text:
    People of the State of Illinois ex rel. Ernest Palmer, Acting Director of Trade and Commerce of the State of Illinois, v. Fort Dearborn Insurance Company and H. B. Hershey, Receiver, Appellee. Appeal of Jesse H. Lowe et al., Appellants.
    Gen. No. 41,143.
    Opinion filed November 20, 1940.
    Burry, Johnstone, Peters & Dixon, of Chicago, for appellants; Arthur Dixon and John C. Trussell, of Chicago, of counsel.
    Smietanka, Conlon & Knaus, of Chicago, for appellee; John T. Conlon, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This cause comes before us on an appeal brought by the claimants herein, Jesse H. Lowe, A. H. Beau-champ, Joe Roark, R. C. McLaughlin and A. R. Wynn, from a decree entered in the circuit court disallowing said claims, as had been recommended by the master’s report.

Appellee’s brief states, “appellants’ statement of the case is fair,” so we shall construe that to mean correct, and proceed upon that theory.

It appears that the claimants aforesaid each filed a claim against the Fort Dearborn Insurance Company, said company having been placed in a receivership May 15, 1933, pursuant to the liquidation laws of the State of Illinois. The claims were recommended for disallowance by H. B. Hershey, receiver of the insurance company, and were referred to a master in chancery for the taking of proofs and for his report and recommendations. Said master recommended that the claims be disallowed and the master’s report was confirmed by decree entered in the circuit court on August 14, 1939.

It further appears that the claimants duly filed proof of claim with the receiver; that each proof of claim was in the form of an affidavit, together with a certified copy of judgment obtained by claimant against F. W. Currey, who was insured by Fort Dearborn Insurance Company; that subsequently additional affidavits, documents and testimony were offered in evidence in support of the claims; that the receiver or his attorney made no objection to the character, form or manner of proof and no issue is raised on the pleadings.

Claimants’ theory of the case is that the claims should be allowed because they are based upon judgments obtained against F. W. Currey, an insured of Fort Dearborn Insurance Company, and that such claims arose out of the causes insured against in the insurance policy issued by said company, and for which under the law of Missouri the Fort Dearborn Insurance Company is liable to the claimants as insured third parties.

The receiver’s theory of the case is that the claims should be disallowed because the Missouri statutes in question did not create a direct claim in favor of the claimants until after judgment had been entered against the insured, and although the suits against the insured were pending prior to May 15, 1933, the judgments were not entered until after May 15, 1933, which was the date of the appointment of the receiver for the insurance company. It is, therefore, the contention of the receiver that all of the claims were contingent and not provable at the date of receivership.

It further appears from the evidence that under date of March 1, 1932, Fort Dearborn Insurance Company issued in the State of Missouri its policy No. A-813783 to F. W. Currey, a resident of Kansas City, Missouri, insuring him against liability and losses arising out of automobile accidents. The policy was in full force and effect for the period from March 1, 1932 to March 1, 1933.

It further appears that on or about August 19, 1932, Currey, the insured, was involved in an automobile accident, as a result of which the claimants herein suffered certain injuries, and on October 28, 1932, each of said claimants commenced suit against Currey in the circuit court of Jackson county, Missouri: that Currey, the insured, filed an appearance and an answer in each of said cases and was represented therein by local attorneys in Kansas City, Missouri, for the Fort Dearborn Insurance Company; that defendant failed to appear at the trial of the case, and after due hearing and the introduction of evidence, judgments in each of the cases were entered against F. W. Currey, as follows:

Judgment in favor of Jesse H. Lowe, in the amount of $3,087.50, entered February 23, 1934;

Judgment in favor of A. H. Beauchamp, in the amount of $3,000, entered February 23, 1934;

Judgment in favor of B. C. McLaughlin, in the amount of $3,000, entered March 1,1934;

Judgment in favor of A. B. Wynn, in the amount of $3,000, entered February 23, 1934;

Judgment in favor of Joe Roark in the amount of $3,000, entered February 23, 1934.

On the petition filed and by an order entered in these proceedings on March 29,1934, claimants were allowed to file their claims and the time to file claims was extended to April 5, 1934. Each of the claims was forwarded to the receiver by registered mail on or about March 29, 1934, and the fact of filing acknowledged by the receiver. Subsequently, the time for filing the claims in the receivership proceeding was extended to include February 28, 1935. The records in this case indicate that the receivership proceedings for the liquidation of the Fort Dearborn Insurance Company were commenced May 9, 1933, and the receiver appointed and an order of liquidation entered on May 15, 1933.

Section 5898 of the Revised Statutes of Missouri, 1929, reads in part as follows: “ ... whenever a loss occurs on account of a casualty covered by such contract of insurance, the liability of the insurance company, if liability there be, shall become absolute, and the payment of said loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, or damage, or death, ...”

Section 5899 thereof, provides as follows:

“Judgment creditor may collect insurance, when.— Upon the recovery of a final judgment against any person, firm, or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death, or damage to property if the defendant in such action was insured against said loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurance company, person, firm or association as described in the preceding section, and the defendant, applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor may proceed in equity against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment.”

In construing these sections of the statute we find that in the case of Schott v. Continental Auto Ins. Underwriters, 326 Mo. 92, 31 S. W. (2d) 7, an injured third party recovered a judgment against an insured and then brought a direct suit against the insurance company to collect the insurance money. The court held that the suit might be maintained and that no garnishment or other supplemental proceedings were necessary and that (1) whenever a loss occurs the liability of the insurer to the insured becomes absolute whether or not the insurer pays the judgment against him; (2) the third party has a right to maintain a suit directly against the insurer to collect the insurance money; (3) the third party has a lien on the insurance. The court also said at page 12: “the obligation . . . of the insurer to pay accrues the moment judgment against the insured has been rendered. . . . the Act provides that upon the recovery of a final judgment against the insured, the insurance money shall be applied to the satisfaction of such judgment. . . .

“ ‘The second section establishes a temporary lien in favor of one, who has put the damages ... in the form of a judgment, on the amount due under the policy as between the insured and the insurer. It also affords him the usual remedies of a judgment creditor.’ ”

Lajoie v. Central West Casualty Co. of Detroit, Mich., 228 Mo. App. 701, 71 S. W. (2d) 803, is another case involving statutes and the court in that case rejected the contention that the statute created an “exclusive remedy” and upheld the third party’s right to proceed by garnishment if he so chose. The court in that case said at pages 812 and 814: ‘ ‘ The Act merely afforded a new remedy through' equity.

“The result of the statute is to impound the indebtedness due the assured from the insurer for the purpose of satisfying the assured’s indebtedness to the judgment creditor, and, while so impounded, to enforce its application to such satisfaction.”

The State of Massachusetts has a similar statute after which the Missouri statute was patterned. In the case of Lorando v. Gethro, 228 Mass. 181, 117 N. E. 185, the court in interpreting the Massachusetts statute, said at page 188: “The instant statute is similar in this respect to St. 1907, c. 576, § 73, whereby there is given to a beneficiary under life insurance policies a vested interest and right of direct action on the contract of insurance against the insurer, though no party to it. . . . It merely enables the person suffering the initial damages, out of which grows the loss to the insured, to acquire a lien against the loss and the right to damages or indemnity arising under the policy, and to enforce it in his own name.”

It also appears from the record that there was introduced in evidence an opinion of counsel that under the statutes and laws of the State of Missouri the claims against F. W. Currey, by reason of his insurance with Fort Dearborn Insurance Company, became and were direct claims against the insurer. No contradictory evidence was introduced in this regard.

The record further shows that the Fort Dearborn Insurance Company, or its receiver, had no defense to any claim asserted under the policy, so far as the accident of August 19, 1932, in which F. W. Currey and other claimants were concerned, and no objection was made on this ground and no contention was made that the claims did not arise out of causes insured against and covered by the policy.

The master in chancery, to whom the claims were referred, recommended that the claims be disallowed. The said master’s report was affirmed and the claims finally disallowed by decretal order entered August 14, 1939, in the circuit court.

The question arises, Did the cause of action in this case arise at the time of the accident or sometime later, as contended by appellee?

Section 5898 of the Missouri statutes, provides in part as follows:

“The liability of the insurance company , . . shall become absolute . . . whenever a loss occurs on account of a casualty covered by such contract of insurance.”

In Century Realty Co. v. Frankfort Marine Accident & Plate Glass Ins. Co., 179 Mo. App. 123, 161 S. W. 624, the court held that the policy indemnified against liability and that the right to indemnification arose when the accident occurred. The court at page 630, said: “ . . . the right of action of the assured did not depend upon judgment first being rendered against it and payment made by it thereof but that its right to the indemnity accrued when the accident occurred for which it was liable.”

• The trial court by its decree seems to have determined that the claims are not allowable as the judgments rendered in favor of the claimants were entered after May 15, 1933, the date of the entry of the order providing for the liquidation of the Insurance Company. That part of the decree contains1 the relative dates and reads as follows i

“33. That all of said claims arose out of the same accident, occurring August 19, 1932. That it is established by the evidence that judgments were rendered in the Circuit Court of Jackson County, Missouri, in favor of the said several claimants, against one F. W. Currey, for the respective amounts claimed by the several claimants. That the Jesse H. Lowe judgment was entered March 1, 1934; the Joe Roark judgment was entered February 23, 1934; the R. C. McLaughlin judgment was entered March 1, 1934; the A. R. Wynn judgment was entered February 23, 1934. That all of the trials were ex parte.

“That on May 15, 1933, at the time of the entry of the order in this proceeding, providing for the liquidation of the Fort Dearborn Insurance Company, the several suits in which said judgments were thereafter entered, were pending, and the claims of the several claimants who were plaintiffs in said suits were then unliquidated.

