author: Mr. Justice Gbidley

text:
    Maier-Lavaty Company, Appellee, v. Aetna State Bank, Appellant.
    Gen. No. 31,991.
    1-. Negotiable instruments — bank discounting notes as not a purchaser. A bank in discounting promissory notes for a depositor who is not indebted to the bank, and placing the proceeds to the credit of his account, does not become a purchaser of the notes,

      2. Negotiable instruments — when default of bank m not presenting notes for payment is not waived. Where the holder of promissory notes discounts them with a bank which places the proceeds to the credit of his account and agrees to collect the notes, a failure of the bank to present the notes to the maker for payment at maturity is not waived by the holder taking up the notes and paying the bank the face amounts on notice of nonpayment by the maker, where the bank demanded that the notes be taken up and the holder did not know that presentment had not been made to the maker.
    3. Damages — prima facie case as to amount of damages in action by holder of note against collecting bank for negligence. In an action by the holder of promissory notes against a bank for damages from its negligence in not presenting the notes to the maker for payment at maturity, and thereby discharging an indorser, the introduction of the notes in evidence with a showing that they had not been paid make out a prima facie case that plaintiff has been damaged to extent of the face amount of the notes with interest.
    4. Municipal courts — admissibility of evidence when defense not pleaded as required by rule of court. In an action in the municipal court of Chicago by the owner of promissory notes against a bank for damages through its negligence in not presenting the notes to the maker for payment at maturity, and thereby discharging an indorser, evidence by the defendant that the indorser was insolvent is inadmissible where such defense has not been pleaded as required by Rule 15 of the court.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. C. H. McKinley, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1927.
    Affirmed.
    Opinion filed January 31, 1928.
    Dent, Dobyns & Freeman, for appellant.
    Charles W. Stiefel, Jr., for appellee.
   Mr. Justice Gbidley

delivered the opinion of the court.

On April 21, 1927, in a first-class action in contract, there was a finding and judgment against defendant for $1,518.44, and this appeal followed.

Plaintiff, in its statement of claim filed April 24, 1926, alleges in substance that it is the legal holder and owner of three promissory notes, executed by the DeLuxe Cab Company, a corporation, each dated March 28, 1925, each for the sum of $475.90, and payable to plaintiff’s order respectively in six, seven and eight months after date, with interest at 6 per cent per annum; that each note, prior to its delivery to plaintiff by the cab company, bore the indorsement of C. J. Michels en; that on April 6, 1925, plaintiff indorsed and delivered the three notes (together with four other notes) to defendant (plaintiff’s banker) and the same were “duly discounted” and the proceeds credited to plaintiff’s account with defendant; that at the time the notes were discounted, and thereafter and before, their maturity, plaintiff directed defendant to collect them and it agreed so to do, but, at the respective maturities of the notes, it “failed and neglected to present the same for collection and payment to the maker” (the cab company); that by reason thereof, and by virtue of the provisions of the Illinois Negotiable Instruments Law, Cahill’s St. ch. 98, said Michelsen was discharged from his liability as indorser and plaintiff has been unable to collect the amount of the notes from him; that the maker of the notes (the cab company) is financially irresponsible; that all moneys received by plaintiff from defendant and credited to plaintiff’s account with defendant, at the time of said discounting, have been rep aid by plaintiff to defendant; and that defendant is indebted to plaintiff in the sum of $1,518.44. It appears that this sum is the aggregate of the three notes, $1,427.70, plus accrued interest.

In defendant’s amended affidavit of merits, sworn to by Donald W. Riley, its vice president, it admits that on April 6, 1925, the three notes were delivered by plaintiff to it, but denies that they were “discounted” at that time; avers that it “purchased” them for value from plaintiff and “credited the proceeds to the account of plaintiff,” and that defendant became “a bona fide holder and owner in due course and beforé maturity” of them; denies that either at the time of their delivery, or subsequently, plaintiff directed it to collect them or that it agreed so to do, or that at their respective maturities it failed and neglected to make presentment of them to the maker; aver§ that on September 28, 1925 (when the first of the notes matured), and continuously thereafter until November 30, 1925, the maker was insolvent and that the indorser, Michel-sen, “was the president of said maker”; avers that, when each of the notes matured, plaintiff had knowledge of the failure of the makers to pay them, and that, upon the respective dates, plaintiff “bought the notes from defendant * * * paying to it the full face value thereof, together with interest, and released defendant from all or any liability”; and further avers that, after plaintiff had so bought the notes, it commenced a suit in the municipal court against Michelsen, wherein it sought to charge him as indorser upon the notes, and that the court “rendered a judgment against the plaintiff in that suit.”

On the trial the evidence disclosed that on April 6, 1925, defendant, at plaintiff’s request, discounted the three notes, together with four others, before their maturities and for their face value, aggregating $2,855.30, and credited plaintiff’s deposit account with said aggregate amount, and also made “discount” charges aggregating $74.21, on plaintiff’s said account xin the name of “Jerome Ott, Tailors,” which was the name of a branch of plaintiff’s tailoring business in Chicago; that when the three notes in question were exhibited to the bank to be discounted they bore the indorsement of Michelsen and that below his signature they then were indorsed by plaintiff; that, at the bank’s request and for further security to it, L. Sonnenschein, vice president of plaintiff, then added his signature as an indorser; that when the three notes, respectively, matured (viz, September 28, October 28 and November 28, 1925), the defendant bank did not make presentment of them to the maker (the cab company); that none of them was paid by the maker, which was insolvent; that in each instance the bank notified plaintiff of the nonpayment, and demanded of it that it take up the notes, which it immediately did, giving its checks to the bank for the respective face amounts, and plaintiff again became, and still is, the holder of them; that at these respective times plaintiff had on deposit in the bank to its credit balances of more than $5,000; and that plaintiff, after taking up the notes, brought suit upon them against the indorser, Michelsen. Plaintiff’s attorney, Stiefel, testified to the effect that in January and February, 1926, he had several conversations with Riley, defendant’s vice president; that in January, when he was preparing for the trial of plaintiff’s said suit against Michelsen, he told Riley to give him the name of the boy or clerk who (as Riley said) had presented the three notes to the cab company and that Riley said he would do so; but that subsequently, early in February, Riley came to his office and said to him (Stiefel): “I think I pulled a boner; I have not been able to find the boy who presented those notes.”

We think that the evidence sufficiently shows that, Avhen the three notes Avere discounted, it was understood that the bank Avould take all necessary steps to collect them; that it then undertook the duty of making presentment of them to the maker at their respective maturities; that it negligently failed to perform this duty, and that as a result Michelsen, the indorser on the notes, Avas discharged from liability as such. When the discounting transaction occurred, plaintiff made use of a deposit slip written out by Riley, showing the amounts of the several notes and the aggregate sum to be credited to plaintiff’s account with the bank. On this slip is the printed statement: “Right is reserved, and the bank is authorized to forward items for collection or payment direct to the drawee or payor bank * * * and to receive payment in drafts drawn by the drawee * * *, and, except for negligence, this bank shall not be liable for dishonor of the drafts so received in payment, nor for losses thereon,’.’ In 1 Daniel on Neg. Inst., 6th Ed., § 327, it is said: “It is the duty of the bank, as soon as the bill, note, or check is placed in its hands for collection, to take the appropriate steps necessary to its prompt payment or prompt acceptance, by making presentment for acceptance without delay, and presentment for payment at maturity. And if the instrument be not duly accepted or paid, the bank must take all necessary steps to fix the liability of the drawer, * * i:; If the bank fail in any of these duties, it becomes immediately liable in damages to the holder.” And, in speaking of the implied undertaking to make demand and protest, the author states (§ 328): “The theory of this rule is, that the receipt by the bank of negotiable paper, deposited for collection, forms an implied undertaking to make the demands and protests, and give the notices required by law or mercantile usage, for the perfect protection of the holder’s rights against all previous parties, * * *” (See, also sections 66 and 70, Illinois Neg. Inst. Law, Cahill’s 1927 St. ch. 98, ¶¶ 86 and 91.)

In urging a reversal of the judgment, counsel for the bank contend that it “bought” the notes of plaintiff on April 6, 1925, then paying their full face value, and became a holder of them in due course, and, hence it was under no obligation to make presentment of them at their respective maturities to the maker. We cannot agree. The evidence does not disclose that the bank purchased of plaintiff the notes outright, but rather that it discounted them. When at their respective maturities they were not paid by the maker, the bank in each instance demanded of plaintiff that it immediately pay back the moneys which had been advanced by the bank, and this plaintiff immediately did. In Warman v. First Nat. Bank of Akron, Ohio, 185 Ill. 60, 64, it is said: “We think the authorities fully sustain the proposition that a bank does not become a purchaser of negotiable paper by discounting the same for one not indebted to it at the time, and merely placing the amount which the assignor is to receive to his credit by way of deposit. ’ ’ And, again in that case, quoting from 4 Amer. & Eng. Encyc. of Law (2nd Ed.), at page 298, it is said (p. 65): “Where a bank discounts paper for a depositor who is not in its debt, and gives him credit upon its books for the proceeds of such paper, it is not a bona fide holder for value, so as to be protected against infirmities in the paper, unless, in addition to the mere fact of crediting the depositor with the proceeds of the paper, some other and valuable consideration passes.” And, in our opinion, under the facts and circumstances in evidence, there is no merit in counsel’s further contention that, assuming that the bank was in duty bound to make presentment to the maker of the notes at their respective maturities and that it negligently failed in this duty, plaintiff has no claim for damages against the bank because, after the maker had failed to pay the notes and the bank had notified plaintiff of that fact, plaintiff voluntarily took up the notes and paid to the bank their face amounts, and thereby “waived” the bank’s said default. Plaintiff’s taking up of the notes was not done voluntarily but upon the bank’s proper demand and, when it took them up respectively, it did not then know that presentment had not been made to the maker.

