text:
    W. B. Jones et al. v. John B. Hunter.

      Injunctions—Enforcement of Judgment—Bankruptcy Proceedings— Effect of—Unauthorized Discharge of Judgment—Dismissal of Bill to Annul Discharge—Adjudication on Merits—Alleged Ratification of Discharge.

    1. A judgment obtained by default in an action commenced after the defendant had been adjudged a bankrupt, and discharged, is not rendered void or released by such discharge.
    2. Where a judgment had been discharged of record, by a party acting without authority from the judgment creditor, the dismissal of a bill filed in another county from that in which the judgment was rendered, to annul such discharge, does not act as an adjudication upon the validity thereof.
    3. In the case presented it is held: That the acceptance of $1,000 by the judgment creditor for the assignment of his interest in the judgment, to one alleged to be in community with the party who discharged the judgment, without authority, did not, under the circumstances, actas a ratification of such discharge.
    [Opinion filed February 14, 1890.]

      Appeal from the Circuit Court of Logan County; the Hon. George W. Herdman, Judge, presiding.
    Messrs. Beach & Hodnett, and W. B. Jones, for appellants.
    The question whether the discharge would have been a good defense in bar in the State Court was never presented; default was takén and judgment rendered. It was a defense that can not now be made available for any purpose, directly or collaterally. Bowen v. Eichel, 91 Ind. 22; see 46 American Reports, 574; Eyster v. Gaff, 91 U. S. 524; Dimock v. Revere Copper Co., 117 U. S. 559; Palmer v. Merrill, 57 Me. 26; Bellamy v. Woodson, 4 Ga. 175; Stewart v. Green, 11 Paige, 535; Goodrich v. Hunton, 2 Woods, 137; Holden v. Sherwood, 84 Ill. 92; Byers v. Bank of Vincennes, 85 Ill. 425-6.
    The decisions of our Supreme Court are clear, plain and unequivocal, holding a judgment obtained as the judgment here, of full and binding force and effect; and that a discharge in bankruptcy, not pleaded or brought to the notice of the State Court, constitutes no defense to such judgment in law or equity. Boynton v. Ball, 105 Ill. 627; Holden v. Sherwood, 84 Ill. 92; Byers v. National Bank of Vincennes, 85 Ill. 423.
    Counsel further assert that the judgment was not a new debt, but a security for the old debt. This proposition we expressly deny, and assert the law of this State to be, that the original debt, claim or demand was merged for all purposes in the judgment and could not be used for any purpose thereafter. Boynton v. Ball, 105 Ill. 627; Wayman v. Cochrane, 35 Ill. 152; Runnamaker v. Cordray, 54 Ill. 303; Harpstrite v. Vasel, 3 Ill. App. 121.
    Negligence of attorney is negligence of client. Clark v. Ewing, 93 Ill. 572; Freeman on Judgments, Sec. 112.
    The decree in the Sangamon Circuit Court case, not being a decree on the merits of the case, is not a bar or estoppel. Freeman on Judgments, Secs. 260, 261, 263; Smith’s Leading Cases, page 673; Freeman on Judgments, Secs. 264, 270; W. A. & G. S. P. Co. v. Sickles, 24 How. (U. S.) 333; Bigelow on Estoppel, pages 50, 51, 53, note 2, 55 text, and note 4, 57; Hamer v. Brown, 16 How. (U. S.) 354; Waddle v. Ishe, 12 Ala. 308; Greenleaf on Evidence, Secs. 529, 530; Wadsworth v. Connell, 104 Ill. 374-5.
    Defendants proposed to prove by W. B. Jones, who was the leading attorney for Burney in the Sangamon Court case, and participated in the trial, that the question of the court’s jurisdiction was distinctly made and argued by Hunter’s attorneys, and the case went off on the question of the court’s jurisdiction and not on the merits. The court refused to admit that evidence and defendant excepted. The court’s ruling in that respect was clearly error. Freeman on Judgments, Secs. 272, 274, 821; W. A. & G. S. P. Co. v. Sickles, 24 How. (U. S.) 333; Packet Co. v. Sickles, 5 Wall. 580.
    Messrs. Brown, Wheeler & Brown, for appellee.
    When a judgment is rendered against a bankrupt, in case of suit brought after adjudication for a provable debt existing at the time of the petition, the judgment does not merge the original cause of action so as to constitute a new debt, but is merely a new security for an old debt, and the former debt being barred by the discharge, the judgment is also barred. McDougald v. Reid, 5 Ala. 810; Imlay v. Carpenter, 14 Cal. 173; Blake v. Bigelow, 5 Ga. 437; Anderson v. Anderson, 65 Ga. 518; Rogers v. Ins. Co., 1 La. Ann. 161; McDonald v. Ingraham, 30 Miss. 389; Thompson v. Hewitt, 6 Hill, 254; Johnson v. Fitzhugh, 3 Barb. Ch. 360; Dresser v. Brooks, 3 Barb. 429; Fox v. Woodruff, 9 Barb. 498; Cromwell v. Gallup, 17 Hem. 59; Monroe v. Upton, 50 N. Y. 593; Dawson v. Hartsfield, 79 N. C. 334; Dick v. Powell, 2 Swan, 632; Stratton v. Perry, 2 Tenn. Ch. —; Harrington v. McNaughton, 20 Vt. 293; Downer v. Rosnell, 26 Vt. 397; Stobknell v. Woodward, 52 Vt. 234.
    So, under the English bankrupt acts, such a judgment is discharged. Dinsdale v. Eames, 4 Moore, 350.
    The fact that the pendency of the bankruptcy proceedings is not pleaded or suggested in the action in which the judgment is recovered, will not prevent the discharge from being a bar. Rogers v. Ins. Co., 1 La. Ann. 161; Anderson v. Anderson, 65 Ga. 518.

      The debtor may have an injunction against the judgment. Stratton v. Perry, 2 Tenn. Ch. 633.
   Pleasants, P. J.

This was a bill in equity, filed by appellee against appellants May 21, 1888, to enjoin certain proceedings taken by them to enforce the judgment referred to in Burney, for use, etc., v. Hunter, decided at this term.

