author: Mr. Justice Hebel

text:
    Stanley C. Armstrong and A. George N. Spannon, Ap-pellees, v. Esther Zounis et al., Defendants. Appeal of Esther Zounis et al., Appellants.
    Gen. No. 40,970.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed April 10, 1940.
    William Rogoff and Louis Bettelheim, both of Chicago, for appellants.
    Stanley C. Armstrong and A. George N. Spannon, pro se.

   Mr. Justice Hebel

delivered the opinion of the court.

The defendants appeal from the decree entered by the court in the proceeding instituted by the plaintiffs to foreclose an attorney’s lien on certain real estate in Chicago. The decree is based upon the master’s report as amended and finds that one Louis Zounis, deceased, in his lifetime, delivered to the plaintiffs two master’s deeds, in each of which Zounis is the grantee to the premises respectively described therein and in the complaint filed in this cause. It is further charged that the plaintiffs have a lien on the premises, which lien “constitutes a valid, charging, first, prior and sustaining lien” for the unpaid balance of $1,487.24, alleged to be due them from Louis Zounis, deceased, who is the ancestor of the defendants, as reasonable fees for legal services alleged to have been performed for the deceased in his lifetime, including* costs' advanced in his behalf, also for $594.83, which includes accrued interest on said balance since the death of Zounis on February 4,1935, to June 20,1939, and costs in this proceeding. The decree orders the sale of said real estate to satisfy the lien, and this appeal is from the order entered July 12, 1937, overruling the motion of one of the defendants to strike the complaint and dismiss the suit; and from the order entered April 29, 1938, referring said cause to a master in chancery instead of dismissing the same upon the complaint and the answers thereto.

The complaint filed by the plaintiffs on March 23, 1937, among other things alleges; that the plaintiffs performed certain legal services and advanced costs for Louis Zounis who agreed to pay a reasonable fee for such services; that the reasonable fee for services performed and costs advanced amounts to $3,050.38, of which the balance of $1,487.24 remains unpaid; that in the course of their employment, Louis Zounis delivered to the plaintiffs two deeds executed by masters in chancery of the superior court of Cook county, Illinois, conveying to Louis Zounis the real estate in said deeds and complaint described, and that said deeds were delivered to be kept by the plaintiffs until such time as Louis Zounis should pay the $1,487.24, but not later than January 1, 1935; that on February 4, 1935, Louis Zounis died and left him surviving as his heirs his widow, three daughters and one son; that the said son died on August 9, 1936, and left him surviving* as his heirs, his widow and one daughter. All these survivors were made parties defendant. The plaintiffs pray, in part, that an account be taken; that the plaintiffs be decreed to have a valid lien on the said real estate, and the rents, issues and profits thereof, and upon failure of the defendants to pay the alleged indebtedness, the premises be sold to satisfy the same.

.On June 21, 1937, one of the defendants filed her written motion to strike the complaint and dismiss the suit, and sets forth that the plaintiffs have an adequate remedy at law; that the plaintiffs’ cause of action is against the estate of Louis Zounis, deceased; that the lien claimed is a retaining lien, there being no statute in this State providing for foreclosure of the same, and extends only to the instruments alleged to be in their possession.

On July 21,1937, the plaintiffs filed their verified bill of particulars particularizing their alleged services performed and claims for money set forth in the complaint.

On November 1, 1937, Bessie Palmer, one of the defendants, and on December 22, 1937, the other defendants, with the exception of Sarah Zounis and Claire Zounis, filed their verified answers to the complaint and bill of particulars, in which answers, in respect to the complaint, they deny that the plaintiffs have a lien to secure the payment of their fees, and that if they have any lien it extends only to the documents and not the real estate therein described; and deny that the plaintiffs are entitled to foreclose their alleged lien; and state that the documents belong to the estate of Louis Zounis, deceased, and are wrongfully withheld by the plaintiffs; they deny that the plaintiffs are entitled to relief, and state that the plaintiffs have an adequate remedy at law.

In respect to the bill of particulars, as to each separate item therein, the defendants state upon information and belief that they have been paid; of that the defendants have no knowledge sufficient to form a belief to either admit or deny, but demand strict proof as the case may be.

The answer as an affirmative defense,- further states, “that if plaintiffs had pursued their remedy at law and had succeeded in proving their claim, they would have obtained judgment against the estate of Louis Zounis, deceased, which would have been paid, as the assets were more than sufficient to cover; that they failed to institute such suit; that there had been an adjudication in such estate; that more than one year has elapsed since the issuance of letters and that said estate is closed and that as a consequence plaintiffs are without remedy in this court, having failed to avail themselves of the remedy allowed by law.”

The defendants point to the statement of facts that the plaintiffs claim they performed certain legal services and advanced costs for one Louis Zounis, deceased, in his lifetime, for which services said Zounis agreed to pay a reasonable fee; that he died on February 4, 1935, and at that time owed the plaintiffs a balance of $1,487.24 for services and costs advanced; that in the course of their employment the plaintiffs received from Louis Zounis, two master’s deed in which Zounis was grantee to real estate in Chicago, and that Zounis delivered said deeds to the plaintiffs to be kept by them until the said amount was paid. The plaintiffs claim -a lien, as we have indicated, for the alleged unpaid balance and interest thereon. The defendants ’ reply is that the estate of Louis -Zounis was probated in the probate court of Cook county, and was solvent. Within two months after the death of Zounis, the plaintiffs had knowledge of the probate proceedings and sent two statements, but the plaintiffs never filed a claim in the estate for the alleged indebtedness, and the estate was subsequently closed.

From the master’s report filed herein it appears that “the defendants heretofore filed their motion to strike the plaintiffs’ complaint on the ground that it appears from the face of the complaint that the plaintiffs are attempting to foreclose real estate described in certain Masters’ deeds the plaintiffs have in their possession and upon which Masters’ deeds they have only a retaining lien; that attorney’s liens on documents coming into their possession in the ordinary course of business and merely possessory in nature. The Court entered an order herein on July 12, 1937 overruling said motion. The Master concludes, therefore, that it is beyond the scope of the reference for him to render a conclusion of law contrary to the legal conclusion of the Court. It is, therefore, the Recommendation of the Master that if the Court still maintains said ruling, the plaintiffs are entitled to foreclose the lien of said Masters’ Deeds upon the premises therein described for the balance due them as hereinabove indicated in the sum of $1,487.24.”

The defendants contend that where an attorney comes into possession of a deed to real estate conveyed to his client by a master in chancery, pursuant to foreclosure proceeding previously handled by the attorney, such possession, whether obtained in the course of his employment, or delivered to him by his client for an unstated purpose, does not give the attorney a lien on the real estate for his unpaid fees, but merely gives him a retaining lien on the deed, whereby he may hold the deed until his fees are paid.

The plaintiffs’ reply, however, is that an attorney has a lien for his fees upon all papers or money in his possession belonging to his client, and where there is a legal right there ought to be a remedy to enforce such a legal right; that the lien of an attorney for his reasonable fees is impressed by the res concerning which the attorney has rendered services. Such a re-lationskip gives rise to an implied or equitable lien or trust for the security and the ultimate compensation of the attorney.

In the case of Sanders v. Seelye, 128 Ill. 631, the Supreme Court upon the question of attorneys’ liens on papers, documents, etc., retained by the attorney until his services have been paid for, said:

“Attorney’s liens are classed as general (or retaining) liens, and charging (or special) liens. The first attaches to all papers, documents, etc., which he receives professionally; the second only upon that which is recovered through his professional services. This latter right of lien has been-denied by this court in several cases. In Humphrey v. Browning, 46 Ill. 476, it was held that he had no lien upon real estate recovered in ejectment; in Forsythe v. Beveridge, 52 Ill. 268, that he had no such lien upon a judgment recovered; and so in each of the other cases cited by counsel, it was held that no lien existed in his favor upon the subject matter of the suit. Although expressions are used in the opinions in some of these cases which seem to deny an attorney’s right to the retaining lien also, in none of them was that question before the court, nor was it decided. It is now therefore to be treated as an open question in this State.

“That it is a well established common law right, must be conceded. Stephen v. Blacklock, 1 M. & S. 535; St. John v. Dufendorf, 12 Wend. 261; Bennett v. Cetts, 11 id. 163; Walker v. Sargeant, 14 Vt. 247; Ward v. Craig, 87, N. Y. 551. No reason is perceived for denying the existence of that right in this State. There is nothing in our statute which changes the common law relations between attorneys and their clients in such a manner as to affect this right, nor are we able to see wherein this rule of the common law is inapplicable to ‘the habits and conditions of our society, or contrary to the genius, spirit and objects of our institutions. ’ We therefore hold, that in a proper case an attorney in Illinois may legally maintain such a lien.” Therefore, the court having adopted the rule that attorneys may have an enforceable right, it is well to take up the question as to whether the attorney in a retaining case can enforce his rights as a retaining lienor where the lien exists in his favor upon the papers and documents that were placed in his possession by his client, as in the instant case.

