh, for appellant; C. K. Welsh, of counsel. Guyer & Berry, for appellee; Stanley H. Guyer, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Hazel Peters, appellee, v. Harold Reuter, appellant.
    Gen. No. 9,009.

      Opinion filed January 17, 1936.
    Henry Kneller and George W. Hunt, for appellant. Cassidy & Knobloek, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Lillian Sayler, appellee, v. Lester Edinger, appellant.
    Gen. No. 9,017.
    Opinion filed January 17, 1936.
    D. T. Smiley, for appellant. Henry L. Cowlin, for appellee; V. S, Lumley, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    D. J. L. Walther, appellant, v. Village of Algonquin, appellee.
    Gen. No. 9,020.
    Opinion filed January 17, 1936.
    Rehearing denied April 6, 1936.
    David T. Smiley and George A. Mason, for appellant; George A. Mason, of counsel. Wm. M. Carroll and Henry L. Cowlin, for appellee; Wm. M. Carroll, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    J. Weston Essington, appellant, v. George M. Reynolds, appellee.
    Gen. No. 8,965.
    Opinion filed January 17, 1936.
    George V. B. Weeks, for appellant. A. E. Butters, Hibbs & Pool, C. B. Chapman and R. A. Green, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Louise Becker, appellant, v. Edward Schwartz, Jr., and The Chicago, Rock Island and Pacific Railway Company, appellees.
    Gen. No. 8,971.
    Opinion filed January 17, 1936.
    Alsehuler, Putnam & Johnson and Elmer H. Bielfeldt, for appellant. Frank G. Brumund and Arlington R. Haute, for certain appellee. Snapp, Heise & Snapp, for certain other appellee; Daniel Taylor, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Roy H. Rufi, appellant, v. Walter G. Critchlow, trading as Walter G. Critchlow Organization, appellee.
    Gen. No. 9,001.
    Opinion filed January 17, 1936.
    Frank E. Maynard, for appellant. Hadley, Weaver & Woodward and O. H. Linscott, for appellee; Harry G. Weaver and John S. Woodward, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    The W. T. Rawleigh Company, appellant, v. Robert G. Kelly and Mathew J. Andrew, appellees.
    Gen. No. 9,013.
    Opinion filed January 17, 1936.
    Wm. Biester, for appellant. William L. Pierce and Alexander J. Strom, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    S. C. Andrus et al., plaintiffs in error, v. Clarance E. Fort et al., defendants in error.
    Gen. No. 8,900.
    Opinion filed January 17, 1936.
    Rehearing denied April 6, 1936.
    North, Gibboney & North and William L. Pierce, for plaintiffs in error. Welsh & Welsh and Hall & Dusher, for defendants in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Thomas C. Young et al., appellees, v. Wilbur Laurent, appellant.
    Gen. No. 8,960.
    Opinion filed January 17, 1936.
    North, Gibboney & North, for appellant. Knight & Lupton and J. E. Goembel, for certain appellees. Edward S. Foltz, Jr., for certain other appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Albert R. Isoz, appellee, v. Motorway Freight Terminal Company, appellant.
    Gen. No. 8,984.

