author: Mr. Presiding Justice Dadt

text:
    People of State of Illinois, Defendant in Error, v. Harry Moore, Plaintiff in Error.
    Gen. No. 9,440.

      Opinion filed October 26, 1944.
    Released for publication November 21, 1944.
    S. M. Scholfield of Marshall, and M. E. Cox, of Robinson, for plaintiff in error.
    Claude W. McDaniel, of Marshall, for defendant in error.
   Mr. Presiding Justice Dadt

delivered the opinion of the court.

An information consisting of one count w.as filed in the county court of Clark county by the state’s attorney, which charged the defendant, Harry Moore, with the crime of assault with a deadly weapon with intent to do a bodily injury.

A jury returned the following verdict: “We, the jury, find the defendant guilty as charged.”.

The trial court entered judgment on the verdict and sentenced the defendant to pay a fine of $500 and to six months’ confinement at the Illinois State Farm at Vandalia.

The defendant has sued out a writ of error to review such judgment.

The information charged that the defendant “did wilfully and unlawfully assault Pvt. Arthur Washburn with a deadly weapon, to-wit, with the tines of a pitchfork, with intent to inflict upon said Washburn a bodily injury where no considerable provocation appeared and where the circumstances of the assault showed an abandoned and malignant heart, contrary to the statute” etc.

The first contention of the defendant is that inasmuch as the information contained no allegation that Washburn was ever touched with the tines of the fork, the result is that a simple assault is charged, and the jury should have found of what offense the plaintiff in error was guilty.

The information was in the language of paragraph 60 of the Criminal Code (ch. 38, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 37.039]) and in our opinion sufficiently charged the crime defined in such paragraph of the statute. (See People v. Cohen, 303 Ill. 523; People v. Gawlick, 350 Ill. 359.)

To constitute the major or greater offense defined in such statute, it was not necessary to charge a battery,— that is to say, it was not necessary that the information should charge that the victim Washburn was touched with the tines of the fork. (Young v. People, 6 Ill. App. 434; Allen v. People, 82 Ill. 610.)

It is our opinion that the verdict of “guilty as charged” was a sufficient finding containing all of the essential elements of the major crime charged. (See Armstrong v. People, 37 Ill. 459; People v. Lemen, 231 Ill. 193.)

The only other contention of the defendant is that the jury and not the court should have fixed the punishment.

Paragraph 60 of the Criminal Code, under which defendant was convicted, provides that, “An assault with a deadly weapon . . . shall subject the offender to a fine ... or imprisonment in the county jail . . . , or both, in the discretion of the court.” (The emphasis is ours.) Such paragraph was enacted in 1874.

In 1917 the legislature passed an Act entitled: “An Act to revise the law in relation to the sentence and commitment of persons convicted of crime or offenses and providing for a system of parole and to repeal certain Acts and parts of Acts therein named. ’ ’ Such Act was approved June 25, 1917. (See Session Laws of 1917, p. 353 [Ill. Rev. Stat. ch. 38, par. 801 et seq.; Jones Ill. Stats. Ann. 37.759 et seq.].)

Such Act of 1917 has been amended from time to time. Such Act as originally passed, and as so amended, provided the method of fixing the punishment for certain criminal offenses, but prior to the enactment of the Act of 1943, referred to in the next paragraph of this opinion the Act of 1917, as originally passed and as amended from time to time, did not in any manner provide for the fixing of the punishment in cases where the penalty prescribed by statute was confinement in the county jail, or fine, or both.

In 1943 the legislature passed an act entitled “An Act to amend Section 6a of Division XIV of ‘An Act to revise the law in relation to criminal jurisprudence,’ approved March 27, 1874, as amended.” (See par. 754a, ch. 38, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 37.742 (1) ]; see also p. 586 of vol. 1 of the 1943 Session Laws.)

Such Act of 1943, so far as is material, provides that:

Sec. 6a. “The provisions of ‘An Act to revise the law in relation to the fixing of the punishment and the sentence and commitment of persons convicted of crime or offenses, and providing for a system of parole’, approved June 25,1917, as amended, shall apply to all crimes or offenses herein enumerated to which said Act may be applicable. In all convictions for such crimes or offenses, the fixing of the punishment and the sentence and method of imposition thereof, shall be as therein provided.

For all crimes or offenses to which the act cited in the preceding paragraph may not be applicable, the following procedure shall apply:

(a) . . .

(b) ... In all cases where the penalty as prescribed by statute is confinement in the county jail, or fine, or both, if the jury finds the accused guilty, it shall also fix the time of confinement, or fine, or both, as the case in its judgment requires. (The emphasis is ours.)

(c) When the accused pleads guilty, and in all other cases not otherwise provided for, the court shall fix the time of confinement, or the amount of the fine, or both, as the case may require.”

The question we are now required to pass on is,— is such emphasized part of such paragraph “b” of said sec. 6a applicable to and does it control the procedure when a defendant is now found guilty of an assault with a deadly weapon as defined in snch paragraph 60 of the Criminal Code, or do the words, “In the discretion of the court, ’ ’ found in such paragraph 60, require that where a defendant is found guilty under such paragraph 60 the judge, and not the jury, shall fix the punishment of the defendant, if the defendant is found guilty?

When the legislature treats a subject in a general manner it is not reasonable to suppose that it intends to abrogate particular legislation, to the details of which it has previously given attention, applicable only to a part of the same subject, unless the general act shows a plain intention so to do. The question is one of intention. (People v. Mack, 367 Ill. 481, 486.) That construction should be adopted which will give effect to the object and intention of the legislature. (People v. Flynn, 265 Ill. 414, 424.) Repeals by implication are not favored in the law, and a later statute will never be held to repeal an earlier one, unless they cannot be reconciled. It is the duty of the courts to construe them so as to avoid repeal, if such a construction can be given, and a statute will never be held to be repealed by implication if it can be avoided by any reasonable hypothesis. A subsequent law which is general does not abrogate or repeal a former one which is special and intended tq operate upon a particular subject, and if the later statute does not contain negative words it will not repeal the particular provisions of the special law on the same subject, unless it is impossible that both should be enforced. (Village of Ridgway v. Gallatin County, 181 Ill. 521, 525.) The rule is that where there is to be found in a statute a particular enactment, it is to be held operative as against the general provisions on the subject either in the same Act or in the general laws relating thereto. (Robbins v. Lincoln Park Com’rs, 332 Ill. 571, 579.) It is also a familiar principle if two statutes are clearly repugnant to each other the one last enacted operates as a repeal of the former; and another rule is that a subsequent statute revising the whole subject of a former one and intended as a substitute for it, although it contains no express words to that effect, operates as a repeal of the former. Where a later statute covers the whole subject matter of a previous statute and embraces new provisions which plainly show that it was intended as a substitute for the first, the later statute will operate as a repeal of the former statute even though not in all respects repugnant to such statute. (People v. Gould, 345 Ill. 288, 312.) Where the provisions of a former and a later statute are inconsistent and repugnant in respect of the same subject matter, the latter is a repeal of the former to the extent of the inconsistency or repugnancy. (Cook & Rathborne Co. v. Sanitary Dist. of Chicago, 177 Ill. 599, 602.)