It avers that in March, 1877, an action was brought in the Circuit Court for Logan County by Burney against complainant and others on two promissory notes made by them, in xvhich complainant alone xvas served with process, and that judgment therein was taken against him by default in September, 1878; that complainant had been adjudicated a bankrupt by the United States District Court for the Southern District of Illinois in June, 1876, and was discharged in April, 1878, and thereby relieved from the payment of said notes, which xvere provable in said proceedings; that he had retained counsel for the purpose of pleading said discharge as a bar to said action, but he neglected to do so; that Randolph & Leutz xvere the attorneys for plaintiff in said action; that complainant sued out a writ of error from the Appellate Court for the Third District to reverse said judgment; that xvhile the same was pending, Leutz applied to him for a compromise of said judgment; that he represented he had authority, by power of attorney from the plaintiff, to make a compromise and settlement thereof; that complainant’s attorneys conducted the negotiations on his part, xvhich resulted in his agreement to give Leutz his notes for $1,500, in equal installments at one and two years, and at his request complainant arranged with the First Rational Bank of Springfield to discount them for $1,350; that this sum xvas paid to Leutz on the 6th of October, 1880, and thereupon an entry of satisfaction in full of said judgment was made by Leutz, and said writ of error dismissed; that complainant supposed that said Leutz really had the authority he claimed and that said settlement was valid, until September 10, 1884, when he received notice from W. P. Randolph and W. B. Jones, appellees, as attorneys for Burney, of a motion to be made to expunge said entry of satisfaction; that said motion was made, but was by leave of the court dismissed without prejudice; that in April, 1885, said attorneys filed a bill in the Circuit Court for Sangamon County, on behalf of said Burney for use of Jones against complainant, for the same purpose, and that on October 2,1887, on hearing upon the pleadings and proofs,- a decree was made dismissing said bill; that on the 7th of January, 1888, they sued out a scire facia < to revive said judgment, and two days thereafter an attachment in aid of an action of debt on said judgment, against complainant, which proceedings are now pending, and that he has also received from them a notice of motion for the May term, 1888, of said Circuit Court for Logan County to expunge said entry of satisfaction. These proceedings are by the bill sought to be enjoined. It further avers that about one year before the filing of this bill, Burney brought a suit in the United States Circuit Court for the Southern District of Illinois against Bandolph & Lentz, to recover the money so received by Leutz from complainant, and that pending said suit said Bandolph, through Jones, who had acted as attorney for Burney in all these proceedings since the rendition of said judgment, opened negotiations with Burney for the purchase of said judgment and settlement of said suit, and on November 25, 1887, obtained an assignment thereof from Burney to Jones, in name, for $1,000; that said money was furnished by Bandolph and so paid for his benefit; that Bandol|h, as the partner of Leutz, was primarily liable to Burney for the money received by Leutz; that the $1,000 furnished to Jones and by him paid to Burney, as aforesaid, was but a part of that for which Bandolph was so liable, and its acceptance by Burney from Bandolph & Leutz, knowing that the judgment had been compromised for $1,500, and relinquishment of all claim to that sum, was in effect a ratification by him of said compromise.

Thus the grounds for injunction, as set forth in the bill, are, first, that the judgment in question, having been obtained after the discharge of the defendant in bankruptcy and in an action commenced after he had been adjudged a bankrupt, without leave of the bankruptcy court, is void, or released by such discharge; second, that the decree of the Sangamon Circuit Court dismissing the bill there filed to expunge or annul the entry of satisfaction, is an adjudication against the right to enforce said judgment; and third, that the acceptance by Burney of the §1,000, ostensibly for the assignment of his interest in said judgment to Jones, was, under the circumstances, a ratification by him of the compromise and settlement of said judgment as made by Leutz. A preliminary writ was granted thereon. The answers of the defendants denied the material averments of the bill, as to the acts in pads of the parties respectively in that behalf named, and like issue was made upon a cross-bill by Jones against Hunter. On final hearing upon these pleadings and the proofs, the cross-bill was dismissed and the injunction made perpetual.

. The first of these grounds presents a pure question of law, the facts being undisputed. The action was brought after Hunter was adjudged a bankrupt, and the judgment obtained after his discharge. The debt before judgment was provable in the bankruptcy proceedings. It was admitted upon the hearing, on the one side, that this debt was not scheduled, and on the other, that Hunter was not, in fact, a ware of its existence, the notes having been made by another member of his firm in the name of the firm. Whether Burney personally had any notice of the bankruptcy proceedings does not appear, but that he had not the statutory notice by mail is to be inferred from the fact that his name did not appear in the list of the creditors.

By Sec. 5106 of the U. S. Stats. (Bankrupt Act of 1867), it was provided that “Ho creditor, whose debt is provable, shall be allowed to prosecute to final judgment any suit at law or equity therefor, against the bankrupt, until the question of the debtor’s discharge shall have been determined; and any such suit or proceedings shall, upon the application of the bankrupt, be stayed to await the determination of the court of bankruptcy on the question of the discharge;” and after excepting certain debts from the operation of the discharge, the act further declares (Sec. 5119) that “ a discharge in bankruptcy, duly granted, shall, subject to the limitation imposed by the two preceding sections, release the bankrupt from all debts, claims, liabilities and demands which were or might have been proved against his estate in bankruptcy.”

It is seen that the prohibition in Sec. 5106 is not in terms against the commencement of a suit, but only against its prosecution to a final judgment; nor does it make any distinction between suits commenced before the debtor is adjudged a bankrupt and suits commenced after such adjudication. It is conceded by counsel that as to the former, whatever may be the rule elsewhere, it is held in this State that the subsequent adjudication would not per se suspend the power of the court, but that the defendant may make formal application, as provided in said section, to stay its proceedings therein until the question of his discharge shall have been determined, and plead it when obtained, if he would have its effect to bar the action. Holden v. Sherwood, 84 Ill. 94; Byers v. Bank of Vincennes, 85 Ill. 425. But it is contended that where suit is brought in a State court after such adjudication, without leave of the bankrupt court, a discharge, though not pleaded, will bar a judgment for the debt. This proposition is not claimed to be founded in the letter of the bankrupt act, but in its spirit. It is said that upon such adjudication the bankrupt court strips him of all his estate, and undertakes to administer it for the benefit of all his creditors; that he is presumably without means to make a defense ; that the judgment in such case does not merge the original cause of action, but is merely a new security for an old debt, and the former debt being barred by the discharge, the judgment also is barred; and that leave of the bankrupt court to bring such a suit is jurisdictional, as in case of a suit against a receiver without leave of the court that appointed him.

