author: Mr. Presiding Justice Dove

text:
    First Galesburg National Bank and Trust Company, Appellee, v. Federal Reserve Bank of Chicago et al. Federal Reserve Bank of Chicago, Appellant.
    Gen. No. 9,259.

      Opinion filed May 10, 1938.
    Rehearing denied June 14, 1938.
    Charles E. Lauder and Frederick H. Lauder, both of Monmouth, for appellant; Charles B. Dunn, of Chicago, of counsel.
    Eugene D. Hardy, of Galesburg, for certain appellee.
    Woolsey, Stickney & Lucas, of Galesburg, for certain other appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

First Galesburg National Bank and Trust Company filed its complaint in the circuit court of Knox county, Illinois, against the Federal Reserve Bank of Chicago, William English as county treasurer of Knox county and Margaret E. McGann. The complaint alleged that on September 22, 1934, the county treasurer of Knox county drew his check upon the plaintiff bank, payable to Margaret E. McGann for $702.51, that subsequently, and on September 27, 1934, said check indorsed “Margaret E. McGann by Charles H. Morgan Assignee, Charles H. Morgan” was presented to the plaintiff by the Federal Reserve Bank of Chicago for payment, the said Federal Reserve Bank specifically guaranteed said indorsement and guaranteed that the person indorsing the name of Margaret E. McCann was duly authorized to do so and that relying upon said indorsement the plaintiff paid the amount of said check to said Federal Reserve Bank. The complaint then alleged that Charles H. Morgan was not the legal holder of said check or authorized to indorse the payee’s name thereon and that said Federal Reserve Bank had no title to said check when it presented said check to the plaintiff for payment. The complaint further alleged that when the check was presented to it for payment by the Federal Reserve Bank it charged the check to the county treásurer’s account but that thereafter it learned of the unauthorized indorsement thereon and thereupon credited the amount back to said account of said treasurer. Judgment against the Federal Reserve Bank for the sum of $702.51 was demanded or in the alternative if the said indorsement was found to be genuine or duly authorized that then judgment be rendered against William English, the county treasurer, for said sum.

The several defendants filed their answers and counterclaims. The answer and counterclaim of the Federal Reserve Bank admitted the issuance, presentation and payment of the check as alleged in the complaint but denied that Charles H. Morgan was not the legal holder and owner thereof and denied that Morgan was not authorized to indorse Margaret E. McG-ann’s name thereto. After the issues had been made up, the cause was submitted to the court for determination, resulting in a judgment in favor of the plaintiff and against the Federal Reserve Bank of Chicago for $702.51, from which said Reserve Bank appeals.

The evidence discloses that in 1916, Margaret E. McG-ann was entitled to a distributive share in the proceeds of the sale of certain real estate, sold by the master in chancery pursuant to the terms of a decree in a partition proceeding then pending in the circuit court of Knox county. The records of this partition proceeding disclosed that the address of Margaret E. McGann was unknown and she was served by publication notice only. Her distributive share amounted to $702.51 and this amount was paid by the master to the county treasurer to be held by him for the said Margaret E. McGann. In 1934, Charles H. Morgan, a resident of Newton, Iowa, and who was then engaged in looldng up and collecting money belonging to or due lost or unknown heirs, discovered on the records of Knox county that Margaret E. McGann was entitled to this $702.51, then in the hands of'the county treasurer.

The evidence further discloses that Margaret E. McGann at the time of the hearing was 60 years of age, that prior to 1901 she lived in Galesburg, but left there when she was 24 years of age, joined the Order of the Sisters of Mercy under the name of Sister Mary Clare and in 1934 was located at St. Catherine’s, a convent at Oak Park, Illinois. Morgan went to interview her there and in that interview advised her that she had some money due her and that he could collect this money for her if she would sign a contract permitting him to collect the money. At this meeting the only ones present were Mr. Morgan and Miss McGann and there is a sharp conflict in their evidence. Mr. Morgan testified that at the time of the hearing he was 36 years of age; that his business was to look up claims in various counties where money has been deposited for the benefit of lost heirs and to collect such money for such heirs upon a 50 per cent basis; that on the morning of August 2,1934, he called at the convent in Oak Park and asked for Miss McGann; that he there had a conversation with her, advised her that she had some money coming to her but did not tell her where the money was coming from because if he did it was his experience that the party would, proceed to collect it and he would receive no compensation for locating it. Upon this occasion, Morgan testified that he prepared two identical contracts, that Miss McCann signed both of them, retained one and delivered to him the other. Upon the hearing he produced the contract which she handed to him after she had signed it and it is as follows, viz:

“Amount $- Case No. 5643
Contract of Employment
" This Agreement made and entered into by and between Margaret E. McCann also known as Sister Mary Clare of Oak Park, Ill., hereinafter called first party, and Charles H. Morgan, of Newton, Iowa, hereinafter called second party, witnesseth :
‘ ‘ That, whereas, the second party is engaged in the business of ferreting out and collecting unpaid claims arising in the several States and while engaged in such business has discovered a claim due the first party. The second party states that said claim is coming from a county and he shall have no right to collect from anyone other than a County.
“It is therefore mutually agreed between the parties hereto:
“That in consideration of the efforts of the second party hereinbefore and hereinafter made and in finding said claim, the first party does hereby employ the second party to take whatever steps are necessary to collect said claim, instituting suit if necessary, it being agreed and understood that the first party is to be in no way liable for any of the expenses incident to the discovery and collection of said claim; the first party is to pay unto the second party a sum equal to an undivided one-half of the net proceeds of said claim, in full of all services rendered, upon the completed settlement of the same.
“For the purpose of aiding and assisting the second party in the collection of the said claim the first party does hereby sell, assign, transfer and set over unto the second party the said claim and does hereby authorize, empower, request and direct the County Treasurer and County Auditor to pay the said amount unto the second party.
“Dated at Oak Park 111 this 2nd day of August A. D. 1934, by the said both parties and at Newton, Iowa, this • — — day of-A. D. 193 — , by the said Charles H. Morgan.
Margaret E. McCann (Sr. M. Clare.)
First Party
Charles H. Morgan”

Margaret E. McCann testified that she was a member of the Sisters of Mercy and had been for 36 years, that she did not sign the foregoing contract and upon direct examination said she never saw it until it was presented to her while she was upon the witness stand and testifying in this case, that she met Morgan on August 2,1934, at St. Catherine’s Convent at Oak Park but signed nothing at that time and never saw Morgan again until the day she testified upon the hearing. That upon the occasion when Morgan came to the convent on August 2, 1934, he, Morgan, told her he was a member of the American Legion, that as such he had privileges others did not have and that she was entitled to receive some money from a county but he did not name the county. That she told him that there was only one piece of property in which she might be interested and that was in Knox county, that if it was in any other county she was the wrong party, and that she was not interested in taking anything away from her relatives. That she further told Morgan that there could be no money belonging to her that did not accrue from her father’s or mother’s earnings, that she was an heir to a share in her mother’s property but she had disposed of her rights in that by giving her brother a quitclaim deed before she entered the convent in 1901. That when Morgan stated to her that the money to which she was entitled was from a county, she told him that no county was making a donation to her and if there was any money it must have come from relatives or from the sale of her parents ’ property. Upon cross-examination she testified that Morgan did have a contract with him, that the paper he had was much smaller and of a different color than the contract produced upon the hearing, that she read the instrument Morgan handed to her to the place where it stated “revealing the same to first party,” that she then handed it back to him, stating that he had not revealed to her the amount of money or where it was, that he made -no alterations in it in her presence or at her request and she never took the contract back in her hands afterward.

Margaret E. McG-ann further testified that prior to entering the convent in 1901 she taught school in Knox county for six or seven years and since that time has been teaching continuously in the convent. That she teaches music, English, spelling, reading, writing and other subjects, that she understands terms used to describe forms of writing and in her testimony referred to the Spencerian and Palmer systems and stated that she never used other than a Spencerian “M” in writing her name and never made the Palmer “M’s” which appear in her signature upon the questioned document. She was cross-examined at considerable length with reference to her signature which appeared upon this questioned instrument and her admittedly genuine signatures appearing upon instruments used as standards for comparison. She further-testified that prior to August 1934, except upon one occasion she had not written her name as Margaret McG-ann for 36 years but during all this period of time used her ecclesiastical name of Sister Mary Clare.

The evidence further discloses that on August 6, 1934, Morgan wrote Miss McG-ann at Oak Park, Illinois, from Newton, Iowa, addressing her as Sister Mary Clare, as follows: “I am enclosing herewith a paper giving me authority to collect any monies from a County Treasurer for you. It is necessary that I have such an item signed in order to properly handle the matter. Will you please sign the same and arrange to have a Notary Public take the acknowledgment of your signature! Please advise me of the charge for such acknowledgment and I will remit the same to you at once. ... I enclose herewith a stamped and addressed envelope for your convenience in returning the enclosed authority.” The instrument inclosed in this letter is as follows: “I, Margaret E. McGann, residing at 25 West Washington Boulevard in Oak Park, Illinois, do hereby authorize and direct the County Treasury of said County to issue a check for all monies in his hands belonging to me, and deliver the same to Charles H. Morgan of Newton, Iowa, and to take his receipt of said check. Dated at Oak Park, Illinois, this -day of August, A. D. 1934. -State oe Illinois, County oe Cook, ss. I, -, do hereby certify that I am a Notary Public in and for Cook County, Illinois ; that Margaret E. McGann, personally known to me to be the same person whose signature is affixed to the foregoing instrument, appeared before me this day in person and acknowledged that she signed, sealed, and delivered said instrument as her free and voluntary Act for the uses and purposes therein set forth. Given under my hand and Notarial Seal this-day of August, A. D. 1934. -Notary Public.”