“That F. W. Currey, the judgment debtor in all of said suits, was a policyholder in the Fort Dearborn Insurance Company; and said policy of insurance was in full force and effect during the period from March 1, 1932 to March 1, 1933.

“That said judgments rendered in favor of said claimants, being entered after May 15, 1933, the date of the entry of the order providing for the liquidation of the Fort Dearborn Insurance Company, and in proceedings in which H. B. Hershey, the Receiver herein, was not a party, are not binding upon the Receiver herein, and do not establish any valid claim in favor of said claimants against the assets of said Insurance Company and therefore, the claims are hereby disallowed.” These dates seem to have been a controlling factor when this cause was before the trial court. Under the statutes of Missouri, the liability of the company is fixed as of the time of the accident. Revised Statutes of Missouri, 1929, section 5898.

Both appellee and appellants have cited the case of Evans v. Illinois Surety Co., 298 Ill. 101, in which case the court at p. 113, said: “Whether the claim is or is not provable is an entirely different question from that of a limitation upon the time when it shall be exhibited and proved. The provability of a claim depends upon its nature and character. Whether it had been exhibited in time to share in the distribution of the assets depends upon the limitation of time placed for the filing of claims, either by statutes of limitation or by order of a court of chancery.”

In the instant case there is no dispute that the claim was filed in ample time as the court permitted.

Continuing in the Evans case supra, the court at p. 114 of its opinion, said: “The State of Ohio, the claimant, had a contract with the insolvent surety company entered into long prior to the appointment of the receiver. This contract defined the rights and liabilities of the two parties. The surety company breached that contract, — whether before or after the appointment of the receiver is immaterial. It was breached while the contract was in full force and effect. Proof was made within the time limited by the court for exhibiting claims. In discussing what claims are provable .the United States court of appeals says: ‘ Equitable consideration must govern and the underlying ones are these: The assets of an insolvent corporation belong to its creditors. Although not, strictly speaking, a trust fund, they partake of the nature of one. The administration of the estate is for their benefit. Its purpose is to make an equitable distribution. Equality is equity. Debts and liabilities, present and future, certain and contingent, stand upon the same equitable basis. ... A court of equity, then, in prescribing what claims shall take in the distribution of the estate of a corporation, must regard, on the one hand, the substantial right of all creditors to share in their debtor’s property, and on the other the necessity for expeditious administration, and, giving due consideration to both, must make rules which are practicable as well as equitable.’ (Pennsylvania Steel Co. v. New York City Railroad Co., 198 Fed. 721.) In the same case the court said (p. 741): ‘Claims which, when presented within the time limited by the court for their presentation, are certain or are capable of being made certain by recognized methods of computation, should be allowed. Claims which are not then certain should be disallowed, because they afford no basis for making dividends. But there is no equitable reason why claims which are certain when presented and which are presented in time should have been certain at some arbitrary anterior period.’ ... In order to make a distribution possible they must, of necessity, limit the time for the proof of claims. But they have no authority to give to the filing of the bill the effect of the filing of a petition in bankruptcy, so as to exclude any previously made and lawful claim that matures within a reasonable time before distribution can be made.’ . . . There has been no decree yet as to who are all the creditors. The court, either with or without the consent of the officers of the insolvent corporation, could not terminate existing contracts or in any manner affect the rights and remedies of the creditors and holders of obligations against the company or its property in the hands of the receiver. It made no difference whether the demands were liquidated or unliquidated, absolute or contingent. The receiver appointed derives his title from the company. He is its representative — its successor. He does not represent the creditors. The controversy in this case is between the claimant as a creditor on one side, and the company and its stockholders, represented by the receiver, on the other. No creditor of the company is opposing appellant’s claim; no representative of a creditor is opposing it.”

We think the law as laid down in the case of Evans v. Illinois Surety Co., 298 Ill. 101, and also in Evans v. Illinois Surety Co., 319 Ill. 105, brings the instant case within the purview of the law as set forth in both of the foregoing cases.

In the instant case no one has insisted that there was not sufficient evidence but, as heretofore stated, the receiver relies upon the fact that the claim was not reduced to judgment before the order for the appointment of a receiver was entered here. That could be very well accounted for because of the fact that one cannot get a judgment instanter in most jurisdictions unless it is a judgment by confession in which the amount is fixed. Even if dates are important or controlling, we think we have a right to assume that other jurisdictions have the natural delays in getting cases at issue, and where there are other cases pending, the contestants have to wait until their case is reached in turn. How inequitable it would be to penalize a claimant who had a just claim, because of a delay he could not avoid.

So, in the instant case, we do not think the claims of the appellants should be disposed of by a technical consideration of dates. No objection is made as to the amount of the claims or the validity thereof. These claims were filed in a court of equity and therefore equitable rules should have been applied. Evans v. Illinois Surety Co., 298 Ill. 101. No objection is made as to the quantum of proof to sustain the claims, or that the judgments were not valid. No distribution has been made. As before stated, they were filed within the time fixed by the trial court, and we think from an equitable consideration of the transaction should have been allowed.

For the reasons; herein given the decree of the circuit court is reversed and the cause is remanded with directions to allow the said claims against the assets of said estate, to be paid in due course of administration.

Decree reversed mid cause remanded with directions.

Hebbl, P. J., and Burke-, J., concur.


source: Caselaw Access Project

author: Mr. Justice Denis E. Sullivan

license: Public Domain

text:
    Harold Warp, Trading as Flex-O-Glass Manufacturing Company, Appellant, v. Edward Warp and Margaret Warp, Trading as Sol-O-Lite Manufacturing Company, Appellees.
    Gen. No. 41,162.
    Opinion filed November 20, 1940.
    Rehearing denied December 11, 1940.
    Bobb, Spoerri, Bourland & Harris, of Chicago, for appellant; William L. Bourland, of Chicago, of counsel.
    James W. Milne and Tinsman; Blocki & Heeren, both of Chicago, for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

A bill was filed by plaintiff Harold Warp, doing business as the Flex-O-G-lass Mfg. Co., under the firm name of Warp Bros, against Edward Warp and Margaret Warp, doing business as Sol-O-Lite Manufacturing Company, charging them with unfair competition and particularly charging Edward Warp with having violated the terms of a dissolution agreement dated June 29, 1938, terminating the articles of partnership which had been entered into between Harold Warp and Edward Warp on November 6,1937 ; also the violation of the terms of a bill of sale dated June 29,1938, by which Edward sold his interest in the partnership to Harold for $15,625, of which sum $10,000 was paid for goodwill.

Plaintiff prayed that a temporary injunction be made final upon a hearing, containing the following provisions:

(1) Restraining the defendants from continuing the unfair trade practices alleged;

(2) From further violation of the rights sold to the plaintiff under the dissolution agreement and bill of sale;

(3) For an accounting of the damages sustained by the plaintiff from the unfair competition of the defendant; and

(4) For an accounting of the damages sustained by plaintiff, etc.

After the cause was tried and decided, then on a motion for a rehearing, an affidavit was prepared and filed by one of the attorneys for the complainant, setting forth the fact that the trial judge’s nephew rented space in a suite of rooms where the attorney for the defendants also had an office, and directly charged in said affidavit that the trial judge was swayed in making his decision because of such fact. Such affidavit also purported to ask for a change of venue after the case had been decided. Such conduct on the part of a trial lawyer is most unusual and we do not think such conduct should be passed unnoticed. The lawyer who made the affidavit must have known that under the statute he was not entitled to a change of venue, and the affidavit was evidently filed for the purpose of assailing the judge. Justice as represented in the trial court by a trial judge should deservedly be free from an assault of this kind. The trial judge should have promptly and effectively taken steps to protect the administration of justice. In view of such conduct on the part of said attorney, is it any wonder that the layman is ready with criticism as to the administration of justice ? The trial judge, however, produced the affidavits of his nephew in denial. A rule should have been entered on said attorney to show why he should not be punished for contempt. If counsel in a pending case is permitted to assail the trial judge by an affidavit having no legal basis, which affidavit questions the integrity of the judge because said judge decides a case against said counsel’s client, then, indeed, the administration of justice has fallen to low estate. Were such procedure permitted, the reputation of a trial judge- for probity and honesty, earned through years of hard public service while administering justice, -could easily be destroyed and the administration of justice interfered with and the respect of the public lost as to the court’s orders and decrees. Counsel on the opposing side, however, made no motion to strike the affidavit and the record does not show any motion was made in this court to strike the briefs containing such allegations. Had such motion been made in this court, we would have promptly acted upon it.

When presenting a case to a reviewing court, it seems too bad that counsel cannot agree as to what the record shows. For instance, on page 47 of the abstract which purports to have been taken from page 111 of the record, appellant refers to a stipulation which is not signed nor is it purported to be signed by anybody but defendants, and it is stated that plaintiff did not sign it. Further, in the argument on page 3 of the brief, the charge is made that the defendants filed the stipulation at the court’s direction. We are unable to find any such direction. Defendants also denied that there was any such direction given by the court. This manner of presenting cases to this court is almost worse than useless. It places an extraordinary burden upon the court in checking up the statements made by counsel, and also makes it very difficult for the court to learn just what the facts are.

As to the merit of this controversy, it appears to be largely based on questions of fact. No agreement was entered into between the parties by which the defendants were to cease doing business, or agreeing to conduct their business in any particular way. We can find nothing in the record to indicate that this case involved anything but legitimate business competition.

The rule is that the vendor of a business, or interest therein, including the goodwill, may re-enter a rival or competing business in an adjacent locality and publish, advertise for and solicit customers, if there was no covenant or agreement in the contract of sale or other provision made not to re-enter a like business. Gibbons v. Hansch, 185 Minn. 290, 240 N. W. 901; Ranft v. Reimers, 200 Ill. 386; Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 142 Ill. 494.

