text:
    Emily Pamel, Appellant, v. Christ Pamel, Appellee.
    Gen. No. 39,472.

      Opinion filed November 10, 1937.
    Rehearing denied November 22, 1937.
    Teed, Kammermann & Johnson, of Chicago, for appellant ; Hugh E. Johnson, of Chicago, of counsel.
    Altheimer, Mayer Woods & Smith, of Chicago, for appellee; Jesse L. Cohen, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order entered in the circuit court denying temporary alimony in a separate maintenance suit filed by Emily Pamel against her husband, Christ Pamel, and dismissing the suit for want of jurisdiction.

Plaintiff’s complaint alleges that she is a resident of Chicago, Cook county, and that the defendant is a nonresident of Illinois.

Plaintiff’s theory is that a resident plaintiff can maintain a suit for separate maintenance against a nonresident defendant where there is personal service on the defendant and in such cases the provisions of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, 1ÍH1-271; Jones Ill. Stats. Ann. 104.001 et seq., control the venue.

Defendant’s theory is that a complaint for separate maintenance cannot be maintained against a nonresident of Illinois.

The complaint discloses that the parties were married June 24, 1928, at Chicago, Illinois; that plaintiff was born in Chicago where she continued to reside up to the time of her marriage; that upon her marriage she went to St. Paul, Minnesota, to live with her husband where she so lived until September 2, 1936, at which time she was forced to leave him and came to Chicago to live with her mother; that three children were born of the marriage, ages six, four and three; that the children are with plaintiff. The charge in the complaint is cruelty and the complaint further charges that the parties are owners of real estate, vacant and improved in Chicago, Illinois, and Minneapolis, Minnesota.

The complaint further charges that plaintiff is a resident of Chicago, Illinois; that defendant is a nonresident of Illinois and for the past 20 years had been a resident of Minnesota; that the acts complained of as a ground for separation occurred in Minnesota; that on September 15,1936, plaintiff filed her complaint for separate maintenance and summons was issued; that defendant was personally served with summons in Chicago, by the sheriff of Cook county, and at the same time the defendant was served with a notice of motion for an order allowing temporary maintenance, support of children, attorneys’ fees and costs, plaintiff’s interest in the real estate and for general relief.

The record shows that on September 16, 1936, a restraining order was entered against the defendant and the motion for temporary relief was continued until September 17, 1936; that on September 17, 1936, the defendant filed a special appearance challenging the jurisdiction of the court; that on September 17, 1936, an order was entered finding that the defendant was a nonresident and that the complaint sb alleges, with a recital that it appears that the court does not have jurisdiction of the parties or the subject matter, temporary relief was denied and the restraining order of September 16,1936, was vacated and set aside; that on September 28,1936, plaintiff filed her petition seeking a hearing on the merits and on the same day the defendant filed his written motion to dismiss the cause for want of jurisdiction; that on October 3,1936, a hearing was had, after which briefs were submitted and on October 21, 1936, an order was entered dismissing the complaint for want of jurisdiction.

The sole question to be decided in this case is that of jurisdiction. In other words, can a wife residing in Cook county maintain a suit for separate maintenance against her husband, a nonresident, who is temporarily in this jurisdiction? It is agreed that separate maintenance is unknown to the common law and that the rights of the parties and the procedure is wholly statutory.

Ch. 68, H 22, sec. 1, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 109.189, provides as follows: “That married [men or] women who, without their fault, now live or hereafter may live separate and apart from their [wives or] husbands, may. have their remedy in equity, in their own names, respectively, against their said [wives or] husbands in the Circuit Court of the county where [the wife or] the husband resides, for a reasonable support and maintenance while they so live or have so lived separate and apart; and in determining the amount to be allowed, the court shall have reference to the condition in life of the parties at the place of residence of the [wife or] husband, and the circumstances of the respective cases; and the court at any time after service of summons and proper notice to [the wife or] the husband may make such allowance of temporary alimony, attorney’s fees, and suit money as may appear just and equitable, as in cases of divorce, . . . [provided that there are no living children born of such marriage no person having once received separate maintenance or temporary alimony for a period of two (2) years or a fraction thereof shall be entitled to further separate maintenance or temporary alimony against the same spouse, except for such portion of the two (2) years as remains unexpired. Provided also, that there are no living children born of such marriage the time during which the husband or wife is living separate and apart from the other spouse, under a decree of separate maintenance, shall be, for the purpose of divorce, regarded as desertion by the husband or wife].”

Ch. 68, ]f 23, sec. 2, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 109.190, provides as follows: “Proceedings under this Act shall be instituted in the county where the husband resides, and process may be served in any county in the State; but the wife shall not be required to give bond for costs in any such proceedings : Provided, in case the husband shall abandon the wife without fault on her part, and remove to another county in this State, then and in that case such suit may be brought by the wife either in the county where they resided at the time of such abandonment as aforesaid or in the county where the husband resides at the time of the commencement of such suit.”

Part of sec. 22 has been held unconstitutional by the Supreme Court in the case of DeMotte v. DeMotte, 364 Ill. 421. That did not destroy the entire statute, so that the act as it now reads, provides that the suit may be brought in the county where the husband or the wife resides. This question is not new to the courts and a somewhat similar case was passed on by the Supreme Court in MacKenzie v. MacKenzie, 238 Ill. 616, wherein the court said: “The bill was filed on November 30, 1904. It appears therefrom that the parties thereto were married in Indiana in 1897 and continued to reside together until September 8,1901; that at that time they were residing in Chicago, Illinois; that on that date the appellant willfully and without any reasonable cause deserted, his wife and the child of the marriage, in Chicago, Illinois, leaving them without any means of support. It appears from the bill, although not in the precise words of the statute, that the wife is living separate and apart from her husband without her fault; that she is a resident of Cook county, Illinois, and had been such resident for more than one year prior to the filing of the bill, and that the appellant is a resident of the State of Idaho.

