author: Mr. Justice Hebel

text:
    Peter Sissman, Appellant, v. Chicago Title and Trust Company, Trustee Under Trust Deed Recorded as Document No. 8939240, et al., Appellees.
    Gen. No. 40,815.

      Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed February 14, 1940.
    Peter Sissmau, pro se.

    William J. Campbell, United States Attorney, Samuel O. Clark, Jr., Assistant Attorney General and Ahdrew D. Sharpe, Special Assistant Attorney General, for appellee United States; William J. Campbell, United States Attorney, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from an order of the circuit court of Cook county entered on March 22, 1939, setting aside and vacating as to the United States of America a decree of foreclosure, and orders incident thereto, entered on September 3,1937.

The foreclosure proceeding was instituted by the plaintiff as mortgagee. The United States of America and others were made parties defendant for the reason, the plaintiff alleged, that they had or claimed some interest in the property involved as judgment creditors, lienors, lien claimants, or otherwise against the mortgagor of the property.

The defendant suggested that after the decree of foreclosure had been entered, the United States of America filed a petition on June 16, 1938, for'an order vacating the decree of foreclosure, setting aside the sale made thereunder, and vacating the order appointing a receiver. The petition is in part as follows:

“In support of this petition, your petitioner respectfully shows that it had title to the said premises by virtue of the seizure and sale under date of February 11,1930, by the Collector of Internal Revenue at Chicago, Illinois, under warrants of distraint for the nonpayment of income taxes as provided for by Sections 3188 to 3200, inclusive, of the Revised Statutes of the United States. Since 'the property was not redeemed within the period provided for in Section 3202 of the Revised Statutes of the United States, the Acting Collector, under date of March 23, 1931, executed deeds conveying the property to the United States of America, which deeds were recorded under date of May 29, 1931.
“Tour petitioner further shows that at the trial of the above entitled cause the attorneys for your petitioner did not set up the title acquired as above stated, but relied solely upon a lien against said property.
“Tour petitioner further shows that the United States of America has consented, by the Statute of March 4, 1931 (28 U. S. C. A. Section 901) to suits against it for the foreclosure of a mortgage, when it has a mortgage or other lien, but nowhere consented to a suit against it when it has title to the mortgaged premises. ’ ’

The circuit court, upon petition and answer filed, found that at the time of the entry of the decree of foreclosure it did not have jurisdiction of the United States of America, and accordingly entered the order complained of in this appeal. This order declared the decree entered on September 3, 1937 to be a nullity as far as the rights of the United States were concerned as owner of the property involved, and ordered that the same be vacated and set aside as to the United States of America, and that the United States be dismissed as a party to the proceeding. The order also vacated and set aside the orders ratifying the report of the master in chancery and appointing a receiver in the cause, as far as the rights of the United States were concerned, and ordered that the receiver appointed turn over possession of the property to the United States of America or its agents and file his final account and report. It was further ordered that the decree as to all parties other than the United States be ratified and confirmed.

The plaintiff’s theory of the case is that the circuit court was without jurisdiction to entertain the petition of the appellee, the United States of America, filed June 16, 1938, as considerably more than 30 days had elapsed from the date of the entry of the final decree of September 3, 1937; that the petition on its face, even without answer, was wholly insufficient to justify the circuit court in granting the order entered on March 22, 1939; that by its petition the United States of America admits the senior and prior rights of the petitioner, and nowhere denies the priority of the mortgage dated June 9,1925.

It is not denied by the plaintiff that the collector of internal revenue seized and sold the property in question in accordance with the provisions of the statutes, or that the United States appeared on the records of the State of Illinois as title holder of the property prior to the time foreclosure proceedings were instituted. Neither is it denied that the United States exercised acts of ownership and possession, such as collecting rents and ordering demolition of buildings, during the years between 1930 when the collector purchased the property for the United States, and 1936, when foreclosure proceedings were instituted.

It is contended by the petitioner that the United States of America is a sovereign and cannot be sued without its consent, nor can the Attorney General, or his representative, confer such jurisdiction. Stanley v. Schwalby, 162 U. S. 255, and that consent must come within the provision of the first section of the act (U. S. C. A., title 28, sec. 901) which reads:

“That, upon the conditions herein prescribed for the protection of the United States, the consent of the United States be, and it is hereby given, to be named a party in any suit which is now pending or which may hereafter be brought in any United States district court, including those for the districts of Alaska, Hawaii, and Puerto Eico, and the District Court for the District of Columbia, and in any State court having-jurisdiction of the subject matter, for the foreclosure of a mortgage or other lien upon real estate, for the purpose of securing an adjudication touching any mortgage or other lien the United States may have or claim on the premises involved.”

It is argued that the statute quoted above specifically enumerates the instances in which the United States has consented to be sued, and limits that consent to those cases in which the United States may have or claim a mortgage or other lien on the premises involved, and it is contended that it is a fundamental rule that in the construction of statutes the enumeration of specific thing’s is to be taken as an exclusion of all others, and therefore the language of the statute must be taken to exclude from its operation those instances in which'the United States holds title to the property, and it is suggested that a lien is obviously different from title or ownership of property. According to Bouvier, a lien is “A hold or claim which one person has upon the property of another for some debt or charge.” The case of Seaboard All-Florida Ry. v. Levitt, 105 Fla. 600, is cited, in which the court said: “A lien is not an estate or interest in land but a remedy against it.” The United States Circuit Court of Appeals for the Second Circuit, in The Poznan, 9 F. (2d) 838, 846, stated: “Strictly speaking, a lien is not either a jus in re or a jus ad rem. It is not a property in the thing itself, nor does it constitute a right of action for the thing. It rather constitutes a charge upon the thing. ’ ’

The plaintiff admits that there is but one authority and that is the Congress of the United States by which consent may be given to make the government a party to a lawsuit, and were it not for the fact that Congress did give that consent, the plaintiff would be in the position of being unable to invoke the rule of estoppel or other meritorious equitable claim against the conduct of the government through its authorized representatives, and calls our attention to the Revised Statute of the United States, sections 3187 and 3194, which provide for the sale by the collector of personal property of a distiller, and by sections 3196 and 3197, it is provided that if such property is insufficient the collector may sell the real estate after publication of notice of the sale and service of notice thereof, in writing, on the person whose estate it is proposed to sell.

Sections 3198 and 3199 provide for a deed from the collector to the purchaser at such sale which shall operate to convey “all right, title and interest of the party delinquent. ’ ’ Plaintiff calls attention to the language of these sections as being almost identical with the language of the section of the Internal Revenue Act, and cites as authority the case of Mansfield v. Excelsior Refinery Co., 10 Sup. Ct. 825, wherein the court said, among other things:

“When real estate is seized for taxes, the Commissioner of Internal Revenue may direct the institution of a suit in chancery in a district or circuit court of the United States, to enforce the lien of the United States for tax upon any real estate, or to subject any real estate owned ‘by the delinquent’ or in which ‘he’ has any right, title or interest, to the payment of such tax, to which suit all persons having lien upon, or claiming any interest in the real estate sought to be subjected as aforesaid ‘shall be made parties’ and ‘be brought into court as provided in other suits in chancery, ’ . . . ” And the court further said:
“But no such course was pursued. The officers of the government preferred to adopt the summary method of sale by the Collector upon notice and publication, as provided for in Section 3197. It may be conceded that, if the distiller had been the owner of the fee, a sale in that mode would have passed his interest subject to the rights of any prior encumbrancer, and subject to the rights of any subsequent encumbrancer, to redeem the premises.”