Without commenting in detail on all the facts and the evidence, which in some instances is quite conflicting, suffice it to say that the trial court saw and heard the witnesses testify and in our opinion arrived at the proper conclusion. We think the decree entered is supported by the law and the evidence and, for the reasons herein given, the decree of the superior court is affirmed.

Decree affirmed.

Hebel, P. J., and Burke, J.,-concur.


author: Mr. Justice Denis E. Sullivan Mr. Justice Burke,

text:
    Katie Kroot, Appellant, v. Liberty Bank of Chicago, Trustee et al., Appellees. Rose Kroot and Lenora Kroot, Appellants.
    Gen. No. 41,173.
    Burke, J., dissenting.

      Opinion filed November 20, 1940.
    Rehearing denied December 11, 1940.
    Irving S. Abrams, of Chicago, for certain appellant.
    William M. Zipperman, of Chicago, for certain other appellants.
    H. J. Rosenberg and David Jetzinger, both of Chicago, for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

An action for partition of certain real estate and an accounting of the income therefrom was filed by Katie Kroot, appellant herein, against the Liberty Bank of Chicago, as trustee under trust No. 1063, owner of an undivided one-third interest, and Rose' Kroot, Lenora Kroot and Bernard Kroot, owners of an undivided three-eighteenths, subject to the dower of the plaintiff in said three-eighteenths. It is alleged that the premises which they sought to have partitioned were incumbered by a trust deed, securing a bond issue, aggregating $45,000, which trust deed and bonds were signed by plaintiff and by Morris Kroot. It was alleged that all of said bonds had been owned by Kroot at the time of his death, and that plaintiff, as administratrix, is now the owner thereof and that the bonds are a first hen on the premises.

When the matter was at issue it was referred to a master in chancery who filed an original and a supplemental report and thereafter the court entered a decree finding that Katie Kroot is the owner of an undivided ten eighteenths, the Liberty Bank of Chicago, as trustee under trust No. 1063, is the owner of an undivided six eighteenths, and Lenora Kroot, Rose Kroot and Bernard Kroot are the owners of two eighteenths, and that the trust deed and the bonds secured by said trust deed, executed by Morris Kroot and Katie Kroot, Ms wife, are void and are not a lien upon said premises; “that the said Morris Kroot, deceased, and the plaintiff since his death,” have been in exclusive possession of the premises sought to be partitioned and are chargeable with a reasonable rental value for the use of said premises, from which decree the plaintiff prays this appeal.

There is no dispute as to the pleadings except as to the minor.

Plaintiff’s theory of the case is that prior to 1930, Morris Kroot was part owner of the premises and had a right to invest his own funds in making the mortgage on the premises in which he was a part owner instead of selling the bonds to the public; that this new mortgage was made with the full knowledge and consent of the beneficiary under the trust, whether he be Hyman L. Cohen or Jack M. Kogen, his son, and that the defendants are estopped from attacking the validity of the bonds and trust deed after acquiescing fco same for a period of eight years and after the death of Morris Kroot, who was the owner of the bonds and the trust deed securing same; that at the time Morris Kroot and Katie Kroot, his wife, the plaintiff herein, executed the bonds and new trust deed securing said bonds, the said Morris Kroot was not the owner of the premises, although holding the record title, and that the Liberty Trust and Savings Bank, as trustee under trust No. 1537, upon order of the beneficiary of said trust, had conveyed an undivided six eighteenths to him for the sole purpose of enabling him to execute the bonds and trust deed as record title holder of the premises, and that said trust deed and bonds secured thereby aggregating $45,000, are a valid and subsisting first lien against the premises.

By her complaint plaintiff offered to account for the receipts and disbursements with reference to the operation of- the garage.

No evidence was introduced before the master with reference to operation of the garage and the decree should have reserved this question for the accounting.

Defendants in setting forth their theory of the case, present the following points:

“1. The bonds and trust deed, having never actually been delivered by Kroot to any person, never became legally effective.

“2. Defendants were induced to participate in the making of the trust deed and bonds through false and fraudulent representations made by Kroot, through whom plaintiff claims to derive title to said bonds; and his conduct was so unconscionable that in equity plaintiff should be limited to relief through enforcement of her right of contribution from defendants for advances, if any, actually made by Kroot with respect to the premises.

“3. The inequitable conduct of Kroot and of plaintiff, through her counsel, in falsely representing that the bonds were held by a bona fide purchaser and that foreclosure of the trust deed was only prevented through Kroot’s influence, constituted a fraud, and the plaintiff should be barred from affirmative relief with respect thereto, and should be remitted to her right to contribution from defendants for advances, if any, actually made.

“á. That as between the parties, where no equities have arisen, the burden is on the person claiming to own bonds to establish the consideration therefor; that plaintiff in her pleadings and by her evidence has failed to show the amount of actual advances, if any, made by Kroot upon which she relies as such consideration, and in fact has failed to show that any prior encumbrances against the property were paid, or that they were paid by Kroot; that this failure of proof vitiates the bonds and trust deed and requires a determination that they are null and void and should be cancélled and released, and plaintiff remitted to proof of actual advances to enable her to recover on an accounting.

“5. That Kroot as one co-owner stood in a fiduciary position to his co-tenants, and could make no profit or transaction relating to the joint property unless he fully disclosed all details thereof to his co-owners.

“6. That plaintiff and cross-plaintiffs will have full and complete remedy by contribution by defendants for actual advances made.

“7. That Kroot and plaintiff, having excluded defendants from management of the property, are chargeable with the reasonable rental value of the premises.”

One of the parties defendant herein is Bernard Kroot, a minor, and on petition of plaintiff, Eugene Goodrich was appointed as guardian ad litem for said minor. Said Eugene Goodrich after having been appointed as said guardian ad litem filed his answer, which reads as follows:

“This defendant admits the allegations contained in said complaint for partition and joins in the prayer of partition and accounting as prayed for in said complaint.” Said answer is verified by an affidavit of said guardian.

The appointment of a guardian ad litem is not a mere formality, and while such guardian is not warranted in interposing useless or vexatious defenses, it is his duty to understand the cause and make such defenses as are necessary to protect the apparently clear rights of the ward. McCarthy v. Cain, 301 Ill. 534.

Also, a guardian ad litem cannot admit anything against defendants by his answer. Rhoads v. Rhoads, 43 Ill. 239.

Guardian ad litem of minor parties was under obligation to fully protect their every interest and to urge every defense in their behalf, and, if he failed to do so, it would have been incumbent on the court, on its own motion, to intervene to protect their rights. Schrader v. Schrader, 280 Ill. App. 561.

In the instant case, the plaintiff appellant and the minor, as well as the other parties, have adverse interests. The plaintiff made claim as a joint tenant to the real estate of her deceased husband, which, if true, eliminated the otherwise legal right of inheritance of the minor under the laws of descent. Further, the plaintiff claims the right of dower in all the real estate as wife of Morris, deceased, as against the interests of the minor. These are merely instances of the inconsistency of the position taken by the guardian ad litem, whose duty it is to protect the court’s ward, but who, on the contrary, by his answer wrongfully agreed to the demands of the plaintiff. The master’s report and the decree of the court both recited the fact that the findings therein are based, among other things, upon the answer of the guardian ad litem. It is the duty of the court to protect the rights and interests of a ward who is under disability, where such ward is involved in any legal proceeding before such court. Otherwise, the trial would be a mere farce in so far as the rights of the legally incompetent ward of the court is concerned. Because of his tender years, such ward is specially entitled to the court’s protection.

In the instant case no one appears in this court as the guardian ad litem, so before proceeding further, it becomes the duty of this court to have a guardian ad litem appointed in order that proper action may be taken for the purpose of protecting the rights of the . minor. The law requires that evidence must be introduced either for or against minors whose rights are to be considered. Therefore, it is essential that the proper pleadings be filed in the trial court and the evidence submitted in relation thereto after a guardian ad litem is appointed who will protect the interests of the minor. McDaniel v. Correll, 19 Ill. 226; Binns v. La Forge, 191 Ill. 598; Gibbs v. Andrews, 299 Ill. 510; Mechling v. Meyers, 284 Ill. 484.

For the reasons herein given the decree of the circuit court is reversed and the cause is remanded with directions that a hearing be had after a guardian ad litem has been appointed who will file proper pleadings and proceed in harmony with this opinion.

Decree reversed and cause remanded ivith directions.

Hebel, P. J., concurs.

Mr. Justice Burke,

dissenting: The decree is supported by the record and should be affirmed. The minor while a defendant, in reality had the same position in “the litigation as the plaintiff, who is his mother. I agree that the action of the guardian ad litem was irregular. However, it is plain that the minor was fully protected and that his asserted rights were considered and ruled on. No useful purpose will be served by remanding the case. We now have all the available evidence and the case has been ably and thoroughly argued.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    Alexander J. Groesbeck, Receiver, Appellant, v. Mary M. Beaupre, Appellee.
    Gen. No. 41,193.

      Opinion filed November 20, 1940.
    Rehearing denied December 11, 1940.
    Glenn, Real & Browning, of Chicago, for appellant; Harold E. Baily, of Chicago, of counsel.
    Eckert & Peterson, of Chicago, for appellee; Walter H. Eckert, Tom Deeming and Owen Rall, all of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Alexander J. Groesbeek, receiver of Guardian Detroit Union Group, Inc., a corporation organized under the laws of the State of Michigan, filed his amended complaint in chancery in the superior court of Cook county, Illinois, on October 27, 1939. The complaint consists of two counts.

