text:
    Edward Topel, Appellee, v. Personal Loan and Savings Bank, Appellant.
    Gen. No. 39,292.
    Opinion filed June 8, 1937.
    Taylor, Miller, Busch & Boyden, of Chicago, for appellant; John S. Miller and Morris Leibman, of Chicago, of counsel.
    Alfred M. Loeser and Yellen & Grant, all of Chicago, for appellee; George Yellen and Louis Z. Grant, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This action was commenced February 18, 1932, and was dismissed April 21, 1936, for want of prosecution by Judge Walter W. Wright. This had been the third dismissal for the same reason, the cause having been reinstated twice theretofore without objection by defendant. September 17, 1936, almost five months and as many terms after the third order of dismissal, plaintiff filed a petition to vacate said order of dismissal of April 21, 1936. Judge Rush upon the filing of said. petition, without requiring or permitting defendant to file a pleading* of any kind to it and without requiring plaintiff to present any evidence in support of the allegations thereof, entered an order vacating the judgment of dismissal over defendant’s objection. This appeal seeks to reverse said judgment order of September 17, 1936.

The only pleading involved is plaintiff’s petition to vacate filed September 17, 1936, and the affidavit thereto attached. The allegations of said petition are as follows:

“1. Tour petitioner, Alfred M. Loeser, respectfully represents unto this Honorable Court that he is the attorney for the plaintiff in the above entitled cause; that he has been diligently engaged in watching the said cause and that through error or misprision, the said cause was dismissed, along with a group of other cases, for the reason that no orders had been entered for two years immediately thereto preceding*.
“2. Tour petitioner further says that there had been orders entered in said cause immediately preceding, in January and February, 1936, by Judge Wimbiscus and in November, 1935.
“3. Tour petitioner further says that the said cause was erroneously dismissed in that it was upon the call of Judge Cummings set for the 30th day of March, 1936, in Room 1125, and that during the same period of time appears to have come up before Judge Wright who was taking the place of Judge Wimbiscus, Room 1124, which said appearance upon the call of Judge Wright was unknown to Michael Tito, the law clerk of this petitioner who was charged with the duty of watching said cause and was diligently attempting to perform such duty.
“4. Your petitioner further says that through no fault of said Michael Tito and because of the fact that the said cause was on both calls, the said cause came up, among a group of cases, on the 21st day, of April, 1936, before the Honorable Judge Wright, sitting in Room 1124, instead of before Judge Cummings, Room 1125, where the record of this office of your petitioner had shown it to be, at which time the said cause was dismissed.
“5. Your petitioner further says that even the clerk himself knew nothing of such dismissal, which was inadvertently made, and placed the same upon the 1936 Calendar No. 1 as number 152, and whereupon, at a preliminary call of the cases, it became apparent to counsel that the cause had been inadvertently dismissed, on the 14th day of September, 1936; wherefore he immediately investigated said cause and proceeded to obtain an affidavit of said Michael Tito with the utmost of diligence, a copy of which affidavit is attached hereto, made a part hereof and marked ‘Petitioner’s Exhibit A. ’
“6. Wherefore, your petitioner prays this Honorable Court that it enter an order vacating the said dismissal of the said cause of April 21, 1936, in conform-' anee with the statutes in such cases made and provided. ’ ’

The affidavit averred:

“1. Michael Tito being first duly sworn on oath deposes and says that he is by occupation, a law clerk, in the City of Chicago, county and state aforesaid.
“2. Affiant further says that during the times hereinafter mentioned he was employed as a law clerk in the offices of Alfred M. Loeser, the attorney for the plaintiff in the above entitled cause.
“3. -Affiant further says that he resides at 1109 South Jefferson street in the City of Chicago.
“4. Affiant further says that he was charged with the duty of watching the said case in the said law office of Alfred M. Loeser and accordingly was in the commission of the said duties watching the said case.
“5. Affiant further says that the said case came up for hearing in Room 1124 on the 19th day of March before Judge Wright.
“6. Affiant further says that he was informed that said cause was upon Judge Cummings’ call in 1125.
“7. Affiant further states that accordingly, he watched the said cause from time to time, and on the 30th day of March, 1936, in Room 1125, the said cause was set before Judge Cummings.
“8. Affiant further says that he spoke to the clerk at said time aforementioned and the clerk advised him that there wa's a great many cases ahead of it and that said cause would appear upon the said call and that he should just watch Judge Cummings call from time to time.
“9. Affiant further says that the said Judge Wright was sitting in the same place and performing the same duties as that of Judge Wimbiscus; that previously the said cause had been through error of the clerk dismissed for the supposed reason that there had been no orders entered within two years immediately preceding that time, which said dismissal was vacated and set aside.
“10. Affiant further says that said Judge Wimbiscus in conformance with his duties under rule of this court dismissing all causes where no orders had been entered within two years immediately preceding thereto, dismissed a group of cases on the 21st day of April.
“11. Affiant further says that he was watching the call of Judge Cummings for the said cause assuming that the said cause would be upon said Judge Cummings’ call, and further that said Alfred M. Loeser was ready to try the said cause at any time it would be reached for trial and, that he or said attorney had no notice that the-said cause was dismissed/
“12. Affiant further says that no other person had any such notice, and that it was an inadvertent misprision of the clerk, as will more readily be seen from the fact that the clerk’s office had no knowledge of such dismissal, in light of the fact that the said cause was placed upon the calendar for 1936, as Number 152, where it is at this time.
“13. Affiant further says that the plaintiff has a good and sufficient cause of action; that the plaintiff has been diligent and is ready to proceed to trial at an early date, and prays this Honorable Court that it vacate the said order of dismissal of the 21st day of April, 1936, in conformance with the statutes in such cases made and provided. ’ ’

The full text of the order entered by Judge Rush September 17, 1936, is as follows:

11 On motion of Alfred M. Loeser, attorney for plaintiff in the above entitled cause, after due notice served and the court having read the petition of Alfred M. Loeser, petitioner, attorney for plaintiff, and accompanying affidavit thereto attached for good cause shown it is hereby
“Ordered that the order dismissing the cause of April 21, 1936, be and.is hereby vacated and set aside.
“It is further ordered that the clerk of this court set the cause for trial at an early date.”

This order clearly shows that it was entered solely upon the petition and affidavit filed by plaintiff September 17,1936. Pursuant to notice served September 22, 1936, defendant filed a written motion September 24,1936, to vacate the order of September 17,1936, and for leave to file its petition to dismiss plaintiff’s aforesaid petition of September 17,1936.

Defendant’s petition of September 24, 1936, alleged inter alia that “over the defendant’s objection and request for the right to file a pleading to the petition and set the matter for hearing as a contested motion, Judge Bush then and there entered an order vacating the order of dismissal entered April 21,1936, by Judge Wright.”

The record discloses that Judge Bush made no ruling definitely disposing of defendant’s motion to vacate the order of September 17, 1936, and for leave to file its petition to dismiss plaintiff’s petition of December 17, 1936, but did enter the following order on September 24, 1936:

‘ ‘ This cause coming on to be heard on due notice and the court having heard the arguments of counsel for both parties,
“It Is Hereby Ordered, Adjudged and Decreed that the record in this cause show that the defendant duly objected and excepted to the entry of the order heretofore entered on September 17, 1936.”

Inasmuch as we have concluded that this judgment should be reversed and the cause remanded, it is necessary to consider only defendant’s contention that the trial court erred in entering the judgment order of September 17,1936, over its objection and without first. giving it the right to file a pleading to plaintiff’s petition to vacate the order of dismissal, and without requiring plaintiff to present evidence in support of his said petition.

Plaintiff’s theory is that the petition and affidavit filed in his behalf set forth errors of fact sufficient under sec. 72 of the Civil Practice Act to empower the trial court to vacate the order of dismissal of April 21, 1936, after the expiration of the term at which it was entered and that Judge Bush did not err in so doing.

Sec. 72 of the Civil Practice Act (Ill. State Bar Stats. 1935, ch. 110, 11200; Jones Ill. Stats. Ann. 104.072) provides as follows:

“The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice. When the person entitled to make such motion shall be an infant, non compos mentis or under duress, at the time of passing judgment, the time of such disability shall be excluded from the computation of said five years.”

In Seither & Cherry Co. v. Board of Education, 283 Ill. App. 392, the court pointed out at p. 401:

“This section 72 is section 89 of the Practice Act of 1907, without change, and therefore the same construction should be given said section 72 as was given said section 89.”

It has been repeatedly held and firmly established that a motion in the nature of a writ of error coram no-bis is the commencement of a new suit, that the pleadings therein are original, that the issues are distinct from those in the principal suit and that the judgment rendered is a separate judgment. (Central Bond & Mortgage Co. v. Roeser, 323 Ill. 90; Jacobson v. Ashkinaze, 337 Ill. 141; McCord v. Briggs & Turivas, 338 Ill. 158; People v. Green, 355 Ill. 468.) The motion filed in a proceeding under said sec. 72 has been held to be the declaration in the new suit and the other party to the cause should be required to file a pleading to the motion. (Smyth v. Fargo, 307 Ill. 300; Brinkman v. Paul ciewski, 245 Ill. App. 307; Adams v. Butman, 264 Ill. App. 378; People v. Gardner, 279 Ill. App. 451.)

In People v. Nakielny, 279 Ill. App. 387, where the proper practice in proceedings of this kind was outlined in detail in the opinion written by Mr. Justice Scanlan, this court said at pp. 395, 396:

“In a proceeding under section 89, the State’s attorney, after written notice, has a right to test the sufficiency of the motion or petition by demurrer, plea of nullo est erratum, by motion to dismiss, by pleading special matters in confession and avoidance, or by making an issue of fact by traversing the allegations. (See People v. Green, supra, p. 475.) If the petition or motion is sufficient upon its face and the facts are disputed, an issue must be made up to be tried. In Mitchell v. King, 187 Ill. 452, the court held that the petition or motion is the commencement of a new suit in which new issues are made up, upon which there must be a finding and a judgment, and that ‘if the alleged error is proved and there is judgment for the plaintiff in error, it is that for such error the judgment be recalled and annulled. ’ Later cases have followed that holding.