Counsel argue further it is clear from the foregoing that by'the seizure and sale made by the collector the United States of America acquired only the equity that Standard Beverage Corporation,, the taxpayer, had in the property, and had only a redemption right as a lien claimant or equity holder and no more.

Counsel for the petitioner reply to the contention as made by the plaintiff in the foreclosure proceeding and call our attention to the fact that in the Mansfield case the' taxpayer never owned the fee in the property involved, nor had any interest therein other than a leasehold. The court held that a summary sale of the premises passed the interest of the taxpayer, namely, a leasehold. But the court continued in its opinion:

“It may be conceded that if the distiller (taxpayer) had been the owner of the fee, a sale in that mode would have passed his interest subject to the right of any prior encumbrancer, and subject to the right of any subsequent encumbrancer to redeem the premises.”

It is suggested further that in the instant case the taxpayer, the Standard Beverage Corporation, was the owner of the property, subject to an incumbrance, at the time the taxes were assessed. The collector’s sale passed the interest of the taxpayer to the United States of America, making it the owner rather than a mere lien claimant or equity holder, as contended by appellant. This distinction was recognized by the Supreme Court in Blacklock v. United States, 208 U. S. 75, 88, where the court said:

“While the Mansfield case recognized the right of the Government to proceed by a regular suit in equity, it also distinctly recognized its right to proceed, by distraint, and to sell the interest of the delinquent taxpayer, whatever such interest was, saving, of course, the rights of incumbrancers. In the present case the distiller was the owner of the fee when the lien of the Government for taxes accrued — a fact which distinguishes this froni the Mansfield case.”

However, from this record the United States of America is the owner of the property involved in this litigation. This deed provides that the 11th day of February, 1930, the deputy collector of internal revenue delivered to the United States of America a certificate in writing entitled, “Certificate of Sale,” and it further appears from this certificate that the real estate seized from the Standard Beverage Corporation, 1225 South Campbell avenue, Chicago, Illinois, under warrants for distraint for the nonpayment of United States internal revenue taxes which were duly assessed and remained unpaid for more than 10 days after notice and demand had been served on the Standard Beverage Corporation, was declared by the deputy collector to be purchased for the United States as provided by sections 3196 and 3197, United States Revised Statutes, at public auction held in front of the premises owned by the Beverage Corporation for the sum of $95,000, and upon the expiration of one year from the date hereof, the owners of the real estate, or certain others having any interest in the property, did not redeem from the sale, the United States having duly presented and surrendered a certificate of purchase, the .property in question was conveyed by the acting United States collector of internal revenue for the First District of Illinois to the United States of America, by deed dated the 23rd day of March, 1931. (The legal description of the property is as set forth in this deed.)

So from this record it is apparent that the United States of America had title to the property, and the only question that we are concerned with here is did the section of the statute upon which the plaintiff relied provide that consent was given by Congress to make the United States a party as an owner of the real estate to the foreclosure proceeding instituted by the plaintiff. From the authorities as cited, we are controlled by the provision of this act upon which the plaintiff relies, and as we have indicated, this act provides that consent is given where the subject matter involved, as in the instant case, is the foreclosure of a mortgage or lien upon real estate, and it is only in such case that the United States is properly a party to the proceeding, and if the court did not have jurisdiction of the United States, then of course the court was justified in entering the order setting aside the decree of September 3, 1937, and vacating the orders entered therein, since the United States of America had not consented to be sued where it held title to the property involved, and therefore the court had no jurisdiction of the United States in that proceeding, and the decree was ineffective as to the rights of the United States of America and we are unable to agree that the decree had become final and could not be disturbed, as suggested by thei plaintiff, after the expiration of 30 days from the date of its entry, and as suggested by the defendant, this want of jurisdiction renders the judgment in the case at bar a nullity so far as the United States is concerned, and the relief complained of by the plaintiff was merely dismissing the United States of America from the proceeding. This was proper as we view the record.

There is one other question which we wish to discuss, and that is whether the court properly exercised its jurisdiction in the entry of that part of the order which is: “It is further ordered that the receiver appointed in the above entitled cause forthwith turn over possession of the premises involved herein to the United States of America, or its agent, and that said receiver file his final report and account herein within ten days of this date. The rents now in the hands of the receiver, collected from said premises to be held by him and to abide the further order of this court.”

As we view the record, the decree so far as it involves the appearance of the United States of America was vacated and set aside by the court, and the United States is now out of the case as a party, and it seems rather unusual that the court entered the order we have just recited, which in effect grants affirmative relief to the government, who, it is contended, is not a proper party to this proceeding, and so it seems but meet that this court leave the parties as it found them, in that the government is not entitled to the relief granted in this case, for the reason that the court was without jurisdiction, and that part of the order that we have cited is erroneous and should not have been entered by the court.

The order is affirmed except as to the provision which we have quoted with reference to directions to the receiver, and that part of the order is reversed.

Affirmed in part and reversed in part.

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


source: Caselaw Access Project

license: Public Domain

text:
    Charles Bowman, Appellant, v. Lawrence O’Brien et al., Appellees.
    Gen. No. 40,892.

      Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed February 14, 1940.
    Rehearing denied March 12, 1940.
    Irving G. Zazove and Micon & Micon, all of Chicago, for appellant.
    Lord, Bissell & Kadyk, of Chicago, for appellee Guardian Life Insurance Co. of America; Gordon R. Close and Herbert C. Brook, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment of not guilty entered, on the verdict of a jury, for the defendant. Plaintiff’s motions for a judgment notwithstanding the verdict and for a new trial were overruled. A trial was had on plaintiff’s amended complaint which alleges substantially that the defendant Guardian Life Insurance Company owned the premises and leased them to the defendant O’Brien, with the knowledge that intoxicating liquors were sold therein; that O ’Brien sold intoxicating liquor to persons who it is alleged assaulted the plaintiff; that the sale of said liquor caused said intoxication and injury to the plaintiff while the plaintiff was a patron in the place of business of the defendant. The action is based on ch. 43, par. 135, sec. 14, entitled “Dram Shops.” Ill. Rev. Stat. 1937, sec. 14 [Jones Ill. Stats. Ann. 68.042] provides: “14. Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving alcoholic liquors aforesaid, for all damages sustained, and for exemplary damages, ...”

The second count of the complaint is substantially the same as the first count, except that it names the assailants who were intoxicated.

The defendant O’Brien filed no appearance or answer. The Guardian Life Insurance Company filed an answer admitting ownership of the premises, and knowledge on its part that intoxicating liquors were sold in the premises, and denied the other allegations charged in the complaint.

This action was instituted by Charles and Neta Bowman against Lawrence O’Brien and William Toohill, as operators of a tavern, and the Guardian Life Insurance Company of America, as the owner of the premises, to recover for injuries sustained by each of them while patrons in the tavern. Lawrence O’Brien and the Guardian Life Insurance Company of America were each served.

The Guardian Life Insurance Company became the owner of the premises where the tavern was located in May, 1934, when it took title in lieu of foreclosure, subject to existing leases, one of which was for space in which the tavern in question was located. This lease did not expire until May 31, 1936, and named as lessee one John Krohmer, who assigned it in August, 1933 to one Edw. M. Spencer. The lease prohibited the lessee or his assigns from assigning the lease or subletting the premises without first obtaining the written consent of the lessor.