On May 29, 1933, the Guardian Union Group, Inc. was dissolved. On and prior to that date Frances M. Bronner was the owner of 335 shares of common capital stock of said Guardian Detroit Union Group, Inc., which stock she continued to own until the date of her death on March 28, 1935. Mary M. Beaupre, the defendant, was a beneficiary and distributee of the estate of Frances M. Bronner, deceased. In liquidation proceedings in the circuit court of Wayne county, Michigan, an assessment against the capital stock of the corporation was levied on, December 28, 1937. Count A of the complaint seeks the recovery of this assessment upon the 335 shares of stock, owned by Frances M. Bronner at the time of her death, from her beneficiary and distributee, the defendant, Mary M. Beaupre.

Count B of the amended complaint was dismissed on motion of plaintiff.

The defendant filed a motion to dismiss the amended complaint, setting up that the said remaining count as amended was insufficient in law for the reason that no .claim was filed against the estate of said Frances Bronner within the time allowed by statute, and that said claim against the estate of said Frances Bronner was not contingent, but absolute.

The trial court entered a final decree on January 15, 1940, finding that the amended complaint states no ground for equitable relief and ordering that defendant’s motion to dismiss Count A be sustained and that the amended complaint be dismissed.

No point was raised on the pleadings other than the fact that the amended complaint did not state a cause of action as a matter of law.

Plaintiff’s theory of the case is that the cause of action sued on was contingent during the entire period of administration of the estate of Frances M. Bronner in the sense that it was uncertain as to whether there ever would be liability upon the stock; that said claim was therefore not a provable claim against said estate; that said claim became absolute in the sense that liability was established and enforceable on December 28, 1937, when the amount of the assessment was fixed and levied by the circuit court of Wayne county, Michigan, and that plaintiff therefore has a cause of action in equity to recover from the distributee of the estate of Frances M. Bronner to the extent of any assets distributed to the defendant.

Defendant’s theory of the case is set forth substantially as follows:

1. The liability of a stockholder of the holding company was a liability, in contract, to pay the stockholder’s proportionate share of the bank-stock liability of the holding company.

2. Whenever the liability of the holding company for an assessment on bank stock became fixed, the liability of the shareholders of the holding company for their proportionate parts ceased to be contingent.

3. Under the Michigan law the liability for an assessment on bank stock becomes definite and fixed whenever the commissioner of banking has made an assessment and no court order is necessary to give such assessment vitality.

4. Whether collectible by the receivers of the closed banks or by the holding company receiver, the liability of the holding company’s shareholders ceased to be contingent with respect to each bank-stock' liability now asserted the moment the commissioner of banking levied his assessment.

5. The assessments antedated Mrs. Bronner’s death, the liability of her estate was not contingent, and the claim is now barred.

6. No further assessment or order of court was necessary under Michigan law to establish the contraetual liability of Mrs. Bronner, the decedent, on her shares of holding company stock, and the fact that the plaintiff chose to postpone filing this suit for five years after his right to enforce the contractual obligations of holding company stockholders had been sustained by the Supreme Court of Michigan is no concern of the defendant and does not enlarge the time given him by the laws of Illinois to enforce liabilities against the assets of the decedent.

In order to clarify a rather involved controversy, we think it well to set forth the dates which are controlling in this case.

On March 31, 1933, a petition entitled “In re: Application for Voluntary Dissolution of and Appointment of Receiver for Guardian Detroit Union Group, Inc., a Michigan Corporation,” was filed in the circuit court, Wayne county, Michigan in chancery, setting forth that on May 29, 1933, the Guardian Detroit Union Group, Inc., was dissolved by decree of said circuit court in chancery, and plaintiff was appointed receiver for the assets of said corporation, and that he accepted and qualified.

It appears that at the time of the appointment of the receiver, the Guardian Detroit Union Group, Inc., was the owner of common capital stock of the following banks and trust company organized under the laws of the State of Michigan, with the par value as here set forth:

“Union Guardian Trust Company..................$4,927,300.00
Union Industrial Trust & Savings Bank, Flint....... 1,965,900.00
Guardian Bank of Trenton........................ 40,000.00
State Bank of Six Lakes.......................... 8,500.00
State Bank of Vestaburg......................... 8,000.00
State Savings Bank of Stanton..................... 15,000.00”

It further appears that thereafter the commissioner of the State banking department took over the custody and management of all the assets of said banks and trust company and appointed conservators or receivers, and proceeded to liquidate the same. That the commissioner of banting, with the approval of the Governor, duly levied as assessment upon the stockholders of each of said banks and the said trust company to enforce the individual liability of each of the stockholders equal to 100 per cent of the par value of their stock. That the assessment so levied on the stock owned by the Guardian Detroit Union Group, Inc. was made on the date and in the amounts as set opposite the names of each of said banks and trust company, as follows:

“Union Guardian Trust Company, August 31, 1933.. .$4,927,300.00
Union Industrial Trust and Savings Bank, Flint,
June 2, 1933................................... 1,965,900.00
Guardian Bank of Trenton, August 31, 1933........ 40,000.00
State Bank of Six Lakes, July 10, 1934............. 8,500.00
State Bank of Vestaburg, November 16, 1936........ 8,000.00
State Savings Bank of Stanton, September 25, 1934.. 15,000.00”

It further appears that the respective receivers and conservators filed their claims in the receivership cause against the plaintiff as receiver of the Guardian Detroit Union Group, Inc., which said claims were duly approved and allowed by an order of the circuit court for the county of Wayne in chancery entered on December 28, 1937; that on October 25, 1937, the circuit court directed plaintiff to give all known stockholders of said Guardian Detroit Union Group, Inc. notice of plaintiff’s application to said court for an assessment on the stockholders of said corporation; that on November 3, 1937, plaintiff mailed a copy of the petition seeking said assessment and the order setting said petition for hearing on November 15, 1937, to all known stockholders, including one Frances Bronner, as owner of record of the shares of stock herein involved; that on November 15, 1937, the circuit court of Wayne county entered an order decreeing “that the amount of the assessment should be $4,508 per share and authorizing the compromise of said assessment at $3.50 per share should payment be made prior to the institution of suit.” The court directed that this plaintiff should collect said assessment. That plaintiff demanded payment of the aforesaid assessment from, the defendant and informed her of the right to compromise upon the payment of $3.50 per share, but that said defendant refused to compromise said assessment.

It further appears that on May 29, 1933, Frances M. Bronner was the owner and holder of 335 shares of common capital stock of the Guardian Detroit Union Group which she held until the time of her death on March 28, 1935; that letters testamentary were issued on April 18,1935; that by the terms of decedent’s will, all of her estate not specifically bequeathed was bequeathed to the defendant Mary M. Beaupre and that the said 335 shares of common capital stock aforesaid, were distributed pursuant to the order of court and were accepted and receipted for by said Mary M. Beaupre on December 31, 1935, and it is claimed that she is liable for the proportionate share of said assessment amounting to $1,510.18; that by an order entered in the probate court of Cook county, Illinois, on December 31, 1935, personal property of a value well in excess of $5,000 was distributed to and accepted and receipted for by said Mary M. Beaupre; that the final account of the executors was approved and the executors were discharged on May 1, 1936.

The amended claim in chancery was filed in the superior court of Cook county on October 27, 1939.

The only question in this case is whether this contractual liability on 335 shares of holding company stock owned by the testatrix, who died March 28, 1935, remained uncertain, unprovable and contingent until after April 18, T936, when the year for filing claims against her estate expired. If contingent until fixed by order of Michigan circuit court, plaintiff may recover from defendant on the theory that as a legatee of Mrs. Bronner’s estate, she is liable for contingent claims which were not provable against the decedent’s estate until they finally became certain, although this was after the estate in Illinois was closed.

Plaintiff contends that the cause of action sued on was contingent during the entire period of the administration of the estate of Frances M. Bronner in the sense that it was uncertain as to whether there ever would be liability upon the stock; that said claim was therefore not a provable claim against said estate ; that said claim became absolute in the sense that liability was established and enforceable on December 28, 1937, when the assessment was levied by the circuit court of Wayne county, Michigan, and that plaintiff therefore has a cause of action in equity to recover from the distributee of the estate of Frances M. Bronner to the extent of any assets distributed to the defendant.

The liability of a stockholder in a foreign corporation is determined' by the laws of the State in which said company was incorporated. This was decided in the case of Young v. Farwell, 139 Ill. 326, and also in Hawkins v. Glenn, 131 U. S. 319. It has been held that under the laws of the State of Michigan, the receiver of a private corporation takes title to corporate assets and is the only one who can enforce the superadded liability imposed by contract and prescribed by the articles of association. Simons v. Groesbeck, 268 Mich. 495; Golden v. Cervenka, 278 Ill. 409.

The levying of the assessment is a condition precedent to the right to enforce the claim for super-added liability. Young v. Farwell, 139 Ill. 326.

The Supreme Court of this State in speaking of the time when a super-liability accrues, states that it is enforceable when the court in the liquidation proceedings finds the amount of assessment that is necessary and directs the receiver to collect the same.

It has also been held that where an assessment for super-liability is made more than a year after the granting of letters of administration in Illinois, the claim is provable only against nninventoried assets. Hawkins v. Glenn, 131 U. S. 319; Bocock v. Lee, 210 Ill. App. 402; Chicago Title & Trust Co. v. Corporation of Fine Arts Building, 288 Ill. 142; Pufahl v. Parks, 299 U. S. 217, affirming 283 Ill. App. 95. In the latter case the question was whether or not a claim of a federal receiver should be given precedence over ordinary claims. In the instant case the issue is whether a claim which could not be presented to the probate court for collection prior to the final accounting and closing of the estate, could not, thereafter, be collected in chancery from the beneficiaries of the estate who had received its assets, or as in this case from the actual holder of the stock who receives it as a bequest.

