text:
    William L. O’Connell, Receiver of West Englewood Trust and Savings Bank (Charles H. Albers, Receiver, Substituted in Lieu of William L. O’Connell, Deceased), Appellant, v. Chicago Park District and the First National Bank of Chicago, Appellees.
    Gen. No. 40,966.

      Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed May 22, 1940.
    Cooke, Sullivan & Ricks, of Chicago, for appellant ; Homer D. Dines, John D. Cooke, Jr. and Rollin C. Huggins, all of Chicago, of counsel.
    Harold V. Amberg, Homer J. Livingston and Taylor, Miller, Busch & Boyden, all of Chicago, for certain appellee; Francis X. Busch, Homer J. Livingston, John S. Miller and Laurens G. Hastings, all of Chicago, of counsel.
    John O. Rees, of Chicago, for certain other appellee; Philip A. Lozowick, of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

It is agreed by all the parties herein that the statement of the case by appellant, is both correct and sufficient. That statement is as follows:

This appeal involves consolidated actions at law and comes to this court on an agreed case and certification of a question of law from a judgment entered in the consolidated cause by the superior court of Cook county sustaining motions of defendants to dismiss the suits in the consolidated cause and dismissing such suits on the ground that the causes of action are barred by the statute of limitations.

On June 4,1936, William L. O’Connell, as receiver of West Englewood Trust and Savings Bank, Armitage State Bank, West Town Trust & Savings Bank, Bryn Mawr State Bank, West Highland State Bank, Chicago Lawn State Bank, Chatham State Bank, Brainerd State Bank, Auburn Park Trust & Savings Bank and Ridge State Bank, all Illinois banking corporations, filed in the superior court of Cook county a separate complaint with respect to each of said banks, making in each case Chicago Park District and the First National Bank of Chicago, parties defendant thereto and in each case summons issued and service was had on the defendants.

The first three counts of each of the complaints asked judgment against the defendants for damages for the conversion of certain securities which had been pledged by the bank in question to secure deposits of South Park Commissioners, and the fourth count of each of the complaints sought recovery from the defendant, Chicago Park District, in assumpsit for moneys belonging to the plaintiff (that is, the proceeds from the sale of said securities) had and received by South Park Commissioners.

Soon after the filing of those complaints, William L. O’Connell died and Charles H. Albers, in his capacity as receiver of each of such banks, was substituted as plaintiff in each of said suits in the place of William L. O’Connell.

On October 8, 1936, pursuant to demand therefor, a bill of particulars was filed in each of the causes above mentioned.

On May 28, 1938, an order was entered by the superior court consolidating the 10 causes.

The agreed case and certification of question of law set forth the complaint and bill of particulars in only one of the constitutent causes, namely, the one involving the West Englewood Trust and Savings Bank, and it was therein stated, for the purpose of this appeal, that except as to amounts, descriptions of the securities involved, the names of the particular banks, and history of the same, each of the other nine complaints and bills of particulars set forth the same facts.

The only question of law arising in this appeal, as set forth in the agreed case and certification of question of law, is whether the causes of action as alleged in the complaints are barred by the statute of limitations of the State of Illinois.

So far as material for a determination of the question involved in this appeal, the facts as set forth in the complaint with respect to the West Englewood Trust & Savings Bank as further amplified by the bill of particulars, may be summarized as follows:

West Englewood Trust & Savings Bank, a corporation, organized under the banking laws of Illinois, carried on a banking business in Chicago from the date of its organization until June 9, 1931, on which latter date the auditor of public accounts of Illinois, finding that the capital stock of such bank had become impaired and that the impairment could not be made good, took control of the property and assets of such bank, and thereafter on July 10, 1931, appointed Irwin T. Grilruth as receiver thereof. Irwin T. Gilruth acted as receiver of said bank until March 3, 1934, when he resigned and William L. O’Connell was appointed and duly qualified as his successor.

The South Park Commissioners was from 1869 up to the time it was succeeded by Chicago Park District, a municipal corporation organized under the laws of Illinois. The defendant Chicago Park District was organized under an act of the G-eneral Assembly of Illinois in 1934 and upon its organization the corporate existence of South Park Commissioners ceased and Chicago Park District succeeded South Park Commissioners and became vested with all its powers and duties and assumed all its liabilities and obtained title to all its lands, properties and funds.

The First National Bank of Chicago is a corporation organized under the laws of the United States and is successor to First Union Trust and Savings Bank by-reason of the merger or consolidation of First Union Trust and Savings Bank with the First National Bank of Chicago.