No reply was made to this letter and Morgan again wrote Miss McGann on August 28, 1934, to the effect that he had not received the papers previously sent her and advising her that if it was not convenient for her to have the instrument acknowledged before a notary public that it would be sufficient to have it witnessed by two or three witnesses and requested that it be returned as soon as possible. Morgan concluded this letter by stating: “I have already started action on this matter for you and will have some definite news by the middle of September.” On September 5, 1934, Miss McGann wrote Morgan as follows: “Your letter of August 28th, has just reached me. I didn’t give you any authority to start proceedings with regard to the matter in Chancery. I would say only what I said in the beginning — that if it took anything in any way from my brother, I could not become interested. He has explained to me how it happened. The attorney who drew up the quit-claim deed years ago will be able to adjust the matter in a satisfactory manner. Thanking you for your interest and trusting this will close the matter, I am Respectfully Yours, Margaret E. McGann.” On September 15, 1934, Morgan answered this letter stating that he was at a loss to understand her attitude, that he had been proceeding under their written agreement, had gone to considerable expense, that he would not consent to any cancellation of the agreement and that he was proceeding to complete the collection at once.

The evidence is further that on September 22, 1934, Morgan filed in the circuit court of Knox county his verified petition to redocket the partition proceedings and for an order upon the county treasurer to pay the distributive share due Margaret E. McGann. Upon this petition, a hearing was had and on the same day an order was entered authorizing the county treasurer to draw a check to Margaret E. McGann for $702.51 and deliver the same to Morgan. Upon the entry of this order the county treasurer drew a check for $702.51, payable to the order of Margaret E. McGann and delivered it to Morgan, who indorsed it “Margaret E. McGann by Charles H. Morgan assignee” and deposited it on September 25,1934, in the Jasper County Savings Bank at Newton, Iowa, which bank transmitted it in due course to the Federal Reserve Bank in Chicago, which indorsed and guaranteed all prior indorsements and sent it to the bank upon which it was drawn. As stated, the First G-alesburg National Bank and Trust Company accepted the check and charged it to the account of the county treasurer and returned it as a paid and canceled check to the county treasurer on or about September 30, 1934. On October 2, 1934, Morgan sent to Miss McG-ann a check for $351.26, being one-half of the amount he received from the county treasurer. On October 4,1934, Miss McG-ann returned this check to Morgan by registered mail and wrote him stating that she had received the check that day, that she had not entered into any contract with him, had not signed any papers for him or authorized him to collect any money for her and demanded a check for the full amount of $702.51. Morgan again sent the check to her but she again returned it, reiterating what she had written in her previous letter and stating definitely that she would not accept this check or any other unless it be for the full amount he had received from the county treasurer of Knox county.

Upon the hearing several admittedly genuine signatures of Margaret E. McG-ann were introduced in evidence and Katherine Keeler, a handwriting expert of the Northwestern Crime Detection Laboratory of Northwestern University testified with the aid of photographic enlargements and in her opinion the same person affixed the signature to the disputed contract as signed the documents used as standards for comparison. John H. Cox, the principal of Brown’s Business College in Galesburg and a teacher of handwriting with 35 years of experience was of a contrary opinion and both witnesses gave their reasons for their respective opinions. Catherine Lynn, a niece of Margaret E. McGann, testified that she was familiar with the handwriting of Margaret E. McGann, had seen her write her name, Mary Clare, prior to August 2, 1934, and had since that time seen her write her name Margaret E. McGann, and in her opinion the signature appearing upon the questioned document was not the genuine signature of Miss McGann. The trial court found that the instrument in question was not signed by Miss McGann and in disposing of the case the trial court, among other things, called attention to the fact that in the signatures used as standards for comparison, there appeared twenty capital “M’s” and that in the questioned signature there are three and that there is no similarity between the twenty and the three ánd called attention to the evidence of Mrs. Keeler. In her testimony Mrs. Keeler stated that nowhere in the disputed signature did she find any evidence of forgery in the light of quality or of discrepancies in the form of letters except discrepancies in the form of the capital letters. In her cross-examination she admitted that not one of the capital “M’s” in the admittedly genuine signatures was like the capital “M” in the signature appearing on the disputed document. In order to account for this difference she was of the opinion that a forger who was undertaking to forge a name would not undertake to make such a marked difference but would, endeavor and could very readily simulate a capital “M” which would bear a much more striking resemblance to the genuine than any of the capital “M’s” appearing in the signature upon the questioned document. The trial court also called attention to the fact that in the standards used for comparison, the name “Margaret” was written eight times and it appears that each time the pen was lifted from the paper and a new stroke was made to start the letter “a” while in the questioned signature the writer madé the letter “M” and continues it into the letter “a.” Furthermore, the letter “r” following the letter “a” in Margaret in all the genuine signatures is not similar in any respect to the “r” appearing in the questioned signature. In the admittedly genuine signatures of the name “Margaret” each of the lower case letters, preceding the last letter “t” appear to be attached to the previous letter and touch the base line while in the questioned signature such is not the case and four out of the seven do not touch the base line. Many other discrepancies appear which were pointed out by the several witnesses and which were referred to by the trial court when he disposed of the case.

According to the testimony of Morgan, Miss McGann signed the contract heretofore set forth in this opinion on August 2, 1934, yet on the fourth day thereafter he wrote her stating that he was sending with his letter a paper giving him authority to collect any moneys due her from a county treasurer and that it was necessary for him to have such authority in order to handle the matter and requested her to sign the instrument which he inclosed and which, by its terms, directed a county treasurer to issue a check for all moneys belonging to her and to deliver the same to Morgan. Just why Morgan would write this letter if Miss McGann had executed the contract which appellant relies upon in this case is not explained. If Miss McGann had executed the contract on August 2, 1934 and Morgan had it, certainly there was no occasion for him to request her on August 6th and again on August 28th to execute another contract. In neither of the letters of August 6th or August 28th is any reference made by him to the contract which he now claims she executed on August 2, 1934.

This record presents a question of fact. Mr. Morgan testifies that he was present and saw Miss McGann sign the contract upon which appellant relies. Miss McGann testified that her signature thereto is not her genuine signature. In the opinion of Mr. Cox and Catherine Lynn, the disputed signature is not that of Miss McCann. In the opinion of Mrs. Keeler it is. In Fekete v. Fekete, 323 Ill. 468 the court said (pages 482, 483): “Opinions as to the genuineness of handwriting are at best weak and unsatisfactory evidence. There is much room for error and great temptation to form opinions favorable to the party calling the witness. The value of such testimony varies with the circumstances of each particular case. While opinion evidence based upon hypothesis has been held to be of but little value, the opinion of an expert may be of great value where it calls the attention of the court to facts which are capable of verification by the court which the court otherwise would probably have -overlooked, and the opinion of the expert is based upon such facts and is in harmony therewith.” In the instant case the original contract to which appears the questioned signature together with the original instruments bearing the admittedly genuine signature of Miss McCann and used for purposes of comparison are found in the record and we have examined them in connection with the testimony and the photographs of the admitted and disputed signatures also found in the record. The trial court heard and saw the witnesses. The conclusion of the trial court in our opinion is supported by the evidence found in this record and there is no error in the record which would warrant us in reversing this judgment.

• During the course of the hearing in the circuit court, counsel for appellant during the cross-examination of Miss McCann asked her if she would care to write her name for the purpose of comparing her signature with her signature as it appeared upon the disputed contract. The court sustained an objection and the witness was not required to do so. It is insisted that this was error and counsel call our attention to Rogers v. Tyley, 144 Ill. 652, 10 R. C. L. 999, 22 C. J. 784, 785, and several cases from other jurisdictions. The Rogers case, supra, was a proceeding under the “Burnt Records Act” to establish title to certain real estate in Cook county. Upon the hearing, a letter was introduced in evidence purporting to have been written by Thos. Rogers on behalf of Jason Rogers. Thos. Rogers was called as a witness and testified that to the best of his knowledge he did not write the letter. Upon cross-examination the witness was asked to reproduce the letter in his handwriting by sentences and he did this and the court in its opinion commented upon the fact that there were many features of resemblance between the handwriting in the letter and the reproduction of it by the witness when he testified. There was no objection made to the procedure that was followed in the Rogers case and no discussion of this matter of trial practice by the court. In 10 R. C. L. 998, 999, sec. 184 of the article on Evidence, the author says: " Generally speaking, the fact that an offered standard has been made since the controversy affecting the disputed signature arose, does not render it incompetent, if there is likelihood that it was not manufactured for the occasion of the trial; and it is obvious that this objection can apply only in a case where the specimen is offered by the party whose handwriting it purports to be. But the general rule undoubtedly is that a signature made for the occasion and post litem motam may not be used for comparison. And so, ordinarily, a party to an action is not entitled to write his signature in the presence of the jury for the purpose of being compared with a signature purporting to be his, the genuineness of which he denies. Under some circumstances, however, specimens may be made in court in the view of the court or jury expressly for the purpose of comparison. So there is excellent authority holding that a witness may be called on in cross-examination to write in open court, in order that the jury may compare such writing with the controverted signature, the ground of decision being that this is merely a part of the cross-examination, and for the purpose of contradicting the witness.”

