author: Mr. Presiding Justice Burke,

text:
    Michael Martinek et al., Appellees, v. George L. Zarovy et al., Defendants. Appeal of George L. Zarovy and Association of Chicago Rovnans, Appellants.
    Gen. No. 42,364.

      Opinion filed May 5, 1943.
    Adam Poliak and Charles H. Pease, both of Chicago, for appellants.
    Alois Mavric, of Chicago, for appellees.
   Mr. Presiding Justice Burke,

delivered the opinion ’ of the court.

On February 14, 1920 a group of Chicagoans of Slovakian origin, formerly residents of Rovne, a vil- ' lage in Czechoslovakia, formed a voluntary association under the name of “Sjednotenie Amerieky Bovnanov,” meaning in English “Association of American Rovnans.” On March 15, 1924 the name was changed to “Sjednotenie Chicagskych Bovnanov,’’ meaning in English, “Association of Chicago Rovnans.” Up to April 6, 1925 the association accumulated $928.50, which was deposited in the Kaspar American State Bank of Chicago in the name of “Sjednotenie Chicagskych Bovnanov.” John Canik, Paul Razdik and George Hassil signed the deposit card at the bank and all withdrawals were to be made in the name of the association pursuant to their signatures. At a meeting-held on March 30, 1930, the following officers were elected: George L. Spolec, president, Joseph Duris, vice president, Joseph Kozlik, secretary, George L. Zarovy, treasurer, and John Canik, Paul E. Razdik and Joseph Halas, trustees. The minutes of this meeting show the following: “Moved that it is necessary to take out a charter. Decided to w;ait with the charter. Zarovy explained that before membership cards be had, charter should be obtained, and before everything, by-laws. Committee appointed to work on bylaws.” At the annual meeting held on December 18, 1931, Spolec did not seek re-election. The following officers were elected: Joseph Duris, president, Louis Kozlik, vice president, Adam Dzudzi, secretary, John Canik, treasurer, and Paul Komada, Joseph Krizin and Paul Pavlik, trustees. It will be observed that Joseph Duris moved from vice president to president; Louis Kozlik from secretary to vice president; Adam Dzudzi became secretary in place of Kozlik; John Canik became treasurer in place of George L. Zarovy; and Paul Komada, Joseph Krizin and Paul Pavlik became trustees in place of John Canik, Paul Razdik and Joseph Halas. At a meeting held on January 31, 1932, Joseph Duris presiding, the minutes show: 11 Three new members were appointed on committee for by-laws. About charter, Michyeta will see Perina, politician.” The minutes of the meeting held on February 28, 1932 show: “By-laws read and approved and given to secretary to rewrite and be translated into English. Decided that matter of transferring money in bank to checking account be left over to next meeting because not well attended and both treasurers, old and new, were not present.” The minutes of the meeting held on April 24, 1932 read: “Bylaws read and adopted and moved they be translated by Pavela, and that he should get at least $5.00. Moved and carried that old trustees should go to Zarovy to get the bank book.” The minutes of the meeting held on June 25, 1932 read: “Joseph Duris presiding. . . . George Zarovy reported our meetings are not regular because we have no charter, and that he has a charter. He hopes that we will get the money from the bank, but he stated we must submit a certificate for that purpose.” No further meetings of the unincorporated association were held during a period of more than six years. The minutes of the next meeting, held on August 13, 1938 read: “Called to order by M. Martinek. Officers were elected, M. Martinek, president, Louis Mihalik, vice president, and Louis Duris, Joseph Svabek and Louis Kozlik, trustees. Meeting was attended by persons named Adam Dzudzi, secretary, Andrew Michyeta, treasurer, [Here are listed names of 21 persons]. There were numerous minutes from the past, only that we know where we discontinued. Then we pondered the bylaws, about which Louis Duris stated that he composed in Slovak only, and that they should have been submitted for translation into English by M. Pavela for $5.00, but he requested $25.00. For that reason they were taken back, M. Martinek suggested that he is in some other clubs from which he can obtain bylaws, and with some changes will complete ours. This matter was unanimously accepted. There was some discussion about a charter, and it was mentioned on this that Zarovy was working with the assistance of Mr. Skarda. It was unanimously agreed that this matter be completed by the officers, that is, the president and trustees. Motion accepted that we give Brother Zarovy thanks in our minutes for his tireless work in the past, and as a great pioneer of this Club; and that we are to make this known to him through official channels.”

On June 24, 1932 the Kaspar American State Bank of Chicago was closed by the auditor of public accounts and a receiver appointed. It will be observed that the day after the bank closed a meeting of the association was held and that the succeeding meeting was not held until August 13, 1938. At the time the bank closed the voluntary association had on deposit $1,132.28. The bank was reopened on January 15, 1935, under an arrangement whereby the association, in common with other depositors, was given credit for 40 per cent of the amount on deposit and a certificate of beneficial interest as to the remaining 60 per cent of the deposit. Accordingly, at the time the bank reopened the association was given credit for the sum of $520.85 and a certificate of beneficial interest for $611.43. On January 1, 1941, the association had to its credit in the bank $571.02, as the result of an accumulation of interest. Apparently, the sole assets of the association are the bank account and the certificate of beneficial interest. The certificate of beneficial interest is in favor of “ Sjednotenie Chicagskyck Bovnanov,” or “Association of Chicago Bovnans.” The certificate entitles the association to share pro rata in any future recoveries and net profits of the bank. A written acceptance on the face of the certificate dated November 10,1934 is signed by the Association of Chicago Bovnans, by John Canik and Paul Bazdik, trustees. On May 21, 1932 a notary public certified that George Spolec, Michael Martinek, George L. Zarovy, Paul Bazdik, Joseph Korabik, Louis Duris and Joseph Krizin appeared before him and acknowledged that they executed an application to the Secretary of State to secure a charter as a corporation not for profit for “Association of Chicago Bovnans.” This application was forwarded to the Secretary of State, who, on May 31, 1932, issued his certificate that the “Association of Chicago Bovnans is a legally organized corporation under the laws of this State.” The certificate of incorporation was recorded in the recorder’s office of Cook county on August 18, 1932. The seven persons who appeared before the notary public were named as the first board of directors. This is the charter Mr. Zarovy spoke about when he stated at the meeting of the unincorporated association held on June 25, 1932 that the meetings were not regular because the association had no charter and he (Zarovy) had a charter. On May 21, 1937, as a result of an action instituted by the Attorney General of the State of Illinois, a decree was entered in the superior court of Cook county dissolving the corporation known as the “Association of Chicago Rovnans.” This decree was entered because of the failure of the corporation to file reports and to pay filing fees. On January 24, 1939, by agreement between the corporation and the Attorney General, the superior court of Cook county entered an order vacating the decree of dissolution and dismissing the information filed by the Attorney General. Thereupon; the corporation was restored to good standing on the records of the Secretary of State.

On October 8, 1938 a notary public certified that Michael Martinek, Louis Mihalik, Andrew Michyeta, Adam Dzudzi, Louis Duris, Joseph Svabek and Louis Kozlik acknowledged- that they made application to the Secretary of State for a charter as a corporation not for profit under the name of “Club Rovnan.” The certificate names Martinek as president, Mihalik vice president, Michyeta treasurer, Dzudzi secretary, and Duris, Svabek and Kozlik as trustees. On October 11, 1938 the Secretary of State issued a certificate that ‘1 Club Rovnan is a legally organized corporation under the laws of this State.” The certificate of incorporation was recorded in the recorder’s office of Cook county on October 19,1938. On October 15, 1938 there was a meeting of the members of Club Rovnan. The minutes read: “Michael Martinek presiding. Andrew Michyeta gave report on the charter, which was accepted. He reported that the State Department advised him we should have by-laws and seal. Discussion about the old treasury.” The minutes of the meeting of ■ Club Rovnan held on December 17, 1938 read: “Unanimously decided that past treasurer Zarovy be sent a registered letter for the coming meeting, at which he should give his account as to the treasury, where it is.” At a meeting of Club Rovnan held September 7, 1940 it was stated that the deposit book and certificate of beneficial interest were not in the possession of the Club and Martinek, Duris and Kulisek were authorized to use any necessary means of obtaining the funds from the bank. The minute book of Association of .Chicago Rovnans, a corporation, shows a meeting of the directors held on December 10, 1938. The president, Spolec, reported that the corporation had been dissolved and it was voted that application be made to have the dissolution vacated. The directors elected George Spolec president, Adam Dzudzi secretary, George Zarovy treasurer, and Paul Razdik, Joseph Halas, Paul Komada and Joseph Krizin as additional directors. At a meeting of Association of Chicago Rovnans, a corporation, on January 27, 1939 the minutes recited that George L. Spolec, president, presided, and that “16 officers, founders, directors and members were present. Treasurer George Zarovy reports that a number of our former members, instead of calling a regular meeting of the Association of Chicago Rovnans, called for themselves another meeting under a different name, and also founded some other Rovnan Association, and also that they possibly have for themselves a charter; on this, though, they request our treasury. Inasmuch as our Association is a properly chartered corporation, and the officers are subject under the Illinois corporation laws, it was agreed that our Association should further exist as it has existed. Adam Dzudzi explained how it was brought about that he brought our minute book to a meeting at which was founded a certain Rovnan Club; that he did not think there was going to be founded another association or club. Treasurer Zarovy showed the deposit book, on which there is shown a deposit, and also the stamping of the book, due to the reopening of the bank. Motion carried that the officers should be comprised of the following: George L. Spolec president, John Horvat vice president, George L. Zarovy treasurer and Adam Dzudzi secretary.” The minutes of a meeting of the corporation known as Association of Chicago Eovnans held on November 9, 1940 show that a report was made in which that corporation claimed to be entitled to the credits with the bank. The minutes of this meeting also contain the following: “Motion made and unanimously accepted that the members who were, perhaps, founders of this body, and are against our Association, have automatically expelled themselves.” The minutes of a meeting of the Association of Chicago Eovnans, a corporation, held on January 30, 1941 read: “Treasurer Zarovy explained in regard to the suit instituted against him and the bank where our money is deposited. . . . Upon this a motion was unanimously accepted that Attorney Poliak should also represent our corporation in said suit.”

