author: Mr. Justice Bristow

text:
    Theresa Miller and John Miller, Appellants, v. Henry A. Scandrett et al., Trustees of Chicago, Milwaukee, St. Paul and Pacific Railroad Company, Appellees.
    Gen. No. 10,021.

      Heard in this court at the May term, 1945.
    Opinion filed October 22, 1945.
    Released for publication November 12, 1945.
    Wing & Puklin, for appellants; Arthur L. Puklin, of Aurora, and Edward Puklin, of Elgin, of counsel.
    Edwin R. Eckersall, of Chicago, and Arthur L. Paulson, of Elgin, for appellees; M. L. Bluhm, of Chicago, of counsel.
   Mr. Justice Bristow

delivered the opinion of the court.

This appeal comes from the circuit court of Kane county where judgment was entered for defendants and against plaintiffs in bar of action and for costs, which judgment followed a jury’s verdict finding the issues for the defendants.

The errors assigned for reversal are: That the verdict is against the manifest weight of the evidence and against the law; that the trial court erred in denying plaintiffs’ motion for a new trial; that the verdict was influenced by the misconduct of a juror and of a claim agent of defendants; and that the court erred in failing to' discharge the jury within a reasonable time after their inability to reach a verdict, or to permit them to retire for sleep and rest.

Plaintiff, Theresa Miller, was driving an automobile in a northeasterly direction on Jackson street, near and outside the limits of Aurora, Illinois, toward and across the railroad tracks of defendants. The tracks and Jackson street intersected each other at approximately right angles. Plaintiff, John Miller, husband of Theresa Miller, was sitting in the front seat of the automobile. The time was near 6: 30 o ’clock p. m., November 1, 1941, and it was dark. An engine drawing six cars ánd a caboose was proceeding on said track in an easterly direction, toward and across said street, at a rate of speed of 10 to 12 miles per hour. At this crossing the front end of the engine struck the left side of the automobile, injuring plaintiffs severely and damaging the automobile. The automobile was traveling at a rate of speed of about 10 to 12 miles an hour during the last 40 feet of travel.

At the intersection in question there were no lights or warning signals with the exception of the customary cross arms. Both plaintiffs had been over this crossing many times and were fully aware that they were approaching a railroad crossing. On a side track 39 feet south of the main track was standing a freight car and south of that car was a building which obstructed the view of plaintiffs to the west.

A careful reading of the voluminous record which contains more than 600 pages, discloses the usual conflict between the witnesses for the plaintiffs and defendants on the material charges of negligence and contributory negligence. We deem it unnecessary to detail the testimony of each witness and suffice it to say that we have reached the conclusion that the jury’s finding and court judgment are not against the manifest weight of the evidence. On the issue of contributory negligence, it is clear that had the plaintiffs looked west after passing the side track, they would have seen the locomotive approaching, and in the space of 39 feet, travelling 10 to 12 miles per hour, the driver could easily have stopped the car and avoided the accident.

Appellants contend that the trial court should have discharged the jury within a reasonable time, or should have permitted them to sleep and rest. The case was submitted to the jury at 4:10 p. m. The jury returned its verdict at 11:45 p. m. This surely is not an unreasonable length of time for a jury to deliberate on a case which consumed the greater part of a week. Chicago City R. Co. v. Shreve, 128 Ill. App. 462, 478. There is no showing of any kind to indicate that the court abused its discretion in not discharging the jury before it returned its verdict.

Furthermore it would be singular indeed for counsel to be allowed to profit by an error (if it be one) that he generated by his own conduct. The record discloses the following colloquy between court and counsel in course of the argument on the motion for a new trial:

The Court: Let me ask counsel if you personally did not speak to me three times and ask me not to let the jury go because you thought they might be coming in with a verdict in your favor if they were kept out long enough?

Mr. Puklin: I am sorry—

The Court: I am asking counsel that question.

Mr. Puklin: I am sorry that the Court has seen fit to bring into this matter the conversations we were having, which I am not permitted to contradict by showing in my own affidavit because I could not ask the Court to make any affidavit—

The Court: I am asking counsel if that is not a fact.

Mr. Puklin: I want to say for the record that we had quite a lengthy conversation that evening,—

The Court: On three different occasions did you not—

Mr. Puklin: —and the Court must have considered that this case was of enough importance so that he cancelled some personal engagement that he had for that evening in order to stay here to wait for the jury’s verdict. I thought possibly the court reached his decision to keep the jury out because of that fact.

The Court: I am asking counsel if that was not the fact, if we did not have that conversation and if such a request was not made by him?

Mr. Puklin: I am not denying that, if the Court please.

The Court: All right.

The seven or eight hour deliberation of the jury was overheard by several persons. "What transpired in the jury room was brought to the attention of the trial court by affidavits of two of appellants’ counsel and an adult son and daughter, which were attached to the motion for new trial. These affidavits disclose that there were seven women on the jury, several of whom lived 4 to 12 miles from the courthouse, and some of whom were dependent upon bus service to return to their homes and that the last bus left shortly before midnight; that those women thus situated were more concerned with getting home than discharging their sworn duties as jurors; that they were heard to say repeatedly, “How long do we have to stay?” ‘ ‘ How will we get home ? ” “ What happens if we can’t agree?” “We can’t stay here all night,” “I am getting tired, let’s get this over with.” It further appeared from the affidavits filed on behalf of appellants that one Joel GL Hunter was the foreman of the jury, and in him the defendants had an ardent advocate. He was reported to have read and reread instructions favoring the railroad, and often asserted, much to the discomfort of the lady jurors, that he would stay there locked up three days if necessary to secure a triumph of his views. It further appears without dispute that the jury on its first ballot stood seven to five for the plaintiffs, and at one time registered eleven to one for the plaintiffs, Mr. Hunter being the lone disciple of the cause that eventually prevailed.

The appellants contend that the foregoing circumstances evidence a gross miscarriage of justice and consequently they didn’t receive a fair trial. It is true that plaintiffs must have suffered a shocking disappointment to find a turn of events in a jury room which effected such a complete reversal of sentiment. The appellants cite no authority that would justify this court in disturbing a verdict upon such a showing. * If the arguments and discussion of a jury are open to attack by a group of eavesdroppers, a verdict returned by them would be of little value. If such were the case jury rooms would soon have loud speaking devices so that the soft and gentle spoken members of the panel would not be misunderstood, and rules would have to be enacted prescribing the exact number of listeners to which each litigant is entitled.

A further charge of misconduct is found in the affidavits of the daughter and son, Betty Miller and Lester Miller, of the plaintiffs. They assert that they saw, in course of the trial, Joel Gr. Hunter, the jurors heretofore mentioned, and Harold J. Barry, claim agent for the railroad, engaged in a whispering conversation in one of the hallways of the courthouse and that they saw them enter one of the toilets together. Both Barry and Hunter filed counter affidavits making a complete and sweeping denial of such charges.

Hunter’s affidavit stated that he did not know any of the parties, attorneys or the claim agent, and did not know the case was on trial until he arrived at the courthouse; that he did not at any time during the time of the trial or any other time before the verdict was returned talk to or converse with any party to the cause or their attorneys, or with any person employed by the parties in respect to the case and facts involved, or any other matter, whatsoever. His affidavit stated that during the trial or thereafter he did not talk or converse with the claim agent with respect to the case and facts or with respect to any other matter, whatever; that he did not at any time speak to Barry, nor did Barry speak to him; that he knew nothing of the facts and had no interest at any time in the outcome of the trial.

The affidavit of Barry stated that he investigated the accident and was at the trial only to assist the attorneys for the defense; that he left when the jury retired and did not return. In like positive language, Barry, in his affidavit, swore that he did not at any time talk or converse with any member of the jury on any matter, whatsoever. And specifically, that at no time during the trial did he talk with the juror, Hunter, with respect to any matter whatsoever, and that he did not at any time whatsoever speak with the juror, Hunter, nor did Hunter at any time speak to him.

Appellants have cited several cases in support of their claim that there had been tampering with the jury, by defendants. These cases are: Cox v. Aetna Casualty & Surety Co., 261 Ill. App. 394, 402; Jeneary v. Chicago & Interurban Traction Co., 225 Ill. App. 122, 132; Bonnet v. Glattfeldt, 120 Ill. 166, 178-179; Mobile & O. R. Co. v. Davis, 130 Ill. 146, 154; Vane v. City of Evanston, 150 Ill. 616, 626. We are in entire accord with the principles announced in each of those cases. Courts should be exceedingly vigilant and careful that there is no misconduct on the part of jurors that would reflect any question on the honesty of their performance. But upon examination of each of those cases we find therein the situation to be different from that of the case under consideration. Wherever a judgment has been disturbed by a reviewing court because of the misconduct of a juror, the evidence of such wrongdoing is clear and convincing, in fact iii most cases it was uncontradicted.