On July 22, 1930, $125,000 of funds of South Park Commissioners were deposited with West Englewood Trust and Savings Bank, and to secure the repayment of such deposit, said bank turned over and delivered to Oscar Gf. Foreman, the treasurer of South Park Commissioners, and purported to pledge various bonds belonging to said bank, the description and amounts thereof being set forth in the complaint. On March 6, 1931, $62,500 of the funds so deposited were withdrawn and the balance of such funds remained on deposit until the closing of West Englewood Trust and Savings Bank on June 9, 1931.

On June 10, 1931, First Union Trust and Savings Bank sold said pledged bonds and received as the proceeds of the sale the sum of $63,069.49. After making the sale, First Union Trust and Savings Bank paid to the auditor of public accounts of Illinois $569.49 of the proceeds of such sale and turned over the balance, namely $62,500 to South Park Commissioners by depositing such sum in the First National Bank of Chicago for the credit of an account of South Park Commissioners on the books of the First National Bank of Chicago known as “South Park Commissioners Special Reserve Fund. ’ ’ Shortly thereafter this sum was withdrawn by South Park Commissioners, such withdrawal being effected by means of warrants or checks drawn on the First National Bank of Chicago and signed by the then secretary and countersigned by the then auditor of South Park Commissioners.

The causes of action set forth in the first three counts of the complaint are for the conversion of said bonds by First Union Trust and Savings Bank and South Park Commissioners. The cause of action set forth in the fourth count of the complaint is one in assumpsit against the defendant Chicago Park District for money had and received.

Plaintiff’s theory of the case is that with respect to the first three counts of the complaint the causes of action for conversion did not arise, and the statute of limitations did not start running, until the sale of the bonds on June 10, 1931, or at most, until the closing of the bank on June 9, 1931, and that with respect to the fourth count against the defendant Chicago Park District, in assumpsit for money had and received, the cause of action did not arise, and the statute of limitations did not start running, until the proceeds of sale were received by the South Park Commissioners.

Defendants’ theory of the case is that the causes of action arose, and the statute of limitations started running, on the date of the pledging of the bonds on July 22,1930.

The errors relied upon by plaintiff for reversal are:

1. The court erred in sustaining the motion of defendants to dismiss the suits, and in dismissing the suits on the ground that the causes of action were barred by the statute of limitations.

2. The court erred in holding that the causes of action for conversion accrued, and the statute of limitations started running, prior to the date of the sale of said bonds on June 10, 1931.

3. The court erred in holding that the causes of action for conversion accrued, and the statute of limitations started running prior to the date of the closing of the banks on June 9, 1931.

4. The court erred in holding that the cause of action against defendant Chicago Park District for money had and received accrued, and the statute of limitations started running prior to the date of the receipt of the proceeds of the sale of said bonds by South Park Commissioners.

The first question presented for our consideration and determination, and which question when decided practically disposes of the entire case, is: On what date did the causes of action arise, or on what date did the statute of limitations start to run?

Plaintiff appellant contends that a pledging of assets by an Illinois bank to secure deposits of a municipality is ultra vires, contrary to public policy and void. There can be no question but that the courts of this State have decided that where a bank pledges its assets to secure a particular deposit, that such action on the part of the bank is ultra vires, illegal and contrary to public policy and is void.

Neither the general Banking Act, the act relating to deposits by the State treasurer, nor any subsequent legislation, shows any intention to confer on banks generally the power to pledge assets to secure deposits; nor is such power necessary to a general banking business, but it is, in fact, contrary to the public policy manifested in statutory provisions for the protection of depositors generally, and as the exercise of such power, when not expressly conferred, is ultra vires and void, a park district which has received a pledge of assets to secure its deposits cannot demand payment of the amount of its deposits before being compelled by the receiver of the bank to surrender the pledged assets. (Ward v. Johnson, 95 Ill. 215, distinguished.)

Where a contract of a corporation is ultra vires it is not only voidable but wholly void and of no legal effect and cannot be ratified, nor can performance by the parties give it validity or become the foundation of any right of action upon it, nor is either party, by assenting to it or by acting upon it, estopped to show that it was prohibited. People v. Wiersema State Bank, 361 Ill. 75; Albers v. Continental Ill. Bank & Trust Co., 296 Ill. App. 592 (petition for leave to appeal denied); Albers v. Continental Ill. Bank & Trust Co., 296 Ill. App. 596 (petition for leave to appeal denied).

