text:
    Joseph Haase et al., appellants, v. The People of the State of Illinois ex rel. Birel Milburn et al., appellees.
    Gen. No. 8,764.

      Opinion filed October 13, 1933.
    Rehearing denied January 4, 1934.
    La Forgee, Samuels & Miller, O’Hair & McClain and F. C. Van Sellar, for appellants. Walter S. Lamen, State’s Attorney, Wilber H. Hielcman and Craig & Craig, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Niehaus

license: Public Domain

text:
    H. H. Messick, appellee, v. J. W. Hutton, appellant.
    Gen. No. 8,767.
    Opinion filed October 13, 1933.
    Kasserman & Kasserman and McDavid, Monroe & Mann, for appellant. Henry H. Morey, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Arthur H. Gottschalk, trustee in bankruptcy for Davis, Smith & McAnulty, Inc., bankrupt, appellant, v. J. F. Leonard, appellee.
    Gen. No. 8,773.
    Opinion filed October 13, 1933.
    W. St. J. Wines, for appellant; W. Edgar Sampson, D. L. Giffin and C. Terry Lindner, of counsel. Harlington Wood and Edward Free, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Isabelle W. Shumway, appellant, v. Hiram M. Shumway and Dorice D. Shumway, appellees.
    Gen. No. 8,778.
    Opinion filed October 13, 1933.
    Rehearing denied January 4, 1934.
    W. B. McBride and Dryer & Brown, for appellant. John E. Hogan, Harold S. Williams and Leal W. Reese, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Davis

text:
    Martha Ferguson, appellant, v. Clarence Ferguson, appellee.
    Gen. No. 8,697.
    Opinion filed October 13, 1933.
    J. B. Jiskra, for appellant. Pratt, Heffernan & Ramseyer, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Guy R. Barrow, appellant, v. Gertrude Phillips, appellee.
    Gen. No. 8,705.
    Opinion filed October 13, 1933.
    Thompson & Martensen and C. S. Schneider, for appellant. Herrick & Herrick, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Marshall Nichols, administrator of the estate of Mildred Nichols, deceased, defendant in error, v. Earl Traughber, plaintiff in error.
    Gen. No. 8,734.
    Opinion filed October 13, 1933.
    Hogan & Coale, for plaintiff in error. Hershey & Vogelsang and H. S. Williams, for defendant in error.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Anna G. Whipple, defendant in error, v. William L. Harris, trading as “Community Bakery,’’ plaintiff in error.
    Gen. No. 8,747.
    Opinion filed October 13, 1933.
    G. G. Ginnaven, for plaintiff in error. John P. Snigg, for defendant in error.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Russell Satterfield, a minor, by S. J. Satterfield, his next friend, appellee, v. Harley Freeman, appellant.
    Gen. No. 8,754.
    Opinion filed October 13, 1933.
    Rehearing denied January 4, 1934.
    Costigan & Wollrab, for appellant. Pietseh & Fleming and Hall, Martin, Hoose & De Pew, for appellee; Edward Barry, Jr., of counsel.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Pearl Rigdon, appellee, v. Abraham Lincoln Life Insurance Company, appellant.
    Gen. No. 8,763.
    Opinion filed October 13, 1933.
    Gunn, Penwell & Lindley, for appellant. Charles Troup, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    The Wichita Flour Mills Company, trading as The Willis-Norton Company, appellant, v. Oscar Shawver, appellee.
    Gen. No. 8,772.
    Opinion filed October 13, 1933.
    Harvey Gross, for appellant; Glen A. Wisdom, of counsel. C. M. Purdunn and S. M. Scholfield, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


text:
    Oscar Nelson, auditor of public accounts of the State of Illinois, complainant, v. John B. Colegrove and Company State Bank et al., defendants. First National Bank of Chicago, appellant, v. R. Digby Large, receiver of the John B. Colegrove and Company State Bank, appellee.
    Gen. No. 8,776.
    Opinion filed October 13, 1933.
    Hogan & Coale and Provine & Williams, for appellant. Oscar J. Putting, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    Vena Roberts, defendant in error, v. T. W. Doss, plaintiff in error.
    Gen. No. 8,702.
    Opinion filed October 13, 1933.
    W. A. Doss, Carl I. Glasgow and C. R. Patterson, for plaintiff in error. Sentel & Cochran, for defendant in error.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Nellie L. Gregory, appellee, v. City of Champaign, appellant.
    Gen. No. 8,731.
    Opinion filed October 13, 1933.
    Rehearing denied January 4, 1934.
    Knotts & Knotts and T. E. Lyons, for appellant. Dobbins & Dobbins and R. F. Dobbins, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Vena Roberts, appellee, v. W. A. Doss, appellant.
    Gen. No. 8,739.

      Opinion filed October 13, 1933.
    W. A. Doss, Carl I. Glasgow and C. E. Corbett, for appellant. Sentel & Cochran, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Central Illinois Electric and Gas Company, appellant, v. Central Utilities Corporation, appellee.
    Gen. No. 8,750.
    Opinion filed October 13, 1933.
    Acton, Acton & Baldwin and Frank P. Abbott, for appellant. Gunn, Penwell & Bindley, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Clara Upton, appellee, v. The Security Benefit Association, appellant.
    Gen. No. 8,756.
    Opinion filed October 13, 1933.
    Rehearing denied January 4, 1934.
    Roger E. Chapin, A. W. Fulton and Jos. F. Sheen, for appellant. John G. Friedmeyer, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Georgia D. Nunes, plaintiff in error, v. National Fire Insurance Company of Hartford, defendant in error.
    Gen. No. 8,759.
    Opinion filed October 13, 1933.
    Hairgrove & Absher, for plaintiff in error. Frank R. Sullivan and T. J. Sullivan, for defendant in error.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Per curiam.

text:
    Glenn Seymour, administrator of the estate of Walter Seymour, deceased, appellee, v. Chicago and Eastern Illinois Railway Company, appellant.
    Gen. No. 8,680.
    Opinion filed October 13, 1933.
    Acton, Acton & Baldwin, for appellant; K. L. Richmond and W. M. Acton, of counsel. Jesse Young and Charles Troup, for appellee.
   Per curiam.


text:
    Nanno Tipsword, Appellee, v. T. W. Doss, Appellant.
    Gen. No. 8,738.

      Opinion filed October 13, 1933.
    Rehearing denied January 4, 1934.
    W. A. Doss, Carl I. Glasgow, C. E. Corbett and L. R. Herrick, for appellant.
    E. J. Ha weaker, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

Appellant obtained a judgment by confession on August 17, 1932, in the circuit court of Piatt county for $3,941.32 and costs against James Byron and his sister, Anna Rimby, who resided on a farm leased by J ames Byron near Monticello, Illinois.

An execution was issued on said judgment and was served by the sheriff on August 18, 1932, and levied upon the property involved in this proceeding. On August 30, 1932, W. H. Conway, sheriff, caused a notice of sheriff’s sale to be posted, advertising said sale to be held at 1:00 p. m. on September 9, 1932, and on that day sold the property levied upon.

On September 6, 1932, Nanno Tipsword, a daughter of Ann Eimby, caused a notice of claim of ownership to the property levied upon to be served upon said sheriff, requesting him to notify the judge of the county court of said county of her claim, and the county judge, upon receiving such notice, set said claim for hearing on September 12, 1932, at 9:00 o’clock a. m. Said cause was tried on September 16, 1932, and the jury returned a verdict in favor of appellee. A motion for new trial was overruled, and judgment rendered upon the verdict on September 27, 1932, finding that appellee was the owner of the property, and directing the sheriff to forthwith return the same to her, from which judgment appellant perfected this appeal.

On April 4, 1933, appellee made a motion praying that an order be entered affirming said judgment on the grounds that the abstract of record did not comply with the rules of this court, in that it did not contain an abstract of the reasons assigned and argued by appellant in her motion for a new trial.

The original bill of exceptions failed to include the motion for a new trial, that was made in the county court on September 19, 1932. Appellant procured an order from the county court amending the original bill of exceptions by including such motion for a new trial and a supplementary transcript of the record, containing said motion for new trial, and an abstract thereof was filed herein by leave of court on June 20, 1933; and, for this reason, the motion of appellee praying that the judgment of the lower court be affirmed is denied.

On December 28,1932, appellee filed a motion accompanied by an affidavit in support thereof to dismiss this appeal, based upon two grounds, which motion was by order of the court taken with the case, the first ground urged for the dismissal of the appeal being that the order, entered September 27, 1932, found that ISTanno Tipsword was the owner of said property and directed W. H. Conway, sheriff, to forthwith return the same to appellee, and that he had not perfected any appeal from said order.

When an execution is levied by a sheriff upon personal property, and the same is claimed by any person other than the defendant in the execution, upon such claimant giving notice in writing to the sheriff of his claim, it is the duty of such sheriff to notify the county judge of said claim, and it then becomes the duty of the county judge to cause the proceedings to be entered on the docket of the county court, and the claimant shall be made plaintiff in the proceedings before the county court and the plaintiff in the execution shall be made defendant.