Applying the foregoing rules of-construction, it is obvious that the provisions of the 1943 Act and that part of paragraph .60 with reference to the fixing of the punishment are clearly in conflict with and repugnant to each other. It is impossible for both the trial judge and the jury to fix the punishment. From a careful reading of the 1943 Act we are of the opinion that in enacting such Act it was clearly the intention of the legislature to thereby cover the whole subject of whether the trial judge or a jury should fix the particular punishment in all criminal cases, within, of course, the time limitations provided for by all statutes in the Criminal Code. It will be noted that the second paragraph of Section 6a specifically states that “For all crimes or offenses . . . the following procedure shall apply: ... In all cases where the penalty as prescribed by statute, is confinement in the county jail, or fine, or both, if the jury finds the accused guilty, it shall also fix the time of confinement, or fine, or both, as the case in its judgment requires.” We do not see how the legislature could have expressed its intention in any plainer language.

As stated, the 1943 Act above referred to may be found in the 1943 Session Laws at page 586, volume 1. The act was Senate Bill No. 318 and was approved' July 16, 1943. Although neither side has called our attention to the fact, at pages 589 and 590 of such volume of the same Session Laws there appears House Bill No. 342, which was approved May 29, 1943. As far as we can find House Bill No. 342 does not appear in the printed statutes. It is interesting to note that House Bill No. 342, although otherwise in almost the same language as Senate Bill No. 318, did not contain the following language used in the later Senate Bill, —“In all cases where the penalty as prescribed by statute is confinement in the county jail, or fine, or both, if the jury finds the accused guilty it shall also fix the time of confinement, or fine, or both, as the case in its judgment requires. ’ ’

For the reasons indicated it is our opinion that the 1943 Act controls, that in the case at bar the jury, having found the defendant guilty, should have fixed the punishment by their verdict, that such punishment should not have been fixed by the trial judge, and that in this respect the verdict was fatally defective.

The judgment of the trial court is therefore reversed and the cause is remanded to the trial court for a new trial and for other proceedings consistent with this opinion.

jReversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Hayes

license: Public Domain

text:
    Olive Laudeman, Appellee, v. Lester E. Beyler, Appellant. Lester E. Beyler, Counterclaimant, v. Olive Laudeman, et al., Counterdefendants.
    Gen. No. 9,442.

      Opinion filed October 26, 1944.
    Released for publication November 21, 1944.
    Harold H. Kuhfuss, of Pekin, for appellant.
    Harry B. Hoffman, of Peoria, for appellees.
   Mr. Justice Hayes

delivered the opinion of the court.

Lester E. Beyler has operated a dry cleaning business in the city of Delavan under the name of “Delavan Cleaners” since May 17, 1933. At the beginning, Beyler had no equipment except a car and a counter which he maintained in a rented building. In the Fall of 1933, Beyler’s sister moved to Delavan and started to work in his cleaning business at an agreed wage of three dollars per week, in addition to her board, room and clothing. She never actually received these wages however, but, with her consent, they were retained by her brother in the business as an investment. On May 21, 1934, Beyler purchased a building for his business and the cleaning equipment located therein, for $2,500. Since that time repairs and equipment valued at $1,880 have been added. This entire capital outlay was made by Beyler out of his own funds. In July 1934, Beyler raised his sister’s wages to five dollars per week but again it was agreed that they would be invested in the business. On September 20,1939 the brother and sister entered into a written partnership agreement and the business was operated under that agreement until May 17, 1941.

In late 1935 Elmer Laudeman came to Delavan and spent much time in the company of Beyler’s sister in the cleaning establishment and on the route where she drove, the truck to pick up items to be cleaned. Finally on December 1, 1940 Beyler and Laudeman had a disagreement and the latter was ordered from the premises. On December 13, 1940 Laudeman opened a rival dry cleaning establishment under the name of “Delavan Dry Cleaning Company.” Shortly thereafter Beyler’s sister decided to leave the partnership and asked a settlement which she never was able to obtain. She and Beyler finally parted on May 17,1941 and immediately thereafter she was employed by Laudeman in his business. On August 17,1941 she and Laudeman were married.

On February 3, 1942 Mrs. Laudeman filed her complaint in the circuit court of Tazewell county, Illinois, against her brother asking for an accounting, and that a receiver be appointed for the “Delavan Cleaners” to wind up its business. Beyler filed an answer and also a counterclaim against Mrs. Laudeman and her husband asking for damages from the former for breach of the partnership contract, and from both Mr. and Mrs. Laudeman for unfair competition. In addition, an injunction was prayed to restrain the Laudemans from unfair business practices.

Testimony in this cause was taken before the Master in Chancery who found that the total assets of the partnership on the date of its termination amounted to $3,206 and the total bills payable $602, all of which were subsequently paid by Beyler from his own funds. He found further that under the provisions of the partnership agreement Mrs. Laudeman and Beyler" were each entitled to one half of the assets but he refused to credit Beyler with the bills paid by him. The Master also found that Mrs. Laudeman was not liable in damages for breach of the partnership contract, but that the Laudemans had been guilty of unfair competition and illegal business practices and recommended an injunction against them. Finally he found that there was insufficient evidence to aúthorize an award of anything but nominal damages against Elmer Laudeman for unfair competition. At the hearing upon the exceptions, to the Master’s report the circuit court allowed Beyler credit for the partnership debts paid by him but otherwise approved the Master’s report and entered a decree thereon. Beyler has appealed to this court.

Beyler contends first, that the' trial court erred in decreeing that Olive Laudeman is entitled to a one-half interest in the partnership assets without regard to the amount' of capital invested by each of the partners. Paragraph two of the partnership agreement signed by Beyler and his sister provides as follows: “That the ownership of said partners respectively in said partnership shall be as follows: each shall own an undivided one-half (%) of the entire properties owned or hereafter acquired by them or either of them in connection with the operation of said business and their respective investments in said business shall be each an equal undivided one-half (V2) thereof, and all properties now in the hands of either or both of them which have heretofore been used in connection with a cleaning business in the city of Delavan shall be considered as hereafter belonging to this partnership.” The language' of this paragraph leaves no doubt as to the intention of the parties and is not open to construction. We think it was correctly interpreted by the trial court.