In 22 C. J. 784, 785, it is stated that a person whose handwriting is in question cannot be permitted to write something at the trial and offer the specimen so prepared as a standard; that the court will not, as a rule, order the person whose writing is in question to write in court at the suggestion of counsel, but it has power to make such an order and when it does, the standard so obtained may be used; that the better view appears to be that where a witness has denied what purports to be his handwriting, he may on cross-examination be called upon to write in order that such writing may be compared with the disputed writing for the purpose of contradicting him as it is no objection that a standard of handwriting was written post litem motam where the standard is produced by the party adverse to the writer.

All of the cases from other jurisdictions cited by counsel for appellant are criminal cases and many of them are discussed following the report of the case of Rex v. Voisin, 1 K. B. 531, as reported in 1 A. L. R. 1298, in an annotation having to do with the admissibility in evidence for the purpose of comparison of a writing made by an accused person at the request of public authorities. Among the cases referred to in this annotation is Bradford v. People, 22 Col. 157, 43 Pac. 1013, where it was held that when an accused denies under oath that he wrote a document, the court may require him to write, in the presence of the jury, in order that the jury may compare such writing with the controverted writing. The court in the Bradford case stated that the law in reference to the admission of writings for the purpose of comparison is the same in criminal cases as in civil cases and cited Wilbur v. Eicholtz, 5 Col. 240. Another civil case referred to in this annotation is Bronner v. Loomis, 14 Hun (N. Y.) 341, where it was said that a party asserting a forgery cannot, upon the trial, make his own signature, and then offer the signature so made in evidence, for the purpose of comparison with the controverted signature for obvious reasons but, concluded the court, “if the opposite party chooses to take the risk, we think, a signature thus made may be offered in evidence by the latter, for the purpose of comparing it with the signature in question. (Citing authorities.)”

The record in the instant case discloses that the trial occurred in the circuit court on April 22 and 23, 1937, that the disputed contract purported to have been executed on August 2, 1934, that eight admittedly genuine signatures of Miss McGfann were offered by appellant and admitted in evidence without objection, six of these were made by her in October, 1934, and one in May and one in September, 1936. We are of the opinion that it would have been perfectly proper for the trial court to have required Miss McGfann at the request of counsel for appellant to write her name. Miss McGfann had denied, upon direct examination, that the signature on the contract was her genuine signature. Of course it would not have been competent for her upon her own motion or that of her counsel, to write her name in the presence of the court for the purpose of comparing the signature that she would write with the one appearing upon the disputed document but as counsel for appellant called for it, we think it would have been entirely proper to permit or require her to write her name as witnesses are frequently called upon to do some physical act supporting or contradicting their direct testimony, and as such it was legitimate cross-examination. King v. Donahue, 110 Mass. 155, 14 Am. Rep. 589; Commonwealth v. Allen, 128 Mass. 46, 35 Am. Rep. 356; People v. DeKroft, 49 Hun 71, 1 N. Y. Supp. 692; Smith v. King, 62 Conn. 515, 26 Atl. 1059. The refusal however of the trial court to require her to write her name was not, in our opinion, reversible error under all the facts and circumstances disclosed by this record. If the objection had been overruled and she had written her name as counsel desired, there would simply have been another admittedly genuine signature of Miss McG-ann in the record. There were eight already. More than two years had elapsed between the time when the disputed contract was alleged to have been executed and the trial. The circumstances and surroundings which existed on August 2, 1934, at which time the signature of Miss McCann is alleged to have been affixed to the disputed contract were entirely different than they were at the time she was requested to write her name in open court and whether she should have been required by the court to write her name is a matter which we believe under the authorities is committed to the trial court to be asserted or withheld, as stated by some of the authorities, as the circumstances may seem to warrant.

It is also insisted that the trial court erred in permitting John H. Cox to express an opinion as to whether or not the person who wrote the name of Miss McCann on the questioned document was the same person who wrote her name upon the admittedly genuine standards. The objection is that he was not qualified to testify as an expert. Mr. Cox testified that he was a graduate from a normal school and' of Blackstone Institute in Chicago, having obtained therefrom a law degree, that he was principal of Brown’s Business College in Calesburg and had been for 35 years, that during all those years he regularly taught handwriting and was so engaged at the time he testified, that he had done some work in deciphering handwriting in order to determine ivhether it was genuine or not, that he occasionally read an article upon the subject and upon the question of whether a person’s handwriting was genuine or not he had testified several times in the circuit court of Knox county. We have read his testimony, both upon direct and cross-examination from the record, which covers 22 pages of the record. He pointed out at considerable length and with clearness and cogency the reasons for his expressed opinion. His evidence disclosed that he was qualified by study, experience and skill to examine the signature appearing upon the questioned contract and compare that signature with those appearing upon the standards in evidence.

There is no test by which it can be determined with mathematical certainty how much experience or knowledge of handwriting a witness must have in order to qualify as an expert for comparison. In Heffernan v. O’Neill, 1 Neb. (Unof.) 363, 96 N. W. 244, it was held that a witness who had been a student of penmanship for about 30 years, had given special study to the comparison of signatures and had been frequently called upon to compare signatures for the purpose of determining whether they were genuine or not, had attended a business college and taught penmanship during these years and was familiar with the different systems of penmanship was qualified to express an opinion as an expert. In Moody v. Rowell, 17 Pick. (Mass.) 490, 28 Am. Dec. 317, it was held that a writing master professing skill in detecting forgery was competent to express an opinion from comparison as to the genuineness of a signature. In order that a witness be competent as an expert in respect to handwriting, it is not necessary that he should belong to any particular calling or profession, it is only necessary that the business opportunities and intelligence of the witness should be such as to enable him to have reasonable still in judging of handwriting. 3 Jones Commentaries on the Law of Evidence, 648, 649.

There is no merit in appellant’s final contention that it was error to permit Catherine Lynn to testify that in her opinion the signature of Miss McGann appearing upon the questioned contract was not her genuine signature. It appeared from the evidence that Miss Lynn was 32 years of age, that she was a niece of Miss McGann, that she had lived in the school with her for many years but had not been in any of her classes, that Miss McGann had coached her in her school work at least one evening a week for many years, that prior to 1934. she had seen Miss McGann write her ecclesiastical name, Mary Clare, and that since then she had seen her write her secular name and her name to each of the several exhibits used as standards for comparison. Being therefore acquainted with the signature of Miss McGann and having seen her write, she was competent to express her opinion as to the genuineness of the signature appearing upon the questioned contract. Riggs v. Powell, 142 Ill. 453; 3 Jones on Evidence, 596, 597.

In the instant case the trial court was in a position to observe the witnesses as they testified. The record shows that the trial court did carefully consider all their testimony with due regard to their character and their ability to know the things concerning which they testified. The judgment of the trial court is supported by the evidence and there is no reversible error in the record. The judgment will therefore be affirmed.

Judgment affirmed.

       At this place in the printed portion of this contract are these words, ‘ ‘ and revealing the same to first party. ’ ’ These words are stricken out with a pen.


source: Caselaw Access Project

author: Mr. Justice Huffman

license: Public Domain

text:
    People of the State of Illinois ex rel. Edward J. Barrett, Appellee, v. Bank of Peoria et al., Appellees. Charles V. O’Hern, Appellant.
    Gen. No. 9,247.
    Opinion filed May 10, 1938.
    Rehearing denied June 14, 1938.
    Cassidy & Knoblock and George W. Hunt, both of Peoria, for appellant; John E. Cassidy, George W. Hunt and John E. Carlson, of counsel.

      ' Todd, Morgan, Pendarvis & Arber and Bartley & Younge, both of Peoria, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an appeal by Charles V. 0 ’Hern as receiver of the Peoria Life Insurance Company from a judgment of the circuit court of Peoria county, denying his claim against the receiver of the Bank of Peoria in the sum of $314,060. Certain creditors of the bank became parties to the suit by leave to intervene, filing their objections to the allowance of the claim, and are also appellees herein.

Pursuant to statute, the Bank of Peoria was organized with a capital stock of $200,000 and a surplus of $25,000. The stock consisted of 2,000 shares having, a par value of $100 each. Ten individuals subscribed to the entire authorized capital stock and surplus. Thereafter the cash was verified by a representative of the auditor’s office and final certificate of organization issued under date of October 16, 1924. On December 19,1924, there was filed in the office of the recorder of said county, a report of the transfer of 1,660 shares of the stock from five of the individual subscribers to the Peoria Life Insurance Company, which report discloses said shares to have been so transferred on the day previous to the filing of the report. The annual statement of the Life Insurance Company disclosed an investment of $186,750 in stock of the Bank of Peoria.

In September, 1932, a representative of the auditor’s office recommended to the bank directors that they make arrangements to take care of certain assets to which the auditor’s office objected. The directors decided that the most advisable way to take care of these nonacceptable assets was by a contribution by the stockholders of 25 per cent of the par value on such shares as held by the respective owners, The Insuranee Company at this time had sold 95 shares of the stock. This left it with 1,565 shares. The Insurance Company complied with the voluntary stock assessment plan on its 1,565 shares by giving its note to the bank for $39,000, and paying $125 in cash. This nóte was. later paid in full with $871 interest added. The bank was closed in March, 1933, under the national moratorium. Following this, the auditor required $295,000 to be raised and certain objectionable assets removed before he would permit the bank to reopen. The directors of the bank decided upon a 75 per cent stock assessment to assist in reopening the bank. Pursuant to this action, the Life Insurance Company paid to said bank the sum of $117,375, which with the $39,125 previously paid upon the 25 per cent assessment, made a total paid in of $156,500, being equal to a 100 per cent assessment upon its 1,565 shares. The other stockholders likewise paid the assessment. The bank reopened on March 24, 1933. It continued to operate until November 15, 1933, when it was placed in the hands of the auditor’s office and proceedings subsequently instituted to liquidate and wind up its affairs. The claim of appellant in this case consists of two items, namely, the $156,500 paid by the Insurance Company on stock assessments, and the sum of $157,560 which appellant claims is due from the amount paid for the purchase of the stock, after allowing all just credits and offsets against the original purchase price. This makes a total claim as filed by appellant, of the sum of $314,060.