We do not understand that the judgment would be a lien upon any of the debtor’s estate in the hands of his assignee in bankruptcy, or interfere in any way with its administration for the benefit of his creditors whose claims are proved in the bankruptcy court. Poverty of the debtor is no bar to a prosecution to judgment for the debt. In Boynton v. Ball, 105 Ill. 627, it was held, over the authorities cited by counsel, that a judgment obtained against one after he is adjudged a bankrupt does create a now debt—“a debt which can not be proved against the bankrupt’s estate; that the indebtedness existing prior to the recovery becomes merged in the judgment ”—citing In re Gallison, 2 Lowell C. C. 74, in which it was held “upon careful examination of the decisions” that such a judgment “ creates a new debt, and that the judgment creditor can not oppose the discharge because he has no provable debt and because the discharge will be no bar to the judgment.” To the same point the court cites also Bradford v. Rice, 102 Mass. 472, in which the further reason why the bankrupt can not impeach such a judgment is given, that the judgment creditor by thus changing the form of his debt elects to look to his debtor personally and to abandon the right to prove against his estate, and the debtor, who might have protected himself by applying for a stay and pleading his discharge when obtained, by omitting to do so waives the right to set up his certificate of discharge against the new debt. Our Supreme Court adopts that reason also, and though in the case before it the suit was commenced before the defendant was adjudicated a bankrupt, yet because he had time and opportunity to interpose that adjudication for a stay of the proceeding until he could obtain a determination of the question of his discharge and plead it if obtained, but neglected to do so and voluntarily submitted to a trial, he was held bound by the judgment. So here, Hunter was personally served with process. He then knew that he had been adjudged a bankrupt, and neglected to use the means provided by the act for his protection against a judgment; for the negligence of his attorney is imputable to him. We also see no reason why the rule should not apply here, as well as if the suit had been brought before such adjudication, and in case of a judgment by default as upon trial and verdict. It appears that appellee filed a bill in equity to set aside the judgment and let him in to defend, on the ground of the neglect of his attorney, and that it was dismissed on demurrer thereto sustained. If the argument here made in his behalf is sound, he might have made a vigorous attempt to defend under divers pleas in bar, and being defeated, yet have his injunction against all proceedings to enforce the judgment.

In the case of a suit against a receiver, as such, the court thereby has actual notice of the situation—and judicially knows that he is but an instrument of the court that appointed him, and not to be sued in another without its leave. Not so here.

For these reasons we are of opinion that the proceedings in bankruptcy did not affect the validity of the judgment.

As to the claim that Burney ratified the compromise made or attempted to be made by Leutz, we think the averments of the bill on which it rests are not sustained by the proofs. So far as it appears the law firm of Randolph & Leutz was retained to bring the suit against Hunter only in the usual way and had only such power and authority in respect to the judgment obtained as were conferred by such retainer. That did not extend to a compromise of it. Leutz did not pretend to act in that matter by virtue of such retainer, or as one of said firm. Hunter must be presumed to have known, and his learned counsel who conducted the negotiation on his part certainly did know, that he had no such authority by virtue of his retainer from Burney and his relation to the .firm. They required evidence of special authority to him, without regard to the firm, but unfortunately waived its production through a not unnatural faith in his assurances. We do not see upon what principle Randolph, merely by his relation to Leutz as his partner in the practice of law and in the prosecution of that suit under such a retainer, can be held primarily liable to Burney for the money fraudulently obtained by Leutz while avowedly so acting and clearly understood by Hunter to be so acting. Again, it is not shown, as averred, that for the formal assignment of the judgment to Jones in name, Burney received anything from Randolph & Leutz, nor anything from Randolph. The proof is he did not know or suspect Randolph in the transaction. He dealt alone and exclusively with Jones. How or from whom Jones obtained the money he paid can not be material. If Randolph furnished every dollar of it and under an express agreement from Jones to give him an interest in the judgment or to assign it to him, how would those facts tend to show a ratification by Burney? Surely, that must depend on Burney’s intentional act. ¡Neither by his intention nor by his act, in the case supposed, was anything conveyed to or acquired by Randolph; the conveyance was to Jones, and to him not as agent of Randolph, but in his own right. Whatever interest Randolph has in the judgment was acquired from Jones. Now Jones was a competent purchaser. His purchase, if made, was lawful, and not champertous; and if it was champertous, that would not concern Hunter. Being lawful, the assignment transferred to the assignee all the rights in the subject-matter which Burney had before it was made and would have continued to have if it had not been made. Such was the manifest intention of the assignor. He did not receive the $1,000 in satisfaction or on account of his claim for the compromise money received by Leutz, but for his interest in the judgment, if the evidence is to be believed; and though it had the effect to extinguish his right thereto, if any he had, and to dismiss his suit therefor, it was none the less the consideration for the $1,000. We hold the facts shown do not amount in effect to a ratification of the fraudulent compromise by Leutz, but are a distinct repudiation of it.

Our view of the character and operation of the decree of the Circuit Court for Sangamon County, dismissing the bill in Burney for use, etc., v. Hunter, is stated in the opinion filed in that case. For reasons therein given we think it was made, not upon the merits, but solely for want of jurisdiction. This seems evident in the light of the bill itself and of the evidence, without reference to the contemporaneous paper signed by the judge, wdiich was offered in evidence in this case. It was, therefore, not an adjudication against his right to have the entry of satisfaction annulled by a court having jurisdiction of the person of the clerk and control of the docket, and to enforce by lawful means the judgment in question.

The decree herein was, in our opinion, against the law and the evidence. Decree reversed and cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Conger, J.

license: Public Domain

text:
    C. C. Bedford et al. v. Lettie L. Bedford, Administratrix.

      Administration—Claim—Equitable Jurisdiction—Dower—Failure to Demand—Support of Minors by Father—Contribution from Children’s Estate—Propositions of Law—Unreasonable Number of.