Beyler next contends that the trial court erred in failing to award damages against Mrs. Laudeman for breach of her fiduciary duties as a partner as prayed in his counterclaim. Basically he contends that Mrs. Laudeman breached paragraph 3 of the partnership agreement, and in addition conspired with Elmer Laudeman to destroy the partnership business. Paragraph 3 of the agreement provided, as follows: ‘ ‘ That this partnership shall exist continuously until terminated either by the death of a partner or by an agreement of the partners; and if the partners shall be unable to agree on a dissolution, the matter shall then be brought before the county court of Tazewell county, Illinois.” The Master in Chancery found that this paragraph, in effect, provided that the partnership should continue indefinitely, unless terminated by death or agreement of the parties, and that the last clause attempting to confer jurisdiction on the county court of Tazewell county to settle any disagreement is void. We believe this finding to be correct. Parties cannot confer jurisdiction on a county court to hear matters not provided there by law. Leman v. Sherman, 117 Ill. 657. Because this final clause is insufficient, the agreement is silent as to the consequences of a disagreement between the partners. Under these circumstances, we believe that section 31 of the Partnership Act is applicable and that, a dissolution as a matter of law occurred when Mrs. Laudeman left the business on May 17, 1941. Ill. Rev. Stat. 1943, ch. 106½, par. 31 [Jones Ill. Stats. Ann. 97.31]; Thanos v. Thanos, 313 Ill. 499, 145 N. E. 250. She therefore was not guilty of any breach subjecting her to liability for damages by acts in this regard, nor do we believe that the Master’s failure to assess damages against Mrs. Laudeman for conspiracy to destroy the plaintiff’s business was unjustified. While it is true that plaintiff has established facts showing that Elmer Laudeman had ample opportunity to obtain the names of plaintiff’s customers and to observe his methods of conducting his business, there is no proof that Laudeman was induced to do so by his future wife or that there was any sinister plan to obtain Beyler’s trade secrets, nor is there any proof that Mrs. Laudeman communicated confidential business information to Mr. Laudeman during the existence of the partnership. In fact she testified that she did' not.

The most difficult question before us is the validity of the order of the trial court awarding plaintiff only nominal damages against Elmer Laudeman for unfair competition occurring after his establishment of a rival business. The Master in Chancery found, “that no evidence was offered or introduced before me as to the profits which the said counterdefendant, Elmer Laudeman, made by reason of his said’ unfair competition ... or in the loss of profits or other legal damages which the said defendant, Lester E. Beyler, sustained by reason of said conduct . . . and that by reason of the failure of the defendant, Lester E. Beyler, to prove any legal damages by him sustained or profits received by the said counterdefendant, Elmer Laudeman, I thereby find that the said defendant, Lester E.- Beyler, has sustained only nominal damages. . . .”

An examination of the record discloses that the fact of damage was established. Mrs. Laudeman testified that during the existence of the partnership, the plaintiffs operated the business at a profit. Lester E. Beyler testified that after Laudeman started his competing business, “it caused my gross receipts to go down. It cut my route business about 50 per cent. On the average the year through that would be between $25.00 and $30.00 a week. The 50 per cent reduction would be $25.00 to $30.00 per week. ”

Thus the only question is whether the above-quoted testimony was sufficient proof of the act of defendants to support an award. It has been stated that, “it is not a sufficient reason for disallowing’ damages claimed that they cannot be exactly calculated. It is sufficient if, from proximate estimates of witnesses, a satisfactory conclusion can be reached.” Brown v. McCloud, 96 Ore. 549, 190 Pac. 578. On the other hand, the damages awarded must approximate the net profits that would have accrued had not the unfair competition occurred. L. P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co., 20 F. (2d) 830. In the present record the only evidence offered by plaintiff on the subject was an estimate of the reduction in gross receipts suffered by him. While it is not our intention to formulate a precise rule, it seems clear that plaintiff here could have furnished proof of the percentage of his gross receipts that normally represented profit as well as the names and number of his established customers who were enticed away by the unfair competition of the Laudemans. This type of proof was held sufficient in Bauwens v. Goethals, 187 Ill. App. 563, and we believe that with a little effort Beyler could have made similar proof. Failing to make proof of this character the chancellor was warranted at disallowing any damages other than nominal.

The judgment of the circuit court of. Tazewell county is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Riess

text:
    Monte L. Goad, Appellant, v. Audrey Wilson Grissom, Appellee.
    Gen. No. 9,431.

      Opinion filed October 26, 1944.
    Released for publication November 21, 1944.
    Mann & Stifler, of Danville, for appellant.
    H. Ogden Brainard, of Charleston and Cotton & Massey, of Paris, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

Defendant appellant, Monte L. Goad, has appealed to this court from a judgment entered against him on October 22, 1943 in the sum of $6,000 by the circuit court of Edgar county in favor of plaintiff appellee, Audrey Wilson Grissom, for damages alleged to have been sustained in an automobile collision which occurred at the intersection of State Highway Routes No. 49 and No. 133 in Edgar county, Illinois, on December 15,1941. At the time of the alleged injuries the plaintiff was riding as a guest passenger with one Mrs. Thelma Phipps in the latter’s Ford coupe in a northerly direction in the right-hand traffic lane of State Route 49 approaching the right angled intersection of State Route 133. Both routes were paved with concrete 20 feet in width with dark center lines, having widened curves at each of the four corners of the highway intersection. Both occupants of the Ford coupe were public school teachers on the way to their respective schools, between the hours of eight and eight-thirty a. m. A small girl accompanied them in the car. A “slow” sign was located on the east side of Route 49 about 300 feet south of its intersection with Route 133. The defendant, Groad, a traveling salesman, was driving east in his Studebaker car along Route 133, on the right hand side of which a “stop” sign was located near its intersection with Route 49. The two cars collided while crossing the intersection, resulting in alleged injuries and damages sustained by the plaintiff for which recovery was had after trial by jury. Motions for new trial and in arrest of judgment were heard and denied by the court and judgment was entered upon the verdict against the defendant, from which judgment this appeal was taken.

Numerous errors were assigned, some of which were argued in the respective briefs and will be considered herein. A careful examination of the evidence discloses that it was conflicting as to observing the stop or slow signs, the speed of the respective cars, the exact point and location of the impacts and of the respective cars following the injuries which we need not set forth in detail herein. Clearly, the verdict was not contrary to the manifest weight of the evidence and the trial judge did not err in overruling the motion for a directed verdict at the close of plaintiff’s testimony for want of proof making a prima facie case nor on grounds based upon the weight of the evidence set forth in the motion for a new trial.

The principal contentions of the appellant were (a) that an improper instruction was given by the court on behalf of the plaintiff which did not set forth that the damages must be proven by a preponderance of the evidence; (b) that plaintiff’s counsel had used language in his closing argument which was improper and prejudicial to the defendant and objection thereto was improperly overruled by the court; (c) that an excerpt from a certain newspaper article which was not in evidence was read to the jury over the objection of defendant’s counsel, which was overruled by the court and (d) that the amount of the verdict and judgment was excessive.

As frequently happens in this type of case, the'Occupants of each car and their respective witnesses testified that they were in the exercise of due care and that the cars in which they were riding were driven at a slow speed while the car of the opposite party was driven at a higher rate of speed; each claiming to have observed the “slow” or “stop” signs and each giving varying estimates of speed and contending that the negligence of the other party had proximately caused the collision.

The plaintiff further contended that the car in which she was riding had come from the right on the slab which had the right of way and was a through route marked by a “slow” and not a “stop” sign and that the car had slowed down to a speed of about 25 miles per hour; that the defendant’s car did not “stop” but drove over the crossing and into the Ford coupe at a speed of about 45 miles per hour; the above speeds of the respective cars being approximately the reverse according to defendant’s testimony.