      Opinion filed January 17, 1936.
    Rehearing denied April 6, 1936.
    Frank E. Maynard, for appellant. Miller & Thomas, for appellee; Charles A. Thomas, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Fay Elston, appellant, v. Chet Bryan, appellee.
    Gen. No. 8,987.
    Opinion filed January 17, 1936.
    Bobert W. Besse, for appellant. J. J. Ludens, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Frank Branson, administrator of the estate of John E. Branson, deceased, appellee, v. Illinois Central Railroad Company, appellant.
    Gen. No. 8,989.
    Opinion filed January 17, 1936.
    Behearing denied April 6, 1936.
    Dixon, Devine, Bracken So Dixon, for appellant; Bobert L. Bracken, of counsel. Warner So Warner, for appellee; Henry C. Warner and Morey C. Pires, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Henry T. Bowers, appellant, v. The Citizens Insurance Company of New Jersey, appellee.
    Gen. No. 8,992.
    Opinion filed January 17, 1936.
    Winston, Strawn & Shaw and Decker & Decker, for appellant; George B. Christensen and Bernard M. Decker, of counsel. Myers & Snerly and Edwards & Block, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    National Bond and Investment Company, appellant, v. Hobart Scott, appellee. William L. O’Connell, appellee.
    Gen. No. 9,006.
    Opinion filed January 17, 1936.
    Behearing denied April 6, 1936.
    John W. Greekmur, Nolan H. Tepper, Milton Silberg and Leonard M. Cohen, for appellant. Joseph A. Jadrieh, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    H. F. Sarvis and A. S. Stone, trading as Sarvis-Stone Transfer Company, appellees, v. Howard Geiger, appellant.
    Gen. No. 9,010.
    Opinion filed January 17, 1936.
    C. B. Chapman and H. H. Bayne, for appellant. H. L. Richolson, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Helen Ward, appellee, v. Will Hall, appellant.
    Gen. No. 8,963.
    Opinion filed February 10, 1936.
    Rehearing denied April 6, 1936.
    Welsh & Welsh, for appellant; C. K. Welsh, of counsel. J. E. Goembel and Knight & Lupton, for appellee; B. J. Knight, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Sadie Kalina, appellee, v. John Samios and George Calamaris, trading as Paradise Food Mart, appellants.
    Gen. No. 8,982.
    Opinion filed February 10, 1936.
    Rehearing denied April 6, 1936.
    Hogan & Simon, for appellants. Robert J. Wing and Arthur L. Puklin, for appellee; G. Walter Zerr, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    John Buffo, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 8,994.
    Opinion filed February 10, 1936.
    Early & Early, for appellant. Karl C. Williams, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Helen F. Hayes, appellee, v. Andrew H. Ryan, appellant.
    Gen. No. 9,005.
    Opinion filed February 10, 1936.
    Rehearing denied April 6, 1936.
    C. H. Linseott, for appellant. Gardner & Gardner, for appellee; Fred E. Gardner, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    John Peterson, appellee, v. Earl J. Jones and Cleo Jones, appellants.
    Gen. No. 9,011.
    Opinion filed February 10, 1936.
    Rehearing denied April 6, 1936.
    J. J. Ludens, for appellants. Robert J. Wing and Arthur L. Puklin, for appellee; G. Walter Zerr, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


author: Per curiam.

text:
    Third District.
    Erma Templeman, appellant, v. U. G. Usher and Nick Kish, appellees.
    Gen. No. 8,958.
    Opinion filed January 9, 1936.
    Rehearing denied January 9, 1936.
    J. W. Templeman and T. W. Hoopes, for appellant. G. G. Ginnavon, for appellees.
   Per curiam.


author: Mr. Presiding Justice Davis

text:
    City of Charleston, appellee, v. Harold Davidson et al., appellants.
    Gen. No. 8,915.
    Opinion filed January 17, 1936.
    Rehearing denied April 7, 1936.
    Harry I. Hannah, for appellants. Ben F. Anderson, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


text:
    William L. O’Connell, appellee, v. J. E. Dazey, appellant.
    Gen. No. 8,924.
    Opinion filed January 17, 1936.
    Ward & Pugh, for appellant. J. C. Willard, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


text:
    M. A. Morrison, appellant, v. Mary E. Watson, appellee.
    Gen. No. 8,931.

