text:
    John F. Hanley, appellee, v. Carlos Ames et al., appellants.
    Gen. No. 35,179.
    Opinion filed June 22, 1931.

      Samuel A. Ettelson, Corporation Counsel, and Francis J. Vurpillat, Special Assistant Corporation Counsel, for appellants.
    Daniel F. Murphy, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice MeSurely

license: Public Domain

text:
    Frederick Thomas, appellee, v. Samuel J. Damond et al., defendants, on interlocutory appeal of Bertha Lansky, formerly Bertha Freiden, appellant.
    Gen. No. 35,311.
    Matchett, J., dissents.
    Opinion filed June 24, 1931.
    Edelson, Latter & Wise, for appellant; William N. Wise, of counsel.
    Arkin, Berman & Marks, for appellee; Matthew Berman, of counsel.
   Mr. Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Catherine Wood, appellee, v. MacLean Drug Company et al., defendants. Harry E. White and Fred S. White, appellants.
    Gen. No. 35,302.
    Opinion filed June 24, 1931.
    Emil C. Wetten, for appellants.
    Gottlieb & Schwartz, for appellee; Ulysses S. Schwartz and Claude A. Roth, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    Boris Kriloff, appellee, v. City of Chicago et al., appellants.
    Gen. No. 35,308.
    Opinion filed June 24, 1931.
    Francis X. Busch, Corporation Counsel, and Martin H. Foss, Assistant Corporation Counsel, for appellants.
    No appearance for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Presiding Justice Gridley

text:
    Moraw Construction Company, defendant in error, v. James A. Royer, plaintiff in error.
    Gen. No. 34,796.
    Opinion filed June 26, 1931.
    Joseph B. Lawler and G. Donald Whitehouse,’ for plaintiff in error.
    Tannenbaum, Polikoff & Schmidt, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Joseph Seeberger, appellant, v. John W. Fowler, appellee.
    Gen. No. 34,808.
    Opinion filed June 26, 1931.
    Raymond Kelner and C. Helmer Johnson, for appellant.
    Doming, Jarrett & Mulfinger, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Newton B. Lauren and State Bank of Chicago, plaintiffs in error, v. George W. Prassas and George C. Hield, defendants in error.
    Gen. No. 34,822.
    Opinion filed June 26, 1931.
    Eugene W. Rogers, for plaintiffs in error; John R. Herren, of counsel.
    Robert J. Nordhold, for defendants in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Chicago Trust Company, as receiver for Roosevelt-Bankers State Bank, defendant in error, v. Max Alexander, plaintiff in error.
    Gen. No. 34,867.
    Opinion filed June 26, 1931.
    Schuyler, Dunbar & Weinfeld, for plaintiff in error; Howard D. Moses and Henry E. Jacobs, of counsel.
    Louis J. Behan and William J. Corrigan, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Frank A. Countryman, appellee, v. South Park Commissioners et al., appellants.
    Gen. No. 34,877.
    Opinion filed June 26, 1931.
    Rehearing denied July 7, 1931.
    George E. Gorman, for appellants.
    Michael F. Ryan, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    American Cabinet Company, appellee, v. Constantine Giovan and Peter Giovan, appellants.
    Gen. No. 34,890.

      Opinion filed June 26, 1931.
    Stedman, Kesler, Lewis & Feinstein, for appellants.
    Edelson & Paullin, for appellee; Hyland J. Paullin and J. Henry Aronson, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Kerner

text:
    Margaret Asquith, appellant, v. Robert L. Asquith, appellee.
    Gen. No. 34,789.
    Opinion filed June 26, 1931.
    James J. Shepro and John M. Kanne, for appellant.
    Paul R. Simon, for appellee; Charles Hudson, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Roy Cumm, appellee, v. Hogan & Farwell, Inc., appellant.
    Gen. No. 34,819.
    Opinion filed June 26, 1931.
    Pruitt & Grealis, for appellant.
    Parker, McKeon & Clusman, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Steel Tank and Products Corporation, appellant, v. Sylvester Hussar, trading as North Shore Tank Installation Company, appellee.
    Gen. No. 34,831.
    Opinion filed June 26, 1931.
    Charles L. Barrett, for appellant.
    Kamfner & Halligan, for appellee; Arthur J. Goldberg, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Peter Matic, plaintiff in error, v. Ilija Matic, defendant in error.
    Gen. No. 34,855.
    Opinion filed June 26, 1931.

      Henry L. Burman, for plaintiff in error; Louis Sevin, of counsel.
    Isidore Fried and Edward Horehler, for defendant in error; Bernard A. Stol, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Walter Czaja, a minor, by John Czaja, his next friend, defendant in error, v. J. A. Gursky et al., plaintiffs in error.
    Gen. No. 34,869.
    Opinion filed June 26, 1931.
    Victor Frohlieh and Edward McTiernan, for plaintiffs in error.
    Samuel L. Steinberg, for defendant in error.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Robert McGuire, appellee, v. George H. Sellas, appellant.
    Gen. No. 34,894.
    Opinion filed June 26, 1931.
    B. M. Shaffner, for appellant.
    Ho appearance for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    Louis Cohn (Beckie Cohen), appellee, v. James P. Hobson and Mellie Hobson, his wife, appellants.
    Gen. No. 34,694.
    Opinion filed June 26, 1931.
    Ellis & Westbrooks, Richard E. Westbrooks, Blaine G. Alston, De Frantz R. Williams and Barbara Watts Goodall, for appellants; Richard E. Westbrooks, of counsel.
    Morris Kompel, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Margaret Herrick, appellee, v. City of Chicago, appellant.
    Gen. No. 34,746.
    Opinion filed June 26, 1931.
    Samuel A. Ettelson, Corporation Counsel, and Warner Wall, Assistant Corporation Counsel, for appellant; Francis J. Vurpillat, Special Assistant Corporation Counsel, of counsel.
    M. L. Carmody, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court,


text:
    The People of the State of Illinois, defendant in error, v. Dominick Brancato, plaintiff in error.
    Gen. No. 34,872.
    Opinion filed June 26, 1931.
    Frank A. McDonnell, for plaintiff in error; S. B. McDonnell, of counsel.
    John A. Swanson, State’s Attorney, for defendant in error; Otho S. Fasig, Henry T. Chace, Jr., and Edward E. Wilson, Assistant State’s Attorneys, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Andy Botyanzski and Sophia Botyanzski, appellees, v. Sovereign Camp Woodmen of the World, appellant.
    Gen. No. 34,935.
    Opinion filed June 26, 1931.
    William E. Mooney, for appellant.
    O. M. Wilkerson, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Frank S. Cummings, appellee, v. John H. Kinner et al., appellees. Traders Investment Company, appellant.
    Gen. No. 34,955.
    Opinion filed June 26, 1931.
    Joseph F. Grossman, for appellant.
    Hart, Frank & Shomberg, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Allen Kline Buckley et al., as executors of the estate of Matilda E. Kline, deceased, appellants, v. Emma A. Auer and Jacob Auer, appellees.
    Gen. No. 34,974.
    Opinion filed June 26, 1931.
    William T. Pridmore, for appellants; Leo J. Hassenauer, of counsel.
    J. Kentner Elliott, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Ralph H. Rollins, appellee, v. Frank Kroncke, appellant.
    Gen. No. 34,986.

      Opinion filed June 26, 1931.
    Frank C. Hill, for appellant.
    Melville & Myers, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Joseph O. Grant, as executor of the estate of Andrew Leonard Johnson, deceased, appellant, v. B. W. Rosenstone, appellee.
    Gen. No. 34,993.
    Opinion filed June 26, 1931.
    Rehearing denied July 7, 1931.
    Robert H. Holmes, for appellant.
    Arthur Abraham, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Joseph Blumfield and Sophie Blumfield, appellees, v. Samuel Goldman et al., appellants.
    Gen. No. 35,193.
    Opinion filed June 26, 1931.
    M. M. Gross and H. J. Rosenberg, for appellants; Abraham Miller and Irving S. Berman, of counsel.
    Edward N. Sherburne and Burke, Immenhausen & Crane, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Robert Branch et al., appellees, v. Isaac A. Thomas et al., appellants.
    Gen. No. 35,218.
    Opinion filed June 26, 1931.
    Rehearing denied July 7, 1931.
    Weightstill Woods, for appellants.
    Wendell E. Green, for appellees.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Goldie H. Hoffman Brownell, appellee, v. Norman L. Randall et al., defendants, on appeal of Norman L. Randall et al., appellants.
    Gen. No. 35,317.
    Opinion filed July 3, 1931.
    Rehearing denied July 14, 1931.
    Frederick W. Janson, for certain appellant.
    William Sehiepan, for certain other appellants. Frisch & Frisch, for appellee; Theodore J. Tiektin, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    Benjamin E. Cohen, appellant, v. Rose Smilovitch, appellee.
    Gen. No. 34,995.
    Opinion filed July 6, 1931.
    Rehearing denied July 20, 1931.
    Cohen & Berke, for appellant.
    Garnsy, Wood & Lennon and Daniel Harrington, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Marshall Square State Bank, appellee, v. Tomasz Wilczynski and John Klimek, defendants, on appeal of Tomasz Wilczynski, appellant.
    Gen. No. 35,077.
    Opinion filed July 6, 1931.
    Philip A. Weinstein, for appellant.
    Casimir R. Waehowski, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Catherine Hartley, defendant in error, v. Red Ball Transit Company, plaintiff in error.
    Gen. No. 34,193.
    Opinion filed July 6, 1931.
    Church, Haft, Robertson & Crowe, for plaintiff in error; Burt A. Crowe, of counsel.
    Philip Rosenthal, for defendant in error; Stuart B. Krohn, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    Max M. Roston, appellee, v. William A. Blessing, appellant.
    Gen. No. 35,134.
    Opinion filed July 9, 1931.
    Fleetwood M. McCoy and Harris B. Gaines, for appellant; Fleet-wood M. McCoy, of counsel.
    No appearance for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    The New York, Chicago & St. Louis Railroad Company, appellee, v. James Zajicek, appellant.
    Gen. No. 35,158.