In Corpus Juris Secundum, vol. 7, under the heading, “Attorney and Client,” sec. 233, the rule is that an attorney’s retaining lien cannot be actively enforced, and it was said in sec. 233:

“Generally a retaining lien cannot be actively enforced, although, under circumstances noted hereunder, such lien may be enforced as an incident to a proceeding brought for another purpose.
“Since as noted in Sec. 225, supra, the rights of an attorney with respect to the subject matter of a general or retaining lien is merely the passive right to hold such subject matter until his claim is satisfied, a retaining lien cannot be actively enforced. More specifically a general or retaining lien cannot be enforced by judicial proceedings brought for that purpose ; nor may an attorney who has a lien on the papers of his client sell said papers under process to foreclose his lien, as may a pledgee or a mortgagee in other cases. On the other hand where the attorney is brought into court, upon application of his client, to compel the attorney to turn over money or papers upon which he claims a lien, or in a suit by the attorney to recover his compensation, the court may ascertain the extent of the lien and enforce it. Moreover, if such suit is not brought by the attorney within a time limited, or is not then diligently prosecuted, the court may order the papers to be given up. However, except by consent the question in dispute cannot be determined by the court in a summary way. ’ ’ Among the cases cited in support of this rule, our attention has been called to the case of Needham v. Voliva, 191 Ill. App. 256. In this case the question was whether a court of equity had jurisdiction to adjudicate an attorney’s possessory or retaining lien and enforce by proper decree the sale of papers and deeds which came into his hands by reason of his employment, and in that case the appellant urged in his brief and argument that there were only two grounds of possible equity jurisdiction in the case. The first is, that one may resort to equity to adjudicate the validity of a common-law retaining lien. The second ground is, that the Attorney’s Lien Act of 1909 (J. & A., par. 611) creates a lien as against the client without the service of the notice provided for in the statute, and this court in its opinion states:
“. . . equity has no jurisdiction to adjudicate a possessory or retaining lien. That lien is defined as the attorney’s right to retain possession of property belonging to his client which comes into his hands within the scope of his employment until his charges are paid. Weed Sewing Mach. Co. v. Boutelle, 56 Vt. 570. If the relationship of attorney and client exists, the possessory lien will cover in general any property of any kind belonging to the client and held by the attorney. It includes ordinary legal documents of the client in the possession of the attorney, or money collected by the attorney. 4 Cyc. 1015. The possessory lien is a right merely to retain, and cannot be actively enforced. 4 Cyc. 1023; Compton v. States, 38 Ark. 601; McKelvy’s Appeal, 108 Pa. St. 615; McDonald v. Charleston, C. & C. R. Co., 93 Tenn. 281; Jones on Liens, par. 132. In our opinion the court had no jurisdiction to adjudicate upon the possessory or retaining lien of complainant.” So, from the facts in the instant case, the plaintiffs seek to recover a reasonable fee for the services that were performed at the request of Louis Zounis in his lifetime; that this amount, together with the costs advanced, was $3,050.38, of which the balance of $1,487.24 remains unpaid; that during the course of the employment there was delivered to the plaintiffs two deeds executed by a master in chancery of the superior court of Cook county, Illinois, conveying to Louis Zounis the real estate in them and in said complaint described, and that said deeds were delivered to be kept by the plaintiffs until such time as Louis Zounis could pay $1,487.24, but not later than January 1, 1935. Applying the rule which has been called to our attention, the plaintiffs have a possessory lien upon the master’s deeds that were delivered to the plaintiffs by Louis Zounis in his lifetime and which were to be retained by them until the amount due was paid, and the possessory retaining lien is a right merely to retain and cannot be actively enforced. Needham v. Voliva, 191 Ill. App. 256.

The plaintiffs in support of their theory that the court was not in error when it entered the decree in the instant case, which provided that upon the failure of the defendants to pay the amount the court found due, a sale may be had of the real estate described in the master’s deed, the subject of this litigation, cite the cases of Catherwood v. Morris, 360 Ill. 473, and Lewis v. Braun, 356 Ill. 467, and contend that the lien of an attorney for his reasonable' fees is impressed upon the res concerning which the attorney has rendered services. Such a relationship gives rise to an implied or equitable lien or trust for the security and the ultimate compensation of the attorney.

In passing upon this question we must have in mind the classification of attorney’s liens, which are passed upon in. the case of Sanders v. Seelye, supra. There the court classified attorneys’ liens as general (or retaining) liens, and charging (or special) liens. Now. in the instant case there is no question but that the lien which is impressed upon the deeds that are in the possession of the plaintiffs is classified as a general— or retaining lien.

In the case of Catherwood v. Morris, supra, the attorney’s lien was a statutory one, and the proceeding was under the provisions of the statute of our State, entitled “Attorney’s Lien Act” (Cahill’s St. 1933, ch. 13, par. 13, p. 148; Smith’s Stat. 1933, ch. 13, par. 14, p. 182). These two cases are not in point, for the reason that the proceeding in the instant case is one in which the plaintiffs’ lien is a possessory one, the master’s deeds being in the possession of the plaintiffs, and they are seeking by the decree entered in this case to have the real estate described sold, unless the amount of $1,487.24 is paid.

On the other hand, in the case of Lewis v. Braun, supra, the action was for the purpose of impressing an attorney’s lien upon the stock in question and the dividends that were to be paid. That being a charging or special lien, the action under the authorities could prevail, and from the facts in this case one of the defendants had possession of this stock, and the Supreme Court in passing upon the question involved, said:

“It is urged by appellees that there can be no lien before there is a recovery, as there is no res or subject matter upon which an equitable lien may attach. This statement does not accord with the facts in this case, as the allegations of the bill show there is a definite res involved in this proceeding, consisting of forty-eight stock certificates, with serial numbers and full description given. It is not denied that this stock actually exists, and the sole purpose of the contract was to secure its transfer and the collection of dividends already declared upon it. Where an attorney and r client enter into a contract for a contingent- fee imposed upon the recovery of certain money or things, equity creates, by implication, a present lien upon an existing res for the security of the attorney while doing Ms work.” As we have indicated, tMs is a charging or special lien upon the stock in question, and an action of the character instituted was justified, as was stated in the case of Lewis v. Braun, supra.

For the reasons stated we believe the trial court erred in entering the decree from which the defendants appeal, and the decree is reversed and the cause is remanded with directions to dismiss the bill for want of equity.

Reversed and remanded with directions.

Denis E. Sullivan, P. J., and Burke, J., concur. ■


source: Caselaw Access Project

license: Public Domain

text:
    Sylvia Oppenheim, Appellee, v. Frank Schlachter et al., Defendants. Appeal of John F. Kersey, Appellant.
    Gen. No. 40,979.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed April 10, 1940.
    Charles M. Haft, of Chicago, for appellant.
    Jesmer & Jesmer and Sol Oswianza, both of Chicago, for appellee; Julius Jesmer and Sol Oswianza, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by John F. Kersey, one of the defendants, from a decree of foreclosure based upon the report of a master in chancery.

Sylvia Oppenheim, nominee of the Schiff bondholders ’ committee who it is alleged is the holder and owner of promissory notes executed by Frank Sehlaehter and Agnes Sehlaehter, in the aggregate unpaid principal sum of $20,600, secured by a junior trust deed, filed her second-amended complaint in equity in the circuit court of-Cook county to foreclose the same and to secure an additional lien for the sum paid for the redemption she made from a prior first mortgage foreclosure sale.

The defense offered by the defendants Frank and Agnes Sehlaehter, John F. Kersey and Jennie P. Ker-sey is largely based upon the facts as set forth in their answer, and they state as part of their answer that Arnold Sehlaehter borrowed from George Willard, Inc., the sum of $10,000, and gave to George Willard, Inc., a series of notes aggregating $10,000, and at the same time delivered to him all of the notes executed by the defendants Frank and Agnes Sehlaehter; that the notes were in the form of a judgment note and were not in the form of a collateral note, and did not embody any power or authority to sell the notes executed by Frank and Agnes Sehlaehter; that these notes were extended in the same form as originally made, and that George Willard, Inc., sold the remaining notes, executed and unpaid, to Raymond Ryan and Victoria Ryán, aggregating $6,354.75, and at the time of doing so delivered to Raymond Ryan and Victoria Ryan the notes executed by Frank and Agnes Sehlaehter, and it is also an issue in this case that after the maturity of the $20,600 of notes executed by the defendants Frank and Agnes Sehlaehter, the subject of this foreclosure suit, Seymour W. Schiff paid to Raymond and Victoria Ryan the sum of $1,500 and procured the delivery of the notes executed by the defendants Frank Sehlaehter and Agnes Sehlaehter, aggregating the sum of $20,600; that the fact is that at the time of the delivery of the the notes by Raymond and Victoria Ryan to Seymour W. Schiff, the principal amount due from Arnold Schlachter upon the notes executed and delivered by him was the sum of $6,354.75. It is also an issue here as to whether John F. Kersey, defendant, is the owner of the unpaid notes executed by Arnold Schlachter, and which were held by Raymond and Victoria Ryan at the time Seymour Schiff paid the $1,500, and procured possession of the $20,600 of mortgage notes aforesaid, which were held by Raymond Ryan and Victoria Ryan as collateral to secure the payment of the notes of Arnold Schlachter, and whether the defendant John F. Kersey as owner is entitled to possession of the $20,600 of mortgage notes described in the amended bill of complaint.

It is also charged in the answer that Seymour Schiff, at the time he procured possession of the $20,600 of mortgage notes, knew that said notes were held by Raymond and Victoria Ryan as collateral to secure the payment of the notes of Arnold Schlachter held by them; that the Schiff bondholders’ committee was the owner of the master’s certificate of sale referred to in the complaint in the above cause, and that Seymour W. Schiff was a member of and was acting for the Schiff bondholders’ committee.

This answer was adopted by the defendant John F. Kersey, who admits all the allegations in the aforesaid amendment to defendants’ answer contained, the same as if they were specifically made in the counterclaim.

The decree approved the master in chancery’s report and findings that the defendants Frank Schlachter and Agnes Schlachter, his wife, being indebted in the principal sum of $25,000, executed and delivered 37 principal promissory notes dated the 15th day of July, 1928, payable to bearer; that to secure the payment of said sum and interest, the defendants Frank Schlach-ter and Agnes Schlachter, his wife, did on the 15th day of July, 1928, make and execute their certain trust deed, wherein and whereby they conveyed to George A. Willard, as trustee and as successor in trust, the property therein described, together with the building and improvements thereon.

