text:
    William H. Hixson, Defendant in Error, v. Charles F. Ward, Plaintiff in Error.
    Gen. No. 7,875.
    Opinion filed October 14, 1929.

      Hall & Dusher, for plaintiff in error.
    North, Linscott, Gibboney & North, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.

This is a replevin suit instituted by Hixson, defendant in error, in the circuit court of Winnebago county, against Ward, plaintiff in error. The following facts are stipulated:

Tom Calderotta owned an automobile. T. H. Hehir desired to purchase it. They entered into a conditional sales contract to which was attached, by perforation, a promissory note. The contract and note are, by stipulation, admitted in evidence.

Calderotta sold the contract and note to Hixson. They were dated August 24, 1926.

On September 13,1926, and after Hixson, had bought the papers, Hehir paid to Calderotta the balance of the purchase price of the car in full.

When payment was made Hehir did not know the papers had been sold, having received no notice thereof, and believed in good faith that Calderotta was still the holder and owner of the contract and note.

Shortly after making the payment Hehir sold the car to Barrenche, free from incumbrance, and Barrenche then sold it to defendant Ward, free from incumbrance. Barrenche and Ward each bought in good faith without notice of the plaintiff’s claim. Hixson claims ownership of the car by virtue of his ownership of the contract; Ward claims ownership of the car by purchase for value without notice of Hixson’s claim. Such is the case made by the stipulation.

On consideration of these facts, the court found that Hixson is the owner of the car; that Ward wrongfully took and detained the same, and that he has no title or ownership in the car and has no right to the possession thereof, and entered judgment accordingly. Ward brings the suit here for review.

Prior to the adoption of the Uniform Sales Act, Cahill’s St. ch. 121a, ft 4 et seq., in 1915, a contract by which personal property was sold, delivery of the property made to the buyer, and title reserved in the seller until the purchase price was paid, was good in Illinois only between the parties, and did not bind execution creditors nor bona fide purchasers from the purchaser. Graver Bartlett Nash Co. v. Krans, 239 Ill. App. 522, and cases cited on page 526.

The Uniform Sales Act, Cahill’s St. ch. 121a, ft 4 et seq., changed the rule in this state as to conditional sales contracts. By section 20 of this act, Cahill’s St. ch. 121a, ft 23, such contracts are authorized and in Sherer-Gillett Co. v. Long, 318 Ill. 432, a conditional sales contract similar to the one in this case is dealt with.

Section 76 of the act, Cahill’s St. ch. 121a, ft 79, defines the term “Document of title to goods,” and the contract of sale in this case falls within the definition.

Section 27 of the act, Cahill’s St. ch. 121a, ft 30, defines “Negotiable Document of Title” and several of the following sections recognize and speak of “Nonnegotiable documents of title.”

Section 73 of the act, Cahill’s St. ch. 121a, ft 76, provides that “In any case not provided for in this Act, the rules of law and equity, including the law merchant, and in particular the rules relating to the law of principal and agent and to the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy, or other invalidating cause, shall continue to apply to contracts to sell and to sales of goods.”

This case will turn on the question whether the sales contract herein is a negotiable document of title. If it is negotiable, its indorsement and delivery to Hixson is all that is required to vest in him such title as to entitle him to the possession of the car whenever Hehir failed to make the payments to him as they fell due under the contract. If it was not negotiable, Hixson was required to notify Hehir of his purchase of the contract, or to show that he knew of it in order to prevent him from completing the sale by paying Calderotta the purchase price, and thus acquiring title to the car under the contract. The inquiry is — What is necessary to make such a document negotiable? The answer is found in section 27 of the -act, Cahill’s St. ch. 121a, If 30, which provides that if it is stated in the document that the goods mentioned therein will be delivered to bearer, or to the order of á person named therein, it is negotiable.

There is no such statement in this contract., The statement is that seller (Calderotta) has delivered to buyer (Hehir) and agreed to sell him the car, the buyer agreeing to pay seller or assigns $513.63, which is further evidenced by the negotiable note signed by the buyer, etc. It is not stated in the document that the goods referred to therein will be delivered to the bearer, or to the order of any person named in the document. Such a statement would be inconsistent with the one that the goods referred to have been “delivered to buyer” as stated in the document.

Section 31 of the same chapter, Cahill’s St. ch. 121a, ff 34, provides for the transfer of a document of title which is not in such form that it can be negotiated. It can therefore, be transferred but it cannot be negotiated. Now what is the effect when a document of title is transferred but not negotiated?

By examination of section 34 of the same chapter, Cahill’s St. ch. 121a, ff 37, we find that the person to whom it is transferred acquires title to the goods as against the transferrer, subject to the terms of any agreement with the transferrer; and if, as in this case, the document is non-negotiable, such person acquires the right to notify the bailee (meaning, of course, the buyer who is in possession) that the document has been transferred, and thus place him under direct obligation to hold possession of the goods for him, the transferee, according to the terms of the document.

Thus it appears that when this document was transferred to Hixson, he acquired title to the car as against Calderotta, subject to the terms of the agreement between Calderotta, the seller, and Hehir, the buyer. One of the terms of that agreement, and the only one that needs to be taken into consideration, is that the title to the car shall remain vested in Calderotta or assigns, until the purchase price has been fully paid. When the purchase price has been fully paid the title automatically vests in the buyer. 35 Cyc. page 671, and cases cited. To the same effect is Federal Trust Co. v. Bristol County St. R. Co., 222 Mass. 35, 109 N. E. 880 and in Hunter v. Crook, 93 Miss. 812, 47 So. 430.

Hence when Hehir paid the purchase price to Calderotta, he completed the sale. The condition on which Calderotta had reserved the title was extinguished and with it was extinguished the inchoate right of Hixson. The sale was complete; the title, by virtue of the agreement, and the payment of the balance due, vested in Hehir, not by reason of any estoppel, but by purchase under a completed and fully executed sales contract, and of course those who claim title through him should be protected.

It might be said that Hehir was negligent in not demanding his papers when he made his payment to Calderotta, and he was, for the note attached to the contract was negotiable and was in the hands of a purchaser in due course, for a value. That, however, does not affect the rights of Ward in the car. It is stipulated that Hehir made his payment in good faith and without notice; also that Barrenche and Ward bought in good faith.

Section 76 of the Uniform Sales Act, Cahill’s St. ch. 121a, H 79, says, among other things, “A thing is done ‘in good faith’ within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not.” No case has been cited that conflicts with the views herein expressed. A somewhat extended search has failed to reveal such a case.

The case of Sherer-Gillett Co. v. Long, 318 Ill. 432, relied on by counsel, is not at all like this case. There the company entered into a conditional contract with Taylor for the sale of goods and reserved the title until Taylor should make certain payments; Taylor never made the payments; he never completed the sale; he never extinguished the condition on which the company held the title and hence the title never vested in him. What he did was to sell, or attempt to sell the goods, which was in violation of his contract, as well as beyond his power. He had no title, never did have, and could not convey what he did not have.

Owing to the conclusion we have reached, we conclude that the court erred in the holding of certain propositions of law presented by the defendant in error, and in refusing certain propositions presented by plaintiff in error.

The stipulation, in addition to what has already been'said, provides as follows; “It is further stipulated and agreed, by and between the parties hereto, that in the event the court shall find for the defendant C. F. Ward, and shall order that possession of said car be delivered to him, that the defendant shall have the right to submit to the court, without a jury, the issue of damages, if any, which may have been caused on account of the replevin of the automobile in question and either party shall have the right to introduce such competent evidence on such an issue of damages as he shall see fit.”