Counsel also contend that there Is' no evidence of the actual damages sustained by plaintiff by reason of the bank’s ■ default. In 1 Daniel on Neg. Inst., § 329, it is said: “The measure of damages which the holder is entitled to recover of the bank, or other collecting agent, who has been guilty of negligence or default in respect to it, is the actual loss which has been' suffered. 'That loss is prima facie the amount of the bill or note placed in its or his hands; but evidence is admissible to reduce it to a nominal sum. ‘The defendant may mitigate damages by showing either the solvency of the maker, the insolvency of the indorser, or that the paper was partially or wholly secured, or any other fact that will lessen the actual loss to the plaintiff; the real loss occasioned by the improper conduct of the defendant being the fact for the jury to arrive at in measuring the plaintiff’s damages.’ ” (Citing Borup v. Nininger, 5 Minn. 523; see also First Nat. Bank v. Fourth Nat. Bank, 77 N. Y. 320, 328; Merchants’ State Bank v. State Bank of Phillips, 94 Wis. 444, 446.) We think that, by introducing the notes and showing that they had not in any part been paid, plaintiff made out a prima facie case as to amount of damages suffered, viz, the face of the notes, plus interest. The maker admittedly was insolvent and unable to pay them. And as to the question, of the insolvency of the indorser, Michelsen, it was not alleged as a defense in defendant’s affidavit of merits that he was insolvent. The only allegation in said affidavit as to said indorser was that he “was the president” of the insolvent maker of the notes. Furthermore, said affidavit disclosed the fact that in a suit brought by plaintiff against said indorser the court had “rendered a judgment against the plaintiff in that suit.” .

Counsel further contend that the.court erred “in refusing to allow the defendant to show that the indorser, Michelsen, was insolvent at the time of his alleged discharge from liability as an indorser.” One of the two witnesses called by defendant was C. J. Michelsen. He testified that he was in the wholesale florist business; that prior to July 21, 1925, he had been the president of the DeLuxe Cab Company; that while acting as such he personally had .indorsed the three notes of that company; and that he ceased having any connection with the company on July 21, 1925, when its business was “turned over to a creditors’ committee.” He was then asked: “Q. What was your financial condition at that time as a result of the company going into the hands of a receiver; what happened to you?” Upon objection being made to the question, defendant’s attorney stated that plaintiff was claiming that the bank, because of its negligence, had discharged Michelsen as the indorser on the notes, and that he proposed to show that Michelsen was insolvent at the time, so that it would appear that plaintiff “was not hurt and had not suffered any loss” by the fact of Michelsen’s discharge as indorser. Thereupon plaintiff’s attorney made the further objection to the question and to the line of inquiry that it presented a defense not set up in defendant’s pleadings. Thereupon defendant’s attorney stated in substance that, while he was aware that Michelsen’s insolvency had not been set up in the affidavit of merits as a defense, still it was proper to be shown in mitigation of plaintiff’s damages. The court sustained the objection to the question and to the line of inquiry, saying that if Michelsen were insolvent that ‘-‘would be a question of defense, not a question of damages.” Among the rules of the municipal court is Rule 15, entitled “Pleadings,” in part as follows:

“The following rules of pleading shall be observed in framing the statement of claim, affidavit of merits, reply, * * * and such other pleadings as may be ordered filed in cases of the first and fourth classes:
“ (n) All such grounds of defense or reply as would raise issues of fact not arising out of the preceding pleadings must be specifically pleaded, including fraud, Statute of Limitations, release, * * * and all other matter by way of confession and avoidance.
“ (o) It shall not be sufficient to deny generally the grounds for relief alleged in the statement of claim, set off or counter-claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth; but the court may grant leave, where it may be just, to plead a general denial.”

• In the present case, we think that the question, whether, at the respective times the' three notes matured, Michelsen, the indorser, was insolvent, and unable to pay them, was one of fact to be determined by evidence. If he were in fact insolvent it presented a good defense to plaintiff’s statement of claim, in that it would show,that plaintiff was not injured by his discharge as indorser occasioned by defendant’s default in not making presentment to the maker of the notes. By the rules, defendant .was required to plead that defense. And in the present case plaintiff justly was entitled to have notice of such defense so that it might on the trial be prepared to meet by contrary evidence, if it could, any evidence introduced by defendant tending to show Michelsen’s insolvency. We think that under the pleadings and the rules of the municipal court (which are contained in the present transcript duly certified) the trial .court did not err in refusing to admit the offered evidence as to Michelsen’s claimed insolvency.

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

Affirmed.

Barnes, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Olive E. Balch, Appellee, v. Edmund J. English and Mary Ann English, Appellants.
    Gen. No. 32,069.
    1. Gifts — enforcement of rule as to degree of proof required. The rule that a gift must be established by clear proof should be enforced where the alleged donor is dead and the rights of heirs and creditors are involved.
    2. Agency — revocation by death. Where a daughter is given notes or mortgage bonds by her father for collection and to pay his bills with the proceeds, the agency ends with -his death and no subsequent act of the daughter is binding upon his estate.
    3. Negotiable instruments — right of executrix to sue as owner in her individual name. A daughter who receives stolen notes or mortgage bonds from her father has no right, after his death, to sue the maker in her own name as owner under the theory that the property passed to her as executrix of her father’s estate and that it could not be claimed that she, as an individual, did not have the authority of the executrix to sue upon them in her own name.
    4. Negotiable instruments — right of legatee to sue as owner in her individual name. A daughter who receives stolen notes or mortgage bonds from her father has no right, after his death, to sue the maker in her own name as owner under the theory that she has an equitable interest in the property as legatee, and that whether or not there is an equitable interest in others is no concern of the maker.
    5. Former adjudication — judgment for one not owning property as not bar to suit by legal representative of decedent. Where a plaintiff sues the maker as the legal owner of notes and mortgage bonds that belong to the estate of a decedent, a judgment against the maker will not bar an action by the legal representative of the estate of the decedent.
    6. Parties — necessity that plaintiff be such as to malee a recovery a bar to other action on same. debt. A defendant to an action has a right to require that there shall he such a plaintiff as will make the recovery a bar to any other action by another for the same debt.
    Appeal by defendants from the Municipal Court of Chicago; the Hon. Charles F. McKinley, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1927.
    Reversed.
    Opinion filed January 31, 1928.
    Dent, Dobyns & Freeman, for appellants.

      Grossberg, Lyon & Brill, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

In the municipal court of Chicago, -in an action of the first class, in a trial before the court without a jury, Olive E. Baleh, plaintiff, obtained a judgment in the sum of $2,832.27 against Edmund J. English and Mary Ann English, defendants. This appeal followed.

The claim of the plaintiff was based upon five promissory notes or mortgage bonds of $500 each, all dated May 6, 1920, made by the defendants and payable to béarer or the registered owner on May 6, 1925, at the Reliance State Bank of Chicago, and secured by a trust deed on certain real estate. The plaintiff, in her statement of claim, alleges that she is the legal owner of the notes or mortgage bonds.

It is conceded that the Mayanlake Candy Company, located at 1110 West Lake street, Chicago, purchased the five notes or bonds in question on March 17, 1921, from the Reliance State Bank, and that the notes or bonds were placed in the company’s safe, where they remained until January 27, 1924. On that date the company’s office was burglarized, the safe blown up, and the notes or bonds in question — together with other property — stolen. The company notified the bank of the theft of the notes or bonds on the following morning and requested that payment on them be stopped. The candy company furnished a surety bond to the mortgagors, the defendants, indemnifying them in case the bonds were found,- and collected from the bank the interest maturing on the coupons in May, 1924, November, 1924, and May, 1925, and the principal of the bonds at the date of the maturity, May, 1925. None of the coupons on the stolen notes or bonds were presented for payment, but the bonds, with only the final coupons attached, were presented to the bank in May, 1926 — a year after the notes or bonds matured. Payment on the notes or bonds was refused.