The court in its decree found that notes Nos. 1 to 22, inclusive, in the aggregate sum of $4,400, secured by the trust deed above mentioned, had been duly paid and surrendered to the owner of the equity, and that the defendants Frank Schlacter and Agnes Schlach-ter, his wife, defaulted under the terms and provisions of the trust deed in the nonpayment of the principal notes Nos. 23 to 36, inclusive, each in the sum of $200, and note No. 37 in the sum of $17,800, which was due on the 15th day of November, 1931.

It also appears from the decree that Sylvia Oppenheim, as nominee of the Schiff bondholders’ committee, was the legal holder and owner of the principal notes in question; that on the 9th day of November, 1938, the plaintiff in this action, in order to protect the lien of the trust deed sought to be foreclosed, paid to Isidore Brown, master in chancery of the circuit court of Cook county, $27,547, for the redemption of the properties involved herein from a sale had in pursuance of a decree entered on the 17th day of February, 1934, in the circuit court of Cook county, in case No. B-216717, entitled, “Chicago Title and Trust Company, a corporation, as Successor-Trustee, v. Arnold Schlachter, John F. Kersey, Jennie P. Kersey, his wife, Raymond J. Byan, Harry M. Fisher, Harry A. Lipsky, Barnett Faroll, Seymour W. Schiff, Barney J. Linenthal, B. J. Schiff, I. B. Hry, Isidore Ossey, George Skurow, Solomon Jesmer, Jacob Glassman, and A. Oswianza, organized as the Schiff bondholders’ committee, and the West Side Trust and Savings Bank of Chicago, a corporation,” and that the amounts are allowed to the plaintiff in this action as an additional indebtedness secured by the trust deed herein sought to be foreclosed.

The court found that there was due the sum of $20,600 secured by the trust deed herein mentioned, together with interest to September 15, 1930 of $103, and the further sum due as interest on the said notes, at the rate, of 7 per cent from September 15, 1930, to May 22,1939, the date of the master’s report, $12,525.38 and the further sum of $27,547, the amount paid for a redemption of the premises from a master’s sale. This sale was provided for in the decree entered in the circuit court of Cook county, Illinois, on February 17, 1934, and interest on this amount at the rate of 5 per cent from November 9, 1938, to May 22, 1939, the date of the master’s report, $738.41, making a grand total due of $61,513.79.

The court directed by its decree that the master in chancery make a sale of the premises secured by the trust deed in question, in accordance with the orders of the court unless the amounts due were paid, and it is from this decree that the defendant John F. Kersey appeals.

It appears from the brief filed by the defendant appellant that no point is raised as to the pleadings, so the question involved is did the court err in its findings and in entering the decree appealed from.

The defendant John F. Kersey contends that Raymond J. Ryan was without right, power or authority to sell the notes and trust deed here involved and Schiff bondholders’ committee by the payment of the $1,500 to Ryan acquired no right, title or interest in or to the mortgage notes and trust deed, and then calls the court’s attention to the facts as they appear in the record, and that the notes and trust deed involved in this case were executed by Frank Schlachter and Agnes Schlachter, his wife, July 15, 1928, the notes aggregating $25,000, and that subsequent payments as required were made to reduce the amount that remained due, $20,600, and the trust deed, the subject of this foreclosure suit, secured the payment of this amount. Subsequently, on the 7th day of December, 1928, Frank Schlachter, Agnes Schlachter and Arnold Schlachter executed their 12 notes aggregating $10,000, the last of which was for $7,800, and matured in one year. G. A. Willard, Inc., loaned on said notes $10,000, and it is urged by this defendant that it received along with said notes as collateral, the trust deed and notes first above mentioned, which are the subject of this foreclose proceeding.

It appears from the evidence of the witness George A. Willard, who testified, that the $10,000 notes were signed and the loan disbursed, and that the trust deed and notes — the subject of this foreclosure, were the collateral; that this is claimed by the question and answer put to this witness : ‘ ‘And the trust deed and the mortgage notes were the collateral? A. That is right. ’ ’

It is further pointed to this record that Arnold Sehlaehter was a witness and this question was asked by the defendant: “At the time that you delivered plaintiff’s JDxhibits 2 to 17 inclusive to George A. Willard, state what, if any, conversation took place.” which was objected to by the plaintiff and the objection was sustained by the court. Thereupon the defendants made an offer of proof that the witness would testify that the plaintiff’s exhibits 2 to 17 inclusive, being certain of the notes, were delivered by him to George A. Willard, that the witness stated to George A. Willard that he was delivering said notes to secure the payment of his notes signed also by Frank and Agnes Sehlaehter, in evidence in the case. So when we consider the entire evidence in the record, it is a disputed question of fact as to whether the notes that are involved in this foreclosure proceeding were collateral to secure the payment of the $10,000 notes signed by Arnold Sehlaehter, Frank Sehlaehter and Agnes Sehlaehter, his wife, as we have stated.

It does appear upon the question as to whether knowledge had been imparted to the plaintiff that the master found that at the time of the purchase of the trust deed and notes by the committee, it did not know of any claim that the trust deed and notes purchased by it had been given as collateral to secure the payment of any other notes, and it is contended by the plaintiff that this finding is not complained of on this appeal, and it does appear from the facts that if Arnold Sehlaehter had any claim against the plaintiff’s notes and trust deed, it is he, and he alone, if anyone, who could raise any claim to them. But even if he could, what defense is urged by the defendant Kersey that might have been availed of by the makers of the notes and trust deed in whose position he is? None is made. So far as the plaintiff and the defendant Kersey are concerned, the equities, if any, of the third person, were latent, and the purchaser of the paper had no notice of such equities. It is suggested by the plaintiff that in the case of Peacock v. Phillips, 247 Ill. 467, upon which the defendant relies, it appears from what the court said in that case that—

“A trust deed or mortgage is not assignable either by the common law or under the statute, and while the assignment of a promissory note secured by mortgage carries with it the mortgage as an incident of the debt, it does so only in equity. When resort is had to a court of equity to enforce the obligation created by the mortgage it will let in any defense which would have been good against the mortgage in the hands of the mortgagee himself, excepting only defenses based on latent equities of third persons of whose rights the assignee had no notice.”

It is also urged by the defendant Kersey that the rule of law is that one purchasing from the holder thereof a note secured by a mortgage or trust deed takes it subject to all defenses, and then urged that by the weight of the evidence it is shown that Seymour W. Schiff knew that Arnold Sehlaehter was the owner of the notes and trust deed in question, and that Raymond J. Ryan held them as security thereof, and from the evidence it appears that the Schiff bondholders’ committee acquired possession of the notes in July, 1937, that the last of the notes matured in 1931, and it follows that these notes were past due when the committee obtained possession of them, and for that reason the Schiff bondholders’ committee is not a holder in due course. Defendant cites a number of cases in support of this rule.

Plaintiff’s reply to the suggestion of the defendant is that while the assignee of a note secured by a mortgage takes the note and mortgage subject to any defenses which are good as against the mortgage in the hands of the mortgagee himself, yet no defense based upon latent equities or third persons, of whose rights the purchaser had no notice, can be availed of by the mortgagor who is held for the full amount of the debt, and plaintiff points to the fact that the master found that at the time of the purchase of the trust deed and notes by the committee, it did not know of any claim that the trust deed and notes purchased by it had been given as collateral to secure the payment of other notes. This finding has not been complained of in this appeal.

Plaintiff further suggests that where notes and trust deed of a third person are pledged as collateral to secure the payment of other notes, the holder thereof has the right to foreclose thereon, and his assignee has the same right, even though he has purchased the collateral separate and apart from the indebtedness it secures with notice of the pledge, and calls attention to the brief of the defendant, and states that in quoting Peacock v. Phillips, 247 Ill. 467, counsel concedes the proposition that “if the collateral security consists of a mortgage, the holder of it has a right to foreclose,” and then the defendant quotes further, “and in such case must account for any surplus above his debt” to the debtor, who in each of the cases cited by the court in that case pledged his own mortgage as security for his own indebtedness.

In the discussion of the questions that have been called to our attention it is well established that the plaintiff in the action before us was fully justified in bringing the foreclosure proceedings that she did, and after considering all the facts as they appear in this record we find that the question about which we are concerned is whether the notes and trust deed that are the subject of the foreclosure proceedings are collateral to the $10,000 note in controversy, and from the facts it does not appear that the court was in error in entering the decree of' foreclosure such as it did enter in the instant ease. As we have indicated, the facts are in dispute. The purpose of the purchase of these notes by the plaintiff, and also the purchase claimed to have been made by the defendant Kersey, is subject to controversy. The purchase of these notes for $1,500 is questioned, and at the same time the purchase by the defendant, who is now in this court on appeal, for $150 of the Arnold Schlachter notes in the sum of $6,354.65, destroyed by Mrs. Victoria Ryan, is also controverted. Whether Mrs. Ryan unintentionally or voluntarily destroyed these notes was a question of fact upon which the master in his report, which was approved by the court, found for the plaintiff on the theory that the evidence was not sufficient to show that the notes were destroyed by Mrs. Ryan without appreciating the fact that they were of value.

The report of the master, approved by the chancellor, is final and conclusive, and the master’s findings are not manifestly against the weight of the evidence. As we have indicated, the questions of fact were controverted, and the evidence sustains the conclusion of the court in its findings of fact in the decree, and these findings will not be disturbed.

For the reasons indicated, we are óf the opinion that the decree should be and it is affirmed.

Decree affirmed.

Denis E. Sullivan, P. J., and Burke, J., concur.


text:
    Wallace J. Goodrich, Administrator of Estate of Frances Goodrich, Deceased, Appellant, v. A. A. Sprague, Appellee.
    Gen. No. 41,006.