We are of the opinion that the plaintiff in error, Ward, was the owner of and entitled to the possession of said car, and the judgment of the circuit court of Winnebago county is reversed and the cause remanded for further proceeding not inconsistent with this opinion and for hearing on the question of damages in accordance with the stipulation of the parties.

Reversed and remanded accordingly.


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    Mollie Richardson, Defendant in Error, v. E. E. Moore et al., Plaintiffs in Error.
    Opinion filed September 20, 1929.
    Rehearing denied.
    Kramer, Kramer & Campbell and R. E. Costello, for plaintiffs in error.

      Louis Beasley and Edward C. Zulley, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Mollie Richardson sued to recover for personal injuries charged to have been caused by general negligence in operating an automobile in which she was riding as an invited guest of plaintiffs in error; and by negligently driving the car knowing the brakes were in a defective and dangerous condition, by reason whereof the car was driven with great force against a tree near the highway, etc. In addition to the general issue a special plea was filed by E. E. Moore to the effect that at the time in question the car was not operated by him or by his agent or servant. At the close of all the evidence plaintiffs in error moved for a directed verdict and the motion was denied On motion of defendant in error the court instructed the jury to assess her damages. There was a verdict for $3,000 and on motion for a new trial there was a remittitur of $1,500 and judgment was entered for $1,500.

Plaintiffs in error are husband and wife and live at Mattoon. They are friends of defendant in error and her husband, who reside at Hillsboro. Mr. and Mrs. Walsh are mutual friends and their home is at East St. Louis. The Moores owned an automobile, jointly, and about May 24, 1925, drove from their home to East St. Louis where they visited Mr. and Mrs. Walsh for about oiie week. On May 30, Mrs. Moore and others drove to Hillsboro and brought defendant in error and her husband to the Walsh home in East St. Louis. The next day Mr. Moore asked his wife to drive defendant in error and her husband back to Hillsboro. The parties left the Walsh home at about 3 p. m. and Mrs. Moore drove the car. Mrs. Moore says that when going down a hill about two blocks out of Greenville the car started to leave the road when it was about 50 feet from a tree that stood in a little gully about 8 or 9 feet to the right of the beaten track. She says she tried to apply the brakes but they did not work; that she had no chance to slacken her speed before the car hit the tree. There is no conflict in the evidence. Mrs. Moore admitted that two or three days before the accident she took the car to the White garage to see what was the matter with it; that Mr. White tested the brakes and told her they were in bad condition and should be adjusted and for her to come back at a certain time and he would fix them. They were not adjusted or repaired prior to the accident.

In view of the undisputed evidence there is no merit in the contention that Mrs. Richardson was. injured as the result of a mere accident without negligence on the part of plaintiffs in error. It clearly appears that the injury was due to negligence in operating the car with defective brakes knowing of their condition, while defendant in error was in the exercise of due care for her own safety. In our opinion there is no basis upon which reasonable minds could disagree as to that conclusion. That being true, the court did not err in directing the jury to assess damages in favor of defendant in error.

It is argued that there is no evidence to support the verdict as against E. E. Moore and for that reason the court erred in directing the jury to assess damages against both plaintiffs in error. The legal sufficiency of the declaration to support a joint judgment against plaintiffs in error was not raised in the trial court, nor is that question presented to this court. The legal sufficiency of a declaration is not presented by a motion for a directed verdict; Smith v. Redmcm, 244 Ill. App. 434.

Mr. and Mrs. Moore were joint owners of the car, and on the day in question Mrs. Moore, at the request of her husband, was driving defendant in error • and her husband to their home in Hillsboro. In so doing she was acting as the agent or servant of her husband. We are aware of the fact that there is a conflict in the decisions, but in our opinion the better reasoning and the great weight of authority is to the effect that a master and servant may be joined in an action in which damages are claimed on account of the negligence of the servant, the master being held liable on the doctrine of respondeat superior as will be seen from an extended review of the cases in Barran v. Adanick, 251 Ill. App. 481. We agree with the conclusions reached by the court in that case. The court did not err in directing the jury to asses damages against both plaintiffs in error. The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Barnes

text:
    American Tank & Installation Company, Appellee, v. The Rudolph Wurlitzer Company, Appellant.
    Gen. No. 33,447.

      Opinion filed October 11, 1929.
    Mishkin & Mishkin, for appellant.
    Thomas M. Whitson and Earl J. Walker, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment for plaintiff in the sum of $400 in a trial had without a jury.

The suit is based upon a written order by defendant to furnish and install, complete at a cost of $400, one 2,000-gallon tank of one-quarter inch steel to be used as a tank on the fifth floor of premises in Chicago occupied by defendant company.

The affidavit of merits denied entering into the contract, and as a further defense in substance alleged that defendant requested plaintiff to estimate the cost, etc., of installing a tank of sufficient size to comply with the city ordinances, that plaintiff represented a tank of the above description as necessary and that it would get the city permit therefor, that relying upon such representation the above order was given, that a tank of that size is not in compliance with the city ordinances, that plaintiff failed to obtain a city permit, that defendant was obliged to remove the tank installed by plaintiff and to purchase one authorized by the city ordinances at an expense of $500, for which it claimed a set-off.

The court took judicial notice of the city ordinances involved and under “An Act in relation to judicial notice, ’ ’ passed by the last legislature, we are required to take judicial "notice of all matters of which an inferior court on trial of the case took judicial notice. (Cahill’s St. 1929, ch. 51, U 58.)

The ordinances in question of which the court took judicial notice are set forth in sections 783, 943 and 945 of the Chicago Municipal Code, 1922, ch. 17, art. 13.

Section 783 malees it unlawful to construct or permit to remain on the roof, of any building in the city a tank of a larger capacity than 400 gallons unless such tank shall rest upon a good and sufficient foundation of solid brick or stone masonry or upon iron girders set on steel plates which rest upon a good and sufficient foundation of solid brick or stone masonry, or upon iron or steel construction. It further provides that no tank of a greater capacity shall be constructed upon any building without first submitting for approval to the commissioner of buildings a complete set of plans showing the construction in detail of the supports and foundations of such tank, and that the owner or his agent or the contractor erecting such tank shall, before proceeding with the erection of such tank, procure from the department of buildings a permit for the superstructure work. Section 943 declares every building constructed in violation of the provisions in said chapter to be a nuisance. Section 945 provides a penalty against any person, firm or corporation that violates or neglects to comply with such provisions, and against any builder or contractor who shall construct any building in violation of such provisions. -

Acting under the contract, appellee erected a tank of the dimensions referred to on appellant’s building but not in compliance with the requirements of said building ordinance, and appellant received a notice from the commissioner of buildings to that effect which required it to remove the tank or submit plans for placing the tank in compliance with the ordinance and to procure a permit for such work. Defendant was obliged to remove the tank and refused to pay plaintiff’s bill for which this suit was brought.

We must hold that there can be no recovery on the contract in question. It appeared that no permit for the erection of the tank was procured and that a tank of the dimensions required was installed only on wood joists or timber, in violation of said ordinance. If plaintiff could not recover because of such violations of the ordinance in the performance of the contract, we need discuss no other points urged for reversal.

Much of the record is taken up with conversations had prior to and subsequent to the entering into the contract. While those had before entering into the contract will be deemed merged therein and those subsequently had are not such as materially modified the same, they did not affect the main question of the right to recovery in view of the unquestioned violations of the ordinance in performing the contract.