Appellant urges that it was the intention of the officers and directors of the Insurance Company to engage in the banking business, contrary to its chartered powers, and therefore the diversion of funds was unlawful and fraudulent; that the stock assessments were subject to the same objection; and that the bank stock held by the Insurance Company was not such an investment as contemplated by statute, but was made for the purpose of creating an unlawful monopoly. In this respect, appellant argues that if the purpose of an investment is to acquire interest or dividends, then the investment is bona fide, but if the purpose is to acquire control and management by means of the power to vote stock, then the transaction is not such an investment as contemplated by statute, and unless such right is contained in the charter, the transaction is wholly void. In support of this contention appellant cites the case of Robotham v. Prudential Ins. Co., 64 N. J. Eq. 673, 53 Atl. 842. This appears to be the main contention of appellant, and the above case one upon which appellant strongly relies. In that case, the directors of the Prudential were proposing to use $8,000,000 or $10,000,000 of the funds of that company for the acquisition of a sufficient number of shares of the Fidelity Trust Company to give the Prudential Company a majority of the capital stock of the Fidelity Company, and as a part of the plan the Trust Company was to acquire a controlling interest in the stock of the Insurance Company, in order to put the assets of the Insurance Company ‘1 forever beyond the reach of reckless speculators.” The Prudential stock then had a market value of approximately $400 per share. Certain of the stockholders of the Prudential Company brought suit to enjoin the proposed action, claiming that such was not an investment of the Insurance Company’s funds as contemplated by statute and was but an attempt to perpetuate the control of both institutions contrary to the chartered powers of the Insurance Company. The Prudential already had acquired a substantial stock interest in the Fidelity Trust Company and the business relations between the two companies had been intimate and profitable to each. The board of directors of the Fidelity Company consisted of eighteen members, seven of whom were also directors of the Prudential Company, and constituted one-half of its board of directors. The opinion in the above case is long, consisting of some 40 pages, but the conclusion of the court was that upon the whole of the case as presented, the Prudential Company and its directors should be enjoined from subscribing for the proposed new issue of Fidelity stock, which was to be issued in order that the plan might be consummated, as the purpose of such action was unauthorized by the statutes. We find nothing to indicate that the stock of the Fidelity Company already held by the Prudential Company was in any way wrongful and the court expressly stated that the injunction against the proposed plan to carry out the scheme of lodging perpetual control of the two companies in the directors of either or both of them, should in no way interfere with the power of the Prudential Company to vote the stock in the Fidelity Company which it already owned, either at that time with reference to the proposed increase of the capital stock of the Fidelity Company, or at any other time.

Appellee denies all charges of wrongful or fraudulent use of the Insurance Company’s money, and denies any intention to create a monopoly. It urges that the investment of funds in the bank stock and all subsequent acts relative thereto, were legal; that the argument of appellant that such acts were wholly void in the first instance, is unavailing, as the Insurance Company had the power to so invest its funds, and that if such acts were ultra vires, they were not so because of the want of power, but because of an irregular exercise thereof; that the entire transactions are fully executed and any irregularities which existed, were mutual as between the Insurance Company and the bank, and in this respect the parties were in pari delicto.

It appears that the annual statements and reports required by the statute to be filed by the Peoria Life Insurance Company with the State department, disclosed each year its investment in stock of the Bank of Peoria, together with the cost thereof, the book value, and the par value, as well as stock held in other banks. Appellee urges that under the statutes then in force (Cahill’s Ill. St. 1923, ch. 73, §§ 334, 368), it was lawful for the Insurance Company to invest its funds in the capital stock of the Bank of Peoria, and that it was also lawful for it to pay the stock assessments in order to protect its investment in the bank stock as well as to protect its deposit in such bank, which at that time was in excess of $300,000. The investment in the bank stock and the payment of contributions thereon were authorized by the board of directors. Appellee urges that even though such acts were irregular, they were fully completed and appellant as receiver could not now recover the money so paid. It is further urged by appellee that appellant as receiver stands in the place of the Insurance Company and is clothed with no greater powers than the company he represents; that he does not represent its creditors; that he takes the rights of the corporation as he finds them and can assert the same only to the extent the corporation itself could do. (Citing Republic Life Ins. Co. v. Swigert, 135 Ill. 150.) To the same effect is Evans v. Illinois Surety Co., 298 Ill. 101, 109.

Appellant insists that the acts of the Insurance Company in the purchase of the bank stock and payment of the assessments thereon were absolutely null and void, claiming it had no such power, that the transactions were expressly prohibited by statute and therefore not binding on the Insurance Company, as the law does not prohibit and at the same time enforce a contract. The term ultra vires as commonly used, is generally applied to two situations — one, where the corporation has no power whatever to do the act- — and the other, where the corporation has the power to do the act and there is an irregular exercise of such power. It is appellant’s position that the acts of the Insurance Company fall within the first above mentioned group, while it is the appellees’ position that if the acts of the Insurance Company could be considered ultra vires, they fall within the second mentioned group, and render unavailing the charge of ultra vires as made by appellant.

Appellant insists that the rule as announced in Republic Life Ins. Co. v. Swigert, supra, is no longer applicable under the present insurance law. It claims that since the act of 1925 and the amendment of 1929, whereby the power to appoint a receiver was taken from the courts and vested in the director of insurance, that a receiver’s powers were thereby enlarged so as to constitute him the representative of all creditors in such a manner as to abbrogate the rule as announced in Republic Life Ins. Co. v. Swigert, supra, citing in support of this contention the case of People ex rel. Palmer v. Niehaus, 356 Ill. 104. We do not find any language in that opinion holding that the powers of a receiver were increased as claimed. Nor do we find that the Act of 1925 as amended in 1929, extends the authority or rights of a receiver beyond that of the property, contracts, and rights of action of the company, as of the date of the order directing the liquidation [Cahill’s Ill. St. 1931, ch. 73, § 105 (4)]. Counsel does not refer us to any portion of the above opinion or of the above act, enlarging the powers and rights of a receiver, to those as set out in Republic Ins. Co. v. Swigert, supra.

There was a time when the nation’s business was carried on by relatively small and independent units. Each kind of business enjoyed a large measure of freedom, producing whatever it pleased and in any way it pleased. Under this system the country made rapid economic progress. However, during the last half century, well managed and successful business enterprises have grown in size until as a matter of economic administration it became expedient to combine and bring together under one management, the component elements contributing toward its successful and profitable operation. This change has not been confined to business enterprises alone, but has manifested itself in every form of human endeavor. When business units combine in such way that competition ceases and they co-operate with one another against the public good, then monopoly may be said to have become a significant element. But here, the holding of this bank stock by the Insurance Company can hardly be classified as an attempt to create a monopoly. The ownership of the bank stock by the Insurance Company no doubt came about through a desire to invest its funds in a useful and profitable manner. The fact that the respective parties might have anticipated the investment would be mutually profitable, within itself, does not serve to render the same a wrongful and fraudulent use of the Insurance Company’s funds. In an era of prosperity, speculation is widespread. Such conditions produce an expansion of credit, all of which combine to make the banking business one of exciting promise as a profitable and attractive investment.

Successfully managed insurance companies accumulate funds rapidly, which should be put to work. An example of this appears in the case of Robotham v. Prudential Ins. Co., supra. The Prudential Insurance Company began its corporate existence in 1873, under the name of the Widows’ and Orphans’ Friendly Society. The name of the corporation was twice changed, the last being to the Prudential Insurance Company of America. In 1903, when the above case was heard, the stock of that company then had a market value of $400 per share, which was eight times in excess of its par value.

Life insurance companies are so closely related to the welfare of society that the various States have by statute provided for the supervision of their conduct. The Peoria Life Insurance Company was under supervision of the State department, as provided by statute. Its annual statements and reports were filed as provided by statute, from the year 1924, when it became the owner of this bank stock, to the time of the closing of the bank in 1933. Its conduct with reference to the stock was reflected by its annual reports. No objection appears to have been made by the State department with reference thereto. Under the circumstances as they appear by the record, we do not find that the conduct of the directors of the Insurance Company was corrupt or culpable, or that the investment of the funds in the bank stock was wrongful, fraudulent, or illegal. It is true that this particular investment proved to be unwise, but an investment in any enterprise is attended with the hazards of that particular business, and the investor, if he be solicitous of the funds used, is always harried by fear. Conditions which inspire a feeling of complete confidence are subject to change. The outcome of invested capital cannot be foretold.

It is with an understanding compassion we view situations as presented herein. It is not to be presumed that men having their own capital invested in an enterprise, will voluntarily bring about its financial collapse. However, it is not to be unexpected that such will occur when sudden financial distress arises in a time of economic depression and overexpansion of credit.

The judgment herein will be affirmed.