‘ ‘ Summons issued and was returned showing that it had been served on the first day of December, 1904. It was returnable at the December term, 1904, and the order for temporary alimony and solicitor’s fees was entered after the return day of the summons. . . . On December 1,1904, appellant, by his solicitor, entered special and limited appearance in the cause for the purpose of questioning the jurisdiction of the court. On December 8, 1904, he answered the rule of December 5 to show cause why he should not pay temporary alimony and solicitor’s fees, and recites by that answer that it is made under his special and limited appearance. By that answer he sought to show, among other things, that at the time the summons in this cause was served upon him he was in Illinois for the purpose of attending the trial of criminal suits instituted against him for abandonment of his wife and child, and that while he was in the State of Illinois for that purpose he was exempt from service of summons. Later, on December 20, 1904, he set up the same matter by plea in abatement to the bill. That plea was heard on the day after it was filed, and on the next day, December 22, 1904, was overruled. Appellant elected to stand by the plea. He was thereupon defaulted for want of answer. Thereafter, and on the same day, December 22, 1904, it was ordered that he pay to his wife the sum of $15 per week, beginning that day and continuing until the further order of court, and it was further ordered that he pay to her, or to her solicitor for her use, the sum of $100 on account of solicitor’s fees. It seems that nothing has ever been paid on account of this order, and the amount for which he was committed was the amount due thereon if the order be enforcible. There has never been a hearing upon the bill.

“It is first objected that the circuit court had no jurisdiction of the subject matter of the separate maintenance suit for the reason that appellant was not a resident of this State. The right to maintain a suit of this character is given by paragraph 22 of chapter 68, Hurd’s Revised Statutes of 1908. That paragraph gives to the wife a remedy in equity against her husband fin the circuit court of the county where the husband resides. ’ The succeeding paragraph provides that the suit shall be brought in the county where the husband resides, or in case the husband shall abandon the wife without her fault and remove to another county in this State, then the suit may be brought by the wife either in the county where they resided at the time of the abandonment or in the county where the husband resides at the time of the commencement of the suit. It will be observed that neither paragraph expressly provides for a case such as that at bar, where, according to the averments of the bill, the husband abandons the wife while they are residing in this State and takes up his residence in another State, and it is accordingly urged that courts of this State, in such case, are with-out jurisdiction. If this be true and a husband abandons his wife while they reside in this State and he continues a resident of Illinois he can be required by our courts to observe his marital obligations so far as supporting his wife is concerned, but if he remove from the State and his wife continues to reside here he can not be so required, even though the summons in the suit be personally served upon him while he is temporarily within the boundaries of the State. This would put a premium upon non-residence and attach a burden to residence, which we do not think the legislature intended. Appellant relies principally upon the case of Babbitt v. Babbitt, 69 Ill. 277. The statute then provided that the suit might be begun in the county where either the husband or wife resided. The bill in that case was filed by a non-resident wife against a nonresident husband, and it was there held that it was an indispensable requirement that one of the parties should reside in the county in which the proceedings were had, otherwise the court would be without jurisdiction. We do not think that case can be regarded as conclusive. The paragraphs of the Separate Maintenance act determine in what county or counties the suit may be brought in cases where the husband resides in this State, and leave section 3 of the Chancery act to control in cases where the defendant is a non-resident of the State, and where, as in the case at bar, he deserts his wife while they reside in this State and her residence here continues at the time the suit is instituted. The section just mentioned provides that where the defendant in a chancery proceeding is a non-resident the suit may be brought in any county of the State. A like conclusion was reached by the Supreme Court of Michigan in Atkins v. Borstler, 46 Mich. 552. There the statute provided that the action should be brought in the county ‘where one of the parties shall reside at the time of commencing such action. ’ That suit was begun by a resident against non-residents, although not in the county where the plaintiff resided. The conclusion of the Michigan court was, that the action might properly be maintained in a county other than that of the plaintiff’s residence where it was brought against non-resident defendants who were found in the county in which the suit was commenced, on the theory that the language last quoted was not intended to apply when the defendants were not residents of the State.”

It is contended by the defendant that the above quoted case does not apply for the reason that sec. 3 of the Chancery Act, Cahill’s Ill. Rev. St. 1933, ch. 22, U 3, to which the court in that case refers, was repealed by the legislature at the time of the passag’e of the new Practice Act. It is true that sec. 3 was repealed by the Civil Practice Act, ch. 110, s'ec. 94, Ill. State Bar Stats. 1935, if 222; Jones Ill. Stats. Ann. 104.094, but it was replaced in said Practice Act by ch. 110, if 135, sec. 7, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 104.007, which contains these words: “. . . If all defendants are non-residents of the State, an action may be commenced in any county.” Therefore, we are of the opinion that the Civil Practice Act controls the venue for cases not specifically provided for by the Separate Maintenance Act, Ill. State Bar Stats. 1935, ch. 68, H 22 and 23; Jones Ill. Stats. Ann. 109.189, 109.190.