On the hearing of the cause the bonds were produced by the plaintiff and offered in evidence. The plaintiff testified that her father died March 28, 1925; that about two or three months before his death and just before he went to a hospital for an operation, “he had expended a lot of money before dying, for treatment, and he had used up quite a bit of ready cash, and he gave me the bonds in an envelope and told me to cash them. * * * I talked with Mr. Balch about it and he said there was no need to cash them because he had no idea my father was seriously ill as he was, and he asked me not to cash them, and he said put them away, and whatever money you need I will take care of that for you, which he did. I put them away before he died in my vault in the First Trust and Savings Bank Building”; and did not take them out until the latter part of April or the early part of May, 1926. “I had forgotten all about them. When I went to Europe I was very ill and when I came back I was very ill, and I never gave the bonds a thought until I was going to do some purchasing, and I ran short of money, and I asked Mr. Balch for some money, and he said to go down and get them and cash them and see what they are, and I went down and got them and took them to the bank, and that is when I heard they had been stolen”; that she returned from Europe in August, 1925; that the first time she ever saw the bonds was when she brought them home in the latter part of April or early part of May, 1926; that up to that time they were in a sealed envelope; that her father gave them to her in November, 1924; that they were in the envelope and she did not see them and she only knew what was in the envelope from what her father told her; that he said that they were some bonds that she could cash through Mr. Madsen; that he did not say what kind they were; that she did not know what was in the envelope at any time until she opened it; that her father said they were five real estate bonds worth $500 a piece; that it did not occur to her that there might be interest due on the bonds until after she returned from Europe; that when her father gave her the bonds he was going to the hospital to be operated on; that “he had been taking treatments for cancer for months and months, radium treatments, and they were very expensive, and I was taking care of the bills for him, I was paying the bills; and he was in no condition to take care of those things himself; * * * he was giving me money now and then to pay these bills; he was in no condition to take care of them for himself; I was taking care of all my father’s affairs at that time”; that between the time he gave her the bonds and April or May, 1926,'she went to the vault and opened her deposit box once or twice and saw the envelope there; that it was still sealed; that at the time her father gave her the envelope he also “gave me $1,700 or $1,100, — I have forgotten. He gave me money at different times. I just can’t recall the exact amount he gave me”; that her father left a will naming her as the executrix; that the estate was left to herself and brother; that her brother received $3,000 cash and she received the balance, $7,500 or $7,400; that she has been unable to find out, although she has tried every way, from whom her father got the bonds; that at the time her father gave her this envelope “he didn’t make any specific statements that it was a gift; he told me to take them and cash them and when I needed the money I should pay his bills. I had been taking care of these bills for his treatments; he had been giving me money, and I had been'taking care of the bills for giving his treatments. * * * I was not paying his bills, but he was giving me money to pay the bills. I was not paying it out of my own pocket”; that she was acting as his agent; that “he gave me.the money to .pay the expenses, and when the money ran out he handed me some money in cash and some envelope”; that she never heard that the bonds were stolen until they were presented for payment in 1926. The plaintiff was the sole witness in her own behalf.

The defendants contend that the plaintiff proved by her own testimony that she had no title to the bonds and that they belonged to her father at the time of his death and belong now to his estate; that she was an agent, without interest, to collect the bonds and pay the bills of her father with the proceeds and that the death of her father put an end to the agency and that" the plaintiff cannot maintain the present suit. The contention of the plaintiff is “that the property in the bonds plainly passed from the father to the plaintiff in the father’s lifetime.”

A gift must be established by clear proof. (Wright v. Buchanan, 287 Ill. 468, 478, and cases cited.) Certainly in a case where the alleged donor is dead, and the rights of heirs and creditors are involved, this rule should be enforced.

After a careful consideration of the evidence, we are satisfied that the notes or bonds (as between the plaintiff and her father) were the property of the father, and that the plaintiff had no interest in the same save that her father made her his agent for the purpose of collecting the bonds or notes and paying his bills with the proceeds.

“It is a well-established rule of the common law that the death of .the principal puts an end to the agency when the authority is not coupled with an interest, and no act of agency subsequent thereto is binding upon the estate of the principal, for no one can do an act in the name of one who is dead.” (1 Amer. & Eng. Encyc. of Law [2d Ed.], p. 1222. See also 2 Corpus Juris 546; Risley v. Fellows, 5 Gilm. [Ill.] 531; Turnan v. Temke, 84 Ill. 286; Wallace v. Bozarth, 223 Ill. 339, 342; Garber v. Myers, 32 Ill. App. 175; Trubey v. Pease, 240 Ill. 513, 522; Darr v. Darr, 59 Iowa 81; Triplett v. Woodward’s Adm’r, 98 Va. 187.)

Plaintiff further contends that “even if the property did not pass to the plaintiff she was executrix of her father’s estate and it passed to her as executrix after his death, and anyone could have sued on them with her authority. It cannot he said that she, as an individual, did not have the authority, of the executrix to sue upon them in her own name.” It is a sufficient answer to this rather strained argument to say that the plaintiff in her statement of claim alleges that she is the owner of the notes or bonds, and the defendants in this proceeding have the right to question the legal right of the plaintiff to sue them for the reason that a judgment against them in the present case would be no protection in a suit filed by the legal representatives of the estate of the deceased.

The plaintiff further contends that she is a legatee of the deceased and has an equitable interest in the bonds, and whether or not there is an equitable interest in others is no concern of the defendants. In support of this contention the following cases are cited: Richards v. Betzer, 53 Ill. 466; Lohman v. Cass County Bank, 87 Ill. 616; Hoff v. Dougherty, 243 Ill. App. 159. These cases hold that the right of action upon a promissory note is in the person holding the legal title, notwithstanding the fact that another person may have an equitable interest therein, and that it is no concern of the maker that a third person holds an equitable interest in the note. None of these cases has any application to. the facts of the instant one, and, as we have said before, the defendants have a right in this proceeding to protect themselves against the danger of two judgments against them.

In the present case the plaintiff is suing as the legal owner of the notes or bonds and the evidence shows clearly that she is not the owner of. the bonds or notes and that the same belong to the estate of the deceased. If the defendants were to pay the judgment in the present case, that fact would not bar an action by the legal representatives of the estate of the deceased. (Garber v. Myers, supra.) A defendant has a right to require that there shall be such a plaintiff as will make the recovery a bar to any other action by another for the same debt. (Parks v. Brown, 16 Ill. 454, 455.) We have heretofore referred in this opinion to the well-known rule of law that no act of agency subsequent to the death of the principal is binding upon the estate of the principal, for no one can do an act in the name of one who is dead. (See authorities cited.)

In the view that we have taken of this case it will not be necessary for us to pass upon several contentions raised by the defendants.

Holding, as we do, that the plaintiff has no right under the law and the evidence to sue the defendants in the present proceedings, the judgment of the municipal court of Chicago will be reversed.

Reversed.

Baretes, P, J., and Gridley, J., concur.


author: Mr. Presiding Justice Taylor

text:
    James Donahoe, Appellee, v. City of Chicago, Appellant.
    Gen. No. 31,890.
    1. Appeal and error — matters considered in absence of bill of exceptions. The Appellate Division is limited to the contents of the common-law record in reviewing a judgment in the absence of a bill of exceptions. . ,
    2. Appeal and error — presumption that evidence supports judgment. In considering, in the absence of a bill of exceptions, the contents of a common-law record, it will be presumed that the evidence was sufficient to support the judgment under review either upon appeal or writ of error.
    3. Appeal and error — when agreed case does not meet statutory requirements. In an action against a city for unpaid salary by one claiming to have been elected judge at a stated election, a so-called stipulation of facts which recites in the preamble it is agreed that •in the trial the following facts may be taken as proved, followed by a statement setting forth a series of facts concerning the election, is not an agreement “as to the question or points of law” arising in the case, and when signed by counsel and incorporated in the record it is not a certificate by counsel “as to the question or points of law arising therein, ’ ’ within the contemplation of Cahill’s St. eh. 110, § 104, which permits a certificate of agreement as to the question or points of law arising therein to be certified with the decision to the Appellate Court as if a complete record had been transcribed and certified to that court.
    4. Appeal and error — insufficient record and absence of error as ground for dismissal. An appeal from a judgment will be dismissed upon granting a motion to strike from the record a so-called stipulation of facts which does not come within the requirements of Cahill's St. ch. 110, § 104, concerning the certification of agreement as to the questions or points of law arising in the case, there being no bill of exceptions and the common record showing no substantial error.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Worth E. Caylor, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Appeal dismissed.
    Opinion filed February 9, 1928.
    Francis X. Busch and Samuel A. Ettelson, Corporation Counsel, for appellant; Frank J. Corr and Edward M. Quinn, Assistant Corporation Counsel, of counsel.
    Hopkins, Starr & Hopkins, for appellee; Merritt Starr and O. John Rogge, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

James Donahoe, the plaintiff, claiming that he was elected judge of the municipal court on November 3, 1914, but that the salary of the office was not paid to him for the full term, brought suit in assumpsit against the City óf Chicagó, and on January 22, 3.927, recovered judgment in the sum of $27,000, This appeal is by the City of Chicago from that judgment.-

As showing grounds for reversal, all that counsel for the City has presented to this court is a common-law record, and it is contended on behalf of the plaintiff that the transcript of the record is insufficient to challenge the judgment of the trial judge on the merits of the case. There being no bill of exceptions, we are limited, under the law, to the contents of the common-law record, and in considering that record, it is to be presumed that the evidence was sufficient to justify the judgment, either upon appeal or writ of error. People v. Illinois Merchants’ Trust Co., 320 Ill. 365.

The common-law record, as it appears here, contains the praecipe, the appearance of the defendant, the declaration, the plea of the general issue by the defendant, the judgment of the court, and, also, contains a copy of a document entitled, ‘ ‘ Stipulation of Facts, ’ ’ consisting of four typewritten pages, and which purports to be signed by the defendant, City of Chicago, by the corporation counsel, and by the plaintiff, James Donahoe, by his attorneys. There is no order of any kind pertaining to the stipulation of facts.

On behalf of the plaintiff, a motion was made to strike and expunge the purported stipulation of facts, occupying pages 21 to 26, inclusive, of the record, and the motion was taken with the case.

Counsel for the defendant, objecting to the motion, contend that the common-law record shows that it was an agreed case, pursuant to section 104. ch. 110, of Cahill’s Rev. Ill. St. 1925. .

In our judgment, the so-called stipulation of facts is not entitled to be considered as a proper part of the common-law record (Wilson v. McDowell, 65 Ill. 522) and could be brought to the attention of a court of review only by being embodied in a bill of exceptions, unless, however, the record in this case comes within the purview of section 104, ch. 110, of the Revised Statutes.