“ ‘The judgment upon a writ of error coram nobis is that the judgment complained of be recalled, if the issue is in favor of the petitioner; and the original suit is placed in the same position as it was when the judgment was rendered. The judgment complained of is affirmed if the issue is in favor of the defendant in error.’ (5 Ency. of Pl. & Pr. 36, 37.)

“After the petition was filed and notice served the People should have been ruled to plead, and if they failed to comply with the rule default could then be entered against them. (Barnes v. Chicago City Ry. Co. [185 Ill. App., p. 151]; Wagener v. Western Electric Co. [213 Ill. App., p. 328].) No rule to plead, no default, was entered. The petition was plainly vulnerable to demurrer. As no errors of fact cognizable under section 89 were alleged in the petition, an issue of fact could not have been made up. Even if a rule had been entered against the People to plead and they had failed to comply with it, the proper procedure required that' default be entered against them before judgment be taken. (Barnes v. Chicago City Ry. Co., supra; Wagener v. Western Electric Co., supra.) ... In the order of March 1, there is no finding, no judgment, such as must appear in a proceeding under section 89 (sec. 72, par. 200, ch. 110, Cahill’s Ill. Rev. St. 1933).”

The trial court clearly erred in refusing to allow defendant to file a pleading to plaintiff’s petition to vacate and improperly deprived it of the right to test the sufficiency of said petition or to deny the facts alleged therein.

When section 72 of the Civil Practice Act is invoked the burden is on the one seeking to set aside the judgment to prove by the preponderance of the evidence the facts alleged in Ms petition or motion. (People v. Green, 355 Ill. 468; People v. Crooks, 326 Ill. 266.) An inspection of the order of Judge Rush heretofore set forth vacating the order of dismissal shows that no evidence whatever was introduced in support of plaintiff’s petition of September 17, 1936, and it cannot be seriously urged that such petition itself was evidence of the allegations contained therein. In Mitchell v. Eareckson, 250 Ill. App. 508, the court stated at p. 511:

“Appellant verified her motion but inasmuch as the motion stands as a declaration in a new suit, the verified motion is not evidence of the averments therein contained. The motion is not evidence, although sworn to, as its office is merely to point out the errors of fact on which relief is sought. 34 C. J. 401; Hicks v. Haywood, 4 Heisk. (Tenn.) 598. A sworn petition for a writ of error coram nobis is only a pleading in the case, and is not proof of the matters alleged in it. Johnson v. Straus Saddlery Co., 2 Ala. App. 300, 56 So. 755.”

Defendant strenuously insists that when plaintiff’s motion or petition was presented to Judge Rush it objected to the court considering or passing upon same without first allowing* it to file an appropriate plea. It is true that the order of the'trial court of September 17,1936, contains no recital of plaintiff’s objection but the subsequent order of the court entered a week later that “the record in this cause show that the defendant duly objected and excepted to the entry of the order heretofore entered on September 17, 1936,” is conclusive that timely objection was interposed by the defendant. Even where leave to plead is not requested it has been held that the proper practice is for the court to rule on the other party to the cause to plead.

We deem it our duty to call attention to the brief submitted by plaintiff’s counsel. In said brief they brush aside all of defendant’s arguments and authorities with the bald assertion that same are “not in point” or are “not applicable here,” and to sustain the judgment of the trial court urge (1) “that it was the duty of the defendant to question the sufficiency of the petition in the trial court and such sufficiency cannot first be raised on this appeal”; (2) that “it must be presumed that the decision of Judge Rush is fully supported by the evidence heard at the trial”; (3) that “the defendant did not move the trial court for leave to plead to the petition of the plaintiff but elected to proceed to a hearing on the merits”; and (4) that “the burden of preserving the evidence on appeal is on the appellant.”

In support of each of the foregoing propositions the statement is made in plaintiff’s brief that the court’s order of September 17,1936, was entered after a hearing on the merits and the introduction of evidence in support of the allegations of plaintiff’s petition to vacate. The defendant insists that this statement, which is repeated in plaintiff’s brief not less than 13 times, is false and it appears to us from the record presented to be false and to have been deliberately made. The order entered after the purported hearing on the merits, including the purported presentation of evidence is in ■ itself a refutation of the statement. The recital in the order that “on motion of Alfred M. Loeser, attorney for plaintiff in the aforesaid entitled cause, after due notice served and the court having read the petition of Alfred M. Loeser, petitioner, attorney for plaintiff, and accompanying affidavit thereto attached” is adequate proof that the trial judge heard no evidence but entered said order upon the mere reading of the petition and affidavit filed by plaintiff. It is not even intimated in the record that any evidence was presented or that any witnesses testified. The further statement in plaintiff’s brief that “no objection either as to the sufficiency of the petition or the evidence introduced was made by plaintiff at the trial” is obviously false as indicated by the order of September 17, 1936, as well as by the order of September 24, 1936, the very purpose of the latter being to “show that the defendant duly objected and excepted to the entry of the order heretofore entered on September 17, 1936.” The conduct of those responsible for the preparation and filing of plaintiff’s brief was highly reprehensible and cannot be permitted to pass unnoticed.

For the reasons stated herein the judgment order of the circuit court of September 17,1936, is reversed and the cause remanded with directions to expunge said order, to permit defendant to plead to plaintiff’s petition to vacate the order of dismissal within a short day, and if issues of fact are raised by the pleadings to allow a hearing for the trial of such issues of fact.

Reversed cmd remanded with directions.

Friend and Scanlan, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Friend Mr. Justice Scanlan

license: Public Domain

text:
    Mary Wernick and Clara Schonholz, Appellees, v. The Western Union Telegraph Company, Appellant.
    Gen. No. 39,140.
    Opinion filed June 8, 1937.
    West & Eckhart, of Chicago, and Francis R. Stark, of New York, for appellant; Roy O. West, P. B. Eckhart, Paul Hassell and Owen A. West, all of Chicago, of counsel.
    Cairoli Gigliotti, of Chicago, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiffs brought an action in the circuit court against Western Union Telegraph Company for damages resulting from the nonreceipt of $200 forwarded by Mary Wernick, in Chicago, to Clara Schonholz, in New York, by means of a Western Union money order. The court entered judgment against defendant for $500 and this appeal followed.

The amended complaint alleges in substance that May 10, 1935, Mary Werniek delivered to defendant at Chicago the sum of $200 in cash, to be transmitted by wire to the other plaintiff, Clara Schonholz, in New York City. Due to an error defendant delivered but $20 to Mrs. Schonholz, paying the difference of $180 approximately 60 days later. The $200 transmitted was intended to be used by Mrs. Schonholz in New York to pay for an operation upon her invalid son by Dr. Lorenz, of Vienna, Austria, and it is alleged that because of the nonreceipt of the money Mrs. Schonholz made a bus trip to Chicago in an endeavor to raise additional funds. In so doing she claims to have aggravated a case of diabetes and suffered mental anguish, greatly affecting her health. It is also alleged that the money not having been received in time, Dr. Lorenz returned to Europe and the operation was performed by his assistant with indifferent success. Because of these circumstances plaintiffs ask damages of $2,500.

No evidence was adduced at the hearing and judgment was entered upon the court’s interpretation of the following provision, printed on the reverse side of the money order application:

“In any event, the company shall not be liable for damages for delay, nonpayment or underpayment of this money order, whether by reason of negligence on the part of its agents or servants or otherwise, beyond the sum of five hundred dollars, at which amount the right to have this money order promptly and correctly traA%smitted and promptly and fully paid is hereby valued, unless a greater value is stated in writing on the face of this application and an additional sum paid or agreed to be paid based on such value equal to one-tenth of one per cent thereof. ’ ’

The sole question presented is whether the court erred in interpreting that part of the foregoing provision which we have italicized as a liquidated damage clause, under which the court held that plaintiffs were entitled to $500, upon the failure of the company to transmit the full amount, regardless of any actual damage shown by plaintiffs. It is urged by the telegraph company that this provision was never intended as a liquidated, damage clause, but only as a maximum liability provision for rate making purposes.

This transaction was interstate in character. Prior to 1910 the legal relations of telegraph companies with their patrons were controlled by the common law prevailing- in the several States. Through the enactment of federal legislation in 1910 the rights, duties and obligations of telegraph companies became subject to the regulations of the Federal Communications Commission, which, through rules, classifications and tariffs published and filed with the commission, fixed the liability of the carrier and did away with what had previously been a matter of common law liability. The change in the relationship of the parties thus created is clearly expressed by the United States Supreme Court in Western Union Telegraph Co. v. Esteve Bros. & Co., 256 U. S. 566, as follows (at pp. 571, 572):

“The Act of 1910 introduced a new principle into the legal relations of the telegraph companies with their patrons which dominated and modified the principles previously governing them. Before the act the companies had a common-law liability from which they might or might not extricate themselves, according to views of policy prevailing in the several States. Thereafter, for all messages sent in interstate or foreign commerce, the outstanding consideration became that of uniformity and equality of rates. Uniformity demanded that the rate represent the whole duty and the whole liability of the company. It could not be varied by agreement; still less could it be varied by lack of agreement. The rate became, not, as before, a matter of contract, by which a legal liability could be modified, but a matter of law by which a uniform liability was imposed. Assent to the terms of the rate was rendered immaterial, because, when the rate is used, dissent is without effect.” What was said in the Esteve Bros, case was later approved and affirmed in Western Union Telegraph Co. v. Priester, 276 U. S. 252.

The trial court in its judgment order recognized that the provision in question was one of the rate provisions of the telegraph company, but was of the opinion that the clause, “at which amount ($500) the right to have this money order promptly and correctly transmitted and promptly and fully paid is hereby valued, ’ ’ was in effect a liquidated damage clause entitling the sender to the full amount of $500 in any event upon the failure of the company to transmit the full amount promptly.

