text:
    Johnson Brothers, appellees, v. Herman Vierke, appellant.
    Gen. No. 8,710.
    Opinion filed January 19, 1934.
    Modified opinion filed February 23, 1934.
    Roy R. Phillips and Charles G. Seidel, for appellant. Harvey Gunsul and Olney C. Allen, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Wolfe

license: Public Domain

text:
    The Union National Bank of Streator, defendant in error, v. Lucy Mohan et al., plaintiffs in error.
    Gen. No. 8,716.
    Opinion filed January 19, 1934.
    Rehearing denied February 14, 1934.
    A. B. Butters and C. B. Chapman, for plaintiffs in error. R. C. Osborn and B. E. Hayes, for defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    Marie Sites, defendant in error, v. David Gillogly, plaintiff in error.
    Gen. No. 8,515.
    Opinion filed January 19, 1934.
    Rehearing denied May 3, 1934.
    John L. Brearton and Frank T. Sheean, for plaintiff in error. Franklin J. Stransky and Franklin U. Stransky, for defendant in error.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    The Swords Company, appellee, v. Leo Michale, appellant.
    Gen. No. 8,696.
    Opinion filed January 19, 1934.
    Hall & Dusher, for appellant; Charles H. Davis, of counsel. Guyer & Berry, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    William H. Keig, appellant, v. L. & G. Feed Company, appellee.
    Gen. No. 8,703.
    Opinion filed January 19, 1934.
    North, Gibboney & North, for appellant. Burrel Barash, for appellee; Louis Gard, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Ida C. Ermold, appellant, v. H. Clayton Bear, appellee.
    Gen. No. 8,714.
    Opinion filed January 19, 1934.
    Heard & Heard, for appellant; Oscar E. Heard and Oscar E. Heard, Jr., of counsel. Burrell, James & Burrell, for appellee; L. H. Burrell, H. D. James and D. M. Burrell, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Marie A. Bloom, appellee, v. N. M. Gillette and E. M. Johnson, appellants.
    Gen. No. 8,717.
    Opinion filed January 19, 1934.
    Burrel Barash, for appellant E. M. Johnson. Todd, Morgan, Pendarvis & Arber, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Peter Heidenriech, appellee, v. J. J. Moffett, appellant.
    Gen. No. 8,727.
    Opinion filed January 19, 1934.
    Arthur G. Higgs, for appellant. James H. Andrews, Gregg A. Young and Harper Andrews, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Paul C. Nicholson, administrator of the estate of Onetta Nicholson, deceased, appellant, v. Noah W. Winn et al., appellees.
    Gen. No. 8,735.
    Opinion filed January 19, 1934.
    L. M. Burkey, Brian & McManus and Raymond A. Liggett, for appellant. F. W. Renniek, Yera M. Binks and Thomas J. Welch, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    The People of the State of Illinois ex rel. Oscar Nelson, complainant, v. United State Bank of Crystal Lake et al., defendant. Robert Cowan and Hugh Cowan, appellants.
    Gen. No. 8,527.
    Opinion filed January 19, 1934.
    Rehearing denied April 2, 1934.
    M. A. Carmack and D. T. Smiley, for appellants. Wm. M. Carroll, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    The Security National Bank of Downers Grove, appellant, v. Samuel Curtiss et al., appellees.
    Gen. No. 8,550.
    Opinion filed January 19, 1934.
    Charles L. Makemson, for appellant. Bunge & Bunge, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Emily Jane Carlson, executrix of the estate of C. E. Carlson, deceased, appellee, v. Harry Sodergren, appellant.
    Gen. No. 8,555.
    Opinion filed January 19, 1934.
    Frank E. Maynard, for appellant. Alexander J. Strom and Harold C. Sewell, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Walter Masche, by Otto W. Masche, his father and next friend, defendant in error, v. William H. Gitchell, trading as Gitchell Transfer Company, plaintiff in error.
    Gen. No. 8,702.
    Opinion filed January 19, 1934.
    Welsh & Welsh, for plaintiff in error. John H. Page and Stanley H. Guyer, for defendant in error.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    First National Bank, appellant, v. Antonio Paris et al., defendants. Johnson Lumber and Fuel Company, appellee.
    Gen. No. 8,736.
    Opinion filed January 19, 1934.

      Tatge & Tatge and Lathrop, Lathrop, Brown & Lathrop, for appellant; Robert F. Kolb, of counsel. Welsh & Welsh and Nelson & Nelson, for appellee; Ó. K. Welsh and Carroll Nelson, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Gary-Wheaton Bank, complainant and appellee, v. J. Mitchell Howard et al., defendants and appellees. American Express Company, appellant.
    Gen. No. 8,741.
    Opinion filed January 19, 1934.
    Rehearing denied and opinion slightly modified May 3, 1934.
    Tenney, Harding, Sherman & Rogers, for appellant; Henry F. Tenney, L. Dow Nichol, Jr., and Roger R. Leech, of counsel. Harris, Reinhardt & Bebb, for appellees; Fred W. Reinhardt and Clayton W. Mogg, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    George Hollenbeck, plaintiff in error, v. James E. Bennett et al., defendants in error.
    Gen. No. 8,574.
    Opinion filed February 19, 1934.
    Rehearing denied April 2, 1934.
    Butters & Butters and Arthur H. Shay, for plaintiff in error. Moses, Kennedy, Stein & Bachrach and Duncan & O ’Conor, for defendants in error; Walter Bachrach and Philip M. Click, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    George L. Schein, plaintiff in error, v. The Estate of John Dailey, deceased, defendant in error.
    Gen. No. 8,610.
    Opinion filed February 19, 1934.
    Shurtleff & Niehaus, for plaintiff in error, Robert N, McCormick, for defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Charles Johnson, appellee, v. Edward A. Mueller, appellant.
    Gen. No. 8,632.
    Opinion filed February 19, 1934.
    Faulkner & Faulkner, for appellant. Donovan, Bray & Gray, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    James T. Rogers, defendant in error, v. Blanche L. Leitch, plaintiff in error.
    Gen. No. 8,705.
    Opinion filed February 19, 1934.
    Rehearing denied April 2, 1934.
    George W. Hunt, for plaintiff in error. Brian & McManus and Robert J. Hartley, for defendant in error; F. B. Brian, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.


text:
    Robert Meers and Viola E. Meers, individually and as executors of the estate of Robert Meers, deceased, defendants in error, v. Will County National Bank et al., defendants in error. Henry W. Meers et al., plaintiffs in error, v. Will County National Bank et al., defendants in error.
    Gen. No. 8,649.
    Opinion filed February 19, 1934.
    Donovan, Bray & Gray, for certain plaintiff in error. Irving Shutts, for certain defendant in error.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Elizabeth Morton, appellant, v. Charles E. Hughes, appellee.
    Gen. No. 8,673.
    Opinion filed February 19, 1934.
    Leonard C. Mead and William D. Knight, for appellant; David J. Peffers, of counsel. North, Linscott, Gibboney & North, for appellee; C. H. Linscott, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Charles Ind, appellee, v. Largura Construction Company, Inc., appellant.
    Gen. No. 8,701.
    Opinion filed February 19, 1934.
    Rehearing denied May 3, 1934.
    Hall & Dusher, for appellant. O. H. Linscott, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Charles H. Westlake et al., defendants in error, v. James Frisby et al., plaintiffs in error.
    Gen. No. 8,541.

      Opinion filed February 19, 1934.
    Rehearing denied April 2, 1934.
    Thompson, Tyrrell & Chambers, for plaintiffs in error; Lavern W. Thompson, of counsel. Charles P. Barnes, for defendants in error.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Per curiam.

text:
    In re Estate of Elizabeth Swalm, deceased. Hattie Wagner Crosby, appellant.
    Gen. No. 8,492.
    Opinion filed February 19, 1934.
    Faulkner & Faulkner, for appellant; James W. Faulkner, of counsel. Frank J. Jones, for appellee.
   Per curiam.


author: Mr. Presiding Justice Niehaus

text:
    Third District.
    T. W. Doss, appellee, v. Wm. P. Foran, appellant.
    Gen. No. 8,783.
    Opinion filed January 12, 1934.
    E. J. Hawbaker, for appellant. Doss, Glasgow & Corbett, Reed & Reed and Herrick & Herrick, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Davis

text:
    Louis J. Bremer, administrator of the estate of Thomas K. Goff, deceased, appellee, v. V. P. Miller and Southern Limited, Inc., appellants.
    Gen. No. 8,792.
    Opinion filed January 12, 1934.
    Rehearing denied April 4, 1934.
    John A, Bloomingston and Gunn, Penwell & Bindley, for appellant V. P. Miller; Harold Bindley, of counsel. Anson H. Brown and Mann & Stifler, for appellant Southern Bimited, Inc.; O. D. Mann and Charles W. Hadley, of counsel. Hutton & Clark and O. W. Bongeneeker, for appellee; H. Ernest Hutton, of counsel.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Alva Wilson, plaintiff in error.
    Gen. No. 8,796.

