author: Mr. Justice Wolfe

text:
    In re Estate of George F. Wallace, Deceased. Lois Stadt, Administratrix, Plaintiff in Error, v. Frances Elizabeth Wallace, Defendant in Error.
    Gen. No. 8,392.

      Opinion filed February 18, 1932.
    Gower, Gray & Gower and V. A. Parish, for plaintiff in error.
    Frank J. Burns and James T. Burns, for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.

It appears from the record in this case that George F. Wallace during his lifetime became the owner of ten United States treasury savings certificates. The certificates are dated July 10, 1922, and each certify that, subject to the terms and conditions expressed thereon, George F. Wallace, five years from date of issue of the certificates, will be entitled to receive the sum of $100, or, at Ms option, upon presentation prior to maturity, the lesser amount indicated in the table appearing on the hack of the certificates. Among the terms and conditions contained in the certificates are the following:

“Payment of this certificate will be made upon presentation and surrender hereof, by mail or otherwise, at the office of the Secretary of the Treasury, Division of Loans and Currency, WasMngton, provided the form of demand for payment, appearing on the back hereof, shall be properly signed by the registered owner, in the presence of, and duly certified by, an executive officer of an incorporated bank or Trust Company, or any other person designated by the Secretary of the Treasury for the purpose. In case of the death or disability of the registered owner, a special form of demand for payment prescribed by the Secretary of the Treasury must be executed. This certificate is not valid unless the owner’s name and address and the date of issue are duly inscribed hereon by an authorized agent at the time of issue hereof. This certificate is not transferable, and is payable only to the owner except in case of death or disability of such owner and in such case is payable as provided in regulations prescribed by the Secretary of the Treasury. ’ ’

The certificates also state that provision has been made for registration of the owner’s name and address on the books of the treasury department at Washington. Above the signature of the Secretary of the Treasury appears the words, “Not Transferable.” On September 25, 1922, George F. Wallace signed the demands for payment appearing on the back of the certificates, and his signature thereto was certified to by the cashier of the Momence State and Savings Bank of Momence, Illinois.

It is conceded by the parties that sometime in the fall of 1923, Mr. Wallace presented all of the certificates to his wife, Frances Elizabeth Wallace, under such facts and circumstances as to effect a valid and complete gift of the certificates to her unless the terms and conditions expressed in the certificates have the legal effect of prohibiting or restraining the transfer of thé title to the certificates, and the right to the proceeds thereof by gift.

There is also the contention by the defendants in error that if the transfer of the title to the certificates by gift is prohibited by the terms of the certificates, still there was an equitable assignment thereof by the gift which operated to give Mrs. Wallace a title which equity will recognize and protect. This contention of the defendant, we think, is disposed of by the maxim that “equity follows the law.” “Whenever the rights or the situation of parties are clearly defined and established by law, equity has no power to change or unsettle those rights or that situation, but in all such instances the maxim ‘Aequitas sequitur legem,’ is strictly applicable.” (Magniac v. Thompson, 15 How. [U. S.] 281, 14 L. Ed. 696.) It therefore follows that if the transfer of the title to the certificates is in a lawful manner prohibited by the terms thereof, equity cannot lend its aid in effect to transfer the ownership of the certificates, or the proceeds thereof, in contravention of the prohibition. An assignment of a contract in express violation of its positive provisions, is void, and the party claiming through such assignment, is entitled to no relief in equity. (Grigg v. Landis, 19 N. J. Eq. 350.)

Mr. Wallace died October 27, 1923, and upon a hearing on a petition to discover assets of his estate prosecuted by the administrator, the circuit court of Kankakee county, on appeal from the county court, found, “That said certificates are the property of said Frances Elizabeth Wallace by virtue of a legal transfer thereof by said George F. Wallace during his life time to the said Frances Elizabeth Wallace, and that said Frances Elizabeth Wallace has title to and is the owner of said certificates.” The question presented to this court is: Did George F. Wallace have title to the certificates at the time of his death?

The terms and conditions of the certificates above quoted, were prescribed and embodied in the certificates by the secretary of the treasury of the United States. That he had the power to insert such terms and conditions in the certificates under the provisions of the Act of Congress of September 24, 1917, sec. 6, as amended by Act of September 24, 1918, sec. 2 (31 USCA Sec. 757); 31 USCA sec. 762, has been held in the cases of Brown v. White, 24 F. (2d) 392; United States v. Sacks, 257 U. S. 37, 66 L. Ed. 118; United States v. Janowitz, 257 U. S. 42, 66 L. Ed. 120; Mandelbaum v. United States, 270 U. S. 7, 70 L. Ed. 448.

In the case of United States v. Janowitz, supra, the defendants were indicted for conspiracy to defraud the United States. The district court sustained a demurrer to the indictment which charged in the first count that defendants purchased from persons not authorized by the secretary of the treasury to sell the same, a quantity of war savings certificates of the series of 1918 and 1919, with savings certificate stamps affixed thereto, and that the defendants well knew that the certificates and stamps were not transferable, were worthless in their hands, and could not be redeemed by them at or prior to maturity dates thereof, and were not payable to anyone save one who had purchased them from an authorized agent of the United States, and to a person whose name was written on them at the time of issue and purchase. That they conspired to obtain them for themselves from the United States prior to the maturity date of the certificates and stamps, knowing that they were not entitled thereto, and that the United States was not obligated to pay them, and thereby defraud the United States. The Supreme Court reversed the ruling of the judge of the district court sustaining a demurrer to the indictment on this proposition that, “A stamp is a thing of value, bought and paid for, and to deprive it of the quality of assignment is a diminution of lawfully existing property rights,, for which, in my judgment, congressional action alone will suffice.” The Supreme Court held that the secretary of the treasury had the power to make the certificates nontransferable and the defendants had no right to purchase or alienate or sell them, and, if done with intent to defraud the government, was unlawful.

In the case of United States v. Sacks, supra, the Supreme Court held that the removal of a war savings certificate stamp from a war savings certificate, which certificate was of no value except to the person whose name appeared thereon, and not transferable, was an alteration of an obligation of the government.

In the case of Mandelbaum v. United States, supra, it was held that a condition in a war savings certificate, which certificate became valid when war savings certificate stamps were attached thereto, that unless registered the United States would not be liable for payment to one not the registered owner, limited the obligation of the government to pay; and that the government is not liable to one from whom unregistered certificates have been stolen, for their value, although he offers to give a sufficient bond of indemnity.

In Warren v. United States, 68 Court of Claims Reports, page 634 (certiorari denied, 50 Sup. Ct. 346, 281 U. S. 739, 74 L. Ed. 1154), an executrix claimed the right to recover money represented by certain treasury savings certificates as against the registered owner thereof. The claim of the executrix was based on the contention that the certificates had never been delivered to the registered owner, but always remained in the possession of the testator; that the question as to title and ownership of the certificates and the proceeds thereof, was controlled by the laws of the State of Texas and not by the rules and regulations of the United States treasury department. The court of claims held that the suit was on the contract between the testator and the .United States and that the contract legally provided that the certificates were payable to the beneficiaries named therein. The secretary of the treasury refused to pay the certificates to the executrix. The court of claims held that the terms of the certificates and the regulations of the secretary promulgated before the purchase of the certificates constituted the contract sued on. And the court decided, “The Secretary of the Treasury, in effect, said to the plaintiff that under the contract ‘the money is payable to the beneficiary and not to you, and I refuse to pay it to you.’ We are of the opinion that in so doing he was acting in conformity with the provisions of the contract.”

The certificates in question limited the obligation of the government to pay the amounts of the certificates to the registered owner thereof upon his written demand. Ownership and collectability of the certificates were dependent upon the condition that the name of the owner thereof be written thereon by an authorized agent of the government at the time of purchase. These terms and conditions of the certificates the Supreme Court of the United States has held are valid. That it was the purpose and intent of the government not to make these certificates negotiable instruments under the Negotiable Instruments Acts of the various States of the Union, is apparent from, the -terms of the certificates. The only obligation of the certificates is the promise to pay under certain conditions, and this obligation is made not transferable by the terms of the certificates. Unless contrary to law or public policy, an obligation to pay money which by its terms is made payable to a designated person only, and made nontransferable, negatives any promise of the obligor, otherwise implied, that payment would be made to an assignee or a transferee. The transferability of the paper is destroyed by the consent of the original parties to it. Tabler, Crudup & Co. v. Sheffield Land, Iron & Coal Co., 79 Ala. 377, 58 Am. Rep. 593; Barringer v. Bes Line Const. Co., 23 Okla. 131, 99 Pac. 775, 21 L. R. A. (N. S.) 597. The nontransferability of the certificates was a protection and a security for both the government and the registered owner thereof, and this court has no power to waive this benefit on behalf of the government. We must, therefore, necessarily hold that George F. Wallace could not transfer the ownership of said certificates' by gift thereof, and that Mrs. Wallace is not entitled to the proceeds thereof, her title to said certificates being dependent upon her ownership thereof. The obligation of the government to pay the amounts of the certificates being limited to paying George F. Wallace, no title to the certificates, or right to proceeds thereof, passed by a manual delivery of the certificates with the intent to make a gift of the certificates, or the amounts.

The judgment of the circuit court of Kankakee county is reversed and the cause remanded to that court with direction to enter an order and judgment in the case consistent with the views herein expressed.

Reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    J. W. Parker, Appellee, v. Village of Bradley, Appellant.
    Gen. No. 8,425.

      Opinion filed February 18, 1932.
    Rehearing denied May 4, 1932.
    H. S. Streeter, John II. Beckers and E. A. Marcotte, for appellant.
    Frank J. Burns and James T. Burns, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court. This is an action in case for the recovery of consequential damages from the defendant by reason of the lowering of Broadway, one of defendant’s streets, for the purpose of constructing a subway under certain railroad tracks to be used in connection with State Route 44 through the Village of Bradley, Illinois.