The language used by the court in the case of Village of Genoa v. Riddle, 132 Ill. App. 637, at page 639, can be profitably considered in light of the facts in the instant case, quoting—

“It is first contended that the trial court erred in not granting the motion for a new trial on the ground of the alleged misconduct of one of the jurors, in support of which several affidavits were read. Only two, however, bore on the question raised; that of Clark Strong, alleging that John Oilman, one of the jurors empanelled to try the case, stated before any evidence was heard that he had his mind made up how he would vote, and that he was prejudiced against corporations; and the affidavit of the implicated juror which denied in the most emphatic manner the statements attributed to him. From all that appears, the affiants were equally credible. 'A party holding the affirmative of a proposition is required to maintain it by a preponderance of the evidence, which can never be the case where one of the two parties, both equally credible, makes an assertion which is denied by the other. The party having the affirmative under such circumstances fails.’ Broughton v. Smart, 59 Ill. 440. Verdicts should not be set aside on mere suspicion that a juror has acted improperly. Roe v. Taylor, 45 Ill. 485. We hold, from a consideration of the affidavits, that it is not sufficiently proved that the juror whose conduct is now called in question made the statements attributed to him. To adopt appellant’s contention, and set aside this verdict on what is little more than a suspicion of the juror’s misconduct, would subject almost any verdict to a similar attack. While parties are entitled to, and should have, unprejudiced jurors, yet verdicts should not be vacated on a charge of the misconduct of a juror, except on well-defined proof of the misconduct.”

Certainly there is nothing in this record' to indicate that more credibility should be attached to the affidavits of the children of the plaintiffs than the counter affidavits. The subject matter contained in Betty and Lester Miller’s affidavit was not made known to anyone for some three weeks after the occurrence. Although the meeting of Hunter and Baker was allegedly in a public place where there was a great likelihood of many disinterested observers, none were offered to support the plaintiffs in their serious charge. If trial proceedings are to be made vulnerable to an attack, such as appears in this case, there will be no end to litigation. In any case a disappointed or losing litigant could develop a group of affidavits which would cast suspicion upon any trial.

Other errors are assigned and argued but we regard them as of such unimportance that we will not prolong this opinion by discussing them.

The trial court saw and heard the witnesses; he heard the long and able argument of counsel in support of their motion for new trial; he did not leave his court room throughout the deliberation of the jury; he' was in a much better position than a reviewing court to evaluate the charges of misconduct; he came to the conclusion that the verdict and judgment entered by him represented substantial justice. We are in accord.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    G. R. Binger, d. b. a. Binger Lumber and Coal Company, Appellee, v. Sam J. Baker, Appellant.
    Gen. No. 10,029.

      Heard in this court at the May term, 1945.
    Opinion filed October 22, 1945.
    Released for publication November 12, 1945.
    Clarence J. Schroeder, of Rock Island, for appellant.
    Sidney S. Deutsch, of Rock Island, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

This is an appeal by Sam J. Baker from the county court of Rock Island county, seeking to reverse a judgment entered against him, for the plaintiff, a dealer in lumber and coal. Suit was originally instituted in a justice of peace court, seeking recovery for materials furnished defendant, a builder and contractor. The jury in the justice court and the county court found the issues for the plaintiff. After reading the record, we are convinced that the plaintiff’s claim was meritorious and that the jury’s verdict was sustained by the evidence.

Only a few errors are assigned and argued for a reversal in the court. The appellant condemns one instruction given on behalf of appellee, but there appears a failure to abstract any of the other instructions. Consequently, we are not in a position to consider this claim error. Our Supreme Court in the case of City of Roodhouse v. Christian, 158 Ill. 137 at page 141 said:

“All the instructions asked upon the trial should be set forth -.in the abstract. Parties have no right to set forth a single instruction, or the instructions given on one side of the case, and object to the same, leaving the court to go to the record for the purpose of determining whether others supply omissions or cure defects complained of.”

To like effect is the case of Govekar v. Kweder, 296 Ill. App. 402.

More seriously urged is the assigned error that the trial court lost jurisdiction to enter judgment for the plaintiff inasmuch as the jury returned a verdict in the sum of $509.10. The plaintiff, before judgment was entered, made an oral motion to remit the amount in excess of $500, the admitted jurisdictional limit of the county court in this case.

Subparagraph 6 of paragraph 16 of chapter 79, Ill. Rev. Stat. 1943, State Bar Edition [Jones Ill. Stats. Ann. 71.012, subpar. 6], which limits and defines the jurisdiction of a justice of the peace, among other things states:

“For damages for fraud in the sale, purchase or exchange of personal property, and where the action of debt or assumpsit lies. This section applies to claims originally exceeding five hundred dollars, if the same, at the time of rendition of the judgment, are reduced by credits or deductions to an amount not exceeding five hundred dollars.”

A reading of the cases cited by appellant in support of his contention that judgment entered herein was invalid, indicates that the courts did not take into consideration the above statute. One of the cases cited by appellant is that of G. B. Hemmingway Co. v. Keagle, 181 Ill. App. 5, in which case the court said on page 10:

“The remittitur does not comply with section 6, ch. 70, Hurd’s R. S. 1911, which requires the reduction to be made before judgment.”

In the instant matter, plaintiff made such appropriate reduction in apt time.

This case having been commenced in the justice of peace court, the jurisdictional limit was five hundred dollars. Likewise, the limit of recovery in the appellate tribunal, which happened to be the county court, was five hundred dollars. The same statute which imposed this limitation and restriction on the justice and" county courts, also created the right of a litigant to make a reduction when the jurisdictional limit was exceeded. It is unreasonable to assume that only the justice court had the power to permit a remittitur. This was a trial de novo, and we believe that since the county court was operating under and controlled by the same act, it too had the power to permit a reduction in the amount found by the jury, so that judgment could be entered in an amount not in violation of the statute.

Parties to this appeal have cited the following cases which considered this problem:

People ex rel. McClintock v. Skinner, 13 Ill. 287; G. B. Hemmingway Co. v. Keagle, 181 Ill. App. 5; Werner v. Illinois Cent. R. Co., 379 Ill. 559-566; Raymond v. Strobel, 24 Ill. 113; Douglas v. Dee, 194 Ill. App. 612; Wabash R. Co. v. Barker, 79 Ill. App. 331.

We have read those cases and reached the conclusion that the county court was not without jurisdiction to enter the judgment entered herein. It should, therefore, be affirmed.

Judgment affirmed.


author: Mr. Justice Bristow Dove, P. J.,

text:
    Nellie Gould, Appellant, v. Chris Klabunde et al., Appellees.
    Gen. No. 10,036.

      Heard in this court at the May term, 1945.
    Opinion filed October 22, 1945.
    Released for publication November 12, 1945.
    Arthur G. Waite and Charles H. Francis, both pf Woodstock, for appellant.
    C. Bussell Allen, of Woodstock, for appellees.
   Mr. Justice Bristow

delivered the opinion of the court.

Nellie Gould, plaintiff: appellant, on August 13,1943, secured a judgment in a justice court against Chris Klabunde, defendant appellee.' Chris Klabunde sought to have that judgment reviewed by the county court of McHenry county, by certiorari, and to that end gave bond as prescribed by statute, which bond was also signed and executed by Paul Hines and John N. Schildt, appellees. On April 10, 1944, the writ of certiorari issued by the county court was quashed on the ground, as stated, that the petition was insufficient to warrant issuance of the writ. No further proceeding was had on such action of the court.

This appeal is in regard to a later independent suit, brought by plaintiff against appellees, on said bond. The complaint, filed on September 22, 1944, recites at length the securing of the judgment, attempt to secure review by certiorari and final determination of said certiorari proceedings. It alleges failure to prosecute such appeal by certiorari, with effect, and alleges that the defendants have failed to pay the amount of said judgment. Copy of the bond was attached to the complaint, as an exhibit.

The bond is in proper form. It .recites its penal sum and date, the securing of the judgment and that “from which said judgment the said Chris Klabunde has filed a petition for- writ of certiorari in the County Court . . . Now if the said Chris Klabunde shall prosecute his appeal with effect, and pay whatever judgment may he rendered against him by said court upon the trial of said appeal, or by consent, or in case the appeal is dismissed . . . will pay the judgment rendered against him by the Justice of the Peace, John E. White, and all costs occasioned by said appeal, then the above obligation to he void, otherwise to remain in full force and effect. ’ ’

The Ill. Rev. Stat., ch. 79, sec. 78 [Jones Ill. Stats. Ann. 71.174], provides for bond upon filing of a petition for certiorari. It provides that the bond shall have the same conditions, and if defective, may he perfected, as bonds in cases of appeal from justices of the peace. The form of appeal bonds in case of appeals is given in the statute. Since review by certiorari is provided where there is no remedy by appeal, the intention of the bond in this case as was expressly stated in the bond itself, was a bond filed as required for certiorari. It expressly referred to prosecuting an appeal with effect and payment of the judgment rendered against the petitioner. It referred to a trial by the court, between the parties. It did not provide simply for a review of the record of the justice of the peace. We find no merit in the contention that this bond was not a statutory bond given to secure the issuance of a statutory writ of certiorari and a review of the case on its merits. It does not appear without question that there was a final appealable order entered in this case which would afford a proper basis for this appeal.

On January 15, 1945, on motion of defendants to strike the complaint, the court ordered that the motion to strike be granted, and held that since the original petition for certiorari had been found insufficient, and the writ quashed, that the court had no further jurisdiction in the matter. On January 19, 1945, plaintiff filed her motion to vacate the .order of January 15, 1945, and for judgment, because defendants were in default in failing to answer the complaint. The court ordered that the motion to vacate “be and the same hereby is denied.” It further ordered that plaintiff’s motion for judgment for default was also denied.

No particular form is required in the proceeding of a court to render its order a judgment. The test as to whether an order is final and appealable is not one of mere words but of substance and intention. Goetz v. McCormick, 213 Ill. App. 33, 38. A final judgment is one that finally disposes of the rights of the parties. Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 575. The test is whether it terminates the litigation on the merits and determines the rights of the parties. Groves v. Farmers State Bank of Woodlawn, 368 Ill. 35, 45. If an order of court dismisses the proceedings or finally disposes of the cause, it is a final order. Williams v. Huey, 263 Ill. 275.