The first part of section 104 provides for a certificate of a question of law by the trial judge with the assent of the parties litigant. As, in the instant case, there is no such certificate, that part of the section is not available. The second part of section 104 provides that the parties may agree as to the question or points of law arising therein, and the same may be certified by their counsel and “upon such certificate being made, the same shall be filed in the court * * * and a copy of such certificate, certified by the clerk of said court, with the decision thereon and final decision in the case or proceeding, to the Appellate Court * * * and filed therein; and, upon filing the same, the like proceedings may be had in the Appellate Court * * *, as if a full and complete record had been transcribed and certified to said court.”

The preamble of the “Stipulation of Facts” is as follows:

‘ ‘ Come now the plaintiff and defendant in the above entitled cause by their respective attorneys of record herein and stipulate and agree that in the trial of the above entitled cause the following facts in so far as competent, relevant and material may be taken as proved and established without the introduction of any other testimony or evidence relating thereto, meaning and intending hereby to stipulate that the following are facts in connection with the transaction and not that proof of such facts is necessarily admissible in evidence.”

• Following the preamble are twelve paragraphs which set forth a series of facts concerning the general election of November 3, 1914, at which ten judges were to be elected for the municipal court of Chicago.

That is not an agreement “as to the question or points of law” arising in the case; and when signed' by counsel and incorporated in the record is not a certificate by counsel “as to the question or points of law arising therein.” In City of Waukegan v. DeWolf, 258 Ill. 374, 376, the court said, this section “authorizes the parties in any suit or proceeding to make an agreed case containing the points of law at issue between them, and the agreed case, with the decision thereon, may be certified to the Appellate Court or Supreme Court without certifying any fuller record in the case, and errors may be assigned and the case shall proceed in the same manner as if a full record had been certified. The object of the section is to enable parties, by agreement, to submit the questions in dispute between them for review without the formality of a bill of exceptions.”

Even if we should assume that the document entitled “Stipulation of Facts” was an agreement as to certain facts — although the preamble leaves that somewhat in doubt — still it fails utterly as an agreement “as to questions or points of law,” which alone the statute makes provision for.

Then, too, the final order of the court, of January 22, 1927, contains the following: “And the court now here after hearing all the evidence adduced, the arguments of counsel, and being fully advised” finds the issues for the plaintiff. To what evidence did the court refer? Without a bill of exceptions, we do not know.

Some objections are made as to the judgment being larger than the act damnum in the original declaration, and as to interest, but they are not well taken.

There being no bill of exceptions, and the record not coming within the requirements of section 104, and the common-law record showing no substantial error, the motion to strike the stipulation of facts from the record is allowed and the appeal dismissed.

Appeal dismissed.

Holdom and Wilson, JJ., concur.


text:
    William A. Schrei, Appellee, v. Constance S. Van Alyea and Chicago Title & Trust Company, Trustee. James E. Barry, Appellant.
    Gen. No. 32,180.
    1. Quieting title — right of purchasers subsequent to trust deed to have same removed as cloud on title because given without consideration. Purchasers of land, who acquired title subject to a trust deed securing notes, are not entitled to have the deed removed as a cloud on title merely because no consideration had passed for the execution of the trust deed, and to have the land partitioned free from the lien, where the recordation of the deed was knowledge to the purchasers, the deed had been on record for nine years at the time of purchase and the notes had been overdue for four years, and the notes are owned by a bona fide purchaser who also owned the trust deed and who received from the original maker a written declaration that there was no defense to the deed and notes.
    2. Partition — division of land between owners of undivided interest subject to trust deed. On a bill by owners in possession of undivided half interests in land to have a trust deed removed as a cloud on title and the land partitioned free from the lien of the deed, the land may be decreed to be partitioned subject to the lien upon refusing to decree the removal of the deed as a cloud on title.
    3. Foreclosure of mortgages — right to foreclose on cross-bill against maker not a party to original bill. Where purchasers of undivided half interests in land subject to a trust deed securing notes file a bill to remove the deed as a cloud on title because the ,deed was executed without consideration, and for a partition of the land without the lien, the present owner of the deed and notes, who is a party defendant, is not entitled to maintain a cross-bill to foreclose the deed for nonpayment of the notes, where the original maker, from whom he purchased the notes, is not a party to the original bill, although made a party by the cross-bill.
    4. Foreclosure of mortgages — right to foreclose on cross-bill not germane to original bill. Where purchasers of undivided half interests in land subject to a trust deed securing notes file a bill to remove the deed as a cloud on title because it was executed without a consideration, and for a partition of the land without the lien, the present owner of the deed and notes, who is a party defendant, cannot maintain a cross-bill to foreclose the deed for nonpayment of the notes, since foreclosure of the deed is not germane to the subject of partition.

      5. Foreclosure op mortgages — when money decree on nonpayment of secured notes may not he had on cross-hill. Where purchasers of undivided half interests in land subject to a trust deed securing notes file a bill to remove the deed as a cloud on title because the deed was executed without a consideration, and for a partition of the lamí without the lien, the court is without jurisdiction to render a money decree against the original maker of the notes, upon a cross-bill by the present owner of the deed and notes, where the original maker, who was merely brought into the proceeding by the cross-bill, seeks no action against any of the parties and prays for no relief in regard to the notes and deed.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Oscar Hbbel, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1927.
    Reversed and remanded with directions.
    Opinion filed February 9, 1928.
    Timothy J. Fell, for appellant; Frederick 0. Floberg, of counsel.
    Charles D. Quirk, for appellee; Ralph J. Beckler, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On October 15, 1925, the. complainant, William A. Schrei, filed his bill of complaint in the superior court, alleging, among other things, that he and Constance S. Van Alyea, a defendant, were the owners in fee simple and in actual and exclusive possession of a certain lot situated in the City of Chicago, which was subject to a trust deed from Nora O’Connor to the defendant, Chicago Title & Trust Company, dated June 24, 1916, and recorded on July 7, 1916, made to secure her three notes, two for $500 each, and one for $3,200, payable in three, four and. five years, respectively; that James E. Barry, a defendant, was the owner and holder of the said notes and trust deed; that his, the complainant’s, interest in said property was an undivided one-half interest, and that the interest of the defendant, Van Alyea was that of an undivided one-half interest; that the defendant Van Alyea derived title by a quitclaim deed from one Hubbard and wife, dated February 10, 1925, and recorded February 18, 1925; that the complainant acquired his undivided one-half interest in said property by deed from Van Alyea and her husband, recorded in the recorder’s office of Cook County, August 4, 1925; that the premises were vacant and unimproved, with the exception of an abandoned foundation; that no persons other than complainant Schrei and the defendant Van Alyea, Chicago Title & Trust Company, trustee, and Barry have any interest in or title to the premises, or are in possession thereof; that no part of the money evidenced by the notes secured by the trust deed referred to was ever paid to the maker (Nora O’Connor) or to anyone for her, nor was any part thereof used for any improvement at any time erected or being erected on said property.

The bill prayed that the trust deed above referred to be set aside and declared null and void as a cloud upon the title to the property; that a division or partition of the real estate may be made between the parties entitled thereto, free and clear of the cloud created by the trust deed.

Answers were filed by the defendants, Chicago Title & Trust Company, as trustee, Van Alyea and Barry; and on February 13, 1926, Barry filed a cross-bill of complaint, and on June 7, 1926, filed a supplemental cross-bill. He therein denied the substantial charges in the original bill of complaint in regard to the trust deed being a cloud on the title; and alleged, among other things, that on June 24, 1916, Nora O’Connor became indebted to him in the sum of $4,200, and made and delivered the promissory notes above mentioned; that he is the owner of the notes; that at the time the notes and the trust deed were executed and delivered to him, Nora O’Connor executed and delivered a certain writing, dated June 24,1916, in which she set forth that she had no defense to the notes and trust deed above mentioned, and that her statement was made for the benefit of any subsequent purchaser of her notes and trust deed; that nothing has been paid to him upon said notes and trust deed.

By the cross-bill of Barry, Nora O’Connor was made a party to the proceedings, and on March 30, 1926, she entered her appearance.

On March 19, 1926, Sehrei filed an answer to the cross-bill of Barry, in which he denied that Nora O’Connor was indebted to the cross-complainant in any sum whatever.

Various replications were filed; and on May 21,1927, Nora O’Connor filed her answer to the cross-bill of Barry. An answer to the cross-bill of Barry was filed by Van Alyea. Various other pleadings were filed, but they are not here material to the issue.

The cause was referred to Master in Chancery Humphrey, and on January 11, 1927, he filed his report, together with the evidence which had been taken before him.

He found that the complainant Sehrei and the defendant Van Alyea were the owners in fee and in possession of the premises in question; that the premises were subject of record to the trust deed executed by Nora O’Connor, the former owner of the property, dated June 24,1916, given to secure the notes described in the bill of complaint; that the defendant and cross-complainant Barry was the owner and holder of the notes and trust deed, and had filed his cross-bill of complaint seeking to foreclose the trust deed.

That the defendant Van Alyea derived her title to the premises by quitclaim deed, dated February 10, 1925, from one Hubbard and his wife; that the complainant Sehrei obtained his title to an undivided one-half of the premises by deed, which was filed for record, from the defendant Van Alyea and her husband; that the complainant and the defendant Van Alyea each claims an undivided one-half of said premises; that the property is vacant and unimproved, with the exception of an abandoned foundation.