      Opinion filed July 9, 1931.
    Andrew Mitchell, for appellant; Robert L. Floyd, of counsel.
    Winston, Strawn & Shaw, for appellee;: James H. Cartwright and Thomas A. Reynolds, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    William Joy, defendant in error, v. Union Bank of Chicago, administrator of the estate of Minnie Williams, deceased, plaintiff in error.
    Gen. No. 34,925.
    Opinion filed October 9, 1931.
    Huggins & Huggins, for plaintiff in error; Macon H. Huggins, of counsel.-
    No appearance for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Alexander Grant et al., appellees, v. Simpson Motor Company, appellant.
    Gen. No. 34,938.
    Opinion filed October 9, 1931.
    Newby & Murphy, for appellant.
    Joseph B. Lawler and G. Donald Whitehouse, for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Eli Weinstein, a minor, by Sam Weinstein, his father and next friend, appellee, v. City of Chicago, appellant.
    Gen. No. 34,958.
    Opinion filed October 9, 1931.
    Samuel A. Ettelson, Corporation Counsel, William D. Saltiel, City Attorney, and Robert G. Lewis, Assistant City Attorney, for appellant; Cora B. Hirtzel, Assistant Corporation Counsel, of counsel.
    Irving G. Zazove, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Midwestern Tool Company, appellee, v. Droll Patents Corporation, appellant.
    Gen. No. 34,977.
    Opinion filed October 9, 1931.
    Rehearing denied October 21, 1931.

      Arthur B. Schaffner and Albert G. Duncan, for appellant.
    MeGilvray, Eames, Vaughan & Tilley, for appellee; Franklin B. Vaughan, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    L. Fish Furniture Company, appellee, v. Claude W. Morris, appellant.
    Gen. No. 34,989.
    Opinion filed October 9, 1931.
    Harold Engstrom, for appellant.
    D ’Ancona, Pflaum '& Kohlsaat, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Belmont Lumber Company, complainant and appellee, v. William Miller et al., defendants. William Miller and Frieda Miller, appellants.
    Gen. No. 34,996.
    Opinion filed October 9, 1931.
    Myron E. Wisch, for appellants; Sidney B. Tarkoff, of counsel.
    George L. Lewis, for appellee; Clyde C. Fisher, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court."


text:
    LeRoy B. Boylan, defendant in error, v. Anna M. Boylan, plaintiff in error.
    Gen. No. 35,010.
    Opinion filed October 9, 1931.
    Rehearing denied October 21, 1931.
    Barratt O’Hara and Ronald C. Oldham, for. plaintiff in error.
    Socrates & Davis, for defendant in error; Nicholas A. Socrates, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Presiding Justice Gridley1

text:
    Moe I. Schiffman, appellant, v. Parker M. Mathews, appellee.
    Gen. No. 35,112.
    Opinion filed October 9, 1931.
    Epstein & Arvey, for appellant; Louis M. Mantynbánd and Norman Asher, of counsel.
    Henry M. Porter, for appellee.
   Mr. Presiding Justice Gridley1

delivered the opinion of the court.


text:
    Otto Hemm, appellee, v. H. Roy Berry Company, appellant.
    Gen. No. 35,168.
    Opinion filed October 9, 1931.
    Litsinger, Healy & Reid, for appellant.
    Kenneth F. Simpson, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Peter Stefan, appellee, v. Crane Company, appellant.
    Gen. No. 35,231.
    Opinion filed October 9, 1931.
    Alden, Latham & Young, for appellant; Wm. L. Quinlan, of counsel.
    Luster & Luster, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    Paula Fagan, appellant, v. I. Lockson, appellee.
    Gen. No. 35,288.
    Opinion filed October 9, 1931.
    Morris A. Haft, for appellant.
    Malkin & Malkin, for appellee; Sol R. Malkin, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Presiding Justice Gridley)

text:
    Builders and Merchants Bank and Trust Company, appellee, v. Louis O. Runner et al., defendants, on appeal of Austin Hotel Company, appellant.
    Gen. No. 35,306.
    Opinion filed October 9, 1931.
    Clorfene & Feldman, for appellant; Irwin B. Clorfene and Sidney Baker, of counsel.,
    Marston, Friedlund, Tone & Friedlund, for appellee.
   Mr. Presiding Justice Gridley)

delivered the opinion of the court.


text:
    E. J. Pauler, appellant, v. Robert F. Bates, appellee.
    Gen. No. 32,798.

      Opinion filed October 9, 1931.
    William R. Wiley, for appellant.
    Moses, Kennedy, Stein & Baehraeh, for appellee; Seymour A. Greenblatt, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Charles J. Costello, defendant in error, v. Josephine Ranes and John G. Ranes, plaintiffs in error.
    Gen. No. 34,561.
    Opinion filed October 9, 1931.
    Rehearing denied October 21, 1931.
    Corinne D. Rice and Simpson & Baker for plaintiff in error John G. Ranes.
    Lancaster & Devery, for defendant in error; William J. Lancaster, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    J. V. DeLaney and Walter P. Altenburg, trading as DeLaney and Altenburg, appellants, v. Edward R. Adams and Clara D. Adams, appellees.
    Gen. No. 34,906.
    Opinion filed October 9, 1931.
    Eugene C. O’Reilly, for appellants.
    Ode L. Rankin, for appellees.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Gordon A. Ramsay, administrator of the estate of Abraham Potter, deceased, appellee, v. Booth Fisheries Company, appellant.
    Gen. No. 34,916.
    Opinion filed October 9, 1931.
    Winston, Strawn & Shaw, for appellant; Silas H. Strawn, Charles J. MeFadden and Joseph C. Sibley, of counsel.
    John A. Bloomingston, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Jacob Cohen for the use of Alliance Insurance Company, appellant, v. C. J. Durk, trading as Central Motor Works Garage, appellee.
    Gen. No. 34,941.
    Opinion filed October 9, 1931.
    Rehearing denied October 21, 1931.
    Kremer, Branand & Hamer, for appellant.
    Russian & DeBolt, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Harry N. Kransz, as trustee, appellee, v. Sidney A. Leibsohn et al., defendants. Sidney A. Leibsohn, appellant.
    Gen. No. 34,951.
    Opinion filed October 9, 1931.
    Grossberg, Lyon & Brill, for appellant.
    Cummings & Wyman, for appellee; Austin L. Wyman, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    H. G. Gaberdiel and M. Ortner, trading as Apex Electric Company, appellees, v. Henry Raymer and A. C. Halmos, trading as Vienna Medical Association and Dr. Leo Weiss, defendants, on appeal of A. C. Halmos, appellant.
    Gen. No. 34,970.
    Opinion filed October 9, 1931.
    Brodkin & Bieber, for appellant; Abraham Teitelbaum, of counsel.
    Fried & Redman, for appellees; Abraham Redman, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Sheridan Trust & Savings Bank, defendant in error, v. Morris A. Bender and Sadie Bender, plaintiffs in error.
    Gen. No. 35,021.
    Opinion filed October 9, 1931.
    Krinsky, Levitan & Glassner, for plaintiffs in error.
    M. B. Waltz, Henry T-. Chace, Jr., and Kirkland, Fleming, Green & Martin, for defendant in error.
   Mr. Justice Kerner

delivered the opinion of the court.


text:
    Tackgun Automatic Machine Corporation, appellee, v. Hibbard, Spencer, Bartlett & Company, appellant.
    Gen. No. 35,040.
    Opinion filed October 9, 1931.
    William J. Pringle and Edwin Terwilliger, for appellant.
    Campbell, Clithero & Fischer, for appellee; Raymond P. Fischer, of counsel.
   Mr. Justice Kerner

delivered the opinion of the court.


author: Mr. Justice Kernel-

text:
    Isaac K. Goodman, appellee, v. Margaret Ernst, appellant.
    Gen. No. 35,104.

      Opinion filed October 9, 1931.
    Charles M. Geringer, for appellant; James S, Wight, of counsel.
    Charles S. Elias, for appellee; Clyde C. Eisher, of counsel.
   Mr. Justice Kernel-

delivered the opinion of the court.


text:
    Maurice Klein, appellee, v. Guaranty Fire Insurance Company, appellant.
    Gen. No. 35,144.
    Opinion filed October 9, 1931.
    Hicks & Folonie, for appellant.
    No appearance for appellee.
   Mr. Justice Kernel-

delivered the opinion of the court.


text:
    L. T. Ellis Company, appellee, v. John Heyl, appellant.
    Gen. No. 35,206.
    Opinion filed October 9, 1931.
    Samuel D. Rothman, for appellant.
    .William S. Kleinman, for ap-
    pellee.
   Mr. Justice Kernel-

delivered the opinion of the court.


author: Mr. Justice Kernel'

text:
    Lottie Meyer, appellee, v. G. L. Abbott, appellant.
    Gen. No. 35,267.
    Opinion filed October 9, 1931.
    Robert W. Besse and Gerald T. Wiley, for appellant.
    Spitz & Rooks, for appellee; Edward Blackman and Eli E. Eink, of counsel.
   Mr. Justice Kernel'

delivered the opinion of the court.


text:
    John W. Weccard, appellee, v. J. B. Dicus and Bertha Dicus, appellants.
    Gen. No. 35,290.
    Opinion filed October 9, 1931.
    Lowes & Lowes, for appellants.
    E. J. Batten, for appellee.
   Mr. Justice Kernel-

delivered the opinion of the court.


text:
    P. F. Cunningham, appellant, v. O. C. Junge, appellee.
    Gen. No. 34,703.