Plaintiff and his wife testified, in substance, that they, together with Malone, entered the tavern a little after 1:00 o’clock in the morning of March 18, 1936; that the place was crowded and that when they sat down there were five men at an adjoining table; that these men were drunk, hollering and swearing; that after their being there about an hour the plaintiff went to the washroom, and when he returned his chair was gone and his wife told him that one of the men at the adjoining table had taken it; that he asked the man if he could have the chair back and the man said “Yes,” and got up and handed the chair to the plaintiff and he turned it around and started to sit down; that one of the men at the table said, “You ain’t going let him get away with that are you? Sock him”; that the man struck plaintiff just as he was sitting down and knocked him to the floor and then kicked him several times; that everyone jumped up and there was a big commotion and someone else ran over and kicked at the plaintiff.

The plaintiff testified that he had four drinks of whiskey and one of beer in the tavern; that he was feeling the effect of his drinks; that he saw the five men have about 10 drinks of whiskey and canned beer. His wife testified that there were more people in the tavern than there were chairs and she saw each of the men have at least 7 or 8 drinks of whiskey.

George Malone testified that he entered the tavern about 1:15 or 1:30 o’clock in the morning and that the tables were well filled, but there was no one at the bar; that they were seated at a table in about the middle of the tavern; that the plaintiff was seated on the south side of the table, his wife on the east and he on the west; that there were four or five men at an adjoining table to the southeast almost back of the plaintiff and a little to the right; that one of them was walking or staggering around and did not seem to have a chair; that he saw each of them drink five or six whiskies and beer, whiskey for the drink and beer at the same time in small straight-up glasses for a wash down; that the man who was standing took the plaintiff’s chair; that the plaintiff started to sit down when the man struck him on the side of the head and in the face; that when plaintiff went down, all the men raised up as though they wanted to jump on him, and the man who struck him jumped up and kicked him, and another one said, “Let him have it” and called the plaintiff names. He testified on cross-examination that the men were talking to each other, laughing and making a lot of noise; that there was no dancing or entertainment in the tavern; that he had no argument or fight and no one hit him; that the man gave plaintiff the chair without making any comment — just handed it to him.

The plaintiff contends that certain of the exhibits were incompetent and irrelevant to the issue and in violation of the rules of evidence, and calls the court’s attention to the case of Baker Reddick v. Summers, 201 Ill. 52. The court in that case said:

“On the trial John Lisenby, president of the town board of Weldon, was called and examined as a witness on behalf of plaintiff, for the purpose of showing that he had called the attention of the defendant Baker to the fact that a gambling room was being conducted in the place where the killing occurred. The defendants objected to the questions put to the witness on that subject, but their objections were overruled, and he testified that he had called Baker’s attention to the fact a year or more before Summers was killed.” The court further said: “The fact that Baker, who owned the building, knew that there was a gambling room run by Greenwood up-stairs, neither tended to prove the alleged sale or intoxication or that such intoxication was the cause of Summers’ death. It could have had no other purpose or effect than to raise a prejudice in the minds of the jury against the defendants concerning a separate and distinct matter, on the ground that one of them assented to the use of his property for the unlawful purpose. The ruling was wrong.”

Plaintiff contends that a written contract two years prior to the time of the happening did not tend to prove or disprove the issue as to whether the plaintiff was injured in his person by the consequent intoxication of a patron of the tavern, and suggests further that using the reasoning advanced in the Baker case, the fact that the defendant made a contract to adjust financial differences between itself and the former owner or started forcible entry and detainer suits against its tenant, neither tended to prove nor disprove the issues, and further, that the evidence offered by the defendant, over the objection of plaintiff’s counsel, that the building had been razed, did not tend to prove the issues involved in the instant case, and contends that when counsel for the plaintiff objected to the introduction of the exhibits, this damaging colloquy took place in the presence of the jury, quoting the following:

“Mr. Zazove: I object to them as being incompetent, irrelevant and immaterial, and not bearing on the issues in the case at all.
“The Court: Overruled. One of them was June 2, 1936, wasn’t that after this accident happened?
“Mr. Close: Yes, your Honor.
“The Court: How is that material?
“Mr. Close: That simply shows that is a proceeding that was filed the day after the lease expired and resulted in final eviction.
‘1 The Court: Oh, alright. They may be introduced. ’ ’

Then the contention is made that this statement of the court was prejudicial; that it amounted to an expression by the court of an opinion in the presence of the jury; that because a proceeding was filed after the lease expired, which resulted in a final eviction, made the evidence competent, thereby emphasizing the importance of that prejudicial evidence.

Defendant’s reply is that it admitted ownership of the premises at the time the plaintiff was injured and that it had knowledge that alcoholic liquors were sold thereon, but it specifically denied that it permitted O’Brien and Tookill to occupy the premises or that their sale of liquor was with its knowledge, consent and permission, and that the purpose of introducing in evidence the agreement whereby it acquired title to the premises in lieu of foreclosure subject to existing leases, the deed conveying the title to defendant, the lease in force when the defendant acquired title and which expired in May, 1936, the records of the three forcible detainer proceedings brought by the defendant against John Krohmer and Edward M. Spencer and the testimony that the building had been razed, was to prove that the sale of liquor by O’Brien and Toohill in the tavern was not with its knowledge, consent or permission, as alleged by plaintiff. The former filed no answer. The Guardian Life Insurance Company appeared and defended. Neta Bowman dismissed her suit, and upon a trial, a jury returned a verdict of not guilty as to the defendant. As we have stated, motions for a judgment notwithstanding the verdict and for a new trial made by Charles Bowman were overruled and a judgment was entered upon the verdict.

It appears from this record that the plaintiff did not object to the introduction in evidence of the deed conveying title to the defendant, or the lease dated May 10, 1933 between Chicago Turngemeinde, as lessor, and John Krohmer, a lessee, covering the premises at 820 North Clark street, Chicago, Illinois, from June 1,1933 to May.31, 1936, nor does it appear from the abstracts that we have before us that there was any objection by the plaintiff to the quitclaim deed from the Chicago Turngemeinde to the Guardian Life Insurance Company, grantee; nor objection by the plaintiff to the introduction of certain forcible entry and detainer proceedings in the municipal court of Chicago, wherein the Guardian Life Insurance Company brought suit against John Krohmer and Edw. M. Spencer; nor the fact that the building that was formerly upon the premises had been razed, and when we come to consider the instruction which was given by the court, we find that defendant’s instruction No. 7 was modified by the court by striking out the following words:

“ (5) That the defendant, The Guardian Life Insurance Co. of America owned the premises upon which the tavern operators conducted their tavern and that the defendant The Guardian Life Insurance Co. of America permitted said defendant tavern operators to operate their tavern on said premises.” and when we consider this modification, together with the fact that the exhibits complained- of were not in the possession of the jury when it retired to consider the verdict, it is clear that the jury did not consider these exhibits that were objected to by the plaintiff, and the trial court held that the proving of this issue under the circumstances of the case was not a defense and refused to permit this issue to go to the jury over the defendant’s objection. As to the other exhibits, which counsel seems to consider as erroneously admitted by the court, they were not really before the jury and therefore were not considered by them when they retired to pass upon the questions involved in the litigation. We are not prepared to say that under the record as we have it before us that there was such error which, of itself, would justify a reversal of the judgment of the court.

There is also the contention by the plaintiff that the court erred in submitting to the jury a form of verdict finding the defendant not guilty. Upon an examination of the record it does not appear what form of verdict, if any, the court submitted to the jury. Therefore, by reason of failure to abstract these verdicts the plaintiff has waived the right to complain. It does not appear that the plaintiff in the motion for a new trial complained as to the verdicts that were submitted to the jury, for the motion for a new trial has not been abstracted for this purpose.