As to the amount of the verdict, if the plaintiff was entitled to recover at all, the proof would justify a substantial verdict. The treating physician, after detailing the various injuries of the plaintiff, including those to her face, jaw, back, knee and feet and to her pain and suffering and the alleged result and effect upon her subsequent female functions, fully described certain alleged injuries to her left knee and gave his opinion that the knee had sustained permanent injury and impairment in its use to the extent of 25 per cent. We do not deem the expression of the latter opinion by the treating physician, allegedly based upon reasonable medical certainty, to' have been error or prejudicial to the defendant. Since the case must be retried on account of prejudicial and reversible error otherwise appearing in the record, we will not comment further as to the amount of the verdict which also included evidence of $900 in actual medical and hospital expenses and -loss of wages during absence from plaintiff’s duties and employment as a public school teacher.

Concerning the alleged erroneous instruction, which is complained of as being defective in only requiring that damages must be proven by the evidence, without stating therein that the same must be so proven by a preponderance of the evidence, we hold that the same was erroneous, and it should have required proof of such damages to be shown by the greater weight or preponderance of the evidence. The instruction, read in a series with other given instructions, properly set forth the above requirement. If the same were the only error appearing in the record, we might not reverse the case under the facts in evidence. However, when considered in connection with' other errors. which we deem to be prejudicial, we do not approve the form of this instruction and if offered or given upon retrial, it should contain the element requiring the alleged damages to be proven by a preponderance of the evidence.

Defendant further. contends that under the conflicting state of the evidence, the giving of this erroneous instruction, coupled with other errors complained of, rendered the same prejudicial to the defendant, and that the jury should have been accurately instructed as to the law.

The plaintiff’s counsel, in his closing argument to the jury, used the following language: “If I was a woman and I had $10,000.00 and I had the choice of keeping the $10,000.00 and being afflicted with that condition as that young woman, upon the threshold of life, engaged in a noble profession, I would give away the $10,000.00 and be a healthy normal woman and I say to you as accurately as my mind will admit, I wouldn’t have any hesitancy in giving up the $10,000.00.” This language, in our opinion, was both improper and prejudicial. This is especially true because the objection to the use of this language was overruled by the court and the same was held to be proper. Furthermore, counsel should not express and urge his personal choice as to what he would do or “his mind will admit” upon the jury. In the case of Bale v. Chicago Junction R. Co., 259 Ill. 476, 480, 102 N. E. 808 quite similar language, coupled with other objectionable phrases, was used by counsel in a closing argument wherein damages were sought to be recovered and the same was held by our Supreme Court to be both improper and prejudicial; even though in that case, the court had sustained objection to the use of the improper language and directed the jury to disregard it. (See also Bishop v. Chicago Junction R. Co., 289 Ill. 63, 124 N. E. 312 and citations therein.) In the instant case, the adverse ruling of the trial court tended only to increase its effect upon the jury. "While it is well understood that in the trial of closely contested cases, the zeal of counsel sometimes leads them to the use of perfervid language, it becomes necessary at times for the trial court, with or without objection by counsel-, and upon occasions, for courts of review, to prevent injustice being done to either party by unjust and unfair arguments tending to unduly arouse the emotions and prejudices of the jury. (Bishop v. Chicago Junction R. Co., supra.) We deem the circumstances in this case to be such that we cannot overlook the impropriety and probable effect of the argument upon the jury under .the record that comes to this court.

We further have the rather unusual situation of counsel appealing to the emotions of the jury in a manner that the admitted evidence would not justify by reading to the jury the following excerpts from an article in a newspaper which counsel had picked up during the noon luncheon hour, which was neither offered nor admitted in evidence and was not competent under any circumstances: “A woman’s body has not the hardness or resilience of a man’s body. A woman possesses certain delicate organs that are involved in the very fibre of her life’s happiness; the elements' that make her an attractive girl, a beloved wife, a happy mother. Without these things, she fails to reach the real object of her being alive at all.” Certainly, the objection to this irregular sort of procedure and argument should have been sustained by the court. The reading of the article was followed by counsel’s comment that “I thought it so appropriate to introduce to you the feeling that we of the plaintiff’s side have in reference to the injuries this young lady received. ’ ’ Their feelings were not an element of damages in the case. Where printed articles in newspapers are not admissible in evidence, this court has held they should not be read to the jury and their designation as arguments do not render" such use permissible. Chicago & A. R. Co. v. Bragonier, 13 Ill. App. 467. Herein, concerning the above newspaper article, the trial court aptly commented that “If improper as an item of evidence, it was improper to read it to the jury for any purpose.” In this conclusion we concur but we do not concur in the erroneous failure of the court to sustain the objection thereto and to instruct the jury to disregard any portion of the article in question. Here, too, counsel expressed what the plaintiff’s side feels about the case. It" is proper to argue what they contend the testimony to prove in support of their respective arguments and contentions and to aptly illustrate the same, but it is improper to urge their personal opinions or feelings on the jury, or to read from newspapers inflammatory articles which are given the added weight of quotation in appealing directly to the emotions and feelings of the jury in the case. Although an objection was interposed and overruled, it was the duty of the court in any event to interpose of its own volition under the above state of facts and prevent the reading of the improper article to the jury. Chicago & A. R. Co. v. Bragonier, supra.

In view of the errors complained of which we deem to have been prejudicial to the defendant under the facts and circumstances in evidence and to have resulted in an unfair trial of this case by the court below, we feel impelled to reverse the cause and remand it for a new trial, which should be kept free of the substantial errors complained of. The cause is therefore reversed and remanded with directions to the trial court to set aside the judgment and verdict of the jury and grant a new trial in the above entitled cause.

Beversed and remanded with directions.


text:
    Katherine Powers Wickiser, Appellee, v. William C. Powers et al., Appellants.
    Gen. No. 9,437.

      Opinion filed October 26, 1944.
    Released for publication November 21, 1944.

      U. G. Ward, of Shelbyville, for appellants.
    Harry I. Hannah and Thomas R. Figenbaum, both of Mattoon, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

Defendants appellants, Pearl A. Dole and Horace J. Dole, have perfected an appeal to this court from an adverse decree entered against the appellants and other defendants by the circuit court of Coles county, Illinois, on December 10,1943, setting aside as fraudulent, a certain executor’s deed and granting further •equitable relief prayed for in an amended complaint in the nature of a creditor’s bill filed by plaintiff appellee, Katherine Powers Wiekiser, on May 17, 1943.