      Opinion filed October 9, 1931.
    Harper E. Osborn and J. Kent Greene, for appellant.
    Patrick L. McArdle, .for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Charles A. Hohmeier Lumber Company, defendant in error, v. Arthur B. Knight et al., plaintiffs in error.
    Gen. No. 34,790.
    Opinion filed October 9, 1931.
    Rehearing denied October 21, 1931.
    Joseph B. Lawler and G. Donald Whitehouse, for plaintiffs in error.
    Roy J. Egan, foe defendant in error.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Sanitary Scale Company, appellant, v. Adolph Ryser et al., appellees.
    Gen. No. 34,828.
    Opinion filed October 9, 1931.
    Ralph Obenchain, for appellant; Clarence A. Samuel and Seymour Lewis, of counsel.
    Thomas J. Doyle, for appellees; Tage Joranson, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Joseph Haars, a minor, by Joseph H. King, his next friend, defendant in error, v. White City Amusement Company, plaintiff in error.
    Gen. No. 34,860.
    Opinion filed October 9, 1931.
    Eugene P. Kealy and Murphy O. Tate, for plaintiff in error; Murphy O. Tate, of counsel.
    H. A. Earnhardt, for defendant in error.
   Mr. Justice Seanlan

delivered the opinion of the court.


text:
    Grace Long, appellee, v. The Great Atlantic & Pacific Tea Company, appellant.
    Gen. No. 35,004.
    Opinion filed October 9, 1931.
    Ashcraft & Ashcraft, for appellant; Russell F. Locke, of counsel.
    Albert E. Ieely and Jacob G. Grossberg, for appellee.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    The People of the State of Illinois, defendant in error, v. Frank Battaglia, plaintiff in error.
    Gen. No. 35,026.
    Opinion filed October 9, 1931.
    Rehearing denied October 21, 1931.
    Louis H. Dembo, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Otho S. Pasig, Henry T. Chace, Jr., and Edward E. Wilson, Assistant State’s Attorneys, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Harry Jacobson, appellee, v. Abraham M. Liebling, appellant.
    Gen. No. 35,119.
    Opinion filed October 9, 1931.
    Rehearing denied October 21, 1931.
    Hersh'enson & Hershenson, for appellant.
    Isador Becker, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Jones

text:
    Second District.
    Peter Treolo, appellee, v. Iroquois Auto Insurance Underwriters, appellant.
    Gen. No. 8,107.
    Opinion filed May 17, 1930.
    Rehearing granted June 24, 1930.
    Mann & Coleman and Shelby E. Hood, for appellant.
    Hineheliff, Miller & Thomas, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


author: Mr. Presiding Justice Jett

text:
    Oscar E. Sharp, appellee, v. Theodore Blech and Sam Jacobson, appellants.
    Gen. No. 8,271.
    Opinion filed May 21, 1931.
    Rehearing denied July 1, 1931.
    J. A. Miller, for appellants; Sidney H. Block, of counsel.
    George W. Field, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


author: Mr. Justice Jett

text:
    Charles Genschow and Rose Genschow, appellees, v. First Trust Joint Stock Land Bank of Chicago, appellant.
    Gen. No. 8,257.
    Opinion filed August 20, 1931.
    Amberg, Ott, Dahlin & Livingston, for appellant; John A. Brown, of counsel.
    John A. Mayhew and Henry F. Ruel, for appellees. Jno. P. Pallissard, for Durl M. Meents, receiver; Arthur Bolin, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Sadie Vance Mayall, plaintiff in error, v. John H. Dings et al., defendants in error.
    Gen. No. 8,256.
    Opinion filed August 20, 1931.
    J. J. Neiger, for plaintiff in error.
    Church & Califf, Watson <& Duvall and James A. Allen, for defendants in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Elizabeth Nellie Crittenden, plaintiff in error, v. Lucille Kingsbury and Albert Kingsbury, defendants in error.
    Gen. No. 8,360.
    Opinion filed August 20, 1931.
    Welsh & Welsh, for plaintiff in error.
    C. A. Pedderson, for defendants in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Hiram Cooper, appellee, v. Brady-Waxenberg Company, appellant.
    Gen. No. 8,365.
    Opinion filed August 20, 1931.
    Connelly, Walker, Searle & Hubbard and Murphy O. Tate, for appellant; Leo M. Tarpey, of counsel.
    Eli D. Langert, for appellee; Isador I. Katz, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Dan O. Friedinger and William Bishop, appellants, v. Ercie Simmons et al., appellees.
    Gen. No. 8,370.
    Opinion filed August 20, 1931.
    George Joehem, for appellants.
    E. A. Simmons, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Presiding Justice Jones

text:
    Peter Treolo, appellee, v. Iroquois Auto Insurance Underwriters, appellant.
    Gen. No. 8,107.
    Opinion filed August 29, 1931.
    Mann & Coleman and Shelby E. Hood, for appellant.
    Hineheliff, Miller & Thomas, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Metropolitan Life Insurance Company, defendant in error, v. John Versackas, plaintiff in error.
    Gen. No. 8,244.
    Opinion filed August 29, 1931.
    Hall & Dusher, for plaintiff in error.
    Early & Early, for defendant in error.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    George Appel et al., as trustees of Henry Appel, deceased, defendants in error, v. Mary Aykens and Henry Aykens, plaintiffs in error.
    Gen. No. 8,262.
    Opinion filed August 29, 1931.
    North, Linscott, Gibboney & North, for plaintiffs in error.
    Mammenga & Kerr, for defendants in error; W. P. Fearer, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Richard J. T. Skinner, a minor, by John Skinner, his father and next friend, appellee, v. Karl Schoening, appellant.
    Gen. No. 8,272.
    Opinion filed August 29, 1931.
    Shelby E. Hood and Hyer & Gill, for appellant.
    Fred H. Smith and Lisle W. Menzimer, for appellee; Lisle W. Menzimer, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Bertha Lueck, appellee, v. George Roschek, appellant.
    Gen. No. 8,282.
    Opinion filed August 29, 1931.
    Barr & Barr and Mann & Coleman, for appellant.
    Pence B. Orr and C. Helmer Johnson, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Home Lumber & Supply Company et al., appellants, v. Guy Gaston et al., appellees. Union Loan & Savings Association of Freeport, Illinois, appellee, v. John D. Sarantopulos et al., appellants.
    Gen. No. 8,286.
    Opinion filed August 29, 1931.
    Fred H. Smith and Lisle W. Menzimer, for appellants; -Lisle W. Menzimer, of counsel.
    David D. Madden and Eckert & Eckert, for appellees.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Kitty Brawn, appellee, v. F. E. Jones, trading as The Jones Transfer Company, appellant.
    Gen. No. 8,292.
    Opinion filed August 29, 1931.
    Large & Reno and W. J. Berry, for appellant.
    Frank E. Maynard, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    City Trust & Savings Bank, appellee, v. Julia Comstock, appellant.
    Gen. No. 8,293.
    Opinion filed August 29, 1931.
    Hunter & Minor, for appellant.
    H. H. Wheeler and A. L. and C. M. Granger, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Reuben H. Stripe, appellee, v. City of Waukegan et al. City of Waukegan, appellant.
    Gen. No. 8,299.
    Opinion filed August 29, 1931.
    Arthur Bulkley, Corporation Counsel, and Mathias Concannon, for appellant.
    E. V. Orvis, for appellee; Daniel S. Wentworth, Henry O. Nickel and J. B. Mikesell, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    William Nagle, appellee, v. The Minneapolis Threshing Machine Company, appellant.
    Gen. No. 8,303.

      Opinion filed August 29, 1931.
    Elmer Mohan, for appellant.
    Butters &• Butters, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Fremont D. Graue, plaintiff in error, v. Frank Z. Hanscom and Mary C. Hanscom, defendants in error.
    Gen. No. 8,316.
    Opinion filed August 29, 1931.
    Rathje & Connor, for plaintiff in error; Emmet J. Cleary, of counsel.
    Ray E. Lane, for defendants in error.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Alice Marion Mitchell, appellee, v. Margaret I. Spangler, appellant.
    Gen. No. 8,320.
    Opinion filed August 29, 1931.
    Donovan, Bray & Gray, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Harry A. Howard, Sr., administrator of the estate of Harry A. Howard, Jr., deceased, appellant, v. Northern Illinois Supply Company, appellee.
    Gen. No. 8,325.
    Opinion filed August 29, 1931.
    Frank E. Maynard, for appellant.
    Knight, Swenson & Penny, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    C. E. Kellogg, appellee, v. Albert R. Metzelburg, appellant.
    Gen. No. 8,331.
    Opinion filed August 29, 1931.
    Samuel W. King, for appellant.
    Frank G. Brumund and Charles M. Robson, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    A. G. Andreen, appellant, v. L. F. O’Brien, administrator with the will annexed of the estate of Frank Reavy, deceased, appellee.
    Gen. No. 8,335.

      Opinion filed August 29, 1931.
    Woolsey, Stiekney & Lucas, for appellant.
    Marsh, Lewis & Thompson, Hardy, Hardy & Hardy and L. F. O’Brien, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Dorin E. Branstetter et al., appellants, v. Frank J. Lins et al., appellees.
    Gen. No. 8,343.
    Opinion filed August 29, 1931.
    Smith, Menzimer & Smith, for appellants; Lisle W. Menzimer, of counsel.
    Lathrop, Lathrop, Brown & Lathrop and Welsh & Welsh, for appellees.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


author: .Mr. Presiding Justice Jones

text:
    The People of the State of Illinois, defendant in error, v. Cyriel Dumolein, plaintiff in error.
    Gen. No. 8,346.
    Opinion filed August 29, 1931.
    Schriver & Sehriver, for plaintiff in error.
    Benjamin S. Bell, State’s Attorney, for defendant in error; Dan H. McNeal, of counsel.
   .Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Oscar Nelson, as Auditor of Public Accounts of the State of Illinois, complainant, v. The First State Bank of Magnolia et al., defendants. In re Claim of Mark E. Kays, Supervisor of the Town of Magnolia, appellant.
    Gen. No. 8,349.
    Opinion filed August 29, 1931.
    Clarence W. Heyl, for appellant; Heyl & Heyl, of counsel.
    Paul B. Heflin, for appellee; Jones, Essington & Heflin, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Joseph Peterson, appellee, v. G. N. Carlson and William. A. Barton, trading as Barton & Carlson. William A. Barton, appellant.
    Gen. No. 8,352.
    Opinion filed August 29, 1931.
    Hall & Dusher, for appellant.
    Hineheliff, Miller & Thomas, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    John Haase and William J. Carrow, copartners, trading as Haase Bros., appellees, v. Willis Shearer, appellant.
    Gen. No. 8,363.
    Opinion filed August 29, 1931.
    Walter C. Overbeck, for appellant.
    A. L. Anderson, for appellees.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Charles J. Graham et al., appellees, v. Agnes I. Ryan et al., on appeal of Becker Roofing Company, appellant.
    Gen. No. 8,372.
    Opinion filed August 29, 1931.
    Garnsey, Wood & Lennon and Slottow & Levitón, for appellant; David Paley, of counsel.
    Frank J. Jones, for appellees.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