The plaintiff also complains that the court in giving the following instruction erred:

“The preponderance of evidence in a case is not alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining on which side the preponderance of evidence is, the jury should not only take into consideration the number of witnesses testifying to a particular fact or state of facts; but they should also take into consideration, so far as shown by the evidence, the opportunities of the several witnesses for seeing or knowing the things about which they testify; their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements, in view of all the evidence, facts and circumstances proved on the trial; and from all these facts and circumstances, and a full consideration of all the evidence, determine upon which side is the greater weight or preponderance of the evidence.”

The plaintiff states that while this instruction is an abstract legal proposition, the practice of giving abstract propositions of law has been repeatedly disapproved because of the tendency of such charge, not made applicable to the evidence, to mislead the jury. This instruction has been passed upon a number of times by courts of appeal, and it is necessary to consider whether the giving of this instruction to the jury in this case was erroneous because not applicable to the facts and circumstances in evidence. The defendant in discussing the objections offered by the plaintiff said: ‘‘ The instruction, if anything, was unduly favorable to plaintiff since it told the jury that in determining where the preponderance lay they could consider the number of witnesses testifying to a particular fact or state of facts, and only plaintiff was able to produce witnesses as to the occurrence,” and then continues by saying that the plaintiff also contends that the instruction was objectionable because the jury was told that in weighing the testimony of witnesses they could consider “the probability or improbability of the truth of their several statements, in view of all the evidence, facts and circumstances,” and then he states: “There were no facts and circumstances proved on the trial, and defendant had no right to have such an instruction.” However, the defendant calls the attention of the court to authorities holding that the prevailing party is entitled to all the favorable inferences legitimately arising from the evidence, and then goes on to cite the case of Dick v. Zimmerman, 105 111. App. 615, where the court in affirming the judgment for appellee, said: “When an appellate court is asked to set aside a verdict the prevailing party is entitled to all 'the favorable inferences legitimately arising from the evidence. Hess v. Rosenthal, 55 Ill. App. 324,” and also cites case of Leeper v. Gay, 253 Ill. App. 176.

As we understand this record the question before the jury was as to whether the plaintiff was entitled to recover if the jury was satisfied that his injuries were provoked by him or were due to his own negligence, and as to whether he was under the influence of liquor, according to his own testimony. Defendant cites a case wherein the question was whether a plaintiff can recover damages under the Dramshop Act for bodily injuries sustained as a result of his own intoxication. The case is People for lose of Lenand v. Linck, 71 Ill. App. 358, which is an action brought on a saloon keeper’s bond by the plaintiff to recover for injuries sustained by him. The court in that case said:

“The only question for our decision is whether one who was an active and willing agent in procuring his own intoxication may recover upon a saloon keeper’s bond for injuries caused by such intoxication. We do not think the statute was intended to cover any such case, but rather those cases where parties - have been innocently injured by the wrongful act of the principal in the bond.

“The party complaining and seeking damages must be free from complicity in procuring the intoxication. Such appears to be the view of courts of last resort in this State, Iowa and Michigan, although in none of the reported cases were the facts the same as in this case. In each of those cases, the complaining party was seeking damages for injuries caused by the intoxication of another. Reget v. Bell, 77 Ill. 593; Hays v. Waite, 36 Ill. App. 397; Engleken v. Hilger, 43 Iowa 563 ; Rosecrants v. Shoemaker, 60 Mich. 4.

“In Iowa and Michigan, where the statutes giving a right of action to persons injured by reason of the intoxication of another are similar to ours, it is held that the wife can not recover damages from a saloon keeper who has caused the intoxication of her husband, if she herself encouraged or requested the sale of the liquor to her husband. Such holdings were based upon the ground that she was not an innocent injured party. In Reget v. Bell, supra, our Supreme Court has gone even farther, and held a wife would be precluded from a recovery if she had it in her power to deprive her husband of the use of the whiskey which caused his intoxication by breaking the jug or pouring out its contents, and failed to exercise it.” Citing also Buntin v. Hutton, 206 Ill. App. 194; Bennett v. Auditorium Bldg. Corp., 299 Ill. App. 139; South Chicago City Ry. Co. v. Dufresne, 200 Ill. 456; Newell v. Cleveland, C., C. & St. L. Ry. Co., 261 Ill. 505. Upon the facts as they appear in this record there seems to be authority that a plaintiff may not recover under the Dramshop Act for personal injuries, where such injuries were due to an act of provocation on his part. Hays v. Waite, 36 Ill. App. 397. So when we consider the question here involved, this instruction was not an erroneous one and no doubt was proper under the facts and circumstances as they appear in the record.

The plaintiff contends that while jurors are the judges of facts, they must act upon reason and can only decide facts in dispute. A jury cannot arbitrarily reject the testimony of a witness which is uncontra-dicted either by positive testimony or circumstances and is not inherently improper, citing the case of Porter v. Industrial Commission, 352 Ill. 392, wherein the court said: “The evidence shows that the impaired physical condition of the defendant in error was the result of the injury. No countervailing evidence was offered by the plaintiff in error. The testimony of unimpeached witnesses, not contradicted by positive testimony or by circumstances, and not inherently false or improbable, may not be rejected.” Plaintiff cites also the case of Kelly v. Jones, 290 Ill. 375.

There is no question in the minds of the court that the jurors are the judges of the facts, and as we have indicated, the question of whether the plaintiff brought about the assault by his own act was clearly a question for the jury to pass upon, and having passed upon that question, we cannot agree with the contention of the plaintiff that the evidence is such that the jury would be required to return a verdict of guilty — where the question involved is as to whether the plaintiff is entitled to a verdict under the law, and as we have indicated, there is a question as to whether the plaintiff is entitled to a verdict where he brought about the occurrence which resulted in his injury.

After a consideration of the objections that were offered by the plaintiff, we believe the court did not err in entering judgment on the verdict of the jury finding the defendant not guilty. For the reasons stated, the judgment is affirmed.

Judgment affirmed.

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


text:
    In re Estate of Matthew B. Lyons, Deceased. Mary Wyley Scurry, Appellant, v. Winifred Sheehan, as Administratrix with the Will Annexed of the Estate of Matthew B. Lyons, Deceased, Appellee.
    Gen. No. 40,938.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed February 14, 1940.
    Joseph F. Elward, of Chicago, for appellant; Raymond F. McNally, Jr., of Chicago, of counsel.
    Patrick J. Allman, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

The plaintiff petitioned this court for leave to appeal from an order granting a new trial, such petition being filed under and by virtue of section 77 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1937, ch. 110, par. 201 [Jones Ill. Stats. Ann. 104.077]) and Rule 40 of the Supreme Court of Illinois, and the appeal was allowed by this court.

This action was commenced in the probate court of Cook county upon the plaintiff’s claim against the defendant, administratrix, on account of housekeeper and nursing services rendered by the plaintiff for the deceased from February 17,1932 to January, 1938. Upon appeal to the circuit court of Cook county, a trial de novo was had with a jury. A motion for a directed verdict was made by the defendant at the close of all the evidence, and the court reserved its ruling. The jury returned a verdict which allowed the plaintiff’s claim for $2,500. The defendant made motions for judgment notwithstanding the verdict and for a new trial. Upon argument of the motions the trial court denied the motion for a directed verdict made at the close of all the evidence, and denied the motion for judgment notwithstanding the verdict. Subsequently, the trial court allowed the defendant’s motion for a new trial.