The written contract is in the form of a written order. While neither in that form nor as modified, if at all, by said conversations, does the contract appear to be invalid, no recovery can be had thereon because it was performed in a manner violating said ordinance. It is the contention of appellee that its right to recover cannot be defeated because it was carried out in an illegal way, citing Fox v. Rogers, 171 Mass. 546. In that case it was held that there was no policy of the law against the plaintiff’s recovery unless his contract is illegal, “and a contract is not necessarily illegal because it is carried out in an illegal way.” Dissenting from this doctrine in his work on contracts (sec. 1761) Professor Williston says: “Not the illegality of the contract, but the illegality of the plaintiff’s conduct either in entering into or in performing the contract is the true ground for denying recovery. ’ ’ There are respectable authorities sustaining this view of the law. Cases cited where it was sought to recover under a contract prohibited by law are not directly in point. Most of them involve an action by one to recover under a contract which either he was unauthorized by law to enter into, as where a license is required by law to engage in the business that is the subject matter of the contract, or which is prohibited by statute, ordinance or law. Douthart v. Congdon, 197 Ill. 349; Union Nat. Bank of Chicago v. Louisville, N. A. & C. Ry. Co., 145 Ill. 208; Penn v. Bornman, 102 Ill. 523; Western Cold Storage Co. v. Estate of Kaufman, 204 Ill. App. 477.) Somewhat analagous cases to the one at bar are, however, cited from other jurisdictions. While the case seems to have been decided on another point, it was said in Smith v. Luning Co., 111 Cal. 308, 43 Pac. 967, that a contractor could not recover on the agreement with the defendant to lay a sewer in front of his premises where he had not obtained a permit as required by the city ordinance without procuring which the work was in violation of the city ordinance. In Long v. Owen, 21 Idaho, 243, 121 Pac. 99, plaintiff sought to recover on a contract to build a walk. There was a con-, flict of evidence there, as here, as to whether anything was said about compliance with the city ordinance. The court held the conflict was immaterial; that even if nothing was said about the work being done in compliance with the city ordinance, that fact would be implied and the contractor would be required to do his work in substantial compliance with the ordinance before he would be entitled to recover the contract price. It was there held that the ordinance was a part of the contract and that, there was an implied agreemént to so perform the work as to meet its require-merits. The same principle is recognized in Manvell v. Weaver, 53 Wash. 408, 102 Pac. 36. Other authorities might be cited to support the recognized rule of law that no recovery can be had by either party to a contract the performance of which involved the violation of an existing law. A legal performance of the contract in this case required both the procuring of a permit and installation of the tank according to the requirements of the ordinance. Neither was done and both owner and contractor were chargeable with violation of the ordinance. Not only can there be no recovery, therefore, by the latter but the former, being in pari delicto, is in no position to recover on a set-off based on the expense to which it was put in removing, the tank for the unlawful installing of which, contrary to the ordinance, it was equally liable. Under the conceded state of facts no recovery could be had by either party at law.

Accordingly the judgment will be reversed.

Reversed.

Scaulan and G-ridley, JJ., concur.


text:
    Martin J. Buszin, by Frank B. Buszin, Appellant, v. Margaret McKibbin, Appellee.
    Gen. No. 33,466.
    Opinion filed October 11, 1929.

      Rathje, Wesemann, Hinckley & Barnard, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court'.

This appeal is from an order dismissing for want of equity a bill to annul a marriage on the ground of the nonage of complainant. Defendant was defaulted.

The bill alleged that complainant was 19 years of age at the time of filing the bill and about three months before reaching that age had procured a marriage license in this county on false representation as^to his age, and, without the consent of his parents to procure such license or to marry, had gone through a marriage ceremony on the same day but that the marriage was not consummated by cohabitation and that the parties have never lived together as husband and wife, and asked that the marriage be annulled. The proof conformed to these allegations.

Appellant calls attention to the provision in our statute (section 3, ch. 89, Cahill’s Ill. Rev. St.) for the consent of the parents to marriage when the male is between the age of 18 and 21 years, and urges that on the ground of public policy, especially where the parties have not cohabited or lived together as man and wife, a marriage without such consent should be annulled.

While authorities to that effect are cited from the State of New York, appellant’s counsel concedes that the authorities in this State hold that the provision of the statute requiring parental consent is merely directory and not mandatory. He argues, however, that the cases in this State so holding are distinguishable from the case at bar in that in all of those cases except one where the question, was not raised, the marriage was consummated by cohabitation and living together in marital relationship. In Reifschneider v. Reifschneider, 241 Ill. 92, the point was raised where minors living in this State went to Indiana and had a marriage ceremony performed without the parents’ consent. The court said: “The general rule is, that unless the statute expressly declares a marriage contracted without the necessary consent of the parents, or other requirements of the statute, to be a nullity, such statutes will be construed to be directory, only, in this respect, so that the marriage will be held valid. . . .” (Citing authorities.) This view of the law has been applied in cases brought to this court (Matthes v. Matthes, 198 Ill. App. 515; People v. Ham, 206 Ill. App. 543; Schwartz v. Schwartz, 236 Ill. App. 336), and while the marriage ceremony in those cases was performed in a sister state and not in Illinois, the rule as declared in the Reif schneider case was followed. In view of these authorities we think the court properly dismissed the bill for want of equity, and that no such qualification of the general rule above stated is recognized in this State.

Affirmed.

Scanlan and Gtridley, JJ., concur.


text:
    The First National Bank of Dolton, Illinois, Appellee, v. Village of Dolton, Appellee. Appeal of Charles Jacobsma, Intervening Petitioner, Appellant.
    Gen. No. 33,560.

      Opinion filed October 11, 1929.
    Rehearing denied October 22, 1929.
    Charles Center Case and Alexander J. Resa, for appellant.
    William F. Propper and Maloney, Wooster & Whiteside, for appellee Village of Dolton. Otto F. Reich, for appellee First National Bank of Dolton.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This appeal is from an order denying appellant the right to intervene in this, suit in which the plaintiff had already obtained a judgment against the defendant based upon its ownership and the nonpayment of certain tax anticipation warrants and bonds authorized and issued by defendant corporation. After such judgment, during the term it was entered, petitioner filed his petition in the capacity of resident and taxpayer, of said village, claiming therein that said tax anticipation warrants were illegal and void on various grounds and that he should be permitted to offer a defense on behalf of the village.

The petitipn appears to have been considered solely with respect to the right of petitioner to intervene in the suit. The grounds upon which the petition rests need not be considered if there was no such right. We are unaware of any such right in a common-law action where the rules of comon law obtain (except as modified by statute). There is no statute in this State permitting intervention in a common-law proceeding except that of trial of right of property. Intervention is common in equitable proceedings, but even then must be before judgment or decree. In Haase v. Haase, 261 Ill. 30, where in a partition proceeding a party sought leave to intervene after a decree of sale the court held that it was then too late; that there was no longer any cause in which to intervene. The court said: “After a cause has been heard and determined between the parties, there can be no intervention by a third person. Whatever rights another may then have in the subject matter of the controversy must be enforced by an original proceeding.” That an intervention, when permissible, must be had during the pendency of the suit before the issues between the original parties have been determined is the general rule in other jurisdictions. (Zeitinger v. Hargadine-McKittrick Dry Goods Co., 298 Mo. 461, 250 S. W. 913; Encino State Bank v. Tenorio, 28 N. M. 65, 206 Pac. 698; Pinkard v. Willis (Tex.), 57 S. W. 891; W. D. Jenkins Lumber Co. v. Cramer Bros. (Iowa), 160 N. W. 42.) Our attention has not been called to any common-law case in this State in which this question has been presented. But the principle upon which intervention will be denied after a decree in a chancery case is equally applicable to a common-law action even if intervention were permitted in such- an action.