This proceeding is a controversy between the plaintiff in the execution and the claimant of the property levied upon, and they are the real parties in interest; and the sheriff stands indifferent and ready to deliver the property to the claimant, if so ordered, or to proceed to sell the property levied upon should the claimant fail to establish his claim.

The sheriff was not a necessary party to the proceeding, and for that reason was not required to appeal from the judgment of the county court.

The other ground upon which the motion to dismiss is based is that the sheriff sold all of the property involved in this proceeding except certain items, returned by him to the claimant on the order of appellant; and that no order this court can make, nor any order the trial court can make, can possibly affect the subject matter involved in the litigation; that the appellant, by her own acts, placed it out of the power of the county court or the Appellate Court to make any proper order in reference to the custody or disposition of the same.

On a trial of right of property the only question to be decided is whether the property belongs to the claimant. Marshall v. Cunningham, 13 Ill. 20. The fact that the property levied upon was sold by the sheriff, at the instance of the defendant in this proceeding, would in no way affect the issues to be determined by a trial of the cause. If the sale had been made and the proceeds applied towards the satisfaction of the execution, with the consent of the claimant, then there would be no question for the court to determine; but in this proceeding no action of the sheriff, in disposing of the property, could defeat the right of the claimant to have her claim of ownership determined by the court.

The property having been sold prior to the trial in the county court, if the claimant was right in her contention, then that court should have declined to have tried the case, and the judgment should be reversed and the cause remanded to the county court with directions to dismiss the same.

For the reasons given the motion of appellee to dismiss the appeal is denied.

On the trial of the cause appellee introduced in evidence a bill of sale, of date August 9, 1932, from Ann Eimby and James Byron to herself, by the terms of which said parties sold and delivered to appellee all of the chattel property owned by them and including their interest in the growing crops upon the farm upon which they resided.

Appellee testified that in 1929 she and her mother and her uncle, James Byron, made arrangements whereby she should be paid wages. It was agreed that she should be paid by the year, averaging $250; and that she had performed services in the house and on the farm during the period of the four years that she lived there. A number of neighbors testified to having seen her working on the farm, and fixed the value of services such as she performed at from $20 to $35 per month. There is no dispute as to what services she performed, or as to what her services were fairly worth.

Appellee claims to be the owner of the property conveyed to her by the terms of the bill of sale, and testified that at that time there was the sum of $1,000 due her from her mother and uncle for services performed, and that it was agreed that the property was fairly worth $1,000, and that her mother and uncle had conveyed the property to" her in consideration of the amount due her for services.

The evidence shows that after the bill of sale was executed an arrangement was made whereby James Byron was allowed to use the property until he got his corn harvested, and he used the property just as he had been doing.

Appellant introduced in evidence the execution upon which the sheriff made his levy upon the property in dispute. Her claim is that James Byron and Ann Rimby transferred in bulk to appellee all of their goods and chattels, and that they were used in carrying on the business of farming in which the said James Byron was engaged on the farm upon which said parties resided, and that she was a creditor of said James Byron and Ann Rimhy at the time the property was transferred to appellee, and that the provisions of the Bulk Sales Law, Cahill’s St. ch. 121a, ¶ 1 et seq., were not complied with; and that, therefore, said transfer was fraudulent as against her. She further charges that the bill of sale was made with the intention of hindering and delaying her in the collection of the indebtedness due her from James Byron and Add Rimby, and that appellee permitted them to remain in possession of the property conveyed by the bill of sale, after the execution and delivery of the same, to the same extent as far as the general public is concerned as existed for two years prior to August 9,1932; and that appellant had no notice of the bill of sale until after the levy of the execution; and, because of such facts, such sale and transfer was fraudulent and void as to the creditors of the vendors.

The Bulk Sales Act of 1913, Cahill’s St. ch. 121a, ¶ 1 et seq., only makes sales or transfers in bulk of the major part or the whole of the stock of merchandise, or other goods and chattels of vendors fraudulent as to those persons who were creditors at the time of the sale or transfer; and for this reason it was incumbent upon appellant to offer evidence to show that her judgment upon which execution issued was obtained upon indebtedness owing to her at the time such property was so transferred. Although there is no evidence in the record as to when the note upon which judgment was taken by confession was given or as to whether, at the time of the sale, appellant was a creditor of the vendors, yet that fact seems to be conceded by appellee and no complaint is made because of a failure on the part of appellant to make such proof.

It has been held that the Bulk Sales Act of 1913, Cahill’s St. ch. 121a, ¶ 1 et seq., applied when a vendor who was engaged in farming and dairying on a rented farm sold in bulk all of his livestock and agricultural implements and where no attempt was made to comply with the provisions of the act, the sale was declared void as to creditors. Weskalnies v. Hesterman, 288 Ill. 199. It was, therefore, incumbent upon appellee not only to show that a sale and transfer of the property in question was made to her, but also as to any creditors of the vendors to prove that the provisions of the act, requiring the vendors to make a statement under oath, had been complied with, as the burden of the proof was upon claimant to prove her right to the property. Munson v. Commercial State Bank, 246 Ill. App. 368; National Cash Register Co. v. Clyde W. Riley Advertising System, 329 Ill. 403.

Appellee says in her brief that there are only two issues presented by this appeal, the first of which has been disposed of by denying her motion to dismiss the appeal. The other issue is, Did the trial court err in holding that property bartered and exchanged from a debtor to a creditor for a debt, bona fide due and owing, could not then be levied upon and taken and sold by a judgment creditor without first establishing his right so to do by some form of action such as a creditor’s bill, attachment or garnishment?

Appellee’s position is that where it is claimed that a sale in bulk of vendors’ property is fraudulent and void as against creditors, they should proceed by some appropriate form of action such as a creditor’s bill, attachment or garnishment; and that such creditors cannot proceed by obtaining a judgment against vendors on their claim and then levy an execution and sell the property.

The trial of right of property, as provided by the statute, is merely another form of an action of replevin without formal pleadings. Sellers v. Thomas, 185 Ill. 384, 386.

When a judgment is obtained by a creditor and an execution is issued and levied upon the property sold in violation of the terms of the Bulk Sales Act, Cahill’s St. ch. 121a, ¶ 1 et seq., and some person other than the defendant in the execution claims the property and gives notice, and a trial of the right of property is resorted to, the question for decision is as to whether the property in question belongs to the claimant. If it is claimed that the Bulk Sales Act is violated by the sale in bulk of vendor’s property, without complying with the terms of the act, and that the same is fraudulent and void as to the creditor, and an action of replevin is resorted to, the same question is presented for determination; or if the judgment creditor proceeds ' by garnishment, then the question is as to whether the garnishee has any effects or estate of the defendant in his hands; and in each case, the same question as to whether the creditor has the right to satisfaction out of the property sold in violation of the terms of the Bulk Sales Act is decided. The action of garnishment is the usual procedure, as the same lies whether the purchaser has the goods in his possession at the time or has disposed of them.

In the case of Weskalnies v. Hesterman, supra, a bill of sale was made conveying all of the property of vendor to his son. A creditor obtained a judgment against the vendor and an execution was issued and levied on the property as the property of the vendor, the creditor claiming that the sale was void under the Bulk Sales Act. The son, instead of resorting to a trial of right of property, replevined the same; and the court held the sale fraudulent as to the creditors of vendor, and that the right of possession of the property was in-the sheriff by virtue of the levy of the execution.

In the case of Larson v. Judd, 200 Ill. App. 420, a judgment by confession was obtained, an execution levied on the property sold by vendor, which was claimed to have been in violation of the Bulk Sales Act, and a trial of right of property had, just as in this case. No good reason can be given why a creditor cannot proceed by judgment and levy of an execution on the property claimed to have been sold and transferred in violation of the Bulk Sales Act, while said property is in the hands of vendee.

It is further claimed by appellee that the transaction was not a sale, but was a barter and exchange for a debt bona fide due and owing, and would not, in fact, be called a sale but would be a payment of a debt. Section 1 of the Bulk Sales Act (Cahill’s St. ch. 121a, ¶ 1) provides that a sale, transfer, or assignment in bulk of the major part or the whole of a stock of merchandise, or other goods and chattels of the vend- or’s business, otherwise than in the ordinary course of trade, shall be fraudulent and void against creditors unless vendee shall, at least five days before the sale, receive a complete list of the creditors of vendor and shall mail notice to them as therein provided.

In the case of Talty v. Schoenholz, 224 Ill. App. 158, the court in construing this section says: “A ‘sale’ is a transmutation of property from one man to another in consideration of some price or recompense of value. II Blackstone, 446. It is a transfer of the absolute or general property in a thing for a price in money. Benjamin, on Sales, sec. 1. A ‘sale’ is the passing of the title and the possession of any property for money which the buyer pays or promises to pay. People v. Law and Order Club, 203 Ill. 127. The word ‘sale’ had a well defined legal signification and, in the absence of anything to the contrary, it will be assumed that the word is intended to have its usual signification. Siegel v. People, 106 Ill. 89. A ‘transfer’ is defined by Bouvier as ‘the act by which the owner of a thing delivers it to another person, with the intent of passing the rights which he has in it to the latter.’ The same authority defines an ‘assignment’ as ‘a transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein.’ The terms, ‘sale,’ ‘transfer’ and ‘assignment’ in the Bulk Sales Act are used in their well-known legal signification.”

