text:
    The Chicago, Milwaukee and St. Paul Ry. Co. v. Samuel Mason.

      RaKroads — Action for Damages for Causing Death of Child — Instructions — Comparative Negligence.

    1. An instruction stating the rule as to comparative negligence is defective, unless it requires the jury to compare the negligence of the respective parties and from such comparison determine whether the one is slight and the other gross.
    2. Where the evidence is conflicting and the case one which appeals strongly to the sympathy of the jury, the instructions must be accurate and clear.
    3. In-an action by the father against a railroad company to recover damages for causing the death of a child of tender years, it is held:. That the instructions for the plaintiff improperly ignored the question of the father’s negligence; and that this error was not corrected by the instructions given for the defendant.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Carroll County; the Hon. William Brown, Judge, presiding.
    Mr. James Shaw, for appellant.
    Mr. J. M. Hunter, for appellee.
   Moran, J.

On the morning of Sunday, Hovember 7, A. D. 1886, -Eva Mason, a child between six and seven years old, was run over by a train of cars and killed upon the track of appellant, in the village of Thompson, in Carroll County.

At the time of the accident Eva was on her way to Sunday school in company with her elder sister, who was about eleven years of age. Appellant’s track runs north and south through the village, and parallel with it, and about 160 feet west of it is the track of the C. B. & N. R. R., which runs through one of the fields of appellee, the father and administrator of the child Eva.

Appellee’s house is about forty rods from the point on appellant’s track where the accident occurred. The church to which the children were going to attend Sunday school is located southeast from appellee’s house and distant about 375 feet from the place of the accident. The line which the children took in crossing appellant’s track ran in a southeasterly direction, and followed what seems to have been a cow path, which these and other children were accustomed to travel in going to and fro, and it crossed the tracks of appellant at a point where there was, on the west side, a considerable embankment, down which the path led, and where there were located switches, frogs and the rails of three tracks. It was not a laid-out street or road, or regular crossing, and there was another path or sidewalk running from appellee’s premises down the west side of the railroads to an open street of the village which leads over to the church, and which route was sometimes traveled by the Mason children, but not as frequently as was the shorter course by the cow path. The train which struck and killed the child was known as the 16 Flying .Dutchman,” and was running on that occasion as a wild train, that is to say, not on any regular or schedule time, and it passed through Thompson somewhat later than its usual time, and did not have occasion to, and did not stop at the depot in the village.

Appellee’s evidence tended to show that as the children were crossing the track the foot of little Eva was caught in some manner in the track, and while she was, with the aid of her sister, trying to extricate it, the train came along at a high rate of speed and killed her; that the point at which she became fast in the track was in plain view of the servants of appellant in charge of the train for a distance of some thirteen hundred feet, as the train approached, and it is contended by appellee that the train was run through the village at what was, under the circumstances, a wild and reckless rate of speed, and that the servants of appellants could, by the exercise of ordinary care and caution, have seen the child on the track in time to have stopped the train before running over her.

Appellant’s evidence tended to prove that the train was running at a moderate rate of speed, not to exceed eighteen miles an hour; that the engineer and' fireman were in their places keeping a look-out ahead; that the bell on the engine was ring'ng; that the children when first observed were on the embankment with no apparent intention of trying to cross before the train; that, when it had arrived within from seventy-five to one hundred feet from them, they suddenly started and went upon the track; that the older one got almost over and then turned and went back; that the engineer on seeing her at once blew the whistle and applied the air brakes; that the elder girl just escaped being struck; that the smaller one seemed to get confused and was struck just on the west rail and was killed.

Appellant denies that the child’s foot was caught in the track, or that she fell before she was struck by the train. The evidence shows that appellee knew that the children were going to cross the track at that point; that he saw them start for Sunday school, and seeing a freight train coming from the north on the C., B. & IST. road, followed the children some ways toward the gate opening from his premises, and called to them that they would have time to cross in front of this train, which they did and then went on toward appellant’s track. That the father knew of the location of the switches and side tracks at the point where the path crossed appellant’s line, and well understood th'e danger and inconvenience of the crossing, and it is contended by appellant that he was guilty of such negligence in permitting the children to go upon the tracks at such a place and under such circumstances as precludes his right to recover in this case.

It is also contended by appellant that the men in charge of the train were guilty of no negligence; that they did all in their power to stop the train as soon as the children were seen to be upon the track, but they went on so close to the approaching train that it was impossible to arrest its motion so as to prevent the injury.

The evidence introduced on the trial was voluminous and in many points conflicting, the case a most sad one, appealing strongly to the sympathy of a jury as it does to the sympathy of the court, and therefore it belongs to that class of cases where it is the duty of a reviewing court to set aside the verdict, if it appears from the record that an error of law was committed by the trial court injurious to the party against whom the verdict stands.

The appellee’s right to recover depended upon his proving to the jury that appellant’s servants were guilty of negligence •which caused the injury, and that there was legally chargeable against appellee or his decedent no. lack of ordinary care. The question of comparative negligence was involved, and the doctrine thereon was invoked by appellee in the ninth instruction given to the jury by the trial court. Said instruction as given, is as follows:

The court instructs the jury that the question of the liability of the defendant does not depend wholly upon the absence of all negligence upon the part of the deceased, Eva Mason, but it depends upon the relative degree of care, or want of care, manifested by both parties as shown by the evidence. And in this case, although the jury may believe from the evidence that the deceased was not wholly without fault, yet, if they further believe from the evidence that the defendant was guilty of gross negligence upon the occasion referred to, and that the injury complained of was occasioned by such gross negligence, and further, that the negligence of the plaintiff was but slight, then the jury should find the defendant guilty and assess the plaintiff’s damages at such sum as they may believe under the evidence he has sustained.”

It will be observed that the instruction omits the substantial element of the doctrine of comparative negligence that requires the jury to compare the negligence of the respective parties, and from such comparison to determine whether the one is slight and the other gross. In C. & E. 1. R. R. Co. v. O’Connor, 13 Ill. App. 65, this court said: 6<A plaintiff, though guilty of negligence ontributing to the injury complained of, may still recover if his negligence is but slight, and that of the defendant gross in comparison therewith. In stating the rule to the jury in an instruction, no material element of this formula can be properly omitted. Where a plaintiff is guilty of contributory negligence, before he can recover, it must appear, not only that his negligence is slight and that of the defendant gross, but that they are so when compared with each other. The element of comparison is as indispensable to a proper statement of the rule as are the degrees of the negligence of the respective parties;” and in E. St. L., B. & P. Co. v. Hightower, 92 Ill. 139, the rule is thus stated by the Supreme Court: “Where the plaintiff is guilty of contributory negligence, he can not recover unless it appears that his negligence was slight and that of the defendant gross in comparison with each other. Both terms must be stated to enable the jury to obtain a correct apprehension of the rule.” See also Moody v. Paterson, 11 Ill. App. 180; Quinn v. Donovan, 85 Ill. 194; C. & A. R. R. Co. v. Johnson, 116 Ill. 206.

While it is not, under the rule now established, indispensable that the doctrine of comparative negligence be stated in the plaintiff’s instructions, yet if an attempt is made to state the doctrine, it must be stated correctly. C. & E. I. R. R. Co. v. O’Connor, 119 Ill. 596. It is apparent that the instruction given was erroneous, and we do not find that the error was cured by any other instruction, if indeed it could be cured in such a case as is shown by the record.

We are of opinion that the court further erred in a matter more injurious to appellant than that already referred to, in ignoring, in the instruction given to the jury at the request of plaintiff, the question of the negligence of the father of the child. The court, in a number of instructions given at the request of the plaintiff, confined the jury, in their consideration of the care and caution that was required from the plaintiff, to that degree of care that could reasonably be expected to be found in a child of the age and mental capacity of said Eva Mason, and told the jury that if she exercised such care, then the plaintiff was entitled to recover. There was evidence before the jury that the father of the child was aware of the dangerous character of the crossing, and that he knew that the children were about to cross at the point where the accident happened on the occasion when the child was killed — in fact, he had sent the children on their way.

The question of the father’s negligence, or want of ordinary care, was in the case, and necessary to be passed on by the jury, and before the plaintiff could be entitled to recover it was as essential that the father should have been found to have exercised ordinary care, as it was that the child should be found to have exercised such care as ought to have been expected from one of her years. To leave out of the instructions, which purported to state to the jury all the elements necessary to plaintiff’s right of recovery, the requirement of ordinary care on the part of the father, was as fatal as it would be to leave out the requirement of ordinary care on the part of the child. Here the action is not brought by the child, but by the father as administrator, for the benefit of the next of bin. Hund v. Grier, 72 Ill. 393; T. W. & W. Ry. Co. v. Grable, 88 Ill. 441.

The plaintiff’s instructions should have contained the hypothesis that the appellee was free from negligence, or that, if he was not, his negligence was slight, and that of appellant gross in comparison therewith.

The fact that the court gave instructions on the part of the defendant which required that they should find appellee was free from negligence in order to entitle plaintiff to recover, does not cure the error in the plaintiff’s instructions. Hoge v. The People, 117 Ill. 35. The jury were left to choose between conflicting instructions, and it is impossible for the court to determine which rule they followed.

Because of the errors indicated, the judgment must be reversed and the case remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Gary, J.

license: Public Domain

text:
    Albert A. Spear et al. v. Edward W. Joyce.