The plaintiff had procured a divorce from a co-defendant, William C. Powers, in the city court of the city of Mattoon, Illinois, on May 4,1928, with an order for the custody of their two minor children and a decree for monthly payments by the defendant toward their support. On August 29, 1940, the defendant was in default in having failed to make the payments. Plaintiff thereupon filed a petition in said cause seeking both legal and equitable relief, praying entry of a judgment against defendant Powers for the amount of alimony so in arrears and also praying that he be enjoined from conveying, transferring or incumbering his interest in Lots 10 and 11 in Block 98, Noyes Addition to said city of Mattoon, or any other property, real or personal, acquired by him as heir, devisee or legatee in the estate of his deceased mother, Stella B. Powers, who had died testate in said county on August 12,1940. An order for a temporary writ of injunction was granted and the writ was issued upon plaintiff’s verified petition, without notice or bond, and was served upon defendant Powers on August 30, 1940. Later, on October 7, 1940, defendant Powers, by his attorney, entered his limited appearance in said cause denying the jurisdiction of the city court over the person of the defendant and asking that the writ of injunction be quashed. Again on the same day, the defendant; by his counsel of record therein, filed his general answer and appearance to the petition, together with a motion that the injunction be dissolved. On January 4,1941, the motion was duly heard and denied. Hearing of the cause was,also had on its merits before the court without a jury, upon issues joined in the amended complaint and general answer. No demand for a jury trial upon any issue arising under the pleadings was filed at any time by either of the parties. Judgment was entered against the defendant Powers for $2,00.0 found to remain due and unpaid to the plaintiff, under the terms of the prior alimony decree. In January 1941, and in November 1942, executions were duly issued upon said judgment and returned “Not satisfied, no property found,” by the sheriff of Coles county. No appeal from that judgment or decree was ever taken by the defendant. .

Stella B. Powers, then a widow, died seized of the above-described real estate in fee simple and had also left some personal estate. She left surviving, three adult children; the defendants William A. Powers, Pearl A. Dole and Josephine Edith Kauman as her only heirs and her only devisees and legatees under the terms of her will, which was duly admitted to probate in. the county court of Coles county on September 6, 1941. Defendant Pearl A. Dole was appointed and qualified as executrix named in the will. Defendant Horace J. Dole is her husband.

.Clause “Second” of the will of Stella B. Powers, pertaining'to the disposition of the property and estate in question, directs the executrix to sell the home place or premises of the testator therein described at public or private sale as soon as possible and from the proceeds of the sale to first pay Pearl Alice Dole the sum of $2,000 and further provides that the remainder of said proceeds shall go to and be distributed in equal shares among’ her three children and heirs hereinabove named. It was also therein recited that the testatrix and her late husband had advanced to William C. Powers and Josephine Edith Kauman, the sum of $2,000 each during testator’s lifetime and that before such real estate was sold by the executrix, the daughter Josephine should pay the balance due on a mortgage indebtedness against said real estate which had been incurred in procuring the above advancement to her. Said clause “Second” also provided that “I further empower my executrix to execute any and all conveyances for the-sale and transfer of said property. It is my further wish and desire that my three children above named, Pearl Alice Dole, William C. Powers and Josephine Edith Kauman, shall have the first option to buy my home before it is offered for sale to any other person or persons.”

The suit in equity in the nature of a creditor’s bill was filed by plaintiff on May 17, 1943, in the Coles county circuit court, against the above-named children, all adults, and the said husband of the executrix. Personal service was had upon all defendants except William C. Powers, then in Indiana, and he was duly served by publication.

Issues were joined upon the allegations of the amended complaint and the answer of defendants Pearl A. Dole, Horace J. Dole and Pearl A. Dole, executrix. The sister, Josephine Edith Kauman and defendant William C. Powers made no defense and were defaulted and a decree was entered against them. Neither William C. Powers nor Josephine Edith Kauman have joined in the appeal to this court.

The oral testimony of several witnesses on behalf of the plaintiff, together with numerous exhibits were offered in support of the allegations of the amended complaint, following which five exhibits but no oral testimony was offered by the defendants. A written opinion was filed by the trial court which appears in the record and in the additional abstract filed by plaintiff appellee.

The defendants appellants, Pearl A. Dole and Horace J. Dole, her husband, denied the validity of the plaintiff’s $2,000 judgment, asserting that the same was entered without jurisdiction of the person of said Powers; was incomplete and invalid as a judgment of record and was not a lien against any interest of William C. Powers in said estate and further denied that their actions and conduct in executing and procuring their respective deeds and assignments to said interest of William C. Powers was fraudulent or that plaintiff was entitled to the relief prayed, and asT signed errors by the trial court in holding to the contrary.

In her amended complaint, plaintiff had alleged and tie court found and decreed in substance that the interest of William C. Powers as heir, devisee and legatee under the will of Stella B. Powers, deceased, was held subject to the lien of said judgment in favor of the plaintiff and that with full knowledge thereof and with intent to defraud the plaintiff and deprive her of the benefit of said judgment and lien, the defendants fraudulently conspired to sell and did sell and transfer the interest of William C. Powers in the above-described real estate, consisting of a valuable home and residence property in the city of Mattoon, by a deed from said executrix to her husband, Horace J. Dole, dated October 9,1941 for an inadequate consideration and in the furtherance of said fraudulent design; that said Pearl A. Dole also procured a fraudulent and undated assignment, without consideration, to her of the equitably converted interest of said Powers in the proceeds of sale of said premises; that she thereafter, on October 16, 1941, filed the said deed for record and said purported assignment in the office of the county clerk, together with an inventory of said real estate and certain personal property; that she then filed a final report in said estate and claimed unto herself as assignee the alleged distributive share of William C. Powers in said estate in the amount of $1,768.88; that the two remaining children, William C. Powers and Mrs. Kauman entered their appearances without any public notice and without the knowledge of the plaintiff and she, as executrix, procured approval of said county court to her final report and therein acknowledged receipt as assignee of the above distributive interest of William C. Powers in said estate.

With all of the foregoing proceedings, it appears that the defendants were familiar and that before the transfer and alleged purchase of the real estate by Horace J. Dole, husband of the executrix, and before her brother, William C. Powers, against whom the judgment was in effect, had assigned his interest to her, an adjustment of said alleged judgment lien and claim against the interests of Powers in the above premises and estate had been sought and was fully discussed by and known to all of the interested parties.

Concerning the above transactions, including the value of the property in question, it was orally shown and not denied by any witness that the fair cash market value of the real estate in question was from $7,250 to $7,500 at the time of its transfer; that defendants’ counsel Kidwell was told by the grantor’s husband, Horace J. Dole, that he had learned from the building and loan association of Mattoon that they valued the home property at $7,500, one of which said associations held the mortgage lien on the property; that Dole proposed to buy the property for $4,000, subject to said lien so there would be nothing left for distribution and stated “that they didn’t want Mrs. Wiekiser to get any of this money,” but were advised by the attorney then representing William C. Powers that no court would approve this transaction, and at the instance of grantee Dole, other counsel was then retained. Further negotiations then followed, resulting in the sale and transfer of the property to the husband of the executrix and the assignment of Powers’ “right, title and interest” in the estate to the executrix in person by the undated and unacknowledged instrument of assignment which concluded as follows: “I further authorize the said Pearl Alice Dole to receipt the Executor of the Estate of Stella B. Powers, deceased, for my distributive share as fully as I could do in person. Signed — William 0. Powers. (Seal).”