■ On February 14, 1941 an amended complaint was filed in the superior court of Cook county by' Michael Martinek and Joseph Duris “on behalf of themselves and all others, approximately 75 members of Association of Chicago Eovnans, an unincorporated association” and Club Bovnan, a corporation, against George L. Zarovy, Association of Chicago Eovnans, a corporation, and Kaspar American State Bank of Chicago. Plaintiffs prayed for a decree against Zarovy to deliver to them the pass book, and that the bank be ordered to turn over the money credited to the unincorporated association to plaintiffs, or that judgment be entered against the bank and that Zarovy be decreed to pay to plaintiffs their attorney’s fees and .costs. An answer was filed by Zarovy and the Association of Chicago Eovnans, a corporation. The case was referred to a master in chancery. The master found there were approximately 75 members of the association in 1932, and that at the time of the incorporation of Clnb Rovnan, the membership incorporated into that club constituted all of said members, except a few of the self-constituted directors of the corporation known as the Association of Chicago Rovnans. The master recommended that a decree be entered directing the bank to pay to Club Rovnan the amount on credit under the name of Sjednotenie Chicagskych Rovnanov, or Association of Chicago Rovnans, with all interest and increase, less $50 as fees for the bank’s attorney, and ordering Zarovy to make an accounting as former treasurer for all moneys of the membership of the Association of Chicago Rovnans, and directing the defendants to deliver to the officers of Club Rovnan the bank book, certificate of deposit and all papers in their possession pertaining to the money. Objections to the master’s report were overruled and permitted to stand as exceptions. The exceptions were overruled and a decree entered as recommended by the master. The costs, including the master’s fees, were fixed at $703.60, less $300 paid on account, or $403.60, plus witness fees of $9.60, or a total of $413.20, and were taxed against Zarovy. Zarovy and the Association of Chicago Rovnans, a corporation, appeal from the decree.

Defendants assert that the meeting of the voluntary association held on August 13, 1938 was not binding upon them and was void because (a) notice was given to only a part of the members; (b) no notice was given of the nature of the business to be transacted at the meeting; and (c) only a minority of the members of the association was present at the meeting.. They also maintain that no action was taken at the meeting of August 13, 1938,. changing the name of the voluntary association to “Club Rovnan”; that an Illinois corporation can change its name only by the method prescribed by the statute; that there was no assignment or transfer to Club Rovnan of the funds in the bank; that the purposes of Club Rovnan, as set forth in the certificate of incorporation, are different from the purposes of the voluntary association; that by vacating the decree of dissolution, the corporation known as the Association of Chicago Rovnans was restored to all its rights, duties and property the same as if the decree had never been entered ; and that the taxing of all the costs against Zarovy was inequitable. Plaintiffs, answering these points, insist that. Club Rovnan was a successor to the unincorporated association; that the meeting of the members of the unincorporated association held on August 13, 1938, was a valid meeting, binding on all members, including defendants^ that the notice given for that meeting was sufficient; that there was a majority of members, except Mr. Zarovy, at that meeting; that the Association of Chicago Rovnans, up to the meeting of June 25, 1932 and at the time of the succeeding meeting on August 13, 1938, was an unincorporated association; that at the meeting of August 13, 1938 the members reassembled, officers were elected, the name was changed and shortened, Zarovy was called upon to deliver up the bank book and make an accounting and a committee was elected to procure > a' charter; that a charter was procured for Club Rovnan, a corporation, and accepted by the members of the unincorporated association; that the members of Club Rovnan,- a corporation, are the same persons as those who are members of the old association; that there was a continuity in every respect, even to the use of the old minute book; that the Association of Chicago Rovnans was not a corporation at the time of the incorporation of Club Rovnan; that Club Rovnan, having become the successor to the original Association of Chicago Rovnans, .and as such assuming its liabilities, also became the lawful owner of its assets ; that the purposes of Club Rovnan .are the same as those of the unincorporated association; that vacation of the decree of dissolution of the Association of Chicago Rovnans, a corporation, restored to it no rights, duties and property that it did not possess before its dissolution; and that the judgment against Zarovy for the entire costs is just and equitable because he inspired and caused all of the misdoings of the defendant, Association of Chicago Rovnans, a corporation.

The association was organized in 1920. In 1924 the name was changed to Association of Chicago Rovnans. At the meeting of March 30, 1930 someone "moved that “it is necessary to take out a charter.” However, it was decided to “wait with the charter.” Mr. Zarovy, then the treasurer, explained that “before membership cards be had, a charter should be obtained, and before anything, by-laws.” A committee was appointed to work on by-laws. At the meeting held December 18, 1931 John Canik was elected treasurer in place of George Zarovy. The minutes of the meeting of January 31, 1932 show that three new members were appointed “on committee for by-laws. About charter, Michyeta will see Ferina, politician.” At the meeting of January 28, 1932 the by-laws were read and approved and given to the secretary for the purpose of translating them into English. There was a discussion as to transferring the bank account from a savings account to a checking account and it was decided to allow the matter to go over to the next meeting. On April 24, 1932 the by-laws were “read and adopted.” It was “moved and carried that the old trustees should go to Zarovy to get the- bank book.” The minutes of the meeting of June 25, 1932 recite that Joseph Duris reported that he stopped the printing of the by-laws and that “Zarovy stated that our meetings are irregular because we have no charter and he has one, and that he hopes we will get the money from the bank.” The bank was closed on June 24, 1932. Due to this fact and also because many members were out of work on account of the general depression which then prevailed, the unincorporated association became inactive. No meeting was called or held until August 13, 1938, a period of more than six years. In the meantime, the members were inquiring as to the status of the bank account. On May 31, 1932, a charter was issued in the name of Association of Chicago Eovnans. It was not recorded until August 18,1932. When Mr. Zarovy stated at the meeting of the unincorporated association that the meetings were irregular because “we have no charter” and that he had one, he was referring to the charter issued May 31, 1932. Defendants maintain that the corporation known as Association of Chicago Eovnans succeeded to the rights of the unincorporated association and that it became entitled to the account in the bank. The minute book of the Association of Chicago Eovnans, a corporation, states that the charter was issued on May 31,1932. However, the first meeting, of which .there is any record, was held on December 10, 1938. At that meeting it was voted that George Spolec, president, and George Zarovy, treasurer, be appointed to take steps to vacate the decree of dissolution. At a meeting of the Association of Chicago Eovnans, a corporation, held on January 27, 1939, at which 16 officers, founders, directors and members were present, Mr. Zarovy called attention to the formation of Club Eovnan by some of “our former members.” Adam Dzudzi, secretary of Association of Chicago Eovnans, explained, according to the minutes of the meeting of January 27, 1939, “How it was brought about that he brought our minute book to the meeting at which was founded a certain Eovnan Club; that he did not think there was going to he founded another association or club. ’ ’

The unincorporated association founded in 1920, the name of which was changed to Association of Chicago Eovnans in 1924, was entitled to the funds on deposit in the bank. It is manifest that the granting of a certificate of incorporation on May 3, 1932 to some of the members did not constitute a transfer or assignment of the funds in the bank or any other assets of the unincorporated association to the corporation. The fact that a charter was procured for a corporation of the same name as the unincorporated association, did not transfer the members from the unincorporated association to the corporation. This could only be done by the voluntary action of the members of the unincorporated association. The members of the unincorporated association could by express action or by implication from their conduct become members of the corporation of the same name, and in that way the corporation could become the successor of the unincorporated association and acquire its rights and assets. There is a conflict in the testimony as to the number of members in the unincorporated association. . One witness who was acquainted with the facts testified that the unincorporated association had 75 members. This allegation is also made in the amended complaint. At the time of the trial defendants claimed there had been 120 members, and that 26 died, leaving 94 members. Mr. Zarovy was replaced as treasurer at the December 1931 meeting. He had possession of the bank deposit book, and was instrumental in procuring the charter in the name of the Association of Chicago Eovnans. He was then elected treasurer of that corporation. Apparently, he and the group with which he was associated believed that by procuring a charter with the same name as the unincorporated association, the corporation would succeed to all the rights of the unincorporated association. We find that the record does not show that the members of the unincorporated association assigned or transferred the bank account or any other assets to the corporation. In fact, the record shows that the unincorporated association appointed a committee consisting of former trustees to endeavor to procure the bank deposit book from Mr. Zarovy. The unincorporated association was not dissolved in 1932. It continued to exist as an unincorporated association. However, due to the depression and the closing of the bank, the unincorporated association became inactive. The corporation known as the Associátion of Chicago Rovnans did not become the successor of the unincorporated association and did not acquire any right to its assets. It was dissolved by a decree of the superior court on May 21, 1937. The decree was vacated on January 24, 1939 and this corporation was restored on the records of the Secretary of State. This was done with the consent of the Attorney General. The plaintiffs cannot challenge the action of the Attorney General or the superior court in thus restoring the corporation. However, the dissolution and restoration of the corporation does not affect the rights of the plaintiffs as the corporation did not acquire any greater rights as against plaintiffs after, restoration than it possessed before it was dissolved.