Judgment affirmed.


author: Mr. Justice Wolfe

text:
    Marguerite Carroll, Administratrix of Estate of Gregory Carroll, Deceased, Appellee, v. August Krause, Appellant.
    Gen. No. 9,262.

      Opinion filed May 10, 1938.

      Joseph F. Bartley and Harry C. Heyl, both of Peoria, for appellant.
    Joseph D. Ryan, of Chicago, Faulkner & Faulkner, of Joliet, and Walter Winget, of Peoria, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an action to recover damages for the death of Gregory Carroll resulting from a collision of an automobile (in which he was riding as a guest) and the defendant’s truck on State Highway No. 4, a short distance south of Joliet, between the hours of 12:00 and 1:00 o ’clock a. m., on August 1,1929. In a former trial there was a verdict and judgment. for the plaintiff, which judgment was reversed and a new trial ordered by this court for errors in the evidence. (Carroll v. Krause, 280 Ill. App. 52.) A second trial resulted in a verdict and judgment for the plaintiff, and the defendant appealed to this court. Both trials were in the circuit court of Peoria county.

In our former opinion we held that the transcript of testimony, taken before the coroner at the inquest, was inadmissible as evidence for the purpose of impeachment, because the certificate to the transcript did not show that the testimony was reduced to writing as required by the terms of section 18 of ch. 31, Cahill’s Ill. St. 1933, ¶ 19. Before the second trial, the plaintiff, by oral examination, took the depositions of Dr. A. A. Kingston, the coroner, and Mrs. Grace Thomas, the stenographer, to prove that the testimony given at the inquest was taken in shorthand and transcribed by a competent person. The attorney for the defendant was present when the depositions were taken and took part in the examination of the deponents.

At the trial the depositions were opened in the presence of counsel. A hearing was had before the judge (in the absence of the jury) on the question of the admissibility of the testimony in the depositions as competent evidence for the jury. At this hearing the defendant’s counsel made various objections to the competency of the depositions which were allowed to stand as objections to the admission of the depositions when offered in evidence on rebuttal by the plaintiff, as impeachment of Ralph Wehnes, a witness who had testified at the former trial for the defendant.

Dr. Kingston stated in substance, that he presided at the inquest on the body of Gregory Carroll; that a stenographer, Mrs. Grace Thomas, wrote down the testimony of each witness at the inquest; that he thereafter certified to the correctness of the transcript of the testimony in a form not in conformity with the statute; that he had with him an amended coroner’s certificate and an amended certificate of the stenographer, both of which he intended to attach to the original transcript of the testimony.

Mrs. Thomas (whose qualifications as a competent person to take the testimony of the witnesses at the inquest in shorthand and transcribe them as required by statute, is not questioned) stated that she took the testimony of the witnesses and transcribed the same, and that she had with her an amended certificate made by her which was to be attached to the original transcript.

The testimony given before the coroner was admitted on the taking of the deposition of Dr. Kingston as Exhibit 1, and it forms a part of his deposition. When the deposition of Mrs. Thomas was taken, the plaintiff’s attorney had before him the transcript of the testimony taken at the inquest. The testimony of Wehnes at the inquest was embodied in the Thomas deposition by the attorney’s direct interrogatories, seriatim, whether Wehnes, at the inquest, had been asked and answered the questions as they appeared in the trqngcript. To each question Mrs, Thomas answered, “Yes, he did.” Attorneys for the defendant, when the depositions were taken, made objections to the introduction of the transcript and cross-examined the deponents. Mrs. Thomas stated that she was at the inquest and acted as stenographer on behalf of the coroner; that she took the testimony which was given at the inquest in shorthand and later transcribed it; that the transcript contained the true and correct statement of each of the several witnesses who testified at the inquest and whose evidence is found in the transcript. On cross-examination she testified, in substance : “When I answered those various questions as what was asked and what was answered at the inquest, I was simply checking what is typed on plaintiff’s Exhibit No. 1, and answered in the affirmative to those questions as I looked at plaintiff’s Exhibit No. 1, because that is the true and original copy of everything that transpired at the inquest and I know it was the original answers and questions.”

At the hearing before the trial judge, the amended certificates to the transcript and both depositions were admitted before the court, as containing competent evidence to be used at the trial before the jury for impeachment purposes. The plaintiff offered to introduce the entire depositions of Dr. Kingston and Mrs. Thomas before the jury, to which the defendant objected. The plaintiff then offered certain parts of Mrs. Thomas’ deposition before the jury as impeachment of defendant’s witness Wehnes. The court held that the offer was proper. The deposition of Dr. Kingston was not offered in evidence before the jury. Exhibit No. 1 was not offered as evidence on the trial. It is clear from a reading of the discussion and rulings heard and made before the court, that the judge understood that the deponent Thomas in her deposition, testified that Wehnes had made the answers as they appear in Exhibit No. 1 and in her deposition.

At the hearing before the trial judge, the plaintiff’s attorney read extracts from the deposition of Mrs. Thomas, which he intended to offer as evidence on the trial.

After considerable discussion as to what part of the depositions should be offered, the trial was resumed. Mr. Eyan read questions and answers to the jury from the deposition, in the same form as they were read before the judge at the hearing. It is contended that the impeaching evidence so brought before the jury consists of self-serving questions and answers of the attorney who examined Mrs. Thomas when her deposition was taken, and there was no proof before the jury that Wehnes had testified at the inquest as shown by the questions and answers read from the deposition. It is also contended that if that part of the deposition which states that Wehnes had been asked and had answered the questions at the inquest, that had been read to the jury, the defendant would have offered in evidence the cross-examination of Mrs. Thomas, as it appears in the deposition, for the purpose of discrediting or weakening her affirmative statement that the questions and answers were part of Wehnes’ testimony before the coroner.

The transcript of the testimony taken at the inquest was the best evidence of Wehnes’ testimony at the inquest. (Overtoom v. Chicago & E. I. R. Co., 181 Ill. 323, cited in Carroll v. Krause, supra. See also Briggs v. People, 219 Ill. 330; Goldstein v. Chicago City Ry. Co., 210 Ill. App. 48.) No objection was made that Mrs. Thomas had no independent recollection of Wehnes’ testimony before the coroner. It is not shown that the amended certificates to the transcript are irregular or not in conformity to the statute, nor that the amendments were improperly made. There was no objection that the part of the deposition of Mrs. Thomas offeréd and received in evidence, was not the best evidence. The defendant had the right to offer the whole or any part of the deposition of Mrs. Thomas in evidence as he saw fit. Having taken his chances on a verdict on the record as made, we are of the opinion that the defendant is not in a position to ask for a new trial. We fail to see that through the admission of this evidence at the trial, there has been returned a verdict prejudicial to the defendant. If the jury did not think or believe that Wehnes had testified at the inquest as shown by the questions and answers in the deposition, no harm was done to the defendant. If they did believe that he had so testified, it is in accordance with what is proven by the uncontradicted testimony by the deposition of Mrs. Thomas.

It is also contended that the evidence toward which the impeaching testimony is directed was brought out on cross-examination of Wehnes at the trial, and therefore not subject to impeachment by the plaintiff. Reference is made to our former opinion after the first trial of this case. (280 Ill. App. 52.) It is clear from that opinion that the position of the truck on the highway and if the rear lamp on the truck was lighted at the time of the collision, were material issues in the case. In his direct evidence on the second trial, Wehnes testified fully on the question of whether the lamp was lighted; of the width of the macadam; that the truck, after its rear tire blew out, was stopped on the east side of the macadam, the right wheels of the truck then being on the right side of the road; that the right wheels of the truck were on the east edge of the macadam; that he went to the rear of the truck while it was standing in that place, stayed there a few minutes and then returned to the cab of the truck; that about 18 feet of space of the macadam was open for travel west of the truck. He testified, “I would say 15 or 20 cars passed in both directions on the west side of the truck; I remember a car and a truck passed abreast. The deputies asked me to move the truck and I told them that I could not move it, and about eight men got alongside of the truck and held it while I moved it; that the shoulder of the road on the right-hand side was of loose gravel, a couple of feet wide and sloped about 18 inches.”

The following questions and answers were read from the deposition of Mrs. Thomas as impeaching evidence of Wehnes testimony at the trial: Q. And how close were you to the right-hand side of the road, the east side of the road, when your car came to a stop? A. Do you mean to the edge of the macadam? Q. Yes. A. Couple of feet. Q. When you looked out you were riding on the right-hand side? A. Yes. Q. Do you mean a couple of feet from the running board? A. The wheel was about two feet from the edge though. Q. Were there any cars going by you, north, passing in the same direction you were going while he was there with you? A. 1 judge a half a dozen. Q. Was there any officer of the law who came there at the time ? A. Yes. Q. Who was it? A. I could not say. Q. What occurred? A. They come back and looked at the taillight and had me pull off the road, asked me if I could drive and I told them I could, and they told me to pull off. I said I could not for fear it would upset, and so five or six fellows got on one side and said they would hold it up and I should yell when ready, so I did. Q. How far did you pull it off? A. Twenty feet. Q. Why did you get out in the rear of the truck and stay there for 15 minutes? A. I was standing there smoking a cigarette. Q. Were any cars approaching? A. Yes. Q. Isn’t it true that as these cars approached, you warned them of this truck being parked on the side? A. I stood back there and smoked. They all swung around and went by. Did not pay attention to me. Q. You were standing there warning them how far south of the truck? A. Seventy-five feet.