The court in this case determined that it lacked jurisdiction and ended the proceeding for lack of jurisdiction. Such order was the final determination of the cause. It was a substantial determination that plaintiff had no cause of action on the bond. It seems quite apparent that it was the intention of the court in this case to terminate the suit on the bond because it thought it lacked jurisdiction and intended that its order to that effect was an order of final disposition of the cause.

The appellant had the right to appeal from the final order of the court denying the motion to vacate the striking of plaintiff’s complaint and entering judgment against defendant for want of answer. Rago v. Veneziano, 155 Ill. App. 557, 560; Cohn v. Bernstein, 205 Ill. App. 325, 326; Billboard Pub. Co. v. McCarahan, 180 Ill. App. 539. At any rate, this court has elected to consider this appeal on the issues raised therein rather than dismiss the appeal because it does not properly lie. This conceivably may obviate the necessity of another appeal.

In view of the determination we have reached in this case, we do not deem it necessary to consider errors advanced that the court erred in refusing to grant a change of venue and in giving defendant leave to demand a jury.

The conditions of the bond in question specifically recite that a review proceeding by petition for writ of certiorari had been filed before the bond was executed. It is quite plain that the bond was accordingly given as guarantee that the proceedings would be prosecuted with effect. After such statement and immediately following, the conditions make a recital in regard to prosecuting “his appeal” with effect, to pay any judgment in the trial of “said appeal,” that if “the appeal” is dismissed to pay the judgment rendered by the justice and costs occasioned “by 'said appeal.”

It has been held that certiorari is one of the methods of appeal provided by statute. Hatterman v. Thompson, 83 Ill. App. 217, 221. In People v. McGoorty, 270 Ill. 610, the Supreme Court distinguished between common law and statutory certiorari. It said at page 620, “The common law writ only removes the record of the inferior court, and upon that record, alone, can the questions be raised. . . . while our statutory writ removes the entire case into the circuit court and opens for re-examination all questions, both of law and fact. Indeed, it is but another mode of taking an appeal from the judgment of a justice of the peace to the circuit court, and it can only be directed to justices of the peace.”

In statutory certiorari the trial is de novo in the county court as in cases of appeal. If a transcript of the proceedings is filed, it is not required that a writ of certiorari ever be issued. It is the filing of a petition with an order allowing certiorari indorsed thereon and an appeal bond approved by the court, which gives the court jurisdiction. The filing of a bond in statutory certiorari to review judgments of justices of the peace is in principle like the filing of a bond for appeal. Gallimore v. Dazey, 12 Ill. 143, 144.

When a petition of certiorari shows that the intent is the securing a trial de novo it must be regarded as a petition for a statutory writ. An order quashing the writ is a final order, from which an appeal will lie. Altamont Mfg. Co. v. Western Union Tel. Co., 222 Ill. App. 422, 427; Callahan v. Haas, for use of Smith, 55 Ill. App. 448. The order quashing the writ is final although the order fails to dismiss the petition for certiorari. Funkhouser v. Coffin, 301 Ill. 257.

This bond at length recited the judgment and the fact that petition for certiorari had been filed, to review it. The purpose was to escape liability on the judgment. An appeal is a review by a superior tribunal. The method of review may be called certiorari or appeal. This bond uses both terms. The signers of this bond could not have meant that they were giving a bond required of them by suit on a certiorari review and in the same bond use the word "appeal” as referring to another distinct proceeding called "appeal.” The use of the words "said appeal” can only reasonably refer to said review, viz, by certiorari. The first part of the condition designates a review by certiorari, and the later use of the word appeal, was referring to the method of review as recited in the conditions of this bond.

Appellees argue earnestly that since the writ of certiorari was quashed, all writings obligatory and pleadings attendant to that writ fell by the wayside and are of no effect. However, the contrary result obviously obtains. The fact that the petition and writ fell by the wayside established the fact that the bond was breached by a failure to prosecute a review with effect. He also makes the contention that since he did not land himself safely in the county court by an “appeal” that he escapes liability on his bond. In other words, it was within his own power to use any device that seemed irregular, other than “appeal,” which would result in the county court quashing his attempt, and thus he would not be required to pay under his bond. It seems strange, to say the least, that one can so easily escape his bonded engagements. The significant and determining fact remains that Klabunde did not prosecute with effect a review of the justice of the peace proceedings where judgment'was entered against him. His bond obligated him to do just that. His efforts to accomplish a review resulted unfavorably. From such adverse results, he took no appeal. His bond consequently became breached and his necessity of paying according to its terms arose.

Obligor and sureties on the bond are estopped, in a suit on the bond, to set up a defense which would contradict the recitals or implications of the bond. McCarthy v. Alphons Custodis Chimney Const. Co., 219 Ill. 616, 622-623; Cermak v. Schaaf, 308 Ill. 61, 66; Moses v. Royal Indemnity Co., 276 Ill. 177, 180. They cannot be heard to say it is a nullity. They obtained all the benefits of the bond by checking collection of the judgment in the justice court. If the proceeding for certiorari was properly quashed because of insufficiency of the petition, the obligation on the bond remains. Moses v. Royal Indemnity Co., supra.

We conclude that the county court erred in holding that it had no jurisdiction; in rendering its judgment dismissing the complaint and cause; in refusing to vacate its dismissal order and in refusing to reinstate the complaint and cause for further proceeding and hearing. The judgment of the county court should he and is reversed, with directions to vacate the order dismissing the complaint and cause and to reinstate the complaint and cause for further proceeding and hearing in said court.

Reversed and remanded with directions.

Dove, P. J.,

dissenting: The record in this case does not disclose a final appealable judgment and for that reason the proper order to be entered herein is one dismissing the appeal.

The majority opinion states that “appellant had the right to appeal from the final order of the court denying the motion to vacate the striking of plaintiff’s complaint and entering judgment against defendant for want of answer. ’ ’ This is not a correct statement of what the record discloses occurred. The plaintiff’s motion was to vacate the order striking the complaint and for judgment by default for failing to answer. The court denied the motion to vacate and also denied the motion for judgment, but no judgment was ever entered against the plaintiff or for the defendant. The further statement in the opinion to the effect that “this court has elected to consider this appeal on the issues raised therein- rather than dismiss the appeal” does not give this court jurisdiction to review an order which is not final. The right of appeal is purely and strictly statutory. Durkin v. Hey, 376 Ill. 292. The statute provides for appeals only from final orders, judgments or decrees. (Ill. Rev. Stat. ch. 110, par. 201 [Jones Ill. Stats. Ann. 104.077].) Other orders, judgments and decrees are not appealable (People v. Mitchell, 325 Ill. 472) and unless the order appealed from is a final one, this court in a case of.this character is without jurisdiction to consider the merits of the controversy.

What the record does show is that after an amended answer and ah amendment to the amended answer and a demand for a jury trial had been filed an order was entered, on motion of the defendants, withdrawing the pleadings of the defendants and withdrawing their demand for a jury trial and by leave of court a motion was filed by them to strike the plaintiff’s complaint. On January 15, 1945, this motion was heard and sustained. On January 22, 1945 a motion to vacate the order of January 15,1945 was denied and on the same day a motion of the plaintiff for judgment was also denied.

On February 20, 1945 notice of appeal was filed in the circuit clerk’s office but the abstract does not disclose from what order or orders the defendants have prosecuted their appeal. The record does not disclose the rendition of any judgment. All the trial court did, so far as shown by the record, was to enter an order sustaining defendant’s motion to dismiss and denied a motion to vacate that order. With the record in this condition the only order this court has jurisdiction to enter is one dismissing the appeal. Where a motion to dismiss a complaint is sustained, it must be followed by a judgment for the defendant to the effect that the plaintiff take nothing by virtue of his action and that the defendant go hence without day or words of similar import' or meaning. Board of Education v. Board of Education, 301 Ill. App. 228.

In the majority opinion, it is said: “The court in this case determined that it lacked jurisdiction and ended the proceeding for lack of jurisdiction. Such order was the final determination of the cause. It was a substantial determination that plaintiff had no cause of action on the bond. It seems quite apparent that it was the intention of the court in this case to terminate the suit on the bond because it thought it lacked jurisdiction and intended that its order to that effect was an order of final disposition of the case.” It is the context of the order itself and not the determination or intention of the court, that determines the character of an order. It is well settled that it is the judgment or order, and not the reason on which the judge bases it, that controls, and if a judgment or order is correct in result, the reason given by the court for it is immaterial, and the judgment will not be reversed because the court gave the wrong or an insufficient reason for its rendition. The reason which the court gave in this case when it sustained appellee’s motion to dismiss was erroneous, but that reason plays no part in determining the character of the order entered.

If' the trial court, instead of striking the complaint for the reason that it thought it had no jurisdiction, had gone further and entered an order dismissing the suit, either for supposed want of jurisdiction or for any other reason, such an order, whether right or wrong, would have been a final appealable order, but an order merely striking the complaint did not end the proceeding.” An order sustaining a motion to° strike a complaint, or an amended complaint, standing alone does not end the proceeding and is not a final appealable order. (Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill. 106; Barber v. Wood, 318 Ill. 415; Trebbin v. Thoeresz, 316 Ill. 30; Moroni v. Albers, 301 Ill. App. 633.) It is essential to finality that the case be disposed of, not merely by. striking the complaint, but by an order or judgment that finally disposes of the case. Where an appeal is taken prematurely before entry of final judgment a court of review, must, on its own motion, dismiss the appeal even though no question of jurisdiction is raised by the parties, since in the absence of a final, appealable order, the parties cannot confer jurisdiction upon the court by consent. (Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 573; Reynolds v. Wangelin, 314. Ill. App. 12.) Williams v. Huey, 263 Ill. 275 and the other cases cited in the majority opinion do not sustain the holding of the majority opinion, but support the conclusion that this order is not a final, appealable one.