We turn to a consideration of the situation that arose following the meeting of August 13,1938 and the issuance of a certificate of incorporation to Club Rovnan. It will be recalled that Adam Dzudzi was elected secretary of the unincorporated association in December 1931. The last meeting was held on June 25, 1932. Plaintiffs state that the meeting of August 13, 1938 should be considered a ‘ reassemblage meeting. ’ ’ The notice sent out by the secretary merely informed the members that they were requested to come to a meeting which would be held at a certain time, and concluded “be sure to come for we have important proceeding.” This was a special meeting. Certainly no intimation was given in the notice that any move would be made to have the unincorporated association dissolved and to have the members and assets of that association absorbed by a new corporation to be called Club Rovnan. Where a special meeting is called by an association for the transaction of business of an unusual nature, reasonable notice of the time, place and object of the meeting must be given, unless the members attend and make no objection, or unless they waive notice. We are satisfied that the notice sent out by Mr. Dzudzi, announcing the meeting of August 13, 1938, was insufficient. When Mr. Dzudzi first appeared as a witness for plaintiffs, he testified: “I mailed postal cards for the August, 1938 meeting to the members of the association. I do not know whether I mailed them to Mr. Zarovy and all the members. Maybe I mailed them and maybe not.- I mailed the postal cards to all the members of the association for that meeting.” On cross-examination Mr. Dzudzi testified: “The meeting of August 13, 1938 was a special meeting. I don’t know for what purpose it was called. Martinek asked me to call a meeting. . . . Association of Chicago Rovnans had about 65 members in 1938 and about 75 in 1932. For the August 13 meeting I sent notices to about 45 members. I didn’t send it to the rest of them, because I didn’t have the addresses. I don’t know if I mailed a notice of this meeting to Paul Kovada, Paul Razdik, Joseph Krizin and Paul Spolec.” It will be observed that he did not state that the addresses of those not notified were unknown or could not be ascertained. Whether in August 1938, the unincorporated association had 65, 75 or 94 members, it is clear that notices were sent to only 45 members, and that of these only 21 or 22 were present. A charter for Club Rovnan was issued on October 11, 1938. At the meeting of Club Rovnan on October 15, 1938 “it was reported that the charter was with the treasurer.” The minutes of the meeting of Club Rovnan held December 17, 1938 read: “Agreed that Zarovy be sent a registered letter to attend the next meeting at which he is to give his report on the old treasury, where it is.” On October 19, 1940, 42 members of the unincorporated association executed a power of attorney to Michael Martinet and others authorizing them to proceed to collect the money deposited with the hank, and to acquire the deposit book and any other property belonging to the unincorporated association, and for an accounting. On July 22, 1941 three of these 42 members executed revocations of the power of attorney theretofore executed. We find that in addition to the notice being insufficient, it was sent to only 45 members. At that time there were 65, 75 or 94 members in the association. Only 21 or 22 members attended the meeting. It is manifest that these members of the unincorporated association could not transfer the assets of that association to the new corporation known as Club Eovnan. Nor could the Club Eovnan obtain the members of the unincorporated association as its members without their consent. The parties procuring the charters apparently believed that the charters conferred authority on them to control the activities and assets of the unincorporated association regardless of the wishes of the members of that association. Perhaps, they were thinking of the historic Charter Oak in the hollow of which the charter of Connecticut was sealed for two years to prevent it from falling into the hands of an emissary of King James II. Each of these groups feels that because it has a charter, it has the right to the funds of the unincorporated association. It will be noted that the minutes of the directors’ meeting of the Association of Chicago Bovnans held on November 9, 1940 state: “Motion made and unanimously accepted that the members who were, perhaps, founders of this body, and are against our association, have automatically expelled themselves.” Thus, after having, to their own satisfaction as they thought, taken over the membership and assets of the unincorporated association, the directors of the Association of Chicago Bovnans decided that the members of the unincorporated association who were opposing them, were expelled from the Association of Chicago Bovnans, a corporation. It is obvious that the rights of two or perhaps three groups are involved. The members of the unincorporated association who joined the Association of Chicago Bovnans, a corporation, seek the assets and prestige of the unincorporated association and the members of the Club Bovnan are endeavoring to do the same. The record is not clear, but it is likely that there are some members of the unincorporated association who have not affiliated with either Club Bovnan or the Association of Chicago Bovnans, a corporation. The record does not show whether the group known as the Association of Chicago Bovnans has ever been dissolved. It is patent that if all of the members of the unincorporated association were members of each corporation, there would be no dispute. The dispute apparently arose from the fact that some of the members affiliated themselves with the Association of Chicago Bovnans and some with Club Bovnan. In our opinion the credit in the Kaspar American State Bank of Chicago in the name of the Association of Chicago Bovnans, an unincorporated association, belongs to the members of that association who were such members at the time of the meeting on June 25, 1932. No assignment or transfer of the credit in the bank has been made to either corporation. The 39 members who are authorizing the prosecution of the instant complaint have a right to join or not to join either corporation. Apparently, they are members of Club Bovnan. Should the unincorporated association decide to dissolve after paying its debts, the funds may be distributed among the members, or applied as the members choose. If, on distribution of the funds, the members as individuals wish to contribute -these funds to either corporation, they have a right to do so. George Zarovy, not being the treasurer of the unincorporated association, has no right to retain the deposit book or certificate of beneficial interest. These should be surrendered to the treasurer and trustees of the unincorporated association. On the filing of appropriate pleadings the chancellor could find who were the members of the unincorporated association at the time it ceased activities, whether this association should now be dissolved and decree distribution of the assets.

Turning to a consideration of that part of the decree which taxes the costs against G-eorge Zarovy, we are of the opinion that while he made a mistake, he acted in good faith. The record shows that the members of the unincorporated association had an imperfect knowledge of their rights and that this caused great confusion. We are also impressed by the fact that the plaintiffs have been acting in good faith. We find it is inequitable to tax all costs against George Zarovy. Therefore, the decree of the superior court of Cook county is reversed and the cause remanded with directions to tax the costs equally between plaintiffs and-defendants, and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Hebel and Kilby, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Clifford H. Tavernier, Plaintiff in Error.
    Gen. No. 42,398.

      Opinion filed May 5, 1943.
    Rehearing denied May 19, 1943.
    Benjamin Gr. Clanton, of Chicago, for plaintiff in error; Patrick B. Prescott, Jr., of Chicago, of counsel.

      Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On June 17, 1942 the case of the People of the State of Illinois v. Edward White, Indictment No. 42-C-202, charging conspiracy, was on trial in the criminal court of Cook county. Mr. Clifford H. Tavernier, an attorney-at-law, was called to the witness stand by the State’s Attorney. He refused to answer certain questions, stating that any testimony he gave would tend to incriminate him. The State’s Attorney then read from a transcript containing testimony given by Mr. Tavernier before the grand jury in January 1942. Thereupon, the court directed the witness to answer the questions. He refused on the ground that the answers would tend to incriminate him. The court then (June 17,1942) entered a formal order finding the witness guilty of direct contempt for his “wilful and contumacious refusal to answer such questions as directed and ordered by this court to be answered,” and sentenced him to serve a term of six months in the county jail and to pay a fine of $1,000. On motion of the contemnor the issuance of the mittimus was stayed until July 18, 1942, and he was released on his own recognizance. On July 1,1942 the eontemnor filed a petition praying that the order and judgment entered against him on June 17, 1942, be vacated.

On June 30, 1942 the following order was entered nunc pro tunc as of June 17, 1942:

“Now, in the name and the authority of the People of the State of Illinois, the defendant, Clifford H. Tavernier being present in his own proper person, the matter against said defendant of alleged direct contempt of this court is considered by the court. And thereupon the court finds that on June 17,1942 the defendant in this cause was present in open court and while this court was in open session the court verbally ordered said defendant to answer certain questions which were propounded to him by William B. Crawford and Wilbert F. Crowley, Assistant State’s Attorneys; that said defendant refused to answer the said questions upon the grounds that his said answers thereto might tend to incriminate him; that thereupon Wilbert F. Crowley read, in open court and in the presence and hearing of the said defendant, while said defendant was on the witness stand in a certain cause therein pending in said court and in which the said defendant had been subpoenaed as a witness entitled People of the State of Illinois v. Edward White et al., General Number 42-202; that thereupon the defendant was asked if he would answer the same questions that were asked of him before the January grand jury wherein said defendant appeared as a witness and was further asked if he would answer any of said questions so read in his presence and hearing by said Wilbert F. Crowley; and thereupon the said defendant stated that he would refuse to answer any and all such questions which he had heard read in his presence and hearing, upon the grounds that his said answers thereto might tend to incriminate him; that all of the said questions and answers so read in the presence and hearing of the defendant are expressly incorporated herein by reference and made a part hereof; that thereupon the court again ordered the said defendant to answer said questions and the said defendant refused to answer any and all of said questions on the ground that his answers thereto might tend to incriminate him; that the said defendant heard said order and was duly notified thereto and understood the same; that thereafter said order of the court, and notwithstanding the same, in direct violation thereof, and without any legal excuse therefor, the defendant having stated under oath before the January, 1942 grand . jury that he was not a co-conspirator of said defendants in the above entitled case, People of the State of Illinois v. Edward White, et al., and was guilty of no criminal misconduct; and the court being of the opinion that his answers to said questions so set forth as above would not tend to incriminate said defendant, which conduct of said defendant took place while this court was in open session and tended to impede and interrupt the proceedings and lessen the dignity of this court; the court further finds’ that the defendant, Clifford Tavernier, who is now here present in open court, is, by reason of said conduct of said defendant, guilty of direct contempt of this court in open court, and the sentence of the court therefor is six months in the County Jail and a One Thousand Dollar ($1,000) fine, the said fine to be paid or worked out in the House of Correction at the rate prescribed by the statute in such case made and provided.”