Although the defendant is a resident of Minnesota, nevertheless he was temporarily residing in Cook county at the time the sheriff served him with a summons. We believe the court would acquire jurisdiction of the person by such service. As was said in the case of Raab v. Raab, 150 Ill. App. 554: “The jurisdiction of the court is challenged, but we think the court had jurisdiction of the parties, because there is nothing in the separate maintenance provisions of the statute which requires any time residence as a condition precedent to confer jurisdiction. In this respect it differs from the one year residence required by the divorce statute. The statute confers the right to seek the remedy ‘in the county where the husband resides.’ The return of the sheriff upon the summons of service upon defendant, lacking contradiction, sufficiently establishes the residence of defendant in Cook county to fulfil the statutory requirements in that regard.”

If the contention of the defendant were accepted as correct, then a wife, who is compelled to leave her husband because of Ms treatment of her and moves to the home she formerly occupied before her marriage, cannot have relief if the husband is able to prove that he is a nonresident. In other words, it would be possible for a husband to become a resident in any city of a close neighboring State, personally conduct Ms business in Cook county and relieve himself of obligations to support his wife and family merely for want of jurisdiction on the part of the court to compel him to comply with the law applicable thereto. We do not believe the legislature intended to create or sanction any such means whereby one could evade his responsibilities.

We are of the opirnon that the trial court erred in denying to plaintiff the right to maintain her suit and in dismissing said bill. Therefore, for the reasons set forth in this opirnon the judgment of the circMt court is reversed and the cause is remanded with directions to proceed in a manner not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

Hebel, P. J., and Hall, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Stone

license: Public Domain

text:
    The Lincoln National Life Insurance Company, Plaintiff, v. William Trost and Raymond Mueller Administrators of Estate of Caroline Katherin Trost, Deceased, Appellants. Elsie Asselmeier et al., Appellees. Fred Trost et al., Other Defendants.

      Opinion filed November 8, 1937.
    J. Fred Gilster, of Chester, and Archie P. Weihl, of Waterloo, for appellants.
    C. B. Morrison, of Waterloo, and P. K. Johnson, of Belleville, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

The Lincoln National Life Insurance Company, plaintiff below, filed a bill of interpleader in the circuit court of Monroe county, Illinois, to secure a determination of the rights of various claimants to the proceeds of a life insurance policy issued by the company. The policy in the sum of $5,000 was issued to Caroline Katherine Trost. The application which she signed contained the following questions and answers: “Question: Name of Beneficiary? Answer: Luella Trost, Elsie Miller, Arlou Miller, Raymond Miller, Edwin Miller, each. Question: Relationship of Beneficiary? Answer: My children. ’ ’ The policy contained the following beneficiary clause: “to Luella Trost, Essie, Arlou, Raymond, and Edwin Miller - children (Equally) of the Insured, or to such other beneficiary as may have been designated by the Insured in the manner as hereinafter provided”. The policy also provided: “If no designated beneficiary shall survive the Insured, the proceeds of this policy will be paid to the Executors, Administrators or Assigns of the Insured.” It also set forth the method for designation of other beneficiaries.

The above named were the only children of the insured. Luella Trost predeceased the insured and left her surviving, Fred Trost, her husband, and Ardella Trost and Leona Trost, her children.

Elsie Asselmeier, Arlou Ruby, Raymond Mueller, and Edwin Mueller, being those of the named beneficiaries who survived, Fred Trost, guardian of Leona Trost and Ardella Trost, Leona Trost, Ardella Trost and Fred Trost, individually, being those who would take if at all through Luella Trost, and William Trost and Raymond Mueller, administrators of the estate of Caroline Katherine Trost, deceased, were made parties defendant to the bill of interpleader.

The circuit court held that the entire proceeds of the policy should be divided between the surviving children of the insured to the exclusion of the other defendants herein. The administrators, of Caroline Katherine Trost, the insured, prosecute this appeal. The children and surviving husband of Luella Trost have not appealed.

The sole question before us therefore is whether the circuit court erred in denying the right of the administrators of the insured to share in the proceeds of the policy.

Appellants have cited authorities to demonstrate that the beneficiary clause does not constitute a “class gift” and have argued from that point to the conclusion that the share of the designated beneficiary who predeceased the insured became a part of the intestate estate of the insured.

The authorities cited by counsel for both parties offer nothing more than fairly close analogies to this situation. In those cases where the surviving spouse was the named beneficiary and in the event of his or her death the proceeds were given to the “children,” the authorities are rather sharply divided on the question whether the surviving children take to the exclusion of grandchildren or representatives of predeceased children as the case may be. See Davis v. New York Life Ins. Co., 212 Mass. 310, 41 L. R. A. (N. S.) 250, and annotation. In such a situation our First District Appellate Court has upheld the rights of the surviving children: Mutual Life Ins. Co. v. Devine, 180 Ill. App. 422.

While it is true that prima facie a gift to individuals described by name is not a class gift, 28 Buling Case Law, page 262, par. 235, Blackstone v. Althouse, 278 Ill. 481, this is far from a conclusive presumption, as the foregoing and like authorities agree.

But, if the above authorities were conclusive to the effect that the children, heirs or representatives of the predeceased child of insured, Luella Trost, should share in the proceeds of the policy, those authorities still do not support the attack by appellants, who are representatives of the estate of the deceased insured, Caroline Katherine Trost. We are in complete accord with the general views expressed in Mutual Life Ins. Co. v. Devine, supra, page 428: “Taking in connection with the language employed the well-known fact that life insurance is purchased for the benefit of the living and not the dead, we feel that it was clearly the intention of the insured to have the insurance money paid to the children who should be alive at the time the policy should mature, and that for that reason, irrespective of all other considerations, the policy should be so construed.”