      Heard in the third division of this court for the first district at the December term, 1939.
    Opinion filed April 10, 1940.
    Rehearing denied April 24, 1940.
    Topliff & Horween, of Chicago, for appellant; Ralph Horween, Samuel Topliff, Harry M. Plotkin and H. C. Merrick, all of Chicago, of counsel.
    Gardner, Foote, Morrow & Merrick, of Chicago, for appellee; Walter M. Fowler, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This action was instituted by the plaintiff as administrator of the estate of Frances Goodrich, deceased, against the defendant A. A. Sprague, as receiver for the Chicago, North Shore & Milwaukee Railroad Company, to recover damages for the wrongful death of his minor daughter, Frances Goodrich. There was a trial before the court and a jury and a verdict of $5,000 for the plaintiff. The trial court granted defendant’s motion for judgment notwithstanding the verdict, and the plaintiff appeals from this order and judgment.

The facts as stated by the parties to this appeal are that the decedent was killed by a train operated by the defendant in the village of Glencoe where Woodlawn avenue crosses at grade the tracks of both the North Shore electric railroad and the Chicago and Northwestern steam railroad. Both sets of tracks at this point are parallel and run nearly north and south. Woodlawn avenue runs nearly east and west, intersecting the railroad tracks at an angle. The double tracks of the two railroads run parallel to each other from Harbor street, which is about 1228 feet north of Wood-lawn avenue, to a point 878 feet south of Woodlawn avenue, where the Northwestern tracks continue south in a straight line, and the North Shore tracks curve to the east.

At the Woodlawn avenue crossing the distance between the two sets of tracks is 53 feet. The tracks of the Northwestern lie to the west and are on a higher elevation than the North Shore tracks. The difference in elevation between the Northwestern and North Shore tracks is 3 feet 6% inches.

On the north side of Woodlawn avenue are the North Shore passenger station platforms. The local North Shore trains use this station; the express and special trains do not. The station for Northwestern steam trains is at Hubbard Woods, south of Woodlawn avenue. The 'neighborhood east of the tracks is residential, with about four dwellings to the acre, approximately 10 per cent vacant lots and one or two parks. One of these parks extends south from Woodlawn avenue adjacent to the North Shore right of way, and is used as a playground by children. The right of way owned by the North Shore from Woodlawn avenue to the south extends- 52 feet east of the east rail. There are poles, brush, shrubbery and trees on this right of way extending all the way from Woodlawn avenue to Scott avenue. The line of poles is about 7 feet east of the east rail. The line of trees is about 10 or 12 feet further east, ranging from 17 feet to 20 feet east of the North Shore tracks. There is some conflict in the evidence as to how close to the east rail the brush and shrubbery were. According to the plaintiff’s exhibit 3 and the testimony of plaintiff’s witnesses, there was a heavy growth of shrubbery extending fully as far west as the line of poles, and also some bushes between the poles and the tracks. There is evidence offered by the defendant that the brush and shrubbery were about 20 feet from the rail. Defendant’s exhibits in evidence show less brush and shrubbery than plaintiff’s evidence indicates. The pictures in question were taken on July 28, 1937, five days after the event. There is evidence of witnesses who testified that the photographs of the defendant did not correctly portray the crossing as it was on July 23, 1937, because brush and shrubbery had been removed a few days after the event. There are no gates at the crossing. The warning system consists of four signal posts. All four have flashing red lights and two have bells in addition. For convenience, these posts are here designated A, B, C and D. Signal post A is located on the north side of Woodlawn avenue, just east of the North Shore tracks and is equipped with both a bell and flasher. Signal post B is on the south side of Woodlawn avenue, between the tracks of the two railroads, but closer to the North Shore tracks. It has a flasher but no bell. Signal post C is on the north side of Woodlawn avenue, between the two sets of tracks, but closer to the Northwestern tracks, and likewise has a flasher but no bell. Signal post D is located on the south side of Woodlawn avenue, west of the Northwestern tracks, and like post A. has both bell and flasher. Thus the two outside posts have both bells and flashers, while the two inside posts have flashers only. The signals operate as follows : When trains are approaching the crossing on both the North Shore and Northwestern tracks all four signals operate. If only a North Shore train is approaching, then only signal posts A, B and D operate; signal post C does not operate. If only a Northwestern train is approaching, then signal A, C and D operate, that is, signal posts A and D, the ones with the bells, operate whenever a train is approaching the crossing on either railroad; signal post B is actuated only by North Shore trains, and signal post C only by Northwestern trains. The signals are operated automatically by means of electricity. When a train crosses a certain point in the rail, known as a cut-in point, the signals begin to function. The cut-in point for northbound trains on the North Shore tracks is located 1160 feet south of the Woodlawn avenue crossing; this point is south of the curve in the North Shore tracks. The cut-in point for northbound trains on the North Shore tracks is located 1160 feet south of the curve in the North Shore tracks. The cut-in point for northbound trains on the Northwestern tracks is 3072 feet south of the crossing, which is south of the Hubbard Woods station.

Many of the facts concerning the accident are not in dispute, according to the statement of the parties. The time was July 23, 1937, about 6:00 p. m. daylight saving time. It was a clear day; the sun was out but it was beginning to set. Decedent approached the crossing from the east, on the south sidewalk. She was riding a. bicycle, going slowly, and gradually slowed down until she came to a stop with one foot on the pedal of her bicycle and the other on the ground. The front wheel of her bicycle was either just touching the rail or just short of it. The bells at the crossing were ringing as she approached the crossing. They had been ringing for at least five minutes prior to the impact, due in part at least to the presence of a Northwestern steam train, headed north standing at the Hubbard Woods station. Just before the train hit decedent she made an unsuccessful attempt to move back, but it was too late.

There is some conflict in the evidence as»to how long decedent was at the track before she was hit; whether or not the train whistle was blown; how fast the train was going; and how far the train traveled after the brakes were applied. Witnesses Sullivan and Turner testified that decedent was in a stationary position from 15 to 30 seconds before she was hit. Edward Curby, also a witness, corroborates this. He further testified that he saw the girl waiting there, and after the train rounded the curve at Scott avenue he arose from his seat, moved to the edge of the platform, and waved his hand up and down four or five times as a signal to the motorman to blow his whistle. The motorman, Schmidt, testified that he did not see decedent until he was about 150 feet from the crossing, at which time she emerged from behind a tree; she kept coming and stopped near the rail and was only there a very few seconds before he hit her.

There is evidence of "one of the witnesses that no whistle was blown until just about the amount of impact, and there is also evidence by one of the witnesses that he heard no whistle at all before the crash. The motorman testified that he blew four or five short blasts on the whistle as soon as he saw decedent, at which time he was 150 feet from the crossing. The testimony of other members of the train crew, who were on duty in the coaches, tends to corroborate Schmidt’s testimony as to the distance of the train from the crossing when the whistle was blown, but they heard only one blast of the whistle. There is evidence of some of the witnesses who estimated the speed of the train at about 40 or 45 miles an hour. Another witness testified that it was going possibly 45 or 50 miles an hour but he doubted it. There is some disagreement as to how far the train traveled after the accident. The witness Sullivan testified that there were five cars in the train and that it ran 2% to 3 times its length after the accident. Another witness, Curby, agreed that it was a four or five-car train. He was not positive about five, but he was sure there were four cars in it. The length of a car is about 60 feet. The members of the train crew testified that the train consisted of three cars and that it traveled about 500 feet from the point where the brakes were applied to the point where the train came to a stop.

Mrs. G-oodrich, the decedent’s mother, and a school teacher both testified as to the age, experience, intelligence and capacity of the decedent, and it appears that at the time of her death she was 11 years and 3 months old, and was about four feet eleven inches tali'; her hearing and sight were normal; she was a good student, alert and interested in everything, and was a little above the average in intelligence and capacity; she took part in plays, singing, swimming, art and dancing. Decedent had been riding a bicycle ever since she was seven years of age, but it had been only a few months since she had gone any distance from her home. The Goodrich home was in Winnetka, about one block west of the tracks. Decedent had friends who lived east of the tracks some blocks to the south of Wood-lawn avenue, and visited them occasionally, but most of the- time she was taken there by her mother or by the mothers of her friends. It had been only a year since she had been allowed to cross the tracks by herself. Mrs. G-oodrich testified that to her knowledge the only crossing her daughter had crossed on a bicycle was El Dorado avenue in Winnetka, which crosses the tracks of both railroads, and that the El Dorado avenue crossing is protected by gates.

The plaintiff contends that the rule applicable to the instant case is that on defendant’s motion for judgment notwithstanding the verdict, the court may not weigh the evidence but must take as true all the evidence favorable to the plaintiff, together with all legitimate inferences which can be drawn therefrom. This is the rule followed by the courts, and it will be necessary to consider the facts in this case to determine whether the court was in error when judgment for the defendant was entered.

The complaint predicates plaintiff’s right to recover upon the negligence of the defendant, or of his employees, in the following respects: (1) failure to see decedent standing at the crossing, or neglect to warn her of her danger if they did see her; (2) violation of the statute which required defendant to remove all brush, shrubbery and trees from the right of way for a distance of 500 feet from the crossing; (3) failure to blow a whistle; and (4) operation of the train at a rate of speed which was excessive in view of all the surrounding circumstances.

There is evidence in the record from which the jury could find that decedent and her bicycle were in a stationary position, near the east rail, for a period of 15 to 30 seconds before she was struck by the train, and one of the witnesses who testified stated that between the time he saw the train coming around the curve at Scott avenue and the moment of the impact, he got up, walked to the edge of the platform and moved his hand up and down four or five times as a signal to the motorman to blow his whistle.