The purpose of the statute is to prevent a debtor from selling, transferring or assigning the major part or the whole of his stock of goods in bulk without giving his creditors notice of such intended sale; and it does not make much difference what the consideration is, whether adequate or not, but it is the parting with the title by the vendor without the knowledge of the creditor that the statute makes fraudulent and void. Even though you term this transaction a barter and exchange for a debt bona fide due and owing, yet the legal effect was to transfer the title to the property to the vendee for a consideration, and as such would clearly come within the provisions'of this statute.

Appellee tried her case on the theory that the provisions of the Bulk Sales Act did not apply, and the court, at her instance, gave the following instruction:

“You are instructed that if you find from a preponderance of all the evidence in this case that, on or about August 9, 1932, Ann Rimby and James Byron, for a valuable consideration and in good faith did sell, barter or exchange with Nanno Tipsword the goods and chattels described in the claimant’s claim herein, the ordinary course of trade or dealing, or exchange same for amount due for work, labor, and services rendered to them, the said James Byron and Ann Rimby, by the same Nanno Tipsword, then in the event of the proof you should find for the claimant. ’ ’

This instruction should not have been given for the reason that it directed a verdict for appellee without requiring the jury to consider whether the transaction was a violation of the Bulk Sales Act, or whether or not the bill of sale was made with the intention of hindering and delaying appellant in the collection of the indebtedness due her from James Byron and Ann Rimby.

Appellant filed a written motion for a new trial, specifying the points relied upon, and by so doing waived all points not specified in her said motion. Yarber v. Chicago & A. Ry. Co., 235 Ill. 589, 603.

No point having been made by her that the court erred in giving to the jury appellee’s instruction number four, the giving of the same cannot be assigned as error in the Appellate Court, and the judgment cannot be reversed on that ground.

Appellant insists that the court erroneously refused to give the following instruction:

“The Court further instructs the Jury on the above provision of the Statute that the same applies to the sale claimed to have been made in this case by James Byron and Ann Bimby to the Claimant, if you further believe by a preponderance of all the evidence that at the time, to-wit: on August 9th, 1932, that the said sale was made, that the property thereby sold constituted and was more than one-half of all the personal property that the said Ami Bimby and James Byron then and there owned and possessed.

“The Court further instructs the Jury that the Statute quoted herein entitled ‘Sale of Chattels in Bulk,’ governs the sales by persons engaged in farming, the same as persons engaged in mercantile business affairs. ’ ’

No instruction was given setting forth the provisions of the Bulk Sales Act to which this instruction referred; it also assumed that a sale was made, while appellee contended that the transaction was not a sale, and it informed the jury that the Bulk Sales Act applied, if at the time the sale was made, the property sold constituted and was more than one-half of all the personal property owned by James Byron and Ann Bimby, although such sale would not be in violation of the act, unless it was also made “otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor’s business.”

Whether there was a sale, and whether the property sold constituted the major part or the whole of the property owned by the vendors, and also whether the sale was made “otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor’s business” were questions to be determined by the jury after considering the evidence. It was not error to refuse this instruction.

The verdict of the jury being contrary to the law and the evidence in the case, the cause must be reversed and remanded and for that reason it is unnecessary to consider as to whether the transfer was made with the intention of hindering and delaying appellant in the collection of the indebtedness due her from the vendors of this property.

Reversed and remanded.


text:
    Ann Rimby and James Byron, Appellees, v. W. A. Doss, Appellant.
    Gen. No. 8,760.
    Opinion filed October 13, 1933.
    Rehearing denied January 4, 1934.
    L. R. Herrick, Carl I. Glasgow and C. E. Corbett, for appellant.
    E. J. Ha weaker and N. E. Hutson, for appellees.
   Mr. Justice Davis

delivered the opinion of the court.

This suit was commenced by appellees in the circuit court of Piatt county against appellant and one T. W. Doss, but before trial the suit was dismissed as to her. They recovered a judgment against appellant for the sum of $3,000, to reverse which this appeal is prosecuted.

The declaration originally consisted of three counts, to which a demurrer was filed and sustained as to the first two counts. Amendments were made and additional counts filed, and finally the defendant filed a plea of not guilty to the third count of the amended declaration and the first count of the second amendment to the declaration; and, by stipulation of the parties, the case proceeded to trial on the issues thus formed.

The third count alleges that W. A. Doss and T. W. Doss, by their agents, with force and arms broke and entered the dwelling house of the plaintiff and made a great noise and disturbance therein, and stayed therein for a space of three days and caused persons of ill repute to he quartered therein in the nighttime, and unlawfully took all of the personal property of the plaintiff and ejected the members of the family of the plaintiff, • and claimed damages in the sum of $6,000.

The first count charged, in substance, that the plaintiff had employed W. A. Doss, the defendant, an attorney-at-law, to conduct a certain partition suit in the circuit court of Piatt county, and that he did not prosecute and manage the suit with due and proper care, skill and diligence, but on the contrary prosecuted, conducted and managed the same in a careless, unskilful, negligent and improper manner to the damage, of the plaintiff.

It is contended by appellant that there is a misjoinder of causes of action in the declaration, and this question was raised by demurrer, motions to direct verdicts, by a motion to require plaintiffs to elect upon which count of the declaration they would proceed to trial, by a motion for a new trial and in arrest of judgment.

The plaintiffs are seeking to try in one suit two distinct and separate causes of action, not based upon the same state of facts and not growing out of the same transaction and having no relation whatever to each other.

At common law, case and trespass could not be joined in the same declaration, but by an amendment to our Practice Act, in 1874, what would at common law have been a cause of action in trespass, or trespass on the case, may now properly be the subject of counts in either form of action, and it follows that counts for each may be joined in the same declaration. Krug v. Ward, 77 Ill. 603.

Counts in different causes of action may be joined in the same declaration, when such causes of action are of the same nature and may properly be the subject of counts in the particular action. Trench v. Hardin County Canning Co., 168 Ill. 135.

Tidd in his work on practice says: “It may be safely laid down as a general rule, that whenever the causes of action are of the same nature, 'and may properly be the subject of counts in the same species of action, they may be joined, otherwise they cannot.” Tidd’s Practice, p. 12.

Puterbaugh says: “The test by which to decide as to the joinder of counts — that is, what actions may be joined in separate counts of the same declaration— is thus stated in Chitty’s Pleadings: ‘The result of the authorities is stated to be, that when the same plea may be pleaded and the same judgment given on all the counts of the declaration, or whenever the counts are of the same nature and the same judgment is to be given on them all, though the pleas to be different, as in the case of debt upon bond and on simple contract, they may be joined.’ Another test is whether the same evidence will support both counts.” Puterbaugh Common Law Pleading and Practice, sec. 47.

No case has been called to our attention in which it has been held proper to join in one declaration two distinct and separate causes of action, not based upon the same state of facts and not growing out of the same transaction, and in no way related in any manner to each other; but, in passing upon the question of misjoinder of actions in the opinion in the case of Shoup v. Cummins, 334 Ill. 539, it was said: “There is no case in Illinois within our knowledge where a proprietor of two or more tracts of land acquired through different chains of title and held in co-tenancy, each tract with a different co-tenant, has been permitted by one bill to bring all the co-tenants of all the different tracts into court for the partition of all the tracts by one decree; neither do we know of any case which has decided expressly that this could not be done, perhaps for the reason that nobody has ever'thought it could be done and attempted to do it. ’ ’ The opinion further reads: “The case is not one of mere misjoinder of defendants who have no interest in the cause of action or in the subject matter. It is a case of misjoinder of causes of action having no connection with one another. Such causes of action cannot be joined, and though the objection may be waived and a decree by default perhaps might not be void, yet a defendant, if an objection is promptly made, cannot be called upon to answer a bill stating two distinct, independent and disconnected causes of action.”

This being the rule in equity, for greater reason, one should not be called upon to defend two separate and distinct causes of action not growing out of the same transaction, in one suit at law, especially so, when the same evidence would not support both causes of action.

While it is true that our statute has abolished the distinction between actions of case and trespass, yet that does not also abolish the rule that two separate and distinct causes of action, wholly disconnected and unrelated to each other, cannot be joined in one suit.

Judgment is reversed and cause remanded, with directions to grant the motion in arrest of judgment.

Reversed and remanded with directions.


text:
    Genevieve Reed, a Minor, by Newton A. Reed, her Father and Next Friend, Appellee, v. Robert Zellers, Appellant.
    Gen. No. 8,766.

      Opinion filed October 13, 1933.
    Rehearing denied January 4, 1934.
    Harry I. Hannah, for appellant.
    Donald B. Craig, James W. Craig, Jr., Fred H. Kelly and Craig Van Meter, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

This action was brought by the plaintiff, Genevieve Reed, a minor, by Newton A. Reed, her father and guardian, to recover damages for injuries received by her in an automobile accident, caused by the wilful and wanton conduct of the appellant, Robert Zellers, as claimed by her. Appellee recovered a judgment for $2,500, and this case is here on appeal from said judgment.