In the instant case the bond upon which this suit is based provided: “Now, if the said Chris Klabunde shall prosecute his appeal with effect, and pay whatever judgment shall be rendered against him by said court upon the trial of said appeal, or by consent or in case the appeal is dismissed, or in case the matter in controversy is settled between the parties to the action without a trial by the court appealed to, will pay the judgment rendered against him by the said Justice John E. White and all costs occasioned by said appeal, then the above obligations to be void, otherwise to remain in full force and effect.” This bond does not follow the provisions of the statute and is therefore not a statutory certiorari bond. Preceding the issuance of a statutory writ of certiorari there must be a statutory bond. Ill. Rev. Stat. ch. 79, par. 189 [Jones Ill. Stats. Ann. 71.174]. There may be, and probably is, a liability on the bond in this case upon a proper complaint being filed, if the allegations thereof are sustained by the proof, but whether there is or not should not be determined by this court upon this record. This case is still pending in the trial court and the appeal should be, by this court, dismissed.


author: Mr. Justice Wolfe

text:
    Lawrence A. Smith, Appellant, v. Illinois Adjustment Finance Company et al., Appellees.
    Gen. No. 10,012.

      Heard in this court at the February term, 1945.
    Opinion filed October 22, 1945.
    Released for publication November 12, 1945.
    Lawrence A. Smith, of Savanna, pro se.

    Eckert & Eckert and Wesley A. Eberle, all of Freeport, for appellees.
    Fred A. Gariepy and Thomas J. Boodell, both of Chicago, amici curiae, and Charles Leviton, of Chicago, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

In October 1943, Lawrence A. Smith, plaintiff, filed his complaint in the circuit court of Carroll county against the defendants, Illinois Adjustment Finance Co., an Illinois corporation; H. J. Haithcox, alias Henry J. Haithcox; E. T. Hirst; and Odile Bolinger, alias O. E. Bolinger. Said complaint alleges that plaintiff is, and since October 1931, has been, duly admitted and licensed to practice law in the State of Illinois; that by virtue of such license and franchise, plaintiff has during said period of time practiced, and now practices, law in this State; that for more than six years just past plaintiff has maintained, and now maintains, an office in the City of Savanna, Illinois, for the purpose of practicing law. As a result of his individual efforts and activity during said period of time as such attorney, plaintiff now has a law practice of considerable value to him, from which he enjoys and derives compensation and income.

Said complaint further' alleges that the defendant, Illinois Adjustment Finance Co., is, and for more than 15 years has been, an Illinois corporation engaged in the business commonly known as a “collection agency,” with an office in Freeport, Illinois, and that it conducts and operates said “collection agencies” in the counties of Stephenson and Carroll and other parts of the State of Illinois; that the other defendants herein are officers, employees and agents of said defendant corporation in conducting and operating said “collection agency”; that none of the defendants has ever been admitted or licensed to practice law in the State of Illinois.

Said complaint further alleges that said defendants have for several years last past, in connection with the operation of said “collection agency,” unlawfully engaged in, and yet unlawfully engage in, the practice of law in said Stephenson and Carroll counties and other parts of the State, and have held, and now hold, themselves out to the public in said counties and other parts of the State of Illinois, as qualified to practice law in this State. Said complaint then sets forth numerous acts of said defendants constituting the unlawful practice of law. The complaint alleges that the Supreme Court of the State of Illinois, under the provisions of the Constitution of the State, has sole charge of the admission and enrollment of attorneys to practice law in this State, and also has the control and discipline of those persons whom it admits to the practice of law in the State of Illinois, and that when attorneys are admitted by the Supreme Court to practice law in this State, such attorneys become and are thereupon and thereafter officers of the various courts of the State of Illinois, and are properly entitled to assist and aid the courts of this State in the administration of justice therein.

Said complaint further alleges that - the right to practice law as a duly licensed attorney at law in the State of Illinois is a valuable franchise and is so considered and esteemed by the plaintiff herein, and that he is responsible to the Supreme Court of said State for his conduct and general practice, while persons practicing law in the State of Illinois without being duly licensed so to do, such as the defendants herein, have no right of franchise and are not responsible for their conduct as officers of the court, to the Supreme Court of the State of Illinois, nor to any court of the State.

In said complaint plaintiff prays for a permanent injunction perpetually and permanently enjoining and restraining said defendants, their officers, employees and agents, from practicing law in the State of Illinois in any manner or form whatsoever.

The defendants entered a motion to dismiss the complaint, which is as follows: “Now come the defendants, The Illinois Adjustment Finance Co., a corporation, H. J. Haithcox, E. T. Hirst and Odile Rolinger, by Eckert & Eckert and Wesley A. Eberle, their attorneys, and move this Court to dismiss the complaint of the plaintiff, Lawrence A. Smith, filed herein for injunction on the ground that: (1) That the plaintiff, Lawrence A. Smith, has an adequate remedy at law; (2) that there is no showing and no allegation of sufficient interest, injury or damage to the plaintiff, Lawrence A. Smith, in the subject matter of said cause to entitle him to the relief sought; (3) that the complaint of the plaintiff herein does not state or set up a cause of action against the said defendants.”

Hearing was had upon this motion, and the court entered an order sustaining the motion to dismiss the complaint, said order being as follows: “This cause having heretofore been heard by the Court and taken under advisement, and the Court being fully advised, it is ordered that the motion to strike complaint is sustained.” From this order of dismissal, the plaintiff, Lawrence A. Smith, has perfected an appeal to this court.

The Illinois State Bar Association, through its attorney, Fred A. Gariepy, and chairman of the committee on the unauthorized practice of law, and the Chicago Bar Association, by its attorney and chairman of the committee on unauthorized practices of law, were granted leave to file a brief and argument as amicus curiae to assist the court in arriving at the proper conclusion in this case.

The first error assigned by the appellant is that the trial court erred in sustaining the defendants’ motion to dismiss the complaint, since it does state a good cause of action against the defendants. The appellees insist that this question was not decided by the trial court, and therefore is not an issue in the Appellate Court. The order of dismissal of the trial court does not state on what grounds the opinion was based, but we will have to assume that the court considered all points raised by the pleadings in the motion to dismiss. The third point of the motion, as before stated, being that the complaint does not state or set up a cause of action against the defendant. We agree with the appellant that this point was necessarily raised in the trial court. It is urged in the appellees’ brief that the petition does hot state facts, but conclusions of the pleader. Some of the criticism, no doubt, is well taken, but an examination of the petition discloses that there are enough facts well pleaded, if there is proof to sustain them, to prove that the defendants are guilty of the' unauthorized practice of law. It is our conclusion that the complaint does state a good cause of action.

The next point raised is, that the plaintiff has an adequate remedy at law. They cite three cases as sustaining this contention, namely, People v. Universal Chiropractors’ Ass’n, 302 Ill. 228, Seager v. Kankakee County, 102 Ill. 669 and Wollitzer v. National Title Guaranty Co., 148 Misc. 529, 226 N. Y. S. 184. It is claimed by the appellees that because the corporation could' be subjected to a criminal prosecution for the unauthorized practice of law, and that quo warranto proceedings could be filed against the defendants, the plaintiff does have a complete and adequate remedy at law to stop the unauthorized practice of law by the appellees. The decisions of the courts do not sustain this contention. If the injunction in this case is ordered, it would not prevent the state’s attorney from prosecuting the appellees for the illegal practice of law, or would not prevent him from filing a quo warranto proceeding, but those would be additional remedies to stop the unauthorized practice of law. The appellees placed considerable reliance upon the, case of People v. Chiropractors’ Ass’n, supra. In the chiropractor case, the court says that the practice of chiropractic is not a nuisance per se, for the Statute recognizes it as a useful and legal method of treating human ailments. People v. Love, 298 Ill. 304. In the present case, under no circumstances, can the defendant, a corporation, lawfully practice law. It is admitted by the pleadings that the appellee has been prosecuted, and has paid a fine for the illegal practice of law, and that there is another suit pending against it for the same offense. It seems clear that the prosecution of this corporation for the illegal practice of law, has not been a complete and adequate remedy to prevent the same.

The second point is, that the plaintiff does not show sufficient interest, or injury to himself in the subject matter of the suit to enable him to the relief sought. This question is so closely related to the first one, that they will be discussed together, as the courts have discussed them in numerous other jurisdictions.

It will be observed that the complaint alleges that the plaintiff brings this suit as a duly licensed practicing attorney of the State of Illinois, in his own behalf, and all the attorneys of Carroll county and the State of Illinois; that he has a valuable franchise, which it is so considered by and esteemed by him; that he is responsible to the Supreme Court of the State of Illinois for his actions as such attorney, and that the defendants have no right or franchise, and are not responsible to the Supreme Court of Illinois, nor any other court in regard to their' conduct. In the case of People v. Love, supra, it is stated, a person’s business, profession or occupation is, “property,” within the meaning of the constitutional provision as to due process of law, and is also included in the right to liberty and the pursuit of happiness. This language is used in discussing the right of a chiropractor to practice his profession in the State of Illinois.