The plaintiff filed a declaration and an amended declaration, to each of which the court sustained general demurrers. The plaintiff then filed his second amended declaration and by agreement of parties, he was allowed to amend that pleading and it was ordered by the court that the general and special demurrer filed by the defendant stand as a demurrer to said second amended declaration.

The declaration is very lengthy, but stripped of all superfluous verbiage, the first count alleges in substance, “That at the time of lowering Broadway and now plaintiff is the owner of Lot 26 in Block 39 in the Village of Bradley, which was improved with a two-story building, the lower floor of which was used as a repair and machine-shop, and the upper floor was used for residence purposes; that said property abuts on Broadway, a street in the Village of Bradley, and that the State of Illinois, through its Department of Public Works and Buildings has constructed State Route 44 over said Broadway; that said Route crosses the Illinois Central and New York Central Railroads through a subway under the tracks, and that immediately west of the Illinois Central Railroad is a street called West Avenue, and one block west of West Avenue, there is another street called Washington Avenue, both of which streets run in northerly and southerly directions and cross Broadway; that in order to construct Route 44 and eliminate a grade crossing, the Department by its Division of Highways filed an application with the Illinois Commerce Commission, to which the Village of Bradley was made a party, and certain hearings were had before that Commission at which the defendant voluntarily appeared, and that said Commission entered orders in and by which it apportioned the cost of constructing such crossings by means of a subway, and that said order apportioning the cost of said subway, provided that the Village of Bradley at its own expense shall secure or cause to be secured and shall dedicate for street purposes the necessary right of way through the private properties for the extension of Broadway in an easterly direction to Schuyler Avenue, and make certification to the railroads thereof, and in addition thereto, shall assume any and all consequential damages to abutting properties on account of lowering Broadway, and permit drainage connections for the subway with the public sewers of the Village, and that the Village undertook and did carry out such orders in part. ’ ’

The count then sets out in “haec verba” the order of the commerce commission. The count further avers “the making of plans for the work, and that in building the subway, the roadway of Broadway in front of plaintiff’s property was lowered so that the grade in the subway is 12 feet below the natural surface of Broadway before the subway was built.”

The count then avers, “That plaintiff filed a claim for said damages with the Court of Claims of the State of Illinois, ’ ’ but that the court dismissed the claim and held that the Village of Bradley was liable for said damages, and that said judgment is in full force and effect and is set out in “haec verba” in said count. The count then concludes “that by reason thereof, plaintiff says he is injured and his property has been depreciated and he has suffered damages to the extent of $5,000.00 and that under the Constitution and Laws of the State of Illinois, he is entitled to recover. ’ ’

, The second count is practically the same as the first count and in addition to the allegations of the first count, states “that the subway does not cover the entire width of Broadway and that it is surrounded by retaining walls on either side thereof, extending above the grade of the hard road and also extending to-wit> 5 feet above the natural surface of the old grade, and that by reason thereof, West Avenue and an alley in the middle of Block 39 have been closed so that it was necessary for traffic to detour by way of Washington Avenue in order to cross Broadway.”

The third count alleges “that plaintiff is the owner of the premises; that during the years 1926 and 1927 the State constructed State Aid Hard Road 44 over Broadway in the Village of Bradley,” that said road crosses the Illinois Central and New York Central track in a subway; that the plans of said subway had the approval of the Village of Bradley; that in order to gain authority to construct said subway and approaches the Department of Public Works and Buildings, Division of Highways of the State of Illinois, filed its application with the Illinois commerce commission and made the defendant a party thereto. It then sets out the order of the commission in full, which order so far as it affects the Village of Bradley, provides that the village pay for all needed rights of way for the relocation of the highway crossing and pay any and all consequential damages to abutting property and permit sewer connection with its public sewers. It further alleges that said order is in full force and effect; that said subway was constructed under said order; the grade in front of plaintiff’s premises was depressed, that the Village of Bradley undertook to carry out the orders of said commission and did carry them out, except as hereinafter complained of. The plaintiff further avers that said subway was constructed in such a careless, negligent and unlawful manner that blasting and dynamite charges in the course of said construction greatly damaged the windows, doors and other parts of the house of said plaintiff located on said premises, and that stones, wood and debris were thrown high into the air by said blasting and dynamite and were hurled upon the roof thereof and other parts, causing great damage thereto, to wit, damages to the extent of $5,000, and that the Village of Bradley refuses to pay said damages.

To this declaration, the defendant filed a general and special demurrer, stating 12 causes of demurrer, but owing to the last amendment to the declaration the defendant now relies on his fourth, fifth, sixth, seventh and eighth causes for demurrer, and the special demurrer to the third count of the declaration. The court overruled the demurrer and the defendant elected to abide by its demurrer. A jury was impaneled to assess plaintiff’s damages. Evidence was heard and the jury brought in two verdicts. One assessing the plaintiff’s damages at $400, as a result of lowering the grade of Broadway and by the construction of the subway in question and the closing of West avenue and the alley between West avenue and Washington avenue crossing Broadway. The second verdict assessed the plaintiff’s damage to the house caused by blasting during the construction of the subway, causing rocks and other debris being thrown against the house, at $250.

To review the findings of the jury and to test the sufficiency of the declaration, the Village of Bradley brings the case to this court on appeal.

The second cause for demurrer “questions the validity of the order of the commerce commission.”

The fourth cause assigned questions the power of the Illinois commerce commission to require the defendant to obtain the land by way of condemnation and by requiring them to pay the damages to the property, etc.

Causes five and six, “the demurrer raises the question of the sufficiency of the declaration because even if the orders were valid, the declaration does not allege that the commerce commission certified its findings to 'the defendant as required by Sec. 58 of the Utilities Act.”

Cause seven, “questions the sufficiency of the order' set forth in the declaration as to the ascertainment and apportionment of the cost between the defendant and utilities involved.”

Cause eight sets forth “that the damages in each count of the plaintiff’s declaration are general damages suffered by the entire public.”

The special demurrer to the third count sets forth “that the count is double in that it joins in one count a claim for consequential damages on real property based on an alleged agreement by said village incorporated in the order of the commerce commission; also a further claim for actual damages caused by the negligence of the person or persons constructing said highway.”

It is earnestly insisted by the appellant that the order of the commerce commission apportioning the cost of building the viaduct in question and ordering the Village of Bradley to pay the consequential damages to property which had been damaged by reason of the construction of said viaduct is invalid and not binding upon appellant.. The declaration charges that, in the proceedings before the commerce commission to have the costs apportioned to build this viaduct, the Village of Bradley was made a party to said proceeding, and that the commerce commission ordered the Village to assume, among other things, consequential damages to the property taken in construction of the subway. It also alleges that the Village of Bradley accepted the benefit derived from said order, but refused to pay the plaintiff his consequential damages by reason of the construction of the subway. The defendant by filing a demurrer to the declaration admits these charges to be true, and in our opinion, the declaration states a good cause of action.

After having been made a party to the proceeding and participating in the hearings, the Village of Bradley cannot now be heard to say that they are not bound by the order of the Illinois commerce commission. This question was decided by our' Supreme Court adversely to the contentions of the appellant in the case of Chicago, N. S. and M. R. Co. v. City of Chicago, reported in 331 Ill. 360. In this case the City of Chicago was made a party to the hearing before the Illinois commerce commission and appearing by their city attorney and other counsel. A dispute arose between the city and the railroad company relative to the right of the railroad for the use of their tracks in the City of Chicago. The City of Chicago contended that their city attorney had no right to bind the City of Chicago by any agreement or otherwise before the commerce commission.

In passing upon this question, the court, on page 374 in this opinion says: “Appellees contend that the city is not bound by such representation, as its counsel had no authority to bind the city council in such manner. Whether the city is bound by the consent of its counsel to the order of the commission is of no consequence here. It is admitted that it had notice and appeared at the hearing. Under section 67 of the Public Utilities Act the city had a right to a review of the decision of the commission by appeal to the courts. Its remedy was complete had it seen fit to follow it. (Hoyne v. Chicago and Oak Park Elevated Railroad Co., 294 Ill. 413.) It took no appeal and sought no review of the order of the commission, and therefore that order became final and binding on the city. Section 68 of the Public Utilities Act provides that when no appeal is taken from the order or decision of the commission as provided in the act, the parties affected by such order are deemed to have waived the right to have the merits of the controversy reviewed by a court. Section 68, above referred to, also provides that where the right of appeal is waived there shall be no trial of the merits of any controversy in which such order or decision was made, by any court to which application shall be made for a writ to enforce the same, or in any other judicial proceeding. The cross-hill of the city in this case is a collateral attack on the order of the commission. (Hoyne v. Chicago and Oak Park Elevated Railroad Co., supra.)”

It is our opinion that after the city was made a party to and taking part in the hearing before the commerce commission, and not taking an appeal from such decision as the statute provides, it cannot now be heard to say that it is not bound by this decision. In attempting at this time to question the validity of the order of the commerce commission would be a collateral attack and cannot be done in a proceeding of this kind.

The fifth and sixth causes for demurrer, “that the Commission did not certify its finding to the defendant as required by section 58 of the Utilities Act” we think are without merit. The declaration alleges that the village was made a party to the proceedings and that it accepted the part of the order that was beneficial to the city, but refused to pay the consequential damages. It had full knowledge of what this order was, and is bound thereby. This also is a collateral attack on the order of the commerce commission, and under the law cannot be done.