The first inference to be drawn from the evidence in this record is that since the decedent was in a stationary position at the track for 15 to 30 seconds before she was struck, Schmidt, the motorman, saw her as soon as his train rounded the curve at Scott avenue. The danger of her position was apparent, and, from the evidence of the witness, it appears that the front wheel of her bicycle was either just touching the rail or a few inches from it, and the motorman had notice of her presence, according to the witness who saw the girl, and signaled to the motorman to blow his whistle, but no whistle was blown in time to warn the decedent of her danger. One of the witnesses testified he heard no whistle until just about the moment of the impact. Another witness testified that he heard no whistle at all before the crash, and no doubt that evidence was considered by the jury in reaching its conclusion when the verdict was returned finding the defendant guilty and assessing damages. Then, again, if the motorman did not see Frances Goodrich until he was almost upon her, there is evidence that it was because his view of the crossing was obstructed by the trees, brush and shrubbery growing on the right of way. From the evidence it appears that the brush, shrubbery and trees extended as far as the poles, with some bushes between the poles and the tracks. From the evidence, the motorman admitted that he could not see Frances Goodrich until he was about 150 feet from the crossing because there was a tree there which cut off his vision, and the jury, of course, had the right to consider this evidence on the question of the guilt of the defendant, as charged in the declaration.

It is also suggested by the plaintiff that the jury could draw the inference that the motorman did not see decedent at the crossing nor the witness signaling to him from the station platform, because he was not looking ahead. In view of the neighborhood, the existence of a park adjacent to the right of way in which children played, the absence of gates, and the obstructions to view from the brush, shrubbery and trees, the obligation of due care required the motorman to be on the lookout at this crossing. The failure to lookout, as is suggested by the evidence, was sufficient evidence of negligence.

The statute which provides for the removal of brush, shrubbery and trees from the right of way is as follows:

“Every railroad operating within the State of Illinois shall remove from its right of way at all grade crossings within the State, all brush, shrubbery and trees for a distance of riot less than five hundred feet in either direction from each grade crossing.” (Ill. Rev. Stat. 1939, ch. 111⅔, par. 62, sec. 58 [Jones Ill. Stats. Ann. 112.083].)

While the defendant in effect admitted at the trial that this statute was violated, he contended that the violation was not the proximate cause of the accident. The statute directed that the removal of the brush, shrubbery and trees was to give the motorman an unobstructed view of the crossing, and this would give the motorman an opportunity to discover the presence of people approaching or crossing the tracks, and also would afford to people approaching the crossing an unobstructed view of the tracks and crossing. This brush, shrubbery and trees grew on the defendant’s right of way all the way from Woodlawn avenue south to Scott avenue. From the evidence of a Mr. Young, the village manager of Glencoe, who was a witness, a line of poles stretched along the right of way at about 7 feet from the east rail of the North Shore tracks, and the line of trees was 10 or 12. feet farther east than the poles. The trees were rather large poplars or cottonwoods with low hanging branches, and the underbrush extended fully as far west as the line of trees, if not a little farther. There is also evidence that the shrubbery extended to the telephone poles, and that there were some bushes between the poles and the tracks. That is apparent from plaintiff’s exhibit 3, which is a picture of the surrounding property and the tracks of the defendant company.

It is also suggested by the plaintiff that the proximate causation based upon the violation of the statute can also be predicated upon another factor. Because of the arrangement of the tracks at the crossing and the manner in which the bells and lights operate, it was natural for the decedent to approach the track to see if a train was coming on the North Shore track. There is a distance of 53 feet between the two railroads at the crossing, which is more than ample space in which to stand in safety. The local passenger station for southbound North Shore trains is located in that space. Because of this space in which a person can wait in safety between the two railroads, there is an inducement for a pedestrian or cyclist to regard each set of tracks as a separate crossing, and to pass over each one in turn, after ascertaining that there is no danger on each one separately.

It appears from the evidence that there is a warning signal constructed at this intersection. The two signal posts with the bells (one outside each set of tracks) operate whenever a train is approaching on either railroad. Of the two signals between the two railroads, the one on the north side of Woodlawn avenue, signal C, flashes only when a Northwestern train is approaching, while the one on the south side of Woodlawn avenue, signal B, flashes only when a train is approaching on the North Shore. Neither of these two signals has a bell. The bells on the outside posts sometimes ring- for long periods of time, even though no train is actually approaching the crossing on either railroad, and it appears the reason for this is that the northbound cut-in for Northwestern trains is located south of the Hubbard Wood station and during all the time that a Northwestern train, headed north, is standing at that station the bells at the Woodlawn avenue crossing ring. If one waits, therefore, until the bells stop ringing entirely before crossing either track, he may be marooned there for a long* time, though no train is actually coming. Hence, the natural thing to do is to look to see if a train is coming, and then cross each railroad in turn with safety. From the evidence it appears that on the day of the accident the bells had been ringing for at least five minutes before decedent came to a stop at the crossing, due in part to a Northwestern train standing at Hubbard Woods, headed north. As decedent approached the crossing on the south sidewalk, the signal post in her direct line of vision was post B, and the flasher on it was not operating. This post had no bells. It did not start to flash until some time after she came to a stop, for decedent was at the crossing for 15 to 30 seconds before the accident, and the train would cross the cut-in point, 1160 feet to the south, and reach the crossing in less than 20 seconds. There at the Hubbard Woods station was the Northwestern train which no doubt suggested itself to decedent as the reason for the ringing bells, and when the signal on post B finally did begin to flash, no doubt it escaped decedent’s attention, for the change it created in the environment was slight and hardly noticeable in view of the Northwestern train and the continuous ringing of the bells. It is contended by the plaintiff that because of the violation of the statute in regard to the brush, shrubbery and trees that obstructed her view, it was impossible for the decedent to see down the North Shore tracks to the south without placing herself in a position of danger, and it does not appear that there is any evidence of an indicated point of danger with reference to the position that may be taken in safety by a pedestrian in regard to the distance between the east rail and the safety point on this sidewalk.

The jury had the evidence before it, and no doubt they considered the conditions immediately surrounding the place of the accident and whether the brush, shrubbery and trees interfered with a clear view of the tracks from a point of safety by the decedent.

The plaintiff cites two cases in which the facts are somewhat similar to those in the instant case: Lerette v. Director General of Railroads, 306 Ill. 348; Chicago & E. I. R. Co. v. Keegan, 112 Ill. App. 338. In the Lerette case the court held the mere fact that the plaintiff was violating the law at the time he was injured will not bar his right to recover, unless an unlawful act in some way proximately contributed to the accident, and although the plaintiff’s act in climbing-through a string of cars at a railroad crossing may have been, in violation of a statute or ordinance, it remains a question of fact whether the illegal act was the proximate cause of the injury, and as to whether the negligence of the plaintiff was the proximate cause of the injury is a question of fact for the jury. This in a measure applies to the instant case where it is contended that decedent was guilty of contributory negligence at the time of the accident.

Then again in the Keegan case, the plaintiff attempted to cross over tracks when the gates protecting the crossing were down. He proceeded across the tracks at a crossing, looking straight ahead, and did not notice a flagman who was waving a lighted lantern. The court, nevertheless, allowed plaintiff to recover since the evidence further showed that /the gates at this crossing were frequently kept lowered for long periods of time, even though no train was approaching.

So under the facts and circumstances as they appear in this record it is a question for a jury to determine whether the defendant was guilty of the charges made and the evidence in effect supports the verdict of the jury. When we come to consider the evidence and take as true that favorable to the plaintiff together with all legitimate inferences that can be drawn therefrom, the jury was justified in returning a verdict finding the defendant guilty.

There is evidence in the record that the speed of the train at the time of the accident was 40 to 45 miles an hour, and the evidence as to how far the train traveled after the brakes were applied after the signal was given was a proper subject for the jury, and whether under the circumstances of the giving of a signal and the speed at which the train was traveling there was negligence.

The question of contributory negligence of the decedent who was 11 years of age at the time of the accident, is also a question for the jury. The rule that applies is expressed in the case of Maskaliunas v. Chi cago & W. I. R. R. Co., 318 Ill. 142, where the court said:

“The law is clearly established by great weight of authority, that between the ages of seven and fourteen the question of culpability of the child is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child.” And of course this rule would have to apply to the facts in the case, when we come to consider them, and we are of the opinion that it was for the jury, under the circumstances, to decide whether the decedent was guilty of contributory negligence, and from all the facts and circumstances as they appear in evidence as we have related them here, we are of the opinion that the question of contributory negligence of the decedent was properly for the jury in determining whether the decedent contributed by her acts at the time of the accident to the bringing about of death.

The defendant contends that the court erred in giving erroneous instructions at the request of the plaintiff, one of which is as follows:

“If you believe from a preponderance of the evidence that on or about July 23,1937 Frances Goodrich was struck and killed by a train of the defendant; and if you believe that the death of said Frances Goodrich was proximately caused by the negligence of the defendant as charged in the complaint, then if you also find that Frances Goodrich was both before and at the time of the accident in the exercise of ordinary care for her own safety, you should find the defendant guilty ” And it is contended by the defendant that this instruction does not define the issues between the parties by reference to negligence “as charged in the complaint,” and the case of Lerette v. Director General of Railroads, 306 Ill. 348, is cited, where the Supreme Court said:
“The court should not permit the pleadings in civil actions to be taken by the jury when they retire to consider their verdict and we must assume that the court did its duty in this regard and did not deliver the declaration to the jury.” Also the case of Carnahan v. Public Service Co., 276 Ill. App. 277, and the defendant further contends that there was no instruction given which told the jury what specific charges of negligence were made in the complaint.

The answer of the plaintiff to this suggestion of error is that some of the authorities cited by the defendant do not sustain defendant’s position, and direct our attention to the opening statements of both counsel who told the jury what was charged in the complaint and what the issues were. Plaintiff’s counsel stated:

“We claim in this case, and we expect to prove to you, that the accident was caused in a large part, if not entirely, by the fact that there was a dense thick growth of bushes and shrubbery and undergrowth right on the southeast corner, which obstructed the view of anybody here (indicating) looking south, and which we claim obstructed the view of the motorman looking north.” And the defendant’s counsel stated:
‘ ‘ The charge of negligence in this declaration is — or complaint, rather, that we ran and operated this train at a high, negligent, dangerous rate of speed. That is one charge. The second charge is that we didn’t blow a whistle when approaching the crossing.” and further that the case was submitted to the jury on instructions which strictly defined the issues as follows: Plaintiff’s instruction on the question of brush and shrubbery, followed by the defendant’s instruction in regard to the operation of the train and maintenance of the right of way; also the speed of the train, and the further instruction as to what warning was given and whether the motorman saw or should have seen decedent.