The declaration consists of two original and two additional counts. In the first count it is alleged in substance that appellee was riding in the automobile of appellant at his invitation and as his guest without payment, and which was being driven by him in the nighttime in a northeasterly direction on State Route No. 25, a paved public highway, at and near the Village of Galton, at which time and place there was a dense fog through which the light of said automobile penetrated but a few feet; that the paved portion of said highway was wet and slippery; and that a certain other motor vehicle backed out into the paved portion thereof and was slowly moving’ or standing thereon; that the defendant, with the knowledge of said dense fog and the fact that he could only see a few feet ahead, and with the knowledge of the wet and slippery condition of the pavement, and being conscious that his conduct would naturally and probably result in injury to others, particularly the passengers of said automobile and with an entire absence of care for the life, person or property of others, and with a conscious indifference to the surrounding circumstances and conditions, and with wilful disregard of the consequences, wilfully and wantonly drove and operated his said automobile at a high and dangerous rate of speed, greater than was then and there reasonable and proper, having regard to the traffic and use of the way and so as to endanger the life and limb and injure the property of other persons, at, to wit, the speed of 60 miles per hour, toward and through said Village of Gfalton, and toward and past said other motor vehicle, and wilfully and wantonly and with a consciousness that his conduct would naturally and probably result in injury to others, particularly the passengers in his said automobile, then and there drove his automobile toward, ag’ainst and past the other motor vehicle, and suddenly turned his automobile toward the right, so that by and through and because of said wilful and wanton misconduct, the automobile of the defendant as it struck and passed said other motor vehicle' skidded on said slick and slippery pavement and ran and was turned by the defendant off said pavement, and thereby said defendant’s automobile collided with a pole near the side of said highway, and because of said wilful and wanton misconduct aforesaid and as a direct and proximate result and in consequence thereof, the plaintiff was thrown with great force and violence against divers parts of said automobile, and was greatly hurt, etc.

In the second count, after the preliminary averments as in the first count, it is alleged that by and through and because of the wilful and wanton misconduct of the defendant, his automobile ran off of the paved portion of the highway onto the shoulder and collided with a pole on or near the side of said highway, and thereby and because of said wilful and wanton misconduct the plaintiff was greatly hurt, etc.

The two additional counts are in substantially the same language except they omit any reference to any other car being upon the pavement.

A general and special demurrer was filed to the declaration and overruled, and thereupon a plea of not guilty was filed and the cause proceeded to trial upon said issues. After a motion for a new trial had been overruled, appellant moved in arrest of judgment and now urges that the trial court erred in overruling his motion on the ground that the declaration does not set out a cause of action based upon wilful and wanton misconduct; that to state a good cause of action it must directly charge that the defendant wilfully and wantonly injured the plaintiff. A general and special demurrer having been filed and overruled, the sufficiency of the declaration cannot again be tested on a motion in arrest of judgment. Reavely v. Harris, 239 Ill. 526; Chicago & A. R. Co. v. Clausen, 173 Ill. 100.

Appellant next urged that the declaration charged him with the commission of various crimes, viz., assault with intent to commit murder, assault with intent to do bodily harm, attempted manslaughter, mayhem, assault with a deadly weapon, violation of section 41 (b) of the Motor Vehicle Law, Cahill’s St. ch. 95a, ¶ 42(2), violation of section 22 of the Motor Vehicle Law, Cahill’s .St. ch. 95a, ¶ 23, and assault and battery; and that, in civil cases, when a criminal offense is charged in the pleadings as an essential element of the ease, such offense must be proved beyond a reasonable doubt.

An examination of the declaration does not disclose a charge of any criminal offense necessary to be established by the evidence to maintain the action, which requires proof removing every reasonable doubt of guilt. The declaration charges wilful and wanton misconduct on the part of appellant in the management of his car, proof of which charge by a preponderance of the evidence would warrant a recovery. Even though the declaration charges appellant with a crime and such offense so charged is an essential element of the case, and for that reason must be proved beyond a reasonable doubt, yet appellant offered instructions which were given by the court to the effect that the plaintiff was required by law to prove her case by a preponderance of the evidence before she could recover ; and he offered an instruction, which the court refused, stating that the plaintiff cannot recover unless the jury believe that she has proved beyond a reasonable doubt by the evidence that the defendant is guilty of wilful and wanton misconduct in the manner charged in the declaration. A party litigant cannot offer instructions on several inconsistent theories of liability and thus speculate on the action of the court as to which it shall adopt, and assign as error the one which it does not adopt, claiming it should have adopted the other as was done here.

Appellant contends that the suit is brought under section 42(b) of the Motor Vehicle Law, Cahill’s St. ch. 95a, ¶ 43, and that the intent and purpose of this amendment was to eliminate the practice of guests suing their host, “except in those instances where it could be said the driver wilfully and'wantonly so misanaged his car, that it could be said from his conduct, he intentionally injured his guest”; and so is not, as termed by him, an ordinary case of wilful and wanton negligence but one based upon a special statute. SecT tion 42 was originally section 18 of the Motor Vehicle Law and, when enacted, paragraph “b” was not a part of the act but was added by an amendment, effective July 1, 1931. Cahill’s Ill. Rev. St. 1931, ch. 95a, ¶ 43, provides:

“Sec. 42. (a) Nothing in this Act shall be construed to curtail or abridge the right of any person to prosecute a civil action for damages by reason of injuries to person or property resulting from the negligent use of the highways by the driver or operator of a motor vehicle or motor bicycle or its owner or his employee or agent, and in any action brought to recover any damages for injury either to person or property caused by running any motor vehicle or motor bicycle at a rate of speed greater than is reasonable and proper having regard for the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person, the plaintiff or plaintiffs shall be deemed to have made out a prima facie case by showing the fact of such injury and that the person dr persons driving such motor vehicle or motor bicycle was at the time of such injury running the same at a speed greater than was reasonable and proper having regard for the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person.

“(b) Provided, however, that no person riding in a motor vehicle as a guest, without payment for such ride, nor his personal representative in the event of the death of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, death or loss for which the .action is brought.”

It will be seen that this section, as originally enacted, did not abridge the right of any person to prosecute a civil action for damages, but on the contrary extended that right. Paragraph (b) limits a guest in his right of action, and he can recover for damages caused by an accident only when the wilful and wanton misconduct of the driver caused the accident, and such wilful and wanton misconduct contributed to the injury. It will be seen that section 42(b) of the Motor Vehicle Law does not give a cause of action but limits the common law right of the guest to recover for damages sustained; and no penalty is provided for any violation of said section.

It is also contended that appellee assumed the risk of being injured by voluntarily and knowingly taking the trip. The doctrine of assumed risk applies only when there is a contractual relation between the parties. Walsh v. Moore, 244 Ill. App. 458. It is also urged that the evidence does not tend to prove wilful and wanton misconduct on the part of the appellant in the operation of his automobile. It is sometimes difficult to determine the dividing line between negligence and wilful and wanton conduct, and no specific rules can be laid down for the determination of this question which can be applied to all cases or to all sets of circumstances or conditions. Whether the act is wilful and wanton is greatly dependent upon the particular circumstances of each case; when the omission to exercise care is so gross that it shows a lack of regard for the safety of- others, it will justify the presumption of wilfulness or wantonness.

There is a sharp conflict of the evidence in this case. The proof on behalf of appellee shows that she was 16 years of age at the time of the accident and lived in Mattoon, Illinois, where she attended high school; that shortly after six o’clock in the evening of December 21, 1931, she, together with Marybelle Sullivan and George Sweet, started on a trip to Champaign, Illinois, to attend a basketball game at the University of Illinois; that they were to go in appellant’s automobile ; Miss Sullivan rode in the front seat with appellant while appellee occupied the rear seat with Sweet; when they left Mattoon a misting rain was falling and there was a heavy fog and the pavement was wet and slippery; they left the city on State Highway Route No. 25, which was paved; that they could see only 10 or 15 feet ahead of the lights of the car in which they were riding; that appellee asked appellant if he could see, and asked him not to drive so fast and to be more'careful; appellee asked appellant if his battery was low, and if that was what made his lights dim; and he said, no, that he had taken some boys to a football game the night before and it had been muddy and probably some of the mud was on his lights; when they arrived at Humboldt appellant stopped the car and wiped off his headlights; it was still raining and misting, and there was more fog than when they had left Mattoon, but they could see a little farther after the lights had been wiped off, but not more than 14 or 15 feet ahead of the car; that after they left Humboldt appellee again asked appellant not to drive so fast; that he was driving between 50 and 55 miles an hour; and at one time, when she glanced at the speedometer, it showed a speed of 48 miles per hour; that when they got to a point a few miles from Galton there was a car ahead, and appellant started to go around it, and his car slipped and swerved on the pavement, and appellee said to appellant, “Oh, Bob, be more careful; don’t drive so fast”; at that time Miss Sullivan asked him not to drive so fast and be more careful, but he did not drive any slower and continued at the same rate of speed until the collision; just prior to the collision appellant was driving between 50 and 55 miles an hour; that she requested him several times not to drive so fast, but he did not slow down any; when they got to Gfalton it was raining and the fog was more dense than when they left Máttoon; and appellee noticed lights on -the west side of the road, that she remembered that the car swerved and of seeing the pole in front of her; that she became unconscious, and remained in that condition until she awakened in the hospital at Tuscola the next morning; she received two cuts on her face, three teeth were, knocked out in front; she lost some of the upper jaw bone, and some of her gums came out with her teeth, and the top of her mouth was torn and four of her teeth on the right side of the mouth were pushed oyer to the middle of the mouth; her hip was dislocated, and there was a cut on her knee, and her nose was broken. The evidence further shows that the telephone pole with which the automobile collided was situated about 85 feet north of the north line of a road which intersected Route 25; that on the southwest corner of this intersection was a store operated by the witness, Baumgard; that the witness, Sievers, who lived some distance west of the store and on the intersecting highway, which was an oiled road, had driven his car to Baumgard’s store and had stopped and parked it north of the store on the oiled road, west of Route 25, and facing east, and it was the lights of this ear that extended east across Route 25.