Perhaps the leading cases in the United States on the unauthorized practice of law are Dworken v. Cleveland Auto Club, 29 Ohio N. P. N. S. 607, also Dworhen v. Apartment House Owners Ass’n of Cleveland, 38 Ohio App. 265, 176 N. E. 577. The latter case is so similar to the case we are now considering that we quote part of the court’s opinion. “Plaintiff, Jack B. Dworken, is a practicing attorney at law, duly admitted in all the courts of record in the State of Ohio and in several of the courts of the United States of America. He instituted this action in the common pleas court for the benefit of himself and all other attorneys at law similarly situated, and on behalf of the public and courts of Cuyahoga county.

“Plaintiff alleges that as such attorney at law he is practicing by virtue of a franchise granted to him by the Supreme Court of Ohio and the United States courts; that he has been practicing for a period of seventeen years, and has built up a large and valuable practice; that the defendant Apartment House Owners’ Association of. Cleveland is a corporation drily organized and existing under the laws of the state of Ohio; that such corporation has not the right to engage in professional business, and has not the right to practice law, or maintain a legal department, or hire and employ attorneys at law to carry on said practice of law for the benefit of others; that said defendant, in violation of law and its articles of incorporation, advertised that it has a legal department for the use of others; that it maintains a law department and practices law by hiring attorneys at law to carry on the work of the practice of law; that snch advertising has been carried on for a number of years; that it was done for the purpose of inducing the public to become members of the said corporation; that the acts of the defendant are illegal, contrary to the rights of the plaintiff, all other attorneys at law, the public, and the courts, and tend to bring the legal profession and the administration of justice and law into bad repute; that plaintiff and others similarly situated have no adequate remedy at law and will be irreparably damaged if an injunction is not issued against the defendant. The prayer is that an injunction issue restraining the defendant, its officers, agents, directors, trustees, and attorneys, from advertising that it maintains a legal department for the benefit of its members and others, from maintaining a legal department or carrying on the practice of law through itself, its officers, agents, directors, trustees, dr attorneys. The defendant filed a general demurrer to the petition, and an answer in the nature of a general denial.

“The case came on for trial to a common pleas court judge, who overruled the demurrer, and found that the defendant association was engaging in the practice of law; that such acts were an invasion of the franchise enjoyed by plaintiff and all other attorneys at law regularly practicing at the Cuyahoga county bar; and granted the injunction as prayed. From this .action of the trial court, an appeal is prosecuted by defendant to this court. In this court no question determined by the common pleas court save one is challenged, namely, the right of the plaintiff to maintain the action. In support of this claim three propositions are urged by counsel for defendant: First, plaintiff does not have the right ,to invoke the equitable jurisdiction of this court, because admission to the bar, and license to practice law, is a personal privilege and not a property right. Second, no injury to property rights or special damage to plaintiff appearing, equity will not restrain the violation of public or penal statute. Third, the remedy at law is adequate, either by proceeding under the penal statute or by quo warranto proceedings.”

It will be observed that the very same questions are discussed by the court that we have now before us, and it is there stated: “No court has held that the right to practice law is a civil property right in its full import, but it is obvious that it is a valuable privilege, carrying with it the opportunity to secure material benefits and to earn a livelihood not given to those outside the profession. Such privileges are exclusive in that they are restricted to a class of individuals, who, after continued and special training by way of general education and legal preparation, and after examination and determination of special fitness, are accorded the right to follow the profession of attorneys and counselors at law. This right has been designated a right in the nature of a franchise. A franchise has been defined as the privilege of doing that which does not belong to the citizens of the public generally by common right. Irvine Toll Bridge Co. v. Estill County, 210 Ky. 170, 275 S. W. 634.

“In Matter of Co-Operative Law Co., 198 N. Y. 479, 92 N. E. 15, 16, 32 L. R. A. (N. S.) 55, 139 Am. St. Rep. 839, 19 Ann. Cas. 879, it is said: ‘The practice of law is not a business open to all, but a personal right, limited to a few persons of good moral character, with special qualifications ascertained and certified after a long course of study, both general and professional, and a thorough examination by a state board appointed for the purpose. The right to practice law is in the- nature of a franchise from the state conferred only for merit.’ ”

The court states in its opinion that the action is not brought for the punishment of the corporation for the illegal practice of law, but it is to prevent the continuance of- such illegal practice and sums up as follows: “We are of the opinion that the plaintiff and all those similarly situated as members of the legal profession have an interest in the nature of the property right, such as will support the authority- of the plaintiff, in this action to proceed as a proper party.” This case was cited with approval by our Supreme Court in People v. People’s Stockyard State Bank, 344 Ill. 462. Every point raised by the appellees in this appeal has been discussed and decided adversely to them in the Dworken case just referred to.

In the case of Stewart Abstract Co. v. Judicial Commission of Jefferson County, the court of civil appeals of Texas reported in 131 S. W. 2d 686, suit was started to enjoin the Abstract Company from engaging in the illegal practice of law. In discussing the merits of the case, the court uses this language: “The next question then is: Did the trial court have power to enjoin the illegal practice of law. We think unquestionably the courts do have such power. McCloskey v. San Antonio Public Service Co., Tex. Civ. App., 51 S. W. 2d 1088, writ refused. Unauthorized practice of law constitutes a contempt of court. People ex rel. Ill. Bar Ass’n v. People’s Stock Yards State Bank, 344 Ill. 462, 176 N. E. 901; Clark v. Austin, 340 Mo. 467, 101 S. W. 2d 977. Injunction is a proper remedy to prevent unlawful practice of law when asked by attorneys acting for themselves and other affected members of their profession. Fitchette v. Taylor, 191 Minn. 582, 254 N. W. 910, 94 A. L. R. 356, Supreme Court of Minnesota. And a corporation may be restrained by injunction from the performance of acts which constitute the practice of law. Dworken v. Apartment House Owners Ass’n of Cleveland, 38 Ohio App. 265, 176 N. E. 577. The practice of law vitally affects the public interest and the courts have power to enjoin unlawful practice, or take such other steps within their constitutional powers as may be necessary to suppress such practice.”

In the case of Fitchette v. Taylor, Supreme Court of Minnesota [191 Minn. 582], 254 N. W. 910, a case brought to enjoin the defendants from the illegal practice of law, the syllabus of the case is written by the court and is as follows: “1. If for compensation, counsel as to legal status and rights of another and conduct in respect thereto constitutes the practice of law. Such practice by laymen is unlawful. 2. The criminality of an act, or series of acts, does not bar injunctive relief if otherwise there is ground for it. 3. Injunction is a proper remedy to prevent such practice, when asked by attorneys acting for themselves and other affected members of their profession. The character 'of their special right to practice law, as a special privilege or franchise and so a property right, is enough to justify relief by injunction.”

In the case of Rhode Island Bar Ass’n v. Automobile Service Ass’n, reported in 179 Atlantic reporter at page 139, the Supreme Court of Rhode Island [55 E. I. 122], in discussing the remedy for illegal practice of law states: “They say they have not violated this statute, but if they have, then there is a remedy for their offense in the criminal court and, therefore, there is no need for this contempt proceeding. They assume that the act of the general assembly defines for all purposes the practice of the law and takes the matter out of the control and supervision of this' court. That is not so. It may be pointed out here that the same act of a person may constitute a violation of the criminal law and also may constitute such a violation of his equitable duties towards others as to justify the use of the equity powers of the court, notwithstanding the punishability of his conduct as a crime. It has been urged that this would be using the equity powers of the court to punish crime, but this objection has been held untenable. The rule is now well established that the two jurisdictions are separate and distinct, but may apply to the same conduct. In like manner, unauthorized practice of the law may constitute a violation of the criminal law and be punishable as such, and yet may constitute" at the same time a contempt of the authority of the court which may be forbidden by injunction. “Ordinarily, injunction does not lie merely to prevent commission of crime. But the criminality of an act or series of them does not bar injunctive relief if otherwise there is ground for it.” .

In the case of Childs v. Smeltzer, (Supreme Court of Pennsylvania [315 Pa. 9], reported in 171 Atlantic 883), the court held' that injunction was the proper remedy to prevent the illegal practice of law. In the case of In re Morse, Supreme Court of Vermont [98 Vt. 85] reported in 126 Atlantic reporter 550, charges were filed in the lower court alleging that the defendant was engaged in illegal practice of law, and should be held in contempt of court. The respondent answered the complaint, admitted the facts, but denied that he did anything that he did not have a legal right to do, and claimed that the court had no right to punish him for contempt of court, but that he was entitled to a trial by jury in the courts of the county where the suit was started. The court held that the suit was properly brought, and that the court had power to punish the offender for contempt of court.

In the case of Paul v. Stanley (Supreme Court of Washington [168 Wash. 371], reported in 12 Pacific reporter, second series 401), two attorneys licensed under the State of Washington to practice law, started suit for the purpose of enjoining the defendant from practicing law without a license. It was contended that the lawyers did not have such an interest in the suit, and could not maintain their suit, and also that the practice of law without a license was punished criminally, therefore an injunction would not lie. The court held that although the defendant could be punished criminally, the plaintiffs were entitled to equitable relief by injunction, and restrained the defendant from the further practice of law.