It would appear from these suggestions that the jury was fully informed of the acts of negligence charged against the defendant in the complaint, and that the case was tried upon the issues presented to the jury, and there is the decision of the Supreme Court in the case of Dickson v. Swift Co., 238 Ill. 62, where the court, in part, said:

“It has never been considered reversible error to refer the jury to the declaration unless they are required to determine a question of law as to what are the material allegations. (Fraternal Army v. Evans, 215 Ill. 629) ” and in Belskis v. Dering Coal Co., 246 Ill. 62 :
“Plaintiff in error complains of an instruction given by the court to the effect that defendant in error could recover if the case was proved as alleged in the declaration. While the practice of giving such an instruction is not to be commended, it is not rever sable error where every count in the declaration contains the necessary allegations for recovery.” So, when we consider the instructions as given, we are not inclined, in view of what we have stated, to consider them as reversable error, and we will not reverse this judgment because of the giving of the instructions, but we are inclined to further consider this instruction complained of by the defendant, where the court said:
“The court instructs you that while the plaintiff must prove his case as charged in the complaint by a preponderance of the evidence, still the proof need not be the direct evidence of persons who saw the occurrence sought to be proved; but facts may also be proved by circumstantial evidence, that is, by proof of circumstances, if any, such as give rise to a reasonable inference in the minds of the jury of the truth of the facts alleged and sought to be proved, provided such circumstances, together with all the evidence in the case, constitute a preponderance of the evidence.”

The plaintiff points to a number of facts that appear in the record regarding this question, and contends that the instruction was proper, in view of the facts and considering the distance the train ran before coming to a stop and the evidence as to the length of time it would take for a train going 40 miles an hour to stop, and no doubt the jury considered the distance the decedent was thrown by reason of the impact in view of the testimony of the defendant’s witnesses as to whether the brakes were applied 150 feet south of the crossing, and contends that facts like these justified the giving of this instruction.

Other questions are raised regarding the giving of the instructions and we have considered them carefully and are of the opinion that the giving of the instructions was not erroneous, and that the judgment entered by the court was justified.

There is also complaint that the court admitted improper and prejudicial evidence in admitting plaintiff’s exhibit 3, which was a photograph showing the crossing where the accident happened. It was taken on the evening after the accident by a reporter of the Chicago Tribune, and there is complaint regarding the location of the camera north of the crossing and pointing in a southeasterly direction. The camera was across the tracks, opposite from where the accident happened, and as stated by the defendant, the plaintiff asked the court to admit the picture for the purpose of showing the condition of the crossing and the shrubbery and trees at the southeast corner, and it was admitted in evidence after the court stated the purpose of the photograph. We are not impressed with the theory upon which it is contended that it was error to admit this photograph in evidence.

We might further add that this photograph, plaintiff’s exhibit 3, was admittedly the only photograph showing the condition of the brush and shrubbery which was taken at the same time as the occurrence, and this is sustained by the evidence of witnesses who testified that the photograph correctly showed the physical condition and appearance of the shrubbery at the time of the occurrence, and then it is to be noted that the defendant’s pictures, admittedly taken five days later, from the evidence of three disinterested witnesses, did not correctly show the condition of the brush and shrubbery at the time of the occurrence, because it had been cut down in the intervening period, and it does not seem that the defendant is in a position to complain because the pictures he offered and were admitted in evidence showed there had been a change of condition from that of the day of the occurrence.

In view of the conclusion we have reached, the judgment of the court will be reversed and judgment entered in this court upon the verdict of the jury in the sum of $5,000.

Upon a like question this court in the case of Russell v. Richardson, 302 Ill. App. 589, entered judgment for the plaintiff, notwithstanding the verdict of the jury was reversed in the trial court. See also Martin v. Sixty-Third & Halsted State Sav. Bank, 299 Ill. App. 123.

Judgment reversed and judgment here.

Denis E. Sullivan, P. J., and Burke, J., concur.


author: Justice John J. Sullivan.

text:
    Ruth Hornstrom, Appellee, v. Beverly State Savings Bank of Chicago, Defendant. Home of Rest, The Swedish Baptist Home for the Aged-Fridhem, Appellant.
    Gen. No. 40,383.
    Heard in second division, first district, this court at October term, 1938;
    opinion filed April 2, 1940.
    Ernest A. Eklund, for appellant;
    John N. Thornburn, of counsel;
    Miller, Kamenear & Margolis, for appellee;
    Leon N. Miller and Nunzio Giam-balvo, of counsel.
   Opinion by Presiding

Justice John J. Sullivan.

‘ ‘Not to be published in full.”


text:
    James R. Cardwell, Appellant, v. Sam Feldman, Trading as Del Ruth Hat Company, Appellee.
    Gen. No. 40,413.
    Heard in second division, first district, this court at October term, 1938;
    opinion filed April 2, 1940.
    Markheim, Parker & Miller, for appellant;
    Wallace R. Sollo, of counsel;
    Shulman, Shulman & Abrams, for appellee;
    Meyer Abrams, of counsel.
   Opinion by Presiding

Justice John J. Sullivan.

‘ ‘Not to be published in full.”


text:
    Isadore Becker, Appellee, v. Loebs Insurance Agency Company, Appellant. Moses Baum, Appellee.
    Gen. No. 40,852.
    Heard in second division, first district, this court at October term, 1939;
    opinion filed April 2, 1940.
    Delos De John and Adolf Loeb, for appellant;
    Isador Becker, pro se;

    Kellam Foster, for appellee Moses Baum.
   Opinion by Presiding

Justice John J. Sullivan.

‘‘Not to be published in full.”


text:
    Anna Poulopoulos, Administratrix of Estate of Dr. Andreas I. Poulopoulos, Deceased, Appellee, v. Hellenic Brotherhood “Messenia,” Appellant.
    Gen. No. 41,130.

      Heard in second division, first district, this court at February term, 1940;
    opinion filed April 2, 1940.
    Louis N. Blumen-thal and Donald T. Winder, for appellant;
    Theodore N. Constant and Krohn & MacDonald, for appellee;
    Stuart B. Krohn and Ian P. MacDonald, of counsel.
   Opinion by Presiding

Justice John J. Sullivan.

“Not to be published in full.”


author: Justice Friend.

text:
    Paul A. Corso, Trading as Royal Smart Shoe Company, Appellee, v. Albert J. Horan and Dorothy Sher-win, Appellants.
    Gen. No. 40,450.
    Heard in second division, first district, this court at December term, 1938;
    opinion filed April 2, 1940
    rehearing denied April 23, 1940.
    L. A. Sherwin, for appellants;
    Freeman & Freeman, for appellee;
    Earl Freeman, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full. ’ ’


text:
    Lizzie Schaberg, Appellee, v. John Hancock Mutual Life Insurance Company, Appellant. .
    Gen. No. 40,688.

      Heard in second division, first district, this court at April term, 1939;
    opinion filed April 2, 1940.
    Hoyne, O’Connor & Rubinkam, for appellant;
    Nathaniel Rubinkam and James C. Rich, of counsel;
    Sol R. Friedman and I. S. Friedman, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Joseph Krammer, Appellee, v. A. L. Meltzer and Krammer Fur Company, Appellants.
    Gen. No. 40,699.
    Heard in second division, first district, this court at April term, 1939;
    opinion filed April 2, 1940
    rehearing denied April 23, 1940.
    Harold A. Fein, for appellants;
    Edward S. Altersohn, of counsel;
    Bernstein, Zoila & Bernstein, for appellee;
    Arthur J. Bernstein, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.’’


text:
    Nicholas Merenkow, Administrator of Estate of John Merenkow, Deceased, Appellant, v. Guy A. Richardson et al., Appellees.
    Gen. No. 40,720.

      Heard in second division, first district, this court at June term, 1939;
    opinion filed April 2, 1940.
    Mitchell Kilanowski, for appellant;
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellees;
    John R. Guilliams, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Ray Brandt, Trading as Brandt Dairy, Appellee, v. International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local 721, et al., Defendants, and Dairy Employees Union, Local 754, et al., Appellants.
    Gen. No. 41,155.
    Heard in second division, first district, this court;
    opinion filed April 2, 1940.
    Ross & Berchem, for appellants;
    William H. Sloan, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Justice Scanlan.

text:
    Clara Warneke, Administratrix of Estate of Frank Warneke, Deceased, Appellee, v. Henry A. Tors-tenson, Appellant.
    Gen. No. 40,272.
    Heard in second division, first district, this court at October term, 1938;
    opinion filed April 2, 1940.
    Robertson, Crowe & Spence, for appellant;
    Burt A. Crowe, of counsel;
    McKenna & Harris, for appellee;
    James J. McKenna, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Peter J. Kasper (Mary Kasper, Assignee of Peter J. Kasper and Administratrix of Estate of Peter J. Kasper), Appellant, v. Durand-McNeil-Horner Company et al., Appellees.
    Gen. No. 40,469.

      Heard in second division, first district, this court at October term, 1938;
    opinion filed April 2, 1940.
    Charles M. Haft, for appellant;
    W. A. Morrow and Isham, Lincoln & Beale, for appellees.
   Opinion by

Justice Scanlan.

‘ ‘Not to be published in full.”


text:
    People of the State of Illinois ex rel. Leona Lesner, Plaintiff, v. Gus Vacianos, Appellee. Leona Lesner, Appellant.
    Gen. No. 40,730.
    Heard in second division, first district, this court at June term, 1939;
    opinion filed April 2, 1940.
    Oahen, Sullivan, O’Toole & Sullivan, for appellant;
    John E. Grahen, of counsel;
    Lawrence E. Dowd, for appellee.
   Opinion by

Justice Scanlan.