It is apparent that the telegraph company prepared its new rules and tariffs many years ago in accordance with an order of the Interstate Commerce Commission in the case of Cultra v. Western Union Telegraph Co., 61 I. C. C. 541, where, pursuant to an investigation, it was held that the existing* rules and rates of the telegraph company limiting its liability for negligence were unreasonable, and new rules and rates were prescribed and discussed by the commission, as follows:

“Upon consideration of the record we find that the present rules of the respondents restricting* their liability for negligence in the transmission or delivery, or for nondelivery, of unrepeated and repeated interstate messages are and for the future will be unreasonable; that the maximum liability in the case of a message for the transmission of which the unrepeated rate is charged should be not less than $500, and for a message received for transmission at the repeated rate, $5,000, which limitations we find to be reasonable as parts of the respective rates. Provision should be made for the transmission of valued messages under a liability limited to the value stated in writing by the sender of the message at the time it is offered for transmission upon payment of the repeated rate plus one-tenth of 1 per cent of the stated value in excess of $5,000. An order in accordance with the foregoing findings will be entered.” (Italics ours.)

The provision in controversy, which at first related to messages, was subsequently extended by the telegraph company to money orders, and it is argued that it was intended to and did comply with the order of the Interstate Commerce Commission and was made in accordance with its requirements as stated in the Cultra case, fixing the maximum liability for unrepeated messages at $500.

Without the clause which the court interpreted as a liquidated damage proviso, the agreement is perfectly clear, and we do not perceive the reason which prompted the telegraph company to insert the clause and thus obscure the otherwise perfectly plain intendment of the agreement. Defendant’s counsel cite numerous cases dealing with provisions prescribing a maximum penalty and fixing valuations for rate making purposes, but in none of them do we find clauses of a similar character. Although this particular clause has been a part of the rules, regulations, classifications and tariffs of the telegraph company since 1921, it has never been interpreted as a liquidated damage provision, and no cases are cited which would justify such an interpretation. Reading the agreement as a whole, as it must be read under the fundamental rules of construction, and taking into consideration the historical reasons for changing the legal relationship between telegraph companies and their patrons through federal legislation, and the effect thereof as stated by the court in Western Union Telegraph, Co. v. Esteve Bros. & Co. and the Priester case, supra, we think the court was unwarranted in interpreting the language employed as a liquidated damage clause. In so doing, it evidently failed to consider the intent, purpose and meaning of the entire clause, and considered only the words “at which amount the right ... is hereby valued.” The fair interpretation of the provision as a whole must necessarily give effect to the plainly expressed clauses which precede and follow the so-called liquidated damage provision, stating that “in any event, the company shall not be liable for damages for delay, nonpayment or underpayment of this money order, whether by reason of negligence on the part of its agents, servants, or otherwise, beyond the sum of $500 . . ., unless a greater value is stated in writing on the face of this application and an additional sum paid or agreed to be paid, based on such value, equal to one-tenth of 1 per cent thereof.” The provision, when read in its entirety, was clearly intended to fix, not a definite liability, but a maximum liability or agreed valuation upon which the rate to be paid for the shipment or carriage is to be collected.

It would be useless to discuss the numerous cases cited by defendant involving interstate carriers of various kinds, all of which arose under provisions in some way limiting’ the liability of the carrier upon an agreed valuation under a rate to be paid for the shipment or carriage, because none of them deals with the precise question here under consideration. We are satisfied, however, that the agreement in question was merely a maximum liability provision for rate making purposes, and in fact plaintiffs evidently so considered it, because in their amended complaint, which is quite voluminous, they allege in detail the facts upon which their claim for damages is predicated, and undoubtedly anticipated that they would be required to adduce proof to sustain their claim. To adopt the trial court’s interpretation of the agreement would subject the telegraph company to damages of $500 in every instance in which it failed to perform promptly or correctly, or to pay promptly or fully, even though no damage, legal or otherwise, resulted. It is conceivable, under such an interpretation, that a person transmitting $5 could recover $500 upon the failure of the company to pay the full amount, even though no damages whatsoever resulted from the nonreceipt of the money sent.

The factual issues made up by the pleadings were not tried by the court. If plaintiffs can prove that they were damaged they are entitled to an opportunity to do so. The cause should proceed to trial upon the issues made up by the pleadings. Accordingly, the judgment of the circuit court is reversed and the cause remanded for retrial in accordance with the views herein expressed.

Judgment reversed and cause remanded.

John J. Sullivan, P. J., concurs.

Scanlan, J., specially concurs.

Mr. Justice Scanlan

specially concurring: Notwithstanding the language of the clause in question, I am inclined to the opinion that the trial court gave a wrong interpretation to the provision in question, an interpretation which, if enforced, would in most cases place an unconscionable burden upon defendant. It seems clear that defendant did not intend, by the provision, to assume such a burden, and it seems reasonably clear that the users of defendant’s service have not interpreted the provision to mean what the trial court held it does. Indeed, in the instant case, the complaint is drafted upon the theory that complainants could recover only actual damages sustained by them.


author: Mr. Justice Dove

text:
    Edward N. Wright, Trustee of the Bankrupt Estate of Edgar D. Risser, Appellant, v. Edgar D. Risser et al., Appellees.
    Gen. No. 9,169.
    Opinion filed May 18, 1937.
    Rehearing denied June 21, 1937.
    H. H. Whittemore and Benjamin Gower, both of Kankakee, for appellant.

      W. H. Dyer and Eva L. Minor, both of Kankakee, for certain appellees.
   Mr. Justice Dove

delivered the opinion of the court.

On August 4, 1936, Edward N. Wright, as trustee of the bankrupt estate of Edgar D. Risser, filed in the circuit court of Kankakee county his verified third amended complaint against the said Edgar D. Risser, his wife Blanche 0. Risser, his daughters Mariam E. Risser and Isabel Risser Gathany and William V. Gathany, the husband of Isabel Risser Gathany. This amended complaint also named Warren R. Hickox, as trustee of certain trust deeds executed by the said Mariam E. Risser, Edgar D. Risser, Blanche 0. Risser, Isabel Risser Gathany and William V. Gathany as a defendant and also made the unknown owner or owners of the several notes which said trust deeds were given to secure a party or parties defendant.

This amended complaint alleges the adjudication of the said Edgar D. Risser as a bankrupt on May 1,1934, by the United States District Court for the Western District of North Carolina and the appointment of the plaintiff as the trustee of his estate, avers his qualification as trustee and alleges that said bankruptcy proceeding is still pending, and that the plaintiff is acting as such trustee. The complaint further alleges that the assets of the bankrupt estate are insufficient to pay the creditors; that the assets which have come into his possession are of no value and that the scheduled liabilities, in addition to the cost of administration, amount to $14,845.95; that one of the liabilities scheduled by said Risser in said bankruptcy proceeding* is a judgment obtained by the Bishopp Cereal Company in the circuit court of Iroquois county, Illinois, on January 16, 1932, against said Edgar D. Risser for the sum of $12,577.66,* that said judgment is in full force and remains unsatisfied except as to the sum of $3,000; that on January 16, 1932, the said Risser perfected an appeal from said judgment to this court; that this court subsequently affirmed said judgment and at the October Term, 1933 of the Supreme Court of Illinois a writ of certiorari to review said judgment was denied by said Supreme Court; that said suit against said Risser was commenced in 1921 and said judgment was rendered upon a liability of Risser incurred prior to that date; that on January-5, 1934, Risser resided in Evanston, Cook county, Illinois; that a transcript of said judgment was duly filed in the office of the circuit court of the county where he then resided; that an execution was issued thereon and a demand made under said execution by the sheriff of said county; that the same was not satisfied and the execution was duly returned by the sheriff of said county on April 5, 1934 unsatisfied. The amended complaint then alleged that Edgar D. Risser and Blanche C. Risser are husband and wife; that Mariam E. Risser is a spinster and the daughter of Edgar D. Risser and Blanche C. Risser; that Isabel Risser Gathany is also their daughter, and that William V. Gathany is her husband.

This amended complaint then averred that after the liability of the said Edgar D. Risser to the Bishopp Cereal Company had been incurred and during the time that said suit was pending, but before judgment was rendered, the said Edgar D. Risser owned various tracts of real estate in Kankakee county, which tracts were specifically described; that he also owned two tracts of real estate located in Cook county, Illinois, which were also specifically described; that he also owned one residence property described as No. 12 Annandale avenue in Asheville, Buncombe county, North Carolina, and five specifically described tracts of farm land located in Cass county, North Dakota. This amended complaint then averred that while this suit was pending, Risser transferred and conveyed all of said real estate to members of his family for the purpose of impairing the rights of his creditors and in rendering himself ostensibly insolvent. This complaint then set forth the dates of the several conveyances, the names of the grantors and grantee or grantees and specifically described the various tracts conveyed and averred that after the several conveyances were made, the grantees therein incumbered the land conveyed to them located in Kankakee county, Illinois, to Warren R. Hickox, trustee, to secure the payment of notes ag*gregating $8,000.

This amended complaint then alleged that at the time said conveyance was made of the Cass county, North Dakota land, 640 acres thereof were free from any lien or incumbrance but that 960 acres were incumbered. The amended complaint then averred that the plaintiff was informed and believed and charged the fact to be that the grantees in all of said conveyances were mere volunteers; that said conveyances by the said Edgar D. Risser were entirely voluntary, mere shams, made without any consideration and for the deliberate and fraudulent purpose of defrauding* his creditors, including said judgment creditor and for the purpose of impairing their rights and in order to make the said Edgar D. Risser ostensibly insolvent; that said conveyances did impair the rights of all of said creditors, did render said Risser ostensibly insolvent; that said grantees are not the bona fide legal holders of the real estate described therein but that said real estate is now held by the said Mariam E. Risser, Isabel Risser Giathany and William V. G-athany in trust for said Edgar D. Risser or for his use and benefit and for the purpose of defrauding the creditors of the said Edgar D. Risser out of their just demands; that said Mariam E. Risser, Isabel Risser Gathany and William V. Gathany had full knowledge thereof and acquiesced, co-operated and participated therein and that said real estate belonged to said Edgar D. Bisser when he filed his said petition in bankruptcy and should have been scheduled by him as his assets; that the incumbrances placed thereon were a part of said scheme and plan, were mere shams and were not given to secure any bona fide indebtedness but were intended to and did impair the rights of the creditors of the said Edgar D. Bisser and were and are a fraud against said creditors and the said conveyances and incumbrances should be set aside and the title to said real estate confirmed in the plaintiff as trustee in bankruptcy. This amended complaint then alleges that the plaintiff is informed and believes and he therefore charges the fact to be that the notes purported to be secured by said trust deeds are held by some of the defendants but that they may have been sold, assigned or disposed of and if so, the owner or holders thereof are unknown to the plaintiff and said holders and owners are therefore made defendants as “unknown owners”; that the bona tides of the transactions and the considerations therefor, if any, are peculiarly and solely within the knowledge of the defendants Edg*ar D. Bisser, Blanche C. Bisser, Mariam E. Bisser, Isabel Bisser Gathany and William Y. Gathany and the plaintiff has not and cannot obtain knowledge thereof unless said defendants are required to discover the same. The amended complaint specifically prayed that the conveyances of the Kankakee county and Cook county, Illinois properties and the Cass county, North Dakota and the Asheville, North Carolina properties may be set aside and the defendants be required to execute conveyances to the plaintiff therefor; that likewise the trust deeds covering the Kankakee county property be set aside; that the plaintiff have such other and further relief as equity may require; that the defendants Edgar D. Bisser and Blanche C. Bisser each answer some 22 specific interrogatories propounded to each of them; that the defendant Mariam E. Risser likewise be required to answer 22 specific interrogatories and that the defendants Isabel Risser Grathany and William Y. Grathany each answer 10 specific interrogatories propounded to them. Personal service was had upon Edgar D. Risser, Blanche C. Risser, Isabel.Risser Grathany, William Y. Grathany and Warren R. Hickox, trustee, and service by publication had as to the defendants Mariam E. Risser and the “unknown owners.”