We deem it entirely unnecessary, therefore, to consider the other points argued why petitioner should not have been permitted to intervene, namely, that he has no such interest in the subject matter of the litigation as would entitle him in a proper case to intervene, and as a taxpayer will not be permitted to usurp the power of a municipal corporation to control the conduct of litigation to which it may be a party, although in the absence of any claim of fraud, there are ample-authorities sustaining these points. Were a discussion of either of them necessary to the decision of this case, we would be obliged to hold that no facts of fraud are pleaded in the petition but merely a conclusion. We think the petition was properly denied.

One of the appellees has renewed its motion to strike the bill of exceptions and its motion to dismiss the appeal, both of which we have previously denied. The former is based on the contention that the bill does not purport to contain all the evidence heard or proceedings had on the hearing on the petition. While the bill of exceptions recites a “hearing” was had on the petition, no issues were formed thereon and it is perfectly apparent that the hearing was in- the nature of a demurrer to the petition already filed, though without leave of court, for which the hearing should have been had.in accordance with the notice given. The effect of the proceeding was to deny such leave. The motion to strike the bill of exceptions will be again denied.

On the motion to dismiss the appeal we are cited to our decisions in Sheppard-Strassheim Co. v. Nickas, 207 Ill. App. 370, and Revell & Co. v. Morgan Groc. Co., 211 Ill. App. 265, in each of which the appeal was dismissed as not perfected because no order of court approving the bond or authorizing the clerk to approve it, appeared in the record. While that has been the practice in this court for some time, we are now disposed to think that if, as in the case at bar, the approval of the judge appears on the bond filed as required by statute, it is sufficient to indicate approval by the court within the meaning of the statute. Section 92 of the Practice Act, CahilPs St. ch. 110, U 92, provides that the bond shall be filed in a given amount “with sufficient security, to be approved by the court.” Section 93, Cahill’s St. ch. 110, If 93, provides that “the clerk of the court may, by order of the court, made at the time of praying the appeal, and entered of record approve of the security offered upon such bond, and such approval may be made in term time or vacation. ’ ’ Manifestly the latter section does not contemplate the entry of an order indicating approval by the clerk. Of course, such an order, if entered, would have to be entered by the court. If the approval permitted by the clerk is sufficient to perfect the appeal it is difficult to see why the signed approval on the bond by the judge should not be deemed equally within the contemplation of the statute, the statute not specifically requiring any order therefor. In either case it is a sufficient approval of the security offered on a bond already filed which merely requires an examination of the sufficiency of the security as contemplated by section 95, Cahill’s St. ch. 110, ff 95. No decision of the Supreme-Court holding what is the proper form of approval by the court has been called to our attention. We do not think, therefore, that approval of the security contemplated by the act necessitates an order of court. The act does not so provide. But if otherwise, the approval appearing upon the filed bond is suffiicent for the basis of an order to that effect on which the clerk was authorized to enter a formal order of record, or may still do so nunc pro tunc by direction of the court. We are of the opinion, therefore, that it cannot be said the appeal is not perfected because of the mere absence of such an order. The motion to dismiss the appeal will be denied.

The . judgment will be affirmed.

Affirmed,

Scanean and Gridley, JJ., concur.


author: Mr. Justice Gridley

text:
    Josephina Nelson, Administratrix of the Estate of Carl Alfred Nelson, Deceased, Appellee, v. Stutz Chicago Factory Branch, Inc., Appellant.
    Gen. No. 33,421.

      Opinion filed October 11, 1929.
    Rehearing denied October 22, 1929.
    Tenney, Harding, Sherman & Rogers, for appellant; S. Ashley Guthrie, of counsel.
    Joseph D. Ryan, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action for damages for negligently causing the death of plaintiff’s intestate, a boy about 10 years of age, on April 10, 1927, as the result of a collision between an automobile in which he was a passenger and defendant’s automobile, driven by its servant, Joseph R. Smith, on the outer driveway in Lincoln Park, just north of North Avenue, Chicago, there was a trial before a jury in November, 1928, resulting in a verdict and judgment against defendant for $10,000. This appeal followed.

It was sufficiently proven upon the trial, and is here admitted, that the automobile which collided with the other automobile in which the boy was riding was owned by defendant, and that the collision and the boy’s death were proximately caused by Smith’s negligence. The real issue was whether Smith at the time was operating defendant’s automobile in the course of and within the scope of his employment.

Defendant’s counsel, as grounds for a reversal of the judgment, here contend (1) that the trial court erred in not directing a verdict for defendant because (a) the evidence shows that Smith had no authority either express or implied to operate defendant’s automobile at the time, and, indeed, had been forbidden by a rule of defendant so to do, and because (b) the evidence shows that Smith was then engaged “in a pleasure excursion of his own”; (2) that the verdict is against the manifest weight of the evidence; (3) that plaintiff’s attorney in his argument to the jury made certain improper and prejudicial remarks; (4) that the court erred in giving to the jury instruction No. 20, offered by plaintiff; and (5) that the verdict is excessive.

Defendant was engaged in the business of selling Stutz automobiles. Its main salesroom or plant was at No. 2500 South Michigan Avenue, and its so-called “north side branch” was at 5051 Broadway, near to and north of Lawrence Avenue, Chicago. F. D. Cerf was its president and general manager; B. Gf. Peterson its treasurer; and J. B. Burns its sales manager. Edward Clark was a salesman at the north side branch and also the manager of the business at said branch. There were several salesmen and several so-called “demonstrators” at .the main plant and Burns had charge over them. Smith had there been employed for about a year, acting for eleven months as a demonstrator, i. e., demonstrating for prospective purchasers cars that defendant had for sale. About one month prior to the accident his position had been changed to that of a salesman, but occasionally he still demonstrated cars both in the daytime and in the evening after closing hours. About six weeks prior to the accident, according to the testimony of its witnesses, defendant issued and posted an order to the effect that no cars should be taken out of the main plant, or demonstrations made, after closing hours (about 6 o’clock p. m.), without special permission from Burns or Cerf, which permission Smith testified he always could procure. This order did not apply to Clark, or to the north side branch, and Clark frequently caused demonstrations to be made for his prospective purchasers during the evening. He had authority to obtain cars from the main plant for such purposes, and it was customary for a demonstrating driver or drivers to be sent to Clark from the main plant before closing hours to be used by him as such during the evening. Clark testified: “It was customary to have a demonstrator out at 5051 Broadway in the evening. ... If one had come and I was through with him for the evening I would send him home. ... If I had a prospect I certainly had authority to keep him (the demonstrator). If I had authority to keep him, I suppose I had the same authority to send for him, at least I did it on this occasion.” It was also a rule at the main plant that demonstrating cars could not be returned to that plant after 8 o’clock p. m. Sam Robinson, defendant’s porter, car washer and night man at that plant, testified: “I did not let demonstrating cars in or out at night. If anyone came with a demonstrating car after I started work at 8 o’clock I would not let them in. They would either take the car home and bring it in the.morning, or bring it in when they had a key.” It appears that each salesman was paid a commission on the price of cars sold through his efforts, had a drawing account against. commissions, but received no other compensation. It also appears that each demonstrator received something when cars were sold as a result of his demonstration. Peterson testified: “Everybody had an interest in the business from the sales manager down. . . . Mr. Clark, the north side manager, received a commission on his sales, .and the company was interested in the sale of cars through that agency as well as the agency at 2500 Michigan avenue. . . . Between the 1st and the 10th of each month I was generally around the Michigan avenue plant in the evening, but I was not there on Saturday night, April 9th, 1927. . . . The only business on Saturday nights was that of showing cars to people. . . . On the night of April 9th, Cerf was not there. ... I don’t know where Burns was ... I was told that Thorsen (another salesman) and Smith were on the floor that night showing ears to customers.”