The securities in the instant case were deposited on July 22, 1930, and the suits were commenced on June 4, 1936. The statutory provisions which would be applicable to a cause of action of this kind are set forth in Ill. Rev. Stat. 1939, ch. 83, par. 16, sec. 15, p. 1995 [Jones Ill. Stats. Ann. 107.275], wherein it is stated:

“16. On oral contracts, damages, etc.] §15. Actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued. ’ ’

In the case of Albers v. Continental Ill. Bank & Trust Co., 296 Ill. App. 592, the court at p. 595, said: “ . . . clearly plaintiff’s cause of action is barred by the statute of limitations, which provides that such actions shall be commenced within five years next after the cause of action accrued. Ill. Rev. Stat. 1937, ch. 83, par. 16, sec. 15 [Jones Ill. Stats. Ann. 107.275]. The securities in question to secure the Park District deposit were deposited with the Continental bank October 5, 1931; the Gill agreement was June 15,1931. The right of action to recover these securities accrued on the dates these securities were thus wrongfully deposited. The instant suit was commenced May 9, 1937, or after the statutory period of five years had expired.”

Manifestly, if that is the law of this State, and it appears to be from these decisions,- the cause of action in the instant case arose on the date of the wrongful delivery of these securities, which was on, to wit, July 22,1930. That being true, nearly six years had expired after the cause of action arose before suit was commenced on, to wit, June 4,1936.

It is argued by appellant that “the receipt of the pledged securities by the pledgee in this case was not tortious. The Bain Banks voluntarily delivered the securities to the pledgee. True the agreement under which they were delivered was void, but that did not make the possession unlawful.”

If the possession of the bonds was wrongful, and it plainly was, for the action in pledging the same was ultra vires, then a cause of action based upon such act would accrue instanter, and the statute must, necessarily and logically run from that date.

In Chapman v. Lynch, 156 N. Y. 551, 51 N. E. 275, was a case in which a corporation, which was not a bank, wrongfully received a special deposit under a transaction which the court held the corporation had no power to effect. The court at p. 559, said:

“It appears to us that the corporation, in accepting the funds of the plaintiff, in special account upon deposit, exceeded its corporate power and engaged in a business in which it was not authorized, and that, consequently, its contract with the plaintiff, if such was its'nature, was ultra vires; if so, the plaintiff’s right of action for the moneys delivered to the corporation at once accrued. ’ ’

Many other questions are argued and cases cited in support thereof, which questions have to do with other branches of this case, but they are not controlling.

Inasmuch ás the facts in this case disclose that the statute of limitations is controlling and that the cause of action commenced to run at the time of the wrongful delivery of these securities, as has been decided by the courts of this State, then it necessarily follows that the cause of action; if any there was, ended with the five-year period expiring July 21, 1935, or five years from the date of the pledging of the bonds on July 22, 1930.

For the reasons herein given the judgment of the superior court in dismissing the suit was correct and the same is hereby affirmed.

Judgment affirmed.

Hebel and Burke, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Denis E. Sullivan

license: Public Domain

text:
    Lorenz Kehl et al., Appellants, v. Immel State Bank et al., Defendants. Albert Mickow, Appellee.
    Gen. No, 40,976.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed May 22, 1940.
    Leonard & Leonard, Meyer Balin and Seyfarth & Atwood, all of Chicago, for appellants; George Edward Leonard, of Chicago, and Quintín Johnstone, of counsel.

      Goodman & Golosinec, of Chicago, for appellee; Irving Goodman and John W. Golosinec, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiffs bring this appeal from an order discharging defendant, Albert Mickow, from a decreed liability in the amount of $1,600 upon the payment by said defendant of $200 in cash and the surrender of a certificate of deposit for a real estate bond of the par value of $500. The final decree in favor of plaintiffs was based upon Article XI, section 6 of the Constitution of the State of Illinois, which imposes a superadded liability upon bank stockholders, by reason of their ownership of stock in an insolvent bank. Albert Mickow was the owner of 16 shares of the capital stock of Immel State Bank, a defunct banking association, and defendant was held liable and a judgment rendered against him for the sum of $1,600 in 1934, which has not been paid nor has any appeal been taken therefrom. Plaintiffs also appeal from an order directing the clerk of the circuit court to satisfy said decree upon receiving $200 and a valueless bond as payment by Mickow.

No point is made on the pleadings.