The sufficiency of this amended complaint was challenged by a motion by the defendants personally served to dismiss. This motion was sustained, the amended complaint dismissed and the plaintiff appeals.

Counsel for appellees insist that the original, first and second amended complaints are a part of the third amended complaint and that the court should consider the sufficiency of the third amended complaint in the light of the allegations contained in the original, first and second amended complaints, and that the original complaint and the first, second and third amended complaints all constitute plaintiff’s statement of his cause of action.

The third amended complaint was complete in itself and does not refer to or adopt any portion of either the original complaint or the first or second amended complaints. “An amendment which is complete in itself and does not refer to, or adopt, the prior pleading, supersedes it and the original pleading ceases to be a part of the record, being in effect abandoned, or withdrawn, and become functus officio, with the result that the subsequent proceedings in the case are to be regarded as based upon the amended pleading, which will not be aided by anything in the prior pleadings, and any ruling of the court with relation to the sufficiency of the original pleadings is not properly in the record.” 49 C. J. 558, sec. 773. The author of the article on “Equity” in 21 C. J. 532, sec. 640, after stating that an amended bill is considered as a continuation of the original bill and with the original bill constitutes but a single bill and one record goes on to say that “An amendment may, however, be so framed as to become a substitute for all that has gone before and become the only bill before the court. An original bill may be entirely superseded by an amended bill which in effect is a new original bill.” In Bradish v. Grant, 119 Ill. 606, 611, the court said: “The amendment of a bill does not put two bills into the case. There remains afterward but one bill, the bill as amended. . . . An amended bill is considered as an original bill.” In Joiner v. Fowler, 133 Ill. App. 38, the court said that by filing an amended bill, the complainants abandoned their original bill and transferred their whole cause of action to and merged it in the amended bill. In Benjamin v. Manufacturers’ Terminal Co., 246 Ill. App. 590, this court held that when an amended bill is filed by leave of court, there are not two bills then pending but that the amended bill is then considered as the original bill. The only pleading therefore before the chancellor or to be considered by this court is the sufficiency of the third amended complaint, which was filed by leave of court after the chancellor had held the original, first and second amended complaints insufficient.

Counsel for appellees, While conceding’ that a trustee in bankruptcy may sue to recover assets belonging to him as trustee and may set aside conveyances which are constructively fraudulent as to creditors, insist, however, that this amended complaint is insufficient because it contained no allegation that any claims of creditors had been allowed in the bankruptcy proceeding and calls our attention to McKey v. Smith, 255 Ill. 465, where it was held that the trustee in bankruptcy can only apply the assets upon allowed claims and that unless it appears from the allegations and proof that the property sought to be reached is needed to pay such claims, the trustee has no right to have such conveyances set aside. This point was not raised by appellees in their motion to strike and must be considered as waived, Hitchcock v. Reynolds, 278 Ill. App. 559, but it will be noted that in the instant amended complaint it was specifically alleged that the bankrupt scheduled his own liabilities in the sum of $14,845.95 and averred that included in those liabilities is the judgment of the Bishopp Cereal Company obtained against the bankrupt on January 16, 1932, for $12,577.66, and that no assets have come into the possession of the trustee with which to pay these liabilities. In view of the record we are clearly of the opinion that there is no merit in this contention of appellees.

The chancellor held and counsel for appellees insist in this court that the amended complaint is insufficient because it contains no allegation that Risser was insolvent at the time the several transfers set forth in the amended complaint were made. In support of this contention State Bank of Clinton v. Barnett, 250 Ill. 312, Susman v. Susman, 251 Ill. App. 392, and Moritz v. Hoffman, 35 Ill. 553, are relied upon. Counsel for appellant call our attention to Birney v. Solomon, 348 111. 410, while counsel for appellees argue that the Birney case is distinguishable because in that case the sufficiency of the complaint was not attacked but what the court said in its opinion had to do with the proof as to the sufficiency of the evidence tending to prove insolvency.

In Birney v. Solomon, supra, it appeared that the Alexander County National Bank of Cairo had filed a creditor’s bill against Jacob Solomon and his wife Hazel Solomon to set aside a deed executed by Solomon and his wife to Alexander Wilson and to set aside a deed executed by Wilson to Hazel Solomon. Jacob Solomon was afterward adjudged a bankrupt and Ms trustee in bankruptcy was substituted as the complainant. In the course of its opinion, which affirmed the decree of the lower court which set aside the deeds and vested the title to the premises in the trustee in bankruptcy, the court said: “Plaintiff in error insists that.a creditor’s bill cannot be maintained to set aside a deed unless there is a positive showing of the grantor’s insolvency. The established rule in this State does not require proof of actual insolvency in order to render a voluntary conveyance void, especially when the conveyance is between husband and wife or parent and child. The true test in determining the validity of a voluntary conveyance as against creditors in such a case is whether or not it directly tended to or did impair the rights of creditors. It is of no moment that the property remaining in the grantor’s hands after the conveyance was in nominal value more than equal to the amount of his indebtedness if subsequent events show that the property retained was not sufficient to discharge all his liabilities. (Hockett v. Bailey, 86 Ill. 74; Hauk v. VanIngen, 196 id. 20; Patterson v. McKinney, 97 id. 41.) The doctrine is firmly declared to be that one must be just before he is generous. What may be in the mind of the grantor when he makes a voluntary conveyance to his wife or child is immaterial, for if it results in hindering, delaying or defrauding creditors it must be regarded as fraudulent. A donor may make a conveyance.with the most upright intentions, and yet, if the transfer hinders, delays or defrauds his creditors it may be set aside as fraudulent. (Marmon v. Harwood, 124 Ill. 104; McKey v. McCoid, 298 id. 566.) Of such force is this rule that where one is found to be insolvent after having made a voluntary conveyance to his wife the burden of dispelling the implication of fraud as against pre-existing creditors is upon his grantee. Dillman v. Nadelhoffer, 162 Ill. 625; Morits v. Hoffman, 35 id. 553; Patterson v. Mc-Kinney supra.”

This authority holds that in order to render a voluntary conveyance void as against creditors, especially where the conveyance is between husband and wife, proof of actual insolvency of the grantor is not required. If such proof therefore is not required upon the hearing, certainly the plaintiff in such a proceeding is not required to allege in his complaint anything in addition to what, upon the hearing, he' would be required to prove. In our opinion, the allegations of the amended complaint here challenged were sufficient to have required appellees to answer. The chancellor erred in sustaining the motion to strike and in dismissing the third amended complaint. The order dismissing this complaint is reversed and the cause is remanded to the circuit court of Kankakee county with directions to overrule appellees’ motion to dismiss.

Reversed and remanded with directions.


author: Mr. Justice Wolfe

text:
    William H. Spikings, Appellee, v. Fred A. Ellis et al., Defendants. Lottie Ellis, Appellant.
    Gen. No. 9,187.

      Opinion filed May 18, 1937.
    Rehearing stricken June 21, 1937.
    Gerald C. Snyder and Edwards & Block, all of Waukegan, for appellant; Gerald C. Snyder, Sidney H. Block and William T. Kirby, of Waukegan, of counsel.
    Kurt Kiesow, of Waukegan, and Milton G. Manasse, of Chicago, for appellee; Milton G. Manasse, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

On July 26, 1934, William H. Spikings filed a suit in the circuit court of Lake county against Fred A. Ellis, Lottie Ellis, and Claude C. Ellis, Winnetka Trust and Savings Bank, and Fred A. Ellis, a corporation. The first count of the complaint was in equity, to set aside certain conveyances of land and corporate stock alleged .to be fraudulent as against the plaintiff. It charged that Fred Ellis was indebted to the plaintiff. The second count was in law upon a guarantee for rent signed by Fred A. Ellis. A default judgment was taken on the second count for $2,500.

The first count of the complaint alleged that Fred A. Ellis, had become indebted to the plaintiff on a guarantee for rent, signed by him on August 15,1930, on which a judgment was recovered for $2,500 on July 11, 1933. It is on this judgment that the plaintiff asks for relief and alleges that Fred A. Ellis, to hinder and delay payment on this debt, had conveyed away his interest to certain described property to his wife and son, and that these conveyances were not real, but fraudulent as to the plaintiff; that no consideration was paid for the transfer of this property; that the same were executed with the intention of defrauding the plaintiff; that the conveyances were a voluntary settlement on Ellis’s wife, which left him insolvent.