About 10 o’clock on said evening Clark telephoned from the north side branch to Thorsen to the effect that he wanted a man to immediately come with a car to make a demonstration to a prospective customer, who “looked promising.” Upon Smith being advised of the request he unsuccessfully tried to reach Burns by telephone in order to obtain the latter’s permission to take out a car and make the requested demonstration. Thereupon Smith and Thorsen went in a car to said north side branch and they thereafter made a demonstration of it, which lasted over half an hour and during which Smith did ‘ ‘ quite a bit of driving. ” Upon its completion, and after they had had something to eat, Smith drove Thorsen westerly to the latter’s home on Lawrence Avenue, near Kedzie Avenue. Returning easterly, and again reaching Broadway, Smith drove the car southerly to the home of friends, Mr. and Mrs. Devinger, on Broadway, a few doors south of Belmont Avenue, where a card party was in progress. Smith joined the party,' and there played cards until about 5:45 o’clock on Sunday morning, April 10, 1927. It was considerably' after midnight when Smith reached the Devinger home. He testified that, if he had immediately returned with the car to defendant’s main plant “after he had finished his work,” he would have arrived there “about 1:15 o’clock in the morning”; that he knew of the company’s rules as to the taking out and bringing in of demonstration cars; and that he believed that probably at that hour he, not having a key, could not gain admission to the plant.

Shortly before 6 o’clock on Sunday morning, April 10, Smith, after leaving the Devinger home, started to drive the car back to defendant’s plant on South Michigan Avenue. He. went east and then southerly through Lincoln Park, taking the outer driveway, which he regarded as the “quickest way” to reach his destination. While driving southerly in said driveway he collided with the other automobile, in which were riding plaintiff, her husband, plaintiff’s intestate, and another boy. The deceased left him surviving as his next of kin, his father, his mother (plaintiff) and two sisters, aged respectively 18 and 14 years. Because of' the accident Smith was discharged from his employment with defendant.

As to defendant’s counsel’s first contention, we are of the opinion, considering the evidence as above outlined and all the facts and. circumstances in evidence, that -the trial court at the conclusion of all the evidence properly refused to direct a verdict in defendant’s favor. In Chicago City Ry. Co. v. Martensen, 198 Ill. 511, 512, it is said: “We have decided very many times that on a motion to take a case from the jury, either at the close of plaintiff’s evidence or at the close of all the evidence, the naked legal question thereby raised in this court is whether or not there is any evidence in the record fairly tending* to support the plaintiff’s cause of action. It is never a question of the weight of the testimony.” (See, also, Foster v. Wads-worth-Howland Co., 168 Ill. 514, 517; Mahlstedt v. Ideal Lighting Co., 271 Ill. 154, 163; Shannon v. Nightingale, 321 Ill. 168, 175.) In the present case there was evidence showing, and indeed it is here admitted, that the automobile which collided with the automobile in which plaintiff’s intestate was riding was owned by defendant, that at the time of the collision it was being driven by defendant’s servant, Smith, and that Smith’s negligence proximately caused the collision and the death of plaintiff’s intestate. The only defense was in substance that at the time of the collision defendant’s automobile was being used without its authority, and not on its business, but for a “pleasure excursion” of the driver, Smith. The proof or admission that defendant owned the automobile constituted prima facie evidence that it then was being used on defendant’s business and that Smith, in driving it, was acting within the scope of his employment at the time. (Howard v. Amerson, 236 Ill. App. 587, 593; Kavale v. Morton Salt Co., 242 Ill. App. 205, 211, 329 Ill. 445, 452; Burger v. Taxicab Motor Co., 66 Wash. 676, 678; Ferris v. Sterling, 214 N. Y. 249, 253.) In addition to this prima facie evidence there were other facts and circumstances in evidence, all of which required the submission to the jury of the -question, as one of fact, whether at the time of the collision, Smith was driving the automobile with defendant’s authority, express or implied, and within the scope of his employment. (See cases last cited and Swancutt v. Trout Auto Livery Co., 176 Ill. App. 606, 610, 611; Bloodgood v. Whitney, 235 N. Y. 110, 114; Vernarelli v. Sweikert, 123 Wash. 694, 698; D’Aleria v. Shirey, 286 Fed. Rep. 523, 525; Sieber v. Russ Bros. Ice Cream Co., 276 Pa. 340, 345; Gojkovic v. Wageley, 278 Pa. 488, 490.) And we think it was also a question for the jury to decide under all the facts and circumstances in evidence whether at the time of the collision Smith was returning from a “pleasure excursion of his own, ’ ’ as argued by counsel, or whether at said time he had resumed his employment with defendant in the completion of work for defendant which originally he had undertaken to perform. (See Kavale v. Morton Salt Co., 242 Ill. App. 205, 214; Moore v. Rosenmond, 238 N. Y. 356, 359; Good v. Berrie, 123 Maine. 266, 268; Cusimano v. Spiess Sales Co., 153 La. 551, 556; Gibson v. Dupree, 26 Colo. App. 324, 144 Pac. 1133, 1136; Barmore v. Vicksburg, S. & P. R. Co., 85 Miss. 426, 444.)

And on these questions the jury found in favor of plaintiff and against defendant, and we cannot say that their verdict is against the manifest weight of the evidence, as defendant’s counsel also contend.

And we do not think that any of the remarks made by plaintiff’s attorney in his argument to the jury concerning the statutory limit of the amount recoverable in actions for damages for wrongful death were improper, or so prejudicial as to require a reversal of the judgment, as defendant’s counsel further contend. Nor do we think that the trial court committed prejudicial error in giving instruction No. 20, offered by plaintiff, especially when the other given instructions are considered. (See Schaffner v. Massey Co., 270 Ill. 207, 216; Deming v. City of Chicago, 321 Ill. 341, 344.) And we cannot say that a verdict for $10,000 (the limit allowed by statute) for the death of a 10-year old boy, who was in good health and who left him surviving a father, mother and two sisters, is excessive. Verdicts in such amounts for the death of boys of about that age have frequently been affirmed. (See Deming v. City of Chicago, 237 Ill. App. 637, affirmed in 321 Ill. 341, 342.)

The judgment of the superior court should be and is affirmed.

Affirmed.

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


text:
    The People of the State of Illinois ex rel. Frederick Arnd, Appellee, v. Martin O. Heckard, Local Registrar of Vital Statistics in Chicago et al., Appellants.
    Gen. No. 33,487.
    Opinion filed October 11, 1929.
    Samuel A. Ettelson, Corporation Counsel and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants.