It is further shown that appellant, when he approached this intersection and saw the light froim Sievers’ car, turned to the right off of the pavement and onto the east shoulder of Route 25, which was wet and muddy, and ran 85 feet until he collided with the telephone pole, and his automobile was completely wrecked. The above are the facts most favorable to appellee.

Appellant testified and was corroborated, in many particulars, by the other occupants of the car that his general speed was between 40 and 45 miles per hour, and that he did not exceed 48 miles per hour; that he swung off of the pavement onto the shoulder in order to avoid hitting Sievers’ car, but there is no evidence that Sievers’ car was on the roadway of Route 25. The only evidence on this subject was that it was standing still on the north side of the store, west of Route 25, on the oiled road. No witnesses testified that there was any collision between Sievers ’ car and that of appellant. Appellant denies that appellee asked him to decrease his speed, or that Miss Sullivan made any such request, and in this he is corroborated by the other occupants of the car. Miss Sullivan is appellant’s fiancee, and Sweet works with appellant in the store of the father.

Under this condition of the evidence it was for the jury to determine whether appellant was guilty of wanton and wilful conduct in driving the car. The jury saw the witnesses and heard them testify, as did also the court, who refused to grant a new trial, and under all of the evidence and the circumstances we do not feel justified in holding that the verdict is contrary to the manifest weight of the evidence. Bernier v. Illinois Cent. R. Co., 296 Ill. 464, 470; Brown v. Illinois Terminal Co., 319 Ill. 326.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    John Wargo, Administrator De Bonis Non of the Estate of Thomas Chill, Deceased, Appellee, v. Herman Buske, Appellant.
    Gen. No. 8,735.

      Opinion filed October 13, 1933.
    Rehearing denied January 4, 1934.
    Hill & Bullington and Gillespie, Burke & Gillespie, for appellant.
    Dryer & Brown, Omer Poos and Elmer H. Droste, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Appellant prosecutes this appeal to reverse a judgment obtained against him in an action brought by appellee to recover damages for the death of appellee’s intestate, resulting from injuries received as the result of an automobile accident. The declaration filed by appellee consisted of one original count and six additional counts. The first five counts charged negligence on the part of the driver of appellant’s truck and the last two counts alleged the wilful and wanton misconduct of said driver. The general issue was filed, the case tried before a jury and a verdict returned in favor of appellee for the sum of $5,000, upon which, after motion for new trial was overruled, judgment was entered.

The testimony shows that the deceased on March 11, 1931, had been at work in a coal mine where he was employed and rode home in a Ford truck with other miners, about four o’clock in the afternoon. He lived in Mt. Olive, Illinois, and on the south side of a concrete highway, 18 feet wide, designated Route 16, and the truck coming from the east stopped on the shoulder, just off the pavement on the north side directly opposite his home. The Ford truck had a small cab on it but the rear of the truck was entirely open. The deceased, Stanley Tokarz, Carl Thiessen and Gfeorge Thomas, were riding in the rear of the truck. After the deceased got out the three remaining men were sitting on a cushion on the floor of the truck with their backs to the cab and looking east. These men testified that when the truck started up it pulled back onto the concrete slab about 35 or 40 feet west from the point where it had stopped and about that time the deceased started south across the highway towards his home. The Ford truck met appellant’s truck which was traveling east about 150 feet west from the point where the deceased had alighted. When the deceased reached about the middle of the highway, the driver of appellant’s truck sounded his horn. There is some difference in the testimony as to just how far away appellant’s truck was from deceased when the horn was sounded. The truck driver testified it was 75 to 100 feet away, a companion, Carroll, sitting with him in the driver’s seat, placed the distance at 100 feet and appellee’s witnesses fixed it at 150 feet. The deceased upon hearing the .horn turned around and walked or hurried back to the north and to a point five or six feet north of the concrete pavement on the shoulder before he was struck by appellant’s truck. The driver after honking his horn pulled his truck to the left and tried to run around the deceased to avoid hitting him. The right side of the truck struck the deceased. Appellee’s witnesses testify the truck was traveling at the rate of 40 miles per hour while appellant’s witnesses placed the speed at from 18 to 25 miles per hour. Ernest Viehwig, who lived about 150 feet west of where the accident occurred, saw the entire affair from, his kitchen window and corroborates appellee’s witnesses. The pavement was dry and the weather was fair. There were no other cars on the highway near enough to interfere and the truck driver stated that he did not use his emergency brake at any time before the accident and only used his service brake slightly. The deceased died the day following the accident.

It is contended by appellant that the proof wholly fails to sustain the charges of wilful and wanton misconduct as alleged in the fifth and sixth additional counts of the declaration. Our courts have frequently said that whether an injury is the. result of wilful and wanton conduct is a question of fact to be determined by the jury, from all the evidence. It is only where there is no evidence to support that charge that a court should grant a motion to direct a verdict on the wilful and wanton counts of a declaration. “A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.” Brown v. Illinois Terminal Co., 319 Ill. 326. If the jury believed the testimony of appellee’s witnesses, then it was clearly a question of fact for the jury to determine whether the driver of appellant’s truck, under all the circumstances shown, was guilty of wilful and wanton negligence. It was the positive duty of the truck driver, if he saw the deceased crossing the highway 100 feet away, to not only give warning of his approach but to use every reasonable precaution to avoid injuring him, and if necessary to stop his truck until deceased was out of the path of his car; Walldren Express & Van Co. v. Krug, 291 Ill. 472; Gannon v. Kiel, 252 Ill. App. 550. It was distinctly the province of the jury in this case to determine whether the driver was guilty of such a degree of negligence as could be said to be wilful and wanton and we believe there is sufficient evidence in the record to support such finding.

Counsel for appellant further contend that the last two counts of the declaration charge a felony and that appellee was required to prove the averments of these counts beyond a reasonable doubt.

The allegations of these two counts in general language are very similar to the charges in an indictment for involuntary manslaughter but they do not charge that the misconduct of the driver was feloniously done or that the acts amounted to criminal negligence, which would be essential averments in that character of an indictment. People v. Falkovitch, 280 Ill. 321; People v. Sikes, 328 Ill. 64. Therefore proof by a preponderance of evidence was sufficient. Rost v. Noble & Co., 316 Ill. 357. In a civil case it is only where the charges amount to a felony that proof beyond a reasonable doubt is required.

It is also contended by appellant that the negligence and wilful counts of the declaration are not of the same class, and that the court erred in submitting both to the jury. While there has been some confusion over this question in the past it is our judgment that the practice of filing common law negligence counts and wilful and wanton negligence counts in the same declaration and allowing both kinds of counts to go to the jury has been approved by courts of this State. Price v. Bailey, 265 Ill. App. 358.

It is also insisted that the court erred in the admission of incompetent medical testimony, over the objection of appellant and in the denial of appellant’s motion to exclude the same. When the witness Dr. Sihler was on the stand he was asked:

Q. “You may tell whether or not anything developed from the injury he received,”

A. “The man was getting along from the results of his injury and his death was very sudden. Gieneral examination showed he had no heart trouble of any kind. The cause of his death as we determined at that time was due to — the man died from fatty embolism, the result of the fracture sustained in the left femur.”

Appellant argues that his general denial placed in issue the question of whether appellee’s intestate died from the injuries alleged to have been received, and the admission by the trial court, over appellant’s objection, of medical testimony that appellee’s intestate died from the injury was a usurpation of the province of the jury and constituted reversible error. In support of this contention he relies chiefly on the case of Kimbrough v. Chicago City Ry. Co., 272 Ill. 71, and in that case the court did say that a physician should not be asked whether or not the facts did cause and bring about a certain condition or malady but in that case' there was a sharp conflict in the testimony, as to whether or not the party suing was injured in the manner charged, and on page 78 of the opinion the court said: “In cases where there is no dispute . . . that there was an injury sustained by reason of the acts of which complaint is made, this court has held that a physician may then directly testify that a later malady was or was not caused by the accident or original injury, upon the same principle that he may testify that death resulted from a certain wound/ ’ citing Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154. In this case there is no dispute that deceased was injured by coming in contact with appellant’s truck, and the admission of the testimony complained of was not reversible error.