That the cross-defendant, Nora O’Connor, at one time the owner of the property, was about to begin the erection of a building thereon; that she went to the Auburn State Bank and made a written application for a building loan in the sum of $4,200; that the bank agreed to make such a loan, and made out the notes in question, and prepared a trust deed, by which she conveyed the property to the Chicago Title & Trust Company, as trustee; that she signed the notes, and signed and acknowledged the trust deed; that the trust deed Avas thereupon filed in the recorder’s office; that she also signed a further document dated June 24, 1916, addressed, “To Whom It May Concern and to Any Subsequent Purchaser or Purchasers” of the notes, Avhich contained the f olloAving:

“This is to notify you that we have no defense to our notes # * * being for the sum of $3,200.00, * * * which notes are secured by a trust deed to the Chicago Title & Trust Company, recorded, * * * nor have we any defense to the trust deed securing the same. * * * We make this statement for the benefit of any subsequent purchaser of our said notes and trust deed securing the same, who may rely thereon in purchasing the same.”

That the application, trust deed and notice to purchasers were all delivered to the bank on the same day; that the president of the bank told her that her money would be ready to be paid out upon her bill, or upon her order; that no payment Avas ever made on said notes and trust deed, or to anyone connected with the premises in question; that some time later, in the year 1916, the notes and trust deed were sold by the bank to the defendant and cross-complainant Barry; that no payments Avere ever made by the said Nora.O’Connor on account of the principal or interest on the notes; that the first interest note upon each of the principal notes was presented to the bank and paid by it on or about December 24,1917; that shortly after that time, the bank failed and went out of existence, and no further moneys were ever paid by the bank to Nora O’Connor on account of the proposed building on the premises in question.

That it does not appear that Barry made application to Nora O’Connor to find out whether she had any defense to the notes and trust deed until about the time the interest notes became due and payable; that he then called upon her, and it was claimed by her that she received nothing on the notes, and that she stated that she would make no payments on account thereof.

The master therefore found that there was no consideration paid for the execution of the trust deed and that it was not now and never had been a lien upon the premises in question; that the complainant, Schrei, and the defendant Van Alyea were the owners in fee simple of the premises, and were entitled to have a decree entered finding that the trust deed above mentioned was a cloud upon the title to the property, and recommended that it be removed by decree of the court.

The master further found that Barry, having acquired title to the notes for a valuable consideration before maturity, was entitled to have a judgment entered against Nora O’Connor for the amount remaining unpaid upon the notes, being the sum of $7,444.72; that Barry ivas entitled to a decree against Nora O’Connor, the cross-defendant, in that amount.

The master recommended that a decree be entered directing the removal of the lien of the trust deed as a cloud upon the title, and granting partition, and that the cross-complainant Barry recover from Nora O’Connor the amount above mentioned.

Objections to the master’s report were filed and overruled, and exceptions made to the report by the chancellor. Upon a hearing of the exceptions to the master’s report, the chancellor, on February 21, 1927, entered a decree finding that the complainant, Sehrei, and the defendant Van Alyea were the owners of the property in fee simple and were in possession; that it was subject to the trust deed given by Nora O’Con-nor on June 24, 1916, which was recorded, to secure the notes above mentioned; that Barry, cross-complainant, was the owner and holder of the notes and trust deed.

That Van Alyea derived title to the property by quitclaim deed from Hubbard and wife on February 10, 1925; that the complainant Sehrei obtained his title by quitclaim deed from Van Alyea and her husband, which was acknowledged August 1, 1925, and filed for record.

That no part of the funds evidenced by the indebtedness secured by the trust deed was ever paid to the maker, or to anyone for her, or was any part thereof used for any improvement at any time erected or being erected upon the property; that the trust deed should be removed as a cloud upon the property; that no consideration passed for the execution of the trust deed, and it was never a lien upon the premises in question.

The court ordered that the cross-bill of complaint and supplement of Barry be dismissed; that the complainant, Sehrei, and the defendant Van Alyea were owners each, respectively, in fee simple to one-half of the real estate, free and clear of the lien of the trust deed; that the trust deed, constituting a cloud upon the title, be removed and a release executed by the Chicago Title & Trust Company, trustee, within three days; and that a partition of the real estate be made.

From this decree, Barry, the. defendant and cross-complainant, alone has appealed.

It is the contention of Barry, that the court erred (1) in dismissing his cross-bill of complaint to foreclose the trust deed, (2) in finding that the trust deed was a cloud upon the title to the premises in question, (3) in ordering the trust deed to be removed, (4) in ordering a partition of the property, and (5) in decreeing that James Barry was not entitled to a money decree against Nora O’Connor.

In the view we take of the case, Schrei and Van Alyea were entitled to partition, but subject to the trust deed, and all the rest of the relief prayed for in the bill and cross-bill and supplement should have been denied, and the cross-bill and supplement dismissed for want of equity.

When Schrei and Van Alyea got title, the trust deed was of record and they had notice. They got title from and through Nora O’Connor and Hubbard and wife. It is true that she got through the bank the payment of only one interest note, and that, at that time, she had not received the agreed upon consideration for the notes. But Barry purchased the notes before maturity from the bank for a consideration, and she had put the bank in a position to sell them, and had signed a document by which she undertook to inform Barry, among others, that she had no equities, latent or otherwise, against the obligations the notes purported to represent.

In our judgment, the complainant and Van Alyea have no right to take advantage of equities which Nora O’Connor might have as against Barry. The complainants did not make her a party. Her rights as against Barry may be adjudicated in a suit between her and Barry. But here we find the complainant and Van Alyea bought the property knowing (by reason of the recording) that the trust deed was then on the property. The complainant and Van Alyea bought the property with their eyes open as to what the records showed, i. e., that it was burdened by a trust deed. Nora O’Connor might never claim that it was made to secure notes that were without consideration. At most, the complainant and Van Alyea are entitled, as we have said above, to a partition, subject.to the trust deed. Barry was not entitled to foreclose, first, because Nora O’Connor was not a party to the original proceedings, and, second, foreclosure of the trust deed was not germane to the subject of partition. Parlin & Orendorff Co. v. Galloway, 95 Ill. App. 60. They took title through her, and rely upon it; and when they took title they knew she had given the trust deed and that it stood on record against the property. They now wish to have their title which they got through her sanctioned, but they ask that her prior acts, the giving of the trust deed, and which was recorded, be annulled, and entirely for their benefit; in other words, the grantees wish to take advantage of equities which she might have had, but which she might never assert, in order to give them priority over Barry’s trust deed, i. e., in other words, they now seek, without showing any right based upon any consideration, to be subrog'ated to whatever equities she might have against Barry. Schrei and Van Alyea did not get title until 1925, and at that time the trust deed had been on record for nine years, and all the. notes had been overdue for about four years. Certainly in that situation they cannot reasonably claim ■ that they can be allowed to take her place and claim the advantage of any equities she might have against Barry. Olds v. Cummings, 31 Ill. 188, nor any of the decisions following it, go that far.

Of course, as Nora O’Connor was a stranger to the complainant’s proceedings, the court was without jurisdiction to render a money decree, based upon the cross-bill, against her. Bouton v. Cameron, 205 Ill. 50. She brought no action against any of the parties and prayed for no relief in regard to the notes and trust deed. The case of Zollman v. Jackson Trust & Savings Bank, 238 Ill. 290, involves different proceedings and a different set of facts,' and is clearly distinguishable from the instant case.

For the reasons stated, the decree will be reversed and the cause remanded with directions to enter a decree of partition, subject to the trust deed, and that the cross-bill of complainant be dismissed for want of equity.

jReversed and remanded 'with directions.

Holdom and Wilson, JJ., concur.


text:
    Morris Jaffe, Appellee, v. James H. Hooper et al. James H. Hooper, Appellant.
    Gen. No. 32,488.
    1. Injunctions — application of statutory provisions where bill to enjoin judgment is not brought by judgment debtor. Seetons 4 to 8 of the Injunction Act, Cahill’s St. eh. 69, jfjf4-8, in regard to enjoining judgments at law, do not apply where the bill is not brought by the judgment debtor in the action at law and where an injunction restraining the judgment is an incidental part of the main relief sought.
    2. Injunctions — condition of bond on issuing injunction to enjoin a judgment. An injunction may issue to enjoin a judgment at law without the bond being conditioned for the payment of the judgment if the injunction is dissolved, as provided by Cahill’s St. ch. 69, U 8, where the injunction is sought, by one who is not the judgment debtor in the action at law, to preserve a status quo as an incidental part of the main relief sought, and where the bond is conditioned to pay damages if the complainant fails.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Philip L. Sullivan, Judge, presiding.
    Heard in the third division of this court for the first district at the December term, 1927.
    Affirmed.
    Opinion filed February 9, 1928.
    A. D. Gash, for appellant.
    Isidore Fried, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On November 26, 1927, Morris Jaffe, as complainant, filed a bill of complaint in the circuit court, praying, among other things, to be allowed to redeem certain real estate under a judgment, execution and levy, and praying, also, for an injunction restraining the defendant, James H. Hooper, from enforcing a judgment which he had obtained in the municipal court against one Jettas, who was a tenant, of the complainant, of the premises in question.

On December 2, 1927, the chancellor entered an order restraining and enjoining the defendant, James H. Hooper, from in any way prosecuting his suit in the municipal court, in Chicago, Case No. 1265581, against Jettas, or enforcing the judgment therein obtained, or bringing any other suit for rent of the premises described in the bill of complaint, or bringing any suit to oust the complainant or Jettas from the premises until the further order of the court, upon complainant filing a bond in the sum of $500 with sureties to be approved by the court. Pursuant to that order, a bond was duly filed by the complainant and. approved by the court.