In the case of O’Neil v. People, 113 Ill. App. 195, the defendant was being prosecuted for contempt of court for soliciting a bribe while serving as a juror in a civil case. The defense was that the court did not have jurisdiction of the case, because the offense was punishable in a criminal action. In discussing this contention, the court on page 201 of the opinion uses the following language: “The contention that inasmuch as the specific act charged — soliciting a bribe — constituted a crime under the statute, plaintiff in error can only be held responsible and punished therefor after indictment and trial by jury, is equally untenable. If the act complained of is a contempt of court, the fact that it .may be declared to be a crime by statute does not make it any less a contempt of court, nor does it change the character or nature of the offense, or deprive the court of its inherent right to protect itself by imposing proper punishment therefor. The court undoubtedly has power to punish for contempt any attempt to corrupt or unlawfully influence jurors in a case pending before the court, notwithstanding the guilty party may likewise be indicted for the same offense. This power is necessary to enable the court to administer justice. Gandy v. State, 13 Neb. 445; Telegram Co. v. Commonwealth, 172 Mass. 159. As the proceeding is solely to protect public justice from obstruction, the accused is not entitled to trial by jury. Rapalje on Cont., sec. 112, and cases there cited.”

In the case of the People v. People's Stockyard State Bank, supra, it is stated: “Attorneys are officers of this court and their conduct as such is subject to supervision by it. They are, in effect, a part of the judicial system of the State. The power to prescribe the qualifications which will entitle an applicant to be admitted to the bar is judicial, as is also the power to discipline or disbar attorneys for' professional misconduct either in court proceédings or their relations with clients outside of court.”

In the opinion in a recent case (In re Morse, supra), the Supreme Court of Vermont held that since it had exclusive power with respect to the admission and licensing of attorneys to practice in that State, it necessarily had the power in an original proceeding to punish an unauthorized person who had acted as an attorney in a justice of peace court of that state.

In the case of Chicago Bar Ass'n v. United Taxpayers of America, 312 Ill. App. 243, the bar association brought a suit for injunction in the superior court of Cook county to restrain the defendants from the illegal practice of law. The court issued an injunction restraining the defendants from such practice, and the Appellate Court of the first district sustained the action of the lower court. In the case of People ex rel. Chicago Bar Association against Thomas V. Novotny, Sr., 386 Ill. 536, the Supreme Court held the respondent guilty of contempt of court for the illegal practice of law.

In the case of the People v. Goodman, 366 Ill. 346, an information for contempt was filed in the Supreme Court charging the respondent with the illegal practice of law. The court held that an unlicensed person practicing law is a contempt to the court, and should be punished for the same. In the court’s opinion, it uses this language: “It would be anomalous situation if a layman actively engaged in the practice of law, in defiance of the requirements necessary therefor announced by this court, could stay the hand of the court from suppressing his illegal- acts. The practice of law, both in courts and out of courts by one not licensed is an illegal usurpation of the privilege of an attorney and is a contempt of this court.” Further in the opinion, it is stated: ' ‘ The right to practice law is in the nature of a franchise, but the holder thereof may not incorporate himself and assign his franchise to such corporation and pass the right on to others. The privilege to practice law is personal to the holder of the right.”

In the case of Land Title Abstract & Trust Co. v. Dworken, decided by the Supreme Court of Ohio, 129 Ohio State 23, 193 Northeastern reporter page 650, we find the following: “It is quite generally held that the right to practice law conferred by the state is a special privilege in the nature of a franchise, and that the holder thereof may be protected from the invasion of the right thus vested in him. The adequate remedy for such invasion is by injunction, and that is so whether the transgressor is an individual or a corporation, though, as to the latter, as contended, quo warranto would lie.

“A recent case directly in point is that of Unger et al. vs. Landlords’ Management Corporation, supra [114 N. J. Eq. 68], where the court held that the right to practice law exists by virtue of a license from the state and may be protected from unlawful encroachment by injunction, though the act complained of is a violation of statute which prescribes a penalty.”

In the case of Unger v. Landlords’ Management Corp., a New Jersey case [114 N. J. Eq. 68], reported in 168 Atlantic 229 we find the following: “It is not necessary to cite authorities for the proposition that this court has inherent power to protect by injunction rights in property from irreparable damage threatened by unlawful acts. And the right to practice law is such a property right as will be protected by injunction. In the language of Justice Field in Bradley v. Fisher, 13 Wall. 335, 355, 20 L. Ed. 646, at page 652: “Admission as an attorney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the profession, it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family.”

“Likewise, the jurisdiction of the Court of Chancery to enjoin a threatened irreparable injury to property, although it may involve a crime, is settled. Cumberland Glass Manufacturing Company v. Glass Bottle Blowers’ Association, 59 N. J. Eq. 49, 56, 46 A. 208; hence it is immaterial that one who practices law Without a license commits a criminal offense.”

From the above quoted cases, it is clear that the highest courts of other States have repeatedly held an attorney is the proper party to bring the suit, and that an injunction is the proper remedy, for the unauthorized practice of law. Our attention has not been called to any case holding to the contrary except Wollitzer v. National Title Guaranty Co., supra, which was not decided by a court of review. In the case of the People v. Universal Chiropractors’ Ass’n, supra, the court based its decision on the fact that the practice of chiropractic is lawful. In the present case, under no circumstances could the defendant be authorized to practice law. To enjoin them from the unauthorized practice of law, could in no wise take away any right that they have.

It is our conclusion that the court erred in dismissing the complaint, and the order dismissing the same is hereby reversed, and the cause remanded to the circuit court of Carroll county with directions to overrule the motion to dismiss the suit.

Reversed and remanded with directions.


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    Alfred H. Chandler, Appellee, v. Charles L. Chandler, Administrator of Estate of Charles H. Chandler, Deceased; et al., Appellants. First National Bank of Cullom, Appellant, v. Alfred H. Chandler, Appellee.
    Gen. No. 10,014.

      Heard in this court at the February term, 1945.
    Opinion filed October 22, 1945.
    Released for publication November 12, 1945.
    M. H. Scott, of Piper City, for appellants.
    C. G. Hirschi, of Watseka, John H. Beckers and Dyer & Dyer, all of Kankakee, for certain appellee; Wayne H. Dyer, of Kankakee, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The defendant, the First National Bank of Cullom, has appealed from a decree of the circuit court of Iroquois county, granting the plaintiff, Alfred H. Chandler, equitable relief against the enforcement of the defendant’s judgment against him. The judgment was rendered on March 17, 1937, for $5,715 the sum then due on seven promissory notes, on confession of judgment under warrants of attorney. Six of the notes were signed by David H. Chandler and his two brothers, the plaintiff and Charles H. Chandler; the other note was signed by David H. Chandler and the plaintiff. The judgment was taken against the plaintiff only. On March 27, 1937, the plaintiff filed a motion to vacate the judgment because the circuit court did not have jurisdiction to render the judgment, since each warrant of attorney attached to the respective notés was a joint and not a several warrant of attorney. On January 25, 1941, the circuit court entered' an order denying the motion. This order was affirmed by this court at the May Term, 1941. (First Nat. Bank of Cullom v. Alfred H. Chandler, 311 Ill. App. 254.)

After the affirmance of the above order, the. plaintiff filed a motion in the circuit court to open the judgment and for leave to plead. On June 3, 1942, this motion was allowed and a rule entered that the plaintiff plead within 10 days. . On February 14, 1942, the plaintiff filed his complaint in equity and the suits at law and in equity were consolidated by agreement of the parties. The defendant filed an answer to the complaint. After a hearing before the chancellor, the plaintiff amended his complaint. Thereupon the chancellor, on July 24, 1944, rendered the decree from which the appeal is taken to this court. The original complaint is for an injunction restraining the enforcement of the judgment, aud an accounting for rents and profits allegedly received by the defendant.

The evidence shows, and the chancellor so found, that the defendant did not receive any rents and profits for which he was bound to account to' the plaintiff, and there were no equities to be adjusted between the parties on an accounting.

The complaint was evidently drawn on the theory that the aid of a court of equity was required to secure a decree directing the defendant to convey land in the State of Texas, or tq sell the land. (Vide, Cooley v. Scarlett, 38 Ill. 316; Bevans v. Murray, 251 Ill. 603, 623.)

In his original complaint the plaintiff based his claim to an equitable defense to the judgment on the fact (which is admitted by the defendant), that the notes were for money borrowed,from the defendant by David H. Chandler. That under an agreement entered into between David H. Chandler and the defendant the liability of the plaintiff, as a signer of the notes, was contingent on the sale by the defendant of the land in Texas which was conveyed by David H. Chandler to the defendant under the terms of the agreement.

The agreement was made on April 30, 1931, and on that date there was due the defendant the amount of $2,700 represented by various notes signed by the plaintiff and his two brothers. On October 22, 1932, this note was renewed by the execution of a new note, signed by the three brothers. There was also due the defendant, on April 30, 1931, six notes which were signed by the brothers as before stated. These are the seven notes which were placed in judgment. It also appears from the record that on April 30, 1931, David H. Chandler and one Frank Chandler were indebted to W. J. Kiley, then cashier of the defendant bank, on their note for $546.90 with interest at the rate of seven per cent per annum from the date of the note, March 12, 1923.

The agreement between W. J. Kiley and David H. Chandler, states that David H. Chandler is indebted to the First National Bank of Cullom, and that he is further indebted to Kiley; that it is the desire of Chandler to further secure said indebtedness; that Chandler is the owner of an undivided one half interest in a tract of land in Randall and Potter counties in Texas. The agreement further provides in substance: In order to further secure said indebtedness, Chandler did on April 22, 1931, convey his interest in the land by quitclaim deed to Kiley with the full right of Kiley to sell the land to any purchaser which he might obtain, with the understanding that out of the purchase price Kiley was to pay said indebtedness of Chandler, and the net balance of the purchase price was to be refunded to Chandler. Chandler reserved the right to sell the land and if he pays the amount of the indebtedness, Kiley is to convey the land to such purchaser. Furthermore, if said notes and indebtedness should be paid prior to the sale of the land, then Kiley is to reconvey the land to Chandler.