    1. A surviving husband, when dower has not been demanded by him, nor set off to him, can not hold one-third of the rents and profits of his deceased wife’s lands as against the minor heirs.
    2. It is the duty of a father, if his means are sufficient, to maintain and educate his children during their minority according to their station, even though the children have separate estates; and the burden is on him to show the necessity of contribution from the children’s estates. The circumstances of father and children are to be considered in deciding what, if any, contributions should be made.
    3. In the case presented, this court holds that the County Court, in allowing a claim against the estate of claimants’ father for the use by him of land left by the deceased mother, and in passing upon counter-claims thereto, had equitable jurisdiction.
    [Opinion filed February 14, 1890.]
    In error to the Circuit Court of Piatt County; the Hon. C. B. Smith, Judge, presiding.
    Mr. C. F. Mansfield, for plaintiffs in error.
    The claim for a reasonable rent for the use and occupation of the minor children’s land, by their father, Stephen G. Bedford, is an equitable claim, and within the jurisdiction of the Probate Courts. Dormer v. Fortescue, 3 Atk. 129; Carey v. Burtie, 2 Tern. 342; Perry v. Carmichael, 95 Ill. 519; Strawn v. Strawn, 50 Ill. 263.
    The estate of a deceased husband, in the settlement of a .claim against his estate, should not be credited with one-third of the rents and profits of his former deceased wife’s lands as against minor heirs, when he had made no demand for dower, or where the same was never assigned to him. Blain v. Harrison, 11 Ill. 386; Summers v. Babb, 13 Ill. 484; Hoots v. Graham, 23 Ill. 81; Reynolds v. McCurry, 100 Ill. 360; see also R. S., Chap. 41, Secs. 18, 19; Barr v. Peterson, 44 Ill. 259 and 260; Cool v. Jackman, 13 Ill. App. 564; Atkin v. Merrill, 39 Ill. 77-8.
    Where a surviving husband did not make a demand for and dower was not set off or assigned to him, in his deceased wife’s lands, and after her death he improved the same, she dying intestate, he can not, as against the heirs, recover compensation for improvements placed on the land by him after her death, nor can his estate be credited therewith in a claim by the heir against the estate. Hoots v. Graham, 23 Ill. 83; Wheeler v. Dawson, 63 Ill. 54, 56; Gardner v. Watson, 18 Ill. App. 386, 389; Donnelly v. Thieben, 9 Ill. App. 495, 499.
    The father is natural guardian, but has no control of estate of minor. Perry v. Carmichael, 95 Ill. 530; Hunt v. Thompson, 3 Scam. 179, 180.
    The lather can not charge his minor children with their care and support when he has property of his own, without evidence showing that the interest and welfare of the children demand the appropriation of their property for their support. Gilley v. Gilley, (Me.) 9 A. 623; Fuller v. Fuller, (Fla.) 2 So. 426; Newport v. Cook, 2 Ashm. (Pa.) 332; Clark v. Montgomery, 23 Barb. 464; McGee v. McGee, 91 Ill. 549; Parmelee v. Smith, 21 Ill. 623; Mowbry v. Mowbry, 64 Ill. 383; Brush v. Blanchard, 18 Ill. 46, 47.
    Messrs. S. R. Reed and H. H. Crea, for defendant in error.
   Conger, J.

This action is based on a claim filed in the name of C. C. Bedford and Waiter Bedford, minors, by their guardian, B. F. Bedford, against Lettie L. Bedford, administratrix of Stephen G. Bedford, deceased, to recover for money received by the deceased in the use of the land of the minors after the death of their mother.

Amanda Bedford, wife of Stephen G. Bedford, died June 5, 1S83, leaving said minors, her only children, and Stephen G. Bed-ford, her husband, surviving, he being father of said minor children. She owned ninety acres of land lying immediately west of the ninety acres owned by her surviving husband shown on the plat. They lived on the land of the husband, and used both tracts of land, without making any distinction as to ownership, up to the time of the death of the mother.

After the death of the mother the husband continued till his death, to use both his own and the land of his deceased wife, the same as he had done before her death. Stephen G. Bedford married a second time, March 1, 1885, and died in March, 1888, leaving Lottie L. Bedford his widow. B. F. Bedford was appointed guardian of the said minors after the death of the father, they not having any legally appointed guardian before such appointment. No proceedings were ever had to assign dower to Stephen G. Bedford in the lands of his deceased wife.

Taxes paid by Stephen G. Bedford on the lands of his deceased wife for the years of 1883, 1884,1885, 1886 and 1887, amount to §158.85, and in the same time he built fences on the land, costing him §103.40, and put in the tile, amounting to §93.61, which he paid. Said Stephen G. Bedford from the date of the death of his wife Amanda to his own death, cared for and supported the said minors out of the proceeds of his own and wife Amanda’s lands, at his house or home provided for them. The said minors have not received compensation for use of said lands as direct payment, aside of any claim or credit that the estate may be entitled to for such care and support of said minors. Reasonable rent for the land is §3 per acre per annum. If the father may charge for the care and support of the minors out of the proceeds of their lands, then §2 per week for each child would be a reasonable charge for such support. There is a plat attached showing the land of Amanda and of Stephen G. Bedford. The Circuit Court on the trial of the case rendered judgment against the estate for §151.85 in favor of claimants.

They prosecute the writ of error. It appears from the statement of fact, that the judgment of the Circuit Court was based upon the theory of allowing rents for the period of five j-ears, deducting therefrom board at $4 per week for the entire five 3Tears and the taxes paid, but making no allowance on the one hand for interest on the yearly balances, or for the tiling and fencing put upon the land of the children. The result reached, is, we think, equitable and fair if the court properly held the law upon the two principal questions involved.

They are, first, can a surviving husband, when his dower has not been demanded by him, or set off or assigned to him in his deceased wife’s lands, hold one-third the rents and profits thereof as against the minor heirs. We think the court below held correctly, under the circumstances of this case, that the husband’s estate was answerable to the children for the rents of the entire land upon the authority of Cool v. Jackman, 13 Ill. App. 564; Blain v. Harrison, 11 Ill. 386; Summers v. Babb, 13 Ill. 484; Hoots v. Graham, 23 Ill. 81; Reynolds v. McCury, 100 Ill. 360.