      Edgar H. Schroeder and Lowell B. Mason, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

On August 27, 1928, a petition for mandamus was filed by the relator, Frederick Arnd, against the above named defendants and Robert M. Sweitzer, county clerk of Cook county. -Sweitzer, as such clerk, answered the petition, but subsequently on plaintiff’s motion the action was dismissed as to him. A general demurrer of the three defendants to the petition was overruled. On December 19,1928, they filed an answer, to which plaintiff filed a general demurrer. Upon a hearing the court sustained that demurrer and ruled that said defendants further answer the petition mstanter, but they failed or refused to do so. Thereupon the court, on January 5, 1929, entered the judgment order appealed from.

From the draft of the order it appears that the court, after making numerous findings, adjudged that “on or before March 1,1929, ’ ’ said Heekard, as local registrar of vital statistics of the district of Chicago, and said Kegel, as health commissioner of Chicago, and the City of Chicago, “deposit with the county, clerk of Cook county one complete set of the records of births, stillbirths and deaths registered with said local Registrar of Vital Statistics from January 1, 1928, to and including March 31, 1928”; that “on or before April 1, 1929,” they deposit with said county clerk one complete set of such records, registered with said registrar “from April 1, 1928, to and including June 30, 1928”; that “on or before June 1, 1929,” they there deposit one complete set of such records, so registered “from July 1, 1928, to and including September 30, 1928”; that “on or before June 1, 1929,” they there deposit one complete set of such records, so registered “from October 1, 1928, to and including December 31, 1928”; that “on or before February 10, 1929,” they deposit with said clerk a complete set of such records, “registered with said Local Registrar during the month of January, 1929”; and that, “commencing with March 10, 1929, and on or before the 10th day of each month thereafter, they deposit with said county clerk a complete set of records of births, stillbirths and deaths registered with said local registrar during the preceding month.”

In the relator’s petition various allegations of fact are made which are in substantial accord with some of the findings of the court (as hereinafter mentioned) in said judgment order. Some of the provisions of an act of the legislature of Illinois, providing for the “registration of all births, stillbirths and deaths” in Illinois, are set forth. (See Cahill’s St. 1927, ch. 65a, page 1382 et seq.) And it is further alleged that on May 4, 1928, the relator made written demand upon said Sweitzer, county clerk of Cook county, to furnish him with certified copies of certificates of the deaths of two brothers (naming them) which occurred in Chicago respectively on March 7, 1922, and March 10, 1926, tendering said clerk at the time his proper fee; that the relator was informed by said Sweitzer that he could not comply with the demand because no records of births or deaths had been deposited with him, as county clerk, since the year 1915; that relator believes and states as a fact that defendant Heekard, local registrar as aforesaid, has not since the year 1915 deposited any records of births and deaths with said clerk, although required by section 18 of said act of the legislature, Cahill’s St. ch. 65a, U 34, and has refused so to do upon demands and still refuses; and that defendant Kegel, health commissioner of Chicago and Heekard’s superior officer, has not directed him to comply with the clear requirements of said act.

The gist of the somewhat lengthy answer of the defendants is the claimed impossibility of their filing or causing to be filed with said county clerk said records of births and deaths in Chicago since 1918. They alleged in substance that the failure to file said records was not occasioned by the fault of any of them; that in the years 1915, 1916, 1917 and 1918, the then health commissioner of Chicago and the then local registrar caused to be made and filed with the then county clerk of Cook county full and complete certified records of the registration of births and deaths in said Chicago district; that during said years, “to make possible this discharge of their respective duties,” money was appropriated by the Chicago city council, to pay for services of assistants necessarily required with the understanding that the moneys so appropriated would be repaid by Cook county, but said county and its officers upon demand failed and refused to reimburse the City of Chicago for the moneys thus expended, and have since refused to make any appropriations therefor, “thereby making it impossible for any of these defendants to perform or discharge their duties;” that it is “impossible for any of these defendants to personally discharge said duties”; that neither the health commissioner nor the local registrar “has time to personally perform the onerous task of making and certifying copies of said records”; that even to attempt it in obedience to any mandamus writ “would seriously interfere with the discharge of these defendants’ official duties in their respective positions in matters of much greater and graver importance to the public”; and that hence it is “impossible” for these defendants to perform said duties “without appropriation and provision for payment by Cook county for the clerical employees and helpers that the task makes necessary.”

Defendants further alleged that during said years, 1915 to 1918 inclusive, the then health commissioner and local registrar prepared and certified all birth and death certificates, but that upon tender for filing the same “were by said Cook county and its officers refused,” upon the ground, “as stated by said Cook county officials,” that the same “were not needed and would not be paid for by the county;” that upon the failure and refusal of said officials to accept the certificates so tendered, said city council by resolution directed the Chicago department of health to discontinue the making of the certificates; that from the year 1919, and to the present time, said city council “has not made any appropriation or provision whatever for the making of the certificates”; and that because of this defendants since said year “have failed to make and certify such certificates.”

Defendants further alleged that the “officers and official bodies of Cook county, charged with the duty of appropriating the money to pay for these certificates” to be prepared and filed with the county clerk, “are necessary parties” to this action for a mandamus, and that the “city council” of Chicago is also a necessary party, etc.

As a “second and separate defense” to the petition defendants alleged, “by way of a plea puis darrein continuancethat since the filing of the petition two of the defendants, Heckard and Kegel, in their respective official capacities, have prepared, certified and filed with said county clerk copies of the death certificates of petitioner’s two brothers, and that these certificates are the only ones that petitioner seeks for himself or in which he is personally interested.

In the judgment order the court found inter alia that the material averments of the petition were true; that the relator, Arnd, at the time of the filing of the petition was, and still is, a resident and taxpayer of Cook county; that the City of Chicago constitutes a vital statistics’ registration district of the State of Illinois; that the registration of births, stillbirths and deaths in that district is conducted under an ordinance of the City of Chicago; that defendant, Heckard, at the time of the filing of the petition and for more than 10 years prior thereto, was and has been the local registrar of vital statistics under said act of the legislature of Illinois; that under an ordinance of the city there was and is an executive department of its government, known as the department of health, which has a health commissioner and a number of assistant commissioners, of which assistants defendant Heckard is and for more than 10 years has been one; that under the ordinance the health commissioner is the head of the department; that it is his duty to enforce all laws of the State and all ordinances of the city in relation to public health; that the ordinance provides that he shall have and exercise a general supervision over the. sanitary conditions of the city, that all orders and directions emanating from his department shall be issued in his name, and that it shall be his duty to pro-* vide necessary books for the keeping of records for the proper registration of births and deaths; that at the time of the filing of the petition the defendant Kegel was, still is, and for several months prior thereto has been; the health commissioner of the City of Chicago, which embraces said registration district, and he is the superior officer of defendant Heckard; that, under said act of the legislature, certificates of all births, stillbirths and deaths, occurring in said registration district, are required to be filed with the local registrar of the district (Heckard) and he is required to number consecutively said certificates in three separate series, and also make a complete and accurate copy or copies of each certificate registered by him on blank certificates, or in a record book of approved form prescribed by the State department of health; that the local registrar is also required to deposit with the county clerk of Cook county, on the 10th day of each month, one complete set of the records of said births, etc., registered with him during the preceding month, and said county clerk is charged with the binding, indexing or recording and safe-keeping of said records; and that said act of the legislature also provides that each local registrar is charged with the strict and thorough enforcement of said act in his district. The court further found that for several years last past neither said local, registrar of vital statistics in Chicago (Heckard), nor said health commissioner of the city (now Kegel), nor the City of Chicago, has deposited with the county clerk of Cook county any certificates of births, stillbirths or deaths, registered with said local registrar for said district, although often requested, but that all have refused so to do, and will continue in such refusal unless compelled by mandamus.