We do not find any serious objection to the instructions complained of and believing there is no substantial error in the record, the judgment of the circuit court will be affirmed.

Affirmed.


text:
    The Illinois Joint Stock Land Bank of Monticello, Appellant, v. Martha B. Leas et al., Appellees.
    Gen. No. 8,753.

      Opinion filed October 13, 1933.
    Rehearing denied and opinion modified January 5, 1934.
    Green & Palmer, for appellant; Henry I. Green, Enos L. Phillips and Oris Barth, of counsel.
    F. T. Carson, for appellees; J. M. Mitchem, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Champaign county denying the appointment of a receiver in a mortgage foreclosure proceeding, after decree of foreclosure, after sale under foreclosure decree and after the court had entered a deficiency judgment for $1,872.36.

On February 11, 1926, George N. Leas and Martha B. Leas, his wife, executed a mortgage note in the principal sum of $25,000, bearing interest at 5$4 per cent per annum, payable semiannually, and on the same date executed the mortgage involved in this suit, to secure the payment of the same. On May 22, 1929, George N. Leas died intestate, and his widow and two sons, who were his only heirs at law, are the parties defendant in this suit and the appellees on this appeal.

On August 13, 1932, a bill was filed to foreclose the mortgage. On September 17,1932, appellees filed their answer to the bill of complaint. On September 19, 1932, appellant filed its petition asking for the appointment of a receiver, alleging that the mortgaged premises were not worth the amount of the indebtedness secured by the mortgage deed. There was then due the sum .of $23,429.55 on the principal of said mortgage note, $1)179 on interest, $350.92 in taxes advanced by appellant, plus the costs due and to accrue in the foreclosure proceeding. On October 1, 1932, the court entered an order appointing a receiver, who subsequently filed his bond and qualified. On October 6, 1932, exceptions were filed by. appellant to the following portion of the answer of appellees:

“And the defendants further answering say that they have offered and do hereby offer to turn over to the Complainant, bonds of the Complainant of the face value of and, in satisfaction of said indebtedness, and still do so offer.” On October 18, 1932, a motion was made by appellees to set aside the order appointing a receiver, and on November 1, 1932, the court granted said motion and entered an order vacating and setting aside said order of appointment. On the same date the court entered an order sustaining the exceptions of appellant to the portion of the appellees’ answer hereinabove quoted. On November 2, 1932, on application of appellant, the court granted a temporary injunction restraining the appellees from disposing of one-half of the corn crop or any part of one-half of the corn crop grown on the mortgaged premises and unsevered therefrom at the time of the entry on October 1, 1932, of the order appointing a receiver. This order has been extended and kept in force abiding the determination of this appeal. The mortgage deed pledged the rents, issues and profits as security for the payment of the mortgage debt, and the decree of foreclosure so found. On November 9, 1932, the decree .of foreclosure was entered finding the indebtedness to be the sum of $26,518.71, and ordering the mortgaged premises sold. On December 7, 1932, the master in chancery made his report of sale of said premises to appellant for the sum of $25,000, disclosing a deficiency of $1,872.36. The court approved the master’s report on the same date and entered a deficiency judgment against the appellee, Martha-B. Leas, for the amount of said deficiency. On this same date the appellant, after the approval of the master’s report of sale and the entry of the deficiency judgment, filed a motion and a petition to vacate the order setting aside the appointment of a receiver, and to confirm the original order appointing a receiver, or in the alternative, for the appointment of a receiver. The petition set up all the material steps taken in this suit up to the entry of the deficiency judgment. The court entered an order denying the motion and the prayer of the petition asking for the appointment of a receiver, but continued in force the temporary injunction in order to preserve the rights of the parties in relation to the question over the receivership. From the entry of this order and decree of the court, the appellant has appealed.

The testimony discloses that the premises in question was a well improved farm of 200 acres, worth about $125 per acre; that on September 6, 1932, the appellant entered into contract with one W. D. Villars, wherein it was agreed that appellant would bid the sum of $25,000 for the farm at the sale, and if the successful bidder would sell to Villars the certificate of purchase and deficiency judgment for the sum of $18,000, $16,000 to be paid upon the execution of the agreement and $2,000 at the time deed was delivered, after the period of redemption. There was further agreement as to what should be done in case appellant was not the successful bidder at the sale, or in case of redemption. It was further agreed that the net proceeds from a receivership was to be applied on the deficiency judgment. Further testimony offered and admitted by appellees over the objection of appellant showed that appellant since January 1, 1932, had purchased and retired its own bonds of the par value of $472,000, for which it had paid $293,100, or about 62 cents on the dollar. The money secured from Villars under above contract was used by appellant to purchase its own bonds at a similar discount. Appellant owned loans amounting to $6,200,000 and bonds outstanding of $6,000,000.

Appellant urges that the court erred in setting aside the initial order appointing a receiver and also in denying the application for the appointment of a receiver after foreclosure sale and the entry of a deficiency judgment.

In a large number of decisions the courts of our State have uniformly held that where the rents and profits are pledged the lien thereon continues in force after foreclosure, and that the owners of a deficiency judgment are entitled to have it satisfied out of such rents and profits. Powell v. Voight, 348 Ill. 605; Prussing v. Lancaster, 234 Ill. 462; Straus v. Bracken, 242 Ill. App. 122. Appellees seek to avoid the effect of this principal of law by saying that because appellant profited by purchasing its own bonds at a figure below par, it had not suffered any loss and was therefore not equitably entitled to a receiver.

We fail to see how appellant’s dealing with outside or third parties can possibly have any effect upon the contract between the parties to this suit. The purchase of its own bonds by appellant from parties willing to sell at a low figure is a matter entirely foreign to the issues involved in this case. Appellee further insists that the appellant through the contract with Villars parted with all their interest in the subject matter of this suit and were not entitled to any relief or protection from the court. However, there was no objection made to the approval of the master’s report of sale, nor to the entry of the deficiency judgment in favor of the appellant and from which no appeals were taken. That contract was not to be entirely consummated until the expiration of the period of redemption and the record disclosed by the report of sale, the entry of the deficiency judgment and other orders entered by the trial court, clearly show that appellant had a very substantial interest in the disposition of the net profits that might result from a receivership. It was not necessary to show the insolvency of the mortgagors because the mortgage clearly pledged the rents, issues and profits. Rohrer v. Deatherage, 336 Ill. 450.

However sorry a court may be for a farmer or any other person who is losing his property through foreclosure, the well established principals of law concerning foreclosure proceedings cannot be overlooked, and the court has no power to change the terms of the mortgage contract. We believe the circuit court on November 1, 1932, and before the sale, had full power and discretion to set aside the initial order providing for a receiver, but on December 7, 1932, after the foreclosure sale and the entry of a deficiency judgment, the court erred in denying the application by appellant for the appointment of a receiver. It is therefore our judgment that up until December 7, 1932, the owners of the equity of redemption were entitled to the rents, issues and profits from the mortgaged premises, that on said date the appellant was entitled to have a receiver appointed. The decree of the circuit court under date of December 7, 1932 denying the motion and petition of appellant for the appointment of a receiver is Therefore reversed and remanded for the purpose of entering a decree in compliance with the views herein expressed.

Reversed and remanded with instructions.


author: Mr. Justice McSurely Hatchett, P. J., and O’Connor, J.,

text:
    Charles Hudson, Appellant, v. Sam Silver and Gustav H. Bunge, Appellees.
    Gen. No. 36,794.

      Opinion filed December 11, 1933.
    Rehearing denied and opinion slightly modified December 27, 1933.
    Alfred Roy Hulbert and Charles Hudson, for appellant.
    Chayes & Chayes, for appellees; Edward Chayes and Abram Z. Zietlein, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff suffered an adverse judgment upon a trial by the court, without a jury, of an action to enforce a claim arising under the Securities Law (Blue Sky Law), ch. 32, ¶ 290, sec. 37, Cahill’s Statutes. Plaintiff appeals.

November 21, 1927, plaintiff bought 50 shares of class “C” stock in the Downers Grove Investment Company, paying $10,000; he subsequently learned that the stock was not qualified under the Securities Law and tendered the stock to the sellers and demanded the return of his money, which was refused and this suit followed.

The burden is upon the defendant in these cases to prove that the stock was qualified. Abrams v. Love, 254 Ill. App. 428.

Although there is much evidence in the record tending to show an attempt made by the officers of the Downers Drove Investment Company to have the stock qualified pursuant to the statute, it failed to prove that this attempt was successful. It seems to be conceded that the stock was not qualified and was Class “C.”

There is much argument touching the question whether plaintiff first approached Mr. Bunge, president of the Downers Drove Company, or whether Mr. Bunge first wrote plaintiff, whom he had known for some years, suggesting that plaintiff become one of the directors of the company. We do not think the point is of controlling importance. The essential fact is that plaintiff bought the stock and paid for it.