      Opinion filed January 12, 1934.
    Robert I. Pugh, Philip L. Turner and U. G. Ward, for plaintiff in error. Kenneth F. Kelly, State’s Attorney, for defendant in error.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    James D. Wester, appellee, v. Frank E. Lefferdink, trading as Lefferdink Construction Company, appellant.
    Gen. No. 8,799.
    Opinion filed January 12, 1934.
    Gillespie, Burke & Gillespie, for appellant. Hoff & Hoff, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Edward L. Jones, appellee, v. Philip George, appellant.
    Gen. No. 8,811.
    Opinion filed January 12, 1934.
    O ’Harra, O’Harra & Roeth, for appellant. Clyde P. Johnson, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


author: Mr. Justice Pulton

text:
    William Henry Stahl, administrator of the estate of Isaac N. Stahl, deceased, appellee, v. Walter Jones, appellant.
    Gen. No. 8,684.
    Opinion filed January 12, 1934.
    Dobbins & Dobbins, for appellant. A. J. B. Showalter and Herrick & Herrick, for appellee.
   Mr. Justice Pulton

delivered the opinion of the court.


text:
    T. E. Lyons, receiver of the Arcola State Bank of Arcola, appellant, v. Estate of Ralph G. Ernst, deceased, appellee.
    Gen. No. 8,765.
    Opinion filed January 12, 1934.
    John McNutt, for appellant. H. G. Ward, Robt. I. Pugh and Philip L. Turner, for appellee.
   Mr. Justice Pulton

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    Jane Chumard, defendant in error, v. Frank N. Goodman et al., trading as Parlor Market, plaintiffs in error.
    Gen. No. 8,768.
    Opinion filed January 12, 1934.
    Rehearing denied April 3, 1934.
    C. C. Martin and F. R. Wiley, for plaintiffs in error. John R. Fitzgerald, for defendant in error.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Fannie M. Kenyon, appellant, v. A. H. Penewitt, appellee.
    Gen. No. 8,785.
    Opinion filed January 12, 1934.
    Clarence W. Heyl, for appellant. Scott W. Lucas and Barber & Barber, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Lewis McCormick, appellee, v. Edmund P. Connolly, appellant.
    Gen. No. 8,801.
    Opinion filed January 12, 1934.
    Dobbins & Dobbins, for appellant. Busch & Harrington, for appellee; C. E. Tate, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    In re Conservatorship of William Steel, Incompetent.
    Gen. No. 8,810.
    Opinion filed January 12, 1934.
    W. A. Doss, Carl I. Glasgow and 0. E. Corbett, for appellant. Clark & Noll, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Mr. Presiding Justice Edwards

text:
    Fourth District.
    Joseph Seeley, plaintiff in error, v. Ferd Rohrkaste, defendant in error.

      Opinion filed December 26, 1933.
    Rehearing denied February 26, 1934.
    Ferdinand Tunnell, for plaintiff in error. James L. Reed and Williamson, Burroughs & Simpson, for defendant in error.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Murphy

text:
    Dorothy Wuest, appellee, v. F. B. Hellrung, appellant, and L. D. Hoffman, defendant.
    Opinion filed December 26, 1933.
    Terry, Gueltig & Powell and Gillespie, Burke & Gillespie, for appellant. Lester Geers, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    Sullivan Wells, plaintiff in error, v. United American Benefit Association, defendant in error.
    Opinion filed December 26, 1933.
    Charles J. Boatner and Kasserman & Kasserman, for plaintiff in error. Albert E. Isley, for defendant in error.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    Gladys McDonald, appellee, v. Illinois Terminal Company and St. Louis Electric Terminal Railway Company, appellants.
    Opinion filed December 26, 1933.
    Terry, Gueltig & Powell, for appellants; E. Bentley Hamilton, of counsel. Philip G. Listeman, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


text:
    Franklin County Building Association, appellee, v. Frank Shavitz et al., appellants.
    Opinion filed December 26, 1933.
    D. F. Moore, for appellants. Pulverman & Cantrell, for appellee. Mr. Justice Murphy delivered the opinion of the court.


text:
    Carl Wolf, appellee, v. George Schmitt, appellant.
    Opinion filed December 26, 1933.
    Rehearing denied February 26, 1934.
    M. R. Sullivan, for appellant. Harry Faulkner, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.


author: Mr. Justice Stone

text:
    W. W. Boyne et al., plaintiffs in error, v. Jerome Munie, defendant in error.
    Opinion filed December 26, 1933.
    R. V. Gustin, for plaintiffs in error. Otto Kerner, Attorney General, for defendant in error; J. J. Neiger, Assistant Attorney General, and Louis P. Zerweck, State’s Attorney, of counsel.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    Schroeppel Undertaking Company, Inc., appellant, v. John Hoffman, appellee.
    Opinion filed December 26, 1933.
    John W. Freels, for appellant; Ropiequet & Freels, of counsel. Kramer, Campbell, Costello & Wiechert and John C. Roberts, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    Iva Ragland, defendant in error, v. A. T. Ragland, plaintiff in error.
    February 28, 1934.
    J. E. Carr, for plaintiff in error. Frank E. Trobaugh, for defendant in error.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    J. H. Swann, Plaintiff in Error, v. National Union Benefit Association, Defendant in Error.
    Opinion filed December 26, 1933.
    Heard in this court at the October term, 1933.
    Basil Baker and Kasserman & Kasserman, for plaintiff in error.
    Albert E. Isley, for defendant in error.
   Mr. Justice Murphy

delivered the opinion of the court.

Plaintiff in error, hereinafter referred to as the plaintiff, was named as a beneficiary in a mutual benefit certificate of the face value of $361 issued by defendant in error, hereinafter referred to as defendant, to Ona Swann, a sister of plaintiff. The certificate was dated November 23, 1929, and contained a clause referred to as the “Chronic Disease” clause. This clause provided if the insured should die from any of the causes therein specified, within 30 days after issuance of the certificate, the beneficiary would receive one-fiftieth of its face value, and that if the insured lived for 90 days after its issuance and then died from any of said causes, the beneficiary would receive two-fiftieths of the face value and for each additional 60-day period the insured lived after the expiration of the 90-day period, the benefit upon death from any of said causes would be increased one-fiftieth until the full face value of the certificate was reached.

Ona Swann died within 30 days after the certificate was issued; proofs of death were filed and defendant disclaimed liability and this suit was instituted to recover the face value of the certificate.

The declaration contained the common counts and one special count. The special count alleged that Ona Swann was alive and in good health at the time of the execution and deliverance of the certificate and set out the certificate in haec verba which aside from the Chronic Disease clause above referred to and other clauses contained the following: “Effective Date:— The association assumes no liability hereunder until the certificate is issued and actually delivered to the member during his or her life and good health.” General issue plea was filed with notice of special defense which was to the effect that Ona Swann was not in good health at the time of the issuance of the certificate but was afflicted with myocarditis of .which she died.

The cause was tried before the court without a jury and judgment was entered in favor of plaintiff for $7.22.

Under this state of the pleadings, the legal effect of the judgment was that the court found that Ona Swann was in good health on the date of the issuance of the certificate; but her death was caused by one of the diseases within the limitation in the “Chronic Disease” clause. Defendant has not assigned cross errors and the court’s finding that the insured was in good health on the date of issuance of the certificate is not before this court.

Plaintiff’s assignment presents two questions: first, does the “Chronic Disease” section refer to all diseases named therein whether they be acute or chronic, or does it apply only to those diseases which in their nature are chronic, and, second, does the evidence show that Ona Swann died of one of the ailments specified in said clause.

A provision in a benefit certificate identical with the “Chronic Disease” clause involved here was before this court in Greene v. United American Benefit Ass’n, 269 Ill. App. 71, and is set out in full in that opinion. The same question of interpretation and application of the clause as now presented was then before the court and it was there held that the clause was intended to cover only the diseases therein specified which are in their nature chronic. The holding in that case on that point is controlling here.

Ona Swann, age 54, lived on a small farm in Texas and kept thereon chickens and a cow. She did the work necessary for the care of the cow and poultry, cultivated a small garden lot and did her own housework. Five witnesses, including the beneficiary, who had seen her frequently, testified that she had been in apparent good health for a long time prior to the date of her death; that she had attended to her usual duties around her home, went to church regularly and with the exception of a slight cold, had not suffered any physical ailments.

Dr. F. E. Tucker, family physician of the deceased, testified by deposition on behalf of the plaintiff. He stated that he met her a few days prior to her death, that she told him that she had had a severe cold or mild influenza but that she was feeling better. He did not treat her professionally at that time. In answer to a question as to the cause of her death, he says, “The presumption on my part was that she died of acute, mild myocarditis, which perhaps was a sequence of her cold or influenza”; that the only conversation he ever had with her relative to her health was the one in reference to the cold. He testified that acute, fatal myocarditis often follows an infectious’ disease and might be of short duration; that there are many acute conditions that produce death without being preceded by any chronic ailment. The defendant offered in evidence the affidavit of Dr. Tucker, which was furnished in connection with the proof of death and in which he stated that he did not attend deceased in her last illness and, in answer to the question concerning the cause of death, “Did any chronic disease or ailment of any kind exist?” he answered, “Not that I know of.”