text:
    Ida J. Henke, appellant, v. The Estate of Thomas J. Caie, Sr., deceased, appellee.
    Gen. No. 8,261.
    Opinion filed September 10, 1931.
    A. C. Shattuek, Judson A. Shuey and George W. Thoma, for appellant.
    Samuel J. Howe and Ralph B. Treadway, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Axel A. Lundquist, appellee, v. Clarence H. Palmer, appellant.
    Gen. No. 8,122.
    Opinion filed October 5, 1931.
    Julius E. Matteson and John A. Dowdall, for appellant; Thomas M. Cliffe, of counsel.
    Smith & Brower, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    Hall Motor Company, appellee, v. T. B. Luhman, appellant.
    Gen. No. 8,252.
    Opinion filed October 5, 1931.
    Hincheliff, Miller & Thomas, for appellant.
    Large & Reno, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    Herbert H. Davis Company, Inc., appellant, v. Richard Macek et al., appellees.
    Gen. No. 8,323.
    Opinion filed October 5, 1931.
    Diver & Populorum, for appellant.
    Runyard & Behanna, for certain appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    Floyd Sullivan, a minor, by Roy Sullivan, his father and guardian, appellee, v. Brady-Waxenberg Company, appellant.
    Gen. No. 8,366.
    Opinion filed October 5, 1931.
    Connelly, Walker, Searle & Hubbard and Murphy O. Tate, for appellant; Leo M. Tarpey, of counsel.
    Sweeney & Eagle, for appellee; Edw. L. Eagle, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


author: Per curiam.

text:
    A. A. Phelps, appellee, v. Geo. D. Whitcomb Company, appellant.
    Gen. No. 8,279.
    Opinion filed October 5, 1931.
    Gardner & Gardner, for appellant; Fred E. Gardner, of counsel.
    S. V. Wiriek and Seyster & Fearer, for appellee.
   Per curiam.


text:
    Fourth District.
    In re Estate of Henry Carstens, deceased, appellant, v. May Cool, appellee.
    Opinion filed March 11, 1931.
    Geers & Geers, for appellant.
    R. W. Griffith and Wesley Lueders, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    Rosiclare Lead and Fluorspar Mining Company, appellee, v. Addison Outwater et al., appellants.

      Opinion filed June 4, 1931.
    Rehearing denied July 16, 1931.
    Clarence E. Soward and Creighton & Thomas, for appellants.
    James A. Watson, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Grace Baker, appellee, v. East St. Louis Railway Company, appellant.
    Opinion filed June 4, 1931.
    MeGlynn & MeGlynn, for appellant.
    Ralph Cook and Beasley & Zulley, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    A. J. Webb, appellee, v. Great Northern Mutual Union et al., defendants. Chicago National Life Insurance Company, appellant.
    Opinion filed June 4, 1931.
    Lee D. Mathias, for appellant.
    H. E. Skinner, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    Fae Fierstine and Rosie Koplovitz, appellees, v. John L. Keeley and Viola Keeley, trading as Keestone Contracting Company, appellants.
    Opinion filed June 4, 1931.
    Rehearing denied July 16, 1931.
    T. A. O’Connor and MeGlynn & MeGlynn, for appellants.
    Louis Beasley and Edward C. Zulley, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    R. J. Perry and Harriet E. Perry, plaintiffs in error, v. Mathew Valerius, Jr., defendant in error.
    Opinion filed June 4, 1931.
    Rehearing denied Julyi 16, 1931.
    Ferdinand Tunnell, for plaintiffs in error.
    Francis J. Manning, for defendant in error.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Edward Schiwitz, appellant, v. J. W. Bobbitt, appellee.

      Opinion filed June 4, 1931.
    O. 0. Conley, for appellant; James O. Miller, of counsel.
    Ben M. Creamer, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    W. H. Webb, appellant, v. A. M. Duncan et al., appellees.
    Opinion filed June 4, 1931.
    D. F. Moore, for appellant.
    Roy C. Martin and Layman & Johnson, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Bernadine M. Post, appellee, v. Andrew J. Guerrettaz, as conservator of the estate of Mary Agnes Frame, appellant.
    Opinion filed June 4, 1931.
    H. E. Kimmel, for appellant.
    W. O. Edwards, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Kate Stuart, appellee, v. Andrew J. Guerrettaz, as conservator of the estate of Mary Agnes Frame, appellant.
    Opinion filed June 4, 1931.
    H. E. Kimmel, for appellant.
    W.. O. Edwards, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Lettie Angel, defendant in error, v. Thomas McConkey, administrator of the estate of James Monroe McConkey, deceased, plaintiff in error.
    Opinion filed September 12, 1931.
    Byron Piper and Guy Denton, for plaintiff in error.
    Parker & Bauer, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    Harold Wagner, appellee, v. Julius Coers, appellant.

      Opinion filed September 12, 1931.
    Andrew O. -Niehoff, for appellant.
    Jas. Gr. McHale and Ernest R. McHale, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


text:
    D. W. Pugh, appellee, v. Southern Railway Company, appellant.
    Opinion filed September 12, 1931.
    Kramer, Kramer & Campbell and R. E. Costello, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Edwards

text:
    Pauline Branhorst, appellant, v. Harry F. Stamper et al., appellees.
    Opinion filed September 12, 1931.
    Rehearing denied October 27, 1931.
    D. F. Moore, for appellant.
    W. H. Hart, Layman & Johnson, Williams & Lewis, W. Joe Hill, Gr. A. Hickman and Pulverman & Cantrell, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.


text:
    Herman W. Bender et al., plaintiffs in error v. Benjamin Bender et al., defendants in error.
    Opinion filed September 12, 1931.
    Philip G. Listeman and Harold J. Bandy, for plaintiffs in error; Keefe & Listeman, of counsel.
    Geers & Geers, for defendants in error.
   Mr. Justice Edwards

delivered the opinion of the court.


text:
    R. H. Sullivan, trading as Sullivan Auto Sales Company, appellee, v. Mrs. E. C. Brown, appellant.
    Opinion filed September 12, 1931.
    Harry Faulkner, for appellant.
    Roseoe Forth, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Pulton

text:
    C. I. Hombeck, appellee, v. Robert Aitken, Jr. and Anna Aitken, appellants.

      Opinion filed September 12, 1931.
    Elliott W. Major and Pope &) Driemeyer, for appellants.
    McGlynn & McGlynn, for appellee.
   Mr. Justice Pulton

delivered the opinion of the court.


text:
    Alex Ruggeri and Charles Ruggeri, trading as Ruggeri Brothers, appellants, v. Chicago, Burlington & Quincy Railroad Company, appellee.
    Opinion filed September 12, 1931.
    A. D. Morgan and J. Roy Browning, for appellants.
    Hart & Hart and Sidney P. Blanc, for appellee; J. C. James, of' counsel.
   Mr. Justice Pulton

delivered the opinion of the court.


text:
    Fred Waters, appellee, v. Sinclair Refining Company, appellant.
    Opinion filed September 12, 1931.
    William R. Allen and Harry Faulkner, for appellant.
    No appearance for appellee.
   Mr. Justice Pulton

delivered the opinion of the court.


text:
    Jefferson S. Bush, appellee, v. Nathan Mathes, trading as Tri-City Finance Company, appellant.
    Opinion filed September 12, 1931.
    M. R. Sullivan, for appellant.
    Terry, Gueltig & Powell, for appellee.
   Mr. Justice Pulton

delivered the opinion of the court.


text:
    William Howlett, appellee, v. Missouri Pacific Railroad Company, appellant.
    Opinion filed September 12, 1931.
    Whitnel & Browning, Dan McGlynn, Jr., and J. R. McMurdo, for appellant; Edw. J. White, of counsel.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Pulton

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Jeanette Morgan, appellee, v. Joseph Zurowski, appellant.
    Opinion filed September 12, 1931.
    Philip G. Listeman, for appellant; Keefe & Listeman, of counsel.
    Wm. H. Schuwerk, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Frank Zimring and Sadie Zimring, appellants, v. Fannie Polan and Harry Hershenson, appellees.
    Opinion filed September 12, 1931.
    J. B.'Harris, for appellants.
    Roseoe Forth, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Paulina Norkevich, Administratrix of the Estate of Mike Norkevich, Deceased, Appellee, v. The Atchison, Topeka and Santa Fe Railway Company, Appellant.
    Gen. No. 34,887.

      Opinion filed October 9, 1931.
    Emmet Trainor, F. W. Miller and A. T. Belshé, for appellant; E. E. McInnis, of counsel.
    Charles E. Carpenter, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

In this case there was a verdict returned finding the defendant guilty and assessing the plaintiff’s damages at the sum of $25,000. Judgment was entered on the verdict and the defendant has appealed.

The action was brought under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, If 321 et seq., to recover damages for the wrongful death of Mike Norkevich, who was killed while inspecting air brakes on one of the defendant’s trains in its Corwith yards, in Chicago. There have been three trials of this cause. In each there was a verdict and judgment for the plaintiff. We reversed the judgments in the first and second trials upon the sole ground that the verdicts were against the manifest weight of the evidence.