      Opinion filed January 17, 1936.
    O. M. Heinlein, for appellant; A. O. & B. F. Anderson, of counsel. Jas. Y. Kelly, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


text:
    H. B. Boyer, administrator of the estate of Toby H. Drollinger, deceased, appellee, v. Ralph H. Beekman, trading as Beekman Truck Service, and Virgil Dubois, appellants.
    Gen. No. 8,942.
    Opinion filed January 17, 1936.
    Gore & Davies, for appellants. A. J. B. Showalter and Frank B. Leonard, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


text:
    Joseph Passalacqua and Vincent Passalacqua for the use of John Sansone, Phillip Passalacqua, appellant, v. Saline Branch Drainage District, appellee.
    Gen. No. 8,946.
    Opinion filed January 17, 1936.
    W. A. Doss and B. E. Morgan, for appellant. F. T. Carlson and C. E. Tate, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


text:
    Mary E. Davis, appellee, v. George J. Kable and Joseph W. Everts, executors of the last will and testament of Henry C. Kable, deceased, appellants.
    Gen. No. 8,954.
    Opinion filed January 17, 1936.
    James H. Murphy, for appellants. Rinaker & Smith, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


author: Mr. Justice Allaben

text:
    Mary E. Lachenmyer, appellee, v. Walden M. Glotfelty, trading as Terminal Cab Company, appellant.
    Gen. No. 8,916.
    Opinion filed January 17, 1936.
    Rehearing denied April 7, 1936.
    O. H. Swiek and Roy C. Freeman, for appellant. Schaefer & Dolan and Frank B. Leonard, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    In re Conservatorship of Emma M. Swank v. Harold E. Henderson, appellant.
    Gen. No. 8,922.
    Opinion filed January 17, 1936.
    Ray Gruny and Vaught, Foreman & Cleary, for appellant. Wm. N. Hairgrove and Wilson & Lander, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    William L. O’Connell, appellee, v. E. L. Hitch et al., appellants.
    Gen. No. 8,926.
    Opinion filed January 17, 1936.
    L. T. Graham, for appellants. William and Barry Mumford, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    Agnes L. Lachenmyer, appellee, v. Central Mutual Insurance Company of Chicago, appellant.
    Gen. No. 8,941.
    Opinion filed January 17, 1936.
    Rehearing denied April 7, 1936.
    C. H. Swiek, for appellant. Schaefer & Dolan and Frank B. Leonard, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    O’Meara Construction Company, Inc., appellee, v. Joseph Meltzer, Inc., appellant.
    Gen. No. 8,944.
    Opinion filed January 17, 1936.
    Rehearing denied April 7, 1936.
    Adair & Groves and Wilson & Schmiedeskamp, for appellant. Inghram & Inghram, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Cleatus Connolly, plaintiff in error.
    Gen. No. 8,949.
    Opinion filed January 17, 1936.
    Rehearing denied April 7, 1936.
    A. M. Fitzgerald and Lee W. Ensel, for plaintiff in error. A. H. Greening, State's Attorney, and Thomas W. Hoopes, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    S. H. Cummins, administrator of the estate of Ettie M. Cummins, deceased, plaintiff in error, v. City of Springfield, defendant in error.
    Gen. No. 8,959.
    Opinion filed January 17, 1936.
    Carey E. Barnes, for plaintiff in error. Hugh J. Dobbs, for defendant in error; J. H. Weiner, of counsel.
   Mr. Justice Allaben

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    Paul Bros. Amusement Co., Inc., appellant, v. William P. Dunn, appellee.
    Gen. No. 8,914.
    Opinion filed January 17, 1936.
    Truman A. Snell and Michael F. Seyfrit, for appellant. James H. Murphy, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Sam Edwards, appellant, v. C. F. McCracken et al., appellees.
    Gen. No. 8,917.
    Opinion filed January 17, 1936.
    Rehearing denied April 7, 1936.
    A. B. Johnson, for appellant. Carl E. Robinson, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Dottie Vancil, appellee, v. Illinois Power and Light Corporation, appellant.
    Gen. No. 8,923.
    Opinion filed January 17, 1936.
    W. M. Acton and E. Bentley Hamilton, for appellant. Colfax T. Martin, Samuel V. Jinkins and Gunn, Penwell & Bindley, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    In re Estate of Elizabeth K. Adams, deceased. Marshall Davis, appellant, v. H. W. Rice, appellee.
    Gen. No. 8,928.
    Opinion filed January 17, 1936.
    Meyer & Meyer, for appellant. No appearance for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Alma Shaffer, appellee, v. The Prudential Insurance Company of America, appellant.
    Gen. No. 8,933.
    Opinion filed January 17, 1936.
    Gunn, Penwell & Bindley, for appellant. J. R. Dean, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Everett E. Smith, appellant, v. A. H. Skelton, appellee.
    Gen. No. 8,945.
    Opinion filed January 17, 1936.
    Graham & Dysert, for appellant. Acton, Acton & Baldwin, for appellee; W. M. Acton, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    National School Equipment Company, appellee, v. Board of Education No. 15 of Hancock County, appellant.
    Gen. No. 8,956.
    Opinion filed January 17, 1936.
    Edward S. Martin, for appellant. O’Harra, O’Harra & Roeth, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Edward Kibbat, appellee, v. May L. Clokey, appellant.
    Gen. No. 8,960.
    Opinion filed January 17, 1936.
    Martin & Hutchens, for appellant. No appearance for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Mr. Presiding Justice Hall