The provisions of the “Chronic Disease” clause are for the benefit of the insurer and the burden of proof rested upon it to establish by a preponderance of the evidence that the insured died from a chronic disease, specified in said clause. Butler v. National Live Stock Ins. Co., 200 Ill. App. 280; Clay Fire & Marine Ins. Co. v. Wusterhausen, 75 Ill. 285. This is in accord with the general rule stated in Knickerbocker Ins. Co. v. Tolman, 80 Ill. 106, 108: “The general rule is, that, where a right is conferred by a clause, absolute and unconditional in its terms, but the right is limited in a subsequent clause by a condition or exception, the pleader is not required to negative the condition or exception, but it is for the defense to plead it. But when the condition or exception is contained in or referred to by the clause giving the right, then the plaintiff must set out and negative the condition or exception. ’ ’

According to the above rules, the burden was upon the defendant to prove that the insured died of one of the ailments specified in said clause and that the ailment was in its nature chronic. This he has not done and the court erred in limiting plaintiff’s recovery to one-fiftieth of the face value of the certificate. The judgment should have been for $361.

The judgment is reversed and the cause remanded with directions to render judgment for the plaintiff and against the defendant for the face value of the certificate, together with interest thereon in accordance with law.

Reversed and remanded with directions.


text:
    The People of the State of Illinois ex rel. Jack J. Cobine, Appellee, v. Peter Angsten et al., Appellants.

      Opinion filed December 26, 1933.
    Heard in this court at the October term, 1933.
    Otto Kerner, Attorney General, for appellants; Simon Kellerman and Thomas F. Smith, Assistant Attorneys General, of counsel.
    Ferdinand Tunnell, for appellee.
   Mr. Justice Murphy

On May 9, 1933, appellee, hereinafter referred to as plaintiff, filed a petition for mandamus against the industrial commission of Illinois and the officers and members of the commission, hereinafter referred to as defendants and the Stocker Plumbing and Heating Company, hereinafter referred to as the Heating Company.

After denying a motion to dismiss the petition and overruling a separate general and special demurrer filed by the defendants and the Heating Company, the case was heard on the petition and answer of the defendants. A writ was awarded in accordance with the prayer of the petition. The Heating Company took no action after its demurrer was overruled.

Defendants perfected their appeal to the Supreme Court and that court ordered the cause transferred to this court.

The facts as alleged in the petition and admitted in the answer are that on June 18, 1929, Jack J. Cobine, an employee of the Heating Company, was injured while engaged in laying a sewer drain. An application for adjustment of claim under the Workmen’s Compensation Act, Cahill’s St. ch. 48, H 201 et seq., was filed by Cobine on September 14, 1929. After a hearing of evidence, the commission held that Cobine sustained accidental injuries arising out of and in the course of Ms employment but that he did not sustain any compensable disability. The cause was taken to the circuit court by certiorari and the decision of the commission was confirmed. The Supreme Court denied a petition for the writ of error.

February 11, 1931, Cobine filed a petition under paragraph (h) of section 19 of the Compensation Act, Cahill’s St. ch. 48, Ü 219, alleging that his disability had recurred and increased subsequent to his injury. The Heating Company made a motion to dismiss the petition and electing to stand on their petition introduced no evidence. The commission held that it was without jurisdiction to entertain Cobine’s petition filed under paragraph (h) of section 19 and granted the motion to dismiss.

A writ of certiorari issued out of the circuit court of Madison county and that court set aside the order of the commission and awarded Cobine a lump sum settlement. A writ of error was sued out of the Supreme Court and that court after fully reviewing the facts held that the circuit court was right in holding that the commission had jurisdiction under paragraph (h) of section 19 of the act to entertain Cobine’s petition but it was error for the circuit court to make an award in a lump sum. Cobine v. Industrial Commission, 350 Ill. 384.

A remanding order was entered, the material part of which is as follows:

“Therefore, it is considered by the Court that, for that error and others in the record and proceedings aforesaid, the judgment of the Circuit Court of Madison County in this behalf rendered, be reversed, annulled, set aside and wholly for nothing esteemed and that this cause be remanded to the Circrnt Court of Madison County with directions to remand it to the Industrial Commission for further hearing and proceedings in conformity with views expressed by the Court in its opinion filed herewith. ’ ’

The remanding order was duly filed and the cause redocketed in the circuit court and on January 24,1933, that court entered an order remanding the cause to the commission. The material part of that order is as follows:

“The cause is remanded to the Industrial Commission of Illinois upon the decision of the Supreme Court for a lump sum settlement to be figured upon a permanent injury maximum award for such cases where there is no child or children. The Industrial Commission shall also make its award in its decision to be had under section 9 of the Compensation Act, as is directed in the Supreme Court’s decision. And the former, decision of the Industrial Commission of Illinois is hereby vacated and held for naught in the cause with ' directions to comply with the directions herein contained, reversing the cause and directing the Industrial Commission of Illinois to so act and comply herewith. ’ ’

The remanding order of the circuit court was duly filed with the commission and the cause was by order of the commission set for hearing before commissioner Thompson. It is alleged in the petition that the plaintiff appeared before the commissioner at the time and place set for the hearing and asked for a decision awarding him compensation upon the record and order as remanded to the commission by the circuit court in compliance with the order entered by the Supreme Court but that the commissioner took the same under advisement, and later refused to comply with said remanding orders; that thereafter the petitioner received notice from the commission that it had fixed a further date of hearing at which time the cause would be reopened and further- evidence heard. The answer of defendants deny that the commission or its members have refused to obey the remanding orders of the circuit court but allege that a full hearing has never been had'upon Cobine’s petition, filed under paragraph (h) of section 19 of the act and that no award has been made under said petition and that they are willing to proceed with a hearing of evidence.

The prayer of plaintiff’s petition in this cause is that the defendants be commanded to comply with the remanding order of the circuit court and ordered to make a decision in said cause without the taking of further evidence.

The circuit court ordered the writ of mandamus to issue commanding the commission to comply with the remanding order of that court, made pursuant to the remanding order of the Supreme Court.

The writ of mandamus is a summary writ issuing from a court of competent jurisdiction commanding the officers or body to whom it is addressed to perform some specific duty which the relator is entitled, of right, to have performed and which the party or body owing the duty has failed to perform. Fergus v. Marks, 321 Ill. 510; Hooper v. Snow, 326 Ill. 142. The writ of mandamus will be awarded only where the right of the petitioner is -clear and undeniable and the party sought to be coerced is bound to act. Quernheim v. Asselmeier, 296 Ill. 494; People v. Department of Public Works & Buildings, 320 Ill. 117; Hooper v. Snow, 325 Ill. 53. The writ will not issue to compel the doing of an act which the person or body sought to be coerced admits on the record he is willing to do without coercion. People v. Dulaney, 96 Ill. 503; People v. Dunne, 258 Ill. 441. If the right of the petitioner must first be fixed or the duty of the officer or body sought to be coerced must first be determined, then mandamus is not the proper remedy. Hooper v. Snow, supra.

From the rule announced in the foregoing authorities, it is apparent that plaintiff cannot be granted the writ of mandamus, unless it is clearly shown that he has a right to have the defendants perform the specific duty which he seeks to coerce by the command of the writ. Plaintiff claims he has the right to have an award fixed by the commission without the taking of further evidence. As far as this proceeding is concerned, such right would have to arise from the orders of reversal and remanding' entered by the Supreme and Circuit Courts respectively.

When the matter came to the circuit court on certiorari that court in the exercise of the statutory powers given it under paragraph (f) of section 19 of the act could confirm or set aside the decision of the commission and if the decision was set aside and the facts in the proceeding were sufficient, the court could enter such decision as was justified by law, or it could remand the cause to the commission for further proceedings and state the questions requiring further hearing and give such instructions as may be proper.

Under this provision, the circuit court had the power to remand the cause to the commission with directions as to the matters upon which evidence should be heard but such order on review in the Supreme Court would not be binding on that court. The Supreme Court would determine the questions of law and fact according to its own judgment. Yellow Cab Co. v. Industrial Commission, 333 Ill. 49.

The Supreme Court in its opinion held that the commission had jurisdiction to entertain plaintiff’s petition under paragraph (h) of section 19 and that the circuit court did not err in so finding but it also held that the circuit court did not have the power to fix a lump sum award. There is no discussion of the evidence taken before the commission, except in so far as it was necessary to discuss it in reference to the jurisdictional question. In passing upon the power of the lower court to make the lump sum award, there was reference to section 9 of the act as to the procedure to be followed before the commission and the jurisdiction of the commission to make a lump settlement but there is nothing in the opinion that holds that plaintiff’s petition which was filed under paragraph (h) of section 19 should proceed before the commission under section 9 of the act. The remanding order of the circuit court wherein it refers to the commission acting under section 9 of the Compensation Act was without authority from the Supreme Court.

The direction of the Supreme Court to the circuit court as expressed in the order was that the circuit court should remand to the commission for further hearing and proceedings in conformity with the views expressed in the opinion. This amounted to a general order of reversal and remanding to the circuit court and that court was bound to remand to the commission in the manner directed by the Supreme Court. All parts of the order of the circuit court which directs the commission to do certain things is more than a general order of reversal and remanding of the cause to the commission and in that regard was without authority and is to be treated as surplusage.