On July 1,1942 the court overruled the motion of contemnor to vacate the judgment and he prosecuted this writ of error.

On review of a contempt order which recites that evidence was heard it will be presumed that the evidence was sufficient to warrant the finding and judgment. The burden is on the contemnor to bring up a record showing that reversible error was committed. He did not bring the transcript of evidence to this court. Hence, we are bound to presume that the testimony heard was sufficient to warrant the finding and judgment. The trial court had the duty to determine from the circumstances of the case whether there was reasonable ground for the contemnor to fear incriminating himself by his testimony. In our opinion the court acted reasonably in requiring Mr. Tavernier to answer the questions propounded to him. The court did not. err in concluding that the answers would not tend to incriminate him. Following the entry of the original order, the court entered a new order nunc pro tunc. The new order was more complete than the first order. This order was entered while the matter was before the court and the contemnor was not prejudiced by it.

The questions propounded to the witness before the grand jury and his answers were read to him in open court and were incorporated in the 'order by reference. These questions and answers are not before us. Before the grand jury the witness stated he was not a co-conspirator and that he was not guilty of any criminal misconduct. It has been repeatedly held that to entitle a party called as a witness to the privilege of silence, the court must see, from the circumstances of the case and the nature of the evidence the witness is called upon to give, that there is reasonable ground to apprehend danger from his being compelled to answer. People v. Conozo, 301 Ill. App. 524, 532. Applying this rule to the instant case, we are of the opinion that the court was right in finding that the witness did not have reasonable ground to apprehend danger from being compelled to answer. From the circumstances of the case and the nature of the evidence the witness was called upon to give, the court acted properly in requiring him to answer the questions, and in committing him for contempt the court did not violate any of his rights. Contemnor also maintains that the order is void because it does not show affirmatively the materiality of the questions he refused to answer, or his presence when the order was entered. In People v. Freeman, 256 Ill. App. 233, this court said (235):

“It is urged as a ground for reversal that the questions and answers were concerning matters not material to the issue. We have before us in this proceeding only the order finding the said Freeman guilty of contempt, and in this order it is charged that the testimony was material to the issue and we are constrained to assume this to be a fact, not having the indictment nor the record in the case before us.”

The meager record brought here does not contain a copy of the indictment in the conspiracy case. However, it is manifest that all the parties considered that the answers to the questions propounded by the State’s Attorney were material in proving the charge laid in the indictment. Mr. Tavernier did not at a”y time contend that the answers were not material. He insisted that he should not be required to answer because such answers would tend to incriminate him. We are of the opinion that the record shows that the questions propounded to Mr. Tavernier and which he refused to answer, were material. The order entered June 30,1942 nunc pro tunc as of June 17,1942 recites that at that time (June 17, 1942) Clifford Tavernier was present in open court. On July 1, 1942 when the contemnor filed his petition to vacate the contempt order, although such petition specified numerous objections, he did not contend that there was any fault with the order because he was not present at the time it was entered.

Because of the views expressed, the judgment of the criminal court of Cook county, is affirmed.

Judgment affirmed.

Hebel and Kilby, JJ., concur.


text:
    Charles Burnett, Appellee, v. Illinois Agricultural Mutual Insurance Company, Appellant.
    Gen. No. 42,413.
    Opinion filed May 5, 1943.
    Kirkpatrick, Mathias & Meloy, of Chicago, for appellant ; Harry Meloy, of Chicago, of counsel.
    Seago, Bradley & Vetter, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

This cause was submitted to the circuit court of Cook county as an agreed case, pursuant to our Buie 23, and Supreme Court Buie 48. Defendant, the Illinois Agricultural Mutual Insurance Company, issued its policy of insurance No. 58371 to plaintiff, Charles Burnett, and on December 10, 1940 a six months’ premium was paid, continuing the policy in effect to June 10, 1941. A clause of the policy reads: “This policy may be cancelled at any time by the insured by written notice to the company at its home office at Chicago, Illinois, or may be cancelled by the company by giving at least five days’ notice in writing of such cancellation mailed to the insured at the address stated in the policy which shall be sufficient notice. . . . If this policy shall be cancelled as herein provided, or become void or cease, the cash premium having been paid, the unearned portion of such cash premium shall be returned on surrender of the policy, the company retaining the customary short rate, except that when this policy is cancelled by the company by giving notice it shall retain only the pro rata cash premium. The check of the company, ■ mailed to the insured at his last post office address as shown by the records of the company, or mailed to the County Farm Bureau in Illinois, through which insured was last qualified for membership in the company, as his agent for delivery to him, shall be a sufficient tender of unearned cash premium. ’ ’ Oil April 11,1941 the defendant mailed and the plaintiff received the following letter:

“This letter is regarding your automobile insurance. As you know, insurance in this Company is only available to members of the Farm Bureau of Illinois who are in good standing or dependent members of his family living at home. If our records are correct in this matter the membership in the Farm Bureau which entitles you to this insurance is not in good standing as of this date. We hope that we will not be obliged to cancel policy #58371 which you hold in this Company because of this fact.

“We must, however, advise at this time that if you do not renew your affiliations or reinstate your membership in the Farm Bureau, it will become our duty to cancel the above mentioned policy. We are, therefore, notifying you that at 12:01 Central Standard Time, on May 11, 1941 this policy will be cancelled unless we are advised before that date that you have renewed the membership which entitles you to this insurance. We hope that you will call at the Farm Bureau office and renew your affiliations with your County Farm Bureau before the above mentioned date, if you have not already done so.

“If this policy is cancelled on the date mentioned herein and there be any return premium due you on account of such cancellation this premium will be sent to you at which time you should forward your policy to this office for our file.”

On May 12, 1941 plaintiff’s motor vehicle described in the policy, the operation of which was insured, was involved in a collision and the damages sustained amounted to $693. If said policy were in effect on that date, the defendant would owe the plaintiff $678, in accordance with the terms of the policy and certain action of the defendant’s board of directors limiting the amount deductible in collision losses. On May 14, 1941 defendant wrote plaintiff stating that it had been obliged to cancel the policy in accordance with its letter of April 11th, and inclosed a check for the unearned premium and dividend in the amount of $4.40. The parties are in agreement that the amount of $4.40 so tendered was the correct amount of pro rata premium and dividend for the period from May 11, 1941 to June 10, 1941 and that the plaintiff refused to accept the check and tendered it back. The defendant raised no question as to the amount of the loss, compliance by plaintiff with the notice of loss and other provisions of the policy, but declines to pay the loss, basing its refusal on its contention that the policy was canceled as of 12:01 Central Standard Time on May 11, 1941. The parties stipulated that the points of law at issue between them are: (1) Is the letter of April 11, 1941, sent by defendant to plaintiff, a sufficient notice of cancellation? (2) Under the provisions of said policy relating to cancellation, was the payment or tender of pro rata premium by defendant to plaintiff in this case a condition precedent to the effective cancellation of said policy at 12:01 a. m. Central Standard Time, May 11, 1941? The trial court decided that the letter of April 11,1941 was insufficient and that the payment or tender of the pro rata premium by defendant to plaintiff was a condition precedent to the effective can-. cellation of said policy at 12:01 a. m. Central Standard Time on May 11, 1941. The court thereupon entered judgment for the plaintiff in the sum of $678 and costs. Defendant appeals.