text:
    William E. Van Deventer, Appellee, v. North American Union Life Assurance Society, Appellant.
    Gen. No. 37,801.
    Opinion filed February 11, 1936.
    Rehearing denied March 5, 1936.
    Maloney & Wooster, of Chicago, for appellant.
    Kern, Stiefel & Stiefel, of Chicago, for appellee.
   On Rehearing.

Mr. Presiding Justice Hall

delivered the opinion of the court.

On September 11, 1933, William E. Van Deventer brought suit against the North American Union Life Assurance Society, a corporation, in the municipal court of Chicago. The cause was .submitted to a jury, which returned a verdict in favor of plaintiff of $736.12, upon which the judgment appealed from was entered.

In his statement of claim plaintiff alleges that on the 12th day of October, 1896, he was admitted to membership in the North American Union Life Assurance Society, a fraternal society, organized and existing under the laws of the State of Illinois, and that he had remained a member of that society, and was on the date of the filing of the suit a member thereof in good standing, and that he had paid all his dues and assessments; that the dues and assessments for the months of May, 1933, June, July and August, and up to April, 1934, inclusive, were paid at the rate of $28.01, per month, which is in excess of the amount originally agreed to be paid, and that such payments were made under protest and only after the defendant corporation had threatened to suspend the plaintiff from the society and forfeit his insurance, unless such payments were made.

It is alleged'that on the 10th day of November, 1909, defendant executed, issued and delivered to the plaintiff a certificate of insurance, No. 1202, which provided, among other things, that in the event of the death of plaintiff, defendant would pay out of its mortuary fund to Anna T. Van Deventer, wife of the plaintiff, and the First Trust & Savings Bank of Chicago, as trustees, the sum of $4,000, upon satisfactory proof of the death of the plaintiff, and that this certificate contains the following further provision:

‘ ‘ Annuity. When said member shall have reached the age of seventy years, no further payments of assessments shall be required and he shall be entitled at his option to receive annually from and after his seventieth birthday as an annuity a sum equal to one-tenth of the amount agreed to be paid at his death, the aggregate amount of such annual payments shall in no case exceed the Mortuary benefit herein agreed to be paid, and shall be charged against such Mortuary benefit, and his beneficiary or beneficiaries, shall be entitled at his death to receive only the balance due after deducting the sum total of said payments so made.”

It is also alleged that on the 18th day of May, 19.33, claimant reached the age of 70 years, and that immediately thereafter demanded of the defendant the sum of $400, this being one-tenth of the amount payable at his death, and that defendant refused to pay. Plaintiff’s claim is that the defendant is liable to pay the sum of $400 plus the sum of $336.12, the latter amount being the assessments levied against the plaintiff in claimed violation of defendant’s contract with the plaintiff.