There is no charge or claim made in this case that the plaintiff was guilty of laches or could have taken action in the probate court and recovered the amount of the assessment on said stock prior to the time when the estate was finally closed. We do not think the statute requiring all claims be filed within a year (Ill. Rev. Stat. 1939, par. 71, sec. 70 [Jones Ill. Stats. Ann. 110.071]) is in a sense a statute of limitations as against other claims, but it is a wise provision tending to hasten the closing of estates and should not be construed to prejudice the rights of a bona fide creditor who is the owner of a contingent claim and later ripened into finality such as the one in this case. We believe that until the circuit court of Michigan determined absolutely the amount which was due, the claim was contingent and could not be proven in the probate court. All claims must be for a fixed amount so that the court in passing upon such claims may have a fixed basis upon which to arrive at a decision. It is practically conceded that a court of chancery could give relief equitably as against the defendants to the extent of the liability which had been fixed by the circuit court of Michigan based on the stock which was inherited through the will of the late Frances M. Bronner if it were not for the one year provision of the Illinois statutes regarding closing estates in the probate court. This being true, we think the court was in error in dis- ■ missing the complaint.

For the reasons herein given the decretal order of the circuit court is reversed and the cause is remanded with directions that the trial court enter a proper decree finding for the plaintiff and against the defendant for the sum of $1,509.60 and costs.

Decretal order reversed and cause remanded with directions to find for plaintiff and against defendant for the sum of $1,509.60 and costs.

Hebel, P. J., and Burke, J., concur.


text:
    Multi Electrical Manufacturing Company, Appellant, v. Lipman Construction Company, Appellee.
    Gen. No. 41,216.
    Opinion filed November 20, 1940.
    Rehearing denied December 11, 1940.
    William Oapesius and Sumner C. Palmer, both of Chicago, for appellant.

      Eugene P. Kealy, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff brings this appeal from a judgment entered in the municipal court in a contract case. The cause was tried before the court without a jury which resulted in a judgment in favor of defendant and against plaintiff for costs.

Plaintiff’s claim charges that in August, 1937, the defendant appellee was employed by the United States Government to build a garage for the new post office on Canal and Adams streets, Chicago; that it contracted with one J. A. MacLagan to do the electrical lighting and wiring for this garage; that plaintiff appellant was employed by MacLagan to do the electric wiring and informed defendant appellee during the progress of the work that MacLagan was in default in his payments for labor and material furnished to the extent of $2,000 and that unless defendant agreed to pay plaintiff the sum of $2,000 it would not deliver any more electrical units or other equipment to the garage.

Plaintiff’s claim further charges that on November 2, 1938, defendant wrote plaintiff agreeing to comply with its request, but failed so to do, and paid out the money from MacLagan’s funds for other subcontractors and labor.

As heretofore stated there was a trial by the court and a finding and judgment against plaintiff for costs, hence, this appeal.

No question is raised as to the pleadings.

Plaintiff’s theory is: First, that under the pleadings, statement of claim and amended affidavit of defense, the plaintiff should have been awarded a judgment for the full amount sued for, namely, $2,000, without the production of any evidence;

Second, that after the evidence was all produced as shown in this record the court should have awarded judgment to plaintiff for the same sum;

Third, that the evidence is such that a judgment should have been rendered against defendant and in favor of plaintiff.

Defendant’s theory of the case is that it, the defendant, had agreed to pay to the plaintiff the sum of $2,000 only out of any moneys that might be due under the subcontract between the defendant and MacLagan to whom the plaintiff sold materials; that thereafter no moneys became due and payable to MacLagan by the defendant for the reason that at the time MacLagan finished his work he had failed to pay material bills of approximately $9,000, which the defendant was obliged to pay; that the defendant thereby-paid out on account of its subcontract with MacLagan, in excess of $77,000, which was about $5,000 more than the contract price between MacLagan and the defendant; that the defendant had a right to pay the unpaid material bills of MacLagan by virtue of clause 18 of the subcontract agreement; that the letter of November 2, 1938, given by the defendant to' the plaintiff was not an unconditional promise by the defendant to pay the plaintiff the sum of $2,000, but was merely an accommodation by the defendant to pay the plaintiff such sum out of any moneys that might thereafter become due to MacLagan by the defendant.

Defendant further contends that the plaintiff had waived any rights it might have as materialman because it executed waivers of lien on September 10, 1938, and on October 12, 1938, respectively, which waivers resulted in the defendant releasing to MacLagan a payment of $13,000 on September 8, 1938, for work performed during the month of August, and a further payment of $3,500 in October for work done during the month of September.

It appears from' the evidence that the defendant construction company entered into a contract with the United States Government to erect a large building known as the United States Post Office Garage at Adams and Canal streets in Chicago; that the cost of the project was in excess of $1,500,000; that on August 14, 1937, the defendant entered into a subcontract agreement in writing with one J. A. MacLagan to furnish and install the lighting fixtures, conduits and wiring systems for the sum of $72,500. Clause 18 of that contract provided:

“In the event that the Sub-contractor fails to pay and discharge when due, any bills of any kind or nature whatsoever incurred by the said Subcontractor in the fulfillment of this Sub-contract, which bills in the opinion of the contractor are proper, the Contractor may (at his option, but it is to be specifically understood that the Contractor is not compelled so to do) and is hereby authorized to pay such bills. The sub-contractor hereby specifically appoints the Contractor as his lawful agent and attorney-in-fact to pay and discharge the aforementioned bills and to deduct the amount of such bills from any estimate due or to become due the Sub-contractor, as well as any expense incurred in the payment of said bills, including interest.”

It further appears from the evidence that an agreement was entered into by MacLagan to purchase from the plaintiff, certain electrical fixtures required in his subcontract for the sum of approximately $4,500; that MacLagan entered upon the work under his subcontract and received payments from the defendant from time to time upon monthly estimates as the same became due; that towards the end of October, 1938, MacLagan was nearing the completion of his work and had been paid approximately $68,000 by the defendant for work performed under his subcontract; that MacLagan at that time spoke to Mr. Lipman, stating to him that the plaintiff had asked MacLagan to get a letter from the defendant, agreeing to pay the plaintiff the sum of $2,000 out of any money that might become due to MacLagan. When testifying MacLagan stated: .

“I asked Lipman to tell Multi that he would pay to Multi the sum of $2,000 out of any money coming to me. I did not expect Mr. Lipman to guarantee anything outside of what was due me.”

It further appears from the evidence that on October 28, 1938, MacLagan wrote a letter to the defendant, in which he stated:

“Kindly hold out of my next payment for the Multi Electrical Company $2,000 which is payment on electrical fixtures used on the garage.”

It further appears that a few days later, on October 31,1938, the plaintiff wrote a letter to the defendant, in which plaintiff stated:

“We have asked and secured permission from MacLagan Electric Company to have you make direct payment to us of the sum of $2,000.00 from payments due him during October. It is understood that Mr. MacLagan has provided you with written permission for the above and we will appreciate receiving from you confirmation and agreement to this understanding so that we may release materials which we are holding.”

It further appears that on November 2, 1938, agreeable to this request and in compliance with the request of MacLagan, the defendant wrote a letter which reads as follows:

“November 2, 1938.

“Multi Electrical Mfg. Co.

1840 West 14th Street

Chicago, Illinois

‘‘ Gentlemen :

“Att: Mr. Leo McDonald

Be: U. S. P. O. Garage

MacLagan Electric Co.

“Relative to our telephone conversation relative to the above account, please be advised that we will withhold the sum of Two Thousand Dollars from the amount to be paid to MacLagan Electric Co. for your account with him.

1‘Yery truly yours,

“Lipman Construction Company,

By William S. Lipman.”

it further appears that a few days after this letter had been given, it became necessary for the defendant to advance the sum of $750 to MacLagan to meet his payroll for the week ending November 2, 1938; that from November 7th to November 11th, the defendant learned that MacLagan had failed to pay various bills for materials used by him in the subcontract approximating $10,000. In considering the letter of November 2, 1938, from defendant to plaintiff, wherein defendant agreed to withhold the payment of $2,000, which otherwise would be paid to MacLagan Electric Company, we do not think that this could be otherwise construed than as an agreement to hold this money and make it available for the use of the plaintiff. And, it appearing that the plaintiff acted upon that assurance, we believe the defendant was estopped from taking another position to the injury of the plaintiff. We think the trial court committed error in finding for the defendant under the evidence as set forth in this record. There being no necessity for another trial, the judgment of the municipal court is reversed and judgment is entered here in favor of plaintiff for $2,000 and costs.

Judgment reversed and judgment here for plaintiff for $2,000 and costs.

Hebel, P. J., and Burke, J., concur.


text:
    Milton J. Bailey, Appellee, v. Henry B. Welch, Appellant.
    Gen. No. 41,223.
    Opinion filed November 20, 1940.
    Rehearing denied December 11, 1940.
    James F. Lyons, of Chicago, for appellant; Elwyn E-. Long, of Chicago, of counsel.
    Guy C. Guerine, of Melrose Park, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendant Henry B. Welch brings this appeal from a judgment entered against him in the circuit court for $500. The cause was tried before a judge and jury, the jury returning a verdict for $1,450, upon which a remittitur for $950 was, on motion of plaintiff, entered which left a balance of $500, being the amount of the judgment entered by said court.