In section 3 of said act (Cahill’s St. 1927, ch. 65a, p. 1382, it is provided that “the State shall be divided into vital statistics registration districts” and that “each city, village and incorporated town . . . shall constitute a registration district.” In section 4 it is provided that “in cities, villages and incorporated towns in which registration of births, stillbirths or deaths is conducted under local ordinance, the officer of the city, etc., who is local registrar under such ordinance shall be the local registrar under this Act. ’ ’ In section 18 (Cahill’s St. 1927, ch. 65a, If 34, p. 1385) it is provided that “it shall be the duty of the local registrars to supply blank forms of certificates to such persons as require them”; that “the local registrar shall number consecutively the certificates of births, stillbirths and deaths (presented to, accepted and registered by him) in three separate series, beginning with No. 1 for the first birth or death in each calendar year”; that “he shall also make a complete and accurate copy or copies of each birth and death certificate, registered by him, on blank certificates . . . or in a record book of approved form”; and that “local registrars shall deposit with the county clerhs of their respective counties on the 10th day of each month, one complete set of the records, births and deaths registered with them during the preceding month, and the county clerks are charged with the binding and indexing, or recording, and safe keeping of such records.” -In section 19, Cahill’s St. 1927, ch. 65a, 1f35 provision is made for payment to each registrar, upon registration by him of any presented birth or death certificate of a fee of 25 cents, or a lesser sum when the annual number of certificates registered exceeds 5,000, “provided, tliat . . . accurate copies of all of such certificates have been made and turned over by him to the county clerk of his county, . . . ;” and provided, further, that “in registration districts coextensive with cities ... in which registration of births or deaths is conducted under local ordinances, and the local registrars receive fixed salaries in lieu of fees, all fees received under this Act shall be paid into the treasuries of such cities, . . .” In section 20, Cahill’s St. 1927, ch. 65a, ff 36, it is provided that “the State Board of Health, any local registrar or any county cleric shall, on request, furnish a certified copy of the record of any birth or death to any applicant entitled to the same, upon the payment by such applicant of a fee of 50 cents,” etc. In section 22 of the act, Cahill’s St. 1927, ch. 65a, ff 38 it is provided that “each local registrar is hereby charged with the strict and thorough enforcement of the provisions of this Act in his district under the supervision and direction of the State Board of Health.”

The main ground for a reversal of the judgment order appealed from, as urged by defendants’ counsel, is that, because of the facts as alleged in defendants’ answer, that is, lack of funds and lack of time, it is impossible for them to comply with the order. We do not think there is any merit in the contention. It was and is the duty of defendants to obey and carry out the plain provisions of the act of the legislature, and, while it may be difficult and inconvenient for them under the disclosed conditions (for which they are in part responsible) to now comply with the court’s order, such compliance is not impossible. Clearly, it can be complied with if sufficient clerical assistance be employed. And Heckard, the local registrar, was and is charged with the duty of seeing to it that the provisions of the act relative to the filing of copies of certificates of births and deaths in the district with the county clerk be complied with. When, as alleged, the “officials” of Cook county promised to pay for the necessary clerical expense of making copies of the certificates to be filed with the. county clerk, and afterwards failed to keep the promise, we think that proper steps should have been taken by defendants to see to it that the act’s provisions here involved were complied with. It was not for certain unnamed “officials” of Cook county to say that the “certificates were not needed and would not be paid for.” We think that the statement as contained in 38 Corpus Juris, p. 937, sec. 727, in the article entitled “Mandamus,” is in point, viz:

“Inability to perform, if respondent himself is not at fault and his own conduct has not caused the inability, is a sufficient excuse, and this principle applies where the impossibility of performance results from the fact that the acts commanded are beyond the lawful power and authority of respondent. But respondent should not be allowed to escape his duty or obligation because of a failure to do that precedent act which would have insured the ultimate performance of the whole duty, at the time provided by law; and if the excuse set up is impossibility to perform, which, however, is merely a condition which respondent has brought about by his own previous disobedience of the command of the legislature, it will not avail as he cannot thus take advantage of his own wrong.”

It, is also contended that the petition is so defective as not to sustain the judgment because of the failure to make the members of the city council of Chicago, and the county of Cook, and certain of its officials, parties defendant. In our opinion this contention also is without merit. While some or all of the parties mentioned might properly have been made parties, we do not think that any of those mentioned were necessary parties, or that, because of the omission to make them parties, the judgment order should be reversed.

In defendants ’ printed brief no argument is made in support of the “second and separate defense” as contained in their answer. It is, therefore, unnecessary to consider it further than to say that th.e present mandamus writ was sought in the name of the People, and that the relator, Arnd, is not the only person interested in having the provisions of said act of the legislature complied with.

The judgment order of January 5, 1929, should be and it is affirmed.

Affirmed.

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


text:
    The People of the State of Illinois, Defendant in Error, v. James B. Osby and Harry Schlifke, Plaintiffs in Error.
    Gen, No. 33,611.
    Opinion filed October 11, 1929.
    Wm. M. Micon, for plaintiffs in error; Wm. M. Micow and Robert R. Simon, of counsel.
    John A. Swansow, for defendant in error,
   Mr. Justice Gridley

delivered the opinion of the court.

This writ of error brings up for review the record and proceedings in a certain cause in the criminal court of Cook county, culminating in the entry of an order on April 19, 1929, wherein the court, upon the petition of the State’s attorney, vacated an order entered on January 16, 1929, and ordered that a certain judgment of forfeiture on the recognizance of James B. Osby and Harry Schlifke for $3,500, entered on October 1, 1928, be “restored with as full force and effect as if said order purporting to vacate said judgment never had been entered.” Recently this Appellate Court denied the State’s attorney’s motion to strike the bill of exceptions from the files and to dismiss the writ of error. No brief has here been filed by the State’s attorney.

The clerk’s transcript discloses in substance the following: On February 18, 1927, Osby and others were indicted for conspiracy and thereafter Osby was committed to jail. On December 29, 1927, he, as principal, and Schlifke, as surety, entered into a recognizance in the sum of $3,500, upon condition that Osby should appear in said criminal court on December 30, 1927, and from day to day thereafter until discharged, and abide the order of the court, etc. On June 14,1928, neither Osby nor Schlifke appearing, their defaults were taken and the recognizance declared forfeited, and the court further ordered that a scire facias issue against them' returnable to the next term of the court (which commenced on Monday, July 2, 1928), and also that a capias forthwith issue against Osby, and both writs were issued by the clerk. The capias is dated June 14, and is endorsed by the sheriff as having been received by him on June 14. The scire facias apparently is dated June 29, and the return of the sheriff on the back is as follows; “The within named defendants cannot be found in my county this July 2, 1928.” On October 1, 1928, the court entered a default judgment order against Osby and Schlifke in the amount of the recognizance, $3,500, — including in the order other judgments against other parties on other recognizances.