In an amended affidavit of merits filed in the case, defendant alleges among other things, that it is a fraternal society, organized under the laws of the State of Illinois, not for profit, but for the mutual benefit of its members and its beneficiaries; that when plaintiff was admitted to membership in the society, he executed an application for membership containing* the following*:

“If accepted as a member, I agree to comply with, and that my membership and all interests of the persons entitled to such benefits, shall be subject to all laws, rules and usages now in force in the Order, or which may be hereafter adopted by it”; that a certificate was issued to him for the sum of $2,000, and that this certificate contained the following provision:
“This certifies that William E. Van Deventer is a member of the North American Union duly admitted to membership in Kenwood Council . . . and upon condition that the said member complies in future with the laws, rules and regulations now governing* the said North American Union, and the said Mortuary Fund and Reserve Fund thereof or that may hereafter be enacted to govern the same, all of which said laws, rules and regulations are also made a part of this contract; and upon said member assenting to and complying with all the conditions herein provided, the North American Union hereby promises and binds itself to pay out of its Mortuary Fund the sum of Two Thousand Dollars.”

In this affidavit of merits it is stated that after the certificate above referred to was issued to plaintiff, it was canceled, and that in the year 1897 a second certificate was issued for the sum of $4,000. A third certificate was issued to the plaintiff, which was also canceled, and in the year 1909 the fourth certificate was issued, containing the annuity provision referred to in the statement of claim.

It is the claim of the defendant that the annuity clause in the certificate issued to plaintiff is ultra vires and void, and that the North American Union Life Assurance Society had no power or authority to issue such a certificate under the laws of the State of Illinois. It is also the claim of defendant that, it being a fraternal beneficial society, it reserved the rig’ht to and did amend its by-laws, and that by such amendment, it provided that a member would be bound by the amendments, and that any member is so bound.

The certificate of incorporation issued to defendant on June 8, 1895, recites that certain persons associate themselves tog-ether for the purpose of forming a corporation under an Act of the General Assembly of the State of Illinois entitled, “An Act to provide for the organization and management of fraternal beneficiary societies for tlie purpose of furnishing life indemnity or pecuniary benefits to beneficiaries of deceased members or accident permanent indemnity disability to members thereof; and to control such societies of this State and of other. States doing business in this State and providing and fixing* the punishment for violation of the provisions thereof and to repeal all laws now existing which conflict herewith. ’ ’ Approved and in force June 22, 1893. This certificate provides, among* other things, that the object of the incorporation is “to furnish and maintain a Mortuary Benefit Fund, from which shall be paid benefits in case of disability and death, or either, resulting* from either disease, accident or old age of its members, such payments to be subject in all cases to compliance by the member with the contract rules and laws of the order.” Also “to afford such relief to its members as shall be lawful under the laws of the State of Illinois governing such societies,” and that “The Supreme Council shall have power, by law, to provide for the creation and maintenance of such mortuary reserve, surplus and other similar funds required by the laws of said association for meeting* and caring* for the mortuary, disability and other benefits and claims of the members and their beneficiaries, according to the forms and provisions of such laws and the benefit certificates or policies of insurance issued by the association.” The Act of 1893, under which defendant was organized, provided that “such society shall make provision for the payment of death benefits, and may, in addition thereto, provide for the payment by ‘local lodges’ of benefits in case of sickness, disability or old age of its members.” (Hurd’s Revised Statutes, 1893, ch. 73.)

Notwithstanding* the defense of ultra vires presented by defendant, it seems to be conceded that a “local lodge” could, under the provision of this act, issue such a policy as that issued by the defendant company and provide for the payment of benefits to a member, upon such member reaching a certain age. What relation a “local lodge” has to the organization is not shown by the record. By an amendment made in 1895 to the statute in question, Hurd’s Revised Statutes, 1895, ch. 73, par. 258, it is provided that “ each society . . . may make provision for the payment of benefits in case of disability and death, or either, resulting from disease or accident or old age of its members. ’ ’