The defendant contends that “the evidence offered at the third trial of this case in the lower court was substantially the same as that offered at the first and second trials, and inasmuch as this court reversed the previous verdicts and judgments thereon on the ground that they were ‘against the manifest weight of the evidence, ’ the prior decisions constitute the law of the case ’ ’ and will operate as res adjudicatet. City of Chicago v. Lord, 279 Ill. 167, cited in support of this contention, was a non-jury case and has no application to the instant proceeding. It was decided before the great case of Mirich v. Forschner Contracting Co., 312 Ill. 343, wherein it was held (inter alia) that section 120 of the Practice Act, Cahill’s St. ch. 110, 119, providing that the judgment of the Appellate Court reversing that of the trial court with a finding of facts shall be conclusive, applies only to cases where a jury is waived in the trial court or where the trial court would have been justified in directing a verdict because the evidence did not tend to establish a cause of action, and that in actions at law tried by jury, where the evidence is conflicting and that for the plaintiff unquestionably tends to establish a cause of action, the Appellate Court is not authorized, by section 120 of the Practice Act, to reverse a judgment for the plaintiff and make a finding of facts without remanding the cause, as such procedure would be an exercise by the Appellate Court of the functions of a jury. In each of the former appeals, in making our ruling, we did not question the fact that the evidence of the plaintiff made out a prima facie case,' and in the instant appeal the plaintiff made out a prima facie case. Under the law (Mirich v. Forschner Contracting Co., supra), we have no right to make a finding of facts in a case like the present one, and in any case where we find the verdict to be against the manifest weight of the evidence it is our duty to reverse and remand the cause, and in such event the appellee has a right to have another jury pass upon the case. If an appellee, upon the new trial, were unable to produce any additional evidence, affording him a new trial would be but a naked right, devoid of substance, if the defendant’s doctrine of res ad judicata were to be sustained. Were we to uphold the contention of the defendant, our action in that regard would amount to a plain attempt to violate the plaintiff’s right of trial by jury, and it would run counter to the purpose and spirit of the decision in Mirich v. Forschner Contracting Co., supra, wherein the Supreme Court emphatically declared that appellate courts have not the power to violate or abridge the constitutional right of trial by jury. The defendant cites no case that supports its contention, while, on the contrary, many might be cited in which appellate courts of this State have reversed judgments upon the ground that the verdict was against the manifest weight of the evidence but upon a subsequent appeal have refused to reverse the judgment upon that ground, for the reason that where there have been two or more verdicts in a case for the same party and there is any evidence to sustain the judgment appealed from, appellate courts are very reluctant to disturb it.

The defendant contends: “The record is barren of any facts which show how the accident occurred. There were no eyewitnesses to the occurrence, nor did Norkevich explain how it happened prior to his death. ... In view of the lack of any evidence as to what Norkevich was doing when the accident occurred, the conclusion is inescapable that the jury’s verdict was based wholly upon conjecture and speculation,” and that the verdict must therefore be reversed. This contention is based upon the assumption that because there is no direct evidence as to how the deceased was injured the verdict of the jury was therefore necessarily based upon speculation and conjecture. There is, of course, no merit in this contention. The plaintiff had the right to prove her ease by direct or circumstantial evidence. In Devine v. Delano, 272 Ill. 166, the court said (pp.179-80): “There was no eye-witness to the accident, and hence the question whether deceased was knocked off by the post depends upon the inferences to be drawn from the testimony. Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. (State v. Avery, 113 Mo. 475; 11 Am. & Eng. Ency. of Law,—2d ed.—502, note.) In criminal as well as in civil cases a verdict may be founded on circumstances alone. (Slack v. Harris, 200 Ill. 96; Economy Light and Power Co. v. Sheridan, id. 439.) A greater or less probability, leading, on the whole, to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts. (1 Greenleaf on Evidence,- — 16th ed. — sec. 1; Commonwealth v. Webster, 5 Cush. 295; 11 Am. & Eng. Ency. of Law,—2d ed.—490.) ” (See also Thomas v. Chicago, B. & Q. R. Co., 245 Ill. App. 632.) In the instant trial, witnesses for the plaintiff, for the first time, testified that plaintiff’s intestate was a sober, industrious man and careful for his own safety. This evidence was not rebutted. In Chicago, B. & Q. R. Co. v. Gunderson, 174 Ill. 495, in passing upon the question of what caused the injury to plaintiff’s intestate, the court held that the jury were justified in taking into consideration the instincts of the human individual prompting preservation of life and avoidance of danger. The plaintiff’s intestate was employed by the defendant as an air brake inspector and was acting in that capacity when he was killed, on November 1, 1925, about 9:10 p. m. He was inspecting brakes on a 52-car train on track 13, in the defendant’s yards, with two other brake inspectors, Peter Ongyak and John Pint. The rules of the defendant required two inspections of the brakes on each train before it left the yards, and there were also rules that governed these inspections. The first inspection is made with “ground air,” piped into the yards for this purpose. This inspection is made before the way-car or engine are coupled to the train. It is called “ground air” inspection. The second inspection, made after the engine and way-car are attached, using engine air, is called “road test” inspection. It is not necessary to state the details of the first inspection for the reason that Norkevich was killed during the second inspection. Strict rules govern the second inspection. The brakes are set and released by the engineer, using engine air, after the way-car and engine have been attached to the train. The head brake inspector is at the front end to couple on the engine and inspect brakes at the front end of the train. The rear brake inspector is at the rear end to couple on the way-car and to inspect brakes at the rear end. Then blue lights are placed on the front of the engine and rear of the way-car. The rear brake inspector was required, by the rules, to signal the head brake inspector that the way-car is coupled on. "When the head brake inspector receives this signal he then signals the engineer to set the brakes, and the latter then sets the brakes. The head brake inspector then walks back of the engine some four or five car lengths, while the rear brake inspector walks forward from the way-car a like distance, each inspecting brakes at respective ends of the train to see that they set properly. If the rear brake inspector finds that the brakes at the rear set properly he signals the head brake inspector that the brakes at the rear end set. When he receives this signal the head brake inspector, from his position back of the engine, signals the engineer to release the brakes. When the brakes are released the head brake inspector walks back to the engine, examining the brakes on the way, to see that they release properly. At the same time the rear brake inspector walks back to the way-car and on his way examines the brakes to see that they release properly, the theory being that if the brakes set and release at the front and rear ends of the train, the brakes on the whole train will likewise function properly. When the head brake inspector arrives at the engine, the rules require him to wait until he receives a third and final signal from the rear brake inspector that the brakes release properly and the rear end is ready. When the head brake inspector receives the signal he then, under the rules, removes the blue lights from the engine and gives a clearance card to the engineer, and the train is then, for the first time, turned over to the conductor and crew. Ongyak, the head brake inspector, testified that the deceased never gave him the final signal that the brakes were released at the rear end, but that notwithstanding that fact he removed the blue lights from the engine and gave a clearance card to the engineer and conductor, and the train then moved from the yard. That the plaintiff’s intestate was engaged in the work of inspection just before the accident, is clear. In fact, certain evidence of the defendant shows that after the train stopped the deceased was engaged in that work. That this work required him to go between the cars is admitted. Immediately after the train left he was found about 25 car lengths back of where the engine stood before the train started. He was lying on the ground with his leg cut off and there was blood and flesh on the rail of track 13, the track upon which the train had stood. There was blood on each side of the rail and on the ground around it. His head was toward track 14, which was parallel with track 13. His feet were toward track 13 and only a few inches from the near rail. His lantern, that he used in the work of inspection, was on its side, and out. His wrench, which he had also been using in his work, was lying near. While he was lying on the ground he was asked what was the matter, to which he replied, “I got my leg cut off.” The evidence of Ongyak strongly supports the theory of fact of the plaintiff that the deceased had not completed his final inspection at the time of the accident. After a careful consideration of all the facts and circumstances surrounding the accident, we are satisfied that the jury were fully warranted in finding that the deceased was between the cars working* upon the brakes or air line at the time the train started the second time. The deceased knew, as well as Ongyak, that the rules of the defendant required the head brake inspector to wait until he received a third and final signal from him that the rear brakes released properly and that the rear end was ready, before the head brake inspector, under the rules, had the right to remove the blue lights from the engine and give a clearance card to the engineer and train crew, and the deceased had a right to assume, while he was engaged in his work of inspection, that the train would not start until he gave Ongyak the final signal. The act of Ongyak in removing the blue lights from the engine and giving a clearance card to the engineer and train crew constituted negligence. There was also evidence for the plaintiff that tended to prove that no whistle was sounded or warning of any kind given the deceased before the train started the second time. The plaintiff strenuously contends that certain evidence shows that after the train started the first time it was forced to stop because the brakes were set from the rear, which indicated that something was wrong, and that the engineer was negligent in starting* the train the second time without knowing why the brakes had been set, by whom set, what was wrong, or whether or not it had been remedied. We do not deem it necessary to pass upon this point. In our judgment the instant contention is without merit.