The question of the place of the truck on the highway at the time of the collision, as has been stated, was pertinent to the issues in the case, and its location was not collateral matter or new matter brought out solely on cross-examination of' Wehnes. At the trial, the defendant produced testimony as to the location of the truck on the highway at the time in question. This the plaintiff. The testimony of Wehnes at the inquest testimony was in conflict with evidence introduced by was not substantive or primary evidence at the trial, but it was available for the impeachment of Wehnes. In other words, his testimony at the inquest, and introduced at the trial, was not primary evidence to establish the position of the truck on the highway.

The following questions and answers were also read from the deposition for the purpose of impeaching Wehnes. Q. What kind of car was it? A. Essex. Q. Coach? A. Yes. Q. How many in it? A. Three. Q. Where were they when you first saw them after the accident? A. Two in front and one in the rear. Q. Sitting in the car? A. Yes.

On his direct examination at the trial, Wehnes testified :1 ‘ There was a rear view mirror located on the left side and extended out far enough so that you could see past the body of the truck. I sat there (in the cab of the truck) a few minutes and I heard a car coming down the road. I looked up at the mirror and saw this car coming down the road and what attracted my attention was the noise it made; that is what made me look back to see what it was, and I saw it was a car coming. It seemed to be coming at a high rate of speed and I watched the car through the mirror. ... I found out later it was an Essex coach.” Q. “What else did not notice, if anything, about the Essex car — the car you later found out to be the Essex — as it came up the road prior to the time of the crash?” A. “It only had one headlight, I noticed that.” Wehnes did not testify at the inquest that the Essex car had only one headlight as it approached the stalled truck.

It is contended by the defendant that the questions and answers were inadmissible as impeaching evidence because at the coroner’s inquest Wehnes was not specifically interrogated as to the Essex car having one or two headlights at the time of the accident. The rule is that the omission of a witness to state a particular fact under circumstances rendering it incumbent upon him to, or likely that he would, state such fact, if true, may be shown to discredit his testimony as to such fact. 70 C. J. 1061; Greenleaf of Evidence (16th Ed.) Vol. 1, sec. 462a. Wehnes at the inquest, testified as in, his direct examination on the trial, but omitted to state that the Essex car had only one headlight. We think the impeaching testimony was proper.

It is also contended by the defendant that the court erred in admitting the photographs in evidence which this court held improperly admitted at the former trial. (280 Ill. App. 52.) At the second trial there was no testimony that the brick which appears on the highway in the pictures, marked the place where the truck stood on the highway according to the opinion of one of plaintiff’s witnesses. The pictures were introduced in evidence with the statement of plaintiff’s counsel and the admonition of the court, that the jury should disregard the location of any movable objects, which appear in the pictures. It is not contended that the pictures do not otherwise show the condition of the highway as it was at the time of the collision. The defendant introduced photographs taken by the same photographer who took the pictures introduced in evidence by the plaintiff. All the pictures were taken on the same day. The preliminary proof, as to the conditions not being changed on the highway during the time between the accident and the date (August 3, 1929) when the pictures were taken, is substantially the same. This evidence was competent and properly admitted.

It is also contended by the defendant that the verdict on the material issues as to whether the plaintiff was guilty of actionable negligence and the defendant free of contributory negligence, is against the manifest weight of the evidence.

It is clear from the testimony of the witnesses, both for the plaintiff and the defendant, that the defendant left the truck standing on a traveled part of macadam, after the tire blew out. Whether or not it was left there, owing to an emergency, it was the duty of the defendant to display a light on the rear of the truck or to take other reasonable precautions to warn travelers on the highway of the presence of the truck. The gravamen, therefore, of the charge of negligence against the defendant is the lack of ordinary care exercised by him in that respect. Specifically, on the charge of actionable negligence, the contention between the parties is the question of whether the lamp oh the rear of the truck was lighted at the time of the collision.

In our former opinion (280 Ill. App. 52) we stated some of the general facts as follows: “The evidence discloses that on the evening of July 31,1929, appellant (defendant) accompanied by Ralph Wehnes was driving his Reo two-ton truck, which was loaded with tomatoes and sweet corn destined for the Chicago market, along Route No. 4. He had proceeded to within approximately a mile south of Joliet when the right rear tire on his truck blew out. There was a gap in the pavement extending several hundred feet and it was just about the time the truck left the concrete pavement and entered the macadam that he had his tire trouble. Appellant proceeded to stop his truck and when it came to a stop the right wheels thereof were near the edge of the macadam and the left wheels not far from the center thereof. The truck was jacked up and the tire and rim taken off and it was in that position when Gerald Staab, a brother-in-law of appellant, came along in another truck and a part of the load from appellant’s truck was transferred to the truck being-driven by Staab. An unsuccessful effort was made to use a spare tire that Staab carried and thereafter appellant accompanied Staab in his truck, intending to stop at Joliet, buy a new tire and return. Wehnes was left with the truck and it was while appellant was gone that an Essex coach driven by Daniel Ferry and occupied by Gregory Carroll, the deceased, and John Sexton approached from the south and the Ferry car struck the left corner of appellant’s truck. As a result of this collision, Carroll was thrown from the car and sustained injuries from which it is contended by appellee that he subsequently died.”

Before the collision occurred, two groups of persons had attended separate social affairs a few miles south of Joliet and they were returning to Joliet on Highway No. 4 at the time of the accident. One group had been at a supper in a summer cabin, while the other group had attended a dance. Those persons, five in number, who were at the supper were riding in three automobiles. The others who were at the dance, three young men with their girl friends, were riding in a car driven by one of the young men. Some of those persons who were at the supper were the first to arrive at the place of the accident and all of them arrived there very shortly after the collision. Those who arrived first were witnesses for the plaintiff and testified that the rear lamp on the truck was not lighted when they arrived where the collision occurred. Two of these witnesses for the plaintiff testified that they went to the rear of the truck and examined the lamp and that it was not lighted. The young men also arrived very shortly after the accident. They were witnesses for the defendant. All testified that the car they were in stopped back of the truck; that they saw the rear lamp on the truck lighted and it shone red. Other witnesses testified that no rear light was burning and others that it was.

The direct evidence as to whether the rear lamp was burning at the time of the accident, is in conflict. The evidence as to whether the lamp was lighted after the accident is also in conflict. This evidence cannot be reconciled. We do not say or intimate that any of the witnesses were untruthful, yet the credibility of all and each one of the witnesses was a question which the jury had to decide. The conflict of evidence is subtantial on material facts in the case. There is sufficient evidence in the record introduced by the plaintiff to sustain the verdict. Under such conditions the rule is that the verdict of a jury will not be set aside unless it is manifestly against the weight of the evidence. Belz v. Piepenbrink, 318 Ill. 528; Dowling v. MacLean Drug Co., Inc., 248 Ill. App. 270; Leeper v. Gay, 253 Ill. App. 176; Rifkin & Hart, Inc. v. Buchsbaum & Co., 257 Ill. App. 473. The determination of the weight of the evidence in this case depends upon the credibility of the witnesses. The verdict of the jury shows that they accepted the theory of the plaintiff on the question of actionable negligence, and we would not be justified, considering the whole evidence, in saying that the jury was not warranted in reaching that conclusion and setting aside the verdict. Green v. Ryan, 242 Ill. App. 466; Nell v. Nell, 234 Ill. App. 164; Hamman v. Illinois Cent. R. Co., 206 Ill. App. 80; Saxton v. Drake, 191 Ill. App. 322; Floberg v. Floberg, 358 Ill. 626.

It is also contended by the defendant that the plaintiff’s intestate was guilty of contributory negligence because the Essex coach had only one headlight before and at the time of the accident and that the driver of the coach at the time of the accident was driving the car with the headlights (or headlight, as the case may be) not burning brightly, but dimmed. It is contended by defendant that the question of whether the decedent was guilty of contributory negligence involves the point as to whether the decedent was negligent, as a matter of law, in riding with the driver of the Essex coach for some time before the accident, with the headlights of the coach dimmed.

There is no way of solving the question as to whether the Essex car had one or two headlights, both before and at the time of the accident, except by the rule stated above, as applicable to conflicting evidence, namely, testing the credibility of the witnesses by the jury. Two witnesses testified that just before the accident the car had two headlights, and two witnesses testified that at that time the car did not have two headlights. Three witnesses testified that after the accident the coach had one headlight, and two witnesses testified that after the accident the coach had two headlights. There is testimony that after the accident one headlight of the coach was missing from the car and that the break on the bracket on the car, to which the missing headlight had been attached, was rusty. A photograph of the coach was introduced in evidence showing that it had one headlight. It seems clear without further comment or exposition that we may not hold that the verdict on this point is against the manifest weight of the evidence.

As stated, it is contended by the defendant that the decedent was guilty as a matter of law of contributory negligence in riding in the Essex coach before and at the time of the accident, because the car was, before and at the time of the accident, being driven with dim. lights.