Albert Mickow, defendant herein, was the owner and holder of 16 shares of the capital stock of Immel State Bank, a defunct Illinois banking association, at the par value of $1,600. The matter came up on a petition of defendant, Mickow, filed four years after the entry of the decree. Mickow also filed a petition, asking that the judgment be set aside on the ground that he had not been served with process and also asking affirmative relief from the court. Apparently, he has since abandoned the question of setting aside the original judgment.

Plaintiffs’ theory of the case is that plaintiffs should have been permitted to collect their decree rendered against Albert Mickow in the amount of $1,600 with costs and interest. Plaintiffs contend that the trial court was without power or jurisdiction to enter the orders appealed from; that plaintiffs acquired a valid and subsisting judgment lien upon valuable real estate commonly known as 4914 Kimball avenue, Chicago, Illinois ; that tfris real estate had been conveyed to defendant Mickow by Hans Rechsteiner and wife for the admitted purpose of hindering and delaying the creditors of Hans Rechsteiner.

Plaintiffs further contend that although the “compromise” order recited that it was entered pursuant to ch. 16½, par. 11, sec. 11 of the Illinois Banking Act [Ill. Rev. Stat. 1939; Jones Ill. Stats. Ann. 10.1,1], there was no real attempt to fulfill the requiremehts imposed by this section of the statute. Albert Mickow’s settlement offer was grossly inadequate, being for a mere fraction of the amount of plaintiffs’ judgment, and said offer was not approved by the Oak Park Trust & Savings Bank, as receiver, appointed under section 11 of the Illinois Banking Act, aforesaid.

Plaintiffs further contend that the evidence offered did not show Albert Mickow to be insolvent, but actually revealed the contrary.

Albert Mickow admits that his earnings were between $5,000 and $6,000 a year and that plaintiffs’ claim is his only legal obligation which he did not choose to pay.

Counsel for defendant severely criticize plaintiffs’ statement of the facts and the abstract of the record, declaring them to be inadequate and incomplete, yet said counsel has not complied with the rules of this court by having set forth defendant’s theory of the case in his brief, as filed.

Defendant’s theory of the case, as set forth in plaintiffs’ brief, is that Albert Mickow was insolvent and that by obtaining an order from the trial court for a “compromise” he could require plaintiffs and the receiver to accept a fractional payment as a full satisfaction of Ms adjudicated liability; that defendant Mickow contends that although the real estate compionly known as 4914 Kimball avenue, Chicago, Illinois, had been conveyed to Mm by a duly recorded warranty deed from Hans Eechsteiner and wife, that he did not acquire any interest in said real estate b/ such conveyance.

Laying aside for the moment, the question as to whether or not a judge has the authority under ch. 16½, par. 11, sec. 11, Ill. Rev. Stat. 1939, known as the Banking Act [Jones Ill. Stats. Ann. 10.11], to inquire into the solvency of a judgment debtor and determine what compromise shall be made independent of the receiver, we shall consider the question of the evidence as to the solvency of Mickow, the judgment debtor.

The evidence shows that the judgment debtor is a doctor 35 years of age and has an income of between $5,000 and $6,000 a year; that he owns an automobile and has lately purchased $10,000 worth of life insurance and that there is standing in his name real estate worth several thousands of dollars, although he claims that this belongs to his father-in-law who transferred it to Mickow, for the admitted purpose of hindering and delaying the former’s creditors.

After asking for said afirmativo relief in his petition, he also contends that the court did not have jurisdiction then because four years prior thereto when the judgment was entered he was nbt served with process by the sheriff. Having entered his general appearance, we do not think he can at this time raise the question of jurisdiction.

We do not think the evidence submitted in this case presents a picture of insolvency. The evidence, on the contrary, shows that said defendant is branching out; that he is paying his debts in the regular course of business, paying off his liabilities and, in fact, assuming new ones. To attempt to inject into this case the question as to how he acquired the real estate, defendant alleging and claiming it belonged to Ms father-in-law, is not one which appeals to a court of equity. Aiding another to defraud his creditors, as defendant apparently did when he permitted the real estate to be put in his name, does not appeal to a court of conscience and said court should leave them where it finds them.