The bill prayed for discovery as to all of the transactions between Fred A. Ellis, Lottie Ellis, Claude Ellis, and closed with a prayer for relief as follows: “that all fraudulent transfers to said co-defendants may be set aside, and their real interests, if any, in the property or estate of the principal defendant may be ascertained and determined; and for such other relief as may be agreeable to equity and good conscience. ’ ’

The defendants filed their answer and admitted the conveyances, but denied they were made with any fraudulent intent to hinder or delay Fred A. Ellis’s creditors, and expressly stated the conveyances were all made upon good and sufficient consideration. The issues upon the first count were referred to the master in chancery to take proof and report his findings to the court. During the pendency before the master in chancery, Fred Ellis, on April 11, 1935, died. Lottie Ellis changed counsel in the case, and by her new counsel filed a counterclaim, which recited that the sole interest of Fred A. Ellis in the property allegedly, fraudulently conveyed had been held in joint tenancy, and that he also had a dower interest in another piece of property, but, because of the death of Fred A. Ellis, his joint tenancy and dower interest has lapsed, and she, Lottie Ellis, was entitled to the property, free from any claims of the creditors of Fred A. Ellis. She alleged the suit to be a cloud on her title and prayed that it be dismissed and that the court find a clear title in her.

The matter was again referred to the master. He filed his report, and found the conveyances fraudulent, except as to certain property which is not involved in this suit. Exceptions in the circuit court were overruled, and the court entered judgment finding the conveyances fraudulent as to Fred A. Ellis, and ordered the realty and corporate stock sold to satisfy plaintiff’s claim.

The defendants made a motion to vacate the default judgment entered on the guarantee contract, but were overruled, except as to part. The court allowed a credit on said judgment, reducing it to $1,898.99: The court then entered a decree finding that this sum was the amount due from Fred A. Ellis to the plaintiff, and was a lien on the property in question, and that the same should be sold to satisfy the judgment. It is from this decree that the appellant, Fred A. Ellis, and others, prosecute this appeal. The appellee, Spikings, has assigned cross errors-, in which he contends that the court erred in reducing the judgment previously entered, from $2,450 to $1,898.99, and that the decree is inadequáte as to the corporate stock found to be transferred in fraud of plaintiff’s rights.

The plaintiff, to maintain his case, called Milton G-. Manasse, one of the attorneys for the plaintiff, -who testified and identified plaintiff’s exhibits, which were admitted without objection. The first 10 exhibits were communications in ,the nature of demands from the plaintiff to the defendant, for payment of the indebtedness. Exhibits 11 to 16 inclusive,' were, deeds from Fred A. Ellis and Lottie Ellis, to Glande C. Ellis, for the property involved in this suit, dated April 4, 1933, and deeds from Claude C. Ellis, a bachelor, to Lottie Ellis, dated April 14, 1933, all of which were duly acknowledged and recorded. It was then stipulated: “The signatures to these deeds were valid and that the deeds had been mailed by the respective recorders to the grantee named in each deed; that three of the properties had been owned by Fred A. Ellis and Lottie Ellis, as joint tenants, and not as tenants in common; that the Fred A. Ellis Co., was incorporated in 1924, with 89 shares of stock to Fred A. Ellis' and 10 shares to Lottie Ellis, and 1 share to another person; that in 1924, Fred A. Ellis retained 65 shares, and on April 15, 1933 a certificate of 59 shares was issued to Lottie Ellis, and a certificate of .one share was issued to Fred A. Ellis; that after the last transfer was made, Fred A. Ellis was insolvent. ’ ’ There were further stipulations in regard to the incumbrances upon the property, which is not material to the issues in the case.

The plaintiff then called as a witness, Claude C. Ellis, who testified to the relationship of the parties to the suit. He stated that Fred A. Ellis was president of the Fred A. Ellis Co. and a director; and that Earnest Ellis was secretary-treasurer and a director. The witness identified signatures, and stated that to the best of his knowledge, his father did not know of the debt to Spikings, the plaintiff, when the conveyances of the property in question were made. It was later stipulated that Fred A. Ellis knew of the plaintiff’s claim at the time the conveyances were made.

This was all of the testimony that was introduced by plaintiff in chief. Thereupon, the defendants, by their attorneys, moved for a finding in their favor, on the grounds that there was no proof of the material allegations of the complaint; that the deeds were executed for a pretended consideration; that the deeds were issued to hinder and delay or defraud the creditor. The master reserved his ruling on the motion, and informed counsel for the defendant that they might proceed with their case without waiving their motion and without prejudice to their right to have the motion passed upon.

The defendant then introduced evidence which tended to show that Fred A. Ellis was indebted for a considerable sum to the Fred A. Ellis Corporation. The debt consisted chiefly of advances and loans from the corporation to Fred A. Ellis, over a period of from eight to ten years; that the total indebtedness amounted to approximately $15,000; that the property which the Fred A. Ellis Co. had been occupying was owned by Lottie Ellis, individually, and that the company owed Lottie Ellis for rent and money loaned to the corporation, a sum of approximately $20,000; that Claude Ellis knew that his father had incurred liabilities aside from the money he owed the corporation; that it was agreed among themselves that Fred A. Ellis would turn over his interest in the property to the corporation; that since the corporation was not competent of holding the title, the transfer was made to Claude C. Ellis, as vice president; that the consideration for the transfer was the indebtedness of Fred A. Ellis to the corporation; that in order to satisfy the debt of the corporation to Lottie Ellis, the corporation, acting through Claude C. Ellis, then transferred the property to Lottie Ellis in partial satisfaction of the debt owed to her; that at this time Fred A. Ellis was 80 years old and in poor health, and Lottie Ellis was 76 years old; that these conveyances were made to straighten out the financial status of the firm with the Ellises. The witness further testified that the stock transferred from Fred A. Ellis was also done for the purpose of straightening out the financial affairs between the Ellises and the corporation.

In rebuttal, the plaintiff called Earnest Ellis who described how the accounts of the Ellises had been carried on the books of the corporation. He stated that they had all been carried in the name of Fred A. Ellis until in the spring of 1933, when he had directed the bookkeeper to break the account so as to show the account of the father, Fred A. Ellis, and of the mother, Lottie Ellis. He said he did this when he learned his father was getting himself implicated in real estate deals.

The mother, Lottie Ellis, was called as a witness, and testified that she had left the management of the business to her husband, Fred A. Ellis. Her personal knowledge of the transactions was very limited, but she did claim that the corporation owed her about $18,000, and that none of the debts from the corporation to her had been paid until the transfer of this property.

The master found that the judgment, with the exception of $38.72, remained unsatisfied; that the property in question was held in joint tenancy; that as between Fred A. Ellis and the Fred A. Ellis Corporation, there was no enforceable debt due and owing from him to the corporation; that the conveyance of three parcels of land were fraudulent as to the plaintiff and should be subjected to his claims. The master denied the counterclaim of Lottie Ellis, as to the three parts that were held in joint tenancy, and stated he did not believe she succeeded to the title by virtue of the survivorship of these properties. The defendant, Lottie Ellis, filed exceptions to the master’s report, and also filed a motion to vacate the default judgment, which was taken on the second count of the complaint. The court overruled the exceptions and denied the motion to vacate the judgment, but did allow a reduction of the judgment as heretofore stated.

It is first insisted by the appellant that the complaint should have been dismissed for want of equity, because the plaintiff failed to make out a prima facie case, and that the appellant’s rights were fully protected by her motion before the master in chancery, and the statement of the master, that, “the ruling on the motion would be reserved and without prejudice to have the motion passed upon.” Instead of the defendant resting her case on her motion, she proceeded to introduce evidence to show the real consideration for the transaction in question. This motion was not renewed at the close of all the evidence. Assuming that the same ruling of the court would apply to a motion to dismiss before a master as it does in the trial court, it has frequently been held that when the defendant does not stand by his motion for a directed verdict at the close of the plaintiff’s case but offers evidence in his own behalf, he waives his rights under his motion, especially if the motion is not renewed at the close of all the evidence. Mantonya v. Martin Emerich Outfitting Co., 172 Ill. 92; Cratty v. Buker, 195 Ill. App. 506. Whether the plaintiff made out a prima facie case in the first instance, the defendant, by offering evidence and failing to renew the motion has waived this objection.

The plaintiff next insists that the findings of the master and the decree of the court, finding that there was no consideration for the transfers in question, and that the same were made with the intent to defraud the creditors of Fred A. Ellis, was not sustained by the evidence in the case. It will be observed that the book accounts of the Fred A. Ellis Co. were all carried in the name of Fred A. Ellis, prior to the time the transfers of the properties were made, and that when the son learned that Fred A. Ellis was being involved in real estate deals, he directed the accounts to be broken up, but the evidence is not clear as to what, if anything, Fred A. Ellis owed the corporation at the time that these transfers were made. The facts in regard to the judgment were not greatly in conflict. This court would not be justified in setting aside the decree, because the evidence did not sustain the findings of the chancellor, unless it is manifestly against the weight of the evideuce. After a careful examination of this record, we cannot say that the findings of the master and the decree of the chancellor are manifestly against the weight of the evidence.

It is contended that after Fred A. Ellis died, there was not any property which could be reached by the court to satisfy the debts of Fred A. Ellis, which he had contracted during his lifetime. The record shows that Ellis died prior to the time that the decree was rendered. The laws seems to be well settled that a creditor by proper action can reach the interest or title to property held by the debtor in joint tenancy, if he does it before the life tenant dies, but the same cannot be reached after the debtor’s death, because the title then has become vested in the other joint tenant. “Thompson on Real Estate” page 930, paragraph 1717, has this to say (Under Topic “Levy and Sale Upon Execution of Interest of Joint Tenant”): “The individual interest of one joint tenant is subject to levy and sale upon an execution against him. The levy and sale operate as a severance of a joint tenancy.” In support of this statement, he cites the cases of Thornburg v. Wiggins, 135 Ind. 178, 34 N. E. 999; Midgley v. Walker, 101 Mich. 583, 60 N. W. 296; and several cases from other States. The Thornburg v. Wiggins and Wilson v. Younger cases, supra, both support the rulings as stated by Thompson in his text. Our Supreme Court in the ease of Lawler v. Byrne, 252 Ill. 194, held that a joint tenancy may be severed by a sale or mortgage of the interest of one of the joint tenants. Liese v. Hentze, 326 Ill. 633, 637. That the same may be done is recognized in the case of Johnson v. Muntz, 364 Ill. 482; Peoples Trust & Savings Bank v. Haas, 328 Ill. 468; Feingold v. Roecshlein. 276 Ill. 79; Stocker v. Curtis, 264 Ill. 582.