      Attachment — Clause 6, See. 1, Chap. 11, S. S. — Only Intention of Grantor, Material — Instruction.
    1. Upon the trial of an attachment issue, tmder Clanse 6, Sec. 2, Chap. 11, R. S.. it need not appear that the grantee participated in the fraudulent intent of the grantor to hinder or delay his creditors.
    2. Where only the interests of the grantor are involved, only his intention is material.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Edwin Bobbitt Smith and John Babton Paynh, for appellants.
    The conveyance complained of is a chattel mortgage executed by the defendant when insolvent, May 14,1886, conveying his entire stock of goods, wagons, harness and one horse being his entire unincumbered property, except household furniture. This mortgage purports to have been given to secure two notes payable to Emma Molter, the mortgagee, one for $375 and the other for $538, due ten and twenty days after date, respectively. The alleged consideration for the note for $375 was an indebtedness of $261 to the Molter Furniture Company, the firm of which said Emma Molter was a member, and a fee of $100 to the attorneys who acted for the parties, for services having some connection with the conveyance. The alleged consideration for the note for $538 consisted of all the claims of the other creditors of said Joyce, except the claim of the plaintiffs for $569.06. The claims of said creditors so intended to be secured (to them) by said conveyance amounted to but $445.90, or $92.10 less than the face of said note. The mortgagee took possession of the mortgaged property on the day after the mortgage was given, closed the store of the defendant and advertised the stock and other property for sale. Prior to the sale appellants brought this proceeding, and had Emma Molter and said Emma and Wilhelmina Molter, as co-partners, served as garnishees.
    The defendant pleaded only to the attachment writ, and the only issue presented was whether said conveyance was made to hinder or delay his creditors. The title of Emma Molter, the mortgagee, was not in issue. The question was simply whether the conveyance made by the defendant Joyce was made with the intent to defraud. Emma Molter was not a party, and no issue was inade as to the bona fides of her debt. The instruction in question was highly improper, as it required the jury to find that the attachment was improperly brought, unless both the defendant and the mortgagee participated in the intent to hinder and delay the plaintiffs. Pettingill v. Drake, 14 Ill. App. 424, 427; Enders v. Richards, 33 Mo. 598, 602; Waples on Attachment, 57, and cases cited.
    Weigkley, Buxkley & Gray, for appellee.
    It is insisted that the sixth instruction was erroneous because the title of Em ni Milter was not in issue, and that the question was simply whether Joyce made the mortgage with intent to defraud. The issue is much broader than that. The allegation in the affidavit of attachment is that Joyce “ fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder or delay his creditors.” The issue goes to the conveyance itself. Was it a fraudulent conveyance? To make the conveyance fraudulent as to creditors, both Joyce and Emma Milter mint have participated in the fraudulent intent. Herkelrath v. Stookey, 63 Ill. 486; Bowden v. Bowden, 75 Ill. 143; Myers v. Kinzie, 26 Ill. 36; Ewing v. Runkle, 20 Ill. 449.
    Mr. Justice Breese, in the case of Bowden v. Bowden, supra, says: “To impeach the sale of personal property it is necessary to show that both the vendor and purchaser designed to delay creditors.”
    Whatever may have been the moral intent of Joyce in making this mortgage, his legal intent can only be established by his acts. The moral intent is something with which we have nothing to do — something intangible or incapable of being measured or determined. His legal intent we can determine from his acts and the result of them. If the conveyance that he made was a legal conveyance, tona fide in law, then the intent with which he made that conveyance, legally speaking, must have been tona fide. And if, on the other hand, the conveyance was fraudulent in law, then, legally speaking, it xvas made xvith a fraudulent intent. In other words, the intent xvith which he made it can only be determined by the result, to wit, the quality of the conveyance. That being the case, an instruction, to be correct, must inform the jury what constitutes a fraudulent conveyance, and that is just what the instruction in question did.
   Gary, J.

This was a suit by attachment, in which the affidavit, traversed by the appellee, alleged that the appellee fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder or delay his creditors.

The sixth instruction of the appellee was that the appellants, in order to sustain the issue, must prove by a preponderance of the evidence that the alleged fraudulent conveyance was given with the intent on the part of both the appellee and the grantee to hinder, delay and defraud the creditors of the appellee. This is contrary to the doctrine of Pettingill v. Drake, 14 Ill. App. 424, and Enders v. Richards, 33 Mo. 598.

Appellee very ingeniously argues that he could not fraudulently convey, except by a fraudulent conveyance, and that no conveyance is fraudulent unless the grantee participates in the fraud; citing Herkelrath v. Stookey, 63 Ill. 486; Bowden v. Bowden, 75 Ill. 143; Myers v. Kinzie, 26 Ill. 36; Ewing v. Runkel, 20 Ill. 449. These cases unquestionably support the latter branch of his proposition, but they are applicable only where the title of the grantee is attacked. Where only the interests of the grantor are involved, then only his intention is material.

The judgment is reversed and the cause remanded.

Reversed and rema/nded.


text:
    Patrick L. Touhy et al. v. Henry P. Daly.

      Beal Property — Sale—Action for Commissions — Husband and Wife— Joint Liability — General Issue — Burden of Proof — Instructions.
    In an action to charge two defendants, husband and wife, jointly for commissions on the sale of certain real estate, it is held: That the plea of the general issue relieved the plaintiff from the burden of proving the joint liability of the defendants in the first instance; and that the evidence on the part of the defendants fails to disprove joint liability.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tut hill, Judge, presiding.
    Messrs. C. H. & 0. 33. Wood, for appellants.
    There is nothing to connect Catharine 0. Touhy in any way with any agreement to pay commissions to appellee.
    The only count in the declaration touching the case is the common count for services against the defendants jointly.
    Of coarse, it is settled law that in actions ex contractu, the plaintiff, in order to recover, must establish a cause of action against all the defendants. Rosenberg v. Barrett, 2 Ill. App. 386; Davison v. Hill, 1 Id. 70; Garland v. Peeney, 1 Id. 108.
    Judgment against two on a contract, without proof as to one, will be reversed. C., B. & Q. R. R. Co. v. Coleman, 18 Ill. 297; Jansen v. Varnurn, 89 Ill. 100.
    This contract was made by Mr. Touhy. It binds him by its terms, but it does not undertake or even purport to bind Mrs. Touhy, who was the owner of the property, to do anything, not even to sell.
    As it is not the contract of Mrs. Touhy, it would seem almost superfluous to discuss the question whether Mr. Touhy was her agent, or whether the contract was ever ratified by lier. So far as any agency may be implied, however, it was distinctly repudiated by her as soon as the contract was brought to her attention.
    Appellee does not claim that he ever made any contract with Mrs. Touhy in regard to a sale of the property or as to commissions. When he was distinctly notified that the contract was repudiated, he did not see Mrs. Touhy. What Mr. Touhy said about his authority is» no evidence that he was her agent. Whiteside v. Margarel, 51 Ill. 507. And an agency by implication will not bind the principal if he repudiates it. Bertholf v. Quinlan, 68 Ill. 297.
    Messrs. Mason, Ennis & Bates, for appellee.
   Gary, J.

The ill-natured and vituperative brief on behalf of the appellee, excites suspicion that he is on the wrong side of this case; nevertheless, it is the duty of the court to examine it on its merits. His claim is for commissions upon a sale of real estate at Bogers Park, negotiated, as he alleges, as agent for appellants. They were husband and wife. The property was hers by inheritance.

The declaration contained the common count in assumpsit for work, and the only plea was the general issue. Under the plea the appellee was relieved from the burden of proving the joint liability of the appellants, but they were at liberty to disprove it. Bensley et al. v. Brockway, ante, p. 410, where this subject is considered at length.

That the sale was negotiated by appellee and consummated at a lawyer’s office, where the parties to this suit and the purchaser were all present, clearly appears from the evidence. What papers were then executed is left, by the evidence, to inference. In the ordinary course of business there would have been a deed signed by both appellants, as the evidence shows that the purchase money was then paid. It also is clear 'that appellee was employed in the business by conversations between himself and the husband. The terms of that employment, as to what should be the commissions, are disputed, but the verdict, upon conflicting evidence, is final.

The appellants insist that there was no- joint liability, and argue the case as if the appellee was required to prove it, instead of the burden being upon them to disprove it, and procured an instruction to the jury that, “ a case must be made out against both defendants, or else there can be no recovery against either,” which was more than they were entitled to; for it was not necessary to a recovery that the proof should show a joint liability, but only that it should not show the contrary; yet if, on the whole case, it does appear that they were not jointly liable, the judgment must be reversed. Davison v. Hill, 1 Ill. App. 70; Garland v. Peeney, 1 Ill. App. 108.

In addition to the fact that both appellants were present at, and, it is reasonable to infer, joined in, the consummation of the sale, the husband testifies:

“Thenegotiationforthesale of this sixteen acres commenced in this way: In the fore part of the year 1886, Mr. Daly’s son came to the house one morning with a letter, saying that his father would like to see me on some business, and I went to see him that evening, but he was not at home. The following morning I got up rather early and went to Mr. Daly’s house, and he asked me if the property was for sale; I said yes, and he asked me what were the terms. Well, I said we offered it at one time at not less than $1,200, but I would go back and see, if he got the right sort of a person, if I could sell it to him for less. ‘Well,’ he says, ‘let me know; I have a customer that wants to buy the property if it is reasonable.’ ‘ Well, I don’t think,’ says I, ‘ that we would give it for less than $1,200; that is the price it was offered at two years, and we had no offers since;’ and then I spoke to my wife, and 1 said: ‘We are carrying too much property, and perhaps it would be well to let it go at a reasonable figure,’ and I thought that would be $1,000 cash. I went to Mr. Daly afterward, and told him that Mrs. Touhy said it must be cash, $1,000, but if you want anything out of it you will have to charge; she will not sell at less than $1,000; you can sell it at $1,100, $1,200, as you please.”
Again he says: “ I own an equity in property in Rogers Park. I have what they call first equities.” When the purchase money was paid, it was first handed to the wife, who passed it to the husband, and he put it in his pocket. And she testifies: “I never told Mr. Daly anything myself about the thing. I don’t remember whether I sent any word to Mr. Duly by my husband about this matter.”