The contention of the plaintiff that his liability as a signer of the notes was contingent on a sale of the Texas land rests on the proposition that he was a surety on the notes. (Prout v. Lomer, 79 Ill. 331; Wurster v. Albrecht, 237 Ill. App. 284; Foy v. Blackstone, 31 Ill. 538; Walker v. Crawford, 56 Ill. 444.)

The evidence of the plaintiff tending to show that he was a surety on the notes is to the effect that Kiley informed him when he signed the notes that the Texas land would take care of the notes and that he need not worry about the notes; that execution of the notes was required “to square the bank with the bank examiners.” The plaintiff also introduced the defendant’s liability sheets of David H. Chandler and the plaintiff showing that their names were carried on the sheets, the former as maker and the latter as indorser of the notes. Each of the notes contained the statement: “Each maker of this note is a principal.”

It is the contention of the defendant that the plaintiff, having signed the notes containing the language above quoted, as against the defendant (the payee of the notes), he waived his rights or status of a surety on the notes; furthermore, to permit the plaintiff to prove by oral or extrinsic evidence that he was a surety on the notes would violate the rule that the contents of a written instrument cannot be contradicted, altered, added to, or varied by parol or extrinsic evidence. It is the contention of the plaintiff that it has been the long established rule in this State that a signer of a promissory note may show by parol evidence that he is a surety on the note.

In the case of McKee v. Gaulrapp, 367 Ill. 321, it was held, against the contention of McKee, that, where one of the makers of a note pays it, he may between the other makers prove by parol evidence, that he was in fact, a surety, even though the note contained the sentence, “All signers of this note are principals,” in order to establish his right to be subrogated to the rights of the payee of the note. The court points out that since 1863, in the case of Ward v. Stout, 32 Ill. 399, the rule has been in this State that one of the makers of a note may prove by parol that he was in fact, a surety.

In the McKee case the court makes the comment that the authorities cited by McKee as to the parol evidence rule, ‘ ‘ Might very well apply if an effort was made to vary the terms of the instrument in question as between the makers and the payee.”

In Jones v. Albee, 70 Ill. 34, it is stated that, “The rule that parol evidence cannot be admitted to contradict or change a written contract, is based on the soundest principles of public policy, and we regard a strict enforcement of this rule to bills of exchange and promissory notes as very important to the commercial interest of the country.” (See also, Harris v. Galbraith, 43 Ill. 309.)

The rule applicable to the situation in this case is ably stated by Brandt in his book on Suretyship and Guaranty, 3rd Ed., sec. 51, as follows: “Where a surety binds himself in terms as a principal in the obligation which he signs, he will be held as principal, and will be entitled to none of the rights of a surety. ‘ There is no rule of law which prohibits a surety from waiving the right which belongs to him as such. Such a waiver has nothing in itself offensive to the policy of the law.’ The express terms of the obligation in such case exclude the idea of suretyship, and the creditor has a right to avail himself of the contract his vigilance has obtained. Where three parties signed a joint and several note, the first one adding to his name the word ‘principal,’ the other two adding the word ‘sureties,’ it was held the one to whose name the word ‘principal’ was attached could not show by parol that he was in fact a surety, and known to be such by the creditor. The Court said that if the note had been silent as to who was principal and who surety, the suretyship might have been shown without contradicting the note; but in'the present case, to allow the proof would be to contradict the terms of the note. Several parties signed a note to a bank commencing as follows: ‘We, severally and jointly, all as principals, promise to pay,’ and it was held none of them could show they were sureties. The Court said: ‘Here is an express contract that each signer is a principal. Each contracts for himself with the holder that he is a principal; that he will so stand upon the note. This constitutes a part of the contract with the bank, as much as the sum to be paid or the time of payment or the promise to pay anything at any time does, and this fact as to the capacity in which the signer of the note binds himself, may often be as important a part of the contract as any other.’ A principal and several sureties signed a bond reciting that they all signed ‘as principals,’ and nothing appeared on the face of the bond to indicate that any of them were sureties. Held, the sureties were estopped by the bond to show they were sureties, and that they were not discharged by time given. Where a note commenced, ‘We, each as principal, jointly and severally promise to pay,’ but one of the signers was a surety, and known to the creditor to be such, and time was given to the principal which would ordinarily have discharged a surety, it was held the surety was not discharged.”

In an action on a promissory note, proof that some person other than the maker, was in fact the payor; or of an agreement that the payee would never collect the note, or that he would pay it himself, is inadmissible, as contradictory of the terms of the instrument. (Miller v. Wells, 46 Ill. 46.)

It is the long established rule in this State that the maker, nor an indorser, of a note cannot show against the payee an oral contemporaneous agreement which makes the note payable on a contingency. (Foy v. Blackstone, 31 Ill. 538; 22 C. J. p. 1152; Jones v. Albee, 70 Ill. 34.)

The plaintiff not having paid the judgment, we are not called upon to pass on certain provisions of the decree which are to the effect that the plaintiff is entitled to be subrogated to the rights of the payee of the note; nor that the plaintiff is entitled to contribution from the estate of one of his brothers, a cosigner of the notes. The matter of contribution among the signers of the notes is not a meritorious defense against the payment of the judgment.

There does not appear in the evidence a quitclaim deed dated April 30, 1931, or prior thereto, executed by David H. Chandler conveying the Texas land to Kiley as is recited in the agreement of that date. However, at the hearing before the chancellor the defendant introduced a warranty deed, dated May 4, 1931, executed by David H. Chandler conveying all his interest in the land to Kiley, which deed was recorded in Randall and Potter counties on May 29, 1931, and June 4,. 1931. The plaintiff thereupon amended his complaint alleging that the defendant has accepted the deed in satisfaction of its notes. There is no evidence in the record sustaining this allegation of the complaint. It also appears from the original complaint that the plaintiff knew at the time all of the notes in question were signed by him that David H. Chandler had conveyed the Texas land to Kiley under the agreement dated April 30,1931. Suits to enjoin the enforcement of a judgment at law are not favored by courts of equity. (Metzger v. Horn, 312 Ill. 173; Toledo, W. & W. R. Co. v. Ingram, 85 Ill. 172; Tyler v. Ross, 215 Ill. App. 502.) Satisfaction, or payment of a note which has been entered in judgment by confession may be shown under a motion in the court of law which rendered the judgment. (Harding v. Hawkins, 141 Ill. 572; Pyle v. Crebs, 112 Ill. App. 480; King v. Hawley, 135 Ill. App. 596; Kahn v. Rasof, 253 Ill. App. 546.).

The decree of the circuit court of Iroquois county is reversed and the suit remanded to that court with direction to dismiss the complaint for want of equity.

Reversed and remanded.


text:
    Elmer Harrison, Appellee, v. Mervin Harrison et al., Appellants.
    Gen. No. 10,027.
    Heard in this court at the May term, 1945.
    Opinion filed October 22, 1945.
    Released for publication November 12, 1945.
    W. C. Overbeck, of Henry, and Clyde Mitchell, of La Salle, for appellants.

      Charles P. Green, of Henry, and Black, Black & Borden, all of Peoria, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

In 1912 Mary Elizabeth Harrison died, testate, possessed of the real estate that is the subject matter of. this suit. Her will was properly admitted to probate in Stark county, Illinois. Under said will, a life estate was devised to the sister and brother of the testatrix with the vested remainder in equal shares to her nephews and niece, namely, Elmer Harrison, Mervin Harrison the appellant, and Hilda Darling. The surviving life tenant died in April 1938, and upon his death, appellant, Mervin Harrison went into possession of the property.

On September 9,1941, Elmer Harrison filed his complaint in the circuit court of Marshall county consisting of two divisions, one for the construction of the mother’s will, with which part of the complaint we are not concerned in this appeal. Under the second part of. the complaint the appellee, Elmer Harrison, alleged that on March 20, 1926, he borrowed of his brother, Mervin Harrison, the sum of $120, which he used to purchase an artificial leg; that as security for said sum, he conveyed by a quitclaim deed to the appellant, Mervin Harrison, an undivided one-third interest in the real estate, consisting of 40 acres, described in the complaint; that since the death of the life tenant in April 1938, Mervin Harrison has been in possession of said property collecting the rents and appropriating the same to his own use; that appellee is willing that his share of the rent so collected, be applied upon his obligation of $120 to the said Mervin Harrison, and that said Mervin Harrison account for the balance; that the court decree that the deed so given be declared a mortgage and appellee be decreed to be the equitable and legal owner of an undivided one-third part of said real estate. The complaint prayed for a partition of the premises and for an accounting by Mervin Harrison.

To this complaint, Mervin Harrison filed his answer in which he asserted that there was no debt between him and his brother existing prior to, or after the execution of the deed, and that he purchased an undivided one-third interest in said real estate of the appellee for the sum of $220 and took appellee’s deed therefor. The cause was referred to the master in chancery to take proofs and report his conclusions of law, and fact. Prior to the master filing his report, appellant was granted leave to file an amended answer in which it is claimed there was a latent ambiguity in the description of the property in his mother’s will. This misdescription was corrected by agreement between the parties, as it is not an issue in this appeal. The amended answer further charges that appellant purchased of appellee all his interest in the real estate here involved, and at the same time gave appellee a repurchase contract under which appellee had an option to repurchase a one-third interest in said real estate on the payment of the -sum of $220 together with interest, within two years of March 20, 1926, and appellee having failed to pay the said sum, his interest under said contract terminated. An affidavit of the appellant that the contract was mislaid or lost, was attached to the amended answer.