It is strenuously argued by the appellant that when Fred A. Ellis died the title to the property was then vested in Lottie Ellis and there was nothing that the plaintiff could levy on as the interest of Fred A. Ellis had been terminated. It will be observed that the decree finds that Fred A. Ellis was indebted to theoplaintiff in a certain amount ($1,898.99) with accrued interest thereon, and costs of suit; that this sum was ordered to be paid within five days; and that the defendant should surrender the stock certificate to the master in chancery within 10 days; and that an undivided one-half interest in all of the real estate formerly held in joint tenancy by and between Fred A. Ellis and Lottie Ellis be sold by the master in chancery, subject to the mortgages, etc., or so much of the property as may be sufficient to pay the amount due the plaintiff; that the real estate shall be sold first; that if the proceeds thereof does not satisfy the debt, then the stock of the Ellis Company shall be sold, or so much thereof as is necessary to satisfy the debt due the plaintiff. This decree does not attempt to set aside the conveyances from Mrs. Lottie Ellis to Claude Ellis; or from Claude Ellis to Lottie Ellis; but it does impress the property with a lien for the amount due the plaintiff. The court recognizes the conveyance as between the Ellises is a valid conveyance and only fraudulent as to a creditor. It is our conclusion that when Fred A. Ellis and Lottie Ellis conveyed the property in question to Claude Ellis, they thereby destroyed the joint tenancy existing between Fred A. Ellis and Lottie Ellis, and that when Claude Ellis conveyed the same to Lottie Ellis, she took it in fee simple, and not in joint tenancy; that the equitable interest in the property heretofore transferred by Fred A. Ellis should he subjected to the payment of the judgment heretofore rendered.

The appellee insists that the court had no authority or right to reduce the judgment from $2,450 to $1,898.99. We think the court had ample authority when his attention was called to the fact that the judgment was for a larger amount than was due, and that certain credits should have been allowed that were not talien into consideration when the default judgment was entered, to reduce it to the proper amount to show these credits.

The appellee also contends that the court erred in not making proper provision for the disposition of the corporate stock transferred by the plaintiff. The appellee does not show in what manner the decree is erroneous in regard to this stock. He is hardly in a position to urge this error and have the case remanded for the correction of his own decree. We find no merit in the cross errors assigned by the appellee.

It is our conclusion that there is no reversible error in the case. The judgment of the circuit court of Lake county is hereby affirmed.

Judgment affirmed.


author: Mr. Presiding Justice

text:
    First District.
    Calvin Franks, appellee, v. Interline Freight Company, appellant.
    Gen. No. 39,118.
    Opinion filed April 19, 1937.
    Heth & Lister, for appellant. Lord, Lloyd & Bissell, for appellee; John S. Lord and Graydon H. Ellis, of counsel.
   Mr. Presiding Justice

Matehett delivered the opinion of the court.


author: Mr. Presiding Justice Matehett

text:
    Margaret Fischer et al., appellants, v. John A. Holabird et al., appellees.
    Gen. No. 39,341.
    Opinion filed April 19, 1937.
    Harry Abrahams, William Vihon, Leo Rice, Mandel B. Karlov, Louis Wilson, Michael V. Ostrowski, A. E. Noel and Ward, Curtis & Polín, for appellants; Arthur J. Goldberg and Harry Abrahams, of counsel. Taylor, Miller, Busch & Boyden and Cassels, Potter & Bentley, for appellees; Preston Boyden, William H. King, Jr., and Leslie H. Vogel, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. John S. Rusch, petitioner, v. Viola Wojcik and Mercedes Tuttle, respondents.
    Gen. No. 39,351.
    Opinion filed April 19, 1937.
    Simon Herr, for plaintiff in error. Thomas J. Courtney, State’s Attorney and Ditchburne & Lounsbury, for defendants in error; Thomas J. Johnson, Jr., of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Chicago Title and Trust Company, appellee, v. George Placzkiewicz et al., defendants. Appeal of Walter Plash, appellant.
    Gen. No. 39,314.
    Opinion filed April 19, 1937.
    Ewart Harris, for appellant. John O. Hendry, A. Edmund Petersen, Edmund J. Johnson and Melville R. Thompson, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Mary Blagay, appellee, v. City of Chicago, appellant.
    Gen. No. 39,327.
    Opinion filed April 19, 1937.
    Barnet Hodes, Corporation Counsel and Alexander M. Smietanka, Assistant Corporation Counsel, for appellant; Quin O’Brien, James J. Danaher and Albert Schwartz, Assistant Corporation Counsel, of counsel. Finn & Miller, for appellee; Robert S. Cook, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Northern Trust Company, appellee, v. Aladar Hamburger et al., defendants. Florence L. Hickman and Charles Sharpless Hickman, appellants.
    Gen. No. 39,383.
    Opinion filed April 19, 1937.
    Rehearing denied May 3, 1937.
    Isidore Brown and Albert Langeluttig, for appellants. Wilhartz & Hirsch and Sidney J. & Arthur Wolf, for appellee; Samuel E. Hirsch and Arthur Wolf, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    George F. Harding and Martin H. Kennelly, appellees, v. City of Chicago, appellant.
    Gen. No. 39,270.
    Opinion filed April 19, 1937.
    Barnet Hodes, Corporation Counsel and Quin O’Brien, A. M. Smietanka, Adam E. Patterson and Robert M. Sweitzer, Jr., Assistant Corporation Counsel, for appellant. J. J. Coffey, Jr., for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O ’Connor

text:
    Clara L. Priest, appellee, v. Meyer Kaplan et al., appellants.
    Gen. No. 39,339.
    Opinion filed April 19, 1937.
    Charles V. Falkenberg, for appellants. E. H. Arnold, for appellee; Charles H. Mitchell, of counsel.
   Mr. Justice O ’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice John J. Sullivan

text:
    E. C. (Teddy) George, for use of Claude Neon Federal Company, appellee, v. Fox Head Restaurant Company, appellant.
    Gen. No. 39,027.
    Opinion filed May 4, 1937.
    Benjamin S. Mesirow, for appellant. Dana R. Simpson, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Paul E. Olson et al., appellants, v. William J. Burns et al., appellees.
    Gen. No. 39,112.
    Opinion filed May 4, 1937.
    Tage Joranson, Litsinger, Healy & Reid and Dimmitt C. Hutchins, for appellants. Cheney, Evans & Peterson, for appellees; Eugene E. Dornbaugh, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Frank Kryl, appellee, v. John G. Zelezny, appellant.
    Gen. No. 39,150.
    Opinion filed May 4, 1937.
    Charles A. Chur an, for appellant. Matthew J. Weiss, for appellee; Jacob Bloom, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Ira Rosenzweig, appellee, v. Chas. T. Himm et al., appellants.
    Gen. No. 39,201.

      Opinion filed May 4, 1937.
    Allan R. Bloch, for appellants. Harold L. Eisenstein, for appellee; Gustav E. Beerly and John F. Diffenderffer, Jr., of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the

court.


author: Mr. Justice Friend

text:
    Continental Illinois National Bank and Trust Company of Chicago, appellant, v. Walter C. Hieber et al., appellees.
    Gen. No. 37,871.
    Opinion filed May 4, 1937.
    Dunbar & Rich, Kirby H. Wells and Montgomery J. Atkinson, for appellant. Milton G. Manasse, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Mary E. Walton, appellant, v. Charles H. Langer et al., appellees.
    Gen. No. 38,234.
    Opinion filed May 4, 1937.
    Stevens, Carrier & Griffith and Allan J. Carter for appellant. Defrees, Buckingham, Jones & Hoffman and Brown, Fox & Blumberg, for appellees; Charles LeRoy Brown and Don Kenneth Jones, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Fannie Watson, appellant, v. Metropolitan Life Insurance Company, appellee.
    Gen. No. 39,046.
    Opinion filed May 4, 1937.
    David J. Maddox, for appellant. Hoyne, O’Connor & Rubinkam, for appellee; Nathaniel Rubinkam and William S. Allen, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Jean Cook, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 39,059.

      Opinion filed May 4, 1937.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. L. A. Wescott, for appellee; A. D. McMahon, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    United States Fidelity and Guaranty Company, appellant, v. Albert Sabath, appellee.
    Gen. No. 39,069.
    Action against indemnitor by maker of release of attachment bond, who had been compelled to pay on the bond. Judgment for defendant. Appeal from the Circuit Court of Cook county; the Hon. Clyde H. Thompson, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1936.
    Opinion filed May 4, 1937.
    William J. Flaherty, for appellant; George H. Mason and Donald I-I. Haider, of counsel. Charles Hudson, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Mathilda Buttner et al., appellants, v. Guy A. Richardson et al., trading as Chicago Surface Lines, appellees.
    Gen. No. 39,080.
    Opinion filed May 4, 1937.
    Winston, Strawn & Shaw, for appellants; George B. Christensen and Douglas C. Moir, of counsel. Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Ivan Barton Goode and Bernard Lener, appellees, v. Holland Motor Express, Inc., appellant.
    Gen. No. 39,106.
    Opinion filed May 4, 1937.
    Rehearing denied May 18, 1937.
    K. A. Wilber, A. D. Weaver and Julius S. Neale, for appellant. John E. Wilson, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Claribel Rubottom, appellant, v. Crane Company, appellee.
    Gen. No. 39,319.