The defendant next contends that the verdict and judgment are against the manifest weight of the evidence. Judge M. L. McKinley presided in the first trial of this cause and there was a verdict and judgment for $17,250. Judge R. R. Fowler presided in the second trial and there was a verdict and judgment for $12,500. Judge George W. Bristow presided in the last trial and there was a verdict and judgment for $25,000. As we have heretofore stated, we reversed the judgments in the first and second trials upon the sole ground that the verdicts were against the manifest weight of the evidence. Section 77 of the Practice Act, Cahill’s St. ch. 110, If 77, provides, inter alia, that “no more than two new trials upon the same grounds shall be granted to the same party in the same cause. ’ ’ In Illinois Cent. R. Co. v. Patterson, 93 Ill. 290, the court held that this provision applies only to trial courts and not to appellate courts. The plaintiff argues that as the trial court, in the third trial, was forbidden by the statute to grant a new trial on the ground that the verdict was manifestly against the weight of the evidence, we cannot consistently say that he erred in obeying the statute. We do not find that this point has ever been presented to the Supreme Court. However, in our consideration of the instant contention we have assumed that we have the right, in a proper case, to grant a new trial for the third time upon the sole ground that the verdict is manifestly against the weight of the evidence. The material question, however, is, are we warranted in doing so in the instant case? In support of its contention that we should grant a new trial, regardless of the three verdicts and judgments, the defendant cites Illinois Cent. R. Co. v. Patterson, supra, and Stanberry v. Moore, 56 Ill. 472. In the first of these cases it appears that a former judgment had been reversed because the verdict was not sustained by the evidence. The case was tried again, with a similar result. The plaintiff insisted that the evidence was conflicting and that the Supreme Court should -not reverse a second time on the same ground. To this argument the court said (p. 294): “On one point, and the most important point in the case, there is no conflict. It stands admitted that the train was running at a higher rate of speed than was allowed by the instructions to engineers; that the road at the place of the accident, and for some distance in each direction, was in bad condition, and that fact was known to the engineer, and that, in violation of instructions, he did not slacken the speed, but increased it above card-time. About these several matters there is and can be no dispute. And in such palpable violation of instructions and duty, the verdict is clearly against the evidence and without the shadow of evidence to support it. It is not a case of conflict, but it is a clear case of the want of evidence to support the finding.” (Italics ours.) In Stanberry v. Moore, supra, the court said: “There have been three verdicts in this case, and, if we could find any evidence to sustain the judgment appealed from, we. should be reluctant to disturb it.” (Italics ours.) In that case the defendant, an attorney, was charged with negligence, or breach of duty, and the court said: “Without proof of these he could not be held liable. The principal duties of an attorney or agent are care, skill and integrity. There is no proof of deficiency in any of these requisites; and if the pleadings were formal and correct, no principle of law would render appellant liable for his conduct in the premises.” In Wolbrecht v. Baumgarten, 26 Ill. 291 (cited in Illinois Cent. R. Co. v. Patterson, supra), the court said (pp. 295-6): “Although there might be a case where this court would set aside a third verdict as being entirely without evidence to support it, or for a gross misdirection of the court as to the law, we do not think this is such a case. We do not discover any error in law, and as to the evidence, though not entirely satisfactory, it is sufficient to sustain the verdict. . . . The case must be a very strong one for a defendant where this court would interfere to set aside a third verdict on grounds such as are here set up, especially when the two preceding verdicts were in favor of the plaintiff. The judgment must be affirmed.” In Silsbe v. Lucas, 53 Ill. 479 (also cited in Illinois Cent. R. Co. v. Patterson, supra), after holding that the 34th section of the Practice Act, as it then stood, which declared that “no more than two new trials shall be granted to the same party in the same cause, ’ ’ did not operate to restrain the court from granting any number of trials upon errors of law, but only from granting to the same party more than two new trials upon the ground of the verdict being against the evidence, the court said (p. 482): “It would seem to be eminently proper, where three juries have found the facts the same way, that there should be an end of the controversy as to what the facts are. The law having constituted the jury the judges of the facts, and only invested the judge with power to set aside the verdict when it is to his mind against the evidence, and when the persons authorized to find the facts have three times determined them the same way, the supervisory power of the judge should then cease, and the facts thus found should be conclusive.” In Parmly v. Farrar, 204 Ill. 38, it appeared that the suit had been tried four times and the defendant had been four times granted a new trial, but on one occasion, however, a new trial was granted by the Supreme Court for error of the trial court in refusing to give a certain instruction. In its opinion, the court quotes with approval the language used in Silsbe v. Lucas, supra, which we have heretofore quoted. The following also appears in the opinion: “We also concur with the Appellate Court when they say in their last opinion deciding this case: ‘Unless material errors of law have intervened, or it is made to appear that passion, partiality or prejudice have guided the verdict, the facts three times determined the same way should be deemed conclusive. This does not, in the case at bar, apply to the amount of the verdict, for that has varied, as before stated. But that appellee is entitled to recover some amount, we are compelled to conclude as finally settled. It is not to be presumed that passion, partiality or prejudice have influenced four different juries in as many trials(Parmly v. Farrar, 105 Ill. App. 394.) ” (Italics ours.) In Hinchliff v. Rudnik, 212 Ill. 569, 573, the court said: “Inasmuch as three juries have found the facts the same way, it seems to be eminently proper that there should be an end of the controversy so far as the facts are concerned. (Parmly v. Farrar, 204 Ill. 38, and cases there cited.) ” Where the evidence is conflicting and two juries have heard it and found the facts the same way, and there is evidence tending to sustain the findings, the judgment will not be reversed on the facts. (Bates v. Danville St. Ry. & Light Co., 190 Ill. App. 486.) A number of other Appellate Court cases to the same effect might be cited. In Cunningham v. Magoun, 18 Pick. 13, Chief Justice Shaw, who delivered the opinion of the court said: ‘ ‘ The great principle, which is at the basis of jury trial, is never to be lost sight of, that to all matters of law, the court are to answer, to all controverted facts, the jury. The verdict of a jury is practically to be taken for truth.” After an examination of the evidence in the case the judge concluded thus: “In the present case, though there was strong evidence to prove a partnership, yet there was evidence the other way, the burden of proof was upon the plaintiffs, and two juries on the evidence have decided against them. We do not feel warranted in saying that they have done wrong.” The plaintiff very earnestly argues that the fact that three juries have found for the plaintiff and that the verdict in each trial has been approved by the trial judge, proves clearly wherein the truth of the case lies, and that if this court should again reverse and remand the cause upon the sole ground that the verdict is against the manifest weight of the evidence, such action, without a precedent in this State, would tend, in its effect, to abridge the right of trial by jury. To this argument the defendant responds that the fact that three trial judges and three juries have passed upon the facts adversely to it, should have no weight, “because trial judges are prone to submit personal injury cases to the jury with the thought that the defendant will appeal, and the error be rectified by the Appellate Court. This idea, which is all too prevalent among many of our trial judges of passing to the Appellate Court the responsibility of determining the question as to whether or not the plaintiff has made out a case, should be borne in mind by the Appellate Court when considering appellee’s contention that three trial judges have considered the case. As to the weight which should be given the jury’s verdict, this court is familiar with the well-known proclivity of juries to render verdicts against railroad companies irrespective of the merits of the case. This prejudice of juries against certain classes of defendants is so well known and universally recognized by the Bar generally that the court may almost take judicial notice of the fact.” The three judges in question are able, experienced, honest and courageous in the performance of their duties, and the reckless and unwarranted implication that they were indifferent to their oaths of office meets with our strong condemnation. We also emphatically disapprove of that part of the argument that asks us to disregard the three verdicts on the ground that we should take judicial notice of the fact — as counsel contends — that jurors are so dishonest that they render verdicts against railroad companies “irrespective of the merits of the case” merely because such defendants are railroad companies. It is a far-fetched and extremely improper argument that calls upon us to presume that 36 jurors acted dishonestly in rendering their verdicts. In Lamar v. Collins, 252 Ill. App. 238, we said: “In this enlightened country and under our system of universal education, jurors must be presumed to possess reason and judgment.” We adhere to that statement. A fortiori, jurors must be presumed to have acted honestly in their consideration of a case. As was well stated in Parmly v. Farrar, 105 Ill. App. 394, an appellate court is not justified in presuming that passion, partiality or prejudice have influenced three different juries. It is the province of the jury to determine the credibility of witnesses and the weight to be given their testimony. They may test the truth and weigh the evidence by their knowledge and judgment derived from experience, observation and reflection. “There are many things which a jury observes on the trial in such ease that do not appear from the printed record— the appearance of the respective witnesses, their manner of testifying and a great many other circumstances. They are in a much better position in such case to determine the truth' of the matter in controversy than a court of review.” (Mills & Co. v. Duke, 232 Ill. App. 277.) In Mirich v. Forschner Contracting Co., supra, the court said (p. 358): “One of the recognized benefits of trial by jury is that the jury sees and hears the witnesses, which gives them superior advantage over a reviewing court in determining the credibility of the witnesses and the weight and credit that should be given their testimony.” Many authorities to the same effect might be cited. The wise rule of law that the preponderance of evidence is not necessarily determined by the greater number of witnesses was born of experience. If the law were otherwise many cases would be determined by witnesses whom the jury and trial court disbelieved. However, the question of the preponderance of the evidence does not arise in this court. Under the law we cannot disturb the verdict of the jury unless it is clearly against the manifest weight of the evidence. Manifest means clearly evident, clear, plain, indisputable. After a careful consideration of all the evidence, and giving due weight, as we must, to the fact that three juries have found for the plaintiff and that the trial court in each trial approved the finding of the jury, we have reached the conclusion that we are not warranted in holding that the verdict is against the manifest weight of the evidence. To repeat what was said in Hinchliff v. Rudnik, supra, “inasmuch as three juries have found the facts the same way, it seems to be eminently proper that there should be an end of the controversy so far as the facts are concerned.”

The defendant contends that the court erred in refusing to give the following instruction to the jury:

“1. The court instructs you that the negligence of a defendant cannot be inferred from a presumption of care on the part of the person killed. A presumption in the performance of duty attends the defendant as well as the person killed. It must be overcome by direct evidence. One presumption cannot be built upon another.”

The defendant concedes that the instruction is an excerpt from the opinion of the court in Looney v. Metropolitan R. Co., 200 U. S. 480. Our Supreme Court, on a number of occasions, has commented upon the practice of converting sentences in the opinion of the court into instructions, and has held that it is a bad practice and one that often leads into serious error. The wisdom of this rule is well illustrated in the instant'instruction. The defendant contends that the instruction should have been given because there were no eyewitnesses to the accident and no witness knew how it actually happened and therefore it was necessary for the jury to speculate as to how it did occur. But the plaintiff had the right to prove her case by direct or circumstantial evidence. The instruction states that a presumption in the performance of duty attends the defendant as well as the person killed, and that thé presumption must be overcome by direct evidence. This is not the law, and in the instant case the giving of the instruction would have constituted prejudicial error, as a jury might well believe that as the plaintiff had not proven by direct evidence how the accident occurred it was their duty, under the law, to acquit the defendant. Moreover, the principle of law that formed the subject matter of the refused instruction was fully covered in defendant’s given instruction number 7, which reads as follows:

“7. The court instructs you that the fact of accident carries with it no presumption of negligence on the part of the defendant, but it is an affirmative fact for the plaintiff to establish that the defendant has been guilty of negligence as charged in the plaintiff’s declaration. It is not sufficient for the plaintiff to show that the defendant may possibly have been guilty of negligence. The evidence must point to the fact that it was guilty of the negligence charged in the plaintiff’s declaration, and if you believe from all of the testimony that the matter is uncertain and it shows that any one of a number of things may have brought about the injury, for some of which the defendant is responsible and for some of which it is not, it is not for you to guess between these various causes and find that the negligence of the employer was the real cause when there is no satisfactory foundation in the testimony for that conclusion.”