In Royal Drug Co., Inc. v. Levin, 273 Ill. App. 231, an action was brought on a promissory note, payable to the Royal Drug Co., Inc. The Royal Drug Co., Inc., was chartered to manufacture, buy, sell and deal in drugs, chemicals, medicines and druggists’ supplies, of every kind and description, drug sundries, sanitary appliances, fancy goods and other articles and things used in and pertaining to the druggists’ supply business, and to do all acts and things reasonable and necessary for the conduct of such business or in connection therewith. The loan made by the plaintiff corporation was in a matter entirely distinct from its business, and it was contended by the defendant that, inasmuch as the corporation had no power to make such a loan, that it could not recover. In passing upon this question generally as to pleading ultra vires, as a defense, this court said :

“The defense of ultra vires is looked upon by many courts with disfavor, and in recent cases especially the rule has been frequently announced that the plea of ultra vires should not be allowed to prevail, whether interposed for or against a corporation, when it will not advance justice, but, on the contrary, will accomplish a legal wrong. R. C. L., vol. 7, page 676. See also Fletcher Cyc. Corp. (Perm. Ed.) vol. 3, sec. 1549. The decisions in this State have held, generally, to the same effect. Darst v. Gale, 83 Ill. 136; Brown v. Scottish-American Mortgage Co., 110 Ill. 235; Kadish v. Garden City Equitable Loan & Bldg. Ass’n, 151 Ill. 531; Eckman v. Chicago B. & Q. R. Co., 169 Ill. 312; American Credit Indemnity Co. v. Yamer, 170 Ill. App. 350. In Independent Order of Svithiod v. Ring Lodge No. 8, 261 Ill. App. 289, this court in an extended opinion cited most of the cases in this State dealing with the subject of a contract ultra vires the power of a corporation. We there held that the loan of money by the corporation was an appropriate exercise of power for the attainment of the object for which the corporation was incorporated. In the recent case of Benson Lumber Co. v. Thornton, 185 Minn. 230, this subject was under discussion. In that case it was said: . . .
' Contracts should not be held ultra vires unless clearly shown to be.
" 'The present tendency is to restrict the defense of ultra vires in actions between private parties as far as possible, if not to deny it altogether, .except in the case of contracts wholly executory. The general rule is .that such contracts are unenforceable when wholly executory, but when executed on one side they are enforceable because the public policy of justice overbalances the public policy of keeping the corporation within the limits of its charter.
" 'An ultra vires contract fully performed on one side is enforceable either in favor of or against a corporation unless expressly prohibited by statute. In other words, if a corporation receives from an individual a substantial benefit under such a contract, it cannot repudiate the contract without restoring the benefit received. On the other hand, if an individual receives money or property from a corporation under such a contract, he or those claiming under him cannot repudiate the contract without restoring what was received. While this rule is generally said to be based on estoppel, it is equally sustained by the equity rule that one person or party shall not be permitted unjustly to enrich himself at the expense of another. 2 Morawetz, Private Corp. (2nd Ed.) sec. 689.’ ”

By section 8, chapter 32, ¶ 8, Illinois State Bar Stats. 1935, being “An Act to revise the law relating to corporations for pecuniary profit,” filed July 13, 1933, it is provided that:

“No limitation upon the business, purposes, or powers of a corporation, express or implied in its articles of incorporation or implied by law, shall be asserted in order to defeat any action at law or in equity between the corporation and a third person or between a shareholder and a third person involving any Contract to which the corporation is a party or any right of property or any alleged liability of whatsoever nature. ’ ’

In view of the powers granted to this corporation, and of the fact that it received dues for all the years during which plaintiff was a member of the association, and bad not at any time questioned any of the rights claimed by the plaintiff under his certificate, and further, in view of the holdings of this court and of the statute with reference to the defense of ultra vires made under similar circumstances, we are of the opinion that this defense is without merit. However, under the law and under the contract with the plaintiff, defendant had the right to amend its by-laws and to increase its dues, and it is our further opinion that plaintiff cannot recover back the additional amount of dues which he claims to have paid under protest. Therefore, the judgment is reversed and the cause is remanded with the direction that the municipal court enter a judgment against defendant for the sum of $400, the amount of his claim under the annuity clause in the contract of insurance.

Reversed and remanded with direction.

Hebel, J., and Denis E. Sullivan, J., concur,