      Opinion filed May 4, 1937.
    Rehearing denied May 18, 1937.
    Krohn & MacDonald, for appellant. Alden, Latham & Young, for appellee; Carl R. Latham and Norman A. Korfist, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    John Jeffrey, appellant, v. Hubbard Woods Trust & Savings Bank et al., appellee.
    Gen. No. 39,378.
    Opinion filed May 4, 1937.
    Walter E. Beebe and H. 0. Rumery, for appellant. Philip J. Mc-Kenna and Ignatz Spitz, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    Katherine Feeney, appellee, v. Chester R. Davis et al., defendants. Chester R. Davis et al., appellants.
    Gen. No. 38,820.
    Opinion filed May 4, 1937.
    Wendell H. Shanner, for appellants; Charles Y. Laughlin, of counsel. Kaplan & Kaplan and Alfred M. Loeser, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    William B. Johnson, appellee, v. County of Cook, appellant.
    Gen. No. 38,884.
    Opinion filed May 4, 1937.
    Thomas J. Courtney, State’s Attorney, for appellant; Hayden N. Bell, Jacob Shamberg, William P. Kearney, Jacob L. Sheer and Richard L. Gallagher, Assistant State’s Attorneys, of counsel. Coburn, Kearney & Coburn, for appellee; John J. Coburn and Archie T. Coburn, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Louise Dudley, appellant, v. Moe A. Isaacs, appellee.
    Gen. No. 38,898.
    Opinion filed May 4, 1937.
    Frederick A. Brown and Forest A. King, for appellant; G. Gale Roberson, of counsel. Samuel A. & Leonard B. Ettelson, for appellee; Samuel A. Ettelson, Edward C. Higgins and Herbert A. Salzman, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Frances R. Sternola, appellee, v. Henry Steigerwaldt and Sofia Steigerwaldt et al., appellants.
    Gen. No. 39,056.
    Opinion filed May 4, 1937.
    Jacob Levy, for appellants. A. L. Cronin and E. R. Borgmeier, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    John H. Artibey, appellee, v. John J. Beierwalter et al., defendants. John J. Beierwalter et al., appellants.
    Gen. No. 39,086.
    Opinion filed May 4, 1937.
    Werner H. Sommers and Walter F. Sommers, for appellants. Levy & Schmetterer and Irving G. Zazove, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    James F. Walsh, appellant, v. Marie E. Walsh, appellee.
    Gen. No. 39,169.
    Opinion filed May 4, 1937.
    Frank T. Jordan and Forest A. King, for appellant. Axel E. Pearson and Edward J. Green, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    United Dairy Company et al., appellees, v. Kaufman Berman, appellant.
    Gen. No. 39,437.

      Opinion filed May 5, 1937.
    Rehearing denied May 21, 1937.
    Sumner C. Palmer, for appellant. David A. Rislcind and Robert Mendelson, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Minnie Ryan, appellant, v. City of Chicago et al., appellees.
    Gen. No. 39,082.
    Opinion filed May 10, 1937.
    Samual A. & Leonard B. Ettelson, for appellant; Samuel A. Ettelson, Edward C. Higgins, Carl J. Appell and Herbert A. Salzman, of counsel. Barnet Hodes, Corporation Counsel and Quin O’Brien, Carl Hjalmar Lundquist and Adam E. Patterson, Assistant Corporation Counsel, for appellees.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Walter Bornman et al., appellants, v. Marian Rabb, administratrix of the estate of Ernest S. Rabb, deceased, appellee.
    Gen. No. 39,183.
    Opinion filed May 10, 1937.
    Thomas G. Harrington, for appellants. McKenna, Harris & Schneider, for appellee; James J. McKenna and Abraham W. Brussell, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Walter Engel, appellees, v. City of Chicago, appellant.
    Gen. No. 39,323.
    Opinion filed May 10, 1937.
    Barnet Hodes, Corporation Counsel, for appellant; Quin O’Brien, Otho S. Fasig, Michael C. Zaeharias and Alexander J. Resa, Assistant Corporation Counsel, of counsel. Finn & Miller, for appellees.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr. Presiding Justice Matchett

text:
    Marion Rabb, administratrix of estate of Ernest Rabb, deceased., appellee, v. Alfred Lenox, appellant.
    Gen. No. 39,342.

      Opinion filed May 10, 1937.
    Rehearing denied May 24, 1937.
    Miller, Gorham, Wales & Adams, for appellant; Herbert C. DeYoung, Charles F. White and Robert E. English, of counsel. Paul G. Annes and Charles C. Spencer, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Louis Trekaliotis, plaintiff in error.
    Gen. No. 39,386.
    Opinion filed May 10, 1937.
    Benjamin Samuels, for plaintiff in error; Edward Wolfe and Sidney M. Gliek, of counsel. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin Starkle Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    People of the State of Illinois, appellee, v. Elmer E. Cowdrey, appellant.
    Gen. No. 37,580.
    Opinion filed May 19, 1937.
    Martin Gorski and Paul R. Skala, for appellant; Clyde C. Fisher, of counsel. Thomas J. Courtney, State’s Attorney, for appellee; Edward E. Wilson, J. Albert Wolland, Henry E. Seyfarth, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Meyer Rothschild et al., appellants, v. American national Bank and Trust Company of Chicago et al., appellees.
    Gen. No. 38,749.
    Opinion filed May 19, 1937.
    Shulman, Shulman and Abrams, and Samuel L. Golan, for appellants; Meyer Abrams, of' counsel. West & Eekhart and Sonnenschew, Berk-son, Lautmann, Levinson & Morse, for appellees.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Denis B. Sullivan

text:
    Alicia G. Burnes, appellant, v. Charles F. Moss, appellee.
    Gen. No. 39,400.

      Opinion filed May 19, 1937.
    John C. Garriott, Jr., for appellant. Fred M. Outhouse, for appellee.
   Mr. Presiding Justice Denis B. Sullivan

delivered the opinion of the court.


text:
    Walter Lawrence Herdien et al., appellees, v. Elmer Forrest Herdien et al., appellants.
    Gen. No. 38,892.
    Opinion filed May 19, 1937.
    Rehearing denied June 2, 1937.
    Robert N. Holt, for appellants. Maurice Alschuler, for appellees.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    A. Paul Peterson, appellant, v. Modem Woodmen of America, appellee.
    Gen. No. 38,934.
    Opinion filed May 19, 1937.
    Sims & Strausky, Seymour M. Lewis and Edward A. Gorenstein, for appellant; Franklin J. Strausky and Seymour M. Lewis, of counsel. Sonnenschein, Berks on, Lautmann, Levinson & Morse, for appellee; Herbert M. Lautmann and Jesse H. Brown.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    C. I. T. Corporation, appellee, v. George M. Stevens et al., defendants. Oliver B. Watkins, appellant.
    Gen. No. 38,946.
    Opinion filed May 19, 1937.
    Rehearing denied June 2, 1937.
    Stevens, Carrier & Griffith, for appellant; George M. Stevens, of counsel. Rothbart, Peterson & Rosenfield, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Elizabeth Norton, petitioner, v. Sherman Tucker, respondent.
    Gen. No. 39,164.
    Opinion filed May 19, 1937.
    Rehearing denied June 2, 1937,

      Ryan, Sinnott & Miller and Louis G. Davidson, for appellant. John A. Bloomingston, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    William Skinner et al., appellants, v. Northern Trust Company, trustee under the last will and testament of Martin A. Ryerson, deceased, appellee.
    Gen. No. 38,980.
    Opinion filed May 19, 1937.
    Edgar J. Sehoen, for appellants. Scott, MaeLeish & Ealk, for appellee; George W. Swain and John J. Yowell, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Ridgewood Cemetery Company, appellee, v. Christina Pearson, appellant.
    Gen. No. 39,067.
    Opinion filed May 19, 1937.
    Thos. J. Einnegan, for appellant. Brelin, Britton & Landón, for appellee; Eloyd E. Britton, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Catherine Siedlinski, administratrix of the estate of Andrew Siedlinski, deceased, appellant, v. Metropolitan Life Insurance Company, appellee.
    Gen. No. 39,107.
    Opinion filed May 19, 1937.
    Thomas C. Hollywood, for appellant. Hoyne, O’Connor & Rubinkam, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Jacob Stangle, appellee, v. Thomas Muscato et al., defendants. Appeal of B. M. Patton, appellant.
    Gen. No. 39,154.
    Opinion filed May 19, 1937.
    William Sherman Stahl, for appellant. No appearance for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Presiding Justice Seanlan

text:
    John J. Zahnler, appellant, v. Chicago Daily News, Inc., appellee.
    Gen. No. 38,738.
    Opinion filed June 8, 1937.
    Frederick W. Moore, for appellant; James A. Steven, of counsel. Bell, Boyd & Marshall, for appellee.
   Mr. Presiding Justice Seanlan

delivered the opinion of the court.


text:
    In re Estate of James Humphrey, deceased. Antoinette Humphrey, appellee, v. John R. Humphrey, appellant.
    Gen. No. 39,015.
    Opinion filed June 8, 1937.
    A. W. Glaskay, for appellant. Earl J. Walker, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Frank Gorgen, appellee, v. The Continental Casualty Company, appellant.
    Gen. No. 39,018.
    Opinion filed June 8, 1937.
    Rehearing denied June 23, 1937.
    Eckert & Peterson, for appellant; A. R. Peterson and Owen Rail, of. counsel. Musgrave, Oppenheim, Price & Ewins for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Henrietta Koch, appellee, v. Monarch Fire Insurance Company, appellant.
    Gen. No. 39,083.
    Opinion filed June 8, 1937.
    Rehearing denied June 23, 1937.
    I. W. Kaufman, for appellant. Morris K. Levinson, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Justice Friend delivered

text:
    Board of Education of the City of Chicago, appellee, v. Prairie Garage, Inc. et al., defendants. Prairie Garage, Inc., appellant.
    Gen. No. 38,717.

      Opinion filed June 8, 1937.
    Pines, Stein and Beber, for appellant; Alvin E. Stein and David E. Beber, of counsel. Richard S. Folsom, for appellee; Frank S. Righeimer, Ralph W. Condee and Frank R. Sehneberger, of counsel.
   Mr. Justice Friend delivered

the opinion of the court.


text:
    George Christian, appellee, v. Peter Smirinotis, appellant.
    Gen. No. 39,093.
    Opinion filed June 8, 1937.
    Rehearing denied June 23, 1937.
    James F. Lyons, for appellant; Elwyn E. Long, of counsel. Walter B. Prendergast, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Howard Fox, appellee, v. Maurice H. Bent et al., trading as Eastman, Dillon & Co., appellants.
    Gen. No. 39,156.
    Opinion filed June 8, 1937-,
    Winston, Strawn & Shaw, for appellants; Harold A. Smith, Anthony L. Michel, George B. Christensen and Gerard E. Grashorn, of counsel. D ’Ancona, Pflaum & Kohlsaat, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Esther Levy, appellee, v. Abraham L. Feldman et al., defendants. William Feldman, appellant.
    Gen. No. 39,208.
    Opinion filed June 8, 1937.
    Rehearing denied June 23, 1937.
    William Feldman, pro se; Irving Goodman, of counsel. Babcock, Gilruth, Beck & McConnell, for appellee; Alfred Beck and Milton S. Applebaum, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Tessie Bleiwiss, administratrix of the estate of Sam J. Bleiwiss, deceased, appellee, v. Nick Gawlinski, appellant.
    Gen. No. 39,233.