The deed from Pearl Alice Dole, executrix, to Horace J. Dole, recited a consideration of $3,000, together with the assumption of an unpaid mortgage' balance of $3,549.85. It appears from the undisputed evidence that a previous written bid of Horace J. Dole for this property was $6,000; being more than the actual purchase price recited in the deed and not in accord with the consideration named in the final report, which also showed that Pearl A. Dole, as assignee of William C. Powers, had received the sum of $1,786.88 for which an accounting was prayed as being impressed with a trust arising out of the equitable conversion of William 0. Powers’ interest in the real estate under his judgment lien against the same, in the event that the transfer was not set aside as fraudulent. No effort was made to sell the premises at their fair cash value. The executrix even withheld the key from a prospective buyer desirous of inspecting and bidding upon the premises. The court properly found and we hold from the'preponderance of the evidence that the defendants, including the appellants and William C. Powers, had entered into a fraudulent scheme and had conspired to defeat and defraud plaintiff appellee of the benefit of her said judgment; that the assignment of William C. Powers to Pearl A. Dole, the deed from Pearl A. Dole, executrix to her husband Horace J. Dole and the assignment of William O. Powers to Pearl A. Dole were made without adequate consideration and were fraudulent, null and void and should be cancelled; or that in the alternative, the appellants pay such judgment within 10 days; that otherwise the same be cancelled and the property sold to the highest bidder, further directing the share of William C. Powers to be held and reported into the trial court.

It is the law in Illinois that before a creditor’s bill can be maintained to set aside or remove a fraudulent conveyance, or reach funds of a debtor, a valid judgment must have been first obtained, followed by the issuance of an execution and a nulla bona return thereon. Ladd v. Judson, 174 Ill. 344, 51 N. E. 838; Austin v. Bruner, 169 Ill. 178, 48 N. E. 449; Jones Ill. Stats. Ann., ch. 106, par. 12 [Ill. Rev. Stat. ch. 22, §49]. Defendants appellants urge that no valid judgment was entered in said city court and also question its jurisdiction to enter a judgment at law and the order granting equitable relief in the same proceeding. Under the Civil Practice Act now in force, both legal and equitable remedies may be sought in the same proceeding. There is no force in the latter contention. Westerfield v. Redmer, 310 Ill. App. 246, 33 N. E. (2d) 744.

It is further contended that the legal issues in the case should have been heard upon trial by a jury. Both the present statute and a number of cases of our courts of review have approved and upheld the provision that the constitutional right of trial by jury in civil actions at law, is one which may be waived unless a written demand for trial by jury is filed pursuant to the provisions of the statute. The cause was duly heard and no demand for a jury was made at any time by either party to the suit. They thereby waived right of trial by jury and the appellants herein cannot in any event raise the same as grounds of error in a collateral proceeding. The trial court properly so held concerning the money judgment of $2,000 in question. While the service upon the defendant William 0. Powers of a copy of the complaint in. Indiana did not give the court jurisdiction to enter a judgment in personam against him, his general answer joining issue upon the allegations of the amended complaint in that proceeding did give the court jurisdiction of his person for all purposes and there is no merit in appellants’ contention to the contrary. Suits to recover past due alimony may be maintained in an action at law for the recovery of a liquidated debt. That has been the long established law in this state. Paulin v. Paulin, 195 Ill. App. 350; Lancaster v. Lancaster, 29 Ill. App. 510. The court entering the above judgment had jurisdiction of the parties ánd subject matter and that judgment was not set aside nor was it appealed from by any party.

Appellants further contend that the record of that proceeding and the judgment was incomplete and that the same and the executions issued thereon were therefore void. The minutes of the trial judge entered on January 4,1941, read as follows: “Jan. 4,1941. Hearing on motion of defendant to dissolve injunction. Parties in open court by attorneys. Finding defendant properly served and motion of defendant denied and overruled. Hearing on petition. Finding $2,000.00 due, owing and unpaid to plaintiff by defendant. Judgment on the findings and execution ordered to issue. Said $2,000.00 being the amount due, owing and unpaid under order and decree heretofore entered and in full amount due and owing. ’ ’

While the judge’s minutes clearly show the announcement of the above judgment of the court on the findings on that date; the clerk, in writing up the record, showed the findings and order for execution but omitted the formal words of judgment upon the findings in favor of plaintiff and against the defendant in the amount of $2,000, and the trial court at a subsequent term, upon motion of plaintiff ordered the judgment record to be completed by the clerk in compliance with his ministerial power and duty under the statute. This was done by the addition of the above words by the same clerk who was still in office on March 29,1943. The appellants’ objection thereto is decisively answered by the holdings of the Illinois Supreme Court in the case of People v. Petit, 266 Ill. 628, 107 N. E. 830. In that case, the judge’s abbreviated minutes entered on October 17, 1913 recited 11 Jury verd. fg. iss. for pltf. & assess pltfs. das. at $9500.00 & Costs.” The docket kept by the clerk read as follows: “Petit, Oct. 17, 1913. Jury verd. fdg. issue for pltf. das. at $9500.00 & costs. Jdg. on fdg.” The same minutes appeared on the wrapper of the files in the case. No expanded record of the judgment had been written by . the clerk in the judgment record prior to December 4, 1913. An execution was issued on November 18, and served on the defendants on November 20. Defendants then made a motion at a subsequent term asking the court to expunge the entry of the clerk in the clerk’s minute book, wrapper and in the judgment docket. The trial judge then entered an order that the execution be stayed until further notice, etc. The plaintiffs filed a mandamus suit in the Supreme Court to have the last order expunged, alleging that the judge had no authority to enter it.

Concerning the validity of the original judgment of $9,500.00 and costs and the minutes of the judge and the clerk in relation thereto, the Supreme Court held in substance that the rendition of a judgment is the act of the court and can ordinarily be proven only by the record; that the judgment exists, however, from the time the court acts even though the entry of the judgment may not have been formally written by the clerk; that it is not necessary to the validity of an execution that the judgment shall have been formally written upon the record of the proceedings of the court before the execution is issued (citing Weigley v. Matson, 125, Ill. 64, 16 N. E. 881, 8 Am. St. Rep. 335); that while it was the duty of the clerk to enter of record the judgment so rendered, his failure to do so within any particular time did not make invalid the execution which was valid when issued; that the judgment of the court did not cease to be a judgment because the clerk failed to enter it of record; that while he might be liable personally to a fine under the statute for neglect of duty for such failure, the judgment did not lose its binding effect and it still remained the duty of the clerk to enter it of record; that the statute contemplates that judgments, decrees and orders of the court may not be immediately entered of record and directs the clerk to enter them before the final adjournment of the term or as soon thereafter as practicable. The statute reférred to was amended in 1933 by changing such time from adjournment of the term to 30 days after adjudication. Laws of 1933, 678, sec. 1. The Supreme Court further held in the Petit case, supra, that it is neither customary nor necessary to await such writing of the proceedings by the clerk before execution may issue, and although “both the September Term at which the judgment was entered, and the October Term, the next succeeding term, having elapsed since the judgment,” there was no limit of time upon the authority of the clerk to enter the judgments, decrees and orders made by the court; that it is not necessary to procure an order for the clerk to enter the judgment nunc pro tunc, nor for any order of the court upon the clerk to make a record of the judgment rendered. From an inspection of the minutes therein, it was held to be apparent that they were sufficient to enable the clerk to write out the formal judgment of the court. It was further held that the trial court was without jurisdiction, at a subsequent term, to direct that the judgment should not be written up by the clerk and the Supreme Court ordered the trial judge to expunge the order therefor. See also People ex rel. McDonough v. Jarecki, 352 Ill. 207,185 N. E. 570.