.The general provisions with respect to the contingent beneficiaries which we have quoted from the policy in question confirm our view. It provides that the proceeds shall be paid to the executors, administrators or assigns of the insured in the event no designated beneficiary survives the insured. It cannot be said that no designated beneficiary has survived. Neither can we construe that provision to mean that if any beneficiary fails to survive the insured his share shall be paid to the administrators of the insured. In fact a clear implication arises from the directions given in case no beneficiary survives, to the effect that if any survive such survivors shall receive the proceeds of the policy.

The decree of the circuit court of Monroe county is affirmed.

Affirmed.


text:
    W. E. Vick, Appellant, v. Illinois Bankers Life Association of Monmouth, Illinois, and Illinois Bankers Life Assurance Company, Appellees.

      Opinion filed November 8, 1937.
    C. S. Miller, of Mound City, for appellant.
    Dewet & Cummins, of Cairo, and E. H. Henning and L. W. Melburg, both of Monmouth, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Pulaski county, Illinois, sustaining a demurrer to replications to certain pleas. The matter was heard on former appeal to this court in the case of Vick v. Illinois Banker’s Life Ass’n of Monmouth, 276 Ill. App. 432.

The declaration alleged the issuance of three insurance policies by the defendant insurance company, in compliance with all conditions precedent and the death of assured. The defendant, appellee herein, filed certain pleas setting forth a lapse of the policies for nonpayment of the premiums by the assured. The plaintiff, appellant herein, filed replications to the pleas stating that the assured, prior to her death, had made disability claims under two of the policies in the sum of $1,500, which claims were unjustly denied by the insurance company, and alleging that the company was required to use moneys in its hands belonging to the assured to- pay premiums due on the life insurance policies to avoid a forfeiture of the policies. Defendant demurred to these replications. On the first trial the circuit court overruled the demurrer to the replications, a rejoinder was filed and plaintiff obtained a verdict and judgment.

On the former appeal this court held that the insuranee company could not be required to pay premiums on life insurance policies with moneys due on disability claims. We held that the life insurance policies lapsed for nonpayment of premiums, that the policies were forfeited, and that the trial court erred in overruling the demurrer to the replications. While the replications erroneously set forth disability claims due the plaintiff instead of disability claims due assured, the decision on the former appeal was not affected thereby.

The opinion of this court stated that notwithstanding the fact that appellants on the former appeal had not elected to stand by their demurrer to the replications, the decision of this court, that there could be no recovery under the policies, could be made effective by sustaining the demurrer to the replications. The cause was accordingly remanded to the circuit court with directions to sustain the demurrer to the replications.

Plaintiff, appellant herein, amended the replications to show disability claims due assured instead of claims due the plaintiff. The circuit court in accordance with the directions of this court sustained the demurrer. Appellant prosecutes this appeal from the judgment of the circuit court sustaining the demurrer, and asks this court to review the merits of its former decision.

Appellant contends that the decision of this court on the former appeal was not a final judgment from which an appeal could be taken to the Supreme Court, and asks judgment of this court reversing the judgment of the circuit court of Pulaski county and an order remanding the cause for a trial on the merits.

We are of the opinion that the judgment of this court on the former appeal was conclusive of the only issue involved in the cause, that is to say, whether there was money in the hands of the defendant which could and should have been applied to the payment of premiums on life insurance policies to avoid lapse of the policies. The remanding order of this court contained specific directions. Nothing remained for the circuit court but to follow the mandate of this court. In such case a judgment of this court is a final judgment. Joliet & C. R. Co. v. Mealy, 94 Ill. 416, 418 (affirmed 116 U. S. 191); International Bank of Chicago v. Jenkins, 104 Ill. 143, 148, 149 (affirmed 106 U. S. 571); Mitchell v. King, 187 Ill. 452; Wenham v. International Packing Co., 213 Ill. 397, 401; Englewood Connecting R. Co. v. Chicago & E. I. R. Co., 117 Ill. 611, on 615; People v. Haas, 351 Ill. 68; Kroell v. Kroell, 219 Ill. 105, 110; Friedman v. Lesher, 198 Ill. 21, 24; Kaneville v. Meredith, 361 Ill. 556, 563.

All matters at issue having been settled by our former opinion, we are not at liberty to reconsider the merits of this case. Kaneville v. Meredith, 361 Ill. 556; and Conner v. Conner, 163 Ill. App. 436.

The cases cited by appellant do not interfere with this result. In the case of City of Virginia v. Gipps Brewing Co., 136 Ill. 616, the first decision of the Appellate Court reversed and remanded the cause for a new trial upon such issues as might be formed by pleas to be entered by the defendant. In People v. Brown, 272 Ill. 146, the directions of the Appellate Court were to overrule a demurrer, thus giving the defendants the right to plead over and to have a trial on the merits. In People v. Board of Education, 275 Ill. 195, the cause was left in such shape on remandment that new issues might be formed. In Riley v. Lamson, 253 Ill. 258; Hagemam v. Hagemann, 188 Ill. 363, and Fanning v. Rogerson, 142 Ill. 478, there were other issues than those settled by the opinions of the Appellate Court.

The circuit court having followed the mandate of this court, nothing remains but to affirm that judgment.

The judgment of the circuit court of Pulaski county is affirmed.

Affirmed.


author: Mr. Justice Edwards

text:
    R. J. Albachten, Appellant, v. Woodland Hill Cemetery Association, Appellee.
    Opinion filed November 8, 1937.
    Henry B. Eaton, of Edwardsville, for appellant.
    J. P. Streubee, of Alton, for appellee.
   Mr. Justice Edwards

delivered the opinión of the court.