An interlocutory appeal was then taken by the defendant, Hooper, from the order of the court granting the above-mentioned injunction. In the brief for the defendant, it is claimed that the injunction bond as given, that is, the $500 bond, did not provide for the payment of the judgment, the collection of which is sought to be restrained, and that, therefore, the injunction order of December 2,1927, should be reversed.

The defendant cites in support of his contention the following cases: Central Stock & Grain Exchange v. Pine Tree Lumber Co., 140 Ill. App. 471; Ebann v. Brown, 139 Ill. App. 213; and Stirlen v. Neustadt, 50 Ill. App. 378.

Section 8 of chapter 69 on Injunctions, Cahill’s St. ch. 69, ¶8, provides that: “Before an injunction shall issue to enjoin a judgment, the complainant shall give bond to the plaintiff therein, in double the amount of such judgment, with sufficient surety approved by the court, judge or master, conditioned for the payment of all moneys and costs due to the plaintiff in the judgment, and such damages as may be awarded against the complainant in case the injunction is dissolved. If the injunction be dissolved in the whole or in part, the complainant shall pay, exclusive of legal interest and costs, such damages as the court shall award, not exceeding ten per centum, on such part as may be released from the injunction.”

An examination of the bill of complaint shows that the injunction asked for, in so far as it pertained' to the judgment obtained by the defendant Hooper against Jettas, in the suit in the municipal court, was merely an incidental part of the relief prayed for, and, further, was relief sought by one, the complainant, who was not the person against whom the judgment sought to be enjoined was rendered. In a conventional case, where an injunction is issued to enjoin a judgment, the complainant is the original judgment debtor against whom the judgment was rendered.

It is stated in the brief of counsel for the complainant that no cases have arisen in Illinois where the applicability of sections 4 to 8 of the Injunction Act, Cahill’s St. ch. 69, ¶¶ 4-8, to cases wherein a judgment is sought to be enjoined by some one other than the original judgment debtor, was considered.

In the instant case, the complainant contends that the defendant claims ownership of the complainant’s real estate by virtue of an execution sale which is void by reason of certain facts stated in the bill, and which facts are not here controverted; that the injunction which the chancellor granted was merely to preserve the status quo until the merits of the case could be determined; that it restrains the defendant from ousting the complainant, or his tenant Jettas, from the premises, or bringing any suit for rent against the tenant, and restrains the defendant from proceeding with a judgment for rent which he had obtained by default against the complainant’s tenant Jettas, that is, that the complainant desires to prevent the defendant from harassing him and his tenant while these proceedings are pending, and that the injunction wás granted for that purpose.

We think that an examination of sections 4 to 8 of the Injunction Act shows that they relate only to cases in which the person seeking to enjoin the judgment at law is the one against whom the judgment was originally rendered.

Section 5 of the act provides that every injunction when granted shall operate as a release of all errors in the proceedings at law that are sought to be enjoined. Certainly the legislature did not contemplate that some one other than the judgment debtor could release errors in the proceeding at law as to the original judgment debtor.

Section 7 of the act provides that only so much of any judgment, at law shall be enjoined as the complainant shall show himself equitably not bound to. pay. That language tends to show that the statute was meant to apply only in a case where the complainant seeking the injunction was the judgment debtor in the proceeding at law.

As to section 8, it provides that before an injunction shall issue to enjoin a judgment, the complainant shall give bond in double the amount of the judgment, conditioned for the payment of all moneys and costs due the plaintiff in the judgment, and damages. Where the judgment debtor seeks to restrain the judgment,.it is natural and reasonable to require of him that he give a bond conditioned to pay the judgment in case he loses in his equity suit. Where, however, some one other than the judgment debtor asks for the injunction, it is difficult to see why the bond should be conditioned for the payment of the judgment in case he loses, especially as plaintiff in the suit at law is fully protected if he obtains a bond conditioned to pay damages, if the complainant in the equity action fails in his suit, and is then free to proceed on his judgment against the original judgment debtor.

In our judgment, sections 4, 6, 7 and 8 of the Injunction Act do not apply in a situation such as is presented in the instant case, wherein an injunction restraining a judgment is an incidental part of the main relief sought, and where the bill is not brought by the judgment debtor in the action at law.

In a Colorado case, Mentzer v. Ellison, 7 Colo. App. 315, 43 Pac. 464, a complainant filed a bill to set aside a judgment sustaining an attachment by the defendant against one Filberg, a debtor to the plaintiff, who had voluntarily allowed a judgment to be entered against her. The court said:

“In conclusion, counsel say that the plaintiffs’ injunction operated as a release of errors in the attachment proceedings. * * * Section 146 of the Code provides that no injunction shall be granted to stay any judgment at law for a greater sum than the complainant shall show himself not equitably bound to pay, and that such injunction, when granted, shall operate as a release of all errors in the proceedings at law that are prayed to be enjoined. This section contemplates only an injunction in favor of a party who is liable for the payment of the judgment, and is therefore inapplicable to these plaintiffs.”

The defendant here is not appealing from the injunction order itself, but is merely contending that the bond was not conditioned properly. In our judgment, it was not necessary that the bond given should have been conditioned for the payment of the judgment sought to be enjoined.

The order of December 2, 1927, is affirmed.

Affirmed,

Holdom and Wilson, JJ., concur.


author: Mr. Justice Holdom

text:
    Samuel L. Cooper, Plaintiff in Error, v. Jacob Handelsman and Edgar C. Smith, Defendants in Error.
    Gen. No. 32,005.
    1. Judgments and decrees — when motion to vacate is not a proceeding as writ of error coram nobis. A motion to vacate a judgment that is made at the term in which the judgment is rendered, but is continued to a subsequent term for a hearing, is not a proceeding under Cahill’s St. eh. 110, If 89, in the nature of a writ of error coram nobis.

    2. Defaults — discretion in vacating judgment. Under Cahill’s St. ch. 110, jf 58, the discretion of the court in vacating a judgment on a default must be exercised in moderation and for the attainment of justice.
    3. Defaults; — vacation of judgment obtained on failure to appear at the trial. It is a proper exercise of discretion to vacate a judgment obtained on the failure of a party to appear at the trial in that the attorney was absent through an excusable misunderstanding of the situation.
    4.. Appeal and error — waiver of right to complain of order vacating judgment. A plaintiff waives the right to complain on appeal from an order vacating a judgment by accepting in open court attorney’s fees paid by defendant as a condition of the vacation of the judgment.
    Error by plaintiff to the Circuit Court of Cook county; the Hon. Emanuel Eller, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1927.
    Affirmed.
    Opinion filed February 9, 1928.
    Litsinger, Healy & Reid, for plaintiff in error.
    Church, Haft, Robertson & Crowe, for Edgar C. Smith, defendant in error; Egbert Robertson, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action in assumpsit. The plaintiff filed his declaration to which defendants interposed a general demurrer. The demurrer was overruled. On leave given, defendants filed a plea of the general issue. ■ The cause in due course was called for trial on December 17, 1924, and on defendants’ failure to appear a trial was had before court and jury, which resulted in a verdict and judgment for $12,400. On December 20, 1924, defendants made a motion to vacate and set aside the verdict and judgment of December 17, 1924, filing certain affidavits in support of the motion and serving copies thereof upon the attorneys for plaintiff.

On January 3, 1925, and within the December term of the court, an order was entered continuing the hearing of the motion of defendants to set aside the verdict and judgment to Wednesday, January 7, 1925, which day was within the January term of the court, and on January 10, 1925, the following order was entered:

“On motion of defendants’ attorney it is ordered that the verdict heretofore rendered herein by the jury aforesaid be and is hereby set aside and vacated and the judgment heretofore entered herein of record on December 17th, A. D. 1924, be and is also hereby set aside and vacated upon the payment by the defendant Jacob Handelsman to the plaintiff the sum of One Hundred and Fifty Dollars attorney’s fees, which fees are paid in open court and said cause be and is hereby reinstated on the trial call, to which the plaintiff excepts and leave is given the plaintiff to file his Bill of Exceptions within thirty days from this date.”-

On June 4,1925, the cause was ordered placed at the foot of the calendar and on September 4, 1926, the cause being called for trial and plaintiff failing to prosecute his suit, it was ordered that the cause be' dismissed for want of prosecution at plaintiff’s costs and judgment on that order of nil capiat for costs was entered.

Plaintiff prosecutes this appeal in an effort to have this court reverse the order of the superior court entered January 10, 1925, allowing defendants’ motion and vacating the verdict and judgment entered thereon on January 10, 1925.

Plaintiff contends that this is a proceeding under section 89 of the Practice Act, Cahill’s St. ch. 110, ¶ 89, in the nature of a writ of error coram nobis, but in this he is mistaken. Such proceeding has reference only to judgments sought to be set aside at a term subsequent to the term at which the judgment was rendered. This is not that case. The motion was made within the December term of the court by an appropriate order; the hearing of it was continued until the January term, and in that term the order above set out was entered.

Numerous affidavits, the contents of which it is not necessary here to recite, in our opinion stated a case calling for the sound discretion of the court. A meritorious defense was stated in the affidavits supporting the motion and some diligence on the part of defendants’ counsel was shown thereby. Before we can disturb the judgment of the superior court in this appeal, viz., vacating the verdict and judgment theretofore entered, we must hold that the trial judge in so doing abused the judicial discretion vested in him by law. We are unable so to hold from the evidence in the record supporting the motion to vacate.