The plaintiff’s contention is that the evidence adduced in behalf of her, although related as sister-in-law of the deceased, was sufficient in law to rebut the presumption that her services were intended to be gratuitous, and she further suggests that counsel for the defendant will not dispute the proposition that the Illinois courts consistently have held that where housekeeping services are rendered by one who stands in the family relation with the deceased, and who then acts to charge the deceased estate with the value of the services, the presumption is that the services were intended to be gratuitous. This presumption, however, may be overcome by proof of facts or circumstances which show that the deceased intended that compensation would be paid and that the claimant intended to receive compensation, both intentions existing at the time the services were rendered.

The defendant’s reply to this contention is that the burden is on the plaintiff to prove her case by a preponderance of the evidence, and in addition overcome the presumption that the services were rendered gratuitously, because of the family relationship existing between the plaintiff and the deceased. To overcome this presumption it was necessary for the plaintiff to prove that when the services were rendered she expected to receive payment and the deceased to make payment.

Therefore, under the issues involved in this litigation it was incumbent upon the plaintiff to prove at the trial, and the plaintiff maintains now that it has been proved, that the evidence shows that the services rendered by her were intended by her and by the deceased to be paid for by him. It does appear from the evidence which was offered by the plaintiff that the services were performed by her from 1932 until the death of Mr. Lyons on January 17, 1938. It also appears from the evidence that all of the witnesses, except Mr. Nicholsen, had been in the home of the deceased, and had actually seen the plaintiff perform the services as housekeeper.

The testimony of Mr. Blatt and Mr. Heilman, witnesses who appeared at the trial, tends to show that both witnesses had heard the deceased say on numerous occasions during the last five or six years of his lifetime that he did not know how he could get along without his sister-in-law keeping house for him, and that he was “really going to take care of her later on” on account of the work she had done for him, and Mr. Heilman further testified that the deceased told bim that he was not paying the plaintiff anything at the time, but that the payment would come later, and that he definitely intended to “take care of her” for the rest of her life, on account of the work she had done for him. It further appears from the evidence of Mr. Heilman that the deceased had told his sister-in-law, the plaintiff, that he intended to take care of her on account of the work she had been doing for him, and that the deceased had made this remark to the witnesses as often as once a week from the spring of 1933 until a few months before his death in January, 1938.

A further witness for the plaintiff, Carl W. Hyland, who had been working in the same department as the deceased with the Pullman Company, testified that when he was working with the deceased he had numerous conversations in regard' to the plaintiff, and the deceased had repeatedly stated that he had a wonderful housekeeper, and that he, the witness, had been in the home of the deceased and had seen the plaintiff working in the kitchen and taking care of him when he was sick.

The evidence of Mr. Nicholsen, who testified he had a conversation with Mr. Lyon when he came back to work after an illness in December, 1937, is to the effect that at this time the deceased told the witness: “I don’t know how I could have got along without my sister-in-law,” that as a nurse she certainly was a wizard. He said that he had nothing to worry about, and certainly not in the future. So it does not appear that there was any controversy regarding the credibility of the witnesses or as to the evidence that was given before the jury. The sole question seems to be whether the evidence was sufficient to establish that the plaintiff was to be paid and that she would receive remuneration for her services. In the determination of this question it is best to consider the cases in which the courts have passed upon a like question.

In the case of Switzer v. Kee, 146 Ill. 577, a son was seeking to recover compensation by an allowance in the probate court in the estate of his deceased mother for services rendered, and upon an appeal in the circuit court the question arose as to whether he being the son was entitled to compensation, and one of the questions involved in the case was whether the court erred in refusing to give an instruction, which was as follows:

“ ‘Where a child lives with a parent, or a parent with the child, the relationship between the parties is so intimate that the law does not imply a contract to pay money for support or services. Unless it be shown . that there is an express contract to pay for such support and services, a recovery therefor can not be had by one of the parties against the other. In the absence of an express agreement the law indulges the generous presumption, that what is done for each other by parties thus nearly related is done gratuitously, and as the prompting of natural affection. ’ ” The court, in passing upon this instruction upon which the court commented that there might have been an implied contract, said: “But, as we have seen, even in such case an implied contract may be established by proof of facts and circumstances showing that it was the intention of the parties that payment should be made for the support or services furnished. ’ ’ and the court held that there was no error in refusing to give this instruction.

From the authorities it would seem to be the rule that an implied contract in a case of the kind we have before us, may be established by the facts and circumstances showing it was the intention of the parties that payment should be made for the services.

Also in the case of Neish v. Gannon, 198 Ill. 219, where it appears the claim was filed by a niece against her aunt’s estate and was for housework, and where the deceased had actually conveyed to the claimant a lot which was to pay her for her services while she lived with her. The estate’s defense was that the services were gratuitous. The Supreme Court in that case said: “Such presumption is, however, rebutted where the evidence establishes an express contract to pay for the services, or where, from the facts proven, it appears that at the time the services were performed both parties understood and expected that the party performing the services was to be compensated therefor, although no express contract to pay for the service is proven, in which case a contract will be raised, by implication of law, to pay for such services.”

In the case of Heffron v. Brown, 155 Ill. 322, the court in the opinion held that an implied contract may be established by the facts and circumstances surrounding the case, and this rule was approved in Miller v. Miller, 16 Ill. 296, and by this court in Fruitt v. Anderson, 12 Ill. App. 421. So, when we come to consider the question involved, it is necessary to determine whether the court was justified in granting a new trial under the facts and circumstances as they appear from the record and whether this action was within the discretion of the court.

It does not appear that any erroneous decisions of the court were made during the trial of the case, or that the instructions were erroneous. So, as stated before, it would seem to depend upon the facts and the rules which apply in actions of this kind, whether by this act of the court in granting a new trial the court was acting within its discretion.

From the case of Leahy v. Morris, 289 Ill. App. 99, it appears that the defendant filed a motion for a directed verdict at the close of the plaintiff’s case; also a motion for a directed verdict at the close of all the evidence, and a motion for a judgment non obstante veredicto, each of which motions was denied. Then the defendant filed a motion for a new trial, stressing the point that the verdict was against the manifest weight of the evidence, and the trial court allowed this motion. Upon the question involved the court said:

“This having been left as a question of fact for the jury the court must abide by the jury’s findings on that question.
((
“There is no contention in this case except that the verdict was against the manifest weight of the evidence. Our courts have so often laid down the doctrine that verdicts will not be disturbed by courts unless they are in fact against the manifest weight of the evidence that it seems idle to cite those authorities again here. On this the case was submitted to the jury, properly instructed. The jury found the facts as juries must in all cases submitted to them, even though the line of demarkation between the conclusions which may be drawn from consideration of two sets of facts may be somewhat indefinite.”

Then again in the case of Norton v. Tucker, 290 Ill. App. 606 (Abst.), we said:

“There is no claim, but that the jury was fully and fairly instructed. From the record before us, we conclude that there is nothing involved but questions- of fact, that the verdict is not contrary to the manifest weight of the evidence, and we are, therefore, of the opinion that the trial court was in error in granting a new trial.” See also Ulbricht v. Western Coach Lines, 289 Ill. App. 164, and Hoffner v. Reinberg, 296 Ill. App. 13.

In commenting upon this question in the case of McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120, this court said:

“If it were permissible for a trial judge on a motion non obstante veredicto to weigh the evidence and enter a judgment according to his opinion as to wherein lies the greater weight of the evidence, then the right to a trial by a jury would be done away with and the judgment of the court substituted therefor. It is only where there is no evidence as a matter of law to sustain either a plaintiff’s or a defendant’s claim that a judgment may be rendered notwithstanding the verdict.
“In the instant case the evidence was conflicting and the court should not have substituted its judgment as to the weight of the evidence in place of the verdict of the jury.”