The appellants assign as error that the court gave to the jury appellee’s instruction No. 3, namely: “You are instructed that while it is the law that the fair cash market value of the property may be determined with reference to the best and most profitable use which could have been made of it before the construction of the subway and afterwards, the law contemplates that such use shall be for legal purposes or business.” The appellants in support of their contention rely on Freiberg v. South Side Elevated R. Co., 221 Ill. 508. On examination of that ease it is disclosed that at the time of the hearing of the case, the State law and the city ordinances made it legal to license saloon and dance halls. The evidence showed that the property in question in this case was what is commonly called a disreputable saloon and dance hall. The question arose about the value of the-property that had been taken in an eminent domain proceeding, and the court in their opinion say: “Neither a saloon or a dance hall is illegal per se.” In 1924, the Illinois Prohibition Act was in full force and effect. The appellant’s contention that they should have been allowed to show that this property would be more valuable for a soft-drink parlor which would violate the Prohibition Act, seems to us without any merit. Such business now is illegal per se. It was certainly the duty of the City of Bradley, and especially the city attorney, who appears of record in this case representing the city, to see that such a condition did not exist in the Village of Bradley. The appellant in its motion for a directed verdict admits that under the pleadings at the hearing of the evidence of damages, that the village is liable for nominal damage. In our opinion, the court did not err in giving the third instruction for the plaintiff as it would affect only the amount of damages. If it was error the appellant is. in-no position to raise this question for the reason we find no assignment of error in the abstract claiming that the amount of damages is excessive.

For the reasons we have stated relative to the validity of the order of the Illinois commerce commission and that the same is a valid and binding order on the defendant, the court did not err in refusing to give appellant’s instructions Nos. 12 and 13.

Complaint is made because the jury brought in two separate verdicts in this case. This was an irregularity but we cannot see how the appellant has been damaged in any way by the jury’s form of verdicts. Bach verdict shows distinctly what, in the jury’s opinion, the damages were that had been sustained by the appellee. Under the evidence the jury was justified in bringing in a verdict for the amount they did. In the case of Roberts v. Gates, 64 Ill. 374, the facts are not similar to this case. In the Roberts case the plaintiffs were suing in different capacities, one an individual and another as a partnership. Here the plaintiff’s right that she is seeking to enforce against the appellant is the amount of damage she has sustained to her property.

We think, under the circumstances, it is not reversible error to have the verdicts in the form they are. We find no reversible error in the case and the judgment of the circuit court of Kankakee county is hereby affirmed.

Judgment affirmed.


text:
    Cora A. Blodgett, Appellee, v. Maud C. Blodgett et al., Appellants.
    Gen. No. 8,378.

      Opinion filed March 15, 1932.
    Rehearing denied May 4, 1932.
    William L. Pierce, Charles W. Ferguson, James M. Huff, Alexander J. Strom and Marshall & Marshall, for appellants; Alexander H. Marshall and Maurice Gr. Shanberg, of counsel.
    Patrick H. O’Donnell and Boy F. Hall, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

Cora A. Blodgett filed a hill of chancery in the circuit court of Boone county, praying for the partition of certain lands in said county. She claims an interest in this property as the widow and heir at law of Hudson D. Blodgett, deceased. The bill was amended from time to time and finally a bill was filed charging that James S. Blodgett during his lifetime owned the premises in question in this suit; that James S. Blodgett was the father of Hudson D. Blodgett and Andrew T. Blodgett, and Eva M. Noon.

James S. Blodgett, the father, died in January, 1903, leaving a last will and testament wherein he left to his widow, Hersey F. Blodgett and his children, Andrew T. Blodgett, Hudson D. Blodgett,'and Eva M. Noon, all of his property, including 533 acres of land situated in Boone county, Illinois. Hersey F. Blodgett, the widow of James S. Blodgett, departed this life in 1916. At the time of the death of Hersey F. Blodgett, Andrew T. Blodgett had one child named Maud 0. Blodgett, who is the appellant in this case. Andrew T. Blodgett died May 24, 1923, leaving no widow, but he left the said Maud C. Blodgett as his only child and heir at law. Hudson D. Blodgett married and had a son by his first wife. This son was dead at the time this suit was instituted. Hudson D. Blodgett died February 1, 1921, and at the time of his death was a resident of Boone county. Surviving him is his widow, who is the appellee in this case. He had no living children, nor descendants of any child or children at the time of his death. Andrew T. Blodgett and Eva M. Noon, his brother and sister, were both living at the time of Hudson Blodgett’s death.

It appears from the record that the 533 acres of land in question which were left by James S. Blodgett to his widow and children, have been sold through the circuit court in a partition suit instituted by Andrew T. Blodgett in Boone county. That sometime prior to the filing of the partition suit, judgment had been taken by Andrew T. Blodgett against his brother, Hudson D. Blodgett; the total amount of the judgment obtained by Andrew T. Blodgett against his brother Hudson was $2,230.73; they were taken under a power of attorney to confess judgment on what is commonly called judgment notes. Judgment was taken on November 20, 1918. In the bill for partition filed by Andrew F. Blodgett was set forth the fact that judgments had been obtained by Andrew against his brother, Hudson, and that said judgments were owned and possessed by the said Andrew, and said judgments were a lien on the interest of Hudson D. Blodgett in said 533 acres of land. On the hearing of the case at the partition suit the court found and decreed that the judgments were valid and existing judgments. The premises were sold at the partition sale for the sum of $60,136. Andrew T. Blodgett purchased the farm and received a master’s deed for all of said property. The cost of the partition proceeding was $2,322.49. This amount was deducted from the sale price, leaving a balance of $57,813.51 to be divided equally between the two brothers and the sister. The share of each amounted to the sum of $19,271.17. Andrew T. Blodgett did not pay anything to the master in chancery in payment for his deed for the premises, except the amount of the costs as originally stated. He presented a receipt to the master in chancery of Eva M. Noon for her one-third interest in the property, and also a receipt from Hudson D. Blodgett for his interest in the property.

In the amended bill filed by Cora A. Blodgett, it is charged that the judgments taken by Andrew T. Blodgett on the notes of Hudson D. Blodgett were fraudulent and it was done for the purpose of defrauding her of her marital rights in the property of her husband, Hudson D. Blodgett; that Hudson D. Blodgett did not owe his father James S. Blodgett, nor Andrew T. Blodgett any sum of money whatsoever, and that there was no consideration for the giving of the notes. The bill charges and states the fact to be that Andrew T. Blodgett died during the pendency of the suit, and Maud C. Blodgett is the only child and heir at law to inherit her father’s estate; that on account of the fraud practiced upon appellee by Andrew T. Blodgett and her husband Hudson D. Blodgett, Maud C. Blodgett held the proceeds of the sale of the partitioned premises in trust for the' heirs of Hudson D. Blodgett, deceased; that the same were so held and had been converted from real into personal property, that she being the widow of Hudson D. Blodgett was entitled to the full amount of the distributive share of Hudson D. Blodgett, deceased, with interest from the date of the sale of the premises at the partition sale.

Maud C. Blodgett filed a cross-bill in said proceeding and alleged that her grandfather, James S. Blodgett, was at the time of his death seized in fee simple of all the real estate in question, and departed this life the 11th day of January, A. D. 1903, leaving a last will and testament, and attaches a copy of the will of - James S. Blodgett, deceased. The cross-bill sets forth the relationship of the parties to this suit, to James S. Blodgett, and claims according to the last will and testament of her grandfather that at the death of Hudson Blodgett, the real estate of her grandfather became vested in her father, Andrew T. Blodgett and her aunt, Eva M. Noon, and prayed that partition may be had of the premises in question. Cora A. Blodgett filed her answer denying the construction placed upon the will of James S. Blodgett, deceased, by the cross-bill as contended by the appellants.

It appears from the evidence that about the time the proceeding was instituted for the sale of these premises at the original partition suit, the complainant, Cora A. Blodgett, had filed a suit for separate maintenance against her husband, Hudson D. Blodgett, and she alleged in her bill that the notes in question on which the judgments were obtained by Andrew T, Blodgett against his brother, Hudson Blodgett, were forgeries and made for the expressed purpose of defeating her marital rights. The original bill was filed at the September Term, 1922. The pleadings herein, the evidence, arguments, etc., were continued from time to time and the case was not finally disposed of until the 21st day of February, 1930. The court found and decreed that the partition proceedings were a fraud upon the rights of Cora M. Blodgett, and held that the proceeds of the sale of the real estate were impressed with a trust in favor of the complainant, and decreed that Maud C. Blodgett pay to the complainant the sum of $30,882.02, the sum representing the amount of the original sale of Hudson D. Blodgett’s interest in the real estate, one-third of the costs that had been assessed by Andrew T. Blodgett against Hudson D. Blodgett’s estate, together with interest from the date of sale of the premises, etc. From the rendition of this decree, Maud C. Blodgett prayed an appeal to the Supreme Court of the State of Illinois, and the same has been transferred by the said court to this court.

The record in this case is very voluminous and the appellants have assigned numerous matters in which the court erred in his findings. The first is: “That the court erred in the construction of the will he placed on the will of James S. Blodgett, deceased.” We are of the opinion that the court did not err in the construction that he placed on the will of James S. Blodgett, and at the death of Hersey F. Blodgett, the widow of James S. Blodgett, that the property vested in the two sons and the daughter of James S. Blodgett, deceased.