Defendant maintains that the court erred in holding that the letter of April 11, 1941 from defendant to plaintiff was not sufficient notice of cancellation of the policy and plaintiff resists this contention. We agree with defendant that the notice by the insurer to the insured need not be in any particular form in the absence of a statute or policy provision prescribing such form and that the notice is sufficient so' long as it positively and affirmatively indicates to the insured that it is the intention of the company that the policy shall cease to be binding as such upon the expiration of the stipulated number of days from the time when this intention is made known to the insured. Defendants assert that the plain implication of the letter was that the policy would be canceled on May 11th, but that . the notice could be disregarded if the plaintiff renewed his Farm Bureau membership before that time, and insist that plaintiff was unequivocally notified that the policy would be canceled. Defendant also states that plaintiff has never contended that he misunderstood the letter of April 11th, but simply argues that tech-ideally it was not a sufficient notice. We have read the cases of Stryzewski v. American Motorists Ins. Co., 286 Ill. App. 613 (Abst.) and Colonial Assur. Co. v. National Fire Ins. Co., 110 Ill. App. 471, cited by defendant. We have also read the cases of McNellis v. Aetna Ins. Co., 176 Ill. App. 575, and Fisher for use of Kiniry v. Associated Underwriters, Inc., 294 Ill. App. 315, cited by plaintiff. To determine whether the letter positively and unequivocally indicated to plaintiff that it was the intention of the defendant that the policy should cease to be binding at 12:01 a. m., May 11, 1941, it is necessary to examine the letter in its entirety. The letter states that the insurance was available only to members of the Farm Bureau of Illinois who are in good standing, “or dependent members of his family living at home.” Then follows the statement that “if our records are correct in this matter the membership in the Farm Bureau which entitled you to this insurance is not in good standing as of this date.” This statement expresses a doubt as to whether the plaintiff was a member of the Farm Bureau. The letter further states: “We hope we will not be obliged to cancel policy #58371, which you hold in this Company because of this fact.” Then follows the statement that “if you do not renew your affiliations or reinstate your membership in the Farm Bureau, it will become our duty to cancel the above mentioned policy.” The letter continues with the more positive statement that “at 12:01 a. m. Central Standard Time, on May 11, 1941 this policy will be cancelled unless we are advised before that date that you have renewed the membership which entitles you to this insurance.” Defendant then expresses the hope that plaintiff will call at the Farm Bureau office and renew his affiliations with his County Farm Bureau “before the above mentioned date, if you have not already done so.” The closing paragraph states that “if this policy is cancelled on the date mentioned herein and there be any return premium due you on account of such cancellation, this premium will be sent to you at which time you should forward your policy to this office for our file.” The letter of April 11, 1941 shows a conciliatory attempt to secure reinstatement of plaintiff’s Farm Bureau membership, coupled, with the statement that at a future time the policy will be canceled unless this is done. The letter expresses the hope that defendant will not be obliged to cancel the policy and concludes with the statement that if the policy is canceled on the date mentioned and there be any return premium due plaintiff, such premium will be sent to plaintiff. We find that the cases cited are not applicable to the factual situation before us. The letter of April 11, 1941 did not positively and unequivocally inform the insured that it was the intention of defendant that the policy should cease to be binding on and after 12:01 a. m. on May 11, 1941. As to defendant’s assertion that plaintiff has never contended that he misunderstood the letter of April 11th, but simply argues that technically it was not a.sufficient notice, the parties stipulated that one of the two points of law at issue between them is whether the letter of April 11, 1941 constituted a sufficient notice of cancellation. In the agreed case neither the trial court nor this court was asked to decide whether plaintiff contended that he misunderstood the letter of April 11th. We are satisfied that the letter of April 11, 1941 did not positively and unequivocally inform plaintiff that it was defendant’s intention that the policy should cease to be binding after 12:01 a. m. , on May 11, 1941, and the circuit court was right in so finding.

The second point we are asked to decide is whether under the provisions of the policy relating to cancellation, the payment or tender of the pro rata premium by defendant constituted a condition precedent to the effective cancellation of the policy at 12:01 a. m., Máy 11, 1941. As we have resolved the case by deciding the first point, it is unnecessary to consider this point.

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

Judgment affirmed.

Hebel and Kilby, JJ., concur.


author: Presiding Justice Huffman.

text:
    In re Estate of Joseph Kos, Jr., Deceased. Lorraine Kos, Administratrix of Estate of Joseph Kos, Jr., Deceased, Appellant, v. Joseph Kos, Sr., Appellee.
    Gen. No. 9,699.
    opinion filed January 27, 1942;
    rehearing opinion filed April 28, 1943.
    Ray F. Faulkner, for appellant;
    Pence B. Orr, for appellee.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.”


author: Justice Friend.

text:
    Helen M. Marshall, Appellant, v. New Amsterdam Casualty Company of Baltimore, Appellee.
    Gen. No. 41,481.
    opinion filed February 8, 1943;
    rehearing opinion filed April 20, 1943.
    Joseph J. Augustus and Harry Goodman, for appellant;
    Dent, Weichelt & Hampton, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Justice Dove.

text:
    Ruth West, Appellee, v. Samuel Porritt, Jr., Appellant. Arden West, Appellee, v. Samuel Porritt, Jr., Appellant.
    Gen. No. 9,802.
    opinion filed February 12, 1943;
    opinion modified and rehearing denied May 5, 1943.
    Burrel Barash and Clarence W. Heyl, for appellant;
    Nelson & Gustafson, for appellees.
   Opinion by

Justice Dove.

“Not to be published in fuIL”


author: Per Curiam.

text:
    Normal State Bank, Appellant, v. William A. Killian and Elizabeth Killian, Appellees.
    Gen. No. 9,325.
    opinion filed February 24, 1943;
    opinion modified and rehearing denied May 4, 1943.
    Herbert B. Tyrrell, Arthur H. Shay and Bracken, Livingston & Murphy, for appellant;
    Stone & Taylor, for appellees.
   Per Curiam.

“Hot to be published in full.”


author: Justice Stone.

text:
    Thomas Williamson et al., Appellees, v. Mildred Draper, Appellant.
    opinion filed March 2, 1943;
    rehearing denied April 14, 1943.
    Karns & Bandy, for appellant; J. F. Eeek, for appellees.
   Opinion by

Justice Stone.

“Hot to be published in full.”


author: Presiding Justice Sullivan.

text:
    Cushman Motor Delivery Company for use of Jersey Insurance Company of New York et al., Appellees, v. Monark Motor Freight System, Inc. and Carl Hug, Appellants.
    Gen. No. 41,896.
    opinion filed April 20, 1943.
    James L. Burden, for appellants;
    Harold L. Eisenstein, for appellees;
    Morris S. Telechansky, Abner Goldenson and Carl B. Aplon, of counsel.
   Opinion by

Presiding Justice Sullivan.

“Not to be published'in full.”


text:
    Annie Metzger, Appellee, v. Fred B. Tidd, Appellant.
    Gen. No. 41,946.
    opinion filed April 20, 1943.
    Alfred M. Looser, for appellant;
    Leonard W. Koplin, of counsel;
    Winston, Strawn So Shaw, for appellee;
    James H. Cartwright and Frank B. Gilmer, of counsel.
   Opinion by

Presiding Justice Sullivan.

“Not to be published, in full.”


text:
    Joseph M. McCarthy, Appellee, v. Frank Katzin and Samuel N. Katzin, Individually and as Copartners Trading as Clark Maple Motor Sales, Appellants.
    Gen. No. 42,010.
    opinion filed April 20, 1943;
    rehearing denied May 4, 1943.
    Archie Schimberg, for appellants;
    Harold J.
    Finder, of counsel;
    George E. Fitzmaurice, for appellee.
   Opinion by

Presiding Justice Sullivan.

“Hot to be published in full.”


text:
    Meyer Krom et al., Trustees, Appellants, v. Public Utilities Service, Appellee.
    Gen. No. 42,368.
    opinion filed April 20, 1943.
    Levisohn & Levisohn, for appellants;
    Irving B. Campbell, for appellee.
   Opinion by

Presiding Justice Sullivan.

“Hot to be published in full.”


text:
    Sam Mirza, Appellee, v. Elizabeth Mirza, Appellant.
    Gen. No. 42,251.
    opinion filed April 20, 1943.
    Whitney, Teitelbaum & Freeman, for appellant;
    Joseph Lustfield and Ode L. Rankin, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Goldie Buehler, Appellee, v. Albert C. Buehler, Appellant.
    Gen. No. 42,392.
    opinion filed April 20, 1943.
    Petit, Clin & Overmyer, for appellant;
    Adelor J. Petit, Jr., of counsel;
    Jacob G. Grossberg and Harry May, for appellee.
   Opinion by

Justice Friend.

“Not to be published in fuU.”


text:
    Goldie Buehler, Appellee, v. Albert C. Buehler, Appellant.
    Gen. No. 42,393.
    opinion filed April 20, 1943.
    Petit, Olin & Overmyer, for appellant;
    Adelor J. Petit, Jr., of counsel; Jacob G. Grossberg and Harry May, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Sam Mirza, Appellee, v. Elizabeth Mirza, Appellant.
    Gen. No. 42,444.
    opinion filed April 20, 1943.
    Whitney, Teitelbaum & Freeman, for appellant;
    no appearance for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Justice Scanlan.

text:
    Stanley J. Albany et al., Copartners, Trading as Consumers Insulating and Roofing Company, Appellees, v. David I. Phillips, Appellant.
    Gen. No. 42,059.
    opinion filed April 20, 1943.
    Paul M. Wade, for appellant;
    Alfred Newton, for appellees;
    D. Elwood Davis, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in fuU.”


text:
    C. I. T. Corporation, Appellee, v. Levy Smith and Janie L. Smith, Appellants.
    Gen. No. 42,438.
    opinion filed April 20, 1943.
    George B. Cohen, for appellants;
    Adolph M. Neuman, for appellee.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Powell Bros., Inc., Appellant, v. Penn Mutual Life Insurance Company of Philadelphia, Appellee.
    Gen. No. 42,283.
    opinion filed April 28, 1943.
    Ryan, Condon & Livingston, for appellant;
    John M. Tuohy and Robert I. Livingston, of counsel;
    Poppenhusen, Johnston, Thompson & Raymond, for appellee;
    Edward R. Johnston and Roger W. Barrett, of counsel.
   Per Curiam.

“Not to be published in full.”


text:
    M. L. Joslyn et al., Appellees, v. Charlotte C. Joslyn, Individually and Next Friend of Joy Lou Joslyn, et al., Appellants.
    Gen. No. 9,855.
    opinion filed April 28, 1943.
    Thomas Hart Fisher, for appellants;
    Norman Crawford, of counsel;
    G. B. Sturtz and Ernest S. Gail, for certain appellee;
    Hubbard, Baker & Rice, for certain other appellee; Alvin Glen Hubbard, of counsel.
   Opinion by

Presiding Justice Huffman.