This language was quoted with approval by this court in Wolever v. Curtiss Candy Co., 293 Ill. App. 586.

We are of the opinion that under the facts there was sufficient evidence to establish the plaintiff’s case, and that the court erred in granting a new trial.

While other questions have been called to our attention, we think we have passed upon the important questions and are satisfied that the plaintiff has established her right to be paid for her services and that that was the intention of the deceased in his lifetime.

While there is in this record the last will and testament of the deceased, which was offered in evidence by the defendant, the will provides for a trust, of which the plaintiff was to receive one-fifth of the income for and during her natural life. The net assets of the estate amount to $5,710.75, and it is from this amount that she is to receive one-fifth of the income, which would amount to approximately $50 each year. This, however, does not militate against the claim of the plaintiff if she is entitled to compensation for services, and as we have found from the facts in the record, the court erred in granting a new trial, and the order for a new trial is reversed and judgment entered in this court on the verdict of the jury for $2,500.

Order reversed and judgment entered here.

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


author: Presiding Justice Denis E. Sullivan.

text:
    Metropolitan Casualty Insurance Company, Appellant, v. A. L. Dedi, Trading as A. L. Dedi Sales Company, Appellee.
    Gen. No. 40,791.

      Heard in third division, first district, at June term, 1939;
    opinion filed February 14, 1940.
    Howard E. De Long, for appellant; E. 0. Frank Meier, of counsel; R. C. Weiehbrodt, for appellee.
   Opinion by

Presiding Justice Denis E. Sullivan.

‘ ‘Not to be published in full.”


text:
    Globe Paper Box Company, Appellant, v. United Pressed Products Company, Appellee.
    Gen. No. 40,801.
    Heard in third division, first district, at June term, 1939;
    opinion filed February 14, 1940.
    Lawrence Wolff Gidwitz, for appellant; A. A. Rubinson, of counsel; Simon Herr, for appellee.
   Opinion by

Presiding Justice Denis E. Sullivan.

‘‘Not to be published in full.”


text:
    Willard J. Partridge, Appellee, v. Enterprise Transfer Company, Appellant.
    Gen. No. 40,811.

      Heard in third division, first district, at October term, 1939;
    opinion filed February 14, 1940.
    Lord, Bissell & Kadyk, for appellant; Raymond Wearing, Gordon R. Close and Edward S. Crowell, of counsel; Aaron R. Eppstein, for appellee.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Hot to be published in full.’’


text:
    Henry D. Klopfer, Appellant, v. Carl Peterson, Appel-lee. Henry D. Klopfer, Appellant.
    Gen. No. 40,859.
    Heard in third division, first district, at October term, 1939;
    opinion filed February 14, 1940;
    rehearing denied March 12, 1940.
    Charles Liebman and Emerson C. Whitney, for appellant; Michael M. Phillips and Raymond I. Suekoff, for appellee.
   Opinion by

Presiding Justice Denis E. Sullivan.

“Hot to be published in full.’’


author: Justice Burke.

text:
    Milton Rosenthal, Appellant, v. Michael Tauber and Company, Appellee.
    Gen. No. 40,807.
    Heard in third division, first district, at October term, 1939;
    opinion filed February 14, 1940.
    Leon N. Miller, for appellant; I. J. Berkson, for appellee; Eugene A. Weinberg, of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.”


text:
    The Trust Company of Chicago, as Administrator of the Estate of Hermina Juszczyk, Deceased, Appel-lee, v. Guy A. Richardson and Walter J. Cummings, Receivers, et al., Trading as Chicago Surface Lines, Appellants, and Frank M. Flammang, Individually and Trading as Frank M. Flammang Motor Trucking, et al., Defendants.
    Gen. No. 40,903.

      Heard in third division, first district, at October term, 1939;
    opinion filed February 14, 1940;
    rehearing denied March 12, 1940.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellants; John B. Guilliams, of counsel; Thaddeus O. Toudor and Irving L. Lansing, for appellee; Alee E. Weinrob and Ben E. Polowsky, of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.”


text:
    Carl Freudenberg and Mary Freudenberg, Appellants, v. James E. Dooley, Appellee.
    Gen. No. 40,997.
    Heard in third division, first district, at October term, 1939;
    opinion filed February 14, 1940.
    Gold & Liebman, for appellants; Aaron B. Epstein, of counsel; John P. Humphreys, for appellee; Arthur J. Donovan, of counsel.
   Opinion by

Justice Burke.

“Not to be published in full."


author: Justice Hebel.

text:
    Eva Berliant, Appellee, v. Inga Fieber, Appellant.
    Gen. No. 40,828.

      Heard in third division, first district, at October term, 1939;
    opinion filed February 14, 1940.
    J. Edward Jones, for appellant; Charles O. Spencer and Richard M. Spencer, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.’’


text:
    People of the State of Illinois ex rel. J. D. Mikel, Appellee, v. Illinois Racing Commission et al., Appellants.
    Gen. No. 40,845.
    Heard in third division, first district, at October term, 1939;
    opinion filed February 14, 1940.
    John E. Cassidy, Attorney General, for appellants; Earl B. Dickerson, William C. Clausen, James J. Teborek and Boring B. Moore, Assistant Attorneys General, of counsel; Charles J. Michal and John T. Murray, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.’’


text:
    Charles L. McPartlin, Successor Trustee, Appellee, v. Dora Carlson et al., Defendants. Charles L. McPartlin, Appellee, v. Anna Boddiker et al., Respondents. Appeal of Anna Boddiker, Appellant.
    Gen. No. 40,856.
    Heard in third division, first district, at October term, 1939;
    opinion filed February 14, 1940.
    Harry A. Biossat, for appellant; Boss S. Welch, for appellee.
   Opinion by

Justice Hebel.

“Hot to be published, in full.”


text:
    In re Estate of J. T. Wilson, Deceased. J. Gray Lucas, Administrator De Bonis Non of the Estate of J. T. Wilson, Deceased, Appellee, v. Frank G. Smith, Executor of the Estate of Hattie C. Wilson, Deceased, Appellant.
    Gen. No. 40,871.

      Heard in third division, first district, at October term, 1939;
    opinion filed February 14, 1940.
    Brown, Brown, Cyrus & Greene, for appellant; Sydney P. Brown, of counsel; A. M. Burroughs, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    J. Beidler Camp, Appellant, v. Munger’s Laundry Company, Appellee.
    Gen. No. 40,883.
    Heard in third division, first district, at October term, 1939;
    opinion filed February 14, 1940;
    rehearing denied March 12, 1940.
    Julius Kreeger, for appellant; Julius Kreeger and Allen Sin-sheimer, Jr., of counsel; George D. Sullivan, for appellee; John E. Crahen, of counsel.
   Opinion by

Justice Hebel.

‘ ‘Not to be published in full.’ ’


text:
    Henry K. Holsman, Appellee, v. Campbell Realty Company, Appellant.
    Gen. No. 40,900.

      Heard in third division, first district, at April term, 1939;
    opinion filed February 14, 1940;
    rehearing denied March 12, 1940. Edward H. S. Martin, for appellant; Hubbard, Baker & Rice, for appellee.
   Opinion by

Justice Hebel.

“Not to be published, in full.”


text:
    Hazel Reese and Standard Discount Company, Inc., Assignee, Appellants, v. Guarantee Trust Mutual and Guarantee Trust Life Insurance Company, Appellees.
    Gen. No. 40,921.
    Heard in third division, first district, at October term, 1939;
    opinion filed February 14, 1940;
    rehearing denied March 12, 1940.
    Victor H. Bloom, for appellants; Meyer A. Ginsburg, for appellees.
   Opinion by

Justice Hebel.