The defendant next contends that the court erred in refusing to give its requested instruction number 4. It is sufficient to say in answer to this contention that the substance of the refused instruction is fully covered in defendant’s given instructions 7, 13 and 21.

The defendant next contends that the court erred in refusing to give its requested instruction number 20. It is a sufficient answer to this contention to say that the substance of the instruction is fully covered in defendant’s given instructions 7, 13, 18 and 21. In the matter of instructions we may say that the trial court gave only two instructions on behalf of the plaintiff, and 19 on behalf of the defendant, and some of the defendant’s given instructions are quite lengthy. The defendant does not complain of the two instructions given for the plaintiff, and after a careful reading of the defendant’s given instructions we are satisfied that they cover, fully and correctly, all the principles of law that the defendant might rightfully ask in a case of this kind.

No complaint is made as to the amount of the verdict. After a careful study of the record we are satisfied that the cause was well tried by the trial judge and that the rights of the parties were carefully guarded by him.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Gbidley, P. J., and Keener, J., concur.


author: Mr. Justice Scahlan

text:
    Celle Becker, Respondent, Defendant in Error, v. James H. Hooper, Petitioner, Plaintiff in Error.
    Gen. No. 34,897.

      Opinion filed October 9, 1931.
    James H. Hooper, Pro Se.

    No appearance for defendant in error.
   Mr. Justice Scahlan

delivered the opinion of the court.

Plaintiff in error has sued out this writ of error to review a decree of the superior court of Cook county dismissing his petition for want of equity.

The respondent, Celle Becker, hereinafter called the defendant in error, filed her bill in the circuit court of Cook county praying that a sale to plaintiff in error of her real estate by the bailiff of the municipal court of Chicago under an execution issued out of that court on a judgment against her be set aside. The hill also prayed for an injunction to restrain plaintiff in error from assigning the certificate of sale or obtaining a deed by reason of the sale. On April 13,1928, that bill was dismissed for want of equity and defendant in error appealed to the Supreme Court, where the decree of the circuit court was affirmed, in June, 1930. (See Becker v. Hooper, 340 Ill. 98.) It appears from the opinion filed in that case that what purported to be a certificate of the evidence on which the decree of the circuit court was based, was stricken from the record on motion of the plaintiff in error, and that the decree was affirmed for the reason that all of the errors assigned were based on matters contained in the said certificate of evidence. While the appeal in that case was pending the defendant in error filed, in the superior court of Cook county, on May 26, 1928, her bill against plaintiff in error for an injunction pendente lite. The bill prayed that the plaintiff in error be restrained from collecting or attempting to collect the rents due from tenants of the building in question and from commencing any action against any of the tenants of the building, and that he be restrained from prosecuting any of the actions and proceedings he had already commenced against the tenants in the building, etc., pending the determination of the appeal from the decree in the circuit court case, then pending in the Supreme Court. A decree was entered in the superior court case, on June 19, 1928, finding that the defendant in error, on January 2,1924, acquired by purchase, for the sum of $350,000, the premises in question, consisting of certain land and the improvements thereon; that since January 2, 1924, she has continued to be the owner in fee simple of said premises and has since said date occupied the premises as her homestead. The decree recites the commencement of the suit in the circuit court and the proceedings thereunder and the decree entered therein, and that an appeal had been taken and was then pending in the. Supreme Court; that the real estate is improved by an 18 flat brick and stone building, “one of which apartments is six rooms and is occupied by the complainant and her family as her own and has been so occupied for the past five years; that all of the other flats are occupied by tenants”; that after the entry of the decree in the circuit court the plaintiff in error, by threats, demands and various actions at law, attempted to obtain possession of the premises and large sums of money due and owing from the tenants of the building; that he has served notice on the various tenants during April and May, 1928, that he was the owner of the building and demanding that they pay rents to him; that he has commenced divers actions in the municipal court of Chicago against said tenants; that the court finds that unless an order is entered against him restraining him from his attempts to take possession of the building and to collect the rents of the same during the pend-ency of the appeal, he will continue his said acts to the great and irreparable damage, etc., of defendant in error; that “the court further finds that it has jurisdiction of the parties hereto and of the subject matter of this cause; that in the event the decree of said circuit court is affirmed by said Supreme Court then the complainant shall give to said defendant an accounting with respect to the rents, receipts and income of said property from the date hereof until the entry of the order of said Supreme Court affirming said decree of said circuit court, if, as and when the same shall or may be done and that such accounting shall be without prejudice as to either of said parties. The court further finds that during the pendency of said appeal the complainant is entitled to the possession of said premises and to the rents, receipts and income therefrom without any interference by the said defendant James H. Hooper or by those claiming by, through, or under him, subject to accounting as hereinbefore set forth.” Then followed the injunctional order. On November 2, 1928, the plaintiff in error sued the defendant in error and the American Surety Company of New York, a corporation, in the municipal court of Chicago, upon an injunction bond given by the defendant in error, as principal, and American Surety Company, as surety, in the aforesaid proceeding* in the circuit court of Cook county. This cause was tried before the court, with a jury, and there was a verdict returned that the plaintiff take nothing by his suit and that the defendants recover from him their costs. From a judgment entered on the verdict the plaintiff in error appealed to this court, and on July 3, 1929, we filed an opinion affirming the judgment of the municipal court. (See James H. Hooper and B. W. Snow, Bailiff v. Celle Becker and American Surety Co. of New York, Gen. No. 33,347, 254 Ill. App. 606.) Thereafter the Supreme Court denied the plaintiff in error a certiorari in that cause. In our opinion we state that the amended statement of claim of the plaintiff in error alleges the following: “That the defendant Becker was, on February 6,1926, the owner of lots 10,11 and 12 in Block 5 in Cochran’s Addition to Edgewater; that on the said date Broadway-Sheridan Building Co. obtained a judgment for $700 against her; that on February 8, 1926, an execution was issued thereon, and on April 21, 1926, under said execution the bailiff ‘sold all interest of said Becker’ to plaintiff Hooper for $749.25; that the period of redemption expired on July 21, 1927; that the property was not redeemed and plaintiff Hooper was entitled to a deed thereon, and to all the rents from July 21, 1927, or as soon thereafter as a bailiff’s deed might issue, and demand be made" upon the tenants for possession after the deed had been issued; that on September 2, 1927, said Becker filed a bill for injunction in the circuit court of Cook county and procured an injunction restraining said Hooper from obtaining a deed; that an answer was filed and a trial had, and on April 3, 1928, the court entered a final decree dismissing said bill of complaint for want of equity at complainant’s costs; that said decree in legal effect dissolved the injunction; that said injunction had been issued upon the filing by said Becker of an injunction bond in the sum. of $1,500; that said defendants, on September 2, 1927, entered into and executed said injunction bond (a copy of which was filed in that case as the instrument sued on); that said injunction bond was approved before the injunction was issued; that by reason of said injunction plaintiff Hooper was prevented from securing a bailiff’s deed and from demanding possession from said tenants and from receiving the rents for said premises from September 2,1927, to April 13,1928; that the monthly rental of said premises was more than $4,000 per month, and said rents for said period were collected by said Becker and converted to her own use, and that she converted to her ovni use more than $1,500, which amount plaintiff has been damag’ed, wherefore plaintiff asks judgment for $1,500 debt and $1,500 damages.” We further find from the opinion that the amended affidavit of merits of the defendant in error in that cause avers (inter alia):

“That said Celle Becker was at all times mentioned in plaintiff’s statement of claim, the sole legal owner, and in sole, legal and undisputed possession of the property and premises described in plaintiff’s statement of claim, has been such sole, legal owner, and in such sole, legal and undisputed possession of said property for the past four years, and now is such sole, legal owner and possessor of the said property.

“Affiant further states that said property and premises consist of an 18-apartment building, one of which apartments containing six rooms has- been the home, and the only home, of said owner and her family, ever since she purchased the building, and now is the home, and the only home, of said owner and her family, and the other apartments have been at all times mentioned in plaintiff’s statement of claim, occupied by tenants holding leases from said Celle Becker, and are now occupied by such tenants.

“Affiant further states that about April 21, 1928, under an execution issued by the Municipal Court of Chicago on a judgment entered against said Celle Becker, by confession on an alleged lease, in the sum of $700.00, the Bailiff of said court did offer said property for sale, and plaintiff having* bidden the sum of $749.25 the whole of said property was struck off and sold to him, and the Bailiff thereupon issued a' certificate of said sale to said purchaser, a copy of which was recorded in the office of the County Recorder of Cook County, Illinois, but said certificate was null and void, for the reason that the sale evidenced thereby was made on a bid of less than $1000.00, contrary to the provisions of Section 9 of Chapter 52 of the Statutes of Illinois.

“Affiant further states, that, in the making of the aforesaid sale of said property, both the judgment creditor and the Bailiff of said court failed to comply with the Statutes of the State of Illinois, in that they did not make any appraisement of said property, or take any steps to set off the homestead of the said owner, or offer to pay her $1000.00 in lieu of said homestead, as provided by section 10 of said Chapter 52.

“That by reason of the fact said sale was entirely null and void said plaintiffs were not entitled to a deed to said premises and were not entitled to make a demand for possession of said premises and were not entitled to rents, profits and issues therefrom and were not damaged in the manner and form alleged in their statement of claim.”