There was a preliminary contract in writing for the sale, executed by the husband as agent for the wife, June 6, 1886, and the consummation of the sale was July 20, 1886.

There was a good deal of evidence of her dissent to what her husband had done, and of great difficulty in inducing her to complete the sale, but she finally did it upon the original terms.

The whole case is consistent with the hypothesis that the appellants did, between themselves, regard the property which was the subject of the sale, as property in which they had a common interest, though the ownership was hers; that whatever was to be done about it, was the subject of mutual consultation, and when agreed upon, was to be done by him for their common benefit, on her behalf and his own. In this aspect of the case, he stood, with reference to her and the property, very much in the same relation that a partner occupies, except that he could not act independently. And if this hypothesis may be true consistently with the evidence, and being true, makes the appellants jointly liable, then, under the statute, it must be taken as true, because the burden was upon the appellants to prove the negative of joint liability. This view takes out of the case all questions except what was the bargain as to commissions, and, as before said, that the jury have settled.

The judgment will be affirmed.

Judgment affirmed.


author: Per Curiam,.

text:
    Charles H. Nix v. Lavina J. Whiteside.

      Fraud — Action of Tresxms — Conflict of Evidence.
    Where there is a sharp conflict of evidence on material points in the case and no error of law intervenes, the verdict of the jury is conclusive.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit- Court of Cook County; the Hon. Abba N. Waterman, Judge, presiding.
    Messrs. H. Booth and T. Morrison, for appellant.
    Messrs. Bichard S. Thompson and Granville W. Browning-, for appellee.
   Per Curiam,.

This was an action of trespass on the case for alleged fraud and deceit on the part of appellant.

This case was tried by a jury and a verdict rendered against appellant, and he brings the record to this court, and in the briefs filed by his counsel no point of law upon the admission or rejection of evidence, or the giving or refusing instructions, is made, but the discussion is wholly confined to the question of fact. We have examined the record and find that it contains evidence, which, if believed by the jury, fully warranted the verdict rendered.

It is true there is a conflict of evidence, but the jury are much better fitted to settle such conflict than a reviewing court, and they are the tribunal instituted by the law and charged with the duty of determining issues of fact. Even in cases where, upon a consideration of all the evidence in the record, we should have reached a different conclusion from that reached by the jury, still, unless we can say that the conclusion of the jury is unsupported by the evidence or that it is manifestly against the weight thereof,, we should not be authorized to reverse.

It is for the jury to consider and determino what weight to give to particular circumstances, and wdiat inference to draw from all the facts in evidence, and where the cause presents, as this does, a sharp conflict of evidence on material points in the case, and no error of law intervenes, the verdict reached by the jury is conclusive and binding on a court of review.

We find nothing in the case which would warrant an interference with the verdict by this court', and there being no error of law, the judgment must be affirmed.

Judgment affirmed.


author: Garnett, P. J.

text:
    Charles Sheer et al. v. Wilhelmina Fisher.

      Landlord and Tenant — Overloading Building — Action for Damages— Instructions — Liability of Tenant.

    1. In an action to recover damages for overloading and breaking down the plaintiffs building while occupied by the defendants as tenants, it is held: That an instruction which ignored the question of notice of structural weakness, if any, was improperly given; that an instruction asked by the defendants was improperly modified so as to require them to show affirmatively that the fall was not due to their negligence; that certain other instructions were defective; and that the defendants had the right to have submitted to the jury the question whether the plaintiff, her agent, or other tenants, had exercised clue care in loading the building.
    2. A tenant- is only liable for causing a permanent injury to the demised premises over and above the ordinary wear and tear, when such injury is caused by his wrongful act or negligence.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.

      This was an action of trespass on the case by appellee against appellants and Adolph Mueller and Henry Mueller to recover damages for overloading and breaking down plaintiff’s building while defendants were her tenants. The plaintiff was owner of a building numbered 20 and 22 South Desplaines street, Chicago, fronting west, thirty-four feet wide and 160 feet deep. It was divided in the center by a brick wall laid north and south, the west half of the building being five stories high and the east half four. About the last of December, 1885, the plaintiff, by her agent, August Fisher, made a verbal lease to Sheer & Lynch, the appellants, of the west forty-five feet of the third floor in the east half of the building. August Fisher occupied all of the basement in the east half of the building, and all the first floor (except a small space therein for bins rented to Sheer & Lynch), and all of the second floor in the east half of the building. Mueller Brothers occupied the west half of the entire building, except the first floor, as a malt house. On the trial it appeared that Sheer &. Lynch were maltsters, and August Fisher, at the time of leasing to them, knew they leased the space on the third floor to store malt. Fisher testified that when he made the lease he told Sheer that he could only pile his malt six feet high, but Sheer and Henry Mueller both deny that he said anything of the kind. On the contrary they testify that Fisher then said the building was undoubtedly strong enough for storage. Sheer & Lynch took possession of the space rented, built a wooden partition at the east end thereof and had a large quantity of malt deposited there, which Mueller Brothers made for them in their malt house. The evidence was very conflicting as to the amount of malt so stored by Sheer & Lynch, and as to the third floor being overloaded by them. About a month after the renting to Sheer & Lynch they wanted malt of another grade and requested Mueller Brothers to rent from plaintiff space on the east half of the fourth floor to store that grade of malt. Accordingly Mueller Brothers did then rent of plaintiff, through August Fisher, the larger part of the space on the fourth floor of the east half of the building and commenced to store malt there, and at the time of the fall of the building had there a considerable quantity of malt. August Fisher testified that, at the time of the latter leasing, he knew Sheer & Lynch had eight feet of malt on the third floor, and that was higher than it ought to have been. Evidence was also given tending to prove that the breaking down of the building was caused by the plaintiff in storing large amounts of hay on the first and second floors, and in recklessly and violently tumbling the bales upon the floors; that the building was poorly and insufficiently constructed, the walls being weak and defective on account of previous fires'in the building. On April 17, 1886, there being then large quantities of malt stored by Sheer & Lynch on the -third floor in the east half of the building, and by Mueller Brothers on the fourth floor of the east half, the roof and all of the floors east of the partition wall broke down and were destroyed.
    For the plaintiff the court gave to the jury the following, among other instructions:
    “1. The jury are instructed as a general principle of law that when the owner of real estate rents the same to a tenant and the tenant while in the possession of rented property causes a permanent injury to the building thereon, over and beyond the ordinary wear and tear to the same, this in the law is called waste by the tenant, and the owner’s interest in property he has so rented is-called his reversionary interest or estate,’and the law gives the owner a remedy against the tenant for all permanent injury he so does by himself or his agent.
    “ 2. The jury are further instructed as a general principle of law in this State, in the simple renting of a building or premises there is no implied warranty that they are fit for any particular use or business; the tenant, in the absence of a special warranty or representations on the part of the landlord, takes the property he rents at his own risk. And in the use of the property rented the tenant is bound to exercise reasonable care and prudence, and if he does not, and the property is permanently injured in consequence of the want of such reasonable care and prudence, then, and in such case, the tenant becomes liable to the owner of the reversion for such damages as are the direct results of the want of such reasonsble care and prudence on the part of the tenant, in the use of such premises.
    “ 3. The jury are further instructed that, if you believe from the evidence in the case that the plaintiff was owner of the building and premises known as Mos. 20 and 22 South Desplaines street, Chicago, Illinois, in December, 1885, and that the plaintiff, by herself or agent, at that time rented to the defendants, Sheer & Lynch, a part of the third story of said building, and that they took possession of the part so rented by them, the plaintiff then retaining other portions of said building, and if you further believe from the evidence that the defendants. Sheer & Lynch, while the part rented by them was in their possession, either by themselves or their agents, unreasonably overloaded the floor so in their possession, and placed thereon more weight than was reasonable and prudent to be put there, taking into consideration the nature and character of the building and the circumstances under which it was leased, as shown by the evidence, and that in consecpience of such overloading (if the evidence shows that such there was) the floor and roof and timbers and other parts of the building were broken and injured, then you should find the defendants, Sheer & Lynch, guilty, and assess the plaintiff’s damages at such sum as the proof shows the injury caused, as charged in the declaration.”
    The court then instructed the jury to find Adolph and Henry Mueller not guilty. To the giving of said instructions the defendants, Sheer & Lynch, excepted. The defendants then asked the court to give to the jury the following, among other instructions:
    “5. The jury are instructed, as a matter of law, that to entitle the plaintiff to recover it should appear by a preponderance of evidence on her part that the careless and negligent conduct of defendants, Sheer & Lynch, in overloading the third floor, was the immediate and direct cause of the fall of the building; and in case it shall appear from the evidence to the satisfaction of the jury that the fall of the building was due to other causes, such as insecure walls, bad construction, bad material, or the overloading of the other floors on the. part of-the plaintiff or others, then the jury should find the defendants not guilty.
    “6. If the jury believe from the evidence that the defendants had reason to suppose that the said building was reasonably strong and sufficient for the purpose for which the third floor was rented, and that said defendants used said building according to the terms of the leasing thereof, then the jury are instructed to find the said defendants not guilty.
    “ 8. If" the jury believe from the evidence that the said plaintiff did either herself, or by her agent, overload the said building, or failed in the exercise of due care and caution in loading the same, on account of which the breakage occurred, then the jury are instructed to find the said defendants not guilty.
    “9. They are further instructed that if they should find from the evidence that the defendants, under the instructions of the court, were guilty of negligence in the loading of the building, and that the plaintiff was also guilty of negligence in loading the same, then the jury should find for the defendants, unless they should find that the negligence of the defendants was gross, and that of the plaintiff was slight in comparison therewith.”
    But the court refused to give these instructions, and altered the same so as to read as follows, to wit:
    “5. The jury are instructed, as a matter of law, that to entitle the plaintiff to recover it should appear by a preponderance of evidence on her part that the careless and negligent conduct of defendants, Sheer & Lynch, in overloading the third floor, was the immediate and direct cause of the a'ccident, and in case it shall appear from the evidence, to the satisfaction of the jury, that the accident and injury to the building was due to other causes, and not to the negligence on the part of the defendants, Sheer & Lynch, in unreasonably overloading said floor as charged in the declaration, then, and in such case, the jury should find the defendants, Sheer & Lynch, not guilty.
    “ 6. If the jury believe from the evidence that the defendants had reason to suppose that the said building was reasonably strong, and sufficient for the purpose for which the third floor was rented, and the said defendants used said building according to the terms of the leasing thereof, and did not unreasonably load said floor, taking into consideration the nature and character of the building and the circumstances of the leasing as shown by the evidence, then and in such case, the jury should find the defendants, Sheer & Lynch, not guilty.
    “8. If the jury believe from the evidence that the said plaintiff did, either herself, or by her agent, unreasonably overload the first and second floors of said building, or either of them, and that by reason thereof the breakage occurred, then and in such case the jury are instructed to find said defendants not guilty.
    “9. They are further instructed that if they find from the evidence that the defendants were guilty of negligence in the loading of the third floor of the building and further find from the evidence that the plaintiff was also guilty of negligence in overloading the first and second floors, or either of them, then the jury should find for the defendants, unless they should further find from the evidence that the negligence of the defendants was gross, and that of the plaintiff was slight in comparison therewith.”
    To which refusal of the court to give said instructions as requested, and to the modification thereof, the defendants excepted.
    The jury found Sheer & Lynch guilty, assessing damages against them at §1,600 and Mueller Brothers not guilty. Motion for a new trial by Sheer & Lynch overruled and exception. Judgment on verdict and appeal.
    Mr. Sydney 0. Eastman, for appellant.
    Mr. Rufus King, for appellee.
   Garnett, P. J.