From the principles announced by the above authorities, it appears to this court that the clerk had full authority, in the exercise of his ministerial duties under the statute, to write up the judgment record during either the trial term or a subsequent term, there being at such subsequent term sufficient memoranda in the judge’s or clerk’s docket or minutes upon which to base the same. Clearly, such specific monuments and memoranda appeared in the judge’s and clerk’s minutes in the instant case. It also appears to be the settled law in this state that the judgment relates back to the date of its first entry and announcement, and the judgment, as announced and shown by the minutes of the trial court, fixed the date of the judgment herein as January 4, 1941, although its record was completed by the clerk at a subsequent date and term. We therefore hold that the judgment in question and the executions duly issued thereon and returned nulla bona were valid and binding upon the parties.

Where the testator merely directs the executor to sell real estate and apply the proceeds to certain purposes, the executor will take only a power to sell but no estate in the land. By the will, the executrix was given a mere power of sale of the real estate under the circumstances disclosed by the record (Lockner v. Van Bebber, 364 Ill. 636, 5 N. E. (2d) 460), and the interest of William C. Powers became subject to the lien of plaintiff’s judgment. Aside from the power of sale, no different disposition of the estate was made' among the three children under the will than they would receive under the law of descent. We further hold that an equitable conversion thereof into personal property for the purpose of distribution under the terms of the will impressed said interest with an equitable lien under plaintiff’s judgment, recoverable by a creditor’s bill in chancery. Railsback v. Lovejoy, 116 Ill. 442, 6 N. E. 504. However justified the defendants may have felt in their concerted designs and efforts to defeat the claim of the plaintiff, no justification appears from the record which would appeal to a court of equity in upholding the fraudulent transfer of the property to her husband and the assignment to herself for the declared and proven purpose of preventing the plaintiff, from collecting any money upon a judgment lien against the interest of the plaintiff’s former husband. The chancellor committed no error in granting the equitable relief prayed for in the complaint.

While we have not discussed all of the assignments of error, we have fully considered the same and we find no reversible error in the record. The decree of the circuit court of Coles county from which this appeal was taken is therefore affirmed.

Decree affirmed.


text:
    Stuart E. Kelley, Appellee, v. Irwin Call, Appellant.
    Gen. No. 9,441.

      Opinion filed October 26, 1944.
    Released for publication November 21, 1944.
    Frank K. Lemon, of Clinton and Costigan, Wollrab & Yoder, of Bloomington, for appellant.
    John F. Pearl, of Clinton, J. L. McLaughlin, of Sullivan and Grover W. Watson, of Farmer City, for appellee; Paul Stone, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

The defendant Irwin Call has appealed from a judgment of the circuit court of DeWitt county in the sum of $4,800 entered against him upon the verdict of a jury in favor of plaintiff appellee, Stuart E. Kelley. The suit was an action at law in tort to recover damages for personal injuries alleged to have been' sustained by the plaintiff as the proximate result of being struck by a motor car negligently driven by the defendant at or near a crosswalk in Farmer City, Illinois while the plaintiff, a pedestrian, was crossing the street in the exercise of due care.and caution for his own safety.

While there was some material conflict in the testimony as to the manner in which the plaintiff was struck and injured by the defendant’s car at the westerly intersection of Main and Water streets in said city, it does not appear to this court from the record that the verdict was contrary to the manifest weight of the evidence upon either of the factual questions of negligence or due care dr as to the manner, extent or proximate cause of the plaintiff’s injuries.

The appellant has assigned and argued several errors, and we will consider those which were argued in the briefs of the parties and upon oral argument before this court. The trial judge, who heard the case, upon overruling defendant’s motion for a new trial and entering judgment on the verdict, filed a written opinion appearing in the abstract in which he carefully considered and passed upon the alleged errors set forth in the motion.

Following due return of the jury’s verdict into open court, it appeared that the court bailiff handed the instructions and exhibits which had been taken to the jury room, to the presiding judge; that the bailiff found sheets of paper upon a table in the jury room after the jurors had been discharged, with figures showing thereon certain memoranda indicative of their respective votes as to the amount of the verdict; which sheets were left with the clerk at the instance of the judge. Upon hearing the motion for a new trial, these memoranda sheets showing added columns and amounts were produced with the evidence of the bailiff and clerk and the verified statements of the jury foreman, Eoscoe Sumner; the latter’s affidavit being offered by the plaintiff. The court expressed the view that the jury had apparently computed an average amount equaling the gross sum divided by twelve. The foreman’s affidavit recited that there was no agreement or understanding by the jury to the effect that they would be bound by the computation and that the average was arrived at without any agreement that the same would be the final verdict which was ultimately agreed upon by the jury; that after discussion and unanimous vote to find the issues for the plaintiff, the amount of the verdict was discussed and before a vote was taken on slips of paper, witness “as foreman of the jury, explained to them specifically that the purpose of writing down these amounts was merely to arrive at a starting point and that it was not in any manner binding upon the jury and further explained to them that they were not voting upon the verdict but merely expressing each juror’s opinion”; that later, after fully discussing the question of allowing to the plaintiff the sum of - $4,800, “that verdict was finally agreed upon as to the verdict by all of the jurors and all of them signed the same freely and voluntarily. ’ ’

It has been held by the Illinois Supreme Court that in the event of a prior agreement to arrive at a verdict by averaging the total amounts and thus obtaining a quotient verdict so agreed upon in advance, the verdict is void. Illinois Cent. R. Co. v. Able, 59 Ill. 131. In that case and in the case of Groves & S. R. R. Co. v. Herman, 206 Ill. 34, 69 N. E. 36, and City of Pekin v. Winkel, 77 Ill. 56, it was also held that the jury may experiment in considering said amounts if there is no prior agreement to be bound by the result as a quotient verdict. In the instant case, one of the suggested amounts was $12,000; two were $8,000 and the others were various lessor amounts, the total of which, divided by twelve, was $4,800. From this, an inference might well be drawn that such an agreement for a quotient verdict preceded the final agreement upon a verdict. As the trial court pointed out, however, the positive affidavit of the foreman to the contrary should prevail over the above inference to be drawn from the unexplained paper memoranda and that the conduct of the jury, as explained by its foreman, did not vitiate the verdict. Under the well-settled-law in this State, the affidavit of a jury member may be used in support of but not to impeach or controvert a verdict. City of Chicago v. Dermody, 61 Ill. 431; Kelly v. Chicago, R. I. & P. R. Co., 175 Ill. App. 196. See also Ruiter v. Knudson, 318 Ill. App. 211, 47 N. E. (2d) 534 and citations therein.