“Where a decree or order is reversed and the cause remanded by a court of review, the decree or order is abrogated and the cause stands in the court to which it is remanded precisely as it did before the entry of the decree or order. The decree or order is in effect expunged from the record and the parties to the litigation are restored to their original rights exactly the same as if no decree or order had been entered.” Western Shade Cloth Co. v. Industrial Commission, 325 Ill. 570; People v. Wabash Ry. Co., 322 Ill. 185.

The status of the proceeding now pending before the commission, as shown by this record, is that the commission, before it can dispose of all the questions raised on the petition, will be required to hear evidence, and this the defendants have by their answer stated they are ready and willing to do. Under the facts shown, the writ of mandamus should not have been granted.

The judgment of the circuit court is reversed.

Judgment reversed.


text:
    Jesse C. Harrison et al., Appellees, v. Joe Ault et al., Appellants.
    Opinion filed December 26, 1933.
    Heard in this court at the October term, 1933.
    Kasserman & Kasserman and Milo D. Yelvington, for appellants.
    Albert E. Isley, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

Jesse C. Harrison et al. filed their bill in chancery to the April term of the circuit court of Jasper county against Joe Ault and others, for the purpose of enforcing the statutory liability of the stockholders of the State Bank of Yale, to the creditors of said bank under section 6 of the Bank Act, Cahill’s St. ch. 16a, 6. This section provides as follows:

“Every stockholder in any bank or banking association organized under the provisions of this Act shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder.”

An audit was made of the bank during the time it was opened for business, namely, from November 30, 1920, to the time it closed, January 3, 1931. This time was divided into periods, such periods being numbered 1 to 17, each period representing the time from one transfer of stock to the next transfer thereof.

James Gr. Cramer was a defendant. The suit was finally determined adversely to defendants. This proceeding is brought to this court by an agreement of the parties in pursuance of section 104 of our Practice Act, Cahill’s St. ch. 110, If 104. The stipulation or agreement between the parties in the matter is in words and figures as follows:

It is stipulated by and between the parties hereto that on July 19, 1926, James Gr. Cramer deposited in the State Bank of Yale, Illinois, $1,000, receiving as evidence thereof an ordinary time certificate of deposit, payable to his order, with four per cent six months after date upon the return of the said certificate of deposit properly indorsed; that on July 11, 1927, said Cramer again came to said bank, and the bank paid to him the interest on said certificate and $100 in cash and upon the surrender of the certificate dated July 18, 1926, received from the bank another certificate of deposit for $900 dated July 11,1927; that the bank on said July 11, 1927, received the certificate of deposit dated July 19, 1926, and stamped same “Paid” and entered the fact that it was paid upon its certificate of deposit ledger, which was kept by the bank in its regular course of business; that in addition to the regular certificate of deposit ledger, the bank also kept what it terms its cash book; and upon the issuance of any certificate of deposit it was entered therein as a debit of the bank, and upon the presentation of any certificate of deposit that fact was likewise entered and shown upon such cash book as a credit for the amount as indicated by the certificate of deposit; that the various certificates of deposit issued by the bank to Mr. Cramer were entered in this manner; that on July 23, 1928, Mr. Cramer received from the bank the accrued interest on the $900 certificate of deposit and also $150 cash, and surrendered his certificate of deposit dated July 11, 1927, and received from the bank another certificate of deposit for $750 dated July 23, 1928; that on June 26, 1929, the certificate dated July 23, 1928, was presented to the bank and canceled and the interest paid to Mr. Cramer and another certificate of deposit issued to him for $750; that on July 5, 1930, the certificate dated June 26, 1929, was presented to the bank and Mr. Cramer received the interest thereon and surrendered the certificate which was stamped “Paid” and another certificate issued to him dated July 5, 1930, for $750; that said certificate of deposit dated July 5, 1930, was in the possession of Mr. Cramer and an outstanding obligation of the bank at the time the bank closed by an order of the auditor of public accounts on January 3, 1931; that all other certificates of deposit in said bank were handled in the same manner as the Cramer certificates above mentioned; that the question of law presented for determination is, whether the issuance of other certificates of deposit in the manner outlined by the Cramer certificates operated as 'payments by the bank of its indebtedness as evidenced by the surrendered certificates executed by the bank and which were returned by the holders to the bank and by the bank stamped “Paid” and other certificates of deposit issued by the bank, and accepted by the holders; and whether or not such transactions created new liabilities against the stockholders holding the stock of said bank at the time of such transaction and released the stockholders from said liability who had prior thereto sold their stock.

The questions of law arising in this cause and so determined by the court were whether the issuance of other certificates of deposit in the manner outlined in the stipulation operated as payments by the bank of its indebtedness as evidenced by the surrendered certificates' executed by the bank and which were returned by the holders to the bank and by the bank stamped “Paid” and other certificates of deposit issued by the bank and accepted by the holders; and whether such transactions created new liabilities against the stockholders holding the stock at the time of such transaction and released the stockholders from such liability who had theretofore transferred their stock.

That part of the court’s written decision which is material here is in words and figures as follows:

“And the Court being now fully advised in the premises on consideration thereof finds from the evidence that when the bank received a deposit and issued a certificate of deposit therefor and upon such certificate of deposit becoming due and the bank issuing therefor another, the liability of the stockholder or the bank was not discharged by the issuance of a renewal certificate but the liability of the stockholders of the bank was a continuing one and not discharged until the original deposit was liquidated. The Court finds that a certificate of deposit is simply evidence of indebtedness of the bank and that the issuance of a renewal thereof cannot be held to be a payment of the original indebtedness so as to relieve either the bank or its stockholders from the obligation to pay the liability of the bank and stockholders incurred at the time the deposit was originally made and the Court decrees accordingly. ’ ’

The whole matter was certified to this court correctly in pursuance of the statute, the parties assenting thereto.

When a bank receives a deposit, all of its resources stand as security therefor. Among the securities are the liabilities of stockholders as defined by the'statute. On July 19, 1926, James Gr. Cramer became a creditor of the banlt to the extent of $1,000. A debt from the bank to Cramer was thereby created which the bank started to pay off on the instalment plan as described in the stipulation. Said debt had all the resources of the bank behind it. Cramer had a right to rely upon this security and presumably did so. The bank could not change the security given to Cramer and put him in a position in which his security was less or inferior without his consent; neither could the security. Even though the bank paid Cramer a part of his debt and gave him a new evidence of its indebtedness to him for the balance, he would still be entitled to the same security which he held for the entire amount of the debt as it was originally made. If this is not true, then between the date of the creation of the original debt of the bank and March 5, 1930, when the last evidence of the debt was issued by the bank to Cramer, the entire stock of the bank might have passed into the hands of persons who were unable to pay their liability and Cramer’s security diminished to the extent of the entire stock liability. People cannot be compelled to waive good security and take that which is worthless, without their consent. We are unable to see, in practical effect, where there is any difference in principle* between a bank which issues its paper and thereby becomes a debtor, and a bank which lends money to an individual and thereby becomes a creditor. In the latter case, it has been repeatedly held by our Supreme Court that the mere giving of a note does not of itself extinguish a precedent debt. It must be so as the note is only evidence of the debt. This applies with even greater force to renewal notes. They do not pay the debt, unless the parties agree that they do; they simply make a different evidence of the debt. Could a bank on a renewal note be required to take different security for the debt? Certainly not. No more can a bank on renewal of its obligation as evidenced by its certificate of deposit require its creditor to take other and different security. Village of Farmington v. Reisinger, 174 Minn. 56, 218 N. W. 444.

The $1,000 placed in the bank July 19, 1926, created an obligation against the stockholders of the bank then. That money was never taken out of that bank except $250 of it. The remainder is still there. Can the then stockholders step out from under the liability thus created by a mere transfer of their stock? Obviously not, unless, as urged, the taking up of the certificates of deposit, stamping them paid, changing the books, etc., amounted to payment and discharge of the obligation.

“When a dealer at a bank pays off a note by renewal, the debt is the same — the debt remains unpaid — the credit is extended. As a general rule, the surrender of the pre-existing note does not discharge it.” Daniel on Neg. Inst. sec. 205; Edwards on Bills, sec. 290.

This general rule, however, borne out by many authorities in Illinois as it is, must still bend to the proof of the mind of the parties at the time of making the exchange. In Cheltenham Stone & Gravel Co. v. Gates Iron Works, 124 Ill. 623, it was held that the taking of a note either of the debtor or of a third person, for a pre-existing debt is no payment unless it be expressly agreed to take the note as payment. In Rayburn v. Day, 27 Ill. 46, it was held that the giving of a note and mortgage by one of two copartners in settlement of a joint debt does not discharge an account against the firm unless they were received in satisfaction of it. To the same effect is Keller v. North American Life Ins. Co., 301 Ill. 198. In Hayward v. Burke, 151 Ill. 121, it was said: “In order to release the old liability and create "a new one, there .must be assent on the part of the creditor and of the original debtors and of the persons who assume the debts.” Such assent does not appear in this record.

In Golden v. Cervenka, 278 Ill. 409, our Supreme Court said: “The meaning of the constitutional provision was that persons who were stockholders of the bank at the time the credit was extended to it or a liability was incurred by it should be individually and personally liable, as partners, to the creditor to an amount equal to their stock.” To the same effect is Babka Plastering Co. v. City State Bank of Chicago, 264 Ill. App. 142.