To charge appellants with liability for the fall of the building, it was necessary to prove, not only that the third floor was overloaded by them, but that they were informed of its carrying capacity, or had notice of facts which would have deterred a reasonable and prudent man from placing thereon as much malt as they had stored there. There was evidence tending to prove the building poorly constructed, and from that evidence the jury had the right to infer, if they saw fit, that the building fell because of its ill construction, arid that it would not have fallen had it been, in fact, such a building as its appearance indicated. It was also a question for the jury (if they found the building was badly constructed) whether Sheer & Lynch had notice of the poor character of the building. Yet they were informed by the third instruction given for the plaintiff that if Sheer & Lynch unreasonably overloaded the floor in their possession, taking into consideration the nature and character of the building, and that thereby the floor and roof, etc.? of the building were broken and injured, they should find them guilty. This, in effect, makes them liable for damages that may have been caused by inherent weakness, or unsound material used in erecting the building (whether they had notice thereof or not), though the weight deposited on the floor may have been such as the apparent character . of the building would have led them to believe entirely safe. The instruction having ignored the question of notice, was erroneous.

The sixth instruction asked by the defendants should have been given as asked. The court erred in inserting therein the objectionable words composing a part of the plaintiff’s third instruction, upon which we have alread)r commented.

The fifth instruction, in the form requested by the defendants, might have been refused by the court, because the jury would thereby have been told that the plaintiff could not recover unless the loading of the third floor by Sheer & Lynch was the immediate and direct cause of the fall. If they had negligently overloaded the third floor, so that a very moderate and proper load afterward placed on the second floor by plaintiff, without notice of danger, caused the building to fall, the defendants would be liable for the injury, although its immediate and direct cause was the proper load thus placed on the second floor. But the addition made by the court to this instruction made it necessary to a successful defense, not only that the injury to the building was due to other causes than overloading by Sheer & Lynch, hut that they should also believe affirmatively that such injury was not due to their negligence in overloading. The effect of this addition was to impose upon the defendants a burden which the law does not require them to bear. It is enough for their defense that the evidence should show that the building fell from causes other than their overloading, and that it should fail to show that it was caused by their negligence in overloading. But the instruction as given required the evidence to show affirmatively that the fall was not due to the negligence of Sheer & Lynch, which is a materially different thing from the failure of the evidence to show their negligence. And this is a fatal error, although the instruction as requested by the defendants was erroneous. The court should have refused it, instead of placing it before the jury with an additional and unjust burden laid upon the defendants, which they had not volunteered to assume.

The counsel for appellants has argued, at some length, two other propositions, viz.: (1) The fault of appellee in tumbling bales of hay upon the first and second floors; (2) the liability of appellants for any overloading of the fourth floor that may have been done by Mueller Brothers; and it is taken for granted that these questions were fairly presented to the jury by the eighth and ninth instructions asked on behalf of appellants. They had the right to have submitted to the jury the question whether the plaintiff, or her agent, had exercised due care and caution in loading the building. This involved not only the weights actually placed by her, or her agent, on the other floors of the building, but the manner of placing them there. A hundred bales of hay might have been safely wheeled or hoisted into the first and second stories of the building if carefully, and cautiously done, while recklessly throwing them from a wagon upon the first floor, or from a hoisting apparatus upon the second floor, might have caused the very damage of which the plaintiff now complains. As we have shown in the statement of facts, there was evidence tending to prove that plaintiff’s bales of hay were' recklessly and violently thrown upon the first and second floors, and the defendants may have the attention of the jury drawn to this feature of-the case by a proper instruction on the question of negligence and comparative negligence.

Then appellants claim that the overloading, if there was any, was done either by plaintiff or Mueller Brothers. The renting to Mueller Brothers was about a month after the lease to appellants, and after August Fisher saw more malt on the premises of Sheer & Lynch than he thought there ought to be. He was the plaintiff’s agent in these transactions with appellants and Mueller .Brothers, and she is chargeable with such knowledge as he had, at the several times, in respect to the building and its occupation. The renting to Mueller Brothers would seem to have been influenced by the desire to make the premises, bring more rent, although he then believed the third floor overloaded. Mo doubt a landlord may prudently and reasonably rent to different persons separate parts of the same building, but if he should so let his building it is manifest that the first tenant is mot responsible for the acts of the others in the use of the premises rented by the latter. The negligent act of the latter tenant in the use of said premises is not the act of the landlord (as implied by the eighth and ninth instructions), as the offending tenant is not the agent of the landlord. These two questions the defendants are entitled to have presented to the jury by proper instructions, but they were not so presented by the eighth and ninth instructions, or by any other.

The first instruction given for plaintiff contains a naked proposition of law which is not sound, and the first sentence of the second a supposition which is mot sound in its application to the facts of this case. A tenant is not absolutely liable for causing a permanent injury to the demised premises over and above ordinary wear and tear, as stated in the first instruction; such injury must be caused by some wrongful act or negligence of the defendant before he can be made to respond in damages. Mor was the renting to Sheer & Lynch a simple renting, as the jury might infer from the second instruction. Both the witnesses who testified for plaintiff as to the renting, stated that the purpose for which the premises were leased was spoken of when the lease was made. What influence, if any, these two instructions may have had in misleading the jury, we are unable to say, nor do we say that the judgment should be reversed if these were the only errors in the record; but we think these two instructions should not have been submitted without alterations to make the first conform to the law, and the second to the facts of this case. Whether the renting of premises for a particular purpose, known to the landlord when the lease is made, will or will not raise an implied warranty that they are suitable for that purpose, is not the question. The tenant is not seeking to recover damages from the landlord for breach of an implied warranty, but alleges, as a defense to the landlord’s action, that he was led to think the building was strong enough for the purpose for which he used the demised premises. If the jury thought the alleged representation by Fisher was not made by him, they might still have found that such belief by appellants was justifiable, if no warning was giving as to the amount of malt that could be safely stored on the floor rented to appellants.

The judgment is reversed and the case remanded.

Reversed and remanded,


author: Per Curiam.

text:
    Albert Mueller v. Henry F. Kleine.

      Restraint of Trade — Agreement—Liquidated Damages — Question for Jury.

    An agreement for liquidated damages for the breach of a condition in a contract of sale of a business that the vendor will not open a similar business within a certain distance and within a certain time, will be enforced unless it appears that the amount named is oppressive and unjust.
    [Opinion filed December 7, 1888.]

      , Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. William Vocke and Harvey Storok, for appellant.
    Messrs. Egberts, Hutchinson & Thomas, for appellee.
    “Where a contract is of such a character that the damages which must result from a breach of it are uncertain in their nature, and not susceptible of proof by reference to any pecuniary standard, it is deemed especially fit that the parties should liquidate the damages, and any stipulation they make ostensibly for that purpose receives favorable consideration.” 1 Sutherland on Damages, 492; Bagley v. Peddie, 16 N. Y. 469.
    “Damages for breach of contracts for the purchase of goodwill of an established trade or business, or for the withdrawal of competition, are so obviously uncertain that courts have recognized the fullest liberty of parties to fix beforehand the amount of damages in that class of cases.” 1 Sutherland on Damages, 507; Dakin v. Williams, 17 Wend. 447; Jaquith v. Hudson, 5 Mich. 123; Cushing v. Drew, 97 Mass. 445.
   Per Curiam.