Second. Was it equitable that the estate of Stephen G. Bedford should be allowed credit for the care and support of his minor children, as against this claim? The court below held in the affirmative, and we think correctly. The rule in such case is well stated in Fuller v. Fuller (Fla.), 2 Southern Reporter 426, in the following language: “ It is the duty of the father, if he can, to maintain and educate his child according to her condition and expectations during the latter’s minority, even though she have an estate; but if his means are insufficient, chancery will order an allowance out of her estate for her entire support, or to supplement the father’s contribution thereto, according to the circumstances of each case.- The child’s fortune, and the circumstances of the father, will be considered in deciding what, if any, allowance should be made out of her estate. The burden is upon the father to show the necessity for contribution from her estate, and he will be charged with her support during such periods as he does not clearly show the necessity for such contribution.” See also, the matter of Bostwick, 4 Johns. Ch. 104; Wilkes v. Rodgers, 6 Johns. 566; Schouler, Dom. Rel., Sec. 238, 323; Trimble v. Todd, 2 Tenn. Ch. 502. The County Court, in allowing this claim against the estate, and in passing upon counter-claims and set-offs thereto, had an equitable jurisdiction, so as to make the amount allowed fair and equitable to both parties to the contest. Moore v. Rodgers, 19 Ill. 347; Dixon v. Buell, 21 Ill. 203.

The claimants inherited ninety acres of land, the rented value of which is stipulated to be $3 per acre, while their father owned the same quantity of land adjoining upon which he lived, and from the proceeds of both tracts, supported claimants, himself and his second wife. The law gave him the right to one-third of the rents of claimants’land, being 890 per annum, as dower in his deceased wife’s land, had he taken steps to demand it, or have it legally assigned. Not having done this, he lost his legal claim to such portion of the rents.

Tlie stipulation does not show the rental value of the father’s ninety acres, but assuming it to have been the same as the others, the total income of the father would have been 8-540 per annum. Under the-e circumstances we are of the opinion that it was within the equitable powers of the County Court, or, as in this ease, the Circuit Court on appeal, to reduce claimants’ allowance against their father’s estate by the amount allowed for their care and support, and also the taxes paid on the land.

There were fifty propositions of law submitted to the court, some of which were held and others refused. This was an imposition up on the trial court, and the court might well refuse to pass upon such a mass of propositions. Whether the court held correctly we shall not undertake to determine, as wre are satisfied that the law was properly applied to the facts and a just and equitable decision reached, and it will therefore be affirmed.

Judgment affirmed.


text:
    Nannie E. Bedford v. Lettie L. Bedford, Administratrix.

      Parent and Child—Support of Infant—Liability of Father—Implied Promise—Services Rendered by Wife to Third Party.

    1. Where a wife renders valuable services to a third party, he can not defeat a claim for compensation on the ground that she is a married woman, owing all her time to her husband and family. Such an objection can come only from the husband.
    2. In the case presented, this court holds that the circumstances proved sufficiently raised an implied promise on the part of a father to pay for the support of his infant child.
    [Opinion filed February 14, 1890.]
    In error to the Circuit Court of Piatt County; the Hon. C. B. Smith, Judge, presiding.
    Mr. C. F. Mansfield, for the plaintiff in error.
    Messrs. S. R. Reed and H. H. Crea, for defendant in error.
    An action can not be maintained against the parent fur necessities furnished his infant child by a third person, unless an express promise is shown or circumstances from which a promise may be inferred. McMillen v. Lee, 78 Ill. 443; Gotts v. Clark, 78 Ill. 229; Hunt v. Thompson, 3 Scam. 179.
    Where services are voluntarily rendered by those near of kin, the law will not imply a contract for compensation, but express contract to pay must be shown, or no recovery can be had. Meyer v. Malcom, 20 Ill. 621; Mall v. Finch, 29 Wis. 278, 286.
   Conger, J.

Nannie E. Bedford is the wife of Benjamin F. Bedford. Stephen G. Bedford was a brother of Benjamin E. Bedford, and Amanda Bedford, his former wife, was a sister to the plaintiff in error, Nannie E. Bedford. Their residences were but a short distance from each other. At the time of the death of Amanda Bedford, her sister, Nannie E. Bedford was present. Amanda Bedford, the deceased, knew and was conscious of her approaching death. Knowing that she was leaving two little children, one but nine days old, and the other but two or three, years old, she asked her sister, in that solemn time, in the presence of death, to take her infant child and raise it, as she wanted no other woman than she to do so. Stephen G. Bedford, the husband of the deceased, was present, as was Nannie E. Bedford, the plaintiff. In compliance with the request of Amanda Bedford, Nannie E. Bedford took the child, Walter, to her home, and Stephen G. Bedford interposed no objections, but frequently visited the child, acknowledging and ratifying all that was done and said by his wife, and consenting that Nannie E. Bedford should care for and raise his child. Benjamin F. Bedford, the husband of Nannie E. Bedford, at no time made any objection to his wife caring for and raising Stephen G. Bedford’s child Walter. Benjamin F. Bedford plainly told Stephen G. Bedford, his brother, that he (Stephen G. Bedford) must pay his wife, Nannie E. Bedford, for the raising and care of Walter, as she had done the work.

Amanda Bedford died June 5, 1883. Nannie E. Bedford took the child at its mother’s death, and kept it for a period of ninety-one weeks. During the earlier part of this period Nannie E. Bedford, with her husband, Benjamin F. Bedford, resided on their farm, moving to Mansfield in the fall of 1883. Stephen G. Bedford afterward came to town to live with his brother, Benjamin F. Bedford, bringing with him his oldest child, Crews Bedford, he having agreed with Benjamin F. Bedford that for himself and Crews he would pay one-half of the expenses of the family, girl hire, grocery bills, etc. This one-half of the expenses paid by Stephen G. Bedford was $10 per month. At the end of the time that Stephen G. Bedford lived with Benjamin F. Bedford they had a settlement, and it was expressly agreed and understood that the settlement, paying half of the expenses of the family, did not include the expenses and charge for caring for Walter Bedford. On three different occasions Stephen G. Bedford promised to pay Nannie E. Bedford for the raising of Waiter. There is no evidence of any payment or compensation to Nannie E. Bedford ioilier services other than the attempted proof, on the part of the defendants, to show that she had received a side-saddle in part compensation for the care she had bestowed on Walter. The child required more than ordinary care and attention, but the value of the services rendered was variously estimated by the witnesses.