According to this record the defendant was permitted to fix his own liability which was different "from the judgment as fixed by the court. He offers $200 in cash and $500 in questionable bonds, but he states he is going to borrow the money. After obtaining an order of settlement the petitioning debtor offered to the receiver a check which the receiver refused to take on account of its limitations. The cashier’s check submitted by Mickow provided that $200 should be considered as payment in full for his entire indebtedness. Thereupon the petitioner proceeded to court where he obtained an order that the clerk of the court accept said check and thereupon the clerk of the court took the check and entered a satisfaction piece on the records of the court releasing the debtor. Such procedure is not authorized by the terms of said Banking Act, ch. 16½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 10.01 et seq.], and inasmuch as the legislature has seen fit to say how a settlement shall be made, we do not think the court should vary from the procedure laid down by the statute. This judgment, at the time of this action, was four years old and it had never been challenged before and, inasmuch as these assets belong to the creditors of this bank, we do not think the judgment should be set aside in the present instance.

For the reasons herein given, the order of the circuit court vacating the judgment and accepting a so-called offer of settlement, is erroneous as it is not supported by the evidence and the law, and for the reasons herein given the order of the circuit court is hereby vacated and set aside and the satisfaction of said judgment vacated and the petition of said judgment debtor is dismissed for want of equity, at appellee’s costs.

Orders vacated and set aside; petition of appellee Mickow dismissed for want of equity at appellee’s costs.

Hebel and Burke, JJ., concur.


text:
    Annie Carey, Appellant, v. Metropolitan Life Insurance Company, Appellee.
    Gen. No. 41,041.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed May 22, 1940.
    Alfred O’Connor and William Schulze, both of Chicago, for appellant.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellee; Nathaniel Rubinkam and W. W. Patterson, of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Annie Carey, plaintiff, brings this appeal from an order and judgment entered in the municipal court of Chicago in favor of the defendant the Metropolitan Life Insurance Company and against plaintiff. Suit was brought by plaintiff against the Metropolitan Life Insurance Company to recover on a certain life insurance policy issued by the defendant company for $1,500 upon the life of plaintiff’s son, Joseph Carey, plaintiff having been named as beneficiary in said policy.

Plaintiff’s statement of claim alleges the issuance of the policy and that Annie Carey, plaintiff, was named as beneficiary and that Joseph Carey, the insured, had been absent and unheard of for more than seven years; that he disappeared on or about July 28,1930 and that the presumption of his death arose on July 28, 1937; that due proof of loss had been made to the defendant company, but that it failed to pay to said plaintiff the sum of $1,500 due by virtue of the insurance policy Mo. 4285685A, issued by the defendant, insuring the life of Joseph Carey.

The defendant filed an affidavit of merits admitting the issuance of the policy and that it was in full force and effect and that all premiums had been paid thereon, but denied that Joseph Carey was dead.

Mo issue is raised upon the pleadings and all material facts stand admitted.

The judgment of the trial court was entered upon a finding of the court on motion of the defendant to find for the defendant at the close of plaintiff’s case. The hearing was had before the court without a jury.

It appears from the evidence that the insured was the son of the plaintiff; that he was born in Chicago, Illinois on December 16,1906, and up to May 3,1930, he had resided and had been living with his mother, the plaintiff herein, in Chicago; that on May 3, 1930, the insured left Chicago, Illinois, for Kansas City, Missouri, for the purpose of finding employment; that he communicated weekly with his mother by mail until July 28, 1930, on which day his mother received the last letter from the insured and this was the last time he was heard of.

The evidence further shows that in the month of October, 1930, the-plaintiff being anxious about her son and about his safety, went to Kansas City, Missouri in search of him; that plaintiff inquired for her son at the Missing Persons Bureau in Kansas City, Missouri and the police officials in Kansas City, Missouri, but obtained no results; that in November, 1930, plaintiff notified the insurance company of the disappearance of the insured; that not having heard from her son for the period of two years, the plaintiff- again went to Kansas City, Missouri, in the month of October, 1932, in search of her son and again inquired of the police, the Traveler’s Aid and the Missing Persons Bureau, but got no results ; that while in Kansas City, plaintiff caused an advertisement to be placed in the Kansas City Star, which was in words and figures, as follows: “Any one knowing the whereabouts of Joe Carey, communicate with Annie Carey, 732 E. 88th-St., Chicago, Illinois.”

The evidence further shows that a similar advertisement was placed in the Kansas City Times and that plaintiff made further inquiry in search of her son from the Chicago police and made further inquiries of the police in Kansas City, Missouri, communicating with them by mail, but failed to get any results or information as to the whereabouts of her son, the insured.