From the record before us it appears that in May, 1937, plaintiff herein was engaged in the trucking and excavating business in Cook county; that he employed one Jacob Artman and that State highway maintenance police officer John Howe, badge 374, attached to district 4, took said Artman to the Cook county police station for moving a crane and boom from one job to another without automobile license plates on said vehicle.

The record further shows that the defendant Henry B. Welch is a police magistrate and on May 26, 1937, the said Artman appeared before him in his courtroom in the village of Alsip, Cook county, Illinois, upon the defendant’s warrant by police officer John Howe. On oral argument we were informed that said Howe is now in the penitentiary.

The record further shows that plaintiff Bailey had leased the machine from B & J Tractor & Trucking Service, a Michigan corporation, and that Artman was the operator thereof; that said Bailey was also brought before Welch, the justice of the peace, and without any charge against him was fined $25, being a penalty of $15, constable fees $5 and court costs $5, although the statute only permits a charge of $2 on a plea of guilty; that the justice of the peace then issued a mittimus and caused the plaintiff to be locked in the county jail where he was kept for about 24 hours; that the justice of the peace then “stayed” the mittimus and let plaintiff out of jail. Just how this action and procedure was authorized and conducted does not appear.

The evidence further shows that solicitation was made of Bailey to pay money to various constables during the summer and the proceedings were then continued until September by defendant, when the plaintiff was again arrested and taken to defendant’s house where he was kept without food, except for some tea and bread, from approximately 7 a.m. until 11 p.m.

From the transcript of the record before us it is difficult to follow the events in sequence. No complaint' against Bailey was made by anyone before the justice of the peace. The summons was issued, according to the transcript, by the police officer Howe and not by the justice of the peace. The justice of the peace had a so-called hearing, at which the plaintiff appeared. The transcript of the defendant, as justice of the peace, does not disclose that a plea of either guilty or not guilty was entered, although the justice of the peace, defendant here, testified that plaintiff did both. No witnesses were sworn, no jury waiver required and no evidence was produced. As a result of the action of the justice of the peace, the plaintiff was at one time committed to the county jail where he was fingerprinted, required to scrub floors and remained in jail for approximately 24 hours. Aside from the personal suffering and humiliation which he underwent because of his incarceration, plaintiff was deprived of securing a contract on which he would have made a profit of $1,000. It is difficult to believe that in a civilized community there still remains those who, under the guise and sacred name of justice, will perpetrate such outrages. Under the guise of judicial procedure, the plaintiff was harassed by different constables and the justice of the peace, endeavoring to force plaintiff to pay certain money to them. We shall not say it was a conspiracy to extort money, but if these defendants had been engaged in such a nefarious occupation they would have acted just as the evidence shows was done in this case.

The facts in this case do not appear to be disputed and we think the jury was well within its rights in fixing the amount of damages. The trial judge, however, was of the opinion that the verdict was too high and at his suggestion the plaintiff in this case entered a remittitur for $950 and the court thereupon entered judgment for the sum of $500 and costs. • There being no cross errors on behalf of plaintiff, assigning this action of the1 trial judge as prejudicial, we are bound to this extent by the record.

Nothing is to be gained by a further discussion of this sordid matter. We think the defendant was quite fortunate because of the meager amount of the judgment.

For the reasons herein given the judgment of the circuit court is affirmed.

Judgment affirmed.

Hebel, P. J., and Burke, J., concur.


author: Presiding Justice Stone.

text:
    J. B. Williams, Appellant, v. T. J. Moss Tie Company, Appellee.
    opinion filed October 28, 1940;
    opinion modified and rehearing denied December 3, 1940.
    Lindauer & Lindauer and Sam S. Pessin, for appellant;
    Whitnel, Browning, Listeman & Walker, for appellee.
   Opinion by

Presiding Justice Stone.

“Not to be published in full.”


author: Justice Hatchett.

text:
    Jacob Vondrasek et al., Appellees, v. Bernard Yale et al., Appellants.
    Gen. No. 41,512.
    opinion filed October 29, 1940.
    Yale & Yale, for appellants; Bernard Yale, of counsel; Joseph M. Jacobs, for appellees; Archie L. Berman, of counsel.
   Opinion by

Justice Hatchett.

“Not to be published in full.”


author: Presiding Justice O’Connor.

text:
    Mahlon D. Miller, Trading as Merchants Currency Exchange, Appellee, v. American Export Lines, Inc., et al., Defendants. American Export Lines, Inc., and United States Fidelity and Guaranty Company, Appellants.
    Gen. No. 41,163.

      opinion filed November 4, 1940;
    rehearing denied November 18, 1940.
    Eugene P. Kealy, for appellants American Export Lines, Inc., and United States Fidelity and Guaranty Company; Weissenbach, Hartman, Craig & Okin, for appellee; Harry Okin and Cecil
    Harry Okin and Cecil Magid, of counsel.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


text:
    Massachusetts Mutual Life Insurance Company, Appellee, v. Michael J. Hanley et al. Dorothy Sherwin, Appellant.
    Gen. No. 41,174.
    opinion filed November 4, 1940.
    L. A. Sherwin and Louis Rieger, for appellant; Louis Rieger and Wm. A. Sherwin, of counsel; Eckert & Peterson, for appellee; Walter H. Eckert, William U. Bardwell and Owen Rail, of counsel.
   Opinion by

Presiding Justice O’Connor.

* ‘Not to be published in full.”


text:
    Sigmund Strauss, Appellee, v. Acme Screen, Shade and Sash Company, Appellant.
    Gen. No. 41,185.
    opinion filed November 4, 1940.
    Arle Urban, for appellant; Fischel, Kahn & Heart, for appellee; Max Hess Weinberg, of counsel.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


text:
    Jesse L. Lawver, Appellee, v. L. B. Motors, Inc., Appellant.
    Gen. No. 41,205.
    opinion filed November 4, 1940;
    rehearing denied, November 18, 1940.
    John A. Bloomingston, for appellant; Ryan, Sinnott & Miller and Louis G. Davidson, for appellee.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


author: Justice McSurely.

text:
    Foote Brothers Gear and Machine Corporation, Appellee, v. Maplewood Machinery Company, Inc., Appellant.
    Gen. No. 41,181.
    opinion filed November 4, 1940.
    Cavender & Kaiser, for appellant; Marcus L. Silver, for appellee; Milton M. Hermann, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.”


author: Justice McSurelt.

text:
    Frank J. Hart, Appellant, v. Joseph S. Duncan, Appellee.
    Gen. No. 41,191.

      opinion filed November 4, 1940.
    Hubert E. Page, for appellant; Alden, Latham & Young, for appellee.
   Opinion by

Justice McSurelt.

“Not to be published in full.”


author: Justice MoSurely.

text:
    Peter Bain, Appellant, v. Guy A. Richardson et al., Appellees.
    Gen. No. 41,201.
    opinion filed November 4, 1940.
    Sher & Karlin, for appellant; Leo S. Karlin, of counsel; Prank L. Kriete, C. C. Cunningham and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Opinion by

Justice MoSurely.

* ‘Not to be published in full.”


author: Justice McSurkly.

text:
    Mary F. Howie et al., v. Village of Mount Prospect et al. Village of Mount Prospect, Appellant, v. Christian D. Busse et al., Appellees.
    Gen. No. 41,213.

      opinion filed November 4, 1940.
    Samuel Wodika, for appellant; Lawlor & Walsh, for certain appellees; Walter W. Weiss and John R. Ong, for certain other appellee; Edwin D. Lawlor and John R. Ong, of counsel.
   Opinion by

Justice McSurkly.

“Not to be published in full.’’


author: Justice McSurbly.

text:
    Elizabeth Sundberg, Successor Trustee to Charles A. Koepke, Deceased et al., Appellees, v. Clarence D. Matteson et al., Appellants.
    Gen. No. 41,224.
    opinion filed November 4, 1940;
    rehearing denied, November 18, 1940.
    William E. Helander and Peter K. DeVuono, for appellants; Louis W. Mack, pro se; Zimmerman & Norman, for appellees; Edward A. Zimmerman and William R. Engelhardt, of counsel.
   Opinion by

Justice McSurbly.

“Not to be published in fuU.”


text:
    R. I. Davis, Succeeded by Logan L. Mullins, Receiver, et al., Appellees, v. Charles Sedman and Louis W. Mack, Appellants.
    Gen. No. 41,225.
    opinion filed November 4, 1940;
    rehearing denied, November 18, 1940.
    Hector A. Brouillet, for appellant Charles Sedman; Louis W. Hack, pro se; Sonnenschein, Berkson, Lautmann, Levinson & Morse, for certain appellees; Zimmerman & Norman for certain other appellee; Roger S. Block, Edward A. Zimmerman and I. E. Ferguson, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.”


author: Justice Matchett.

text:
    Walter E. Heller and Company, Appellee, v. Johanna Martin, Appellant.
    Gen. No. 41,177.
    opinion filed November 4, 1940.

      Laurence M. Pine, for appellant; Robert D. Melick, of counsel; Sloan, Levings & Short, for appellee; William H. Sloan, of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.’’


text:
    Frank Panknin, Appellee, v. Inspiration Placers, Inc., and George Ford, Appellants.
    Gen. No. 41,188.
    opinion filed November 4, 1940.
    J. Arthur Kealy, for appellants; Kennedy, Grider & Moberley, for crossappellee.
   Opinion by

Justice Matchett.

“Not to be published in full.’’


author: Presiding Justice Hbbel.

text:
    People of the State of Illinois, Defendant in Error, v. Robert Allen, Plaintiff in Error, People of the State of Illinois, Defendant in Error, v. Ellis Greenberg, Plaintiff in Error, People of the State of Illinois, Defendant in Error, v. John Ramashla, Plaintiff in Error,
    Gen. No. 41,108.
    Gen. No. 41,109.
    Gen. No. 41,110.
    Gen. Nos. 41,108, 41,109, 41,110.

      opinion filed November 20, 1940.
    Isadore Gold-stein and Lawrence E. Dowd, for plaintiff in error; Thomas J. Courtney, State's Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Leo Poeh, Assistant State's Attorneys, of counsel.
   Opinion by

Presiding Justice Hbbel.