“Not to be published in fuU.”


text:
    Mary Anna Heitmann v. John Max Heitmann. John Max Heitmann, Appellant, v. Helen Holt and Cecil Holt, Appellees.
    Gen. No. 9,856.
    opinion filed April 28, 1943.
    Smith & Hynds and Louis I. Shapiro, for appellant;
    Louis I. Shapiro and William I. Hynds, of counsel;
    S'. J. Holderman and Arley Hunts, for appellees.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.”


text:
    General Electric Company, Appellee, v. Gellman Manufacturing Company, Appellant.
    Gen."No. 9,824.
    opinion filed April 28, 1943.
    Curtis & Simonson and Julius H. Selinger, for appellant;
    William H. Walker and Sidney S. Deutsch, for appellee.
   Opinion by

Justice Dove.

• “.Not to be published in full.”


text:
    Lindbloom Auto Parts Company, Appellee, v. Liberty Foundries Company and Burd Piston Ring Company, Appellants.
    Gen. No. 9,850.
    opinion filed April 28, 1943.
    Welsh & Welsh, for appellants;
    C. K. Welsh, of counsel;
    Early, Carpenter & Early, for appellee;
    Albert D. Early, of counsel.
   Opinion by

Justice Dove.

“Not to be published in full.”


text:
    Ed Haugens, Appellant, v. C. C. Vissering and F. C. Kleasath, Partners Under Name and Style of Dana Grain Company, Appellees.
    Gen. No. 9,858.
    opinion filed April 28, 1943.
    Kenton Brown and H. L. Richolson,. for appellant;
    Fort & Fort, for appellees.
   Opinion by

Justice Dove.

“Not to be published in full.”


text:
    Norris Grain Company, Appellee, v. William R. Brown and A. G. Miller. William R. Brown, Appellant.
    Gen. No. 9,866.
    opinion filed April 28, 1943.
    William R. Brown, pro se;

    W. Robert Brown, for appellant;
    Walter D. Boyle, for appellee.
   Opinion by

Justice Dove.

‘ ‘Not to be published in fuU.”


text:
    Ohio National Life Insurance Company, Appellee and Cross Appellant, v. Board of Education of Grant Community High School District No. 124 of Lake County, Illinois, et al., Defendants. Board of Education of Grant Community High School District No. 124 of Lake County, Illinois, Appellant and Cross Appellee, v. Ohio National Life Insurance Company et al., Appellees. Leslie C. Small and May Small Inglesh, Appellees and Cross Appellants, and Unity of Bohemian Ladies, Appellees, v. Board of Education of Grant Community High School District No. 124 of Lake County, Illinois, et al., Counter-Defendants. Board of Education of Grant Community High School District No. 124 of Lake County, Illinois, Appellant and Cross Appellee.
    Gen. No. 9,867.

      opinion filed April 28, 1943.
    B. F. Langworthy, for appellants;
    Sehroeder & Simpson, Werner W. Sehroeder, Theodore W. Sehroeder, Holland M. Cassidy and A. F. Beaubien, for appellee.
   Per Curiam.

“Not to be published in. full.’’


author: Mr. Presiding Justice Huffman

text:
    Georgia Hanlon, Appellee, v. W. F. Lindberg, Appellant.
    Gen. No. 9,832.

      Opinion filed April 28, 1943.
    Arthur H. Shay, of Streator, and Clarence W. Heyl, of Peoria, for appellant.
    Charles F. Short, Jr., of Chicago, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is an action by appellee to recover for personal injuries sustained in an automobile accident, while she was riding as a guest with appellant in his car. Trial resulted in verdict for appellee in the sum of $3,500. Appellant brings this appeal from judgment thereon.

Appellant argues that the court erred in refusing to direct a verdict for defendant; that the damages are excessive; that the court admitted improper testimony on behalf of plaintiff; that the verdict is against the manifest weight of the evidence; and that the court erred in refusing defendant’s instruction No. 18.

The accident occurred on U". S. Highway No. 52, at about 4:30 in the afternoon, on September 4, 1938. .The highway runs east and west, and is straight and level for several miles in each direction from the place of the accident. Five persons were riding with defendant at the time. They were his wife, the appellee, Louis Krantz, Henry Krause and Arthur Imme.

Appellee and her husband operated a trailer camp near the town of Serena, and some two or three miles off of highway No. 52. Appellant and his wife were stopping at this camp for a few days. They invited appellee to go to Serena with them. On the return trip to the camp, appellee was riding on the left side of the rear seat in company with Louis Krantz and Arthur Imme. Appellant, Mrs. Lindberg, and Henry Krause were riding in the front seat. Appellant was driving his car. As he was proceeding west, on route No. 52, he passed the road where he should have turned off to go to the camp. Appellee told him to continue on west on route No. 52, until he came to the next road to his right, and to take this road and that it would bring them to the camp. Thereupon appellant continued westward on route No. 52, for a short distance, when he suddenly turned his car to the left across the paved highway toward the shoulder on the south side of the road in order that he might turn the car around and proceed back east to the road to the camp, which he had failed to take.

Appellee states she had no knowledge of appellant’s intent to turn his car across the road, and that the first thing she knew with respect to the situation was when Mr. Krantz shouted to appellant, “that he couldn’t make it; ” and that she then heard an automobile horn sounded. While appellant was in the act of turning' his ear across the highway, a car approaching from the rear struck his car at the left rear wheel. Appellee was nearest the point of impact between the cars, and was quite severely injured. She was in the hospital seven weeks, and later confined to her residence for some weeks before she was able to return to her place of employment, where she had worked since 1923.

The witnesses, Krantz and Imme, who were also occupants of the rear seat, state that appellee advised appellant when he failed to take the first road to the camp, to proceed on west on route No. 52, until he came to the next road to the right and that this road would bring them to the camp; and that appellant continued westward on route No. 52. The witness Krantz states that as soon as he noticed appellant manifesting an intent to turn his car across the highway, that he called to him saying, “Doc, you can’t make it;” that at such time, the car approaching from the rear was from 50 to 70 feet from appellant’s car; that it was traveling faster than appellant’s car; that appellant continued to turn his car across the pavement' in front of the car just behind, and the impact between the cars immediately followed; with the left front portion of the approaching car striking the left rear wheel and fender of appellant’s car.

The witness Imme, the other occupant of the rear seat, says that he had no warning of appellant’s intention to turn the car across the pavement until he heard Krantz call out; that appellant continued to turn his car and the collision occurred. He states that when Krantz called out to appellant, his car was then still in,its proper traffic lane.

The witness Krause, who was riding in the front seat with appellant and Mrs. Lindberg, says that he heard the conversation with respect to appellant running by the first road to the camp, and that he should continue on west to the next road to the right and take that road to the camp. He states that appellant com tinned on west for a short distance when, without any-warning, he made a quick turn across the highway to the south; that he heard someone in the back seat call out to appellant to keep going, that he couldn’t make it, and that immediately thereafter, he heard the crash.

Appellant denies that anyone in the- car gave any alarm or advised him that he could not make the turn across the road. He says he heard no car and saw no car approaching from the rear until he had started to turn his car across the road, when he heard the squeal of brakes and tires skidding on the pavement.

It appears from the testimony of the highway policeman who was at the scene of the accident, that neither car was severely damaged, and each proceeded under its own power, following the collision.

From a review of the evidence, we are not of the opinion the trial court erred in refusing to direct a verdict for the defendant, or that the damages are excessive, or that the verdict is against the weight of the evidence. This leaves for consideration the question of improper testimony on behalf of plaintiff, and defendant’s refused instruction No. 18.

Moving pictures were introduced in evidence on behalf of appellant. They were taken by the witness, David E. Tomei. This witness states that he and his brother compose the Eeliable Service Company, and that the taking of the pictures were by such company. After qualifying himself as an operator of the picture machine, he proceeded to testify concerning the taking of the pictures and laying the foundation for their admission in evidence.

It appears from his testimony that he and his brother came from Chicago, to Streator, Illinois, where appellee was identified, and that thereafter, with his brother driving the car, he proceeded to take the pictures of appellee at such times and places as were convenient. They were exhibited before the jury by this witness.

On cross-examination of appellant, he was asked if he knew anyone connected with the Eeliable Service Company located in Chicago. It appeared appellant was not acquainted with this company. He objects to the above cross-examination on the ground that it injected into the case the fact of an insurance carrier being interested. We do not find any reference made to insurance or insurance company. Neither do we find any objection was interposed to this cross-examination of appellant at the time the same was made. The record discloses that on the following day, before resuming trial, attorneys for appellant stated to the court they wished to enter an objection to the above portion of the cross-examination of the defendant on the ground that it was designed to inform the jury that someone other than the defendant was interested in his defense to the suit, and that by necessary inference, it could not be other than ail insurance company.

Upon the jury coming in, and on motion of appellant, the court instructed them not to consider any of the evidence on cross-examination of appellant with reference to the Eeliable Service Company, and the taking of the pictures by such company. Appellant’s motion to withdraw juror was denied.