Section 58 of chapter 110, R. S., known as the-Practice Act, Cahill’s St. ch. 110, ¶ 58, leaves to the discretion of the trial judge the question of opening defaults and vacating and modifying judgments within the term at which a judgment may be rendered. That discretion, however, must be exercised in moderation and for the attainment of justice. The cause was at issue, the plaintiff was in court by counsel, his pleadings were in the record, and the cause was at issue when the judgment was entered, but defendants counsel were absent through a misunderstanding on their part of the situation ; and that while they were chargeable with notice of the coming on of the cause for trial, they did not actually have such notice. In the circumstances of the case, as developed by the affidavits heard upon the motion, they might be excused.

Our Supreme Court in the cases of Rich v. Hathaway, 18 Ill. App. 548, 549; Union Hide & Leather Co. v. Woodley, 75 Ill. 435, 436, and Hitchcock v. Herser, 90 Ill. 543, used such expressions as “gross and flagrant abuse,” “gross abuse” and “palpable abuse” of judicial discretion. It is a sine qua non to the attainment of justice that both sides of a cause should be heard, and where for any good reason a defendant has been unable to present his defense, a court of law in the exercise of sound judicial discretion will set aside the judgment obtained ex parte, and order a new trial. In the olden times such ex parte judgments were sometimes designated as “snap judgments,” and were viewed with disapproval by both bench and bar. In Hitchcock, v. Herser, supra, the court said:

“It is the settled and long established rule in this State, that a motion to set aside a default is addressed to the sound legal discretion of the court in which it is made, and that unless there has been a palpable abuse of such discretion the appellate courts will not interfere. It is only where it is evident the- action of the court below has been unjust and oppressive, and has resulted in a substantial injury to the appellant, that such action will be reversed on review.”

In Hartman v. Viera, 113 Ill. App. 216, this court said:

“Appellant insists that the record fails to show either that appellee had a meritorious cause of action, or that she exercised proper diligence in preparing the same, and that the court abused its discretion in setting aside the default and opening up the judgment. It is well settled in this state that a motion to set aside a default is addressed to the sound, legal discretion of the court and that unless it appears that such discretion has been wrongfully and oppressively exercised, a court of review will not interfere. Culver v. Brinkerhoff, 180 Ill. 548; Eggleston v. Royal Trust Co., 205 Ill. 178. There is nothing in the record tending to show that the action of the trial court in the case at bar was wrongful or oppressive.”

Like holdings are found in Charles H. Thompson Co. v. Burns, 199 Ill. App. 418, 420, and Nichols v. Roger-Nichols Live Stock Commission Co., 203 Ill. App. 158, and in the last-mentioned case the court said:

“We are not able to see how the appellant was in any manner wronged or how the discretion exercised by the court was in any way oppressive to the appellee, ánd none has been pointed out to us by counsel in his argument. The appellant was not deprived of any right for if he had a just claim against the appellee 'the court gave him an opportunity to present it and he refused so to do.”

Furthermore, the judgment was vacated on condition that there be $150 attorney’s fees allowed for the use of the plaintiff. This money was paid and accepted in open court, as stated in the order and while there is no direct authority in this State for holding that by receiving such attorney’s fees plaintiff was estopped to complain of the order vacating the judgment, yet the case of San Bernadino County v. Riverside County, 135 Cal. 618, 67 Pac. 1047, in which the effect of a receipt of a fee in a case akin to that in the record before us, was held to be a bar to the right to appeal from such order. What the court there said is appealing to us as stating a sound and applicable doctrine, in which it said:

“A party cannot accept the benefit or advantage given him by an order, and then seek to have it reviewed. After receiving the money which the court has directed to be paid to him, he will not be heard to say that the court erred in making such order; and if, by the order, a right or favor is given to the other party as the consideration for making such payment, the party receiving the money will be held to have assented to a granting of the favor or right. Accordingly it is held that, where an order is made upon the condition of payment of costs, an acceptance of such costs is a waiver of the right to appeal from the order. ’ ’

Finding no reversible error in the record the judgment of the superior court is affirmed. •

Affirmed.

Taylor, P. J., and Wilson, J., concur.


text:
    Barnet Kappel, Appellee, v. Charles Smolin and Jacob Gumbiner, Appellants.
    Gen. No. 32,026.
    1. Pleading — affidavit of merit of defense presenting triable issue not to be stricken. Where the claim made by a plaintiff in his declaration and affidavit of claim alleges that he acted as agent for the defendants in procuring a purchaser of property for a stipulated sum for a specified compensation, and -that such services were requested by the defendants, an affidavit of merits by the defendants denying the claim in detail, and setting out facts whereof they are not liable, presents a triable issue and should not be stricken.
    2. Pleading-* — right to strike plea of nonjoint liability presenting triable issue. In an action by plaintiff against two defendants to recover for his services as agent in procuring a purchaser of property, a plea of non joint liability, supported by an affidavit of merits denying a joint liability, presents a triable issue and should not be stricken.
    3. Pleading — right to strike plea that plaintiff not licensed presenting triable issue. In an action by one to recover for services as agent, and not as real estate broker, in procuring a purchaser of property, a plea that plaintiff was not a duly licensed real estate broker, supported by an affidavit of merits to that effect, presents a triable issue and should not be stricken.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Charles A. Williams, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1927.
    Reversed and remanded with directions.
    Opinon filed February 9, 1928.

      Irwin Grossman and Ben A. Stewart, for appellants.
    Seymour J. Frank, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This cause in the trial court came up for hearing upon, a motion of plaintiff to strike the special pleas filed by defendants May 17, 1927, and also to strike defendants ’ amended affidavit of merits filed with their pleas upon the same day. These motions were allowed. Thereupon plaintiff moved for judgment on his amended affidavit of claim and declaration filed February 11, 1927.- This motion was likewise allowed. Thereupon the court entered a judgment against defendants in favor of plaintiff for the sum of $1,500, and defendants bring the record here for, review asking a reversal of that judgment.

The amended declaration of .plaintiff contained five counts, and in it and also by his affidavit of claim plaintiff charged that he acted as agent for defendants in procuring a purchaser for defendant’s property at the southeast corner of Hoyne and Pierce avenues in Chicago, for the sum of $60,000, and this he did at defendants’ request, and that for such services he was to receive from defendants the sum of $1,500; that such services were specially requested of plaintiff by the defendants, and were not services as a real estate broker, to which amended declaration defendants interposed three pleas: First, the general issue; second, nonjoint liability, and third, that plaintiff was not a licensed, real estate broker at the time of the transaction under the laws of the State of Illinois nor the ordinances of the city of - Chicago.

In defendants’ affidavit of merits they show that they verily believe that they have a good defense to this' suit upon the merits to the whole of plaintiff’s demand, and in stating the nature of the defense averred that they did not request the plaintiff to procure a sale of the property at the southeast corner of Hoyne and Pierce avenues on April 7, 1924, or at any other time, and that the plaintiff did not interest himself in behalf of defendants, nor procure for them any contract whatsoever; that they never received the sum of $500' from anyone for the use or benefit of plaintiff; that they did not agree to pay the plaintiff the sum claimed by him, neither did they request plaintiff to help manage or let out contracts for work, labor or material, and that plaintiff did not agree to assist in letting out any contracts, etc. The defendants further swear that on or about the 7th day of April, 1924, one Helen Schymanski was the owner of the premises described in plaintiff’s affidavit of claim and desired to sell the same; that plaintiff knew her premises were for sale and advised defendants of that fact, and plaintiff volunteered to defendants to introduce defendants to the owner as prospective purchasers and that thereafter defendants did purchase said premises from the owner, and that they did not hire nor employ plaintiff to procure from the seller a contract for the sale of said premises to defendants, but on the contrary defendants were informed and believe and so state the fact to be that any compensation which plaintiff might receive for introducing defendants would be paid by the seller, and that the plaintiff would look to the seller for his commission and compensation and not to defendants. They further state that they do not owe plaintiff the claimed sum of $1,500, or any other sum for commissions or services, or for or on any account whatever. And in support of their plea of non joint liability in said affidavit of merits deny “that they or either of them is or are jointly liable in respect of the several supposed causes of action in the amended declaration and affidavit attached thereto therein set out,” and that plaintiff was not a duly licensed real estate broker, as set out in the third plea.

We think that the pleas and the affidavit of merits of defendants presented triable issues, and as said in Fried, Mendelson & Co. v. Mayer Shirt Co., 225 Ill. App. 464:

“The trial court was in error in striking defendant’s amended affidavit of defense. Plaintiff’s amended statement of claim alleged that it was at all times ready and willing to ship said goods at the prices and upon the terms agreed upon. By its affidavit of defense defendant denied this averment in direct terms. This raised a clear and essential issue of fact, imposing upon plaintiff the burden of proving its allegations in this respect. To require the defendant to plead more in detail would mean evidence and argument in its pleadings. The affidavit of defense sufficiently raised issues of fact which should have been tried.”

The denial by defendants in their affidavit of merits of all the claims made by plaintiff in his amended declaration and affidavit of claim sufficiently presented triable issues of fact. The rule is accurately stated in Reddig v. Looney, 208 Ill. App. 413, in the following language:

“The rule above stated will not result in trying cases on issues formed by an affidavit of claim and an affidavit of merits. Though actions at law in the Circuit Court are to be tried upon the pleadings, yet under this statute the parties are limited also by their affidavit. Plaintiff can prove and recover only what is stated in his affidavit of claim, but he cannot prove and recover even that unless he has an appropriate declaration on that cause of action. Defendant can only prove such defense as is stated in his affidavit of merits, but he cannot prove that or have a verdict upon that unless he has a pleading appropriate to that defense. The proof and the verdict must be under proper pleadings, but no proof can be admitted or availed of under the pleadings unless it is supported by a proper affidavit.”