This action is brought to recover upon a promissory note claimed to have been executed on June 30, 1924, by Woodland Hill Cemetery Association, a corporation, to order of M. E. Turner, and by him indorsed and delivered to plaintiff. The note was for the principal sum of $3,500, due one year after date with interest at six per cent. Upon the back of the instrument appeared a memorandum, “I agree to sell to M. E. Turner 1250 shares of the Alton Barium Products Co. Preferred Stock for $58,895.00 Feb. 6, 1926.

(Signed) Aug. Luer.”

The answer, which was verified, set up several defenses, the principal of which were that the defendant did not make and deliver the document sued upon, and also a failure of consideration. Trial by jury was waived and the cause submitted to the court, who after a hearing rendered judgment for defendant, to reverse which order this appeal has been perfected.

It appears that on June 30, 1924, defendant was a corporation operating a cemetery, that A. L. Petersen was president and M. E. Turner secretary of the concern, that at said date the defendant had in proper manner authorized the borrowing from Petersen and Turner of the sum of $7,000 to be used in improving the cemetery property, and that a note for $3,500 was executed by the corporation to each of said parties. The prime question is whether the instrument sued upon is one of the notes so executed. The document which forms the basis of this suit is signed: “Woodland Hill Cemetery Assn., by M. E. Turner, Sec.”

It is shown by the proof that said payees of such notes did not put into the corporation, at the time they received the notes, any part of the amount called for by the instruments, but that some two months later August Luer, father-in-law of both Petersen and Turner, made them a present of $7,000, that $1,500 of this went into the defendant for its uses, while the remaining $5,500 was employed by them in some other and different venture.

Petersen testified that upon such gift being made by Mr. Luer, he and Turner agreed to destroy said notes, that he so disposed of his, in which he is corroborated by the testimony of his wife, who stated that she witnessed its destruction, and that Turner agreed to do likewise with his note, the latter, however, denies this.

Turner deposed that the instrument in suit was the note which he executed in behalf of the defendant on June 30, 1924, and that it and the one executed and delivered to Petersen were both executed in the corporation’s name by him as its secretary, and that Petersen, as president, did not sign either. Petersen testified that both were signed by himself as president and Turner as secretary. Mrs. Petersen stated that she saw the note given to her husband and that it bore the signature of her husband as president, and that of Turner as secretary.

August Luer testified that when on February 6,1926, he signed the memorandum on the back of the note, which was nearly two years after the date when plaintiff claimed it was executed, no part of the face was filled out, that it was nothing but a blank note of the “Alton Banking and Trust Company,” that he examined the face at that time, and that nothing thereon appeared except the blank printed form.

The by-laws, of which Turner as secretary was charged with knowing, required the signature of both president and secretary to all contracts of defendant.

The original note was certified to this court for our inspection. We find that the face of the note and Turner’s indorsement upon the back are written in indelible lead pencil, while the memorandum upon the back relative to sale of Alton Barium Products Co. stock was written in ink.

It seems strange that a memorandum contract for the sale of stock for $58,895 would be written upon the back of a note for $3,500. Two contracts of such importance and dignity are not usually written upon the same scrap of paper, but are made the subject of separate and independent documents. Turner admits there was no scarcity of writing paper at the time Luer signed the memorandum which would have made necessary the writing of same upon the back of an existing promissory note for a large amount. Such practices are ordinarily not employed in business transactions of such magnitude.

If the testimony of August Luer is correct, that the face of the note was blank when he signed the memorandum, months after the time it is claimed the note was executed, and the evidence of Petersen that both notes executed on June 30,1924, bore the signatures of himself as president and Turner as secretary, is true, then it follows that the note sued upon was not executed on June 30, 1924, as alleged in the complaint. The verified answer of defendant, denying the execution of the instrument, imposed upon plaintiff the burden of proving such execution.

The trial court, sitting without a jury, was in position to determine the credibility of the witnesses and to find the facts, and with his determination we cannot interfere unless we are constrained to hold that it was contrary to the manifest weight of the evidence. In our opinion the proof justified the finding that the document in suit was not the note executed on June 30,1924, by defendant corporation, pursuant to the authority conferred upon its officers so to do, and that the judgment is right.

Judgment affirmed.


text:
    Catherine Scally, Administratrix of Estate of Edward Matthew Scally, Deceased, Appellee, v. Jerome Flannery, Appellant.

      Opinion filed November 8, 1937.
    MacDonald, Meyer & Meyer, of East St. Louis, for appellant.
    MoG-lynn & McGlynn, of East St. Louis, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

This appeal is prosecuted to review a judgment for $5,500 which plaintiff, as administratrix of the estate of Edward M. Seally, deceased, recovered against defendant in the statutory action by the next of kin for causing the death of decedent. The complaint, consisting of a single count, charged general negligence.

The accident occurred on November 21, 1935, at about 6:30 P. M. on State street in East St. Louis. At that time defendant was driving his auto easterly on such street and the plaintiff, who was standing upon the north curb where the street is intersected by Thirteenth Street, started to cross to the southerly side, en route he came into contact with defendant’s car and sustained injuries which resulted in his death.