The statute then in force, pertinent to said proceedings, section 17, Division III, of our Criminal Code (Cahill’s St. 1927, ch. 38, ft 649, p. 944), is in part as follows:

“When any person who is accused of any criminal offense shall give bail for his appearance, and such person does not appear in accordance with the terms of the recognizance, the court shall declare such recognizance forfeited, and the clerk of the court shall thereupon issue a scire facias against such person and his sureties, returnable on the first day of the next term of the court, to show cause why such judgment should not be rendered against such person and his sureties for the amount of the recognizance, which scire facias shall be served by the sheriff of the county where the court is held, upon such person and his sureties, by reading the same to the defendants named in such scire facias, at least five days before the first day of the term to which the same is returnable; and in case the person aforesaid ca/rmot be found by the sheriff, he shall make return of that fact to the court. The court shall, thereupon, enter judgment by default against the defendants for the amount of the recognizance, unless defendants shall appear and defend such cause; and if the defendants should appear and interpose a defense, then the cause shall be tried in the same manner as other causes of a like nature, after any such recognizance shall be declared forfeited as aforesaid. ...”

The clerk’s transcript further discloses that on January 16, 1929, Schlifke, as surety on the recognizance, filed his verified petition in the cause in which he alleged inter alia that on June 14, 1928, when under the terms of the recognizance Osby should have been present so to respond, “he was not so present” and the recognizance was declared, to be forfeited; that thereafter, on Jume 29, 1928, scire’ facias process was issued against Osby and petitioner requiring them to appear on the first day of the next term of the court to show cause, etc.; that thereafter judgment was rendered on the recognizance against them for $3,500; that the first day of the July, 1928, term of the court was on July 2; that, inasmuch as said process was issued on June 29, five days did not intervene between its i-ssucmce and the first day of said July term; and that, hence, the court was without jurisdiction to’ enter said judgment. He prayed that the judgment be vacated. Acting upon the petition, of which the State’s attorney had notice, the court on the same day vacated the judgment. As appears from the petition the only ground urged (and acted upon by the court in petitioner’s favor) for vacating said judgment of October 1,1928, was lack of jurisdiction in the court to enter it beca/ase the scire facias process had not been issued “at least five days before the first day of the term” to which it was returnable as provided by the statute.

The clerk’s transcript further discloses that on February 23,1929, the State’s attorney appeared and was given leave to file an amended p'etition in which he prayed that said vacating order of January 16, 1929, be vacated, and that the judgment of October 1, 1928, against Osby and Schlifke on the recognizance, stand in full force and effect as of its date. In the petition it is alleged that the date of the issuance of said scire facias process “was altered from June 19th to June 29th, 1928”; that such change “was a forgery or an unauthorized alteration”; and that the sheriff’s original return on said process “was to the effect that he had made no service on the defendants but that he did have said writ in his possession at least five days before the first day of said July, 1928, term of the court.” The hearing on this petition was continued from time to time until April 19,1929. In the meantime, on March 7, 1929, Schlifke filed another petition, entitled “petition to vacate forfeiture and judgment,” in which he prayed that said “forfeiture and judgment be vacated, the scire facias quashed, and your petitioner be exonerated from any further liability on the bond.” Inasmuch as said judgment of October 1, 1928, on the recognizance had already been vacated by the order of January 16, 1929, and the State’s attorney was seeking to have said vacating order set aside, it is difficult to perceive why Schlifke filed this petition. But in the petition he alleged inter alia that the scire facias “was issued on, to-wit, the. middle or latter part of June, 1928.” This is somewhat contrary to the allegations in his former petition, wherein he alleged that said process was issued “on June 29th, 1928.”

The clerk’s transcript further discloses that thereafter, and before the hearing on the State’s attorney’s petition, Schlifke filed an answer to that petition in which he alleged that his former petition of January 16, 1929, “was based upon error and was signed without full knowledge of the facts”; that he “was never served with a scire facias by the sheriff,” although he has continuously lived in the same location in Chicago as when he signed the recognizance; that the court was “without jurisdiction” to enter said judgment against him on said recognizance on October 1, 1928, because he was not served at least five days before said July, 1928, term of the court; that said scire facias, according to the State’s attorney’s petition, was issued on June 19, returnable to said July term, “but that the judgment was not entered until the October, 1928, term”; and that, therefore, the court was without jurisdiction to enter it and the same is null and void. The answer concludes that “a new order may be entered vacating the judgment upon the legitimate facts hereinbefore set out.” The effect of the answer is virtually an admission by Schlifke that said vacating order of January 16, 1929, was made by reason of an error of fact, but that because of other claims now made for the first time said order should nevertheless stand undisturbed.

In the draft order of April 19, 1929, in question, the court states that there was a hearing on said motion and petition of the State’s attorney, that Schlifke had notice thereof, that the records and files in the. scire facias proceeding were before the court, that proof of facts stated in said petition was submitted and that arguments of counsel were had. And the court finds that the facts as stated in said petition “are true and are proved,” and that said order entered in the cause on January 16, 1929, vacating said judgment of October 1, 1928, and setting aside said forfeiture, “was upon false representation of the facts in relation to the service of said scire facias process, and that the date upon said scire facias process was falsely and without authority changed to make it appear that this court lacked jurisdiction to enter said judgment, when as a matter of fact and law this court had full and complete jurisdiction so to enter said order of judgment.” The order concludes as first above stated.

The bill of exceptions does not set forth what transpired on said hearing. It merely sets forth in haec verba the said order of April 19, 1929, as well as two previous orders of the court, and that to the entry of said orders Schlifke’s counsel duly excepted.

One of the grounds here urged by counsel for the reversal of the order of April 19,1929, is that the court was without jurisdiction to enter said judgment of October 1, 1928, for the reason that it appears that neither Osby nor Schlifke ever were served with any writ of scire facias. There is no merit in the contention. It sufficiently appears that on June 14, 1928, the court propertly declared a forfeiture of the recognizance ; that, in accordance with the provisions of the statute then in force, scire facias process was ordered issued, returnable to the July, 1928, term of the court and was in fact issued, returnable to said term, more than five days before the commencement of the term; and that on July 2, 1928 (the first day of the July term), the sheriff made return on the writ that “the within named defendants cannot be found in my county this July 2,1928. ’ ’ This is all that the statute requires should be done. Actual service of scire facias process, where a recognizance has been forfeited, is not required to be made on the defendants as a condition precedent to the entry of a judgment on said forfeited recognizance. The statute reads ‘ ‘ and in case the person aforesaid cannot be found by the sheriff, he shall make return of that fact to the court,” and, “the court shall, thereupon, enter judgment by default against the defendants for the amount of the recognizance, unless defendants shall appear and defend such cause”; etc.

Counsel also contend that said order should be reversed because the judgment of October 1, 1928, was rendered after the return of only one nihil, and that, where there is no personal service, there must be a re.turn of two nihils before a judgment on a recognizance can be entered. This contention is also without merit. The statute does not require the return of two nihils before judgment or execution. Counsel in support of their contention cite the cases of Sans v. People, 3 Gilm. 327; Lytle v. People, 47 Ill. 422; Stokes v. People, 63 Ill. 489. All these cases arose before the statute of 1869 was passed (laws 1869, p. 113), which is very similar to said statute in force in 1927, and said cases are not now controlling. (See Rietzell v. People, 72 Ill. 416, 418; Piercy v. People, 10 Ill. App. 219, 221.)

Counsel complain that said judgment for the amount of the recognizance was not entered at said July, 1928, term of the court, but on October 1, 1928, at a succeeding term. The argument is that, because of the use in the statute of the word “thereupon” (which according to the definitions given by lexicographers means “immediately; without delay,” etc.) judgment must be entered at the term to which the scire facias is returnable, and if entered at a succeeding term cannot stand. We see no merit in the complaint or argument.

Our conclusion is that the court properly entered said order of April 19, 1929, and that it should be and it is affirmed.

Affirmed.

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