      Opinion filed June 8, 1937.
    Balaban & Bosenberg and Mandel Mendelson, for appellant. Isidore Brown, for appellee; Albert Langeluttig and Jules Dashow, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Francis D. Everett et al., appellees, v. John Sexton & Company, appellant.
    Gen. No. 39,243.
    Opinion filed June 8, 1937.
    Bobert J. Hilliard, for appellant. Frederick A. Brown and Max Frederick Goldberg, for appellees; G. Gale Boberson and A. Charles Lawrence, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    James H. Doming et al., appellees, v. Roy Erickson, appellant.
    Gen. No. 39,265.
    Opinion filed June 8, 1937.
    Behearing denied June 23, 1937.
    Marx Loehwing and G. A. Buresh, for appellant. Deming, Jarrett & Mulfinger, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Estate of Peter Feciura, appellee, v. Sam G. Feciura and Gustave G. Feciura et al., appellants.
    Gen. No. 39,281.
    Opinion filed June 8, 1937.
    Sam G. Feciura, for appellants. Willard B. Matheny and Louis A. Langille, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Bertha Schactel, respondent, v. Chicago Drug Corner, petitioner.
    Gen. No. 39,449.
    Opinion filed June 8, 1937.
    Cassels, Potter & Bentley, for appellant; Balph F. Potter, Leslie H. Vogel and Bobert B. Johnstone, of counsel. No appearance for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Charles R. Holden, plaintiff, v. Northern Hotel Company et al., defendants. Chicago Title and Trust Company and Robert L. Laughlin, administrators with the will annexed of the estate of Henry D. Laughlin, deceased, appellees, v. The First National Bank of Chicago, appellant.
    Gen. No. 38,731.
    Opinion filed June 8, 1937.
    Campbell, CUthero & Fischer, for appellant. Sims & Stransky and Deming, Jarrett & Mulfinger, for appellee; FrankUn J. Stransky and C. W. Mulfinger, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Cecelia McGrath, appellee, v. Raymond Dunne, appellant.
    Gen. No. 39,116.
    Opinion filed June 8, 1937.
    Arnold D. McMahon, for appellant. Flynn & Lyon, for appellee; George W. Lyon, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Sylvia Kowiecki, a minor, by Frank J. Kowiecki, her father and next friend, appellee, v. Michael Goldstein, appellant.
    Gen. No. 39,240.
    Opinion filed June 8, 1937.
    Robertson, Crowe and Spence, for appellant; Burt A. Crowe, of counsel. H. Kay George, for appellee; Roy S. Gaskill, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    John H. McNeil, appellee, v. American Life of Illinois, appellant.
    Gen. No. 39,250.
    Opinion filed June 8, 1937.
    Musgrave, Oppenheim, Price & Ewins, for appellant. White, Gaines & Mosely, for appellee; Fleetwood M. McCoy, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Marie A. Walsh et al., plaintiffs, v. Edward R. Newmann et al., defendants. Samuel Maslon et al., appellants, v. Marie A. Walsh et al., appellees.
    Gen. No. 39,262.
    Opinion filed June 8, 1937.
    Rehearing denied June 23, 1937.
    Caplow, Hallen & Caplow, for appellants; Gideon S. Thompson, Lester E. Slosburg and Charles H. Blumenfeld, of counsel. James B. Cashin, for appellees; Thomas P. Harris and Edward B. Toles, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Helen Becker, appellee, v. John Hancock Mutual Life Insurance Company, appellant.
    Gen. No. 39,275.
    Opinion filed June 8, 1937.
    Hoyne, O’Connor So Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Joseph Scueeimaire and M. H. So E. W. Weiss, for appellee; Edward W. Weiss, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Walter S. Baer, plaintiff, v. Stephen Beranek et al., defendants. Minnie Euphrat, appellant, v. Edward G. Felsenthal et al., appellees.
    Gen. No. 39,286.
    Opinion filed June 8, 1937.
    Shulman, Shulman and Abrams, for appellant. Fischel, Kahn So Heart, Sonnenschein, Berkson, Lautmann, Levinson & Morse and Louis Wilson, for appellees; Isaac E. Ferguson, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Ruth Lawson and Charlotte Lawson, appellees, v. William Beaudry, appellant.
    Gen. No. 39,305.
    Opinion filed June 8, 1937.
    Hubbard, Baker and Rice, for appellant. Thompson, Chambers & Thompson, for appellees; Lavern W. Thompson, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Huffman

text:
    Second District.
    Carl T. J. Richards, executor of the last will and testament of Martha J. Richards, deceased, appellee, v. Chicago & Illinois Midland Railway Company, appellant.
    Gen. No. 9,167.
    Opinion filed April 14, 1937.
    Provine & Williams and Clark H. Miley, for appellant. Virgil O. Whipp and Clarence W. Heyl, for appellee; Hudson Ralph Sours, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Midwest Investment and Finance Company, appellant, v. Jarvis Chevrolet Company, appellee.
    Gen. No. 9,180.
    Opinion filed April 14, 1937.
    Rehearing denied May 21, 1937.
    London Middleton, for appellant. Shurtleff & Niehaus, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    P. J. Corlin, appellant, v. Arthur Anderson et al., appellees.
    Gen. No. 9,191.
    Opinion filed April 14, 1937.
    H. H. Whittemore, for appellant. No appearance for appellees.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    George Leonard, appellant, v. George Schroeder, trading as North Shore Neon Sign Company, appellee.
    Gen. No. 9,199.
    Opinion filed April 14, 1937.
    Ray F. Faulkner and Hall & Hulse, for appellant; Minard E. Hulse and John Bedrosian, of counsel. Gerald C. Snyder, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Michael Graf, appellee, v. Edward Kearns, Jr., appellant.
    Gen. No. 9,116.
    Opinion filed April 14, 1937.
    Scott & White, for appellant. Alsehuler, Putnam & Johnson, for appellee; Edward F. Streit and William C. O’Brien, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Flora Kirby, executrix of Last Will and Testament of James J. Kirby, deceased, appellant, v. Mack Shrontz et al., appellees.
    Gen. No. 9,181.
    Opinion filed April 14, 1937.
    James T. Burns, for appellant. V. A. Parish, for certain appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Virginia Warren, appellant, v. City of Waukegan, appellee.
    Gen. No. 9,184.
    Opinion filed April 14, 1937.
    Lloyd T. Bailey and Harold J. Tallett, for appellant; Joseph W. Bailey and Clarence M. Dunagan, of counsel. George S. MeGaughey, Corporation Counsel, for appellee; Charles L. Whyte, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Elizabeth Marston, administratrix of estate of Leslie Marston, deceased, appellant, v. Chicago, Burlington & Quincy Railroad Company, appellee.
    Gen. No. 9,192.
    Opinion filed April 14, 1937.
    Rehearing denied and supplemental opinion filed June 21, 1937.
    Weil & Weil, for appellant. Jack, Irwin & Seidenberg and Andrew 0. Scott, for appellee; J. C. James, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Dove

text:
    E. G. Schmieg, appellee, v. Travelers Fire Insurance Company, appellant.
    Gen. No. 9,164.
    Opinion filed May 18, 1937.
    H. L. Richolson, for appellant. William Zwanzig, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Edson Parr, appellant, v. Henry Newell, appellee.
    Gen. No. 9,182.
    Opinion filed May 18, 1937.
    Hibbs & Pool, for appellant. Butters & Butters, J. E. Malone, Jr., George L. Herbolsheimer, Jr., for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Margaret Wilks, appellee, v. City of Aurora, appellant.
    Gen. No. 9,188.
    Opinion filed May 18, 1937.
    Rehearing denied and additional opinion filed June 21, 1937.
    Merritt J. Little, Corporation Counsel, and Julian E. Latham, Assistant Corporation Counsel, for appellant. Robert J. Wing and Arthur L. Puklin, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.


text:
    Gertrude Beard, appellant, v. Rockford Milwaukee Dispatch Company et al., appellees.
    Gen. No. 9,200.
    Opinion filed May 18, 1937.
    Harold C. Sewell and Wm. Biester, for appellant. William L. Pierce and Hyer & Gill, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Riess

text:
    Third District.
    Frank Lipovsek, appellant, v. Supreme Lodge of Slovene National Benefit Society and Local Lodge No. 209 of the Slovene National Benefit Society of Nokomis, appellees.
    Gen. No. 9,011.
    Opinion filed April 16, 1937.
    Gerald G. Ginnaven, for appellant; M. J. Brown and J. D. Wilson, of counsel. Hill & Buffington, for appellees.
   Mr. Justice Riess

delivered the opinion of the court.


author: Mr. Justice Davis

text:
    Honore Haly, appellee, v. Decatur Yellow Cab Company, Inc., appellant.
    Gen. No. 9,037.

      Opinion filed April 16, 1937.
    McMillen, MeMillen & Garman, for appellant. LeForgee, Samuels & Miller, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    Board of Trustees of Township 16, Range 14, in Douglas County, appellees, v. Indemnity Insurance Co. of North America and Albert S. Hawkins, appellants.
    Gen. No. 9,049.
    Opinion filed April 16, 1937.
    C. H. Swick and Cotton & Nichols, for appellants. Dobbins, Dobbins, Barr & Thomas and Green & Palmer, for appellees; Henry I. Green, Bay Dobbins, James A. Solon, Homer Shepherd and Oris Barth, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Mr. Presiding Justice Stone

text:
    Fourth District.
    Harry Murdock, appellee, v. Earl Huff, appellant.
    Opinion filed June 3, 1937.
    Harry Faulkner, for appellant. Wesley Lueders, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.


text:
    Ida Bell White, appellee, v. City of Belleville, appellant.
    Opinion filed June 3, 1937.
    L. N. Nick Perrin, Jr., for appellant; Louis Klingel, of counsel. Beasley & Zulley, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.