Surely a partner cannot privately sell his share in the partnership and escape liability for the partnership debts incurred while he was a partner. Even if the creditor accepted the notes of the new partnership as evidence of the debt owing him, he could still go back to the partner who sold out if the note should prove worthless.

The bank in this case still has the original money deposited with it by Cramer on the faith of the bank’s resources in 1926. A part of the resources upon which Cramer’s faith was founded was the liability of the stockholders when the transaction was had. There has been nothing done which amounts to payment of that obligation. There is no satisfying evidence that what was done was intended as payment thereof. In our judgment it was a continuing obligation. The bank still has the money which was placed with it either by contract, deposit, loan or by whatever name it may be called. The stockholders who were such when the obligation was originally created were responsible in part for its being made. They cannot now say that their obligation has been assumed by others.

It is urged that McCormick v. Hopkins, 287 Ill. 66, is opposed to these views. We do not so regard that case. The only question before the court in that case was the liability of the surety company under the condition in the bond. It had no application to the liability of either the bank or its stockholders. The court did not there hold that the issuance of a renewal certificate of deposit paid the debt of the bank or the debt of its stockholders. That question was not there involved.

It is a maxim not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which they are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. Cohens v. Virginia, 6 Wheat. (U. S.) 264, 399; Mayer v. Erhardt, 88 Ill. 452; Myers v. United States, 272 U. S. 142.

The judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Justice McSurely

text:
    August M. Knapik, Defendant in Error, v. James Stefek, Plaintiff in Error.
    Gen. No. 37,171.

      Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the December term, 1933.
    Chas. G. Palmer, for plaintiff in error; Clyde C. Fisher, of counsel.
    Jerome B. Read, for defendant in error; Roy S. Gaskill, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit alleging an assault by defendant, and upon trial had a verdict for $500 upon which judgment was entered and which defendant seeks to have reversed.

April 1, 1933, judgment was entered. This was the last day of the March term of the superior court of Cook county. On April 27th, which was in the following term, the defendant made a motion to vacate the judgment, which was denied. By this writ of error defendant challenges this ruling of the court and the judgment entered upon the verdict.

Upon the trial defendant’s counsel submitted a special interrogatory to be answered by the jury, to wit: “Did the defendant, Stefek, wilfully and maliciously assault and injure the plaintiff, as alleged in the plaintiff’s declaration 1” The jury answered this in the negative and at the same time rendered a general verdict in favor of the plaintiff. Defendant now says that when a special finding of fact is inconsistent with the general verdict the former shall control the latter and the court should enter judgment accordingly, citing sec. 79, ch. 110, Illinois Statutes (Cahill); St. Louis & S. E. Ry. Co. v. Britz, 72 Ill. 256, and other eases.

Undoubtedly this is the general rule, but as stated by Thompson on Trials (2nd Ed.) Vol. 2, sec. 2700:

“If the special findings do not cover all the issues, but are not inconsistent with the general verdict for the plaintiff as to those issues not covered by them, the defendant is not entitled to a judgment, though such findings be inconsistent with the general verdict as to the issues covered by them. This may arise when there are several paragraphs of the complaint, and the interrogatories are confined exclusively to one or two of them, and show that the plaintiff is not entitled to recover thereon. Consequently they are not inconsistent with the general verdict, on the remaining paragraph, for the plaintiff. In such a case the findings do not exclude every conclusion that will authorize a recovery for the plaintiff.” Toledo, W. & W. Ry. Co. v. Milligan, 52 Ind. 505; Frazer v. Boss, 66 Ind. 1; Hoplans v. Chicago, M. & St. P. Ry. Co., 128 Wis. 403.

On applying this rule to the instant case, we find it was charged in the declaration that defendant “with force of arms, maliciously and violently assaulted the plaintiff. ” Another paragraph charges that defendant “with great force and violence, shook and pulled about the plaintiff and knocked him down to and upon the cement floor of plaintiff’s place of business, and violently and maliciously kicked the plaintiff,” and also with malice damaged plaintiff’s clothes. While the special interrogatory may cover the issue as to the malicious conduct of defendant, it does not cover the charge that defendant knocked plaintiff down. The general verdict is responsive to the issue raised by this charge and is not inconsistent with the answer to the special interrogatory, which presented the question whether the defendant “wilfully and maliciously” injured the plaintiff.

Moreover, although a special finding and a general verdict were returned, the record shows that defendant made no motion for judgment to be entered upon the special finding. The only motion defendant made was for a new trial, which was overruled. The motion for a new trial does not take the place of a motion for judgment on the findings. Anderson v. Hubble, 93 Ind. 570; Thompson on Trials (2nd Ed.) Vol. 2, sec. 2701. If the court had granted defendant’s motion for a new trial this would have set aside not only the general verdict but also the special finding. Fitzpatrick v. Papa, 89 Ind. 17; Hollenbeck v. City of Marshalltown, 62 Iowa 21. Defendant having failed to move for a judgment on the special finding, and, in effect having moved to set aside the special finding as well as the general verdict, cannot now in this court assert any error of the trial court in this respect.

When the evidence is not preserved by a bill of exceptions, which is the case here, the general presumption is in favor of the verdict and judgment. People v. Stone, 142 Ill. 281; Goodwillie v. City of Lake View, 137 Ill. 51; Mason v. Letz, 73 Ill. 371.

Defendant questions the denial by the court of his motion to set aside the judgment entered at a former term and says that a void judgment may be vacated after the term. But this was not a void judgment. The court had jurisdiction of the subject matter and of the parties and its judgment is not void, even if there were error. People ex rel. Coleman v. Leavens, 288 Ill. 447. But as held above, no error demanding a reversal has been presented.

For the reasons indicated, the judgment is affirmed.

Affirmed.

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


author: Mr. Justice McSurely Mr. Justice O’Connor

text:
    Edward Tyler Blair and William McCormick Blair, as Trustees Under the Last Will and Testament of William Blair, Deceased, Appellees, v. Lucy Blair Linn et al., Appellants.
    Gen. No. 37,406.
    O’Connor, J., dissenting.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Wilson & McIlvaine, for appellants; J. F. Dammann and Calvin F. Selfridge, of counsel.
    Cutting, Moore & Sidley, for appellees; Donald F. McPherson and Philip H. Schofield, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This appeal presents the question whether Edward Tyler Blair, a defendant, could assign a portion of the trust income devised to him by his father’s will before he received it. The trustees filed their bill asking the court to construe the will in this respect. The superior court held that the law did not permit Mr. Blair to do this, and the defendants appeal to this court.

William Blair, deceased, by his will created a trust estate, naming as trustees his nephew, Chauneey Blair (succeeded by complainant William McCormick Blair) and his son, Edward Tyler Blair; by the terms of the trust the wife of the testator was to receive one-half of the net income of the trust estate during her life, and his son, Edward Tyler Blair, was to receive the "other half during his life; after the death of the testator’s wife the son was to receive the whole income of the trust during his life; at his death the corpus of the trust to be distributed among his children.

Testator’s wife subsequently died, and thereafter Mr. Blair executed certain written assignments oE portions of his income to his children, aggregating approximately $60,000 a year; the trustees accepted these assignments and accordingly from time to time paid over the portions of the income so assigned to his children.

The commissioner of internal revenue sought to have Mr. Blair pay taxes on the entire amount of the income from his father’s estate, regardless of the fact that approximately one-half of it had been assigned to his children. The board of tax appeals recognized these assignments and held that Mr. Blair should pay an income tax only on the amount actually received by him. The commissioner of internal revenue appealed to the Circuit Court of Appeals for the Seventh Circuit, which court reversed the order of the board, holding that Mr. Blair'could not lawfully make the assignments to his children and that he should be taxed upon the entire income of his father’s estate. Commissioner of Internal Revenue v. Blair, 60 F. (2d) 340. The children, who are the assignees from Mr. Blair and also the remaindermen after his life estate, were not before that court. The federal court did not adjudicate the property rights but decided only the amount of the income of Mr. Blair which should be taxed. That court recognized that those rights were to be determined by the courts of Illinois, citing Spindle v. Shreve, 111 U. S. 542. In the recent case of Freuler v. Helvering, 54 Sup. Ct. 308, the Supreme Court holds that the decision of the state court determining the property rights of the taxpayer is conclusive in determining his federal income tax although the federal court in the income tax case had reached a different result as to the same property rights. It follows, therefore, that although the federal court has construed the instant will, and certiorari to the Supreme Court of the United States has been denied, yet this court, while giving weight to the opinion of the federal court, must use its own judgment in determining whether the assignments in question are permissible under the law of Illinois.