The claim filed against the estate of Stephen G. Bedford, upon which this suit is based, is for the period of ninety-one weeks at $6 per week. Judgment was rendered in behalf of the plaintiff against the estate in the County Court, and an appeal taken to the Circuit Court, in both instances the case being tried without a jury before the court. A verdict was rendered in the Circuit Court in favor of the estate, against the plaintiff.

It is true, as urged by counsel for defendant in error, that an action can not be maintained against the parent for necessaries furnished his infant child by a third person, unless an express promise is shown, or circumstances from which a promise may be inferred; but in this case we think the circumstances shown in evidence are sufficient to show an implied if not an express promise on the part of the father to pay for the keeping of the child. Mrs. Bird testifies to a conversation between plaintiff in error and the deceased, in which deceased said to her: “I expect to pay you for what you have done forme.” Nannie (plaintiff in error) says: “Are you going to give Walter to me?” and he did not make her any answer. She said: “Walter has been so much trouble to me and expense, and I think that you ought to give him to me;” and he says: “I intend to pay you; I know that he has been lots of trouble to you.” Mrs. Wilkey testifies that after the deceased had married the second time she heard him say, while talking with her, “that it was an awful care to raise a family, and that he hadn’t paid Nannie Bedford for the raising of Walter, but that he expected to some day.”

Very slight ci.cumstances would be sufficient to raise an implied promise upon the part of the father, in such a case as tile present, to pay for the care of his little child. It -was his duty to care for it; and because plaintiff in error made no terms with her dying sister when she assumed the care of the child, is no reason why she should bear the burden that all laws, natural and divine, cast upon him. The theory that plaintiff in error raised the child as her own, and therefore was not entitled to compensation, is.destroyed .by deceased’s positive refusal to give the child to her. He thereby repudiated the idea that the child was to be kept by her as her own, and retaining' his control and authority over it, promised to pay her for its keeping.

Objection is also made that plaintiff in error, being a married woman residing with her husband, was incapacitated to enter into a contract for the keeping of this child. We see no force in this objection when coming from a party other than her husband. As said in Casner v. Preston, 109 Ill. 535, “It is certainly true that no one else can interpose such an objection but the husband.” When a wife gives valuable services to a third person, it does not lie in his mouth to say that she owed her entire time to her husband and family. Plaintiff in error was entitled to recover reasonable compensation, and the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    David McFall v. Alice D. Smith.

      Malpractice—Verdict—Weight of—Issues Improperly Submitted— Hypothetical Questions.

    1. A special finding by a jury on one question of fact directly contrary to the evidence, should lessen the confidence of the court in their judgment on other points.
    2. Where questions, not properly arising upon the evidence, are so mingled before the jury with the real issue in the case as to render it doubtful upon what ground they based their verdict, the same should be set aside.
    3. Hypothetical questions to experts, not fairly based upon the evidence, and which have a tendency to mislead and prejudice the jury, are to be considered by the court in determining whether a new trial should be granted.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Coles County; the Hon. J. F. Hughes, Judge, presiding.
    Messrs. Wiley & Neal, for appellant.
    There can be no question but this court has, riot only the right to pass upon questions of fact, but it is just as much its duty to do it as it is to pass upon questions of law, or as it was the duty of the jury to pass upon the facts in the first instance.
    The rule is settled in this State that when there is no evidence to sustain a verdict, or when the verdict is manifestly against the weight of the evidence, the judgment will be reversed. Reynolds v. Lambert, 69 Ill. 495; T. U. & Western R. R. Co. v. Moore, 77 Ill. 217; Counselman et al. v. Whitehair, 14 Ill. App. 74; Krebs v. Thomas, 12 Ill. App. 266.
    The provision in the practice act that no more than two new trials shall be granted to the same parry for the same cause has no application to this court. Ill. Cen. R. R. Co. v. Patterson, 93 Ill. 290; Wolbrecht v. Baumgarten, 26 Ill. 291; Stanberry v. Moore, 56 Ill. 472; Loewenthal v. Streng, 90 Ill. 74; L. S. & M. S. Ry. Co. v. Kuhlman, 18 Ill. App. 222.
    Messrs. John S. Hall, James W. Craig and Horace S. Clark, for appellee.
    The questions of fact in this case have been passed upon by four juries, forty-eight men, good and true, citizens of the same county, all hearing the whole evidence, seeing the witnesses face to face, hearing the instructions of the court and hearing the arguments of the counsel on behalf of the appellant, learned in the law, and who stand high in their profession ; three new trials; and now without error of law insisted upon, it is asked that this court grant them another trial. The first verdict was $100, the second $1,500, the third $2,000 and the last $900, something less than the average of the four, and we insist that this ought to be the end of it, and respectfully submit to this court that the judgment should be affirmed.
   Conger, J.

This was an action on the case brought by appellee against appellant, charging him with negligent and unskillful practice as a physician. Appellee recovered a verdict for $900 upon which judgment was entered.

The declaration consisted of eight counts, the substance of which appears as follows, as taken from the abstract:

First count avers that defendant was a practicing physician; that as such physician plaintiff employed him, she being about to be delivered of a child, which employment was accepted by defendant, and he so unskillfully and negligently conducted himself, that thereby the plaintiff underwent great and unnecessary pain and anguish, was greatly disordered, reduced, weakened and so remained hitherto, and has been obliged to pay divers other physicians divers sums of money, amounting to $100.

Second count same as first, except it avers the damages to plaintiff arising from defendant’s negligence to be the tearing and lacerating the lower portion of plaintiffs womb, rendering her a hopeless invalid for life, causing her great pain and anguish from thence hitherto.

. The third count avers that by reason of negligence of defendant, plaintiff’s perineeum was greatly torn and lacerated, causing great pain, etc.