‘‘Not to be published in full.”


text:
    Victoria Burnham et al., Appellees, v. Frank R. Cote et al., Appellees. Ralph Cotugno and N. Salvatori, Trading as Midwest Granite and Marble Works, Appellants.
    Gen. No. 41,060.

      Heard in second division, first district, this court at October term, 1939;
    opinion filed April 2, 1940.
    Irving Breakstone, for appellants;
    Feigen & Feigen, Harry S. Harned, C. Jerome Bisesi and West & Eckhart, for certain appellees;
    Arthur P. Feigen and John Heal Campbell, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.’’


author: Justice Matchett.

text:
    Michael Taheny, Appellee, v. The Catholic Bishop of Chicago, Appellant.
    Gen. No. 40,805.
    ■ Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940;
    rehearing denied April 22, 1940.
    Sheehan & Egan, for appellant;
    Roy J. Egan, of counsel;
    Edward J. Kowalski, for appellee.
   Opinion by Presiding

Justice Matchett.

“Not to be published in full.’ ’


author: Justice Hatchett.

text:
    Josephine Cardemone and Theresa Alfieri, Plaintiffs. Dominic Guiliano, Intervening Plaintiff, Appellee, v. Supreme Forest Woodman Circle et al., Defendants. Marie Meyers, Appellant.
    Gen. No. 40,931.
    Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940.
    Weber & Weber, for appellant;
    Abrams & Abrams, for appellee;
    Irving I. Abrams, of counsel.
   Opinion by Presiding

Justice Hatchett.

“Not to be published in full.”


text:
    Chicago Art Marble Company, Appellee, v. A. Smith and Company, Appellant.
    Gen. No. 40,994.

      Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940;
    rehearing denied April 22, 1940.
    Hyman Soboroff, for appellant;
    Lederer, Livingston, Kahn, Adler & Adsit, for appellee.
   Opinion by Presiding

Justice Matchett.

“Hot to be published in full.”


author: Justice O’Connor.

text:
    In re Estate of Katherine W. Franklin, Deceased. Ben Franklin, Objector, Appellant, v. Mamie Schlesinger, Claimant and Administratrix With Will Annexed, Appellee.
    Gen. No. 40,785.
    Heard in first division, first district, this court at June term, 1939;
    opinion filed April 8, 1940.
    Arthur J. Goldberg, for appellant;
    Arthur J. Goldberg and Leonard G. Hierman, of counsel;
    Julius H. Miner and Henry Perlman, for appellee.
   Opinion by

Justice O’Connor.

“Hot to be published in full.”


author: Justice O'Connor.

text:
    Harriet B. Grice, Appellee, v. Joseph H. Grice, Appellant.
    Gen. No. 40,816.
    Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940.
    Harry A. Silverstein, for appellant;
    Ben Capple and Meyer Silver-stein, of counsel;
    James W. Milne, for appellee;
    Leo J. Bartoline, of counsel.
   Opinion by

Justice O'Connor.

“Not to be published in full. ’ ’


text:
    David Goldstein, Appellant, v. The Pullman Company et al., Appellees.
    Gen. No. 40,837.
    Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940
    rehearing denied April 22, 1940.
    Irving G. Zazove, for appellant;
    C. D. Clark and E. W. Lademann, for appellees.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    Henry L. Kane and John E. Northrup, Appellees, v. Nathan Borin, Appellant.
    Gen. No. 40,846.
    Heard in first division, first district this court at October term, 1939;
    opinion filed April 8, 1940.
    John M. Tuohy, for appellant;
    Frank J. Jacobson, f.or appellees.
   Opinion by

Justice O'Connor.

“Not to be published in full.”


text:
    Robin P. Allen, Appellant, v. 220 East Walton Place Building Corporation et al., Appellees.
    Gen. No. 40,854.

      Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940.
    Shulman, Shulman & Abrams, for appellant;
    Meyer Abrams, of counsel;
    Gottlieb & Schwartz, Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellees;
    Claude A. Roth and Harry E. Smoot, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published, in full.”


text:
    People of the State of Illinois, Defendant in Error, v. August Lockefeer, Plaintiff in Error.
    Gen. No. 40,875.
    Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940.
    Joseph A. Ricker, for plaintiff in error;
    Thomas J. Courtney, State’s Attorney, for defendant in error;
    Edward E. Wilson, John T. Gallagher, Blair L. Varnes and .Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    Dorothy Goodman, Appellant, v. Melvin Goodman, Appellee.
    Gen. No. 40,884.
    Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940.
    Allan R. Bloch, for appellant;
    Arthur J. Hoffman, of counsel;
    William Feldman, for appellee.
   Opinion by

Justice O’Connor.

“Hot to be published in full.”


author: Justice O’Con-nor.

text:
    M. F. Unger, Appellee, v. Dr. Hartnack Exterminating Service, Inc., Appellant.
    Gen. No. 40,893.
    Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940.
    Albert E. Hallett, Jr., for appellant;
    Miles Wlodek, for appellee.
   Opinion by

Justice O’Con-nor.

“Hot to he published in full.”


text:
    Dorothy Russell, Appellee, v. Frances Merle Long White, Individually and as Administratrix With Will Annexed of Estate of Carl M. White, Deceased, Appellant.
    Gen. No. 40,904.
    Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940.
    Donald J. Seeley, for appellant;
    Oscar Wyclif Harman, for appellee.
   Opinion by

Justice O'Connor.

“Not to be published, in full.’’


text:
    Jeanette Edwin, Appellee, v. Arthur C. Edwin. Clarence W. Shaver, Appellant.
    Gen. No. 40,960.
    Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940.
    Clarence W. Shaver, pro se.

    No appearance for appellee.
   Opinion by

Justice O’Connor.

‘ ‘Not to be published in full. ’ ’


author: Justice 0’Connor.

text:
    Chicago Title and Trust Company, Trustee, Appellee, v. Charles J. Routte et al., Appellees. Appeal of Steven U. Brooks, Intervening Petitioner, Appellant.
    Gen. No. 40,998.
    Heard in first division, first district, this court at October term, 1939;
    opinion filed April 8, 1940.
    Campbell, Clark & Miller, for appellant;
    Richard C. Bleloch and Fred A. Bowes, of counsel;
    A. Edmund Peterson, Perry Brelin, Arthur F. McCormick and George I.
    Spensley, for certain appellee;
    George T. Spensley, of counsel;
    Gustave B. Ehnborn, for certain other appellees;
    Gustave B. Ehnborn, of counsel.
   Opinion by

Justice 0’Connor.

“Not to be published in full.’’


author: Justice Denis E. Sullivan.

text:
    Augustus H. Grunewald, Jr., Administrator of Estate of Augustus H. Grunewald, Deceased, et al., Appellees, v. City of Chicago, Appellant.
    Gen. No. 40,090.

      Heard in third division, first district, this court at April term, 1938;
    opinion filed April 10, 1940.
    Barnet Hodes, Corporation Counsel, for appellant;
    Alexander J. Resa and L. Louis Karton, Assistant Corporation Counsel, of counsel;
    Urion, Bishop & Sladkey, for appellees;
    Howard F. Bishop, of counsel.
   Opinion by Presiding

Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    Anna Yunger, Appellant, v. Jennie E. Yunger, Appellee.
    Gen. No. 40,835.
    Heard in third division, first district, this court at October term, 1939;
    opinion filed April 10, 1940.
    Levy, Seltzer & Levy, for appellant;
    S. B. Rosenzweig, of counsel;
    Arthur Grossman, for appellee.
   Opinion by Presiding

Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    Chicago Title and Trust Company, Appellee, v. Chief Wash Company, Appellant.
    Gen. No. 40,853.

      Heard in third division, first district, this court at October term, 1939;
    opinion filed April 10, 1940.
    R. A. Bierdemann and Paul C. Meier, for appellant;
    Defrees, Buckingham, Jones & Hoffman, for appellee;
    Don Kenneth Jones and Vincent O’Brien, of counsel.
   Opinion by Presiding

Justice Denis E. Sullivan.

“Not to be published in full.”


author: Justice Burke.

text:
    Live Stock National Bank of Chicago, Administrator of Estate of Ignazio Migliorisi, Appellee, v. Guy A. Richardson, Receiver et al., Appellants.
    Gen. No. 40,963.
    Heard in third division, first district, this court at October term, 1939;
    opinion filed April 10, 1940.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellants;
    John R. Guilliams, of counsel;
    V. Russell Donaghy, for appellee;
    David A. Schallman, of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.”


text:
    James Harris, Trading as Harris Electric Supply Company, Appellee, v. G. M. McKnight, Trading as G. M. Manufacturing Company, Appellant.
    Gen. No. 41,036.
    Heard in third division, first district, this court at December term, 1939;
    opinion filed April 10, 1940.
    Allen & Darlington, for appellant;
    Glynn J. Elliott, of counsel;
    Irving H. Weiss, for appellee.
   Opinion by

Justice Burke.

“Not to be published in full.”


text:
    Christ Lilleskau, Appellee, v. John Marubio, Appellant.
    Gen. No. 41,064.

      Heard in third division, first district, this court at December term, 1939;
    opinion filed April 10, 1940.
    Sumner C. Palmer, for appellant;
    Irving S. Roth, for appellee.
   Opinion by

Justice Burke.

“Not to be published in full.”


text:
    Emma L. Morrissey, Appellee, v. Raymond L. Morrissey, Appellant.
    Gen. No. 41,071.
    Heard in third division, first district, this court at December term, 1939;
    opinion filed April 10, 1940.
    Rathje, Hinckley, Barnard & Kulp, for appellant;
    Francis E. Hinckley, of counsel;
    Diteh-burne & Lounsbury, for appellee;
    Harry S. Ditchburne and Philip H. Kelley, of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.”


author: Justice Hebel.

text:
    Socorro Gasca, Appellee, v. Celestine Grossman, Trustee et al., Appellants.
    Gen. No. 40,910.