On May 1, 1884, appellant sold to appellee a beer saloon, at 90 East Washington Street, Chicago, with all the furniture, fixtures and good will, for the sum of §4,000. At the time the transaction was consummated, and as a part thereof-, appellant executed and delivered to appellee the following agreement:

“For and in consideration of the sum of one dollar in hand paid me by Henry F. Kleine, the receipt whereof is hereby acknowledged, that I agree not to open a saloon within two thousand (2,000) feet of Ho. 90 E. Washington Street within two years from the date hereof, I also agree to pay to Henry F. Kleine, or his heirs or assigns, the sum of ten dollars (§10) per day as liquidated damages if I should open a saloon within the above named vicinity, meaning and intending by this agreement to guarantee to the said Kleine all the benefits that may arise from my good will from the business that I have established at my late place, lío. 90 E. Washington Street.
May 1, 1884.
Albert Mueller, [seal.]”

The suit was brought to recover §10 per day as liquidated damages, appellee alleging that appellant had opened a saloon within 2,000 feet of lío. 90 East Washington Street on September 1,1884, and had ever since continued the same open and in competition with the saloon sold to appellee. A verdict for appellee for §2,500 was found and judgment entered thereon.

It is claimed that the evidence shows appellant was in charge of the saloon complained of, as the representative of theK. Gr. Schmidt Brewing Co., and not otherwise, until after May 1, 1886.

On this point the jury have found against Mueller, and we think the finding fully sustained by the evidence.

The parties voluntarily agreed upon §10 a day as liquidated damages for violation of the agreement. Why that agreement should not be enforced as entered into is not made to appear. There being no facts disclosed by this record, from which a reasonable inference can be drawn that the amount named is oppressive and unjust, and the damages from a violation of the contract being uncertain, the agreement of the parties must prevail.

On similar contracts the amount designated by the parties as liquidated damages has been held recoverable. Downey v. O’Donnell et al., 86 Ill. 49; Dakin v. Williams, 17- Wend. 448; Jaquith v. Hudson, 5 Mich. 123. See also Cushing v. Drew, 97 Mass. 445.

There is no ground for objection to the modification of defendant’s instruction. The plain intent of this agreement was to secure appellee against competition by appellant within the prescribed time and space, and nothing more was accomplished by the instruction as amended.

Appellant denies that the consideration of one dollar (31) was ever paid to him. But appellee testified that it was included in the §4,000, and the jury have so found by their verdict.

The judgment is affirmed.

Judgment affirmed.


text:
    The Chicago, Milwaukee & Saint Paul Railway Company and The Chicago & North-Western Railway Company v. Mary A. Snyder, Administratrix.

      Personal Injuries — Sailroads—Death of Conductor — Action for Damages — Second Appeal — Res Ad judicata — Instructions — Error without Prejudice.

    1. Upon a, second appeal, the decision of the Supreme Court, on appeal from the former decision of this court, is conclusive of the questions then involved.
    2. This court will not reverse a judgment because of improper modifications of an instruction, which could not have misled the jury to the injury of the appellant. t
    3. This court affirms a judgment against two railroad companies for damages for causing the death of a conductor who was in the employ of one of the defendants, two juries having found the same verdict and there being no substantial error in the record.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. E. Walker, for the Chicago, Milwaukee & St. Paul Railway Company, appellant.
    Mr. W. B. Keep, for the Chicago & North-Western Railway Company, appellant.
    Mr. Mason B. Loomis, for appellee.
   Gary, J.

This case is in this court for the second time. A judgment of the Superior Court for the appellee, for the same sum as now, upon substantially the same evidence, was here affirmed, upon a former appeal, but no opinion was then filed, the law requiring opinions by the Appellate Courts in cases affirmed having been passed subsequently. That judgment was reversed in the Supreme Court for error in giving one, and refusing another instruction. 117 Ill. 376.

The objection then sustained to the then third, now second, instruction for appellee, has been removed by a clause leaving to the jury the question whether not only the deceased, but those engaged with him in the management and operation of the car and engine, were exercising due care, etc. And the same instruction first given then, is now repeated. There is no occasion now, for this court to consider the objections that appellants make to that second instruction, as the opinion of the Supreme Court, on the first appeal, is the law of the case on all subsequent ones, to the same, and much more to this subordinate couyt, Newberry v. Blatchford, 106 Ill. 584.

The St. Paul Company asked the court to give to the jury this instruction:

“ 5. If the jury believe from the evidence that the witness Torrence had charge of the semaphore, and that he was employed and discharged by the defendant, the Chicago and North-Western Bail wav Company, and if yon further believe from the evidence that the injury complained of resulted from the negligence of said Torrence in giving his signal to the train of the North-Western Company, of which the deceased, Snyder, was the conductor, then the court charges you that Torrence in giving such signal was the agent of the defendant, the Chicago and North-Western Bail way Company, and that the Chicago, Milwaukee and St. Paul Bail way Company is not liable for any damages resulting from any negligence of Torrence in giving signals to trains of the Chicago and NorthWestern Bailway Company.”

Which was modified by the court by inserting “ paid ” after “ employed ” and “ alone and was under its sole control ” after e: company,” where that word first occurs in the instruction This modification was excepted to and is assigned as error.

This instruction might well have been refused, for the only evidence as to the relations of Torrence with the defendants is his own testimony that he was a North-Western man when he went there and was sent there by that company, but drew his pay from the pay car of both companies, and that of the other employes engaged with him, two were North-Western men and one a St. Paul man, and they all drew their pay from both companies. The fact that he had been a North-Western man and was sent there by that company, did not authorize the court to tell the jury that he was the agent only of that company when he was paid by both, and when the same act which opened the track of either eompmny shut the other. There is no evidence that he was discharged. If he was employed by both, he was by each, and in giving a signal to the train of one company, he also gave it, if a train of the other company was there, to that also, and so the effect of this instruction as asked was, that though he was the servant of both and actually at the moment doing the work for both, yet neither was liable, because he was employed by, and at work for the other. The modification would have been proper if there had been any evidence upon which to base it, but the lack of such evidence cannot be complained of, as there is no escape from the conclusion that he was the agent of, and acting for both appellants at the time of the accident. The modifications could not have misled the jury to the injury of the appellants. Howard F. & M. Ins. Co. v. Cornick, 24 Ill. 455.

The accident occurred before daylight on a foggy morning in October, 1882. At the place of the accident the tracks of the North-Western run east and west, and those of the Saint Paul cross them from the southeast to the northwest at a very acute angle. There was a west bound train of each company waiting to make the crossing, as well as the east bound car and engine of which the deceased was conductor. The movements of all should have been governed by lights shown at the semaphore, about ninety feet west of the most western point at which the tracks of the two companies touched each other. Somebody blundered; it might have been the engineer working with deceased, in which case there could be no recovery. It might have been the servants of the Saint Paul operating their west bound train, and then that company only would be liable. It might have been, and, upon a great mass of testimony much of which is confused and conflicting, the jury have found that it was, the servant of both companies, operating the semaphore. It w'ould serve no good purpose now to recite that testimony.

Two juries have found the same verdict upon it, one of which verdicts has heretofore been sustained here.

I wish to add on my own account, that this case was considered and determined, without dissent, in a conference of the judges of this court while Judge McAllister was living and present. It had not, before I came here, been assigned to any judge to prepare the opinion of the court in it. In the distribution in rotation this case fell to my lot. The other judges did not, nor do I, deem it improper for me to write that opinion, although the first trial of the case was before me in the Superior Court.

There is no error against appellants, and the judgment is affirmed.

Judgment affirmed.


author: Moran, J.

text:
    Emanuel Kramer et al. v. George J. Ferry et al.

      Remora! of Causes — Jurisdiction of State Court — Hozo Regained — St at. ute — Failure to File Transcript in Federal Court.

    1. A State court loses jurisdiction of a removable cause upon the entry of an order of removal, and can only re-acquire jurisdiction through an order of the Federal court remanding the cause under Sec. 5, Act of March 8, 1875.
    2. Failure to file a transcript of the record in the Federal court does not operate to re-in vest the State court with jurisdiction. Hence a certificate of the clerk of the Federal court to such failure, even if a part of the record, does not authorize the State court to proceed with the cause.
    [Opinion filed December 18, 1888]

      In error to the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    The record in this case shows a suit commenced by service of summons, a declaration on a promissory note, an appearance by the plaintiff in error, and, on February 3, 1885, a petition in regular form by said plaintiffs in error for the removal of the case to the United States Circuit Court for the Northern District of Illinois. A bond, as required by the United States Statute, was filed and approved by the Superior Court, and on February 4, 1885, an order was entered transferring the cause to the United States court, and directing that the clerk forthwith transmit to said court a full and complete transcript of all the papers and pleadings in the cause. December 10,1885, there was filed in the Supreme Court a certificate of the clerk of the United States Circuit Court that no transcript of the record from the Superior Court in said cause was filed in said Circuit Court since February 1, 1885; and on the same day, on motion of attorney for the defendants, in the Superior Court, ordered that this canse be, and is hereby, reinstated and redocketed, and that the defendants are required to plead on or before the coming in of court and opening thereof at 10 o’clock Saturday morning next. On December 12,1885, default of the defendants was entered for a failure to comply with the rule to plead, and the court assessed the damages and entered a judgment against them for $2,673, to reverse which the record is brought to this court by writ of error.
    Messrs. Moses & Newman, for plaintiffs in error.
    No counsel appeared for the defendants in error.
   Moran, J.