The trial judge erred in striking defendants’ affidavit of merits from the files on plaintiff’s motion and in proceeding to enter the judgment found in this record.

Therefore the judgment of the superior court is reversed and the cause is remanded for trial on the issues made by the pleadings, plaintiff’s affidavit of claim and defendants’ affidavit of merits.

Reversed and remanded with directions.

Taylor, P. J., and Wilson, J., concur.


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    Osborne M. Scheuer, Appellee, v. Louise B. Scheuer, Appellant.
    Gen. No. 32,047.

      Divorce — desertion as a ground where spouses live apart under separation agreement. Where a husband and wife live separate and apart under the terms of a separation agreement, and the husband does nothing to end the agreement before filing a bill for divorce, there can be no wilful desertion by the wife which will entitle him to a divorce on that ground.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Harry A. Lewis, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1927.
    Reversed with directions.
    Opinion filed February 9, 1928.
    Thomas J. Finnegan, for appellant.
    B. M. Shavener, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is a cause matrimonial, the parties thereto being husband and wife. Complainant Osborne M. Sheuer filed his bill for divorce from his wife Louise B. on July 21, 1926, in which he avers that he and his wife were married on July 2, 1910, at Wheaton, Illinois, and that they lived together in the marital relation until December 15, 1915. As to children, the marriage has been barren. Complainant further avers that on the last-mentioned date his wife wilfully and without any reasonable or just cause deserted and abandoned him and wholly refused to cohabit with him any longer, and has continued such desertion until the time of the filing of the bill, and that such desertion‘is without the fault of complainant. Complainant asks for a decree of divorce a vinculo matrimonii.

Defendant appeared and answered, denying the allegations of the bill of complaint, and setting up and charging that on or about February 15, 1916, complainant ■ informed the defendant that he no longer wished to live with her; that he was going to leave her and live with his mother; that he did leave her, and advised defendant to remove her furniture from his premises, which were really the premises of his mother, which she did; that complainant then retained an attorney, who at his request, drew up a separation agreement whereby the parties were to live separate and apart, and that complainant should pay to defendant $6 every week thereafter; that the agreement was signed in duplicate and delivered one copy to each; that complainant has paid $6 a week under the separation agreement until July 1, 1926, and setting up other facts not material to our decision.

On August 3,1926, the chancellor denied defendant’s motion for temporary alimony and solicitor’s fees pendente lite. On October 18, 1926, complainant was ordered to pay defendant $6 per week as alimony pendente lite until the further order of the court, and also to pay her $50 for her solicitor’s fees pendente lite. On June 2,1927, after a hearing before the court, a decree granting a divorce to complainant was entered of record, and defendant brings the record here for our review.

It appears without contradiction that the separation agreement set forth in defendant’s answer was entered into by the parties, and that complainant in accordance with its terms paid the support money of $6 per week until July 1, 1926.

Defendant contends that while the agreement of separation is in force there can be no wilful desertion, which would entitle either party to it to a divorce on the statutory ground of desertion. With this contention we see no reason for withholding our assent. The denials made by defendant in her answer finds ample support in the record. As held in Reams v. Reams, 202 Ill. App. 491, the living separate and apart by consent or by agreement will not constitute wilful desertion or entitle either party to a divorce on that ground. And as held in Loftus v. Loftus, 134 Ill. App. 360, where one of the parties to a marriage leaves the home at the request or direction of the other party, or with such party’s consent, and continues such absence with such consent, such party cannot be charged with wilful desertion Avithin the meaning of the statute.

The agreement of separation entered into between the parties was effective to bar the complainant from obtaining a divorce on the ground of desertion, for it is patent that the parties lived separate and apart by mutual agreement. The record does not disclose that complainant did anything before the filing of his bill to bring to an end the operation of the agreement made by him and his Avife to live separate and apart. The chancellor on the proof before him in this record should have dismissed the bill of complaint for want of equity.

For the errors above indicated the decree of the superior court in this record is reversed, Avith directions to that court to enter an order forthwith dismissing the complainant’s bill for want of equity.

Decree reversed toith directions.

Taylór, P. J., and Wilsoh, J., concur.


text:
    Hubert D. Crocker, Appellee, v. Christina Boening, Appellant.
    Gen. No. 32,076.
    1. Limitations of actions — running account between attorney and client. Items in an attorney’s account with his client which ran back for 11 years are not barred by the 5-year statute of limitations, where the account was a running account and payment did not accrue until completion of the service and the attorney’s demand for money.
    2. Attorneys and counselors — amount of fee in absence of agreement. An attorney is entitled to receive a reasonable fee for his services in the absence of an agreement as to the fee to be paid.
    3. Attorneys and counselors — sufficiency of evidence of negligence in conducting litigation. In an action by an attorney against a client for services rendered, the evidence did not show that the attorney negligently conducted the litigation.
    4. Attorneys and counselors — sufficiency of evidence of violation of ethics in action for services. • In an action by an attorney against a client for services rendered, the evidence was insufficient to show that the attorney violated the ethics of his profession in rendering the services.
    5. Attorneys and counselors — $500 for services as not excessive. A verdict of $500 was sustained in an action by an attorney against a client for services rendered over a period of many years, the majority of the services being in relation to the trial of a suit which was ultimately decided in the client’s favor by the Supreme Court.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Michael L. McKinley, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1927.
    Affirmed.
    Opinion filed February 9, 1928.
    Rehearing denied February 21, 1928.
    J. Kent Greene, for appellant.
    George McMahon, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

The parties to this suit bore the relationship to each other of attorney and client, and the dispute relates to fees for professional services rendered by plaintiff to defendant as such attorney, covering a period of several years. To a suitable declaration in assumpsit defendant interposed two pleas — first, the general issue, and second, the 5-year statute of limitations. There was a trial before the court and jury, and a verdict finding the issues for plaintiff, assessing his damages at the sum of $500, upon which, after overruling motions for a new trial and in arrest of judgment, the. court entered a judgment, and defendant brings the record here for our review.

Defendant urges for reversal that part of the amount included in the verdict is barred by the 5-year statute of limitations; that his fee was contingent, and that the contingency never happened; that improper evidence as to the value of plaintiff’s services was admitted over defendant’s objection, and that plaintiff so negligently conducted defendant’s litigation that he is not entitled to recover.

There were items in plaintiff’s account which ran back in some instances for more than 11 years, and that such items, it is argued, were barred by the statute of limitations. We think this objection is not well taken. The evidence establishes the fact that the account between the parties was a running account and payment did not accrue until completion of the service and plaintiff’s demand for payment. The majority of the services in suit related to the trial of the suit which was ultimately decided by the Supreme Court in Kummer v. Boening, 309 Ill. 236. In this suit defendant, through the professional skill and learning of plaintiff, was successful. While there was an error in a former suit, it was chargeable not to plaintiff, but to his opponent. We hold that the jury might well find from the proofs that there was no agreement between the parties as to fees to be paid plaintiff, but that under his employment he was entitled to receive from defendant what his services were reasonably worth; that they were likewise justified in finding from the evidence that a reasonable fee was the amount of their verdict, and that there was no agreement between the parties for a contingent fee. Plaintiff at times asked defendant for payment on account of services rendered. Her response in effect was that she would pay eventually, but at the particular time was unable to do so.

This case on neither fact nor principle of law is comparable to Ennis v. Pullman Palace-Car Co., 165 Ill. 161. Ennis received a monthly stipend and receipted for it in full for nearly every month of his service. Here plaintiff allowed the account to remain open until his service was completed. Then for the first time the limitation statute commenced to run, and its running was arrested when the instant suit was started.

There is no error in the rulings of the court on the evidence. Defendant cites People ex rel. Healy v. Barrios, 237 Ill. 527, and quotes therefrom the following from People v. Beattie, 137 Ill. 553:

“ ‘The lawyer’s duty is of a double character. He owes to his client the duty of fidelity, but he also owes the duty of good faith and honorable dealing to the judicial tribunals before whom he practices his profession. He is an officer of the court — a minister in the temple of justice. His high vocation is to correctly inform the court upon the law and the facts of the case and to aid it in doing justice and arriving at correct conclusions. He violates his oath of office when he resorts to deception or permits his clients to do so.’ ”

Counsel contend that plaintiff violated the ethics announced supra, in his service to defendant. With this contention we are unable to accord our assent. On the contrary, the record demonstrates that his professional conduct fulfilled the standard laid down in the foregoing quotation. Counsel’s criticism finds no support in the record. On the contrary he was faithful in his duty to a somewhat unappreciative client.

There is no error of law in the record. No question is raised upon the instructions of the court to the jury. The case was fairly presented to the jury. The verdict must be sustained unless we are able to say that it is contrary to the manifest weight of the evidence, which we cannot do. The fee awarded by the jury for the services rendered is extremely moderate. We are not at all favorably impressed with the attack of counsel on the ethical conduct of plaintiff. Such attack is unwarranted and finds no support from a sane reading of the record.

For the reason that the judgment of the superior court is without error, it is affirmed.

Affirmed.

Taylor, P. J., and Wilson, J., concur.