It is next contended that the court erred in finding that fraud had been practiced in taking of the notes, rendition of judgment on the same and the sale of the premises to Andrew T. Blodgett and charging the interests of Hudson D. Blodgett with the amount of the judgment. It would be impracticable in this opinion to discuss all of the evidence bearing upon the question of fraud in the procurement of these notes and involving the partition proceedings. We are of the opinion that the evidence clearly shows that the note purported to have been given by H. D. Blodgett to his father, James S. Blodgett, on April 2,1902, and later indorsed by him, was not given on the date that it bears date. The evidence is uncontradicted that on April 2, 1902, the Peoples Bank of Belvidere, Hlinois, on whose blank form this note is written, had no such notes and had none such until about 10 years after the date that this note purports to have been given. The officers of the bank, the printers, and several others say that the words “capital and surplus of $150,000.00” were not used on their notes until about the year 1912. A photostatic copy of this note clearly indicates that the left-hand edge of the note has been cut off, but the words and figures “capital and surplus $150,000.00” are easily discernible. The evidence shows that people familiar with the handwriting and signature of James 8. Blodgett, deceased, testified that the name “James 8. Blodgett” indorsed on the back of said note was not the true signature of James S. Blodgett, deceased.

This court can come to no other conclusion but that this note was not given until long after the death of James 8. Blodgett and that the “James 8. Blodgett” indorsed on the back of said note, is not in the true handwriting of James 8. Blodgett, deceased; and that James S. Blodgett never had any interest in the purported note in question; that Andrew T. Blodgett had no interest in said note or legal charge against H. D. Blodgett as set forth in said purported promissory note.

In the month of May, 1922, or a little over a year after the death of Hudson D. Blodgett, the widow, Cora A. Blodgett, found, as she describes it, “tucked in between the back and top part of an old davenport in her home, ’ ’ which had been the home of her husband at the time of his death; and said davenport being used in the home at the time and previous to the husband’s death, appellee’s Exhibits Nos. 16, 17, 18 and 19, fastened together by a rusty paper fastener, commonly called a “clip.” These exhibits were introduced in evidence,- — and we think properly so — and showed that on August 2,1920, Andrew T. Blodgett sent his brother Hudson a statement of the account between them. These exhibits show that Andrew Blodgett had kept a correct account of all business transactions between himself and his brother Hudson; that since the partition proceedings and the sale of the property under the same, he recognized that Hudson D. Blodgett had an interest in the same and he has charged him with one-third of all the expense of the same. Taking the whole of the evidence including these statements of account, the manner in which the notes were executed, the fact that the complainant, Cora A. Blodgett, had started a separate maintenance suit against her husband, Hudson Blodgett, and all the facts and circumstances together with said partition suit, this court is of the opinion that the whole transaction was fraudulent and was done for the purpose of defeating the rights of Cora A. Blodgett in her husband’s property.

It is contended by the appellants that even though the appellee proved that the giving of the notes and the partition proceedings were fraudulent as to her marital rights, and were done for the sole purpose of defeating her rights, nevertheless she could not recover in this suit because Hudson D. Blodgett, through whom she is claiming the right to recover the proceeds in the partition suit, is a party to the fraud and courts will not give relief to parties who are in pari delicto. Both parties to this litigation have spent much time in presenting their respective sides on this part of the controversy. Numerous cases have been cited by the appellee as sustaining the proposition that, although the parties to the transaction are in delicto, still they are not in pari delicto, and equity will grant relief to the one who is comparatively innocent, on the ground of public policy. The appellants concede this to be the rule, but say that Hudson D. Blodgett is as much to blame or more so than his brother Andrew in carrying out the alleged fraudulent claim to defeat the rights of his wife. There is no contention that Cora A. Blodgett had anything to do with, or had any knowledge of, the fraudulent transaction until over a year after her husband’s death. As soon as she learned of the fraud that had been practiced against her, she immediately started suit to recover the interest in her husband’s estate, which she claimed was rightfully due her.

She alleged in her bill, which, in our opinion, is sustained by competent proof, that the whole .transaction was for the sole purpose of defrauding her of her rights in her husband’s property. Surely, Cora A. Blodgett, under these circumstances, could not be in pari delicto or a party to the fraud that was practiced against her. She surely should have a right in a court of equity to be granted relief against the fraud that had been practiced against her.

We think the court properly found that Cora A. Blodgett, the complainant in said suit, was entitled to have the relief as prayed for, in her bill of complaint and that the judgment of the circuit court of Boone county should be affirmed.

Judgment affirmed.


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    Roberts Mann and E. C. Curtiss, Appellees, v. Downers Grove Sanitary District et al., Appellants.
    Gen. No. 8,401.

      Opinion filed March 15, 1932.
    Rehearing denied May 4, 1932.
    Daniel S. Wentworth and Henry 0. Nickel, for appellants.
    Bunge & Bunge, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an appeal from the order of the circuit court of Du Page county awarding a writ of mandamus commanding the trustees of the Downers Grove Sanitary District to appropriate and levy, against all of the taxable tracts of land in the district, the sum of $5,000 for the purpose of paying Roberts Mann and E. 0. Curtiss, the appellees, as compensation rendered by them for the district, as commissioners, in special assessment proceedings in the county court of said county and designated therein as assessments numbers 19 and 26. The trustees and the district appear here as appellants.

The said district is a municipal corporation organized and existing under and by virtue of the Sanitary Districts and Sewage Disposal Act, approved June 22, 1917, Cahill’s St. ch. 42, If 316 et seq. (Smith-Hurd Rev. Ill. St. chapter 42.) Section 19 of that act, Cahill’s St. ch. 42, If 334(1), provides that proceedings for the making, levying and collecting special assessments by the district, shall be the same as nearly as may be as is prescribed in the act commonly known as “The Local Improvements Act.”

A proceeding to levy special assessments against lands in the district to be benefited by the proposed improvement hereinafter mentioned, was instituted in the county court of Du Page county on May 21, 1928, by the trustees of the district filing a petition for the levying of such assessments, in pursuance of an ordinance passed by the trustees and known as Ordinance No. 19-A. The improvement provided for in this ordinance was the construction of a plant for the purification and treatment of sewage and including outlet sewer. The ordinance provided for the condemnation of private property to be taken, all of which was at an estimated cost of $675,000. Legal objections to this proceeding were sustained by the county court, and the cause was dismissed by the trustees of the district on June 28, 1929.

The trustees repealed ordinance No. 19-A and adopted ordinance No. 26-A, which provided for the construction of the same improvement contemplated and provided for in ordinance No. 19-A. Both ordinances, so far as they are material to a consideration of the issues presented in this appeal, are exactly the same. On August 12,1929, the trustees filed their petition in the county court for levying the special assessments as provided for in ordinance No. 26-A. This proceeding was pending when the petition for the writ of mandamus was filed on June 4, 1930. On Feb. 27, 1931, a supplemental petition in the mandamus action was filed setting forth that the special assessment under assessment No. 26 had been dismissed by order of the county court on February 14, 1931. It appears dehors the record that on appeal from this order to the Supreme Court, the order was reversed on Oct. 23, 1931. The report of this decision appears in vol. 345 Illinois Reports, page 359. •

Both ordinances provided that, “the sum of $32,500.00 being the amount included in the estimate of the president of said Downers Grove Sanitary District, as the cost of making, levying and collecting the assessment therefor, shall be paid for by special assessment in accordance with the Act of the General Assembly of the State of Illinois, entitled: ‘An Act Concerning Local Improvements,’ approved June 14, 1897, and all acts amendatory thereof and supplemental thereto, and that the said sum of $32,500.00 shall be applied towards paying the lawful costs and expenses attending the proceedings for making said improvement and the costs of making and collecting the assessments therefor.”

In both of the proceedings in the county court, the court made orders, appointing the appellee commissioners to act with the president of the board of trustees of the district to investigate and report to the court the just compensation to be made to the respective owners of private property taken or damaged by the proposed improvement; also to investigate and report what property would be benefited by the improvement and the amount of such benefits to each parcel. The orders further provided that there should be allowed to said commissioners the sum of $2,500 each for their services, as just and proper fees, which sum should be taxed as costs and included in the amount to be assessed in the proceeding. The appellees, as such commissioners, filed assessment rolls and reports in both of the proceedings.

In the petition for the writ of mandamus, it is represented that by force of the statute in such case made and provided, said fees became due and payable ont of the general fund of the district and that the district has no funds with which to pay said judgments; wherefore petitioners (the appellees) pray for a writ of mandamus directed to the trustees of the district commanding them to appropriate and levy on all taxable property in the district, as equalized for State and county purposes, a sufficient amount of money to satisfy said judgments.

All of the above matters, excepting the reference to the recent Supreme Court decision, fully appear in the pleadings filed in the mandamus action. Before submitting the case to the court, the parties stipulated to submit the cause upon the petition and the answer filed thereto; that the issues raised by the pleadings be considered by the court; it be understood that the questions submitted are questions of law as determined by the pleadings; that the value of the services rendered by the appellees, as such commissioners, is not at issue, nor do appellants waive any rights or defenses which they may have in any other proceeding hereafter instituted by appellees for the recovery for services rendered as such commissioners.

After a hearing the circuit court found the issues for the appellees; that they have voluntarily reduced their claim to $5*000; and ordered that the writ of mandamus issue commanding the trustees of the district to appropriate and levy for the year 1931 a sufficient amount of lawful taxes to pay the sum of $5,000 to the appellees together with lawful interest on said amount from the date of the entry of the order until paid, and that appellants pay the costs of suit.

The writ of mandamus is a summary writ issued from a court of competent jurisdiction commanding the officer to whom it is addressed to perform some specific duty which the relator is.entitled of right to have performed, and which the party owing the duty has failed to perforin. It is an extraordinary remedy, and one petitioning for such writ must have a clear and undoubted right to the relief demanded. (People v. Nelson, 346 Ill. 247.) The writ can confer upon the respondent no new authority to act and he must be bound to act regardless of the writ. Where the right of the petitioner must first be fixed, or the duty of the respondent must first be determined, the writ will be denied. Hooper v. Snow, 325 Ill. 53; People v. Dunne, 258 Ill. 441.