‘ ‘Not to be published in full.”


author: Mr. Justice Hayes

text:
    Doris Romine et al., Appellees, v. Luther J. Black et al., Appellees, Atwood Township High School District Number 154, Appellant.
    Gen. No. 9,159.

      Heard in this court at the October term, 1938.
    Opinion filed October 19, 1939.
    Rehearing denied February 23, 1940.
    N. E. Hutson, of Monticello, and Craig & Craig, of Mattoon, for appellant.

      Harry L. Pate, of Tuscola, and Leonard, Meyer & Franklin, of Champaign, for certain appellees; Harry L. Pate and F. B. Leonard, of counsel.
   Mr. Justice Hayes

delivered the opinion of the court.

This is a suit in equity brought by plaintiffs appel-lees, who will be hereinafter referred to as plaintiffs, against Atwood Township High School District Number 154, in the counties of Piatt, Douglas and Moultrie, defendant appellant, hereinafter referred to as defendant, the county superintendent of schools of Douglas, Moultrie and Piatt counties, and the members of the Board of Education of the Non-High School District of Douglas county, defendants appellees, for an injunction restraining the county superintendent of schools of Douglas county from filing in the office of the county clerk, a map showing the new and added boundaries of the Atwood Township High School District Number 154, pursuant to a petition filed with said county superintendent by voters residing in the territory of said Atwood High School District and also in the territory being a part of the Non-High School District of Douglas county, for the purpose of attaching said territory of said Non-High School District to the Atwood High School District, on the ground that the petition was insufficient to confer jurisdiction. The petition describes 18 sections of land in Douglas county which, up to this time, had been part of the Non-High School District of Douglas county, and requests that these particular sections be taken from the said Non-High School District and added to the Atwood High School District, and designates them as “territory number one.” The complaint alleges that the plaintiffs are all legal voters, property owners and taxpayers in the territory described as “territory number one,” and then sets out seven sections of land, being sections 1, 2,11,12, 23, 26, and 35, T. 16 R. 7, E. 3rd P. M. Douglas county, Illinois, that lay on the east side and within “territory number one,” which are adjacent to and west of the Tuscola High School District, and these above named seven sections are referred to as “territory number two.” The Atwood Township High School District 154 is organized in all three of the counties of Piatt, Douglas and Moultrie, and a part of its territory lies west of said Non-High School “territory number one.”

The complaint alleges that petition for the admission of “territory number one” to the Atwood High School was filed September 20,1937, with the defendant Luther J. Black, county superintendent of schools of Douglas county. The complaint avers that said petition has not been acted upon by said county superintendent, by the filing of a map showing the new and added boundaries of “territory number one.” Complaint also avers that the petition purports to be signed by 166 persons, claiming to be a majority of the legal voters residing in said “territory number one,” and complaint further avers that in fact there are more than 322 legal voters in said territory; and denies that 166 signers constitute a majority; that since the filing of said petition and on the 7th day of October, 1937, prior to the filing of the complaint in this suit, there was filed written withdrawals of 10 of the 166 persons who signed said petition.

Defendants contest the legal right of the 10 persons who withdrew their names from said petition. This contention is the vital question in the case. The trial court held that they were entitled to withdraw their names. If the withdrawals are allowed to stand, it reduces the signers to 151.

Chapter 122, par. 104a, sec. 96a, Ill. Rev. Stat. 1937, [Jones Ill. Stats. Ann. 123.111(1)] requires the petition to be signed by a majority of the legal voters residing in the Non-High School territory. If there were 302 or more legal voters residing in the' Non-High School territory, 151 names would not be a majority. It is conceded by stipulation, and by concession of defendants, that there are 300 legal voters residing in the Non-High School territory shown to be annexed on September 20, 1937, when the petition was filed. In addition to this, there are 17 persons whom plaintiffs claim were legal voters and resided in the territory at the time in question, and which defendants denied. Out of these seventeen, the circuit court held that seven, namely, Lloyd Crimmel, Joseph Foster, Ina Gfarrett, Myrtle G-ilreath, Lenore Lewis, Millard Lindsey and Vernon Mosley, were legal voters and resided within the territory in cpiestion, and that the other ten were not. The trial court finding was that there were 307 legal voters residing in the Non-High School territory at the time of the filing of the petition and that since the petition was only legally signed by 151 of the voters, it was not signed by a majority of the legal voters residing in the Non-IIigh School territory.

Defendants contend that the trial court should have dismissed the suit for the reason that there was an adequate remedy at law by quo warranto so that a suit in equity for injunction was not proper. This raises the question of the proper construction of par. 104a, sec. 96a, ch. 122, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 123.111(1)] which statute says that when such petition is filed with the county superintendent “said territory shall be detached from said non-high school district and added to said community or township high school district. ’ ’ The statute then provides that it shall be the duty of the county superintendent, within 30 days after said petition is filed, to make and file with the county clerk of his county a map “showing the new and added boundaries of said community or township high school district as requested in said petition.” Statute further provides that upon the filing of said map in the office of the county clerk “said territory so detached from said non-high school district shall cease to be a part thereof, but from thence said territory shall be a part and parcel of said community high school district or of such township high school district, as the case may be.”

Defendants contend that the filing of a petition, which is legal upon its face, with the county superintendent as prescribed by the statute, immediately causes the territory in the Non-High School District to be detached and become a part of the Community High School District without any further action on the part of the county superintendent, and that the direction in the statute to file the map with the county clerk is merely directory.

Quo warranto calls upon the defendant to show by what authority he or it is exercising powers or franchises. The defendant must be in the actual possession of an office or must be actually exercising a franchise or jurisdiction before quo warranto can be brought to test that right. To lay the foundation for granting the information in the nature of a quo warranto to test the right or title to an office, there must in all cases, have been an actual possession and user of the franchise. It is not sufficient, therefore, that the person against whom the jurisdiction is invoked should have merely claimed the right to take the official oath, but an absolute user must also be shown. High’s Extraordinary Legal Remedies, section 627.

In the case of Ziebell v. Village of Posen, 257 Ill. App. 32, the court said,

“Under the circumstances shown by the record before us, is quo warranto the exclusive remedy, or may complainants properly seek relief in a court of equity? Under the law of 1872 it is provided that, where a majority of votes are cast for annexation, the board of trustees ‘shall within ninety days thereof, by ordinance, annex such territory to such city, village or town, upon filing a copy of such ordinance with an accurate map of the territory annexed ... in the office of the recorder of deeds.’ This would indicate that the proceedings to annex are not completed until the ordinance and map are filed as required and that this was a necessary step. If we view the proceedings under the 1872 statute, they were not completed when complainants ’ bill was filed and the temporary injunction issued.

“Quo warranto would not lie in the instant case because there had been no usurpation or assumption of franchise by the defendant.”

In People ex rel. Shanley v. O’Connor, 239 Ill. 272, involving the validity of annexation proceedings, the court said,

“The sole purpose of the information is to require the defendant to show by what warrant he is holding or exercising the license, privilege or franchise in question.” In the case at bar, the territory has not yet been annexed and the defendant has not yet assumed to exercise control over it when the bill was filed; consequently, it was not possible by quo warranto to inquire by what right the village exercised authority over the territory. Under such circumstances complainant properly sought the assistance of a court of equity.