In our opinion we state: “The undisputed evidence shows that the building in question is a single structure and consists of 18 apartments, occupying a corner plot of ground in the City of Chicago; that since the defendant Celle Becker purchased the property, in January, 1924, she had occupied six rooms of the building as a home for herself and her family and that it was her only home; that at the time of the sale in question no steps were taken for the appraisement of the property nor to set off the homestead therein, and that the real estate was sold as one parcel.” Because of these facts, we held that the sale by the bailiff of the municipal court to the plaintiff in error, upon which he depends for his title to the premises in question, was void. As our decision turned solely upon the question as to whether or not the sale was void, the refusal of the Supreme Court to allow a certiorari necessarily affirmed our ruling in that regard. From the opinion of the Supreme Court in Becker v. Hooper, supra, 340 Ill. 98, it appears that that court, because of the failure of the defendant in error to file a proper certificate of evidence in the case, was unable to directly pass upon the merits of the question decided by us in the plaintiff in error’s suit upon the injunction bond. After the Supreme Court had refused a certiorari in James H. Hooper and B. W. Snow, Bailiff v. Celle Becker and American Surety Co. of New York, supra, the plaintiff in error filed, in the superior court of Cook county, what purports to be a petition in the proceedings wherein the defendant in error had been granted an injunction pendente lite. The petition, filed without leave of court, is as follows:

“Now comes Defendant, James H. Hooper and says that on June 20, A. D. 1930, the Supreme Court of Illinois, affirmed the decree in case No. 18949, Celle Becker vs. James H. Hooper, et al., and that the injunction heretofore entered herein has been dissolved and that under the decree entered herein on June 19, A. D. 1928, your Petitioner is entitled to an accounting herein for the rents, receipts and income for the premises described in the Bill herein and in said decree during the pendency of the appeal of said case No. 18949, in the Supreme Court of Illinois; that said appeal was so pending for twenty-six (26) months just prior to June 20, A. D. 1930; that during said twenty-six months, said Celle Becker was in sole possession thereof for more than ten (10) months from April 13, 1928, to March 1, 1929; that the rents received by her during said ten (10) months were more than. Four Thousand Dollars ($4,000.00) per month, making* a total of Forty Thousand Dollars ($40,000.00); that Defendant is entitled to a decree that she account to and pay over to this said Petitioner therefor, the sum of Forty Thousand Dollars ($40,000.00).

“Petitioner therefore prays that Celle Becker be ruled to answer this Petition within a short day, and to show cause if any she has, why a decree shall not be entered against her as above set forth.
James H. Hooper
Defendant-Petitioner. ’ ’

Here follows the jurat. The defendant in error'filed the following* answer to the petition:

“Now comes the complainant, Celle Becker, and for answer to the petition of James H. Hooper, filed herein on the 14th day of July, A. D. 1930, says:

“She neither admits nor denies that on June 20, 1930, the Supreme Court of Illinois affirmed the decree in case No. 18949, Celle Becker v. James Hooper et al., but asks for strict proof thereof.

“Further answering, she admits that the injunction heretofore entered herein has been dissolved.

“Further answering, she denies that she has been in sole possession of the premises in question for more than ten months from April 13, 1928, to March 1, 1929, and denies that the rents received by her during said alleged ten months were more than four thousand ($4,000.00) Dollars per month or a total of forty thousand ($40,000.00) Dollars, and denies that James H. Hooper, petitioner, is entitled to the rents, receipts and income for the premises in question during the pendency of the appeal of said case No. 18949, in the Supreme Court of Illinois, and denies that the petitioner, James H. Hooper, is entitled to a decree, that she account to and pay over to said petitioner, James H. Hooper, the sum of forty thousand ($40,000.00) Dollars or any other sum whatsoever.

“Further answering, complainant states that the petitioner, James H. Hooper, is entitled under said decree only to a statement of account as to what she (Celle Becker) received in way of rents, issues and profits from said premises and also a statement of account as to what she necessarily disbursed during the time since entry of said decree on June 19, 1928, up to the time she remained in possession of said premises, but that said decree by its terms was entered without prejudice to either complainant or petitioner James H. Hooper, that said decree provides that right of possession to said premises was in complainant and that there is nothing in said decree entitling James H. Hooper to any rents or monies from said premises for any period. That said James H. Hooper is not entitled by reason of any title, right or otherwise to any of said rents or income from the said premises in any amount nor for any period of time. That said building is now under foreclosure proceedings and has been (except for 'sixty days) in the possession of a Receiver, the Foreman Trust & Savings Bank, duly appointed by the Circuit Court of Cook county, since February 14, 1929, which Receiver has collected all said rents, issues and profits from said premises since said date of February 14, 1929, down to and including the present except for a period from March 16,1929, to May 15,1929, and that said Receiver is still in possession and collecting said rents, issues and profits.

“Wherefore, complainant prays that said petition may be denied and that she may be dismissed with her costs.”

Here follows the jurat. The plaintiff in error filed a formal replication to this answer. When the matter of the petition came on to be heard before the chancellor the plaintiff in error testified as follows:

“Celle Becker has been in possession of said premises and collected the rents of $3,000.00 and more each month for ten (10) months, from April 13, 1928, to March 1, 1929.” The plaintiff in error then offered in evidence a certified copy of the order of affirmance entered by the Supreme Court in the circuit court case. He then rested. Thereupon the following occurred:

“Mr. Lipman: Complainant claims that the property was her homestead and that Petitioner is not entitled to anything but an account showing a statement of rents received and the amounts paid out by her and that such an account shows a deficit. I make offer to Petitioner of the Statement of Account of the building at Kenmore and Hollywood Avenues, Chicago, Illinois, showing receipts collected for the period in question amounting to $19,000.00 and disbursements for the same period amounting to $24,226.55, which disbursements were made in the operation and maintenance of the building, and in payment of interest and principal due upon encumbrances, that such account shows a deficit of $5,226.55.

Mr. Hooper: I do not want a statement of the account, What I want is the money.

“Said statement of account tendered to Petitioner by Respondent is attached hereto and is as follows:

In the Superior Court of Cook County Becker vs. Hooper No. 476057
Statement of Account of Building at the North West Corner of Kenmore & Hollywood Avenue, Chicago, Illinois, Pursuant to Decree Heretofore Entered on the 19th Day of June, A. D. 1928.

The building contained 18 ■ flats, and the statement of the items that constitute the receipts and disbursements is necessarily lengthy. The statement shows that the total receipts from June, 1928, to May, 1929, inclusive, were $19,000 and that the total disbursements from June, 1928, to May, 1929, inclusive, were $24,226.55, leaving a deficit of $5,226.55. The defendant in error then offered in evidence the opinion of the Supreme Court on the appeal from the circuit court decree. The foregoing is all that occurred on the hearing before the chancellor. The chancellor dismissed the petition for want of equity and the instant writ of error followed.

It appears from the admissions of the plaintiff in error, made of record, that the defendant in error was, on February 6,1926, the owner of the premises in question ; that on that date Broadway-Sheridan Building Company obtained a judgment for $700 against her; that an execution was issued thereon, and on April 21, 1926, under said execution, the bailiff “sold all interest of said Becker” to the plaintiff in error for $749.25. It further appears from the record that the defendant in error paid $350,000 for the premises. The records of this court (see James H. Hooper and B. W. Snow, Bailiff v. Celle Becker and American Surety Co. of New York, supra) show that when the question of the legality of the sale to the plaintiff in error was squarely presented to an appellate court it was held that the sale was void. The theory of the plaintiff in error in the trial court was that by the provisions of the decree entered in the superior court proceedings, wherein the defendant in error in her bill prayed for an injunction pendente lite against the plaintiff in error, if the decree of the circuit court was affirmed by the Supreme Court, the defendant in error was then bound to pay to the plaintiff in error all of the rents she might collect from the property from the date of the injunctional order until the date of the affirmance by the Supreme Court, and that upon the affirmance by the Supreme Court he was only obliged to file an informal petition in the injunctional proceedings and to make proof as to the gross amount of rents collected by the defendant in error during the period in question and that thereupon it was the duty of the chancellor to enter a decree in his favor and for the actual amount of the rents collected by the defendant in error. After a careful reading of the decree in question, we have reached the conclusion that the contention of the plaintiff in error as to the purpose and effect of the decree is without the slightest merit. When the unfortunate defendant in error offered to the plaintiff in error an itemized statement of account, which upon its face showed that the total of the disbursements she had made was greater than the total income she had received from the property, the plaintiff in error did not question the correctness of the items in the statement, nor did he ask for a reference to a master, nor did he ask that the chancellor inquire into the items of the offered statement. Ignoring the fact that he was in. a court of equity, he took the position, in effect, that he did not care what the defendant in error’s statement of receipts and disbursements might show; that by reason of the decision in the injunctional proceedings he was entitled to all the rents she had collected, and the chancellor was bound to enter an order that she pay him $30,000, which was the amount he testified she had collected. Even if it could be held that under the decree in question the plaintiff in error were entitled to the rents of the premises for the period in question, nevertheless, he would not be entitled to the amount of rents a'ctnally collected by the defendant in error, as she, in any event, would be entitled to credit for taxes, insurance, upkeep, etc. This rule would prevail even if the informal petition of the plaintiff in error were considered in the nature of a suggestion of damages upon the vacation of the injunction. (See Metz v. Brodfuehrer, 214 Ill. App. 458.) The claim of the plaintiff in error in the trial court was so unconseionable that for that reason alone the chancellor was fully justified in dismissing the petition for want of equity. If it were necessary, other good reasons might be stated in support of the decree. In this court, despite the fact that we have heretofore held (James H. Hooper and B. W. Snow, Bailiff v. Celle Becker and American Surety Co. of New York, supra) that the sale to the plaintiff in error was void, he boldly stands by the position he assumed in the trial court, and he insists that we must enter a judgment in this court in his favor for $30,000. However, he concludes his brief by asking that “at least the cause should be remanded” in order that he may have an opportunity to obtain an accounting from the defendant in error. It is a sufficient answer to this request to say that he did not desire an'accounting in the trial court and he will not be allowed to change his position in this court.

The decree of the superior court of Cook county dismissing the plaintiff in error’s petition for want of equity is a just one and it should be and it is affirmed.

Affirmed.

Gridley, P. J., and Kerher, J., concur.