For plaintiff, William Overby testified that he was driving his car some distance behind that of defendant, with another anto in between, that he was traveling about 35 miles an hour, and that all the traffic was proceeding at about the same speed, though on cross-examination he stated that he did not know the speed of defendant’s car. He further testified that he saw plaintiff start south from the north curb and proceed to the center of the street, but did not see him again until after the accident. Plaintiff called the defendant, under sec. 60 of the Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, 1184; Jones Ill. Stats. Ann. 104.060, and the witness stated that he had his lights on, that there was nothing to' obstruct his front view and that he could have seen any object ahead of him, and that the first he knew of the presence of deceased was when the latter brushed against the left side of defendant’s car at about the door and rear of the front fender.

For defendant, William C. Molla deposed that he saw deceased leave the north curb and proceed southerly, waving his hand over his head, and that he ran into the side of defendant’s car. B. E. Goetz also saw the accident. He testified that he saw Seally start to cross the street and saw him go into the side of Flannery’s car, striking it at the windbreaker. Robert Carstetter stated that he saw deceased walk off the curb, and that he ‘ ‘ started to hopping or half running across the street”; that defendant’s car was about 100 feet from him, that Seally ran right into the side of the auto, and that at the time defendant’s car was making about 30 or 35 miles an hour.

It is contended by defendant that the proof fails to show either that he was guilty of negligence, or that plaintiff at the time was in the exercise of ordinary care for his own safety, and that the court should have sustained the motions for a directed verdict.

We think the evidence of the plaintiff was sufficient to justify the court in submitting the questions of fact to the jury, and while there was proof on behalf of defendant, which tended to show the contrary, yet the trial court could not weigh the conflicting testimony as that was the province of the jury. Thomas v. Buchanan, 357 Ill. 270.

It is also urg*ed that the complaint, charging only general negligence, and the plaintiff, both at the trial and in this court, contending that the claimed neglect of defendant was a violation of the statutory speed laws, that a variance exists, and that a count which charges general negligence is not sustained by the proof of a breach of a statutory duty. The law appears to be that it is not necessary to specially plead the statutory obligation and allege a breach of same. It is sufficient to generally allege the neglect of defendant; as the cause of the injury, and its averments would be sustained by proof that defendant drove his car contrary to the provisions of the statute, if such driving was the proximate cause of the injury, Chicago & A. R. Co. v. Dillon, 123 Ill. 570; Leideck v. Chicago, 248 Ill. App. 545. We do not think this objection is well taken.

From the testimony of the witnesses as before epitomized it is apparent that whether defendant was negligent and whether deceased was guilty of contributory negligence were close questions, particularly as to whether Seally was in the exercise of ordinary care for his own safety. In such situation it is important that the rulings upon the admission and rejection of evidence be accurate and free from any error which might have a tendency to confuse or mislead the jury, Chicago Union Traction Co. v. Miller, 212 Ill. 49; West Chicago St. Ry. Co. v. Moras, 111 Ill. App. 531.

At the instance of plaintiff, the court charged the jury as to what rates of speed are by the statute made prima facie evidence that the driver was traveling at a rate which was not reasonable and proper.

The effect and propriety of such instructions has frequently been passed upon by reviewing courts. In Stamas v. Waskow, 250 Ill. App. 364, the court ruled that such an instruction has a tendency to mislead the jury into concluding that if it believes that defendant’s car was traveling at a rate in excess of that mentioned in the statute, it must find, regardless of surrounding circumstances, that the driver was operating the car at a rate of speed greater than is reasonable and proper, and that the giving of such an instruction, in a case which is close upon the facts, is reversible error, and to the same effect, Harris v. Piggly Wiggly Stores, Inc., 236 Ill. App. 392; Crawford v. Cabalan, 259 Ill. App. 14.

This court held, in the recent case of Barnhart v. Goin, 266 Ill. App. 591, that where the question of speed might have been one of compelling force with the jury, its giving constitutes error for which a judgment will be reversed.

It is apparent that the matter of speed of defendant’s car was one of the prime questions in the case, and one of the chief grounds upon which plaintiff relied to establish the negligence of defendant. In such situation, and with the case close upon the facts as to liability, its tendency would be to mislead the jury, and was prejudicial to defendant. Furthermore it was erroneous for another reason. The accident occurred on November 21,1935, and the instruction was couched in the language of the statute as it existed prior to July 1, 1935. The legislature at its 1935 session made important changes in the statute as to raising the rate of speed beyond which traveling was prima facie in excess of a rate reasonable and proper, hence we have the spectacle of the jury being told that if the speed was in excess of a statutory rate, not in force at the time of the accident, it was prima facie evidence of excessive speed.

The setting forth in an instruction of the language of a statute involved, if accurate as a legal statement and applicable to the facts, is not reversible error, though a practice not to be commended, Varney v. Ajax Forge Co., 204 Ill. App. 208; Watson v. Kammeier, 203 Ill. App. 31, and where it does not correctly state the law, it is not warranted, and in a close case must be held prejudicial error.

As the case must be retried, we refer to a ruling of the trial court on a question of evidence. As previously stated, plaintiff called the defendant who testified fully as to the facts regarding the injury, he being an eyewitness thereto.

The plaintiff herself was then called to depose as to the careful habits of deceased. Gfeneral objection was made, which the court overruled. Such testimony is only available where plaintiff has no eyewitness to the occurrence, Petro v. Hines, 299 Ill. 236; Ingle v. Maloney, 234 Ill. App. 151. We think the trial court should have sustained the objection, as the defendant, called by plaintiff, testified as an eyewitness, and hence no necessity existed for the resort to such evidence. The objection was general, however, this was sufficient, the evidence being inadmissible for any purpose, Chicago, R. I. & P. R. Co. v. Rathneau, 225 Ill. 278.