Plaintiff, having bought the stock, which was not qualified as required by the statute, was entitled to recover the purchase price unless the transaction was within some of the statutory exemptions, or plaintiff .had done something with reference to his stock which would defeat his claim.

Defendants claim the benefit of the exemption provided in section 5 of the Securities Law, Cahill’s St. ch. 32, ¶ 258, which exempts a sale made by a bona fide owner of such security who disposes of his own property for his own account. In the fall of 1927, Mr. Bunge, president of the Downers Drove Company, employed Samuel Silver, the other defendant, who was in the business of selling securities, to carry on a “campaign” to sell the stock of the company upon a commission basis. Pursuant to this campaign Silver sold the stock in question to plaintiff. Silver received plaintiff’s check for $10,000 and he or plaintiff forwarded it to Bunge; neither of the defendants owned the stock nor was the Downers Drove Investment Company the owner; it was the issuer of the stock. Sub-paragraph 2 of section 2 of the Securities Law, Cahill’s St. ch. 32, ¶ 255, defines an “issuer” as every company which shall hereafter issue any security sold or offered for sale to any person or persons in this State. In Abrams v. Love, 254 Ill. App. 428, the court noted the difference between the company which issued the stock and the one who sells the same stock. In that case, as here, the president of the issuing company sold the stock of his company, and he was held liable in an action under the Blue Sky Law. Bunge and Silver were dealers in the stock and the statute exempts only an owner “not being a broker or dealer in securities.”

Defendants also say that the sale to plaintiff was a single transaction and therefore comes under the statute which exempts an isolated sale of any security, “such sale not being made in the course of repeated and successive transactions of a like character.” (Sec. 5, Securities Act.) The sale of the stock to plaintiff was not an isolated transaction. Silver made at least 75 sales of this stock to many persons, upon which Bunge paid him a commission.

Clause 2 of section 37, Cahill’s St. ch. 32, ¶ 290, provides that in any action where the defendant relies upon any of the exemptions provided for in the Act, he has the burden of proof to establish such exemption.

It is next asserted as a defense that plaintiff had received some $858 as dividends on his stock, and when he tendered the stock he tendered only the certificates of stock and not the dividends. Plaintiff was not bound to tender any dividends. The statute requires only that he tender his stock. Furthermore, what right could either Bunge or Silver have to the dividends í Neither of them owned the stock bought by plaintiff and obviously were not entitled to any dividends on the same.

It is earnestly argued that plaintiff, having participated in the dividends of the company and having acted as a director even after he had tendered the stock, acquiesced in and affirmed the contract of purchase. A few days before February 19, 1931, plaintiff first learned of the failure to qualify the stock and on that date tendered back his stock and demanded the return of his money, which was refused; March 14th this suit was commenced. As we have seen, the stock was purchased in November, 1927, so the suit was commenced within the period of limitation set by the statute, which requires all such actions” to be commenced within five years “after the commission of the act complained of.” (Sec. 40, Cahill’s St. ch. 32, ¶ 293.)

Much evidence was introduced tending to show active participation by plaintiff in the affairs of the company both before and after the commencement of the suit. It is unnecessary to note the various things done by plaintiff in this respect, for in our opinion they are not controlling. Generally speaking, they were the ordinary actions of a director to conserve the interests of the company. In an action in chancery, seeking to rescind a contract for fraud or misrepresentations, the actions of plaintiff would tend to show affirmance which would defeat an attempt to rescind. The cases cited by the defendants are, for the most part, chancery actions. None of them relates to actions under the Blue Sky Law except Glen v. Dodson, 347 Ill. 473. In that case the plaintiff had sold part of his stock and it was held that he could not recover under the statute for the reason that he had not tendered back all of the stock he had purchased. In Bunge v. Kirchhoff, 251 Ill. App. 119, which was an action under the Blue Sky Law, the defense was that the plaintiff had affirmed the sale of the stock and accepted profits from his ownership, had exchanged his stock certificates for others, executed proxies and discharged the duties of a stockholder in the corporation, with full knowledge that the stock was not qualified under the Securities Law, and that thereby he had ratified and confirmed the sale and had waived any right he might have to rescind the same. The court held that such conduct did not waive his rights to proceed under the statute; that the statute was penal in character and was intended as a punishment for those who engaged in disposing of stock or securities in violation of that act. The judgment of the lower court was reversed and judgment was entered for plaintiff. Certiorari was denied by the Supreme Court. In Brannan, Beckham & Co. v. Ramsaur, 41 Ga. App. 166, the plaintiff drew a salary as an officer or director of the company, and it was held that this did not waive his right to prosecute his action under a statute like ours.

In the instant case, when plaintiff tendered his stock and brought suit he did not by those acts cease to be the owner of the. stock; he was its owner until the tender was accepted. Defendants’ argument seems to be that, having elected to rescind he could not thereafter attempt to exercise any of the duties of a stockholder. "We hold to the contrary. The statute defines the defenses that may be made to an action brought under it, and knowledge of, or participation in, the affairs of the corporation are not so named. No cases are presented which support defendants’ contention in this respect. As we have heretofore said, this is a penal statute and the steps which entitle a purchaser of stock, not qualified, to recover are definitely stated. He may tender to the seller the securities he has purchased and demand the return of his money, and if the tender is refused the sellers shall be jointly and severally liable for the amount paid for the stock. In Wehrwein v. Eastman Springs Beverage Co., 238 Ill. App. 443, we held that the presence of fraud is not a condition of liability in such transactions, and that whether it was a harsh law which might frequently work an injustice was no concern of the courts. We said: “If it is shown that the company did not comply with the statute, and the defendants sold or knowingly performed any act in any way furthering the sale of such securities, they are liable upon a tender of the certificates of stock. It does not make any difference whether plaintiff went into the transaction fully informed and with his eyes open. ’ ’

The statute provides that plaintiff may also recover in this action reasonable attorney’s fees. The evidence in this case is that such fees would be $2,000, and there is no evidence to the contrary. Plaintiff is entitled to recover the amount paid for his stock— $10,000 — and also $2,000 as reasonable attorney’s fees. As the 'case was tried by the court, without a jury, we are authorized to enter judgment in this court.

The judgment of the circuit court is reversed, with a finding of facts, and judgment for .plaintiff is entered in this court against defendants for $12,000.

Reversed with finding of facts and judgment here.

Hatchett, P. J., and O’Connor, J.,

concur.

Finding of facts: We find that the stock in question was not qualified under the Illinois Securities Law; that neither of the defendants owned the stock; that they jointly participated, as dealers, in negotiating and furthering its sale; that the sale to plaintiff was not an isolated sale by an owner for his own account; and that a tender of the stock was made to the sellers with a demand for the return of the purchase price, which was refused.


author: Mr. Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. Milton Feldstein, Plaintiff in Error.
    Gen. No. 36,935.
    Opinion filed December 11, 1933.
    Bernard J. Brown, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll and Henry E. Seyearth, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant, charged with larceny as bailee, was found guilty by a jury and sentenced to imprisonment for one year in the house of correction and fined $1; he seeks a reversal.

The case involves transactions between Stein & Ellbogen Company, dealers in jewelry and diamonds, and the defendant, in which certain diamonds were delivered to him, which the State alleges were delivered to him as bailee and which he feloniously stole. The statute says: “If any bailee of any . . . property shall convert the same to his own use, with intent to steal the same, ... he shall be deemed guilty of larceny.” Ch. 38, ¶ 388, Criminal Code (Cahill).

Both Stein & Ellbogen Company and the defendant are in business in Chicago. The defendant sets stones in rings and other jewelry; he also bought diamonds. Some five consignments of diamonds were made by Stein & Ellbogen to the defendant; the printed memo, in each consignment reads as follows:

“On Consignment

Stein & Ellbogen Company

Importers and Wholesalers of

Watches and Jewelry

Cutters and Importers of Diamonds

55 East Washington Street

Chicago 10/25 1929

To Leo Feldstein Sons

City.

The goods itemized, described and priced below are sent to you for examination only, to be held by you at your risk of loss or damage, however caused and are to be returned on demand, it being distinctly understood that the title to said goods remains vested in Stein & Ellbogen Company. Should you desire to purchase any of these goods, no sale or contract to sell shall be consummated until Stein & Ellbogen Company has approved of your selection and sent you a regular bill for the goods selected. The signing or acceptance of this memorandum is an acceptance of all the foregoing terms.

To Avoid Errors in Reporting on Memo. Goods Please Enclose List op Articles Kept”

The above is a printed form. Following this, in the first consignment, is written: “340 1 Brill 1.87 @ 425.00 per ct. 3% for cash” .

Although the meaning of the word “Brill” is questioned somewhat we will assume it means a diamond. The other consignments were upon the same printed form, followed by writing describing the diamonds consigned, with the price; in all of them except the first the terms named were “Net Cash.”

Stein & Ellbogen Company had for a number of years done business with Leo Feldstein Sons, defendant’s firm, sending it diamonds to be set. Sometimes defendant bought stones from Stein & Ellbogen, which were paid for according to the terms stated.