      Heard in third division, first district, this court at October term, 1939;
    opinion filed April 10, 1940.
    Cassels, Potter & Bentley, for appellants;
    Ralph F. Potter, Leslie H. Vogel and Horace G. Marshall, of counsel;
    Alfred M. Loeser and Peter S. Sarelas, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    Mildred Plunkett, Appellee, v. Haldane M. Plunkett, Appellant.
    Gen. No. 40,959.
    Heard in third division, first district, this court at October term, 1939;
    opinion filed April 10, 1940.
    Nicholas A. Socrates, for appellant;
    William J. Popper, for appel-
    lee.
   Opinion by

Justice Hebel.

“Not to be published in fuU.”


author: Justice Hebbl.

text:
    Henry Seego, Appellee, v. F. C. Owen and E. Boughan, Individually and as a Partnership Trading as Roseland Motor Sales, Appellants.
    Gen. No. 40,993.

      Heard in third division, first district, this court at October term, 1939;
    opinion filed April 10, 1940.
    Immenhausen & Banovitz, for appellants;
    Meyer O. Balin, of counsel;
    Stephen T. Powers, for appellee;
    F. Frank Leali, of counsel.
   Opinion by

Justice Hebbl.

‘ ‘Not to be published in full.”


text:
    Marian Segal, Also Known as Marian Seeger, Appellee, v. Louis Feinberg and Benjamin E. Segal, Also Known as B. Edward Seeger, Defendants. Appeal of Louis Feinberg, Appellant.
    Gen. No. 41,015.
    Heard in third division, first district, this court at December term, 1939;
    opinion filed April 10, 1940
    rehearing denied April 24, 1940.
    Julius L. Kabaker, for appellant;
    Gilruth, Beck & McConnell, for appellee;
    Alfred Beck and Milton S. Applebaum, of counsel.
   Opinion by

Justice Hebel.

‘ ‘Not to be published in full.’ ’


author: Mr. Justice Culbertson

text:
    George L. Gillham et al., Appellants, v. Helen E. Troeckler, Appellee.
    Heard in this court at the October term, 1939.
    Opinion filed January 22, 1940.
    Hiles & Newell, of Edwardsville, for appellants.
    L. H. Holland, of Wood River, and Wilbur A. Trares, of Edwardsville, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order or judgment of the circuit court of Madison county, Illinois entered on December 30, 1938, which vacated and set aside a judgment by confession which had been entered on May 3, 1938.

On May 3, 1938, the plaintiffs appellants, George L. Gillham, Gustave Bangert, Elmer G. Wolf, B. T. Albers, R. McGowen and Leonard Hoehn (hereinafter referred to in this opinion as plaintiffs), secured a judgment on a narr and cognovit against Helen E. Troeckler, defendant appellee (hereinafter referred to in this opinion as defendant), in the sum of $4,445. This judgment was predicated upon a promissory note drawn in favor of the Bank of Edwardsville, for the principal sum of $3,800, dated April 6, 1937, and due six months thereafter. There appeared on the face of said note as makers of said note, all of the plaintiffs herein, and Helen E. Troeekler, defendant herein, and Harry G. Troeekler, who is now deceased, and one Bay Koesterer, who is not a party to this suit. The face of the note bears the following stamp or indorsement in two places, “Paid by renewal, November 2, 1937”; on the reverse side of said note there appears the following indorsement, “Nov. 2, 1937, Paid 6 Mos. Int. to Oct. 6, 1937 $114.00 By the Co-makers of this note,” and there also appears on the back of said note an assignment, which is as follows: “This note having been paid by renewal note signed only by Bay Koesterer, Gustav H. Bangert, Ben T. Albers, Elmer G. Wolf, George L. Gillham, Leonard Hoehn, Bichard McGowan, accommodation signers for $3,800.00, and they having paid interest of $114, this note, for value received, is hereby delivered ánd assigned to the above named accommodation signers, without recourse. Signed, The Bank of Edwardsville, Edwardsville, Illinois by Leo W. Dustmann, Cashier. ’ ’ The record discloses that the plaintiffs herein, together with Bay Koesterer, executed a new note dated October 6, 1937, for $3,800, and delivered the same to the Bank of Ed-wardsville as payee, and on November 2, 1937, the payee, the Bank of Edwardsville, accepted the new note, or renewal note, as payment of the original note and surrendered the original note.

On the 4th day of May, 1938, the affidavit of Emma Werner Wolf was filed in the office of the clerk of the circuit court of Madison county, Illinois, which set out the securing of the judgment hereinbefore set forth, and the issuance of an execution thereon, and the return of said execution “No property found,” and that she believed the Metropolitan Life Insurance Company to be indebted to Helen E. Troeekler and to have effects of said Helen E. Troeekler in its possession, custody, and charge, and prayed that the Metropolitan Life Insurance Company be summoned personally to be and appear before the court on the 6th day of June, 1938 as garnishee, agreeable to law.

On the 2nd day of June, 1938, an answer was filed on behalf of Christ Hackethal, setting up his claim to the proceeds of the insurance policies sought to be garnisheed by Emma Werner Wolf, and on the same date, an answer was filed on behalf of one Harry Marks wherein he claimed an interest in the proceeds of said insurance policies by reason of having rendered services and furnished materials in connection with the burial of Harry G-. Troeekler.

On the 3rd day of June, 1938, a motion to vacate the judgment heretofore rendered against her on May 3, 1938 was filed on behalf of Helen E. Troeekler, and as grounds for said motion she set forth, with other reasons, that the court was without jurisdiction to render a judgment at the time and in the manner said judgment was rendered; and that the note on which judgment had been confessed was marked on its face, “Paid by renewal, November 2, 1937”; and that the defendant signed the note as a surety with the plaintiffs herein and one Bay Koesterer; and that she had never received any part of the money for which the note was given; and that said note showed that it had been fully paid by a renewal note and thereby became fully extinguished; and that the alleged assignment on the back thereof was wholly without consideration; and that the warrant of attorney did not authorize one or any of the cosigners of said note to confess a judgment against another cosigner; and that said warrant of attorney of the defendant became absolutely void and inoperative when the note was discharged and satisfied by the original payee, the Bank of Edwards-ville; and that the plaintiffs have no right or cause of action to maintain a suit on the note, but may only, if at all, sue for contribution; and that Bay Koesterer, one of the joint assignees, was not made a party to this cause; and that the plaintiffs are estopped by operation of law from maintaining their action because there is an implied contract between all of the co-sureties to the note that each shall bear the burden equally and, therefore, one or more of the cosureties may not maintain a suit against another or others of the cosureties for the full amount of the obligation; and that she has a good and meritorious defense to said suit; and to support her position she files with her motion the affidavits of herself and Ray Koesterer; and she, in said motion, prayed that the judgment be vacated for want of jurisdiction and the suit dismissed, and in the event such relief was not granted to her, that the judgment be vacated and the defendant permitted to file her answer. In support of said motion to have said judgment vacated, Helen E. Troeckler filed therewith her affidavit, and also the affidavit of Ray Koesterer.

On September 13, 1938, a motion to vacate the judgment entered on May 3, 1938 was filed on behalf of Christ Hackethal, and with same was filed the supporting affidavit of Helen E. Troeckler, and in said motion said Christ Hackethal claims to be entitled to the proceeds of the life insurance policies sought to be garnisheed, as an assignee of Helen Troeckler, who was named as the beneficiary therein.

On September 23,1938, a motion to strike the motion and affidavit of Christ Hackethal was filed by the plaintiffs herein, and on the same date the court heard the motion to open, or to vacate the judgment rendered on May 3, 1938, and.also the motion to strike said motion filed by Christ Hackethal, and took said matters under advisement. On December 30, 1938, the court allowed the motion to vacate the judgment by confession entered on May 3, 1938, and said judgment was on said date vacated and set aside and held for naught; and on the same date the court denied the motion to strike the original motion to vacate the judgment. An examination of the transcript in this case discloses that no counter-affidavits were filed in this case.

It is contended by the plaintiffs herein that they, and Bay Koesterer, signed the note in question as accommodation signers, with Helen E. Troeckler and Harry G. Troeckler as principals thereon, and that having paid said note to the payee therein named by giving said payee a new note, and having taken an assignment of the old note, that they can now take judgment by confession against the defendant herein. With this contention we cannot agree, nor has any authority been called to our attention that gives that right. The plaintiffs herein, having paid the note, cannot now sue the defendant herein on said note as suit may not be maintained on the note by one comaker who has paid the note, or to whom it has been assigned, against another comaker (11 Corpus Juris, sec. 750; Gillett v. Sweat, 1 Gilman (Ill.) 475; Snell v. Davis, 149 Ill. App. 391; Curley v. Ford, 168 Ill. App. 525), The redress afforded a comaker is not on the instrument itself, but is based on an implied contract for indemnity or contribution (Trego v. Estate of Cunningham, 267 Ill. 367).

An application to vacate a judgment by confession where the record shows such judgment to be void is not an application to the equitable powers of the court, and it is not necessary for the mover to file an affidavit of merits, or make defense upon the merits, but he need only to call the attention of the trial court to the lack of jurisdiction to enter the judgment (Genden v. Bailen, 275 Ill. App. 382; Solomon v. Dunne, 264 Ill. App. 415; Merrion v. O’Donnell, 279 Ill. App. 435).

A consideration of this case brings us to the conclusion that the action of the trial court in vacating and setting aside and holding for naught the judgment by confession entered on May 3, 1938, was correct and proper, and the same is, therefore, accordingly affirmed.

Affirmed.