The petition shows a case coming clearly within the provisions of the act of Congress authorizing the removal of the cause from the State to the United State courts, and all the proceedings for the removal having been formal and regular, the State court, at the time it entered the order of removal, lost all jurisdiction over the case. Even if the court had refused to enter the order, the case being one for removal and the petition and bond sufficient, the State court would be ousted of jurisdiction, and proceeding therein by such court thereafter until the case should be remanded to it in accordance with the statute would be coram non judice and void. Gorden v. Langest, 16 Pet. 97; Stevens v. Phoenix Insurance Co., 41 N. Y. 149; Shaft v. The Phoenix Mutual Ins. Co., 67 N. Y. 54.

The case passed to the jurisdiction of the United States court, and, for anything that appears in this record, there it still remains.

The certificate of the clerk of the United States court can not be considered as part of this record; but if it could be, the matter would be in no manner changed. Failure to file a transcript of the record in the United States court can not reinvest the State court with jurisdiction of the cause. The act of Congress provides for returning certain cases to the jurisdiction of the State courts, as follows:

“When it shall be made to appear to the satisfaction of said Circuit Court at any time after such suit has been removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a ease cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss or remand it to the court from which it was removed, as justice may require.” Sec. 5, Act of March 3, 1875.

Until there is an order in pursuance of the foregoing section remanding the case, it will, if once properly removed, remain within the jurisdiction of- the United States court. Lawton v. Blitch, 30 Fed. Rep. 641.

The record presented shows that the State court lost jurisdiction of the cause and that it did not regain it, and it follows that, when the judgment was rendered against plaintiffs in error, the Superior Court was wholly without jurisdiction, and the judgment must be reversed.

Jtidgment reversed.


author: Gaby, J.

text:
    City of Chicago v. Harriett W. Reed et al.

      Riparian Rights — Wharf—Erection of Building — Bill to Enjoin— Municipal Corporations.

    1. A municipal corporation can not maintain a bill to enjoin the erection of a building or buildings on premises occupied by a wharf which is alleged to extend into a navigable stream, on the ground that the com-
    plainant may, at some future time, condemn the premises or part thereof for the construction of a bridge.
    2. In the case presented, as the bill does not attack nor seek to disturb the actual occupation of the premises for purposes of a wharf, it must be presumed that such occupation is proper.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Gwynn Garnett, Judge, presiding.
    Messrs. Haynes & Easley and John W. Green, for appellant.
    In this suit the object is to restrain the use of the property for any other purpose than a wharf. Hnder the view we take the appellees may have the right to maintain the wharf, but not the right to destroy the wharf by the erection of a permanent building thereon.
    The evidence shows that the wharf projects into the navigable river, is a substantial obstruction to navigation, and that any contemplated improvement to be made in the river at State street, involves the idea that the navigable waters adjacent to the defendant’s property shall be preserved. The property in controversy being a wharf and the defendants having no other right therein than a mere wharfage right, they can not place any obstruction upon the wharf, or divert it to any other use. People v. Macy, 62 How. Pr. 65; Degan v. Dunlap, 15 Phila. 69; Bingham v. Doane, 9 Ohio, 165.
    When rights have once become vested in the public in a river, in fact navigable, they can not be divested except by appropriate legislation. Angell on Water Courses, Sec. 254; Gould on Waters, See. 139; People v. City of St. Louis, 5 Gilm. 375; Logan Co. v. City of Lincoln, 81 Ill. 158.
    The city has the right to maintain this action, because the State has delegated the power to it, by the acts pleaded in the bill and amendments thereto, so to do. McCartney v. C. & E. Ry. Co., 112 Ill. 613; People v. Macy, 62 How. Pr. 65. Even if this position could be successfully refuted the proof made in the record of the incalculable injury that the erection of a permanent building upon this wharf would inflict upon the city in hampering it in its improvements of State Street, and the contemplated bridge there, is a sufficient special injury to entitle it to restrain the defendants from improperly diverting the premises in controversy from use as a wharf. It has a special interest in the premises as public property, to pi'event the defendants from misappropriating the wharf, and put it to the expense of condemning structures that the defendants have no right to erect upon the wharf.
    Messrs. Smith & Pence and Edwin F. Bayley, fo r appellees.
    The owner of lots bordering upon a river owns the bed of the river to its center, subject to the public easement of navigation. The riparian owner has the right to erect wharves and docks to the line of navigable water, or even beyond, if he does not thereby impair the public right of navigation. Middleton v. Pritchard, 11 Ill. 554; City v. Laflin, 49 Ill. 172; C. & P. R. R. Co. v. Stein, 75 Ill. 41; McCartney v. C. & E. R. R. Co., 112 Ill. 611; Yates v. Milwaukee, 8 Wall. 497 (cited with approval in C., R. I. & P. R. R. Co. v. City of Joliet, 79 Ill. 44); Browne v. Chadbourne, 31 Me. 9; Lorman v. Benson, 8 Mich. 18; Gough v. Bell, 23 N. J. L. 441; Jones v. Soulard, 24 How. 44.
    Artificial accretions belong to the owner of the bank. Wet-more v. Atlantic Company, 37 Barb. 70.
    Whether accretions are artificial or gradual, the same rule applies; they belong to the owner of the land. Steers v. Brooklyn, 101 N. Y. 51.

      Mon-navigable streams stand on the same footing as other private property, so far as the right of eminent domain is concerned. Smith v. Gould, 59 Wis. 631.
    The riparian owner, whether he owns to the thread of stream or not, has the right to construct in shoal water in front of his property, at his peril of obstructing navigation, far enough to reach actually navigable water. Desplaines v. Railroad Co., 42 Wis. 214; Rippe v. Railroad Co., 23 Minn. 18; Benson v. Monow, 61 Mo. 345.
   Gaby, J.

In the year 1839 the United States platted Fort Dearborn Addition to Chicago, and divided the 231 7-10 feet, on the north side of South Water street in the city of Chicago, bounded north by the river and west by State street, into four lots, the east line of the east lot being 166 feet long and the west line of the west lot 45 feet long. The north line along the river was not straight, but made angles to the north, going from west to east, at the places where the lines between the lots come to the river, so that the north line of the four lots was a concave one on the river, not by a curve, but by a succession of straight lines on the north boundary; that of each lot trending more to the north in going east, than the line of the lot next west.

For many years before the fire of 1871, the lots were used as a wharf, but there was frequent need of dredging in front of them, caused by the approach to the State street bridge projecting, and by a sewer there emptying into the river, the effect of which was that there was a deposit of matter in the bed of the river in front of the wharf.

This dredging was done by the occupiers of the wharf. When the fire came it burned up the bridge and wharf. The city in rebuilding the bridge, extended the approach still further into the ri'-er, and the occupiers of the wharf, without authority from anybody, rebuilt the wharf some twenty feet further into the river at the west end than it had been before. At the east end the encroachment is less. The north line of the wharf is made straight from the west, very nearly to the east end of it, thus destroying the cove or bay which had existed in the river in front of the wharf.

Vessels in passing the bridge eastward bound are compelled to turn more to the north, and a vessel lying at the wharf is more in the way of navigation than before.

In January, 1887, the city filed a bill against the appellants from which are taken the following extracts:

“ Tour orator further represents that it is a city of about 750,000 inhabitants, about one-fourth of whom reside upon the north side of the Chicago river, and about one-fourth upon the south side thereof, and that the greater part of the business of said city is done upon the south side; that the means for communication between the sections of this city are already far inadequate to the demands thereof; that the population of said city is growing at a rapid rate, and the demands of commerce are increasing in the same proportion; that, in order to partially meet the needs and necessities of the public, your orator now has under consideration the construction and operation of a large double track steam swing bridge at State street; that the river at that point, owing to contraction of said river hereinafter named, is too narrow for the construction and operation of such a bridge as is contemplated and required, without interfering with the navigation of said river.
“ Tour orator further shows that the space so filled is needed and required in the construction, operation and maintenance of a bridge at State street as aforesaid; that without said space it will become necessary, in order to afford proper means of communication as aforesaid, to. impede and interfere with the navigation of said river.
“ That said Allerton, as your orator is informed and believes, is about to erect upon said space so filled in, a large and permanent building, which, if so erected, will effectually deprive your orator of the use of the space aforesaid and result in the narrowing of the river at that point and thereby impede its navigation, to the great inj nry and detriment of your orator and of the public,” and the prayer is, speaking of the appellees, that “ they and each of them may be restrained by this court from in any manner incumbering or conveying said space of ground, formerly a part of the river as aforesaid, and from in any manner erecting a building or buildings, or doing anything thereon which will in any way interfere with the right of your orator to the uses of said premises for the purposes herein stated, and your orator may have such other and further relief in the premises as the nature of the case shall require, and to your honors shall seem meet.”

There is no specific prayer that the encroachment may bo abated as a nuisance, nor any argument by appellant that, under the general prayer, this might be decreed, and, therefore, that question will not be considered.

This is a bill quia timet, which, while it does not admit the rightful, yet does not attack and seek to disturb the actual occupation of the premises as a wharf. “ Things are held to be legally and properly in their existing state, until the contrary be shown.” Cowen & Hill, note to 1 Ph. Ev. 603.

The same principle has often been applied in this State to the possession of real property. Doty v. Burdick, 83 Ill. 473; Herbert v. Herbert, Breese, 354.

For the purposes of xhis case, appellant not seeking to disturb the possession, it must, without looking at its origin, and, notwithstanding the objections of the appellant to it, be treated as what, in the lapse of time it may, if it has not now, become, namely: Full and complete ownership, invulnerable against all attacks.

If the ownership of the premises is in any of the appellees, the court can place no restraint upon them as to the buildings they shall erect, upon the plea that it is probable that the city will at some future time, take a part of the property under the eminent domain law, and, if buildings are erected, will have more to pay than if they are not. The final argument for the city is:

“It has a special interest in the premises as public property to prevent the defendants from misappropriating the wharf, and put it to the expense of condemning structures that the defendants have no right to erect upon the wharf.” No authority is cited for this position, nor is it probable that any will ever be found.