The above rules governing the issuing of the writ of mandamus have long been established and are not disputed by either party to this appeal. It is their application to the facts in the case, and the legal results arising therefrom, which gives cause for controversy between the parties. The appellees are not asking that a writ be issued directing the district trustees to proceed to levy and collect special assessments and pay their fees from the fund so realized. The trustees had a right to dismiss the proceeding for making assessment No. 19. No special assessment fund will ever exist under assessment No. 19. Assessment No. 26 was pending at the time the petition for mandamus was filed, and so far as the record in this case shows, it is still pending in the county court. The order of the county court fixing commissioners’ fees in that proceeding makes the fees payable out of the special assessments collected. Until the special assessments are exhausted, appellees have not the right to maintain a mandamus action to compel the levying of taxes against all the lands in the district to raise, necessary funds to satisfy the order. State v. City of Superior, 81 Wis. 649, 51 N. W. 1014.

The appellees’ right to the writ must stand or fall on the representation made in their petition that by force of the statute said fees became due and payable out of the general fund of the district and therefore the writ should issue commanding the trustees to levy on all of the taxable property in the district, a sufficient amount of money to satisfy the amount of $5,000 fixed in the order, as their fees. To sustain this position, it is necessary to conclude and determine that by force of the statute, the fees are payable out of the general fund of the district, although the order of the county court provides that they shall be included in the amount to be assessed against the properties in the district to be benefited by the proposed improvement.

It may be granted that under section 94 of the Local Improvements Act, Cahill’s St. ch. 24, H 226, and the decisions in the cases of Gray v. City of Joliet, 287 Ill. 280, and Murrie v. Harper, 249 Ill. App. 586, construing and applying this section, that an action of assumpsit will lie against a municipal corporation to recover fees of special commissioners, earned in a special assessment proceeding in the county court, even though the special assessment proceeding is dismissed before final confirmation and the costs of making the assessments, under the ordinance providing for the proposed improvement, are to be paid out of the special assessments to be collected as provided in the proviso of section 94. That a judgment recovered in such an action, and a proper case being made, may be the basis for an action of mandamus, to compel the municipal corporation to levy general taxes to pay the judgment, cannot be disputed. This being true, the contention of the appellants that the order of the county court, in assessment No. 19 fixing the fees of the appellees, is not final and would only become final on the final confirmation of the proceeding, is beside the point. The decision in the case of Bond v. City of Hoopeston, 168 Ill. App. 617, is contrary to that contention.

By relying on the provisions of section 94 of the Local Improvements Act, Cahill’s St. ch. 24, f 226, the appellees cannot escape the fact that the amount of their fees is not fixed except in the order of the county court. The liability of the district to an action to pay for appellees’ services out of the general fund of the district, does not create or establish a money judgment against the district. Neither the amount nor the validity of appellees’ claim is admitted in the answer of the appellants. It is obvious that the appellees must base • their claim to the right to the writ of mandamus upon a valid order of the county court fixing a definite amount as being due them which becomes a money judgment against the district, payable out of its general fund.

It is urged by the appellants that the order of the county court is void for the reason that the county court had-no jurisdiction of the assessment proceeding in which the order was rendered. This objection to the order is fully set forth in the answer of the appellants. A copy of the ordinance known as No. 19-A is attached to the answer; the questions of law presented to the court were to be decided as per stipulation, by the pleadings. The Supreme Court has held that a valid ordinance is the foundation of any improvement by special assessment and cannot be dispensed with. Unless a valid ordinance is shown, there is nothing on which a subsequent proceeding can rest. (Village of Lovington v. Gregory, 287 Ill. 169; City of Chicago v. Harwell, 260 Ill. 565.) The lack of jurisdiction on the part of the county court in the assessment proceeding was an available defense to the mandamus action. (Commissioners of Highways v. Drainage Dist., 207 Ill. 17.)

This objection of the appellants is based on'their contention that the ordinance which provides for the construction of a plant for the purification and treatment of sewage is void for the reason that section 19 of the act creating the district, Cahill’s St. ch. 42, If 334(1), does not authorize the construction of such an improvement by special assessment. The levy of the special assessments had for its ultimate object the taking of private property without the owner’s consent, and the power to make such assessments must be clearly conferred and strictly pursued, and any doubts as to the existence of the power must be resolved against those attempting to exercise it. Commissioners of Hartwell Drainage and Levee Dist. v. Mickelberry, 257 Ill. 509. Section 19 does not expressly authorize the construction of a plant for the purification and treatment of sewage.

Since June 29, 1923, section 19 reads in part as follows: “The board of trustees shall have the power to build and construct and to defray the costs and expenses of the construction of drains, sewers, or laterals, or drains and sewers and laterals and other necessary adjuncts thereto, including pumps and pumping stations, made' by it in the execution or in furtherance of the powers heretofore granted to such sanitary district by special assessment or by general taxation, as they shall by ordinance prescribe.” In the case of City of Chicago v. Green, 238 Ill. 258, and Judge v. Bergman, 258 Ill. 246, the Supreme Court has refused to lay down, in advance, a hard and fast rule by which to determine what is and what is not an “adjunct” when the word is used in a sanitary district act; each case, the court holds, must be determined by its own facts and circumstances. Furthermore, the ordinance providing* for the payment of the cost of the construction of the plant for the purification of the sewage must be tested by the rule whether the proposed improvement would enhance especially the value of adjacent property over and above the amount of general benefits to the whole municipality therefrom. Judge v. Bergman, 176 Ill. App. 42.

It is therefore a question of grave legal doubt if the ordinance is valid. The question of the validity of the ordinance is a question of great importance to the property owners in the district, and all other persons similarly situated. Their rights to test the validity of a similar ordinance cannot be foreclosed in this action for a writ of mandamus. Great confusion would result by this court passing upon the validity of the ordinance in this appeal from the judgment of the court awarding the writ. “When a writ of mandamus is asked, the court may inquire whether it will operate impartially, create confusion and disorder, and whether it will or will not promote substantial justice. Courts, in the exercise of the discretion with which they are vested, may, in view of the consequences attendant on the issuing of a writ of mandamus, refuse the writ, though the petitioner has a clear legal right for which mandamus is a proper remedy. . . . The court may act on existing facts and view the case with reference to the consequences of its action.” Kenneally v. City of Chicago, 220 Ill. 485. To the same effect is the case of Cawthon v. State, 62 Fla. 133, 56 So. 404. We therefore decline to pass upon the validity of the ordinance in question. For the reasons above stated, the judgment of the circuit court must be reversed and remanded.

In addition to the cases cited herein, the court desires to add that in considering this case, arising on questions of law based on the pleadings, we have given attention to the cases of the People ex rel. German Ins. Co. v. Getzendaner, 137 Ill. 234, and People ex rel. Com’rs of Drainage Dist. v. Schwartz, 244 Ill. App. 137.

Reversed and remanded.


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    John C. Kadyk, Receiver for the Whiteside County State Bank, Appellant, v. Bayard T. Abbott et al., Appellees.
    Gen. No. 8,431.

      Opinion filed June 7, 1932.
    A. M. Blodgett, for appellant.
    H. J. Ludens, Jacob Cantlín and L. L. Winn, for certain appellees.
    Jacob Katz, for appellee Bayard T. Abbott; K. B. ' Czarnecki, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

John C. Kadyk, as receiver for the Whiteside County State Bank, filed a creditor’s bill in the circuit court of Whiteside county for the purpose of reaching 50 shares of common stock of the Commonwealth Edison Company of Chicago. This stock, it is alleged, was owned by Alfred N. Abbott, late of Whiteside county, Illinois, during his lifetime, and is now the property of Bayard T. Abbott, one of the appellees in this case. It is alleged that Bayard T. Abbott received this stock by the terms and provisions of the 3rd and 4th paragraphs of the last will and testament of his father, Alfred N. Abbott, now deceased. The bill sets forth that Sarah G-. Abbott was the wife of Alfred N. Abbott and is now living; that Frances Culver and Howard Abbott were appointed and qualified and are now acting as executors of the last will and testament of the said Alfred N. Abbott, deceased; that appellant bank is informed and believes that said stock is in the hands of said executors and that no part thereof has been set apart or delivered to said Bayard. T. Abbott j that it might be that said stock has been set apart to Bayard T. Abbott since Sarah GK Abbott, one of the appellees herein, had only a life use and income in said 50 shares of stock and that said stock may have been turned over to Sarah Gr. Abbott by the executors of said estate. The bill asks for discovery and makes Bayard T. Abbott, Commonwealth Edison Company, Sarah Gr. Abbott, Frances D. Culver, and Howard Gr. Abbott, parties defendant thereto. The bill does not make Frances D. Culver and Howard Gr. Abbott as executors of the last will and testament of said Alfred N. Abbott, deceased, parties- defendant to the bill.

The Commonwealth Edison Company, Bayard T. Abbott, Sarah Gr. Abbott, Frances D. Culver and Howard Gr. Abbott as executors of the last will and testament of Alfred N. Abbott, deceased, filed demurrers to said bill in said court. The demurrer of the Commonwealth Edison Co., Sarah -Gr. Abbott, and Frances D. Culver, Howard Gr. Abbott as executors of said estate in their demurrers denied the right of the appellant to the relief he seeks, and denies his right to maintain the bill in a court of equity. Each of said demurrers sets up the fact that none of the said parties has any property in their possession belonging to Bayard T. Abbott, nor do they have any property in their possession to which thé appellant has any claim by reason of any judgment that the appellant has against Bayard T. Abbott.