The evidence further shows that on June 27, 1930, the insured wrote a letter to his mother, which letter was postmarked Fort Worth, Texas, in which he stated that he would go back to Kansas City within a few days; that on May 11,1930, the insured wrote his mother from Kansas City, Missouri, which letter showed the pleasant relationship and existing conditions between his mother and himself; that continuing her search for her son, the plaintiff again went to Kansas City, Missouri, and as a result of her search, she received a letter from the Bureau of Missing Persons, Kansas City, Missouri, dated January 24, 1939, without obtaining any information as to the whereabouts of her son; that other inquiries were made by relatives of the insured in an endeavor to get some trace of him, but without any results.

The evidence further shows that because of a letter which was received by the plaintiff, there is a possibility that the insured may have met with foul play in the year 1930; that it appears from the letter that the insured was married; that his wife’s brother saw the insured enter a light colored Lincoln sedan automobile in Kansas City, Missouri, with some men who drove away with him; that the insured has not been seen or heard of since that time; that Kuth, the insured’s wife, was in Geary, Oklahoma, at the time and, hearing from her brother, she left Oklahoma at once for Kansas City, Missouri for the purpose of searching for the insured; that she searched everywhere for the insured and went to the head of a so-called “gangster’s gang” in search of the insured and was told by the head gangster that the insured had “double-crossed” them and would never bé seen again; that hearing this she returned home and died of a broken heart on October 5,1930, due to worry over the fate of said insured; that federal detectives followed her body from Kansas City to the grave. It developed on cross-examination of the plaintiff that federal detectives in November, 1930, made inquiry of the plaintiff about the insured, but left no word as to why the inquiry was made. This was after she notified the insurance company of his disappearance.

George Carey, a brother of the insured, testified that he last heard of the insured in the month of May, 1930 ; that he had made inquiries from friends of the insured and was unable to obtain any information as to the whereabouts of the insured.

Mary Carey, a sister of the insured, testified to the same effect as her brother, George Carey, and stated that she had inquired among all of the friends of the insured and at his usual place of abode, but had failed to locate him and had not heard from him since 1930.

At the conclusion of plaintiff’s evidence, the substance of which we have set forth, plaintiff rested her case and, upon motion of the defendant, the trial judge made a finding in favor of defendant and gave his reasons for such finding, as follows: “From the evidence here this man, the insured, disappeared in June or the first of May, 1930 and letters are received from him until July 28, 1930 and finally later the evidence shows that federal agents are following the funeral of a lady with whom the insured was associated with. The federal agents are looking for him and he is not what would be considered under the law deceased within the seven year period. He is a fugitive from justice, if anything at all. The witness testified that the federal agents were following the funeral and that they were looking for this man and naturally when the federal agents are following any funeral the one sought for will never -appear. The finding will be for the defendant.”

We cannot agree with the reasoning and conclusions reached by the trial court as herein set forth.

In the case of Piersol v. Massachusetts Mut. Life Ins. Co., 260 Ill. App. 578, at p. 587, the court said:

“An examination of the cases indicates that the prerequisites which would justify a presumption of death are (1) that the person whose death is in question has disappeared from his last known abode, domicile or residence; (2) that he has neither returned thereto nor communicated with those with whom he would naturally communicate if alive; (3) that inquiry has been made at the last known place of abode of the persons who would naturally hear from him without obtaining information indicating that he is alive. Out of proof of such material facts a presumption of death arises as a matter of law, but it is a rebuttable presumption which may be disproved by evidence of facts tending to show that the party presumed to be dead is alive. See Jones, Commentaries on Evidence, 2nd ed., vol. 1, secs. 285-294; 8 R. C. L. pp. 708, 709, and see page 714.” See also Davis v. Metropolitan Life Ins. Co., 285 Ill. App. 398; Tegtmeyer v. Tegtmeyer, 348 Ill. 434; Smith v. Lawley, 149 Ill. App. 480.

The defendant contends that the plaintiff failed to prove the facts necessary to raise the legal presumption of death; that any evidence tending to show that the insured had been murdered is foreign to the issue in the case and it does not appear that the court acted arbitrarily and the finding for the defendant is not subject to review.

No authorities in this State have been cited showing that this court is without jurisdiction to review matters which have been heard by the trial court. Such a statement of the law is both new and novel and has not been the recognized practice in this State.

We are convinced that the proof in this case sustains the position of the plaintiff and that the legal presumption that the insured is dead, is justified.

For the reasons herein given the judgment of the municipal court is reversed and judgment is entered here for the sum of $1,500 and costs in favor of plaintiff and against the defendant.

Judgment reversed and judgment here for plaintiff for $1,500 and costs.

Hebel and Burke, JJ., concur.