The decree dismissing the bill is right.

Decree affirmed.

Judge Gabnett takes no part in this decision, having tried the case in the Superior Court.


text:
    Edwin Taylor Chapman v. Annie Chapman.

      Divorce — Questions for Jury — Newly Discovered Evidence — Practice— Abstracts — Instructions.
    1. This court declines to discuss the instructions in detail, the appellant having failed to include them in the abstract.
    2. Upon appeal from a decree granting a divorce, it is held: That the court properly refused to admit evidence touching a defense not made in the answer; and that the defendant is not entitled to a new trial on the ground of newly discovered evidence.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Gwynn Garnett, Judge, presiding.
    Messrs. William H. Sisson and Clarence F. Gooding, for appellant.
    Messrs. George A. Meech and William C. AsAYr, for appellee.
   Gary, J.

Whether the appellee was entitled to a divorce from the appellant, depended upon whether he had committed adultery as charged in her bill; and, if so, whether she, at the time thereof and at the time she filed her bill, August 23,1886, was a resident of this State.

The jury found the issues upon these points in her favor, upon evidence which, if not satisfactory, was sufficient to make their decision of the question final, if the court committed no error. Complaint is made that the court refused to admit in evidence letters written by her. There was no issue to which they could relate. At the most they might tend to show, not quite connivance, but her willingness that he should seek other women. Ho such defense was made in his answer.

As to the instructions, they can, by spending time upon them, be shown to be correct; but the appellant has not deemed it necessary to comply with the 21st rule of this court relating to abstracts, and the court will not perform labor that should be done by the party. Fisher v. Cook, 23 Ill. App. 621.

The alleged newly discovered evidence has reference to the engagements of appellee as an actress; where the company she was with was at different times, and the dates of their journeys from place to place. As the appellee knew before the trial how she had been employed, there was a total want of diligence in ascertaining and proving these details, if they were material.

The trial was in January, 1888, and her deposition in which she had testified to her residence, had been on file from the previous August, so that his surprise at her testimony was not very sudden. There is no error in the record and the decree is affirmed.

Decree affirmed.

Judge Garrett takes no part in this decision.


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    George Hosmer et al. v. Marcus Teller.

      Attachment — Instruction to Find for the Defendant — Practice.
    This court sustains the action of the court below in instructing the Jury, at the close of the plaintiff's case, fo find for the defendant as to the attachment issue, the evidence being insufficient to sustain a verdict for the plaintiffs.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Holzheimbr, Eliel & Eoserthal, for appellants.
    Mr. W. A. Sohoreeld, for appellee.
   Per Curiam.

Appellants commenced an action by attach meat against appellee, the grounds stated in the affidavit being that appellee had within two years preceding the filing of the affidavit fraudulently conveyed or assigned his effects or a part thereof so as to hinder and delay his creditors, etc. Appellee traversed the allegations of fraud. On the trial, after the plaintiffs had rested, the court instructed the jury that, under the evidence, their verdict as to the attachment issue should be for the defendant.

Plaintiffs appeal, and assign the giving of said instruction for error. We have examined and considered the evidence introduced by appellants in support of the allegations of fraud contained in the affidavit, and while there were some acts of appellee that may have furnished ground for suspicion, we are of opinion that there was no evidence which would justify a verdict against appellee on the fraud issue. It can not be said, perhaps, that there was not some slight evidence, but we are of opinion that a verdict based on it could not be sustained, but would have to he set aside by the court. Such being the case, the court properly instructed the jury to find for the defendant on said fraud issue, and the judgment must be affirmed.

Judgment affirmed.


author: Moean, J.

text:
    The Western Union Telegraph Company v. Watts De Golyer et al.

      Failure to Send Telegram — Action for Damages — Questions for Jury-Practice.

    In an action against a telegraph company to recover damages for a failure to send a telegram, it is held: That the question whether the plaintiff assented to a printed clause on the blank used, requiring claims for damages to be presented within sixty days, and whether the claim was presented within the time so limited, were for the jury; and that, although the verdict appears to be excessive, this court can not reverse on that ground as the question was not raised in the court below.
    [Opinion filed December 7, 1888.]

      Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, J udge, presiding.
    Messrs. Williams & Thompson, for appellant.
    Messrs. Weigley, Boxkley & Geay, for appellees.
   Moean, J.

This is an appeal from a judgment recovered by appellee against appellant in an action for a failure to send a telegram delivered to appellant in Chicago to be transmitted over its line to Savannah, Georgia.

Appellant’s defense was that the claim was barred by failure of plaintiffs to present the same to appellant in writing, within sixty days after the message was delivered to it to be sent.

Whether this defense existed or not depended on the question whether the notice or clause printed on the telegraph blank used by plaintiff had been assented to by him, and on the further question whether, in fact, the claim was presented to appellant within sixty days.

Both these questions were fairly left to the jury under an instruction given by the court at the request of the defendant, and the verdict must be taken as settling that issue against the contention of appellant.

We have examined the instructions refused by the court and are of opinion that no error was committed in that regard.

Appellant contends that the verdict is excessive in about the sum of §31, and we are inclined to think that contention correct; but we can not reverse for such error, for the reason that it does not appear that the attention of the trial court was called to this excess in the verdict, and it is not covered by any of the reasons assigned in the motion for a new trial. Emory v. Addis, 71 Ill. 273; O., O. & F. R. V. R. R. Co. v. McMatt, 91 Ill. 104.

There is no error in the record which authorizes a reversal by this court, and the judgment must therefore be affirmed.

Judgment affirmed.


author: Per Guriam.

text:
    James B. Thomas v. David Kelley et al.

      Practice — Dismissal of Appeal — Motion to Set Aside Order — Insufficient Affidavit — Practice.
    1. This court affirms an order denying a motion to set aside an order dismissing an appeal from a justice of the peace for want of prosecution, the affidavit in support of such motion being merely upon information and to the effect that the appellant's attorney was ill and had been for a long time unable to attend to business, at the time of such dismissal.
    2. The showing made in support of a motion to set aside an order dismissing an appeal for want of prosecution, will be strictly scrutinized.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. .Richard S. Tuthill, Judge, presiding.
    Mr. W. A. Phelps, for appellant.
    Messrs. Shumah & Depress, for appellees.
   Per Guriam.

Appellant having appealed from a judgment by a justice of the peace to the Circuit Court, his appeal was, by the latter court, dismissed for want of prosecution on the call of the calendar on September 20, 1887. On October 6, 1887, appellant made a motion supported by affidavit, to set aside the order of dismissal and reinstate the appeal. The motion was denied, exception taken and appeal by appellant. The affidavit fails to make any satisfactory statement in excuse of the inattention which caused the dismissal. It states merely upon information that the attorney of appellant was ill, and unable to attend to business at the time of the order of dismissal, and that he had been for a long time unable to attend to business. No excuse is given for not presenting the affidavit of some person who had personal knowledge of the attorney’s illness, nor is there any denial that appellant was aware of his ill health long enough before the dismissal to have procured other counsel.

A motion of this character is heard on affidavits presented by the moving party only, counter-affidavits not being allowed. Hence the showing made in support of the motion should be strictly scrutinized. Mendell v. Kimball et al., 85 Ill. 582.

We find no reason to interfere with the order of the Circuit Court in overruling the motion, and it is therefore affirmed.

Order affirmed.


author: Per Onriam.

text:
    Regina Watson v. Charles Carpenter et al.

      Mechanic's Lien — Contracts—Parties—Husband and Wife — Agency.
    Upon appeal from a decree for a mechanic’s lien, it is held: That it may b; fairly inferred from the evidence that the appellant, the owner of the premises, and her husband, made one of the contracts in question, and that the husband acting as the wife’s agent made the other of said contracts.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Kino & Packard, for appellant.
    Mr. Eliot Furness, for James B. and Michael Sullivan,. .appellees.
   Per Onriam.

These eases were consolidated and heard together in the Superior Court, a decree being entered for a mechanic’s lien to the extent of $291.19 in favor of Carpenter, and $486.10 in favor of James B. and Michael J. Sullivah. From that decree the owner of the premises, Regina Watson, appeals.

We think it may he fairly inferred from the evidence that appellant and her husband made the contract with Carpenter, and that her husband, acting as her agent, made the contract with the Sullivans. In pursuance of those contracts the labor and material were furnished. The house where the improvement was made was the residence of the Watsons. Appellant was present when the work under both contracts was begun. She was at home nearly all the time while it was in progress, repeatedly giving directions about it and at times selecting the material to be used. The case is somewhat involved by the fact that the work in one or more rooms of the house was ordered by one Ives, and appellant’s defense was that he alone was the contracting party for the whole of the improvements.

There was no decree for the work and labor which was done for Ives, and we think the court was not in error in finding the contracts sued on were, in law, the contracts of Eegina Watson.

The decree of the court below is affirmed.

Decree affirmed.


text:
    William I. Watson v. The People of the State of Illinois.