Ferry, the driver of the Essex car, testified that for some hours before, and at the time of the accident, he was driving the car with dimmers; that at the time of the collision he was driving the car at the speed of about 35 to 40 miles per hour.; that he did not see the truck before the collision until he was about' 20 feet from it; that he could see ahead with the lights dimmed, .about 50 feet. Sexton, who was riding with Ferry, testified that the lights on the car threw'a beam of light about 10 to 15 feet ahead of the car. The first witness to approach the stalled truck after the accident was driving a Ford car with bright headlights. She testified that she was looking straight ahead and when from 100 to 150 feet from the truck she saw a man in the middle of the road waving his arms, and “flagging me down.” “I was driving on the east side of the highway. I swerved to the left to avoid hitting a truck which was parked on the highway, on the east side of the road. ... I did not see the truck, at that time, before the man — there wasn’t any lights.” A witness who was driving his car toward the south and passed the truck before the accident, testified that he was just about even with the truck when he saw the Essex coach approaching from the south. He did not know how far south of the truck the coach was at that time, but he testified that he passed the coach on the pavement about 40 or 50 yards south of the truck. The collision occurred about 105 feet north of the end of the concrete pavement. He was driving his car about 20 miles an hour with the lights dimmed, after passing the truck. It is a reasonable inference that these two cars passed each other a few feet south of the end of the pavement and when they were from 120 to 150 feet from the truck. Perry testified that immediately after he saw the truck he swung his car to the left, hitting the body at the windshield against the rear left-hand corner of the truck.

At the time of the collision there was in force section 16 of the Motor Vehicle Act, in part as follows: “When upon any public highway of this State, during the period from one hour after sunset to sunrise, every motor bicycle shall carry one lighted lamp and every motor vehicle two lighted lamps showing white lights, or lights of yellow or amber tint, visible at least two hundred (200) feet in the direction toward which each motor vehicle ... is proceeding.” Cahill’s Ill. St. 1931, ch. 95a, ¶ 17. It has been held that this statutory provision is for the benefit not only of those who are using the highway ahead of the motor vehicle, but also to enable those driving the car to avoid accidents. Miller v. Burch, 254 Ill. App. 387; Price v. Illinois Bell Telephone Co., 269 Ill. App. 581. It has not been held that proof of the fact that the lights of a car were not sufficiently bright to disclose objects in front of the car for a distance of 200 feet is alone sufficient as a matter of law to prove negligence on the part of the driver of the car, in the event of the car colliding with an unlighted motor vehicle on the highway. Such proof is prima facie evidence of negligence. (Miller v. Burch, supra; Price v. Illinois Bell Telephone Co., supra.) However, the question of whether the driver of the ear, before and at the time and place of the collision, was negligent, depends on all the facts and circumstances shown by the evidence. (Miller v. Burch, supra; Price v. Illinois Bell Telephone Co., supra.) Such as: 1. Whether plaintiff should have apprehended the danger. 2. Whether the place where plaintiff was driving, and had a right to drive, was a safe place to drive with dim lights. 3. In short, whether under all the conditions and circumstances surrounding plaintiff as he proceeded along the highway, his conduct was so violative of all rational standards of conduct applicable to persons in like situations that all reasonable minds would conclude that he was negligent. If it was not, then, although he may have been negligent as a matter of fact, he could not properly be said to be negligent as a matter of law. Hence the jury was properly permitted to pass on that question of fact, and if the jury had a basis in the evidence for finding that the conduct of the plaintiff did not constitute negligence then, in such case, no one would contend there could be such a thing as negligent contribution to the cause of the injury, negligence of the plaintiff having been eliminated. On the other hand, should the jury find the conduct of plaintiff did amount to negligence, it would still have to find whether that negligence proximately contributed to the collision which caused the damages.

It is not contended that the negligence of Ferry, if any, before and at the time of the accident is imputable to the decedent. It is clear, however, that the question of whether Ferry was negligent in driving a car with dim lights before and at the time of the accident, is a question of fact and not one of law, under the facts and circumstances appearing in the evidence. We are asked to hold that the decedent, as a matter of law, was guilty of contributory negligence under the facts and circumstances appearing in evidence for the reason solely that the decedent was riding in the car with its lights dimmed. Such ruling would require of a guest riding in an automobile a greater degree of care than that required by the driver of the car. We are of the opinion that under the facts and circumstances appearing in the evidence in this case that the trial court did not err in refusing a new trial on the ground that the decedent was guilty of contributory negligence before and at the time of the accident. Price v. Illinois Bell Telephone Co., supra; Rhoden v. Peoria Creamery Co., 278 Ill. App. 452; Smith v. Courtney, 281 Ill. App. 530.

It is contended by the defendant that the court erred in giving plaintiff’s Instruction No. 10. This instruction informed the jury that the declaration consists of four counts and that it was not necessary for a recovery on the part of the plaintiff that she prove all of said counts, but that if she proved one or more of them by a preponderance of the evidence, then the jury should find for the plaintiff. The purpose of the instruction, as is plain from its terms, was to instruct the jury that the plaintiff did not have to prove all the charges of negligence contained in the separate counts of the declaration in order to recover damages of the defendant, but that proof of one of the charges was sufficient. This instruction sets forth the allegations of the counts and states that the declaration contains the allegation: “While said Gregory Carroll was in the exercise of ordinary care for his own safety.” It is complained that the instruction is defective in this case because it does not state that in order to recover the plaintiff must prove that the decedent was in the exercise of ordinary care for his own safety before and at the time of the accident. In several subsequent instructions given to the jury, both by the plaintiff and the defendant, it was clearly stated that before the plaintiff could recover it was necessary for the plaintiff to prove that the decedent before and at the time of the accident was in the exercise of ordinary care for his own safety, in view of all the facts and circumstances shown by the proof. Considering the instructions as a series we do not think the giving of this instruction was reversible error.

It is also contended by the defendant that the court erred by refusing to give Instruction No. 13 offered by the defendant. This instruction provides, among other things, that if the decedent at the time of the accident was riding in an automobile driven by Ferry in “a careless, negligent, and improper manner” and bad been riding in the automobile for a sufficient time prior to the accident, in the exercise of ordinary prudence, to become aware that the automobile was being driven in such ‘ ‘ a careless, negligent, and improper manner, ’ ’ and that decedent failed to protest or warn the driver against the manner in which he was driving the automobile, and that such failure of decedent caused or proximately contributed to the cause of the accident, the jury should find for the defendant. Where the court directs a particular verdict, if the jury find certain facts, the instruction must embrace all the facts and conditions essential to such verdict. Illinois Iron & Metal Co. v. Webber, 196 Ill. 526. The words of the instruction that if the car was being driven “in a careless, negligent and improper manner,” failed to inform the jury that such driving of the car must have been of such a character that a reasonably prudent person in the same or similar circumstances would have warned the driver against the manner he was driving the car. The instruction also failed to inform the jury that decedent in the exercise of ordinary care failed to warn the driver against the manner in which the car was being driven. (Roedler v. Vandalia Bus Lines, Inc., 281 Ill. App. 520.) It is also noted that the case was tried on the theory that the decedent was guilty of contributory negligence riding in the Essex coach before and at the time of the accident, when the headlights of the car were dimmed. On this theory the jury was instructed by Instructions Nos. 19 and 24, offered by the defendant, and the substantial parts of refused Instruction No. 13 were covered by these two instructions.

It is contended by the defendant that the counsel for the plaintiff was guilty of misconduct during the examinations of witnesses and also in his argument before the jury, which was of such a character as to be prejudicial to the rights of the defendant for a fair trial and constituting ground for reversal of the judgment. The alleged misconduct during the examinations of witnesses concerned the admission of evidence, and we do not observe that counsel for plaintiff exceeded his rights to insist upon the admission of evidence which he thought was competent under his conception of the law. The alleged misconduct during his argument by counsel for the plaintiff was relative to whether a certain line of argument of plaintiff’s counsel was supported by the evidence. There had been a dispute between counsel on this point. The jury was instructed that statements of counsel in these arguments were not to be considered as evidence, but that their verdict as to the evidence in the case should be governed solely by the testimony.

We have carefully considered the objections to the alleged misconduct of counsel as presented by the record, and it does not appear therefrom that the defendant was prejudiced by the conduct of plaintiff’s counsel.

Finding no reversible error in the case, the judgment of the circuit court of Peoria county is hereby affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Stone

text:
    First National Bank of Woodlawn, Illinois, Appellant, v. John W. Watkins et al., Appellees.

      Opinion filed June 6, 1938.
    Gilbert & Gilbert, of Mt. Vernon, for appellant.
    Smith & Murray, of Centralia, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Jefferson county denying recovery on a contract given by Farmers State Bank of Woodlawn, lilinois, to the First National Bank of Woodlawn, Illinois, plaintiff appellant, as guaranteed by an attached guaranty signed by defendants appellees.

On October 4, 1930, the Farmers State Bank, being in failing circumstances, entered a contract with the First National Bank by which the State Bank agreed to transfer all of its assets to the National Bank and the National Bank assumed all deposit and other liabilities (except stockholders’ liability) of the State Bank. The State Bank agreed to save the National Bank from all losses upon condition that the National Bank would accept and take over the property and assets of the State Bank and proceed to liquidate them without delay, and the State Bank agreed to pay seven per cent interest upon advances made by the National Bank.

The appellees, being stockholders in and directors of the State Bank, on the same date guaranteed faithful performance of the contract by the State Bank and agreed to pay any deficiency in the liability account of the State Bank with the National Bank.