Defendants cite the case of Union School Dist. Directors v. New Union School Dist. Directors, 135 Ill. 464, 474 in support of their contention that the filing of the petition for annexation with the county superintendent of schools was final in consummating separation of the territory in question from the Non-High School District and annexing it to the Atwood School District. In this case, it appears that the statute directed the filing of a map with the county clerk, but did not contain the language of the present statute. It appears from the opinion in that case that a mandamus suit had previously been brought and prosecuted to the Supreme Court and that proceeding had adjudicated the validity of the new district.

In the case of School Directors Dist. No. 5 v. School Directors Dist. No. 10, 73 Ill. 249 cited by the defendants, it appears there was no language in the section of the statute then under construction similar to the present statute. There was no statement that from thence the territory stated became a part of the school district. It was merely a directory statement that'after trustees of schools had organized a new common school district and made a record thereof, that they should then file a map.

This court passed on a similar statute to the present one in the case of Potter v. Board of School Trustees, 10 Ill. App. 343, 345 which after directing the filing of the map with the county clerk added this provision:

“Compliance with these requirements within the said period of ten days is hereby made essential to the validity of any alterations of district boundaries.”

In construing this statute the court said,

“It is also urged by defendants in error that the provision requiring the filing of a map and list of the taxpayers resident in the newly arranged districts is not mandatory but directory merely, and two decisions of the Supreme Court are cited. These decisions were made under a statute wholly unlike the present one which expressly provides that ‘ compliance with these requirements within said period is hereby made essential to the validity of any alterations of district boundaries.’ This language is mandatory and there is no room for construction.”

A correct construction of the statute in question as to the time the actual separation of the territory from the Non-High School and the annexation to the Community High School is that which is clearly stated in the statute. That is when the county superintendent of schools shall file with the county clerk of his county a map showing the new and added boundaries of said Community High School as requested in said petition and from the filing of said map in the office of the county clerk of aforesaid, said territory so detached shall cease to be a part of the Non-High School District, but from thence said territory shall be a part and parcel of said Community High School District. The language herein contained is clear, definite and mandatory, and to give a different construction and hold that the separation took place at the time of the filing of the petition with the county superinendent would nullify the words used by the general assembly and do violence to a clear, expressed legislative intent. Under this construction the Atwood Community High School did not acquire jurisdiction until the filing of the map, therefore, quo warranto would not be proper. Under the allegations set up in the complaint herein, the defendants were entitled to a hearing in the equity and for relief as prayed.

It appears from the record in this case that all the children attending high school in ‘ ‘ territory number two” attended the Tuscola High School rather than the Atwood High School. This was when the parents and the children themselves had free choice between the two schools. If all the territory included in the petition is permitted to stand, these children will have to change from the Tuscola High School to the Atwood High School.

Ten of the original signers of the petition, after they had time to consider the question, withdrew their names. Defendants here contend these withdrawals were illegal after the petition was filed with the county superintendent of schools.

The case of Littell v. Board of Supervisors, 198 Ill. 205, which involved a petition of a board of supervisors to organize a new town under a statute made it the duty of said board to create a new town whenever not less than three-fourths of the voters residing in such territory shall petition for such new town. After signing the petition, 27 names were withdrawn from the petition and the county board refused to organize the township and the right of the withdrawal was upheld by the Supreme Court. The court said,

“Each petitioner acts on his individual responsibility and if he should change his mind on the question whether a new township would better serve the con-venien.ee of the inhabitants residing therein or if he should be induced to sign it under a misapprehension or through undue influence, he ought to have the right to correct his mistake if he does so before the rights of others have attached by the final action on the part of the board. ... To absolutely prohibit a citizen from withdrawing his name from a petition voluntarily signed by him at any time after it has been presented to' a body authorized to act upon it would be a harsh and unreasonable rule and also liable to work great hardship. ’ ’

In the case of the County Court v. Pogue, 115 Ill. App. 391, certiorari also brought to test the proceedings in the county court to remove a county seat. Prior to the hearing sufficient withdrawals were filed to reduce the requisite majority. This court said,

“The second vital question, therefore, is whether persons who have signed a petition asking that an election be called upon a proposition to remove a county seat to another location have a right to withdraw their names from the petition before the court has acted upon it. We regard this question as settled for this state by Littell v. Board of Supervisors, 198 Ill. 205. . . . The principles there announced are general, and are just as applicable to a petition for an election to vote for the removal of a county seat as to any other petition. It is there held as a general rule that a citizen may withdraw his name'from a petition voluntarily signed by him after it has been presented to the body authorized to act upon it at any time before final action thereon by such body. . . . Signatures to such petitions are easily obtained. Ordinarily experience teaches that in matters which do not seem closely to touch themselves, many persons sign petitions without sufficient consideration and inquiry, and if the subject afterwards becomes a matter of public discussion so that their attention is carefully drawn to the reasons for that for which they have petitioned, they often then conclude that they have been hasty in signing, or are in error, or that they do not wish the petition granted. ’ ’

We are of the opinion that the trial court properly gave effect to the 10 withdrawals.

The remaining question in the case is what constitutes a legal voter residing in the territory. In the case of Board of Supervisors v. Davenport, 40 Ill. 197, our Supreme Court said:

“The transient visit of a person for a time at a place does not make him a resident while there. Something more is necessary to entitle him to that character. There must be a settled, fixed abode, and intention to remain permanently, at least for a time, for business or other purposes, to constitute a residence, within the legal meaning of that term. ’ ’

In a recent case our Supreme Court held the same. See Pope v. Board of Election Commissioners of East St. Louis, 370 Ill. 196.

The trial court held that Millard Lindsey was a legal voter and resident of the territory in question. Evidence shows this young man was once married and lived in Tuscola then, but was divorced some two years ago, and since that time he has made his home with his mother and younger brother in district number two, living three miles northeast of Garrett. He has a room there in his mother’s home where he keeps his own bed and personal belongings. He works part of the time at Mattoon, but is home most of the time each week. He votes in Garrett township and testified that he never voted elsewhere. The trial court was amply warranted in holding that this man was a legal voter and residing within the territory.

The trial court held that Ina Garrett was a legal voter and residing within the territory. The record showed that she had ben voting in the village of Garrett and voted there last in April, 1937, and had never voted anywhere else and that she had her household furniture there and owned a one-seventh interest in real estate there; that she kept all her clothing there; that on the 20th of August, 1937, or about a month before the petition was signed in this case, she had gone to Indianapolis to visit her sister with the intention of returning to Garrett, and did return on the 19th of October. We believe the evidence amply warranted the trial court in holding this woman to be a legal voter and residing within the territory.

Joseph Foster was a retired farmer who, for 23 years, had lived on a farm in the Non-High School District in question; after his wife’s death he had lived in a one-room house on this land with his own furniture and bedding. He had voted in Garrett township all his life; he had two sons, William and John Foster. On August 29, 1937, he left for a visit at the home of his son John in Tolono and said: “Leave my furniture alone, this is my home.” He died on December 23, 1937, during the course of this visit to his son John. The evidence showed, conclusively, that he intended to return home in the spring and had not, in any way, changed his place of abode. The trial court properly held this man was not only a legal voter but he was a resident of the Non-High School District despite the fact that he was temporarily away from his home.

Now there are four other parties whom the trial court held were legal residents and it is needless for us to pass particularly on these, for the three herein taken up specifically make the total residents 303; there being 151 names on the petition which is less than the majority.

We concur in the construction put upon the statute by the trial judge, and hold that the judgment and decree of the circuit court was warranted by the record. And said judgment and decree of the circuit court of Douglas county is therefore affirmed.

Decree affirmed.