The demurrer of Bayard T, Abbott challenges the sufficiency of the bill and denies that appellant is entitled to any discovery from or against the attached matters contained in said bill. The demurrer alleges that the complainant has a complete and adequate remedy at law; that it appears from the complainant’s bill that Frances D. .Culver and Howard Gr. Abbott are now duly appointed and acting as executors of the last will and testament of Alfred N. Abbott, deceased; that said parties as such executors are necessary parties to the said bill and have not been made parties to this proceeding.

The record discloses that the chancellor sustained the demurrer to the bill and entered an order reciting that a hearing was had upon the bill of complaint, and the demurrer of the Commonwealth Edison Company and Bayard T. Abbott, but it did not include the demurrer of Sarah Gr. Abbott and Frances D. Culver and Howard Gr. Abbott as executors of the estate of Alfred N. Abbott, deceased. The order and decree sustained the demurrer and dismissed the bill for want of equity, and an appeal was prayed by the appellant, the complainant, and it is now before this court for review.

The receiver — who is appellant in this court — contends that the court erred in sustaining the demurrers of the Commonwealth Edison Company, and Bayard T. Abbott, and erred in dismissing the bill of complaint for want of equity; that the court also erred in rendering a decree in favor of the appellee against the appellant; that error was committed in denying the relief prayed for. It is also claimed as error that the court did not include in its order and decree the ruling on the demurrer of Sarah Gr. Abbott, Frances D. Culver and Howard Gr. Abbott as executors of the estate of Alfred N. Abbott. The appellant claims that the hearing as had was on all of the demurrers filed in said case.

Bayard T. Abbott filed a motion in this court for permission to file briefs; also a motion to dismiss this appeal, claiming that the order of the circuit court is not an appealable order as it shows on its face that all of the demurrers were not disposed of at the time of the hearing. The court below in its order sustained the demurrer and dismissed the bill for want of equity. liThe appellant by this action ’of the court had no remedy, except an appeal to this court, and we are of the opinion that the case is properly before ns. -The motion of Bayard T. Abbott is hereby overruled.]

' One of the causes set forth in Bayard T. Abbott’s demurrer is that the bill shows on its face that there were necessary parties that were not made parties to the bill. These parties have entered their appearances in this case by filing their demurrers and are now properly before the court; so it is not necessary further to discuss this cause of demurrer. (

The bill charges in part: “Your orator further represents that in and by said last will and testament of the said Alfred N. Abbott, deceased, the defendant Bayard T. Abbott was bequeathed and devised fifty (50) shares of common stock in the Commonwealth Edison Company of Chicago, Illinois, as by said last will and testament of the said Alfred N. Abbott, deceased, now on file in the office of the Clerk of the County Court of said Whiteside County, will more fully appear, reference being had thereto, and that Sarah Gr. Abbott widow of the said Alfred N. Abbott and mother of the defendant Bayard T. Abbott is to have the use or income from said Fifty (50) shares of stock for and during the period of her natural life, as will more fully appear from said last will and testament of the said Alfred 1ST. Abbott, deceased, reference being had thereto.”

In the brief and argument of appellees filed herein they set forth what purports to be the 3rd and 4th clauses of the last will and testament of Alfred N. Abbott, deceased. There is no record that this is a true copy of the last will and testament of Alfred N. Abbott as there is no copy of the will filed in the case. All of the parties to this litigation have argued the matter as if the will was properly before this court for construction.

It will be noted that the bill charges that in said last will and testament of said Alfred N. Abbott, the defondant Bayard T. Abbott was bequeathed 50 shares of common stock in the Commonwealth Edison Company and that Sarah G-. Abbott is to only have the use or income from said stock during her life. This is a positive statement that the stock was bequeathed to Bayard T. Abbott. ¿_In the construction of wills the law favors that construction that favors the vesting of estates at the earliest possible moment, and estates devised will vest in interest at the death of the testator unless some later time for their vesting is clearly expressed by the words of the will, or appears by necessary implication. Fay v. Fay, 336 Ill. 299. )

(This will gives these 50 shares of stock to Bayard T. Abbott, but he is not to enjoy the use of the same until after the death of his mother. The testator could create an estate for life in personal property of a durable nature with remainder over the same as if the property was real estate and in such a case the property remaining has to be distributed to the remainderman, and the possession is in the life tenant during the life estate. Dean v. Northern Trust Co., 266 Ill. 205, 210; Ward v. Caverly, 276 Ill. 416.)

In the case of Nicol v. Morton, 332 Ill. 533, 543, the court says, “Under the codicil there was nothing appellants were to do other than to take at the termination of the prior estates. The will did not require that they be in existence at the time of distribution or that they should attain a certain age or meet any qualification of any nature whatever. There was a grant othe corpus of the estate to the trustee during the interim between the death of the testator and the time for distribution to appellants. There were prior interests created in the corpus during the interim. If the gifts to the appellants had been at the death of the widow and there had been no reference to a period of twenty-five years there could be no question but that the interest of appellants would be vested.”

/•

(It is our opinion that Bayard T. Abbott had a vested interest in the 50 shares of stock of the Commonwealth Edison Company subject only to his mother’s rights during her natural life.)

fit is urged by the appellee that the demurrer to the bill should be sustained for the reason that the complainant has a complete and adequate remedy at law. We see no merit in this contention as we know of no remedy that would be adequate for the purpose of satisfying the appellant’s judgment against Bayard T. Abbott.) He was not entitled to immediate possession of this stock, and the widow is entitledju the income thereof for and during her natural life. [The bill prays for discovery to find who has actual possession of the stock, and we think, on examination of the bill, that on its face it states a good cause of action in such plain terms that each and every one of the defendants should know just what the charge is that they would have to meet)

fThere is another reason why the demurrers of the Commonwealth Edison Company, Sarah G-. Abbott, Frances D. Culver and Howard G. Abbott, as executors, etc., should be overruled. Each of these demurrers challenges the sufficiency of the bill, and then proceeds to deny that they have any property that belongs to Bayard T. Abbott. This is a matter of defense and cannot be set forth as a ground for demurrer to challenge the sufficiency of the bill) It is commonly called a speaking demurrer, which the authorities hold is bad practice and must be overruled. In the case of Woods v. Colony Bank, 114 Ga. 683, 40 S. E. 720, the court in discussing a similar demurrer says: “Those portions of the demurrer which allege that the bank had nothing to do with the alleged forged paper, except to forward it for collection, set up matters of defense and not of demurrer and should have been overruled as ‘ speaking. ’ ” Baltimore & O. R. Co. v. Ritchie, 31 Md. 191, 195; Royal Ins. Co. v. Clark, 61 Minn. 476, 63 N. W. 1029; Puterbaugh’s Chancery Pleading, Illinois Edition, page 13; Harding v. American Glucose Co., 182 Ill. 551, 641.

In some cases it is permissible to demur to a part of the bill and answer other parts, but that has not been attempted in these demurrers, but they challenge the whole declaration. For the reasons stated in this opinion the judgment of the circuit court of Whiteside county is hereby reversed and the case remanded.

Reversed and remanded.


text:
    George D. Greenough, Appellant, v. J. B. Peterson et al., Appellees.
    Gen. No. 8,479.

      Opinion filed June 7, 1932.
    Ward, Ward & Scheineman, for appellant.
    McCalmont, Ramsay & Little, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

On July 28, 1924, in the circuit court of Whiteside county, the appellant secured a judgment against J. B. Peterson, one of the appellees, for $4,653.81 and costs. A fieri facias on the judgment was returned by the sheriff of that county indorsed “nulla bona.” The sheriff has been unable to serve succeeding similar executions on J. B. Peterson, he being a nonresident of this State. Said appellee is a son of Carrie B. Peterson. Carrie B. Peterson is one of the beneficiaries mentioned in the will of her father, John P. Bickert, deceased. The will was probated in the county court of Whiteside county on November 2,1891.

Being of the opinion that the will gives to J. B. Peterson a vested interest in lands which were purchased by the executors under directions contained in the will, the appellant filed his bill in the circuit court of said county, praying that the court determine the interest of J. B. Peterson in the real estate and that the court order his interest therein sold by the master in chancery, subject to the interest of Carrie B. Peterson, to satisfy said judgment. J. B. Peterson, Carrie B. Peterson, and Frank A. Van Osdol, the sole executor of the will, and other appellees, Emmerson Peterson, Frank Peterson, the brothers, and Mary Ardapple, the sister of J. B. Peterson, were made parties defendants to the bill.

A general demurrer to the bill by the appellees was' sustained on the ground that the will gives to J. B. Peterson a contingent interest in the real estate. The bill was dismissed for want of equity. The only question submitted to this court is whether the will of John P. Bickert gives to J. B. Peterson a vested or a contingent interest in the said lands.

By the first paragraph of his will the testator gives and devises all of his real and personal estate to his executors, or their successors in office, to have and to hold the same to themselves for and upon certain uses and trusts. The clauses of the will contain directions to the executors which are designed to carry out the intention of the testator by means of the trust created by the will. By the first five clauses of the will the executors are directed to pay the debts of the testator; to give and deliver to Jennie A. Bickert, testator’s widow, all household furniture and goods, the use of the homestead for life, and $1,000 in cash; to give to Carrie B. Peterson $1,000 in cash.

By the sixth clause the executors are “to convert J all my remaining personal property into cash, and in- j vest the same in good rentable farming real estate in j' Whiteside County, Illinois, as soon as the same cam conveniently and prudently be done after my decease (and within five years after my death at most). It being my wish and direction to have all my remaining property invested in and kept in good rentable farming real estate in Whiteside County, Illinois, for and during the natural lives of my said wife and daughter. ’ ’

The seventh clause is as follows: “to handle, control and invest, rent and care for all of my said remaining property for and during the term of my said wife and daughter’s natural lives.”

By the eighth clause the executors are directed to pay to the widow one-third of the net annual interest, rent and profits accruing from said remaining property during her lifetime, and the remaining two-thirds thereof to pay to Carrie B. Peterson during her lifetime.