      Conspiracy — False Pretenses — False BooVkeeping and Beports — “ Obtain ” — PetialLaws—Strict Construction — Want of Prosecution — Criminal Code, Starr <& C. III. Stat. If 498 — Jurisdiction—Practice.
    1. False bookkeeping and false reports to conceal an embezzlement will not. support a charge of conspiracy to obtain money by false pretenses.
    2. The word “ obtain ” is not used in the statute as synonymous with Ihe word “ retain.”
    3. Penal laws are strictly construed. The law regards primary or proximate, not secondary or remote causes.
    4. The term at which the accused is committed is not regarded as the first term under the statute providing for a discharge for want, of prosecution. Where the defendant is on bail, it will be presumed that the case was continued at a subsequent term or terms by mutual consent, unless the record shows that he appeared and demanded trial.
    5. This court will not consider a suggestion that it is without jurisdiction of an appeal where the case has been presented on the merits by briefs on both sides.
    [Opinion filed December 7, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr.'Thomas J. Walsh, for appellant.
    In order that money may be obtained by false pretenses, it is requisite that the possession of the money be in some person other than the accused, for it is necessary to prove a delivery of the property. Parker ex parte, 11 Neb. 309; Morgan v. State, 42 Ark. 131. Imposition is an essential element of the crime; but for a man to impose on himself is impossible. The obtaining money by false pretenses presupposes some hinderance in the way which is to be removed by practicing some kind of deceit:
    There was no hinderance of that kind for these defendants to remove. There was no opposing mind to play upon. The money had already been obtained by them without false pretenses from persons who had purchased merchandise of the Ansonia Clock Company, and had been received by the defendants in pursuance of their duty as agents of the company. For retaining money a. different statute is provided.
    There was no money delivered to the defendants, or expected to be delivered to them, with the intention of transferring to them the ownership of it. The money they received came to their possession as agents of the Ansonia Clock Company, and their possession was the possession of the Ansonia Clock Company. Johnson v. People, 113 Ill. 99. But in order that goods or money can be “ obtained ” by false pretenses, it js not sufficient that the possession pass, but the property also must be transferred ; and-where the possession merely is obtained by false pretenses, and the property is afterward converted, this is not obtaining by false pretenses, but embezzlenient or larceny. State v. Vickery, 19 Tex. 326; 2 Russell on Crimes, 663 n.; State v. Anderson, 47 Iowa, 142.
    If a person should obtain employment by false pretenses and then embezzle the money of his employer is he guilty of obtaining money by false pretenses? The authorities say not; for it is requisite that the false pretenses should be the immediate cause of the transfer of the property. R. v. Gardner, 36 Eng. L. & Eq. 640; R. v. Jones, 15 Cox C. C. 475 ; Wharton Crim. Law, Sec. 1175. And following this doctrine it is held that obtaining credit by false pretenses is not within this statute. R. v. Eagleton, 6 Cox C. C. 559; R. v. Wavell, 1 Mood C. C. 224.
    Messrs. Joel M. Loegenecker, State’s Attorney, and Weigley, Bulkley & Gray, for appellees.
   Gary, J.

The suggestion in appellee’s brief, that criminal cases do not come to this court by appeal, and therefore this appeal should be dismissed, is answered by Dinet v. People, 73 Ill. 183, the case having been presented on the merits by briefs on both sides.

The position of the appellant that he ought to have been discharged for the delay in bringing him to trial, is not well taken. He was arrested April 14, 1887. The April term is not to be counted as the first term. Ochs v. People, 25 Ill. App. 379, 124 Ill. 399. At the May term the cause was continued by agreement. At the June term he pleaded not guilty and gave bail, but no other step was taken in the case. In Gallagher v. People, 88 111. 335, the Supreme Court adopt the construct'on which had been long acted upon by the Criminal Court of Cook County, that when a defendant is on bail, he must, in order that a term shall count, appear and ask a trial at such term, and if the record does not show that he did so, it will be presumed that the case was continued by consent of the people and the defendant. So the June term is not to be counted, as there was yet half the term unexpired when he gave bail. At the July term the case was continued by agreement to the October term, at which term, for the first time, he demanded a trial, and the trial was at the Hovember term.

The case of Gallagher came from Champaign County, in which terms of the Circuit Court were held in March and September of each year.

He was indicted and gave bail at the September term, 1874, and his bail was forfeited at the September term, 1876. The record did not “show that the various continuances were had on the application of the people, or that the accused was present ready for, and demanding a trial.”

But on the merits of the case the evidence fails to show the guilt of the defendant. This indictment is for a conspiracy “ to obtain * * * from the said Ansonia Clock Company by false pretenses” money, etc. The evidence shows false bookkeeping and false reports to the home office, by the defendant, by which the fact that their money had been embezzled was concealed, but no representation, false or true, upon the faith of which anything ever came to the hands of the defendant, or his co-defendant, Gledhill.

There is no evidence, except the inference that there must have been some gain to induce the defendant to falsify the books and make false reports, that he used any of the money.

The evidence is not inconsistent with his own version, that he only did what his superior, Gledhill, told him to do. That matter, however, would be for the jury to decide, if any money was obtained by such false books and reports. Their falsity was wholly as to past transactions. The appellees en. deavor, by two separate propositions, to bring the acts of the defendant within the charge in the indictment.

First, by the false boobs and reports the defendants did “enable themselves to retain large sums of money belonging to the company and to continue in their capacities as employes, and in the future to obtain other moneys; ” and second, that “obtain” may be used as synonymous with “retain.”

The answers to the first proposition are, that penal laws are to be construed strictly (People v. Peacock, 98 Ill. 172), and that the law regards primary or proximate, and not secondary or remote causes (Broom’s Legal Maxims, 216); and therefore false pretenses by which one remains in a position in which he may obtain money, even if he does intend to abuse the facilities which that position gives him, are not false pretenses by which the money he afterward embezzles was obtained.

The word “ obtain ” is used in the statute, not in any antiquated and obsolete sense, but in its ordinary and popular signification, as an active verb meaning to acquire.

The conviction can not be sustained on the ground that so much of the indictment as relates to obtaining may be treated as surplusage, and the indictment be held good as a common law indictment for a conspiracy to defraud the company. As such it is not a good indictment. Commonwealth v. Eastman, 1 Cush. 189.

This view of the case makes it necessary to examine the other questions presented by the record. As the case is reversed upon the merits, it will not be remanded.

Reversed and remanded.


text:
    Sarah A. Curtis v. Ida G. Williams.

      Practice — Dismissal of Appeal — Act Jmie lá, 1887 — Taxation of Costs —Time.

    Upon the dismissal of an appeal under the act of June 14, 1887, this court may allow as part of the costs a reasonable solicitor’s fee; and where such dismissal is in vacation, the allowance may be made at the ensuing term.
    [Opinion filed December 7, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Herry M. Shepard, Judge, presiding.
    Messrs. Kraus, Mayer & Steih, for appellant.
    Messrs. Ela & Grover, for appellee.
   Gary, J.

The appeal in this case was dismissed in vacation after the March term, on the 18th day of September last. The facts in relation to such appeal, and the reason for dismissing it, appear in the ojrinion of the court then filed. The appellant claimed the right to the appeal under the act approved June 14, 1887, State Edition, 250, Brad. 151, which provides: If such appeal is dismissed the Appellate Court may allow to the attorney for appellee a reasonable solicitor’s fee, not to exceed §100, to be taxed as part of the costs of the appeal.”

On the 25th of September, the appellees filed their motion for an allowance of $100 under the act. The appellant opposes the motion partly upon a consideration of the object of the appeal, and the effect that.might have followed if it had been a proper case for an appeal, and partly upon the grounds that if the appeal is not within the act the allowance is not; that the term at which the appeal was dismissed had passed, and the court can not at one term add anything to its judgment of a former term. The opinion already filed sufficiently exposes the unnecessary and vexatious character of the appeal-As to the first ground, questioning the power of the court to make the allowance, the act makes it “ part of the costs,” and costs are adjudged on dismissing an appeal for want of jurisdiction. Bangs et al. v. Brown et al., 110 Ill. 96.

The tenor of the whole.act shows that the legislature felt that there was danger of the abuse of the privilege granted by it. The appeal is to be taken within thirty and perfected in the Appellate Court within sixty days from the entry of the order appealed from; it is to have in the Appellate Court precedence of other business. If the case is one of which the court has jurisdiction, the ordinary course will be to affirm? modify or reverse the order appealed from, and in such cases no attorney’s fee is to be allowed; only upon dismissal of the appeal.

The most frequent cause of dismissal in the Appellate Court is want of jurisdiction, under the distribution of the appellate power between the Supreme and Appellate Courts. It must be assumed that the legislature took notice of all the circumstances affecting the matter they had under consideration. And with such knowledge and that costs were adjudged to the appellee on dismissal of an appeal for want of jurisdiction, they incorporated in the act the provision before recited for increasing the costs. It is a prudent restraint upon the abuses of the privileges thus newly granted, and just to the adverse party.

As to the other ground no term has passed. The order or judgment dismissing the appeal was entered in vacation, under the authority conferred by ¶ 35, Chap. 37, Starr & Curtis' Ill. Stat., and Sec. 15 of “ An act to establish Appellate Courts,55 approved June 2, 1877.

Eight days thereafter, still in vacation, the motion for the allowance was made. If the dismissal had been in term times and the motion tiled the same term but not disposed of, the power of the court to allow it at the next term would have remained. Secs. 10 and 14 of Appellate Court Act; Sec. 5, Act of 1874, relating to the Supreme Court; Windett v. Hamilton, 52 Ill. 180; People v. Gary, 105 Ill. 264.

There is no authority cited or known to this court as to the power of the court over what is done in pursuance of law, during the preceding vacation, but in the nature of things it can not be less than it would be, the same circumstances concurring, if the thing were done at the term which the vacation followed.

The appellees are therefore entitled to an allowance, “to be taxed as part of the costs,” and though no objection has been made that $100 is not “ a reasonable solicitor’s fee,” yet, as this is the first case in which this court has been called upon to act under this provision of the statute, it will not go to the maximum, but fix the same at $75.

The clerk of this court will therefore tax as paid of the appellee’s costs in this case, the sum of $75 for their solicitor’s fee.