We do not consider the court erred in the above respect. The witness Tomei was called by the defendant. A witness’ interest or connection in a case may be shown. One of appellant’s instructions to the jury . in this case was to the effect that such was a proper circumstance for its consideration in weighing a witness’ testimony. If an insurance carrier elects to cause moving pictures to be taken of a plaintiff, for the purpose of evidence, without the knowledge or cooperation of the party for whose benefit they are to be used, it must accept the situation it has created and the natural consequences that may flow therefrom. When a stranger is thus brought into the trial of a case as a witness, an insurance carrier cannot be heard to object when the interest or connection of such witness to the case is gone into. Furthermore, we are of the opinion the objections interposed by appellant should have been made at the time of the examination of the witness, and in this instance, came too late.

Appellant objects to testimony on behalf of appellee to the effect that he stated to the surgeon, Dr. Graham, he would pay for her medical care and treatment. The doctor states that when the parties came to his office with appellee, appellant asked him to take care of her and send him the bill. The witness Imme says that he was present and heard appellant make such statement to the doctor. Appellee testifies that appellant said he was responsible for the accident and wanted to be responsible for the bills.

Appellant urges that such evidence was prejudicial and the admission thereof error, on the ground that disputed offers of compromise are not admissible. We do not consider the testimony of such a character. It in no way partook of any attempt by the parties to effect a compromise of a disputed claim. Such declarations of an adverse party are generally admissible-against him. Where the parties are strangers under the law, and the one charged with being the wrongdoer, promises to pay or does pay for hospital and medical care, it is a proper circumstance for the consideration of the jury. Sullivan v. Heyer, 300 Ill. App. 599, 601. Such statements are considered a circumstance which by way of outward conduct reflect the mental state beneath. We do not consider the court erred in the admission of this testimony.

Instruction No. 18 is as follows:

“If after considering all the evidence in this case, you find any witness has knowingly and wilfully testified falsely to any fact material to the issues in this case, then you have the right to disregard the testimony of such witness, except insofar as corroborated' by other credible evidence or facts and circumstances in evidence.”

Appellant states no other instruction on the above subject was given, and urges the court erred in refusing this instruction. Appellant tendered thirty-three instructions. Appellee tendered one.' "We find no instruction telling the jury what facts were material to the issues in the case. Under such circumstances, the court did not err in refusing the instruction. People v. Wells, 380 Ill. 347, 357.

The judgment herein is affirmed.

Judgment affirmed.


author: Mr. Justice Wolfe

text:
    Michael Baietto et al., Appellees, v. Nina Baietto, Administratrix of Estate of Dominic Baietto, Deceased. Frank J. Harrison, Executor of Last Will and Testament of Nina Baietto, Deceased, Appellant. Robb J. Purcell, Administrator Pro Tem of Estate of Dominic Baietto, Deceased, Appellee.
    Gen. No. 9,865.

      Opinion filed April 28, 1943.
    John H. Armstrong, of Ottawa, and Frank J. Harrison, of Streator, for appellant.
    B. E. Hayes and Arthur H. Shay, both of Streator, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

Michael Baietto, Theodore Baietto, Paul Baietto, Joseph Baietto and Dominic Baietto filed claims aggregating $20,000, against the estate of Dominic Baietto, deceased, for work and labor they had performed for Dominic Baietto. The claims were allowed in the probate court. Nina Baietto, administratrix of the estate of Dominic Baietto, deceased, perfected an appeal to the circuit court of La Salle county. During, the pendency of the appeal, Nina Baietto died and Frank J. Harrison, executor of her last will and testament, was substituted as a party to the suit. In the probate court there was no objection filed to the allowance of the claims, but in the circuit court Frank J. Harrison, as executor of the deceased, Nina Baietto’s estate, filed objections to the claims. The case was heard before the court without a jury, and Michael Baietto was allowed $10,000, Theodore Baietto $5,000, Paul Baietto $3,000 and Joseph and Dominic Baietto $2,000. Judgment was entered for the various amounts of the claims and Frank J. Harrison, as executor of the last will and testament of Nina Baietto, deceased, prosecuted an appeal to this court. Robert Purcell, administrator pro tern of the estate of Dominic Baietto, deceased, does not join in the appeal.

Dominic Baietto, deceased, was a former resident of Streator, La Salle county, Illinois. He was married twice and the claimants, Michael, Theodore Baietto and Paul Baietto were children of his first wife. Joseph and Dominic Baietto were sons of a deceased son, Joseph. The father owned and operated a 30-acre tract of farm land near the city of Streator on which he grew produce for the market. Dominic Baietto was married the second time and died leaving the widow, Nina Baietto, together with the aforesaid mentioned sons and grandsons and .eight daughters. The daughters are not concerned with the appeal in this case.

The claimants, the appellees, made a motion to strike the objections filed by Frank J. Harrison, executor, etc., because they claimed the estate of Nina Baietto, deceased, had no interest in the subject matter of the suit. The court overruled the motion to strike and allowed the objections to stand. It is now claimed by the appellees that the court erred in so doing. We think that the court properly overruled the motion to strike, as the appellant does have an interest in the litigation.

Madeline Greens testified for the claimants in the case. She stated that she was a daughter of Dominic Baietto, a sister to three of the claimants and an aunt of the other two. She said that she knew that all of the claimants had worked on the farm of her father for many years; that she frequently heard her father say that the boys were dissatisfied because they had never been paid for any of the work that they had done for him, and that he intended to pay them for the work. Laura Gaffino, another sister, testified that to her knowledge, her brothers and nephews had done work for a great many years on her father’s farm, and she had frequently heard her father say that none of them had ever received any pay for their work, and that he intended to pay them for it.

After the death of Dominic Baietto, two instruments in writing were found, known in the record as exhibits No. 2 and 3. Madeline Greens testified that both the exhibits were in the handwriting of her father, Dominic Baietto; that the same were written in Italian; that her father could read English and speak it, but could not write it. She interpreted the writing, and the same was introduced in evidence in this case. Exhibit No. 3 is as follows: “Streator, January 11, 1937; in memory of debts I have to pay that I owe to my boys for work that they have done for me around the home, that I never have paid them. The oldest Michael Baietto, I owe him ten thousand dollars for work; Theodore Five thousand dollars for work — for labor; Peter Paul, three thousand for labor and Dominic and Joseph two thousand dollars for labor. Those are boys of my son Joseph who is deceased; in all twenty thousand dollars. From their father Dominic Baietto after my death.”

The appellants objected to the introduction in evidence of exhibit No. 3, “on the ground that there was no testimony in connection with it, and it does not. show any contract that the deceased owed anybody anything.” We think the court properly admitted this exhibit, and it does have a direct bearing on whether there was a contract between the claimants and their deceased father to pay them for the work which they had performed, for their father during his lifetime. The testimony as to the service rendered by the claimants to their father, is uncontradicted, as the appellants did not offer any evidence to rebut any of the evidence (or exhibits).

It is claimed by the appellants that there is not sufficient evidence to show any contract between the father and sons and the grandsons to pay for their services which were rendered by them; that being close relatives of the father, the law presumes that the services would be gratuitous, and therefore the claimants have failed to overcome this presumption. In the case of Coulson v. Hartz, 47 Ill. App. 20 (a second district case), the same questions are raised as in this case we are now considering. First, that there was no proof of a contract between the husband and wife of any debt. Second, that if there was such proof, it was barred by the statute of limitations. In the Goulson case the only evidence of an indebtedness from the deceased to his widow, was a ledger account, and we there held that, that was sufficient proof that the decedent’s estate was indebted to the widow, and the amount of the debt. In the present case it will be observed that exhibit No. 3 is dated at Streator, on January 11, 1937. In the absence of any evidence to the contrary, it will be presumed that this is the date that the instrument was written. The father then continues, “In memory of debts, I have to pay, that I owe, to my boys for work that they have done for me around the home, that I never have paid them.” The word “debt,” used by the father in exhibit No. 3 must be given its usual and customary meaning. It has been described as meaning, to pay that which is due from one person to another, or that which any one is obliged to pay. Before there could be any debt due, that the father would be obliged to pay to his sons and grandsons, there must have been a contract, or agreement of some kind in order to create the debt.

The word "“owe,” as used by the father also has a definite meaning. Worcester’s Comprehensive Dictionary describes it as “to be bound to pay, or to pay to or to be indebted to.” Webster’s Unabridged Dictionary defines “owe,” “to have an obligation by someone, on account of something done, or received; to be indebted to, as to owe the grocer for supplies or a laborer for services.” Here, we have a solemn obligation of the father acknowledging a debt that he owes to his boys and reciting the amount that he owes to each of them, and why he owes the same. This was a declaration against interest to the estate and is suffieient proof of the amount that the estate owes to each of the claimants. Coulson v. Hartz, supra. This case is cited and quoted with approval in Nonotuck Silk Co. v. Pritzker, 143 Ill. App. 644; Edwards v. Harper, 234 Ill. App. 296; American Steel Foundries v. Railroad Supply Co., 235 Ill. App. 228, at page 252, 253.