■ The ninth clause provides that in the event of the death of Jennie A. Bickert before the death of Carrie B. Peterson, then Carrie B. Peterson shall be given the homestead and the whole of the net income from said remaining property during her lifetime “and upon the death of my said daughter after the death of my said wife to divide and convey absolutely to the children of the body of my said daughter, Carrie B. Peterson, share and share alike all my said remaining property.

“Tenthly: In the event of the death of my said daughter before the death of my said wife, to give, pay and deliver to the children of the body of my said daughter or their guardian, share and share alike, during the remainder of the natural life of my said wife, two-thirds (Y) of the net annual interest rent and profit, accruing on my said remaining property and upon the death of my,said wife after the death of my said daughter to divide and convey absolutely to the children of the body of my said daughter Carrie B. Peterson share and share alike all my said remaining property.

“Eleventhly: Should there be, on the happening of the contingencies hereinbefore provided for a final division and conveyance of my said remaining property, no child, children or descendants of a child of my said daughter Carrie B. Peterson, then I direct that my Executors or their successors in office to divide and convey all my said remaining property to the heirs of my three brothers and my son-in-law Henry Peterson share and share alike each brother’s heirs to have one-fourth (%) thereof share and share alike and my son-in-law Henry Peterson the other fourth, and should my said son-in-law Henry-Peterson be dead then all of said remaining property to be divided and conveyed share and share alike between the heirs of my three brothers.”

Excepting the rule in Shelley’s case, there are no rules or reasons holding that an estate is contingent or vested, which are a fixed standard, that applied to the words of a will definitely determine the intention of the testator to say whether a devise or legacy is vested or contingent. It is proper to take into consideration the established rules for the construction of wills and determine whether they apply to the terms of the will under consideration, if the meaning of the will is uncertain owing to the language used by the testator; but such rules “yield to the intention of the testator plainly expressed.” O’Hare v. Johnston, 273 Ill. 458; Walker v. Walker, 283 Ill. 11.

We are of the opinion that the intention of the testator can be determined from the terms of his will as his intention is plainly expressed by the language of his will, and that such intention is not contrary to law.

The direction to the executors to invest the remaining property of the testator in real estate in Whiteside county is imperative. There is in a court of equity a conversion of such property into realty, and those taking under the will must take the property in the character impressed upon it by the testator. Rankin v. Rankin, 36 Ill. 293; Haward v. Peavey, 128 Ill. 430; Burbach v. Burbach, 217 Ill. 547; Ford v. Ford, 70 Wis. 19, 33 N. W. 188; Ford v. Ford, 80 Mich. 42, 44 N. W. 1057. The trust created by the will is an active one and is not executed by the Statute of Uses, Cahill’s St. ch. 148, ¶ 36. Harris v. Ferguy, 207 Ill. 534.

By the ninth and tenth clauses the testator provides that the real estate, the legal title to which is in the trustees, should, upon the death of the survivors of Jennie A. Bickert and Carrie B. Peterson, be divided and conveyed to the children of the body of Carrie B. Peterson. Under these clauses, if standing alone, the time of the division and conveyance being postponed for the benefit of the estate to provide an income for the widow and the daughter out of the real estate during their several lifetimes, the child or children of the body of Carrie B. Peterson, and the child or children of any or all deceased children of her body, if any, living at the time of the death of testator would take a vested equitable interest, or title, in the land. Armstrong v. Barker, 239 Ill. 389; Walker v. Walker, supra; Cahill’s St; ch. 39, ¶11; section 11, ch. 39, Smith-Hurd R. S. 1931.

Effect must be given to all the clauses of the will to determine the intention of the testator. The terms of the 11th clause that, “on the happening of the contingencies hereinbefore provided for a final division and conveyance of my said remaining property,” mean that on the death of the survivor of Jennie A. Bickert and Carrie B. Peterson, is the time hereinbefore provided for a final division and conveyance of the said remaining property. This shows conclusively that the time of division and conveyance of the real estate is postponed until the death of both the widow and the daughter. There is no final gift over to the children of the body of Carrie B. Peterson by clauses 9 and 10 when the terms of those clauses giving the real estate, after the death of such survivor, to such children of the body, are read and construed with clause number 11. Ror is there by clauses numbers 9 and 10 an absolute and final gift of the profits and income of said real estate to said heirs of the body of Carrie B. Peterson. The interest or devise to the heirs of the body of Carrie B. Peterson is an executory interest and it is not invalid for the reason advanced by appellant that it limits a fee after a fee. Johnson v. Buck, 220 Ill. 226.

Clauses 9, 10 and 11 must be considered together to ascertain the intention of the testator when the remaining property is to vest, where the property is given to a trustee and a division and conveyance are to be made in the future by the trustee. The right of the children of the body of Carrie B. Peterson to take under the will was subject to the control of the testator. By the 11th clause of his will it is clear that the testator fixed the time when those to take should be determined at the time of the expiration of the trust. Carrie B. Peterson being alive, it is uncertain who the persons mentioned in the 11th clause, “there be” at the time of the expiration of the trust. Assuming that any of the three brothers of the testator are alive, it is uncertain who the heirs of such living brother will be. The equitable estate in the remaining property of the testator is contingent, and not subject to the sale under process. Spengler v. Kuhn, 212 Ill. 186; Benson v. Tanner, 276 Ill. 594; Northern Trust Co. v. Wheeler, 345 Ill. 182; DuBois v. Judy, 291 Ill. 340.

The above construction of the will carries out the intention of the testator that at the time of the final division and conveyance of the real estate the real estate shall go to the children of the body of Carrie B. Peterson in toto, if all living, or by way of representation, to their surviving child or children, and not to the heirs of the children of her body. If the,' equitable interest in the real estate should be held! vested in J. B. Peterson at the time of the death of the testator, then an heir, or heirs, of J. B. Peterson would inherit from .him that interest although he died before! the survivor of Jennie A. Bickert and Carrie B. Peter- ¡¡ son, and although such heir or heirs were not a child j or children of J. B. Peterson. This is not the inten- j¡ tion of the testator as is quite clear from a reading of the clause number 11 of his will.

We are of the opinion that by clause number 11 the testator clearly expressed his intention that the real estate should not be conveyed or be vested until the termination of the trust.

Judgment affirmed.


author: Mr. Presiding Justice Barry

text:
    Trustees of Schools, Appellee, v. Archie E. Hammond et al. (Standard Accident Insurance Company), Appellant.
    Opinion filed February 1, 1932.
    Wilson & Wilson, for appellant.
    June C. Smith, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee filed a bill to reform a township treasurer’s bond and to recover the amount due thereon. Appellant was surety on the bond and a decree was rendered reforming the bond and requiring appellant to pay $28,526.05.

Appellant contends that it was relieved from liability because appellee designated the Merchants State Bank as a depository and the loss was occasioned by the failure of that bank. Appellee had no power or authority to select a depository and relieve the treasurer or his surety from liability for money lost through the insolvency of the depository, and appellee is not estopped to claim indemnity from appellant by reason of the fact that it attempted to select a depository. Bragg City Special Road Dist. v. Johnson, 323 Mo. 990, 66 A. L. R. 1053, and cases cited in the Note.

Appellant contends that the bond should be construed as a common law obligation and enforced according to its terms and not as a bond in the form prescribed by statute. Appellant was duly informed by the application that Hammond had been appointed township treasurer and that he was required to furnish the bond required by the statute. The bond executed by appellant contained the statutory provisions and in addition thereto the following: “That the surety hereunder shall not be liable for any loss which may be sustained through the failure of any bank or banks or other depository to pay or deliver over any moneys and securities deposited with it by the said Archie E. Hammond which may come into his hands by virtue of his said office. ’ ’

Appellant knew when it executed that bond that it was in conflict with the form of the bond required by the statute. Appellee had no power or authority to accept a bond containing that provision. The bond also contained another provision in addition to the statutory requirements and the court reformed the bond by striking out those provisions which were not found in the statutory form. Appellant’s contention that the bond should be construed as a common law obligation is in conflict with what we said in Trustees of Schools v. Chambers, 240 Ill. App. 295.

Appellant contends that the court of equity had no jurisdiction because appellee had an adequate remedy at law. That point was raised by a demurrer to the bill and also by the answer but no error has been assigned calling in question the jurisdiction of the court. That being true the argument in that regard is without avail. In the state of the record our conclusions in Trustees of Schools v. Chambers, 240 Ill. App. 295, are controlling and it is unnecessary to restate them in this opinion. No reversible error having been pointed out, the decree is affirmed.

Affirmed.


text:
    Andrew Arnold, Appellee, v. Elizabeth Rebhan, Appellant.
    Opinion filed February 1, 1932.

      W. E. Knowles, for appellant.
    Turner & Holder, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant and her son-in-law, W. J. Ruediger, executed their promissory note to appellee for $3,000. This suit was brought upon the note against appellant alone. Appellee filed with his declaration an affidavit of claim to the effect that the consideration of the note was money loaned by him to appellant. Appellant claimed a credit of $1,000 and there was a verdict and judgment for $2,150.96.

Appellant’s sole contention is that the court erred in refusing to direct a verdict in her favor. She concedes that she is liable on the note, but insists that appellee failed to prove that the consideration therefor was money loaned to her as he stated in his affidavit of claim. She says that appellee did not even attempt to prove his case as laid in his pleadings and affidavit of claim, which was that the consideration was money loaned to her, and that by reason thereof she should have had a directed verdict. In other words it amounts to a claim that there was a variance between the allegations and the proof. She makes no claim that the court erred in admitting the note in evidence. She was clearly liable thereon without regard to what was the consideration therefor.