Charles Ellbogen, president of Stein & Ellbogen Company, testified for the State that the writing on the first consignment meant that the stone could be purchased for $620, and “3% for cash” meant that this discount would be allowed if the stone was paid for by the tenth of the following month; that sometimes they would give the customer an extra week or two to pay; that where the terms are “Net Cash” the bill is payable before the tenth of the month following the date of the purchase; the witness testified that defendant called at their office almost every day and that they had never had any trouble with him. Another witness testified to the same effect, and that “he (Feldstein) may pay the bill within thirty-five days and still get 3% off; if he takes longer he will have to pay the full amount”; that the arrangement was that if the article was not disposed of or sold it should be returned, but if he retains it he must pay for it.

The defendant pawned the stones covered by the five consignments in evidence. Bornstein, to whom they were pawned, testified that he had known defendant for about 15 years and had done business with him; that there was nothing unusual about pawning the diamonds, as it is a common practice in Chicago for retail jewelers and wholesale jewelers, to pawn their diamonds for the purpose of paying bills. Charles Ellbogen testified he received several notes from defendant in payment of diamonds consigned to him, but could not tell whether the notes covered the diamonds mentioned in the consignments which are in evidence; he would not say that he did not get notes from defendant in payment for the diamonds described in the consignments.

Defendant argues in this court that while certain portions of the printed matter in the memo, of consignment might indicate that the defendant received the goods as bailee, yet the writing giving the price of the articles and the terms of sale, with the evidence that these consignments were in the ordinary course of business in which, if the articles were not sold by the defendant, they were to be returned by him, the contract was not a bailment but a contract “on sale or return. ’ ’

In House v. Beak, 141 Ill. 290, a contract “on sale or return” is defined as “an agreement by which goods are delivered by a wholesale dealer to a retail dealer to be paid for at a certain rate, if sold again by the latter; and if not sold to be returned.” (Story on the Law of Sales, sec. 249.) The opinion further says that if the vendee returns the goods, the contract of sale is at an end; “if he does not, the sale becomes absolute, and the price of the goods may be recovered in an action for goods sold and delivered”; that the consignee may deal with the goods as his own, “is under no obligation to give any account of his disposition of them, and is only liable to pay for them at a price fixed beforehand.” In People v. Gualano, 349 Ill. 235, it was said that to constitute the offense of larceny as bailee the relationship of bailor and bailee must exist, and that when the identical thing delivered is to be restored in the same or altered form the contract is one of bailment, “but when there is no obligation to restore the specific article and the receiver is at liberty to return . . . the money value, he becomes a debtor to make such return and the title to the property by such transaction passes to him. ” See also, to the same effect, People v. Wildeman, 325 Ill. 99, and cases there cited.

We do not consider cases cited by the State as applicable to the present facts. In People_ v. Barnard, 327 Ill. 305, the defendant received a shipment of furs to be purchased at a price to be agreed upon between him and the consignor, and if they could not agree upon a price the defendant was bound to return the shipment intact. This he did not do, but substituted for the furs he received others of an inferior sort, which he sent to the consignor. In Bergman v. People, 177 Ill. 244, the jewelry was intrusted to the defendant for the purpose of exhibiting it to others; the representation that the defendant contemplated purchasing jewelry as a wedding present was false and fraudulent and part of a scheme to enable Bergman to secure possession of the jewelry that he might convert it to his own use.

We hold that the consignments of diamonds in question to Feldstein were not bailments but were contracts on sale or return. The fact that Feldstein pawned the diamonds, which seems to be customary in the jewelry trade, does not change the character of the transaction. Feldstein was bound to return the diamonds within a reasonable time, or if he did not do so then he became liable in an action in assumpsit.

Although it was shown that the value of the diamonds consigned was over $2,000, yet the jury found the value of the goods to be $14 — evidently a compromise verdict.

Other points are made, upon which it is unnecessary to comment. There being no bailment, defendant could not be found guilty of larceny as bailee.

The judgment of the criminal court is therefore reversed without remanding.

Reversed.

Matohett, P. J., and O’Cohhor, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Lester Tilton and Harry de Joannis, Plaintiffs in Error.
    Gen. No. 36,974.
    Opinion filed December 11, 1933.
    Louis Greenberg, for plaintiffs in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Grenville Beardsley and J. Albert Woll, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendants, having been found by a jury guilty of conspiracy, were sentenced • to the penitentiary and fined $2,000'; defendants went to trial upon the third and fourth counts of the indictment,- which charged in substance a conspiracy to do certain unlawful acts, namely, the practice of medicine without a license; the other counts were nolle prossed. The evidence has not been preserved by a bill of exceptions and is not before us.

The third count charged the defendants with a conspiracy to encourage and assist Lester Tilton to hold himself out to the public as engaged in the diagnosis and treatment of the ailments of human beings, and particularly in the diagnosis and treatment of cancer, and in professing to heal and prescribe for cancer, and to maintain an office in Chicago, Illinois, for the examination and treatment of persons afflicted by cancer, and to attach to the name Lester Tilton the titles “Doctor” and “Physician” and the title and abbreviation “M. D.” indicative that Tilton was engaged in the treatment of human ailments as a business. Each of these acts is expressly forbidden and made bstatute a criminal offense. Ch. 91, ¶ 25, Illinois Statutes 1933 (Cahill).

It was first urged as ground for reversal that the third count is void in that it charges a common law conspiracy and enumerates certain acts which it is alleged the defendants conspired to commit, which acts are made a criminal offense by the Medical Practice Act, enacted in 1923 (Ch. 91, ¶ 25, Cahill), and therefore a conspiracy to do any. of the acts made unlawful by the statute would not be a common law conspiracy. Town of Paris v. People, 27 Ill. 74, is cited, but in that case the defendants were charged with violating a statute when in fact there was no statute covering the acts set forth in the indictment.

We do not agree with the contention that the unlawful act must be an act that was regarded as unlawful at common law, and that a conspiracy to commit an act made unlawful by statute is a conspiracy against the statute and the indictment should conclude against the statute. Smith v. People, 25 Ill. 17; Chicago, W. & V. Coal Co. v. People, 214 Ill. 421, and People v. Curran, 286 Ill. 302, hold that a common law conspiracy contemplated any unlawful act, whether unlawful at common law or later made so by statute. If an act is made unlawful by statute, a conspiracy to commit that act would be a conspiracy to do an unlawful act, which would be a common law offense.

In State v. Bienstock, 78 N. J. L. 256, the indictment charged a common law conspiracy to tamper with ballots cast at a primary election; it was argued that as a primary election was not known at common law, a conspiracy to commit fraud at such an election could not be a common law offense. The court held against this contention, saying that the object of the conspiracy was unlawful and therefore it was not important whether the things charged were unlawful at common law or by statute, and that even if the primary was unknown to the common law, that fact could not be made the basis for an argument that a conspiracy to commit fraud is not indictable at common law. “Rights are protected by the principles of the common law and their infringement by a conspiracy is punishable by the criminal law. ’ ’

The fourth count alleges that Tilton did not possess a license issued by the State to practice the treatment of human ailments, and that defendants held Tilton out to the public as engaged in the treatment of human ailments, particularly cancer; that he maintained an office for the treatment of persons so afflicted and used the titles of “Doctor,” “Physician” and “M. D.” attached to his name. The Medical Practice Act forbids any person to practice medicine or any system of treating human ailments without a license. The acts enumerated in count four of the indictment are forbidden by this act. The purpose of the act, as expressed in its title is, “for the better protection of the public health.” That this is the purpose has been restated in People v. Walsh, 346 Ill. 52, and People v. Witte, 315 Ill. 282. It follows, therefore, that the doing of any act made illegal by, this statute would be an act injurious to the public health.

It is urged that this count is void as charging - a conspiracy to do illegal acts injurious to the public health, and that as cancer is not a communicable disease a conspiracy to treat the same is not a conspiracy to injure the public health. The same argument could be made concerning the treatment of broken bones, injuries, heart and nervous troubles and many like diseases that are not communicable. The statute forbids anyone without a license to offer to the public treatment of any human ailment, whether communicable or not.

The possession of a license to practice medicine is evidence that the possessor has made careful preparation to practice medicine. The public is unable to judge of this preparation of whether the physician is qualified. Reliance must be placed upon the assurance given by the doctor’s license that he possesses the requisite qualifications, and, as was said in People v. Walsh, supra, “Due consideration, therefore, for the protection of society may well induce the State to exclude from practicing the treatment of human ailments those who have not such a license or who are found upon examination not to be fully qualified.”

We cannot accept the statement of defendants’ counsel that the Medical Practice Act authorized defendants to practice without a license in attempting to cure an incurable disease. Such a construction would leave open a wide door for fraud of the most detestable kind.

The forms of verdict submitted to the jury are criticized. It is sufficient to say that these exact forms were given and the same criticism made in People v. Schneider, 345 Ill. 410, where the forms were held to be proper.

We see no convincing reason to reverse, and the judgment is therefore affirmed.

Affirmed.

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