“Not to be published in full.”


text:
    People of the State of Illinois, Appellee, v. Charles Purka, Appellant.
    Gen. No. 41,117.
    opinion filed November 20, 1940;
    rehearing denied December 11, 1940.
    Joseph B. Lofton and William J. Gleason, for appellant; Thomas J. Courtney, State’s Attorney, for appellee; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State's Attorneys, of counsel.
   Opinion by

Presiding Justice Hbbel.

“Not to be published in full.”


author: Justice Burke.

text:
    People of the State of Illinois ex rel. Gladys Wittenmeyer, Appellee, v. Charles E. Mitchell, Appellant.
    Gen. No. 41,184.
    Denis E. Sullivan, J., dissenting.
    opinion filed November 20, 1940;
    rehearing denied December 11, 1940.
    Lloyd C. Moody, for appellant; Edward G. Schultz, of counsel; Thomas J. Courtney, State's Attorney, for appellee; Edward E. Wilson, John T. Gallagher and Melvin S. Bembe, Assistant State's Attorneys, of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.”


text:
    Forest Preserve Real Estate Improvement Corporation, Appellee, v. A. Parkin Miller, Appellant.
    Gen. No. 41,204.
    Denis E. Sullivan, J., dissenting.

      opinion filed November 20, 1940.
    Hubbard, Baker & Bice, for appellant; Alvin Glen Hubbard, of counsel; A. B. Manion, for appellee.
   Opinion by

Justice Burke.

“Not to be published in full.’’


text:
    Guy V. Lehman, Appellant, v. James A. Hannah and Archie Walker, Appellees.
    Gen. No. 41,254.
    opinion filed November 20, 1940.
    Owens & Owens, for appellant; Thomas L. Owens, of counsel; W. Harold Butherford, for appellees; Bichard E. Keogh, of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.’’


text:
    Charles M. Upham, Appellee, v. Samuel Kerr, Appellant.
    Gen. No. 41,295.

      opinion filed November 20, 1940.
    Guy M. Blake, for appellant; Rubenstein, Haggenjos & Monarch, for appellee.
   Opinion by

Justice Burke.

“Not to be published in full.’ ’


text:
    William L. O'Connell, Receiver, Appellee, v. Abraham Jacobs et al. Appeal of Abraham Jacobs, Appellant.
    Gen. No. 41,327.
    Denis E. Suhhvan, J., dissenting.
    opinion filed November 20, 1940.
    Fred Albert, for appellant; Norman C. Barry, for appellee; Harold L. Reeve, Norbert B. Tyrrell and Daniel S. Wentworth, Jr., of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.’’


text:
    Bernice Grossman, Appellee, v. Herman Grossman, Appellant.
    Gen. No. 41,366.
    Denis E. Sullivan, J., dissenting.
    opinion filed November 20, 1940.
    Samuel Shamberg and Russell J. Topper, for appellant; Russell J. Topper, of counsel; Turner & Turner, for appellee; Maurice Turner, of counsel.
   Opinion by

Justice Burke.

“Not to be published, in full.”


author: Justice Denis E. Sullivan.

text:
    Herring-Hall-Marvin Safe Company, Appellee, v. Paul Korshak et al., Trading as Chicago State Pawners, Ltd., Appellants.
    Gen. No. 41,114.
    opinion filed November 20, 1940;
    rehearing denied December 11, 1940.
    Max M. and Donald Korshak, for appellants; Donald Korshak, of counsel; Marcus L. Silver, for appellee.
   Opinion by

Justice Denis E. Sullivan.

“Hot to be published in full.”


text:
    Anna Kovae, Appellee, v. Modern Mutual Insurance Company, Appellant.
    Gen. No. 41,319.
    opinion filed November 20, 1940.
    Orrico & Rosenzweig, for appellant; Joseph B. Gilbert, of counsel; no appearance for appellee.
   Opinion by

Justice Denis E. Sullivan.

“Hot to be published in full.”


author: Mr. Justice Dady

text:
    Biebel Roofing Company, Inc., Appellant, v. Samuel Pritchett and Martha Pritchett, Appellees.

      Opinion filed October 28, 1940.
    Rehearing denied December 11, 1940.
    D. F. Moore and Eovaldi & Eovaldi, both of Benton, for appellant.
    J. E. Carr, of West Frankfort, for appellees.
   Mr. Justice Dady

delivered the opinion of the court.

During all of the times in question Samuel Pritchett owned, and he and his wife occupied as a homestead, a house and lot in Franklin county.

Pursuant to a written contract with Samuel Pritchett, the plaintiff put a new roof on such house. The contract price was $150, and to evidence such indebtedness Samuel Pritchett, at the time of executing the contract, also executed and delivered to the plaintiff a judgment note for $150, payable to plaintiff in instalments without interest. The note contained .the usual provision for the allowance of a reasonable attorney fee to the holder thereof in the event of the entry of judgment.

Thereafter there was paid on the note the sum of $44, and thereafter plaintiff obtained in the circuit court a judgment by confession on such note in the sum of $131 against Samuel Pritchett. In such sum of $131 there was included $25 as attorney fees. Thereafter, by virtue of an alias execution issued on such judgment, the sheriff levied on and sold the real estate in question to the plaintiff, and after the time for redemption had expired issued a deed conveying said real estate to plaintiff. No attempt was made at any time to set off the homestead.

. After demand for and refusal of possession the plaintiff instituted in justice court this action of forcible entry and detainer against defendants Samuel Pritchett and Martha Pritchett, his wife. On appeal, the circuit court entered judgment in favor of defendants, and plaintiff brings this appeal to review such judgment.

Plaintiff contends and defendants deny that such sheriff’s deed deprived defendants of their homestead in, and consequent right to the possession of, the premises.

The right of homestead is based on section 1 of chapter 52 of our statutes which provides, so far as is material, that every householder having a family, shall be entitled to an estate of homestead, to the extent in value of $1,000, in the lot of land and buildings thereon, owned or rightly possessed and occupied by him or her as a residence, and that such homestead, and all right and title therein, shall be exempt from levy or execution or sale for the payment of his debts or other purposes “except as hereinafter provided.” Section 3 of the same statute provides that no property shall by virtue of such act be exempt from sale “for ... a debt or liability incurred for the . . . improvement thereof.”

Plaintiff contends that the debt or liability for which the property was so sold was incurred for the improvement of the real estate and that therefore the homestead in such real estate was not exempt from the sale in question. With this contention we cannot agree. The original debt for the improvement was $150 evidenced by the note. This debt was reduced to $101 before judgment. Judgment was not rendered and the property was not sold for this debt of $101 but there was included in the judgment $25 as attorney fees, which fees were no part of the original debt so incurred for the improvement of the real estate. Attorney fees are not embraced within the exceptions in said section 3 for which a homestead may be subjected to forced sale.

In Walters v. Texas Building & Loan Ass'n, 8 Tex. Civ. App. 500, 29 S. W. 51, the opinion states that the constitution of Texas provides that “the homestead of the head of a family shall be and is hereby protected from forced sale for the payment of all debts, except for . . . work and material used in constructing improvements thereon . . . .” The court said: “It is also insisted that the 10 per cent, attorney’s fees (provided for in the note sued on in such case) cannot be recovered and enforced as a lien upon the homestead. Such attorney’s fees are not embraced within the exceptions named in the constitution for which the homestead may be encumbered and subjected to forced sale. It is not a liability for which the parties may contract and encumber the homestead. . . . When the property cannot legally be encumbered, except for certain purposes specified in the constitution, a liability not embraced in such purposes cannot become, by contract, a charge upon the property on account of the fact that it is coupled with another obligation with which the property may be charged.” The holding in this case was approved by the Supreme Court of Texas in Harn v. American Mut. Bldg. & Sav. Ass'n, 95 Tex. 79, 65 S. W. 176.

In the instant case the sale, as we have pointed out, was held under a judgment which was based on a contingent liability for attorney fees under the note as well as a fixed liability or debt for the improvement. The plaintiff having combined both claims against the defendant Samuel Pritchett in a single judgment and having proceeded to a sale under that judgment, has failed to bring its rights within the exceptions provided in section 3. The sheriff’s sale and deed, under these circumstances, did not deprive said defendant of his homestead rights, which rights included the right to remain in possession of the premises until such homestead was legally divested.

We consider it immaterial that there was no evidence tending to show the value of the real estate. A purchaser on execution of land worth more than $1,000, in which the judgment debtor has an estate of homestead, without setting off the homestead, gets no title which is available in a proceeding at law for the possession of the premises, because the court cannot determine how far the homestead right will extend. (Diets v. Hagler, 309 Ill. 381.) If the land was worth less than $1,000, the deed did not affect the title of Samuel Pritchett but was a nullity. (Gray v. Schofield, 175 Ill. 36.)

The plaintiff not having shown a right to possession, the judgment of the lower court is affirmed.

Affirmed.


text:
    George R. Knight, Appellant, v. Citizens Coach Company, Appellee.

      Opinion filed October 28, 1940.
    Rehearing denied December 11, 1940.
    Jacoby & Patton, John B. Coppinger, Jr., and Frank L. Manns, all of Alton, for appellant.
    Green & Hoagland, of Alton, for appellee; J. J. Middleton, of Alton, of counsel.
   Mr. Justice Dady

delivered the opinion of the court.