Defendant, upon page 5 of his brief, sets forth “points relied upon for reversal of this cause”; he does not, however, include the above question among such points. Later in his argument, nevertheless, he raises and argues the proposition. In this confusing state of the brief and argument we are unable to determine whether or not he is relying upon such ruling as a ground for reversal, and have not considered it as such. We have referred to it in order that it may be corrected upon another trial.

For the reasons stated the judgment is reversed and the cause is remanded.

Reversed and remanded.


author: Mr. Justice Murphy

text:
    Paul Bessermann and Dora Bessermann, Appellants, v. John Votupal, Appellee.
    Opinion filed November 8, 1937.
    Henry B. Eaton, of Edwardsville, for appellants.
    T. A. O’Connor, of East St. Louis, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

June 11, 1935, defendant appellee recovered a judgment in justice court against plaintiffs appellants. July 22nd an execution was delivered to the constable and on the same date, he served the same upon plaintiffs appellants and gave them notice to schedule within ten days. A schedule was filed by plaintiffs appellants. September 3, the constable, a person described in the records as a collector, and three persons, referred to as appraisers, went to plaintiffs appellants’ house, listed certain personal property and then proceeded to the farm of plaintiffs appellants, listed certain other property and seized a truck and three mules.

Plaintiffs appellants instituted this suit to recover damages for the taking of the truck and mules and alleged that the constable, and other persons unknown to plaintiffs, while all acting under the direction and order of the defendant entered plaintiffs’ premises with force and arms took possession of the truck and mules in violation of the exemption laws of this State.

At the conclusion of plaintiffs ’ evidence the court directed a verdict for defendant appellee and this appeal followed.

The evidence does not disclose what property plaintiffs appellants listed in their schedule but the view we take of this case that-omission is immaterial. There is no evidence even tending to prove that defendant appellee gave the officer an indemnifying bond, that he gave the officer any instructions, orders or directions or that he received the truck and mules or the proceeds from the sale of the same or that he in any way ratified the acts of the constable.

To establish a cause of action against defendant appellee it was incumbent upon plaintiffs appellants to prove that defendant advised, directed or encouraged the abuse of the process complained of or knowing of its abuse and for his own benefit ratified it. Snydacker v. Brosse, 51 Ill. 357.

The fact that defendant appellee was plaintiff in the execution and presumed to have caused its issuance and the delivery of it to the constable yet that does not establish a liability against him for any wrongful acts of the constable arising out of the execution of the process. People’s Building & Loan Ass’n v. McElroy, 79 Ill. App. 266; Anderson v. Schmidt, 96 Ill. App. 125.

There was no error in directing the verdict for the defendant appellee.

Judgment affirmed.


author: Mr. Jdstice Hall Mr. Justice Denis E. Sullivan, J.,

text:
    Alice Des Chatelets, Appellant, v. Joseph Des Chatelets, Appellee.
    Gen. No. 39,283.
    Opinion filed November 15, 1937.
    Tags Joranson and Edward Schatz, both of Chicago, for appellant.
    ' Joseph H. and Norman Becker and Milton B. Jacobson, all of Chicago, for appellee.
   On Rehearing

Mr. Jdstice Hall

delivered the opinion of the court.

On March 15, 1933, on plaintiff’s complaint, and upon a charge of cruelty on the part of defendant, a decree of divorce was entered in the superior court of Cook county, dissolving the marriage between Alice Des Ohatelets and Joseph Des Ohatelets, and decreeing that the plaintiff, Alice Des Ohatelets, have the care, custody and control of the children, and that defendant pay complainant $50 a month for alimony, support and other incidentals mentioned.

On August 21, 1936, the defendant, Joseph Des Ohatelets, filed a petition in which he alleged that he had complied with the orders of the court as to the payment of alimony and support, and charges that the respondent is not a fit and proper person to have the care and custody of the children, and that petitioner be awarded their custody. After various hearings, on September 16, 1936, the court made a finding to the effect that Alice Des Ohatelets was not a fit and proper person to have the care and custody of the children, and ordered that the decree of divorce be modified and that Joseph Des Ohatelets be awarded their custody. Thereafter, on September 19, 1936, Joseph Des Ohatelets filed a petition in which he prayed, among other things, that the $50' a month alimony provided for in the original decree, be vacated and set aside. On the same day, and before a hearing on the last mentioned petition, Alice Des Ohatelets filed an answer to this petition and a verified petition for change of venue from Judge Oscar F. Nelson, one of the judges of said court, before whom the last mentioned petition was pending, and who had entered the order of September 16, 1936, awarding* the care and custody of the children to Joseph Des Ohatelets. The petition was based upon the charge that the judge was prejudiced against her and that she could not receive a fair trial before him. The petition for change of venue was denied, and an order entered which vacated the order for the payment of alimony. Thereafter, notice of appeal was filed on October 2, 1936, whereby Alice Des Ohatelets appealed to the Appellate Court from that part of the order entered September 16, 1936, which found her an unfit person to have custody of the children and that Joseph Des Ohatelets should

have such custody, and which decreed a modification of the divorce decree and awarded the custody of the children to the father. She further appealed from the order entered September 19, 1936, denying her petition for change of venue on the hearing of the petition to vacate the provision for alimony in the divorce decree, and from the order entered September 19, 1936, vacating the provision for alimony.