It appears that the assets were never transferred but that John W. Watkins began to liquidate the assets for the banks, and that subsequently a creditor of the bank instituted a receivership in the circuit court. This was a double receivership, to liquidate the assets and to collect stockholders’ liability. After the institution of the present suit the National Bank filed its petition in the receivership alleging that it was a creditor of the State Bank to the extent that it advanced money under the contract of liquidation. The circuit court in the receivership allowed the claim of the National Bank, held that the contract was valid, and ordered a sale of the remaining assets. In the receivership suit the appellees with other stockholders were parties. Long after the decree in the receivership allowing the National Bank’s claim had been entered certain stockholders attacked this decree by a motion to intervene in the stockholders’ liability receivership suit. The Supreme Court of Illinois in the case of Groves v. Farmers State Bank of Woodlawn, 368 Ill. 35, held that the circuit court properly denied the motion to intervene upon the ground that the order adjudicating the National Bank’s claim was an order from which an appeal could have been taken and that the stockholders who were parties by representation in that suit were foreclosed by the decree by their failure to appeal therefrom.

The present case was tried by a jury upon the issues of performance or nonperformance of the conditions of the contract by the plaintiff, National Bank. The jury returned a verdict in favor of the defendants and judgment was entered thereon. It is this judgment which we are asked to review.

Appellees have filed a motion to dismiss upon the ground that the notice of appeal was not given in due time. On April 23, 1937, the judgment was entered on the verdict. On April 26, 1937, plaintiff filed a motion for new trial. On July 22, 1937, the circuit court overruled the motion for new trial and a motion for judgment notwithstanding the verdict. On October 19,1937, notice of appeal with proof of service was filed. Appellant contends that the motion for new trial had the effect of suspending the operation of the judgment. Appellees contend that the amendment to section 68, subd. 1 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110; Jones Ill. Stats. Ann. 104.068] effective July 6, 1937, which provides: “The time for appeal from such judgment shall not begin to run until the court shall rule upon the motion” is a legislative construction of the law prior to the amendment, and that prior to the amendment the time began to run from the pronouncement of the judgment. We think the operation of the judgment was suspended. Such was the holding in Schwind v. Forester, 289 Ill. App. 172, which presents a similar situation. The motion to dismiss the appeal is denied.

The answer in the present suit asserts that the contract for liquidation of the State Bank was ultra vires of the bank. This is the first time that a court of review has had this contract before it, although in Groves v. Farmers State Bank, 368 Ill. 35, the Supreme Court of Illinois has indicated that at the time this contract was made the prevailing opinion of the bench and bar of the State was that this general type of contract was valid.

This was a contract to convey all of the assets of the State Bank to the National Bank. The State Bank would no longer exist as a bank. This feature distinguishes the contract to a certain extent from the one presented in Sherrard State Bank v. Vernon, 243 Ill. App. 122. We think that the holding in Continental Ill. Nat. Bank & Trust Co. of Chicago v. Peoples Trust & Savings Bank of Chicago, 366 Ill. 366, compels us to hold this contract ultra vires of the bank and void. While the contract in that case was entered into after the amendment to the Banks and Banking Act which authorized such contracts if made with the approval of the auditor of public accounts, the logic of the case as applied to this contract is inescapable. The court said that up to the time of the amendment of the Banking Act the statute provided for only one method of voluntary liquidation of a bank and that method provided for deposit of the bank’s assets with the auditor-of public accounts. The court also said that the powers vested in a bank are only such as are expressly granted and necessarily implied from the specific grant, and every power not clearly granted is withheld. We hold, therefore, that the contract of October 4, 1930, between the State Bank and the National Bank was void.

Appellant contends that even though the contract be void the appellees as guarantors are bound. There is a distinction between contracts of corporations which are a mere abuse of power and contracts which are ultra vires. In Steele v. Fraternal Tribunes, 215 Ill. 190, 194, the court said: “But when the contract is beyond the powers conferred on it by existing laws, neither the corporation nor the other party to the contract can be estopped, by assenting to it or by acting upon it, to show that it was prohibited by those laws.” In Mercantile Trust Co. v. Kastor, 273 Ill. 332, the court, holding that the surety was not bound, used similar language.

Appellant contends that appellees are bound by the decree of the circuit court in allowing the National Bank’s claim in the receivership and stockholders’ liability proceedings above mentioned. The guarantors were not parties to that suit. The defenses which might have been presented were not identical. The guarantors’ liability is predicated solely on the contract. In any event the stockholders might have been liable for repayment of the sums advanced by the National Bank. The interests of the guarantors were not represented in that proceeding.

The question of the validity of the contract has been presented to us and we have reached the conclusion that it was void and that the guarantors were not bound thereby. However, the case was presented to the jury upon the issue of performance of the contract. The jury found for the defendants. We find no substantial error in the manner in which those issues were presented to the jury, and we think the defendants would be entitled to judgment on the verdict if the contract were valid.

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

Judgment affirmed.


text:
    Roy E. Boley et al., Appellants, v. City of Sumner, Illinois, Appellee.

      Opinion filed June 6, 1938.
    Kasserman & Kasserman, of Newton, for appellants.
    B. O. Sumner, of Lawrenceville, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

On April 2, 1935, there was submitted to the legal voters of the town of Christy, Lawrence county, Illinois, the following proposition: “Shall the sale at retail of alcoholic liquors be prohibited in the Town of Christy?” At this election all of the voters of said town, including those residing within the corporate limits of the city of Sumner, Illinois, voted on this proposition. The proposition was declared to have carried, but the results of the election were never enforced for the reason that the officials of the town were advised that it was illegal for the voters residing in towns outside the corporate limits of cities and villages and voters residing inside the corporate limits to vote together at the same election on such a proposition.

On April 20, 1937, the voters of the city of Sumner, Illinois, which was a city within the corporate limits of the said town of Christy, voted on the following proposition: “Shall the sale at retail of alcoholic liquors be prohibited in this city?” The said proposition was declared to have carried, and within 10 days thereafter the appellants herein, being five legal residents and legally qualified electors and voters of the city of Sumner, filed a "petition in the county court of Lawrence county, Illinois, to contest the validity of said election so held on April 20, 1937, on the theory that under the statute the said voters residing in the city of Sumner, Illinois, could not vote on the said proposition until the expiration of 47 months from the election that was held therein on April 2, 1935.

On a stipulation of the facts the said county court of Lawrence county, Illinois, held the said election of April 20, 1937 to be invalid and void. Thereafter, the appellee herein filed a petition for writ of certiorari in the circuit court of Lawrence county, Illinois, on May 28, 1937, to review the proceedings in the county court. A motion to strike was sustained and leave granted to file an amended petition. An amended petition was filed on June 11, 1937, alleging the facts as herein above set forth and alleging further that the county court did not acquire jurisdiction under the original petition to determine the validity of said election, and that the court proceeded illegally in passing upon said question, and that no appeal could be taken from the order or decree entered by said court, and that there was no other mode of directly reviewing the said proceedings of the county court other than by certiorari.

The appellants herein filed a motion to quash the writ of certiorari, and a stipulation was entered into that the proceedings in the county court should stand as a return to the writ and formal return and service was waived.

Whereupon the matter was submitted to the court upon the record of the proceedings, and the court entered an order denying the motion of the respondents, appellants herein, to quash the writ of certiorari, and decreeing that the order and decree entered in the county court should be quashed, reversed, set aside, and for nought esteemed.

From this latter order the appellants have perfected this appeal.

Only one reason is urged in upholding the action of the county court in the contest of the election of April 20,1937; that is, that this election was within 47 months from the supposed election of April 2, 1935. In this record appears a stipulation of the parties that the election of 1935 was unlawful so far as the city of Sumner is concerned, and it may be said in support of that stipulation that all parties so regarded it, and no action was ever taken under it. In view of that, said supposed election cannot be a bar to the election held, which is also admitted in all respects to be legal, subject to the one objection, the election of April 20, 1937.

The statute which prescribes that no vote shall be held within 47 months, and so forth, contemplates a vote in compliance with law; it does not contemplate a make-shift election which everybody agrees is no election at all. An invalid and void election creates no rights and no responsibilities. Nothing may be had by virtue thereof; it is the same as if the election had never been held (Jacksonville N. W. & S. E. R. Co. v. Town of Virden, 104 Ill. 339).

It is true that no appeal lies from a contest of election of this character in the county court to determine its correctness, but certiorari is a proper remedy to determine the one question as to whether the county court has jurisdiction to hear and determine the issue. (Village of Hinsdale v. County Court of DuPage County, 281 Ill. App. 571.)

Under the record in this case and the law which must be applied to it, the circuit court properly held that the county court had no jurisdiction to contest the-election it did contest, and did not err in quashing the record of the proceedings.

The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois for use of Harry D. Tindall, Administrator of Estate of Nathan C. File, Deceased, Appellee, v. London and Lancashire Indemnity Company of America, Appellant.
    Opinion filed June 6, 1938.
    Loyd M. Bradley, of Carbondale, for appellant.
    Orwin H. Pugh, of Carbondale, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

A motion has been made to dismiss this appeal. The notice of appeal was filed in the trial court on November 2, 1937. The record on appeal was filed in this court on January 26,1938. Rule 36 of subpar. 2 of the Supreme Court of Illinois, as amended October 22, 1937, provides as follows: “Whether the praecipes do or do not specify any proceedings at the trial, the record on appeal shall be transmitted to the reviewing court not more than sixty days after notice of appeal has been filed.” This rule has the binding force and effect of law and is to be observed by all inferior tribunals. People v. Callopy, 358 Ill. 11; Hallberg v. Goldblatt Bros., Inc., 363 Ill. 25. Appellant has made no defense to this motion, nor even argued it. In Gassens v. Paynter, 290 Ill. App. 288, we held that unless the record is filed in this court in compliance with rule 36, we have no choice but to dismiss the appeal. We must adhere to that decision. The appeal is dismissed.

Appeal dismissed.