The fourth count avers that through negligent and unskillful administration by defendant to plaintiff of anaesthetics the delivery of her child was delayed until her strength was so far exhausted and her sensibilities so far gone, and her nervous system so far stupified that she was, in consequence thereof, greatly torn and lacerated about the vaginal orifice and womb.

Fifth count avers that when plaintiff’s childbirth sickness began and she sent for defendant, he came and gave her morphine and went away, and when plaintiff sent l'or defendant at divers other times between the beginning of said sickness and the delivery of the child, the defendant would,come, and at each time simply direct the continued dosing of the plaintiff with anesthetics, leaving the plaintiff to suffer until her strength was exhausted, and causing her to be greatly torn and lacerated about the womb and perineum.

Sixth count avers that defendant carelessly and negligently went away and slept until plaintiff’s strength was exhausted, in consequence whereof she was greatly torn and lacerated about the womb and perineum.

Seventh count avers that defendant so unskillfully and negligently wrenched the child from the plaintiff that she was thereby torn, etc.

Eighth count avers that at the delivery of her child plaintiff was greatly torn, etc., and that defendant carelessly went away without stitching the lacerated parts, or doing anything else looking to the care of the parts, and left plaintiff in such condition to this date.

The jury returned with their general verdict the following ten special findings, viz.:

1. Did the giving of morphine by the defendant to the plaintiff cause any injury? A. Yes.

2. Did the absence of the defendant at any time after he was first called and before the birth of the child cause any injury to the plaintiff? A. Yes.

3. Did the defendant with his hands tear the perinæum of the plaintiff ? A. No.

4. Did the defendant after the child’s head was born, forcibly pull the child from its mother without waiting for any labor-pains to assist in its expulsion? A. No.

5. Was it through any fault or negligence of the defendant, that the perinænm of the plaintiff was torn? A. No.

6. Was there any such tear in the perinaenm as the ordinary practice of physicians in good practice required to be sewed up? A. Yes.

7. Was the plaintiff injured by anything the defendant did? A. Yes.

8. Was there anything in the treatment of the plaintiff by the defendant that the ordinary skill of the medical profession required defendant to do which he did not do? A. Yes.

9. Was there anything done by the defendant in his treatment of the plaintiff, that the ordinary skill of the medical profession would have required him not to do ? A. Yes.

10. Would it have been any to the advantage of the plaintiff, if the defendant had discovered the tear in plaintiff’s perinæum at the time of the birth of the child? A. Yes.

While the record is quite voluminous, the vital questions in the case, and the one upon which the right of recovery can be alone placed, is the charge contained in the eighth count. The physicians nearly all agree in their testimony, that if the rupture of the perinaenm was as extensive as claimed, by appellee reaching into and tearing the sphincter ani, that there should have been a more thorough examination made, and a majority of the medical experts testify in such case there should have been stitches taken to bring the edges of the rupture together, while some of them think, even under such circumstances, sewing would not be necessary.

But all substantially agree, that if the rupture was no more extensive than is claimed by appellant, and did not involve the sphincter ani, then the treatment given by appellant was proper; so that in our judgment the first and really the controlling question is, did the evidence warrant the jury in finding the rupture to have been as claimed by appellee, viz.: that is, involving the sphincter ani, and therefore requiring at the hands of appellant other and further attention than he gave it. There are seven witnesses, who testify upon this subject from personal examination, two of them appellant and appellee, before the rupture healed, and the other five from an examination of the scars left upon the person of appellee.

Appellee was blind, but testified that her sense of touch had been educated and developed, until she could with her fingers determine the direction, nature and length of the wound as accurately as one could by sight. She says, some three days after her child was born, she felt such a soreness and misery that she examined herself. Could tell with her finger that she was so very much swollen; that the laceration then seemed to be two or three times longer than it possibly could be. It seemed to be all of two inches. The scar (by which we understand she means the rupture) extended entirely back to the anus and seemed to be back to it—not through it, but into it. It seemed to extend into the muscle of the sphincter ani, but not through it. She also testified that the action of that muscle was positively destroyed for several days; hadn’t a particle of control of it for several days, perhaps two weeks.

Mary J. Mitchell, who had been a. nurse for several years, waiting upon women in childbirth, was the mother of ten children and had delivered a good many women without the assistance of a physician, testified upon this point that she had examined appellee’s private parts since they had healed up— how long after the birth of the child does not appear, except she says that it was the last term of the Circuit Court. She says: “ It (the scar) was about one-half inch and then it came around in a kind of a triangle like; both the triangle and the plain split would make it about one inch. It was healed up, but still it was open. Then there was another place on the right side that was torn and that was grown up into a kind of gristle in the shape of a bean and that just kind of hung there in a kind of dungle. The scar is visible, is about a half inch; the open place is about half an inch. The scar looked as if it was to the rear opening, but it had healed up. The scar is right up to the opening.”

Rachel Coleman is a married woman and has examined appellee twice; she says: “She is torn from one opening to the other about as near as I can tell. The scar looks about a half inch around toward the left limb. There is a place looks as though it was a half inch right at the birth place. Then there is a place that is about as large as a common-sized bean that never has been healed up. The scar came within the thickness of a pencil or a rye straw of the anus. There is a space of say near a half inch that did not close up. The scar from one opening to the other has been healed up, but the other, around toward the left limb, it has healed, of course, but has not closed up. She thinks the muscle surrounding the rectum must have been torn through.”

Angelina Thompson is a married woman and has six children and states that she made an examination at the same time the two former witnesses did, and says: “ There is an open rupture running diagonally from the lower part of the' birth place toward the left limb, that is over a half inch, and from the end of that going toward the anus, there is a scar of half an inch ; between that and the anus there is no more than the thickness of a slate pencil. There is just inside the birth place on the left side a lump about the size of a large grain of corn, that looks as if the flesh had been torn and had not gone back; it stands loose.”

Upon this question appellant testifies that on Monday morning, after the child had been born on Saturday, appellee’s husband came to him and told him appellee wanted to see him, that she thought she was torn. He went and made an examination. He says: “I examined her and found a light lateral rupture; my judgment then was about a half inch, a little to the left. It was a tear of the vaginal muscles, but the sphincter ani was not torn. I introduced my finger into the rectum to ascertain whether that was torn, and it was not, a1 id this being a lateral rupture, it had a disposition to come together without stitching. If it had been straight down and involved the sphincter ani, it would have been necessary to sew it, because the muscles must be held together to heal; but it was on the side, and all you had to do was to put it in position to rest, and it would heal itself.”