The particular paragraph of the will which the federal court held prohibits these assignments is as follows:

“I do hereby declare and direct that the income from said trust fund and estate which is herein ordered to be, from time to time, as the same shall be received, paid to my said wife and to my said son and to his said wife and to their children and descendants of children in the cases aforesaid, shall be paid to them directly upon their separate order and receipt .therefor, for their sole and separate use respectively, and that the same shall not be nor be made nor held in any manner nor by any proceedings whether in law or equity while yet in the hands of said trustees liable for or subject' to the payment of any of the debts or obligations of either of the persons entitled to the same as abpve herein set forth. ”

As a general proposition, restraints on alienation are looked upon with disfavor by the Illinois courts. Davis v. Hutchinson, 282 Ill. 523; Merchants’ Loan & Trust Co. v. Patterson, 308 Ill. 519. However, there are Illinois cases which sustain restraints on alienation where the same is clearly expressed in the document. In Steib v. Whitehead, 111 Ill. 247, the restriction was that the income should be paid to the daughter of the testator “in person, and not upon any written or verbal order, nor upon any assignment or transfer” by her. In Congress Hotel Co. v. Martin, 312 Ill. 318, the will specifically provided that the income should be paid only into the hands of the beneficiaries, in person, “and not upon any written or verbal order, nor upon any assignment or transfer thereof by said beneficiaries, or by operation of law. ’ ’ The following cases were also cited by the federal court, but none of them involved the question of alienation by a beneficiary: Bennett v. Bennett, 217 Ill. 434, involved an ordinary trust fund from which the beneficiary was to receive only the income; he filed a bill in chancery alleging that he was in debt and needed the corpus of the trust. The court dismissed his bill, saying that the purpose of the trust had not been completed. Wallace v. Foxwell, 250 Ill. 616, involved the question whether the trustee under the will should pay the income to the son of the testator and his wife in equal shares, or all of it to the wife. The court found there was no vested interest in the son. In Jones v. Harrison, 7 F. (2d) 461, it was held that the interest of the beneficiary did not pass to the trustee in bankruptcy. In Hartley v. Unknown Heirs of Wyatt, 281 Ill. 321, the beneficiary under a will persuaded the trustee to convey a farm to him. The court held the trust was active and the trustee had no power to do this. So also in King v. King, 168 Ill. 273, Wagner v. Wagner, 244 Ill. 101, and Leary v. Kerber, 255 Ill. 433, respectively, the question of alienation by a beneficiary was not involved.

The federal court seems to have relied largely upon the decision in Hopkinson v. Swaim, 284 Ill. 11. There the trustees were ordered to pay the income to the beneficiary, a daughter, “directly, free and exempt from the power and control of any husband and from liabilities for any debts or engagements.” This restriction clearly evidenced the intention of the testator that the husband of his daughter should have no control or power over her income; however, the daughter joined with her husband in making an assignment of her interest. The court held it invalid because of this restrictive provision. In other words, the assignment of the husband and daughter was precisely what the testator intended to prevent. The instant case is quite different. Here the testator intended that his grandchildren should have the benefit of the income from his estate upon the death of his son. The assignments are consistent with the intention of the testator as expressed in the will.'

Moreover, the will in the Hopkinson case, as noted in the opinion (page 20) had already been construed by the Supreme Court of Pennsylvania, the State where it was made, as creating a spendthrift trust, limiting the rights of the beneficiaries. Ewalt v. Davenhill, 257 Pa. St. 385.

While our Supreme Court has decided that restraints on the rights of creditors will be given effect, and also, that an expressed restraint on alienation will be enforced, in no case has it been held that an implied restraint will be enforced.

In Binns v. LaForge, 191 Ill. 598, the life beneficiary assigned her interest as security for her debt; a creditor sought to realize on this and was met with the claim that the assignment was invalid; there was no language in the will restricting alienation but the beneficiary claimed that the statute, ch. 22, sec. 49 (Cahill) denied to creditors of a cestui que trust the right to seize income in the hands of a trustee, hence her assignment to a creditor was void. The Supreme Court held that while a creditor could not seize the income, her voluntary alienation to a creditor was valid, saying that the statute “is not designed to protect the trust fund from the voluntary alienation of the cestui que trust, and there being no restriction in this will, there is no reason why Gertrude M. Talbot (the life beneficiary) might not in equity assign said income, or a part thereof, to James Ryan (the creditor) as security for a debt which she owed him.”

In O’Hare v. Johnston, 273 Ill. 458, the court had before it the question whether a certain trust was a spendthrift trust, with restraint upon alienation by the beneficiary, a son, of his interest in the trust. The court said that there was no language in the will to that effect, and, citing the fact that the testator in the same will had given the son large sums of money and had appointed him one of his executors, said that the testator would hardly have done this if he had considered the son a person not to be trusted with business matters, and refused to construe the trust document as a restraint upon alienation.

William Blair had complete confidence in the business ability of his son, as he named him as one of the executors and one of the trustees. All the circumstances indicate that William Blair did not intend to create a spendthrift trust but only to protect the trust property from involuntary transfers.

Kales on Future Interests, par. 742, page 861, says:

“A mere trusteeship, even though it is for the protection of the beneficiaries, ought not, as a matter of taste, if for no other reason, to be called a spendthrift trust.’ Only where there is added to the trusteeship express restraints on alienation is it justifiable to call the creation a spendthrift trust. Whether restraints on alienation, voluntary or involuntary, or both, are added ought to be determined by the application of the usual principles of construction to the language used. If .the restraint is not expressed, no amount of extrinsic evidence or speculation and conjecture as to the testator’s or settlor’s inducement ought to be permitted to inject it into the will or settlement.”

In Ames v. Clarke, 106 Mass. 573, the will contained a provision that no part of the bequest should be liable for the debts of the beneficiary; the beneficiary assigned his bequest to another; the validity of this assignment was, questioned, but the court said: “The proviso that it should not be liable for his (the beneficiary’s) debts while in the hands of the executor did not give the executor any authority to control his disposition of it nor deprive him of the right to dispose of it by his voluntary act. ’ ’

From all these decisions we draw the conclusion that the Illinois courts view with disfavor restrictions on alienation; that while restrictions specifically expressed will be enforced, if the restraint is not expressed no speculation or conjecture should be permitted to inject it into the will.

It is obvious that decisions in other cases involving different language can give us only general rules. “Cases on wills may serve to guide us with respect to general rules in the construction of devises in wills, but unless a case cited be in every respect directly in point and agree in every circumstance with that in question, it will have little or no weight with the courts, who always look upon the intention of the testator as the polar star to direct them in the construction of wills.” O’Hare v. Johnston, supra.

The words said to prohibit the assignments are, that the income should be paid to the testator’s wife and to his son “directly upon their separate order and receipt therefor, for their sole and separate use. . . . ” There is force in the suggestion that the word “order” means something other than a payment into the hands of the testator’s wife and son. The word “order” means a writing “requiring the party to whom it is addressed to deliver property of the person making the order to some one therein described.” 3 Bouvier’s Law Dictionary, Rawle’s Third Revision, 2423. The trustees were required to pay the income to the life beneficiaries without any order from them. That mandate was in the will itself. To pay the income to someone other than a beneficiary would require an order on the trustees signed by the beneficiary. The language of the will implies the very thing that has been done by the assignments.

It is important to note that the assignments to Mr. Blair’s children were to the same persons who were, under the will, remaindermen, and who, in all probability, would receive the trust property on the death of their father. The effect of the assignments 'is merely to accelerate the gifts of the grandfather, the testator, to his grandchildren. England v. England, 223 Ill. App. 549, and Tuttle v. Gunderson, 254 Ill. App. 552, involved cases where the will contained a clearly expressed restraint on voluntary alienation, but it was held in each ease the testator did not intend to exclude from participating in the income the members of the family of the beneficiary.

If the testator had intended to restrict voluntary alienation by his son, this could have been readily accomplished by the use of a very few words. That he did not use such words is strong evidence that he did not so intend. Words, even of doubtful meaning, shquld not be so construed as to inject an intention into the will manifestly contrary to that of the testator.

For the reasons indicated, we hold that the questioned assignments are valid, and the decree of the lower court is reversed and the cause remanded, with directions to enter a decree consistent with what is-said in this opinion.

Reversed and remanded with directions.

Matchett, P. J., concurs.

O’Connor, J., dissents.

Mr. Justice O’Connor

dissenting: In Hopkinson v. Swaim, 284 Ill. 11, the court said (p. 23): “There could be no such exemption from liability for debt if the beneficiary could convey or assign the income, for if she could do so it could also be seized in execution or attachment or reached by a creditor’s bill. ’ ’

In my opinion the Mopkinson case is not distinguishable from the case at bar and therefore the decree of the superior court should be affirmed.


author: Mr. Justice O’Connor

text:
    Clarence Hodge, Appellee, v. Globe Mutual Life Insurance Company, Appellant.
    Gen. No. 37,148.

      Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the October term, 1933.
    Rehearing denied March 19, 1934.
    Fulton, Fulton & Sheen, for appellant.
    Brown, Brown & Cyrus, for appellee; Sidney P. Brown, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, the beneficiary named in an insurance policy issued by the defendant on the life of Herbert L. Hodges, brought suit against the Insurance Company to recover $1,000, the face of the policy. There was a trial before the court without a jury and a finding and judgment in plaintiff’s favor for $1,000, and defendant appeals.

The record discloses that defendant Insurance Company had issued its policy insuring the life of Herbert L. Hodges for $1,000, in which his sister, Bessie A. Hodge, was named beneficiary; that afterward Bessie A. Hodge died and the policy was assigned or a new one issued in which plaintiff, her surviving husband, a brother-in-law of the insured, was named beneficiary.