The master filed his report and found the deed in question was given as security for a debt. To this report, appellant filed objections, which were overruled, and exceptions filed in the circuit court. Before the court rendered a decision on the exceptions to the master’s report, Mervin Harrison again obtained leave of court to file his second amended answer in which he asserted that he had found the lost contract, and set forth the same in haec verba in his answer. He also interposed the statute of limitations and laches as special defenses. The plaintiff filed a reply in which he denied signing the contract set forth in the appellant’s secondly amended answer. The cause was again referred to the master who found that the deed and contract constituted a mortgage rather than a sale, and option to repurchase, and that appellee had a one-third interest in the real estate, and was entitled to partition.

Objections to the report were again filed, and overruled, and the same ordered to stand as exceptions before the court. The exceptions were overruled by the court, and a decree entered in conformity with the master’s report. The decree found that Elmer Harrison had an undivided one-third interest and appellant, Mervin Harrison, an undivided two-thirds interest in the real estate in question, and ordered partition of the same. Judgment was éntered in favor of Elmer Harrison for the sum of $96.01 representing rentals from the real estate. It is from this decree that an appeal has been prosecuted.

It is insisted by the appellee that appellant has waived all .rights to appeal from the decree of the court, because he failed to argue the exceptions and failed to submit a written brief in support thereof. The failure of the attorney for the appellant to argue the exceptions before the trial court does not deprive the appellant of his right to insist upon them in this court. The attorney, in failing to argue the exceptions, was of no assistance to the trial court in passing upon the questions raised, but the failure to argue the same or file a brief in support of his exceptions, did not constitute a waiver or an abandonment of them.

The evidence contained in the record is voluminous, and a great deal of the same appears to us to relate to immaterial matters. The appellant produced a written document under seal of the parties to this litigation, whereby it is expressly stated: “articles of agreement, Made this 20th day of March A. D. 1926, between Mervin Harrison, party of the first part and Elmer Harrison, party of the second part:

“Witnesseth, That if the party of the second part shall first make the payments, and perform the covenants hereinafter mentioned on his part to be made and performed the said party of the first part hereby covenants and agrees to convey and assure to the said party of the second part, by a good and sufficient deed, the lot, piece, or parcel of ground, situated in the County of Marshall and State of Illinois, known and described as the; (Property here described same as in controversy,) and the said party of the second part hereby covenants and agrees to pay to the said party of the first part the sum of One Hundred twenty dollars, in the manner following: One Hundred twenty dollars on or before the 20th day of March A. D. 1929. The interest to be re-conveyed by the said Mervin Harrison is to be the only interest that Elmer Harrison has in and to the premises, and the interest that Elmer Harrison has in and to said premises, and the interest that Elmer Harrison has this day conveyed to the said Mervin Harrison, with interest at the rate of seven per centum per annum, payable annually on the whole sum remaining from time to time unpaid, and to pay all taxes, assessments, or impositions that may be legally levied or imposed upon said land, to the year. And in case of failure of said party of the second part to make said payment or any part thereof, or perform any covenants on his part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made bv him on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by bim sustained, and he shall have the right to re-enter and take possession of the premises aforesaid. That said Elmer Harrison has this day deeded to the said Mervin by quitclaim deed all interest he had in and to said premises for money advanced to him, and this contract is for the purpose of the said Mervin Harrison to redeed said premises upon the payment of said sum and interest.
“it is mutually agreed by and between the parties hereto, that the time of payment shall be the essence of this contract; and that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors and administrators and assigns of the respective parties.” (It is conceded that the price of $120 mentioned in this agreement should be $220.)

The appellant swears positively that this contract was signed by the appellee at the same time he executed and delivered the deed to the premises in question. The appellee denies that he signed this contract, but an examination of the testimony relative to what transpired between the parties, convinces us that this contract was signed by the appellee and executed simultaneously with the execution of the deed in question.

In the correspondence between the parties, we think it bears out the appellant’s contention that this was a contract of repurchase. In plaintiff’s Exhibit No. 5, we find the following: “Now, as to the forty, you sold it, you had a chance to redeem it. You have had the money, year after year from your mother, and I never had a cent.” This, with other evidence, tends to corroborate the appellant’s theory of the case.

The burden of proof was on the plaintiff, Elmer Harrison, to prove that the deed, (which was an absolute conveyance of the property in question,) .was intended to be a mortgage, and to establish such facts by clear and convincing proof. Deadman v. Yantis, 230 Ill. 243; Burgett v. Osborne, 172 Ill. 227; Ryder v. Ryder, 244 Ill. 297 and Martinet v. Duff, 178 Ill. App. 199.

The language used in the deed, conveying the property, and the contract, giving the appellee the right to repurchase the land in question, is clear and unambiguous, and under such circumstances oral proof i's not admissible to give these instruments, under seal, a different meaning from the ones actually expressed in the instruments themselves. It is stated in Domeyer v. O’Connell, 364 Ill. 467: ‘‘contracts — intention must be gathered from language used. The object of construing a contract is to ascertain the intention of the parties, and that intention is to be determined from the language used in the instrument and- not -from any surmises that the parties intended certain conditions which they failed to express, and, where there is no ambiguity in the language used, from that, and that alone, may the intention of the parties be gathered.” Knowles Foundry & Machine Co. v. National Plate Glass Co., 301 Ill. App. 128; Chicago Auditorium Ass’n v. Corporation of Fine Arts Building, 244 Ill. 532; Jones v. Albee, 70 Ill. 34 and Schneider v. Sulzer, 212 Ill. 87.

It is insisted by the appellant that there was no indebtedness existing between him and his brother at the time the transaction took place, therefore the deed cannot be construed as being a mortgage. According to the testimony in the case, there was no debt existing between the parties at that time. In the case of Caraway v. Sly, 222 Ill. 203, the facts are very similar to the case that we are now considering. In the opinion, we find this language: “In this case the attempt is to have a conveyance absolute in form declared to be a mortgage to secure the payment of money, — or, in other words, to secure a debt, — while the averments of the bill show that there was no indebtedness to be secured. The agreement stated in the bill was, that the lands were to be held by Allen Sly until the complainant should be able to redeem them by paying the sums of money paid to him, with interest; that Sly knew complainant’s financial embarrassment and that it would require much time for him to re-pay the money; that upon such payment Sly was to re-convey to the complainant, and that complainant had always been willing to pay but had not been able to do so. There was a mere option to pay at some time in the future if the complainant should be able to do so, and if he should become able it would be optional to pay, or not. Such an agreement would never be barred by lapse of time and there never could be any foreclosure. The right to redeem and the right to foreclose are reciprocal, (Fitch v. Miller, 200 Ill. 170,) but the bill shows that there was no debt which could have been enforced against the land by foreclosure, either by Sly in his lifetime or by defendants since his death. An agreement giving the complainant a mere option to pay when he should be able and desire to do so, with an agreement to re-convey upon such a payment, did not constitute a mortgage, and the averments of the bill, if proved, would not entitle the complainant to any relief. The circuit court was right in sustaining the demurrer and dismissing the bill. ’ ’ This case was cited and followed in Lackey v. First Nat. Bank of Oblong, 309 Ill. App. 308, also in Williams v. Griffith, 310 Ill. App. 574. The language used by the Supreme Court is applicable to the facts in this case.

It is our conclusion that the contract introduced in evidence by the defendant, is a contract of repurchase, and the deed given by appellee to appellant was a good and valid deed'. Appellee, having failed for more than 15 years to comply with the terms of the contract of purchase, is barred, from now asserting that the deed given by him to the appellant is a mortgage.

There are other questions raised in the appeal, but under the construction of the deed and contract that we have expressed, they are not material, and the same are not discussed in the opinion.

The decree of the circuit court holding "that the deed in question was a mortgage, and ordering partition of the premises is hereby reversed and the cause remanded.

Reversed and remanded.


author: Presiding Justice Dove.

text:
    Alfretta Dickinson, Appellant, v. Rockford Van Orman Hotel Company, Appellee.
    Gen. No. 10,035.
    Heard in this court at the May term, 1945;
    opinion filed October 22, 1945;
    released for publication November 12, 1945.
    Miller, Thomas & Hickey, for appellant;
    Charles A. Thomas, of counsel;
    L. W. Menzimer, for appellee.
   Opinion by

Presiding Justice Dove.

Not to be published in full.


author: Justice Bristow.

text:
    Jesse L. Strauss, Appellant, v. Cornelius Smyth et al., Appellees. Appeal of Jesse L. Strauss.
    Gen. No. 10,025.
    Heard in this court at the February term, 1945;
    opinion filed October 22, 1945;
    released for publication November 12, 1945.
    Julius C. Greenbaum, for appellant;
    Perry & Elliott, for appellees.
   Opinion by

Justice Bristow.

Not to be published in full.


author: Justice Wolfe.

text:
    Anna L. Barnes et al., Appellants, v. Illinois National Bank and Trust Company of Rockford et al., Appellees.
    Gen. No. 10,034.

      Heard in this court at the May term, 1945;
    opinion filed October 22, 1945;
    released for publication November 12, 1945.
    Early & Early, for appellants;
    Harry B. North, for appellees.
   Opinion by

Justice Wolfe.

Not to be published in full.