Considerable testimony was introduced and received as to whether or not Alice Des Chatelets was a fit person to have the custody and control of her children. Her former husband, Joseph Des Chatelets, and other witnesses testified to certain of her alleged acts and conduct, which indicated that she was not such a person as should have the custody and care of children of tender age. Some of the statements as to her character were verified by other witnesses. She, however, denied all the charges made by her former husband as to her actions, her conduct, and as to her not being a good mother, and in this she was sustained by witnesses. The court, however, was undoubtedly not satisfied with the evidence before him, and from the record it is indicated that he considered what he terms a “confidential report from the social service department.” Whatever this may have been, does not appear from the record, and of course, we are unable to consider it. However, the record indicates that the court did consider it, and stated that he based his finding upon it. We are of the opinion that he was in error in so doing.

The defendant, Joseph Des Chatelets, admits that the petition for a change of venue is in the proper form, but insists that the court was not in error in denying it, because “nowhere in the record does there appear a notice to Joseph Des Chatelets ... on respondent’s petition for a change of venue.” The order denying the change of venue is as follows:

“On petition of Alice Des Ohatelets for a change of -venue on hearing of the petition of Joseph Des Ohatelets to vacate order for alimony, upon due notice to Joseph Bes Ohatelets, and upon consideration thereof, it is hereby ordered that the said petition for change of venue be and the same is hereby denied, to which order said Alice Des Ohatelets duly excepts. (Italics ours).

Enter:

September 19,1936. Oscar F. Nelson, Judge.”

It is to be seen from this order that the court finds, in terms, that the proper notice was given, as required by statute. (See McPike v. McPike, 10 Ill. App. 332.)

Chap. 146, If 1, § 1, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 107.316, provides that a change of venue shall be granted “where either party shall fear that he will not receive a fair trial in the court in which the suit or proceeding is pending because . . . the judge is prejudiced against him.” (Italics ours.)

As to plaintiff’s right to a change of venue, we cite the following: In McPike v. McPike, supra, Nannie L. McPike obtained a decree of divorce from Henry Gf. McPike in the city court of Alton, and the decree provided that she should have custody of their child, and that the husband should pay $300 alimony. The divorce was obtained at the February term, 1878. At the September term, 1880, the decree was modified and changed as to the custody of the child. At the August term, 1881, of the court, the defendant filed another petition, praying that he might be awarded the entire custody of the child, and asked for a reduction of alimony. When the cause came on for a (hearing at the same term of court, Nannie L. McPike filed a petition for a change.of venue, because of the prejudice of the judge, and the petition for change of venue was denied and a decree entered, reducing the alimony and awarding the custody of the child to the defendant. On appeal, error was assigned because of the court’s refusal to grant the change of venue because it was insisted that the proceeding was not “a suit or proceeding’ in law or equity,” and on this question this court said: “The first error assigned is that the court erred in refusing to grant appellant’s petition for a change of venue. It is not contended but what the notice and petition for a change of venue is in exact compliance with the terms of the statute, but it is insisted that this is not ‘a suit or proceeding in law or equity’; that a petition for a change of venue cannot be entertained, and that is the question for consideration. The second definition of the term ‘suit’ given by Webster is, ‘the act of suing; the process by which one endeavors to gain an end or object; attempt to attain a certain result.’ Usually the words ‘suits’ and ‘actions’ are held as synonymous terms, although the term ‘suit’ is of more general meaning, and is indefinitely applied to proceedings in law as well as equity, while the word ‘action’ is applicable to proceedings at law. In this state it has been held that the term ‘suit’ is more properly applied to proceedings in chancery. The definition of the word ‘suit’ given by Blackstone, is the lawful demand of one’s right; or as Bracton and Fleta express it in. the words of Justinian, ‘Jus prosequandi in judicia quod alicuidebetur.’ Blackstone further states that the forms of these actions (he treats the terms ‘suits’ and ‘actions’ as synonymous) were originally preserved in the books of the pontifical college as choice and inestimable secrets, until one Cneius Flavius, the Secretary of Appius Claudius, stole a copy and published them to the people. The concealment was ridiculous, but the establishment of some standard was undoubtedly necessary to fix the true state of a question of right, lest in a long and arbitrary process, it might be shifted continually, and be at length no longer discernible.

“The word ‘suit’ applies to any proceeding in a court of justice in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the recovery of a right. Bouvier’s Institutes, Yol. 3, 128; Stephens on Pleadings, 427. A civil action is one prosecuted for the establishment or recovery of a right, or the prevention of a wrong, or the redress of an injury. Waite’s Actions and Defenses, Yol. 1, page 10. From these authorities we think that we may very safely assume that this is a ‘ suit or proceeding in law or equity. ’ It is a proceeding* expressly provided for by the statute, and grows out of the proceedings had before that time; still it is for the purpose of redressing a supposed injury, or for the establishment of an alleged right.

“As we have said,- the proceeding grows out of the suit for -a divorce, and the decree therein rendered; yet it is none the less the demand of a right expressly awarded and given by the statute. It is a supplemental question, and we have no doubt but what appellant had a right to have that question determined by a judge who was not, as she believed, prejudiced against her. In civil cases, the granting of a change of venue is not discretionary. It is an absolute right, given the party making the application, if the papers are in compliance with the provisions of the statute.” See also People v. Scott, 326 Ill. 327.

The three orders appealed from are reversed and the cause remanded with the direction that the court grant the change of venue, as prayed, and that thereafter a hearing be had on the petitions relative to the custody of the children and alimony.

Reversed and remanded with directions.

Hebel, P. J., concurs.

Mr. Justice Denis E. Sullivan, J.,

specially concurring : While I concur in the decision reached, I cannot agree that the legislature in the Change of Venue Act intended the words “suit or proceeding” to include subsequent and ancillary motions such as alimony and custody of children.'