Defendant filed an affidavit of merits in which it set np that the policy provided that it should not take effect if the insured was not in sound health when the policy was issued, or if it was made payable to a person having no insurable interest in the life of the insured; and it was alleged that when the policy was issued the beneficiary, his sister, had no insurable interest in the life of the insured, and therefore the policy was void.

A further defense pleaded was that in the application for the insurance the insured’s age was given as 43, when as a matter of fact he was 55, and therefore if there was any liability, it did not exceed $672.50, which would be the amount due under the policy on the assumption that the insured was 55 years of age when the policy was issued.

On the trial of the case, counsel for defendant waived all defense except that Bessie A. Hodge, sister of the insured, named in the .policy as originally issued, had no insurable interest in the life of her brother, and that when the policy was issued the insured was 55 years of age and not 43 as represented.

It is the law that one may insure his own life for the benefit of another having no insurable interest therein. Hawley v. Aetna Life Ins. Co., 291 Ill. 28. This rule is not controverted by either party, but defendant contends that the policy was taken out by Bessie, sister of the insured, and that she had no insurable interest in the life of her brother, and therefore the policy is void. Sec. 9, ch. 73, Cahill’s 1933 Statutes, p. 1657, provides that no insurance company shall issue a policy upon the life of a person in which the beneficiary named has no insurable interest. (This must be understood as meaning that one having no insurable interest in the life of another cannot procure a policy of insurance on such life. Hawley v. Aetna Life Ins, Co., supra.)

Plaintiff contends that the policy was taken out by the insured and not by his sister Bessie. The evidence shows that the application for the policy was signed by Bessie, and the questions and answers show that Bessie was making the application for her brother, and it was so understood by defendant Insurance Company; that the questions and answers are in reference to the insured and not to his sister. The application shows that insured was a rivet maker and his place of employment is given; that he was 43 years of age; that to one of the questions, “By whom will premiums be paid?” the answer written in was; “Sister,” and that similar information was conveyed when the question as to who was to be the beneficiary was answered by “Sister,” whose age was stated to be 41 years; that there was a blank line under which appeared “Signature of Applicant” and immediately following appeared in parenthesis, “Must be Life proposed or Beneficiary”; and it is said this indicates that a beneficiary was authorized to sign and fill out the application because the blank was prepared by the Insurance Company. Plaintiff further contends that the application blank shows that Bessie was making application for her brother because the blank called for the family history of the “applicant” and there were further questions to be answered if the applicant was a female, and those latter questions were not answered. And further, that part of the same blank was for the medical examiner’s certificate, in which the medical examiner certifies that on the 17th of August, 1927, he made “in private, a personal examination of the above named Applicant.”

We think the court might well find that Bessie filled out the application and was acting on behalf of her brother. It is obvious that there was no deception practiced and that the Insurance Company thoroughly understood all of the. facts in the case; and the Insuranee Company ought not now be permitted to say that the policy was applied for by Bessie, the sister of the insured, that she had no insurable interest in the life of her brother, and that the policy was void for this reason. Moreover, we are further of the opinion that it may not be said, as a matter of law, that Bessie had no insurable interest in the life of her brother because the uncontradicted evidence is that the brother stayed at Bessie’s home for months at a time, covering a period of a number of years. While it has been held by some courts that mere relationship without definite pecuniary interest is not sufficient to constitute an insurable interest, yet the weight of authority “is" in favor of a more liberal rule which recognizes relationship alone as sufficient if it is close enough to indicate that the policy has been obtained in good faith and not for the purpose of speculation upon a hazard in which the insured has no interest.” 25 Cyc. p. 703.

We hold that it cannot be said that Bessie, the insured’s sister, did not have an insurable interest in the life of her brother under the facts in the record, and the fact that she and her husband, the plaintiff, paid the premiums does not alter this conclusion.

■ Defendant further contends the evidence shows that at the time the policy was issued plaintiff was 55 years of age and not 43 as stated in the application and in the policy, and therefore the amount of the liability under the policy was $672.50.

Plaintiff, called under section 33 of the Municipal Court Act by defendant, testified that he did not know the insured’s exact age but that he always thought Bessie was five or six years older than the insured. The application and the policy both give insured’s age as 43 and the application states that Bessie was 41 years of age. The witness further testified that Bessie died February 14, 1931, and defendant offered in evidence the records from the Bureau of Records of Vital Statistics showing that Bessie was 54 years old at the time of her death. The witness further testified that the insured died November 8, 1932, and if the insured was five or six years young;er than Bessie, he would be about 48 or 49 years old when Bessie died. The policy is dated August 15, 1927, and states on its face that the insured was 43 years of age. He died a little more than five years afterward, so he would be between 48 and 50 years old at the time of his death.

But defendant contends that as a matter of fact deceased was 60 years old when he died and therefore about 55 years when the policy was issued, and that this would have been shown by the copy of the death certificate, certified by the Registrar of Vital Statistics which was offered by defendant, but erroneously excluded by the court. In this certificate it is stated that the insured died November 7 or 8,1932, and that he was 60 years old. The statute requires that death certificates be made out and filed. Sec. 7 of chap. 65a, p. 1533, Cahill’s 1933 Statutes, H23, provides: “The' certificate of death shall contain at least the items of the Standard Certificate of Death, approved and adopted by the United States Bureau of the Census. The personal particulars shall be authenticated by the signature and address of the informant, who shall be the nearest of kin or other competent person acquainted with the facts. The medical certificate shall'be made and signed by the legally qualified physician, if any, last in attendance or by the coroner.”

Section 9 of the Act provides: “That the undertaker or person acting as undertaker shall be responsible for obtaining and filing the certificate of death with the local or sub-registrar of the district in which the death occurred, . . . He shall obtain the personal and statistical particulars required from the nearest of kin, or person best qualified to supply them, over the signature and address of his informant.”

By section 20 of the Act, it is provided that a certified copy made by the proper official of the record of any death shall be prima facie evidence in all courts of the facts therein stated.

The certificate offered in evidence by defendant, above mentioned, names the informant as “Hospital Record — I. Wachtel, ’ ’ who was the registrar. This certificate shows that the information as to the age of the insured at the time of his death was obtained by the registrar from the hospital record. We have been unable to find any provision of the statute — and none has been pointed out — that such offered information obtained from hospital records is admissible in the absence of any evidence that the records speak the truth. In these circumstances we think the certificate was properly excluded. Wright v. Upson, 303 Ill. 120. In that case, which involved a will contest, it was held that the record of the hospital where the testatrix was a patient during her last illness was not admissible, there being no proof of its correctness. The court there said (p. 144): “The admission of the entire record (of the hospital) by the court was erroneous for the further reason that the hospital record was the product of two or more registered nurses, each nurse making entries only at the time and for the time during which she nursed the testatrix. Only one nurse, Miss Erickson, was called to testify as to the correctness of the entries made by her. . . . There is no such proof of the entries made by the other nurse. . . . If the hospital record is admissible at all it is for the same reason that books of account are admissible and the same character of proof is required, and all persons who make entries therein are required to testify to their correctness before they are admitted in evidence. ’ ’

In-the instant case the certificate shows that the information as to the deceased’s age was obtained from the hospital. This was not a compliance with the statute and was therefore properly excluded.

Defendant further contends that the court should have set aside the judgment and awarded a new trial because within 30 days after entry of the judgment defendant moved the court to vacate the judgment, and the motion was supported by an affidavit of the widow of the insured, in which it was stated that the mother of the insured “told this affiant that Herbert was born on the 29th day of February, 1872”; that the affiant had seen entries in the family Bible giving the same date of the insured’s birth but that affiant was unable after diligent search to find the Bible. The affiant further stated that she did hot know of the suit in the instant case until about the 9th of June, 1933, when she was requested by plaintiff’s sister to appear as a witness and testify that she did not know the age of the insured.

The motion of defendant, which was supported by the affidavit above mentioned, stated that counsel for defendant had “attempted to communicate with the said Theresa Hodges (the affiant) sending investigators to her home in an attempt to gain admission thereto for the purpose of discovering evidence, all of whom were refused admission. ’ ’

We think the court did not err in denying the motion. Had the witness been produced and testified to the facts set up in her affidavit, it would be far from establishing the age of the insured. At most it would be merely cumulative. Moreover, we are clear that defendant failed to show due diligence. The Insurance Company knew where Theresa Hodges lived and stated that they attempted to communicate with her and sent investigators to her home but could not gain admission. This we think is entirely too indefinite. Just what the investigators did or when they called is not disclosed. There is no showing that defendant tried to subpoena this witness.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Matchett, P. J., and McSurely, J., concur.


text:
    John H. Hagerty et al., Appellees, v. City of Chicago et al., Appellants.
    Gen. No. 37,427.
    Opinion filed March 5, 1934.
    Heard in the first division of this court for the first district at the December term, 1933.
    Rehearing denied March 19, 1934.
    William H. Sexton, Corporation Counsel, for appellants; Leon Hornstein and Michael C. Zacharias, Assistant Corporation Counsel, and Stephen Love, of counsel.

      Vernon R. Loucks, A. J. Hennings and Sims, Stransky & Brewer, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

Complainants, who are taxpayers and property owners along Crawford avenue, a north and south street extending across the City of Chicago, filed their bill of complaint to enjoin the city and its officers from carrying into effect an ordinance passed by the city council and approved by the mayor which changed the name of Crawford avenue to Pulaski Road. A temporary injunction ivas issued as prayed for in the amended verified bill and defendants prosecute this appeal.