This is a motor vehicle accident case in which plaintiff contends that while walking upon a street crosswalk he was struck and injured by a bus of defendant. Plaintiff appeals from a judgment of the trial court based on a verdict directed in favor of defendant at the conclusion of plaintiff’s case in chief.

Each count of the complaint charged that at the time in question plaintiff was walking on a crosswalk. Each count charged and the answer admitted that at the time in question there were no traffic control signals in position or operation at the intersection. The first count charged general negligence. The second count pleaded the statute which provides that where traffic control signals are not in place or in operation, the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, and charged that the defendant negligently failed to yield the right of way to the plaintiff, but carelessly and negligently drove upon and against the plaintiff. The third count charged that the defendant wilfully and wantonly drove upon and against the person of the plaintiff. The answer denied that plaintiff was walking on any crosswalk, but charged plaintiff was “then and there walking a great or considerable distance west of the intersection,” denied that defendant failed to yield the right of way, and denied any negligence or wilful or wanton misconduct.

On March 8, 1939, about eight a. m., plaintiff, aged 67 years, while walking from the northerly to the southerly side of Broadway street, in the city of Alton, was struck and seriously injured by a bus of defendant. Broadway runs east and west and intersects Alton street, which runs north and south. Broadway is 59 feet wide and Alton 40 feet wide. Dennis’ Brothers store is located at the northeast corner of the intersection. Foster’s drug store is located at the northwest corner and has a frontage of 33 feet on Broadway. Reiss’ studio is on the north side of Broadway and immediately west of the drug store and has a frontage of 30 feet on Broadway. The crosswalk from the northwest corner to the southwest corner of the intersection was not marked or outlined as is generally or frequently the case in a city. Plaintiff testified that a “single” black line, supposedly of tar, ran across Broadway from the west curb line of Alton street, extended southerly, and that this black line was used by pedestrians in walking across Broadway. At the time in question there were no traffic control signals in position or operation at the intersection.

Plaintiff testified that he walked south on the east side of Alton street to Broadway, then crossed Alton street to the northwest corner of the intersection; that he. did not know if he went up on the sidewalk “at Foster’s”; that he then looked to the east to see if anything was coming and saw the bus unloading passengers at the northeast corner, and then started across Broadway “where there is a black line to get across the street”; that “I don’t know how many steps, I don’t remember- that, the next I remember I was in the hospital”; that the black line “goes right straight across Broadway about even with the east end of the sidewalk coming down Alton Street”; that another bus, a small one, was parked on Broadway in front of the drug store, about 5 or 6 feet west from the corner and about 5 or 6 feet west from where he started across; that “I looked east before I started to cross the street, and I saw a bus stop in front of Dennis’ Brothers Store, and if I recall there were some girls getting off; that’s the last thing I remember, . . . I could not tell you when and where I was struck, ... I know I wasn’t struck approximately forty feet west of the intersection. I know that I went straight across.”

A passenger on the bus testified he was sitting on a side seat facing north; that the bus was about 25 feet long and was “operated at between twenty and twenty-five miles per hour,” that he guessed about 25 miles per hour, and did not stop at the northeast corner; that he thought it came “straight down Broadway”; that he did not see the plaintiff struck, but felt the brakes applied and heard the impact; that at the moment of the impact the bus was west of Alton street,“probably twenty-five feet west from the corner”; that after the impact the bus traveled about 20 feet, and when it stopped the front end was at the “division” between the Reiss studio and the Foster drug store and the rear end at about the middle of the Foster drug store; that he went into the drug store to call an ambulance and when he came out he saw plaintiff lying at about the middle of the street and about 33 feet west of the intersection. On recross he testified “When I first felt the impact Mr. Knight was, I think, right at the corner, I am not positive. ’ ’

- Another passenger testified he was seated three seats back from the front end of the bus; that he did not remember the bus picking up any passengers at the northeast corner of the intersection; that he was watching the driver of the bus “and I saw him put his foot on the brake and just before that I saw Mr. Knight’s hat coming in front of the windshield, . . . I saw Mr. Knight’s face come in front of the windshield and his hat was out in the,air,” and he was knocked probably 30 or 35 feet; that the front of the bus was just about on the crossing when he saw plaintiff’s head; that the bus was not going at any high speed, just a normal speed; that the bus might have run the length of itself before it stopped, and when he got off the bus plaintiff was lying 30 or 35 feet from the corner and the back of the bus was just about even with the corner, and that prior to the accident the witness did not notice any traffic on Alton street going north and south, and did not notice any automobiles in front of the bus; that as the bus approached and crossed Alton street it was on the north side of the street.

Another witness testified that he reached the scene of the accident about two or three minutes after the accident and that plaintiff was then lying in the street about 20 feet south of the north curb and about 30 or 35 feet west of the west curb of Alton street.

The bus driver testified that at the time the bus struck Mr. Knight the latter was about even with the west line of the Foster drug store and about 8 or 10 feet south of the north curb line of Broadway.

The foregoing was all of the evidence material to the present issues.

Pláintiff’s motion for a new trial was duly made and overruled, and the trial court entered judgment on the verdict in favor of the defendant.

We do not consider it necessary, or proper for us to pass upon the question of whether or not plaintiff made out a prima facie case for the reason that in our opinion the court erred in not granting a new trial on the ground of newly discovered evidence.

In his verified motion for a new trial plaintiff stated that since the trial he had discovered an eyewitness, namely, one Bartley, whom he did not know existed until after the trial; that the plaintiff searched and caused to be searched the vicinity in and about the scene of the accident and in and about the city of Alton for many days in an effort to find eyewitnesses to the accident; that all known passengers on the bus and bystanders in the vicinity of the accident were interviewed in an effort to locate eyewitnesses, that no such evidence could be found, and that it was by accident that Bartley was discovered. In support of such motion he presented and filed the affidavits of Bartley, Jacoby and Coppinger.

In his affidavit Bartley stated that at the time of the accident he was walking east on the north side of Broadway just west of Alton street and just in front of the Reiss studio; that he'saw a man (whom he later identified as the plaintiff) standing on the sidewalk, right at the corner of Foster’s drug store, and the man was starting across Broadway from the drug store to the south; that the man looked to his left or to the east as he started to walk across Broadway; that such man was walking straight across the street from the northwest corner to the southwest corner of the intersection in question, about 3 feet west of the black expansion point which crosses Broadway from the north to the south, and was walking parallel to such black line; that the man was about two-thirds of the distance from the north curb to the north rail of the street car tracks when Bartley first saw the bus in question approaching from the man’s left; that the bus was going at approximately 35 miles an hour and was then in front of the southwest corner of Dennis’ brothers store and in the westbound traffic lane, and did not seem to swing into the corner at Dennis’ brothers to make a stop; that Bartley did not hear any horn or signal from the bus; that the bus ran into the man and tossed the man about 5 or 6 feet ahead of the bus, and that when the bus stopped the man was lying on the pavement about 5 or 6 feet ahead of the bus and at about the center of the street, and just about in front of the Reiss Studio; that the plaintiff was in the crosswalk when he was hit; that Bartley did not talk about the case until after the case was tried, when he first learned that his testimony would be useful.

In his affidavit Jacoby stated that, as attorney for the plaintiff, he investigated and prepared the case for trial and personally devoted 10 hours of his time in endeavoring to find witnesses who saw the plaintiff struck by the bus; that he did not discover Bartley, but Bartley was discovered subsequent to the trial.

In his affidavit Coppinger stated that as attorney for the plaintiff he assisted in preparing the case for trial by interviewing witnesses; that he personally devoted 40 hours of his time in endeavoring to find witnesses who saw plaintiff struck by the bus; that his investigation consisted of a canvass of the scene of the accident from door to door for a distance of more than one block from the scene of the accident; that he personally talked to all witnesses who said they were passengers on the bus and to any and all persons who said they knew anything at all about the accident, and to any and all persons whom witnesses on the bus said knew anything about the accident; that he did not know Bartley or that Bartley was a witness at the scene of the accident until after the trial.

We believe this motion for a new trial, supported by such affidavits, fully met all of the requirements necessary to entitle the plaintiff to a new trial on the ground of newly discovered evidence, which requirements are set forth in People v. Williams, 242 Ill. 197. Where there is diligence and the new matter does not conflict with the rule concerning cumulative evidence, and is such as to strengthen the conviction that justice has not been done, a new trial should be granted, and in such cases the courts should not hesitate to grant a new trial. (People v. Heinin, 300 Ill. 498; Swiney v. Miller, 253 Ill. App. 81.)

On the trial no witness testified as to the conduct of the plaintiff after he started to cross the street until he was struck; no one testified that the plaintiff iat the time of the accident was “walking straight across the street from the northwest corner to the southwest corner,” or that in so doing the plaintiff was walking about 3 feet west of and parallel to the black line heretofore referred to, or that the plaintiff was about two-thirds of the distance from the north curb to the north rail of the street car tracks when the bus approached him, and no witness gave testimony tending to show that no horn was blown or signal given by the driver of the bus. These facts were very material and would not be cumulative evidence.

We are of the opinion that the evidence so introduced by plaintiff on the trial, together with such testimony of the witness Bartley, would present a prima facie case which should be submitted to the jury. See Deford v. Lohmeyer, 147 Md. 472, 128 Atl. 454; Nicholas v. Leslie, 7 Cal. App. (2d) 590, 46 P. (2d) 761 and Volpe v. Perruzzi, 123 N. J. L. 323, 8 Atl. (2d) 580, in each of which cases a pedestrian on a crosswalk was injured by an automobile, and in each of which cases it was held in effect that plaintiff made out a prima facie case.

Reversed and remanded.