Dr. P. A. Kemper, a graduate of Rush Medical College, and a practicing physician since 1858, together with Dr. V. R. Bridges, a graduate of the same school and with a practice of thirty-five years, made an examination of appellee, just when does not appear, except that it was just after some former trial of the case. Dr. Kemper says:

“This was Sunday following the first trial. It was about 12 o’clock. There was light from the south window. She was placed in a chair before this window, the parts were exposed, and the first thing after examining the external appearance was to insert the finger into the rectum to see if the sphincter ani muscle was intact. That was satisfactory and the muscle seemed to be all right. The next was to examine the space from the rectum to the fourchette, or birth place, about one and one-half inches. That space from the fourchette down, perhaps a scant three-fourths of an inch, and a little laterally, had the appearance of having been torn and healed up.

“I then introduced the speculum into the vagina and brought the mouth of the womb within the space of the speculum and examined it carefully, as I had been told by Mrs. Smith that her womb was considerably lacerated. I found that intact and all right. I then took a silver catheter about the size of an ordinary goose quill and introduced it into the bladder and the urethra. Sphincter would grip it and hold it straight, showing it was strong and all right. The external parts were all right. There was a peculiar arch of the pelvis. She would necessarily have a hard labor from the peculiar formation of the pelvic bone. Her pelvic bones are acute. The laceration was not straight down, but a little to the left. If the sphincter ani was torn through it would not heal up itself without being held together by stitches. The sphincter ani of plaintiff had never been torn through. The wound is no longer than the scar. You can not tell by the scar how deep the wound has been.”

Dr. Bridges says: “Mrs. Smith was in a chair when I went over, in a position to be examined. Dr. Kemper had made his examination, and I found that the sphincter ani and the bladder, so far as I was able to determine by the introduction of my finger in the one and the catheter in the other, the sphincters were perfectly intact. My judgment is they had never been broken.

“It was in perfectly normal condition, so far as I was able to see. There was a scar; there had been a laceration of the soft parts near the vaginal septum and the anus; it had passed to the left of a direct line. The laceration was somewhere near three-fourths of an inch, I think a scant three-fourths from the appearance of the scar and the granulation. There is a scar to the left of the raphe, which is in everybody, about one-half inch in length, probably a scant one-half inch, that indicates union was had without any suppuration, just glued together, union by first intention. It was a clear, smooth scar, just such as you would see if a knife had passed through. Just at the top of the scar the surface would indicate there had been some healing by granulation, that is by the formation of new tissue. There is a granulated surface that may have been one-fourth of an inch and may have been less. I am sure it was not more than a quarter. So the rent was about three-fourths of an inch extending toward the left.
“I don’t think the union would have been better with a stitch than it is now. I don’t think there could have been any improvement. There would have been no better union with stitches than there is now.
“I didn’t observe any laceration on the right side. I examined it. There was no loose flesh hanging there, nothing there but what belonged there.”

This was all the direct evidence there was upon this point. Some of the physicians thought that the length of the sear as testified by appellee’s witnesses would indicate that the rupture involved the sphincter muscle, while others were of opinion that had such muscle been seriously torn, it would not have healed up as it did without having been sewed.

We have no hesitation in saying that from an examination of the evidence contained in the records upon this question, it is very far from satisfying us that appellee had any preponderance of testimony, but there were some other circumstances to which we have not yet alluded. It was sought to impair the testimony of Dr. Kemper, first, by some impeaching questions, and, secondly, by trying to show that he had, at the instance of appellant, sought an opportunity to examine appellee and was not, therefore, entirely impartial.

We do not care to express any opinion upon the degree that this might detract from the weight to be given to his evidence, for if it appeared that the question of the ex'ent of the wound had been fairly passed upon by the jury unaffected by other matters which, we are inclined to think, did improperly, and to the prejudice of appellant, enter into its consideration, we should perhaps not feel warranted in inter-1 fering with their verdict.

One of the charges of improper practice was the administration of morphine prior to the birth of the child, and the jury have specially found that such administration caused an injury to appellee. The only witness in the entire record who states that it would not be good practice is Mrs. Mitchell? while every physician whose attention is called to the question, and there were six of them, says that under the circumstances such administration was proper and according to good practice. If the jury have so utterly misconceived and misapplied the testimony upon this point, it materially lessens our confidence in their judgment upon others; nor can we know how far the jury may have been influenced1 in their general verdict by their mistaken views upon the question of the administration of morphine.

Again, the hypothetical cases supposed in framing questions by counsel for appellee, to be put to the physicians as experts, were unfair and misleading.

It is true the rule allows counsel to frame questions upon such theory and upon such facts as he may choose, leaving it for the jury to determine whether such supposed facts are shown by the evidence or not, still, when it is apparent, upon a review of the case, that such questions as are asked have had a tendency to mislead and prejudice the jury, they should be considered in determining whether a fair trial has been had. One of these questions assumed that appellant had with his fingers, by pressing against the perlneeum of appellee, torn it before the head of the child was born, and then when the child’s head was born, that appellant, without waiting for another labor-pain, pulled the child from the mother. Such a theory was not warranted by the evidence. Mo one pretends that anything like that happened, except that appellee in the agony of child-birth imagined it, which all the pliysicians say is not at all uncommon, while appellant and the nurse, Mrs. Smith, both say nothing of the kind happened and the jury specially found that no such thing occurred.

We refrain from further comments upon the evidence because we think this cause should go to another jury; for after a careful examination we are convinced that there has not been a fair presentation of the real question to the jury, but that matters about which appellant has clearly not been negligent and those which may be regarded as debatable, have been so mingled before the jury, as to make it doubtful, at least, upon what they finally placed their verdict. Hence it can not be said that the jury have, from the evidence, found appellant guilty upon the eighth count of the declaration, the only one, as we think, in this record, upon which a verdict could rightfully be based, and, for that reason we think the court erred in not setting aside the verdict and granting a new trial. For this error of the court the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.