So far as it is necessary to state the facts for the purpose of this decision, they are that in 1889 certain property was annexed to Chicago and the street in question was named after Peter Crawford, the first settler in that section, which was then known as Crawfordville; that the street has been continuously known as Crawford avenue except for a short time when it was officially changed to 40th avenue, but on account of the great confusion this change caused to the public and damage to the property owners along the street, it was again officially renamed Crawford avenue in 1913. 'G-enerally speaking, the further allegations are that a number of property owners and tenants along the street have gone to great expense in advertising their businesses by radio and otherwise, and have derived large revenue from such businesses, which will be greatly reduced, if not entirely wiped out, on account of the confusion as to location of the particular businesses if the name of the .street is changed to Pulaski Road; that the owners of 76 per cent of the property fronting on the street have protested in writing to the city council against the change; that no one on the street, so far as complainants are advised, was in favor of the change; that many public, private and civic organizations of the city adopted resolutions protesting against the change; that when the ordinance in question was being considered by the city council it was debated by those who favored and those who opposed it; that the only reason advanced in support of the change was that “certain persons of Polish birth in the City of Chicago” desired to honor a national hero, a soldier of the Revolutionary, war, and thereby gain recognition for the Polish people, and that the city council in passing it did so for political purposes only.

It was further alleged that it will cost several thousand dollars of the taxpayers ’ money to carry the ordinance into effect by changing street name plates, etc., and that the city’s finances are such as to make the expense wholly unwarranted.

While there is no order referring the matter to a master in chancery, we find in the abstract and record what is designated a “decision” of a master, which takes up 15 printed pages of the abstract and is in the form of an opinion. The bill is analyzed, numerous authorities are cited and discussed, and there are findings of fact which purport to be made by the court; there is no recommendation to the chancellor, but the “decision” concludes: “Accordingly the defendants (naming them) are hereby restrained and enjoined from carrying out into effect the ordinance purporting to change the name of 6Crawford Avenue’ to ‘Pulaski Road’ and from taking down and removing the street name plates on said Crawford Avenue and from erecting any other street name plates until the further order of this court.”

The power of a master is ministerial and not judicial. Hards v. Burton, 79 Ill. 504; Bottom v. City of Edwardsville, 308 Ill. 68. The law does not contemplate that a master prepare an opinion; Manowsky v. Stephan, 233 Ill. 409; nor can he issue an injunction; Bottom v. City of Edwardsville, supra. However, the temporary restraining order, from which this appeal was prosecuted, was entered by the chancellor.

One of the powers conferred on city councils by the state legislature is to name and change the name of any street. Sections 1 and 23, Article 5, chapter 24, pages 323 and 324, Cahill’s 1933 Statutes. By section 23 city councils are empowered “To name and change the name of any street, avenue, alley or other public place.”

The defendants contend that the authority to change the name of streets is exclusively the province of city councils; that the act is legislative and not judicial. This contention is admitted by complainants with the qualification that the action of the city council must be reasonable and that whether an ordinance naming or changing the name of a street is reasonable, is judicial.

"Where an ordinance is passed by a city council pursuant to an express power granted by the legislature, it cannot be set aside by courts because they may think it unreasonable. Block v. City of Chicago, 239 Ill. 251; City of Chicago v. Ripley, 249 Ill. 466; City of Litchfield v. Thorworth, 337 Ill. 469.

In the Block case Mr. Chief Justice Cartwright, in delivering the opinion of the court, said (p. 260): “Where an ordinance is passed in pursuance of an express power to pass an ordinance of that character, it cannot be set aside by the courts because they may deem it unreasonable. (City of Peoria v. Calhoun, 29 Ill. 317; Dillon on Mun. Corp., sec. 262.) ”

Under the authorities above mentioned, we hold that the power to name and chang'e the name of streets in Chicago is exclusively in the city council and that in the instant case the act of the city council in passing the ordinance, which was approved by ■ the mayor, changing the name of Crawford avenue to Pulaski Road is a legislative act not subject to review by the courts. This same view has been announced by the Supreme Courts of New Jersey and Washington. Darling v. Jersey City, 80 N. J. L. 514; Eldridge v. Fawcett, 128 Wash. 615.

In the Darling case it was sought to set aside an ordinance of the Board of Trustees and Water Commissioners of Jersey City, by which a street was named ‘ ‘ Cuneo Place ’ ’ which had theretofore been known as “Booraem avenue,’’ and it was held that the act was legislative and not judicial. In that case it was said that the legislature had conferred upon the Board of Street and Water Commissioners exclusive authority over streets and “ ‘all matters and things in anywise appertaining to the use’ thereof . . . ”; that “Streets are named because it has been found to be useful, i. e., to add to their use, not of course in the same sense that a pavement adds to such use, but in the sense of a matter that appertains in some wise to such use. . . . The contrary cannot well be urged by the prosecutor in view of his claim that the calling of this street by one name rather than by another materially affects its use for the purposes for which he has built upon it. We conclude that the power to name the streets of Jersey City passed to and resides in its board of street and water commissioners.

“The basis of the prosecutor’s other contention is that the action of which he complains was judicial. We think this is not so in fact.” The court then says the fact that the street had been known by another name although not officially, “did not abrogate the authority granted by the legislature to the local municipal board either by frustrating the exercise of its legislative power or by conferring upon the prosecutor a vested right to have such power exercised in a particular way. The exercise of such power, in the present case, may be one for which we cannot discover any adequate reason without its being unreasonable in the sense that subjects it to judicial supervision, either on the ground that it was uncalled for and unwise or because of the two names one was the more appropriate or euphonious. These are'legislative questions, and the right of a citizen to have his representatives in a legislative body act wisely and properly is a political and not a legal right and to be redressed accordingly. ’ ’

So, in the instant case, whether the aldermen acted wisely and properly is a political and not a legal question.

In the Eldridge case, supra, it was held that the City of Tacoma had the right to change the name of a residential street by an ordinance and that the act was legislative and not judicial. In that case the name of a residential street in Tacoma was changed by an ordinance without the consent of the owners of property abutting on the street and on appeal to the Supreme Court by objecting owners it was held that the courts could not interfere. The court there referred to a statute of that State which provided that any city adopting a charter under the provisions of the statute should have such powers as are usually exercised by municipal corporations of like character. The City of Tacoma afterward adopted a charter, section 4 of which is as follows: “The City of Tacoma shall have power: ... 44. To provide for naming streets and numbering houses.” The court held that this gave power to the city to change the name of the street in question, and continuing said (p. 617): “Considerable complaint is made that the original name of the street was once changed, and that then the city repealed the ordinance making the change and restored the original name, now changed once more. The right to change the name of a street, however, is an attribute of legislative power which does not become exhausted by a previous exercise of that power.”

Complainants, in support of their contention that a city council, in passing an ordinance changing the name of a street, must act reasonably and that the reasonableness of such an ordinance may be inquired of by the courts, cite the cases of Anderson v. Dublin, 15 Law Rep. (Ireland) 410, and Miller v. Cincinnati, 10 Ohio Dec. (reprint) 423.

In the Anderson case suit was brought to restrain the corporation of Dublin from carrying into effect a resolution changing the name of Sackville street to O’Connell street. The court held that whether the proposed change was made in good faith could be inquired of in a judicial proceeding. We are not advised by that case what authority was vested in the city authorities over streets, nor are we convinced of the soundness of the reasoning of the court. But in any event it is not in accord with the law of Illinois, New Jersey or Washington, or any other state of the Union, so far as we are advised.

The decision in the Miller case, supra, was by the trial judge, and the editorial note of the case consists of but a single paragraph. It was there said (p. 424): “The superior court of Cincinnati has decided that the established name of a street cannot be changed by a city council, except on petition of the property holders on such street. The name of Fairfield avenue, Cincinnati, had been changed by the city council to Shenendoah avenue, and that of Warner street to Dryden street. . . . I. J. Miller, the well known lawyer, lives on Fairfield avenue, and had built himself a home there which he named ‘Fairfield Place.’ He filed a petition asking for a perpetual injunction against the council from changing the name of the avenue, averring that the change had been attempted without any petition for such change having been filed by any property owner on Fairfield avenue or- on Warner street, and that no good cause for such a change existed. The city solicitor demurred. Judge Moore overruled the demurrer, and the city not desiring to plead further, a decree was granted perpetually enjoining the proposed change.” It is obvious that the facts and the law governing that case are in no way analogous to the facts nor to the law which is applicable to' the case at bar. Under the Ohio law, the name of a street could not be changed except upon a petition by owners of property abutting the street, and it was alleged no such petition had been filed. This was admitted by the city solicitor on demurrer. Obviously, if the law required a petition of the property owners as a prerequisite to the changing of the name of a street, and no such petition was filed, the change would be wholly unwarranted. There is no such requirement in our law, and the case is wholly inapt.

Holding as we do that the change of the name of a street is legislative and not judicial, the order of the circuit court of Cook county is reversed.

Order reversed.

Matchett, P. J., and McSurely, J., concur.