The motion for a directed verdict did not state the ground upon which it was based. The only ground now insisted upon is that there was a variance. A variance between the allegations and the proof in an action at law can only be taken advantage of upon the trial by an objection specifically pointing it out, so that it may be obviated by an amendment if necessary. Carney v. Marquette Third Vein Coal Min. Co., 260 Ill. 220. A general objection on the ground of variance is not sufficient. St. Clair County Benev. Society v. Fietsam, 97 Ill. 474. There is no merit in appellant’s contention.

Appellee states that he assigned cross errors on the record and argues that the court erred in overruling his motion for a hew trial, in excluding evidence offered by him and in giving instructions for appellant. He filed no abstract and none of those matters appear in appellant’s abstract. Cross errors cannot be considered unless the matters complained of appear in the abstract furnished by the appellant or in an additional abstract furnished by the appellee. People v. Chicago, I. & S. R. Co., 248 Ill. 126. Appellee is in no position to insist upon his cross errors. The judgment is affirmed.

Affirmed.


text:
    Charles Wood, Appellee, v. Cosmopolitan Life Insurance Company, Appellant.

      Opinion filed June 9, 1932.
    J. Gr. Burnside and Gilbert F. Wagner, for appellant.
    Arthur Bob and Charles B. Myers, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On September 14, 1926, Nellie Wood made an application to the American Benefit Life Insurance Company for a policy of insurance and during the following month a policy was issued to her in which appellee was the beneficiary. On April 29, 1929, appellant entered into an agreement with the American Company in which it assumed the outstanding policies of the American Company and agreed it would be liable in the same manner as the American Company, notwithstanding any differences in the printed conditions in the forms and policies issued by the two companies. The original policy contained a provision that it would be incontestable after it had been kept in continuous force for one full year during the life of the insured, except for nonpayment of assessments, misstatement of age and suicide. On July 1, 1929, without any further application from the insured, appellant issued its policy covering the same risk and inserted therein the old application as a part of its policy. The new policy was mailed to the insured and the old policy was never surrendered so far as the record shows. All premiums were paid and the insured died August 7, 1930.

Appellee averred and proved the issuance of the policy, the payment of all premiums and the furnishing of proof of death, etc. Appellant filed pleas to the effect that the policy was null and void because the statements made by the insured in her application to the American Company pertaining to her physical condition and state of health were false, etc. Issues were joined and the trial resulted in a verdict and judgment for $990. The pleas presented no defense to the action. That feature of the case is fully discussed in Bethke v. Cosmopolitan Life Ins. Co., 262 Ill. App. 586, and we are fully in accord with the conclusions there announced.

The policy issued by appellant contains a provision that it shall be incontestable after two years. That provision is of no force for the reason that under the agreement between the two insurance companies appellant agreed that it would be liable in the same manner as the American Company, notwithstanding any differences in the printed conditions in the forms and policies issued by the two companies. In a case of this kind provisions placed in a new policy which are in conflict with the provisions of the old policy are not binding. York v. Central Illinois Mut. Relief Ass’n, 340 Ill. 595. Appellee is entitled to maintain his suit because of the agreement made between the two companies. Weil v. Federal Life Ins. Co., 264 Ill. 425.

The application made to the American Company contained a provision to the effect that said company assumed no liability whatever until the application was received and accepted at the Home Office and the policy actually delivered to the insured during her lifetime and while in good health. Appellant insists that said provision created a condition precedent which appellee was bound to aver and prove before he would be entitled to recover. We recently considered that question and reached the opposite conclusion in James v. National Life & Accident Ins. Co., 265 Ill. App. 436. It is unnecessary to repeat here what we said in that case.

Appellant submitted a special interrogatory asking the jury to find whether the insured ever had any treatments by or consultations with physicians during the last five years immediately preceding September 14, 1926, and the question was answered in the affirmative. It is argued that because the application contained a statement that there had been no such treatments or consultations for that five-year period and the jury found to the contrary, appellant was entitled to a judgment notwithstanding the general verdict. That contention is of the same character as the alleged false statements in regard to health and is fully answered in the Bethke case, supra. Under the undisputed evidence in the record appellee was entitled to recover and no reversible error having been shown the judgment is affirmed.

Affirmed.


text:
    J. L. Wiggins, Plaintiff in Error, v. Union Trust Company of East St. Louis, Defendant in Error.
    Opinion filed June 9, 1932.
    Pope & Driemeyer, for plaintiff in error.
    Elmer Weihl and Beasley & Zulley, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The trial court entered a judgment sustaining a demurrer to the declaration and adjudging that plaintiff in error pay the costs for which an execution should issue. A writ of error was sued out and defendant in error moved for a dismissal of the writ on the ground that there was no final judgment. Plaintiff in error then procured a nunc pro tunc order purporting to amend the judgment by making it a judgment in bar of the action and for costs. Defendant in error insists that the court was without jurisdiction to make the alleged amendment at a subsequent term of court because there was no memorial paper or minute made at the term at which the judgment was rendered which showed that the court, in fact, had rendered judgment in bar of the action.

The original judgment set out in the record is not a final judgment which may be reviewed upon appeal or writ of error. An order sustaining a demurrer, although it adjudges costs, is not a final judgment. Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200; People v. Board of Education, 236 Ill. 154; Williams v. Huey, 263 Ill. 275.

The original judgment as expanded by the clerk simply sustained the demurrer and ordered that defendant in error do have and recover of and from plaintiff in error its costs and charges in this behalf expended and that it have execution therefor. The court at a subsequent term amended that judgment nunc pro tunc so as to make it a judgment in bar of the action and for costs. If, at the former term, the court actually rendered such a judgment and that fact was proven by some memorial paper or minute in the case made at such former term, then the amendment would be proper. But a court has no right to enter a judgment nunc pro tunc unless the judgment was in fact rendered at a previous term and was not entered of record through some fault, neglect or oversight ; and in such case the fact that the court did give judgment at the previous term can only be proved by some memorial paper or minute in the case made at such former term. Stein v. Meyers, 253 Ill. 199.

The office of an order nunc pro tunc is only to supply some omission in the record of an order which was really made but omitted from the record. If an order is actually made by the court but there is a failure to enter it, the court may correct the mistake in failing to enter the order, and make the record show the order which the court actually made as of the time it was made. No court has a right to create an order by that method or to supply an order which was never in fact made. A nunc pro tunc order cannot be made to supply an omission to make an order, but only an omission in the record of the order. Lindauer v. Pease, 192 Ill. 456; People v. Rosenwald, 266 Ill. 548-554.

The only evidence offered in support of the motion to amend the judgment was the original judgment as expanded by the clerk and the following from the judge’s docket: “Nov. 3rd, 1931, demurrer to declaration sustained. Plaintiff excepts. Judgment vs. pltf for costs.” There is nothing in the original judgment as expanded to indicate it was intended as a judgment in bar of the action. Does the expression in the judge’s docket “judgment vs. pltf for costs” show that the court, in fact, rendered judgment in bar of the action which the clerk failed to enter a record? We do not think so. The question is not whether the court could or should have entered such a judgment in the first instance. The real question is whether the court actually entered such a judgment at the former term. People v. Wilmot, 254 Ill. 554-558. Having failed to render a judgment in bar of the action at the former term the court was without jurisdiction, at a subsequent term, to make the amendment by a nunc pro hmc order. The writ of error is dismissed.

Writ dismissed.


text:
    A. C. Bollinger, Appellee, v. Commercial State Bank et al., Appellants.
    Opinion filed June 9, 1932.
    Weihl & Weihl and P. K. Johnson, for appellants.
    Farmer & Klingel, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

J. F. Burekhardt was the owner of a certificate for four shares of the capital stock of Commercial State Bank which he sold, indorsed and delivered to appellee. Appellee requested the officers of the bank to transfer the stock to him upon the books of the corporation and they refused to do so. He then filed a petition for mandamus against the bank, its officers and directors, to compel them to transfer the stock upon the books and to issue a new certificate. The directors demurred to the petition, the demurrer was overruled and they elected to stand by their demurrer. The bank, its president and cashier filed four pleas and later withdrew the first two. A demurrer was sustained to the fourth and they stood by that plea. The case was tried before the court without a jury upon the issue raised by the third plea which was to the effect that appellee did not deliver and return the certificate to the bank to be transferred and canceled and to have a new certificate issued.

The court found the issues in favor of appellee and awarded a writ of mandamus. The bank and one of its directors did not appeal. All of those who appealed have assigned errors jointly. Where parties join in assigning errors the errors must be good as to all appellants or they will not be good as to any, and if the errors complained of do not affect all of the appellants the assignments of such errors must be several and not joint. Hawkins v. County of Lake, 303 Ill. 624; Department of Public Works & Buildings v. Epperson, 333 Ill. 313.

The president and cashier pleaded to the petition and are not legally interested in the question as to whether the court erred in overruling the demurrer of other parties to the petition. Such other parties are not legally interested in the question as to whether the court erred in sustaining the demurrer to the fourth plea which was a plea by the bank, its president and cashier. Those alleged errors are not properly assigned. We have considered them, however, and in our opinion they are without merit.

It is argued that the evidence is insufficient to support the judgment. It clearly appears that after the certificate was indorsed and delivered to appellee, he told the president and cashier of the bank that he had it and that he wanted it transferred on the books and a new certificate issued. They informed him that Mr. Burckhardt had signed a certain contract with other stockholders and they would not comply with his request. Under the circumstances it was unnecessary to make a formal tender of the certificate and a further demand. It is apparent that such action wbuld have been useless. The refusal of the officers to make the transfer was not based upon the lack of a formal tender or demand and their attitude clearly indicated that the refusal was based upon an entirely different ground. We find no reversible error and the judgment is affirmed.

Affirmed.