It is also claimed by the appellants that the statute of limitations bars the rights of the claimants to recover in this case. They cite several cases to sustain this contention, but on examination of these cases we find they are not decisive of the question raised here. We quote from our former opinion . of Coulson v. Hartz, supra. “When the balance was struck it was intended to show the amount due appellee, and we think that it was rightly regarded as an admission that the balance of $4,311.26 was then due, owing and unpaid to her. An admission, wherever found, is admissible in. evidence against the person making it. But it is insisted that in order to remove the bar of the statute of limitations an express promise to appellee to pay the amount was essential. It seems to be the rule that an express promise to pay is not necessary, but that an implied promise is a sufficient new promise to remove the bar of the statute. If the entry would be sufficient to establish the claim as an original transaction, no reason occurs to us why it would not be sufficient as a new promise. It is held that a promise will be implied from an unqualified admission that the debt is due and unpaid, accompanied by nothing said or done to rebut the presumption of a promise to pay it. In Ditch v. Vollhardt, 82 Ill. 134, an implied promise arising from a recognition of the debt and an express promise to pay part of it on a day named, was held sufficient, without any express promise to pay the balance. In Schmidt v. Pfau, 114 Ill. 494, it was held that the statement by Schmidt, ‘ ‘ This matter of salary has not been settled yet — we owe you for three years’ salary,” clearly took the claim out of the statute, although the amount of the salary was in controversy. The balance, in the ledger was an admission by which Samuel B. Hartz acknowledged without condition or qualification that the amount there entered was due to appellee and unpaid. From such admission it seems that a promise to pay may be fairly implied. The parties were husband and wife living together, and so far as appears he kept the only account between them. This case has also been cited with approval on this branch of the case in West Pub. Co. v. Lasley, 165 Ill. App. 256; Sneed v. Parker, 262 Ill. App. 333; Herdien v. Jones, 202 Ill. App. 172, and Woodford County Nat. Bank of El Paso, Ill. v. Conklin, 292 Ill. App. 53.

We think exhibit No. 3 clearly shows and intends a' promise to pay the claimants for their work and labor which they had performed, and that the same is sufficient to prove the claims and to prevent the statute of limitations from barring the claims. We find no reversible error in the case, and the judgment of the trial court is affirmed.

Judgment affirmed.


text:
    In re Estate of Hiram T. Gilbert, Deceased. Georgiana G. Hess, Appellant, v. William A. Burmeister, Administrator De Bonis Non with Will Annexed of Estate of John J. Sonsteby, Deceased, Former Executor of Estate of Hiram T. Gilbert, Deceased, et al., Appellees.
    Gen. No. 42,434.
    Opinion filed May 5, 1943.
    Rehearing denied May 19, 1943.
    Gerald G. Barry, of Chicago, for appellant.
    Clarence F. Martin, of Chicago, for certain appellee.
    Joseph J. Berzin, pro se.

   Mr. Presiding Justice Burke

delivered the opinion of the court.

Hiram T. Gilbert, a lawyer, died at Chicago on November 29, 1939, leaving as his heirs and next of kin two daughters, Helen S. Gilbert and Georgiana G. Hess. The will was admitted to probate on December 8, 1939 and Honorable John J. Sonsteby, then chief justice of the municipal court of Chicago, designated as executor, duly qualified as such. Judge Sonsteby died on April 15, 1941 and Norman Crawford was appointed administrator de bonis non with the will annexed of the estate of Hiram T. Gilbert, deceased. Alice R. Sonsteby, the widow, was appointed executrix of the estate of John J. Sonsteby, deceased. On June 25, 1941, Mrs. Sonsteby, as executrix of the estate of her deceased husband, filed in the Gilbert estate a final account and report of the acts and doings of Judge Sonsteby as executor of the estate of Hiram T. Gilbert, deceased. The account showed total receipts of $3,474.03. Under the heading of “Disbursements” appeared the sum of $100 claimed by Mrs. Sonsteby for the services rendered by Judge Sonsteby, as executor, and $500 claimed by Joseph Berzin as attorney’s fees for services rendered for Judge Sonsteby in his capacity as executor. On June 23, 1941 the probate court approved the account filed by Mrs. Sonsteby in the. estate of Hiram T. Gilbert, deceased, after reducing the claim by Mr. Berzin to $400. The balance of $2,382.83 was paid to Norman Crawford, as administrator de bonis non with the will annexed of the estate of Hiram T- Gilbert, deceased. On July 2, 1941 the probate court granted leave to Georgiana G. Hess, a daughter of Hiram T. Gilbert, to file her petition seeking the vacation of the order approving the final account and report filed by-Mrs. Sonsteby. Mrs. Hess objected to the allowance of $100 as fees to the estate of John J. Sonsteby,. de'ceased, and also to the allowance of $400 for the services rendered by Joseph Berzin. The probate court found that these fees were reasonable and overruled the objections of Mrs. Hess. Mrs. Hess then perfected an appeal to the circuit court. A trial de novo in that court resulted in a finding that the fees fixed by the probate court were reasonable. In the meantime, William A. Burmeister was appointed administrator de bonis non with the will annexed of the estate of John J. Sonsteby, deceased. The judgment of the circuit court ordered that the $400 allowed as attorney’s fees be paid to Joseph Berzin and the $100 allowed for the services of John J. Sonsteby, as executor, be paid to the administrator de bonis non with the will annexed of the estate of John J. Sonsteby. Mrs. Hess appeals from the judgment of the circuit court and asks that the part of the order directing the payment of $400 as attorney’s fees be reversed. She states that the sum of $100 allowed to the present legal representative of the estate of John J. Sonsteby, deceased, is sufficient compensation for the services of John J. Sonsteby, as executor, and for the services of his attorney.

Appellant did not bring the transcript of evidence to this court. The record contains an itemized statement filed in the probate court by Attorney Joseph Berzin, showing the services rendered by him in the estate of Hiram T. Gilbert, deceased. The first item is dated December 2, 1939 and the last item April 9, 1941. Each service rendered is briefly outlined and the professional time for which a charge is being made is stated. There was no contention that the services claimed to have been rendered by Mr. Berzin were not rendered, or that the amount of time for which he claimed compensation, was not stated correctly. The time necessarily occupied by Mr. Berzin, and for which he claims compensation, totals 138% hours, for which an allowance of $400 was made. This is at a rate of less than $3 an hour.

Appellant contends that the items set out in the statement of services rendered by Mr. Berzin, which he performed for the executor, were entirely beyond the scope of the powers and duties of the executor and his attorney and not in the interest of the estate; that neither the attorney nor the estate of the executor is entitled to compensation therefor from the Gilbert estate; and that the attorney’s claim does not “state a cause of action against the estate of Hiram T. Gilbert.” Appellant also states that the judgment of the circuit court directing that the $400 allowed as attorney’.s fees be paid to Joseph Berzin, is not a judgment against the estate of Hiram T. Gilbert, deceased, or a judgment which permits the present administrator de bonis non of the Hiram T. Gilbert estate to pay the sum of $400 to Mr. Berzin from the funds of the Gilbert estate. She states that prior to January 1, 1940, when the new Probate Act went into effect, there was no provision whereby an attorney for an executor could directly establish a claim for his sérvices. Section 336 of the new Probate Act, which became effective January 1, 1940 (sec. 490, ch. 3, Ill. Rev. Stat.. 1941 [Jones Ill. Stats. Ann. 110.587]) provides that an executor, administrator, administrator to collect, guardian or conservator shall be allowed reasonable compensation for his services. Section 337 provides that an attorney for an executor, administrator, administrator to collect, guardian or conservator shall be allowed reasonable compensation for his services. Section 133 of the superseded act (sec. 135, ch. 3, Ill. Rev. Stat. 1939) provided that “executors and administrators shall be allowed as compensation for their services a sum not exceeding six per centum on the amount of personal estate . . . with such additional allowance for costs and charges in collecting and defending the claims of the estate and disposing of the same as shall be reasonable.” Under the old act executors and administrators could not be allowed a sum excieding 6 per cent on the amount of the personal estate, while under the new act such officers are allowed “reasonable compensation.” Under the old act an executor or administrator, in addition to compenpensation for his services, was allowed to pay and take credit for all reasonable costs and charges in collecting and defending the claims of the estate and disposing of the same. It will be observed that the provisions of the old and .the new act contemplate that the attorney’s fees shall be reasonable. Under the new act the attorney has a right to present a claim in his own name.' So far as the administration of the estate is concerned, the change makes little difference. In both acts the personal representative is permitted to take credit for the amount paid to his attorney, provided such amount is reasonable. The appellant calls our attention to the language of the old act that the additional allowances for attorney’s fees contemplates that the services rendered are in “collecting and defending the claims of the estate and disposing of the same.” She maintains that the services performed by Mr. Berzin cannot be compensated from the estate of Hiram T. Gilbert, deceased. It has been held that the right of the probate court to allow an executor or administrator credit in his account for reasonable attorney’s fees for services in enabling such officer to properly and efficiently perform the duties of his1 office is undoubted, but the amount so paid for attorney’s fees is to be determined by the court in the exercise of judicial discretion. (Sprinkle v. Forrester, 162 Ill. App. 45; Barker v. Kunkel, 10 Ill. App. 407, 409.)

Appellant states that there was no substantial reason why it was necessary for Judge Soxsteby, as executor, to have an attorney. All presumptions are in favor of the action of the trial court and the burden is upon appellant to point out in the record wherein the court erred. The transcript of the testimony is not before us. The itemized statement presented by Mr. Berzin shows that he was occupied for 138% hours in the performance of services for the executor. The court in allowing him $400 for these services, allowed him.at the rate of less than $3 an hour. In the absence of the transcript of the testimony we assume that such testimony supports the finding of the court. While the judgment complained of directs that the attorney’s fees .of Joseph J. Berzin be paid to him direct, the effect so far as the appellant is concerned is the same as though such order directed that the administrator de bonis non with the will annexed, take credit in his account for the sum of $400. The result would be that Mr. Berzin would receive $400. Perceiving no error, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Hebel and Kilby, J J., concur.