The further point raised by the appellant concerns . the fact that some written memoranda was also found in the jury room indicating the specific amount of certain items, including physicians ’ charges and other costs of treatment, incurred as an element of damages alleged to have been sustained by the plaintiff. It is argued therefrom that the amount of these items had been taken by some juror or jurors from the jury box to the jury room. It has been held to be improper for an attorney in arguing the case to have jurors take pencil and paper and write down calculations which are taken to the jury room and used in considering their verdict. Indianapolis & St. L. R. Co. v. Miller, 71 Ill. 463, 472; Ettelsohn v. Kirkwood, 33 Ill. App. 103. There was no evidence tending to show that any suggestion was made by counsel or that if such notes were made in the jury box, they were not made of the juror’s own motion. The trial court remarked that no one saw any juror make notes during the trial and that the memorandum was written upon the same kind of scratch paper as that furnished to the jury at the time of its retirement; that so far as the court knew, it. appeared that the memorandum was made in the jury room and not at the request or suggestion of any counsel. From the evidence of what transpired, we find and hold that the trial court properly ruled that no error appeared in the record in the conduct of the jury. In so holding, we do not depart from the rule that a quotient verdict, after an agreement by jurors to arrive at the amount of the verdict by aggregating the vote of all jurors and dividing the result by twelve, is void; nor do we hold that memoranda made in the jury box for use in the jury room at the request or suggestion of counsel and not of their own volition is proper.

Another assignment of error related to a certain answer made upon cross-examination by one of plaintiff’s witnesses, Doctor Ziegler, concerning an alleged statement against interest made by the defendant Call at the office of Doctor Kelley shortly after the time of the latter’s injury, to the effect that Call had hit him, that it was Call’s fault, that he had insurance to take care of it and wanted Kelley taken care of. It appears from the record that before the witness Ziegler was examined, defendant’s counsel stated to the court out of the hearing of the jury that said witness might make some statements concerning such insurance and plaintiff’s counsel stated that the witness had been cautioned and would make no reference thereto in direct examination and that it would not be brought out unless defendant’s counsel did so on cross-examination. It was not disclosed nor referred to by plaintiff’s counsel nor in the direct examination of any witness. The witnesses, Dr. Ziegler, Nile Mitchell, a son-in-law and Mrs. Crystal Kelley, wife of Dr. Kelley, were all present in the office at the time and all testified on direct examination that defendant Call had said “that he had hit him and wanted him taken care of;” the exact answer of Dr. Ziegler being that defendant had said “I hit him. It was my fault. I want him taken care of.” Defendant Call stated upon cross-examination that (Abst. 76) “I remember saying I hit him. I don’t remember saying it was my fault and I want him taken care of. I don’t know if I told them to take care of him.” From a clear preponderance of the evidence, it appears that the above statements had been made by defendant Call, who testified further as to the manner in which plaintiff was injured, when called for cross-examination under section 60 of the Civil Practice Act [Ill. Rev. Stat. ch. 110, par. 184; Jones Ill. Stats. Ann. 104.060], that he resided at Waynesville, was an automobile mechanic, aged 34 years and owned a 1940 Packard sedan, weighing 3640 pounds, on January 5, 1942; that “I was driving east on Water street on the above date in Farmer City, approaching Main street from the west. I pulled my car partly to the north side of the street north of the center line. I saw no one as I approached Main street. As I practically came to a stop, I saw Dr. Kelley. My foot slipped off the clutch, the car lunged forward and struck Dr. Kelley. I had on 5-buckle overshoes. My dog was in the back seat. I couldn’t see him strike me, but I could feel it. I was practically on the west crosswalk north and south at that intersection. Mr. Kelley fell on the right fender and slid off as I stopped. He was out of my sight. I got out and pulled him from under the car and took him to Dr. Kelley’s office. I was there when Dr. Ziegler and Mrs. Kelley came.” Plaintiff was injured about 7 o’clock p. m. and the conversation in question took place shortly thereafter in Dr. Kelley’s office a few doors north of the crossing where he had been taken and was given emergency treatment by Dr. Ziegler. The assigned error is based upon witness Ziegler’s allegedly unresponsive answer to questions by defendant’s counsel, restated by the court after considerable hesitancy by the witness, as to “whether or not you told substantially all about the case that you know” and the statement containing reference to insurance by the defendant was then made by the witness. A statement of this kind made or elicited by the plaintiff or volunteered by his witness will ordinarily constitute prejudicial error. If disclosed upon cross-examination by defendant’s counsel, it is dependent upon whether or not the answer may be fairly deemed to have been elicited by the questions of defendant’s counsel and not as a mere volunteer statement by the witness. From the abstract, it appears that while cross-examining the witness, defendant’s counsel asked the following specific questions: “Doctor; have you told everything you know about the case? A. Well, now what do you mean? Q. I mean substantially have you gone over practically everything that you know about it? Mr. McLaughlin: (of plaintiff’s counsel) Object to the question. The Court: He may answer. A. You take in a whole lot of territory. Q. I presume I am, but I am intending to. I, want to know anything else about the case that you know of that you did, and if so, I would like to have you tell me. Mr. Watson: Object unless he limits it to the treatment. The Court: He can answer the question whether he knows. The question should be a little more specific. Q. I think that is a double question, your Honor. Have you told everything about the matter in your direct examination pertaining to your treatment and his ) condition and what you had to do with it? A. He is kind of asking a question that’s kind of broad, your Honor. The Court: You can answer it yes or no whether you think you have, in your best judgment, or whether you haven’t. Mr. Watson: Object to the question as being entirely too general. Q. This is cross examination — The Court: That’s right, and that is the theory upon which it is permitted. A. I told him about his office — The Court: You don’t have — all you have to do is-A. But I want to figure out what I said. Q. Yes, but we don’t want you to figure out loud. A. Well, yes, I know — and when I asked Kelley, I went in — give me a little time — I says, What happened? He said I got hit by a car — The Court: Don’t make your observations out loud. Q. I move to strike that statement. The Court: That will be stricken out. Q. The question was asked — The Court: The question is whether or not you told substantially all about the case that you know. All you have to do is say whether you think you have or haven’t. A. I think I have, all except one thing. Q. What is that, and what was that about? A. I am going to go back a little bit, with I says, How did this happen, Kelley? and Mr. Call says, I hit him; it was my fault, and I have got insurance to take care of it, and I want him taken care of — Mr. Lemon: I move to withdraw a juror and continue the case. The Court: Take the jury out. (Thereupon the jury was removed by the bailiff from the courtroom).” At the request of defendant’s counsel, the record was then made to show the conversation preceding the testimony of the witness Ziegler relating to the subject of insurance. The court stated that Mr. Watson had said, in substance, that he wouldn’t bring it out on direct examination and that he then said “Unless you bring it out on cross examination, or something like that. That’s what I remember.” Following further discussion and remarks by court and counsel, the court ruled at length in denial of the defendant’s motion. The court then made the inquiry: “Do you want the Court to instruct the jury that they are to disregard that, or do you want that subject ignored?” “Mr. Lemon: I think any further reference — The Court: There will be no instruction of that kind unless you want it made. I will make no reference at all, unless counsel desire it.”

Without analyzing the specific cases and factual situations which have arisen in other cited cases passed upon by courts of review of this State, it may be said that as a general rule of law in Illinois, it is held to be reversible error for the plaintiff to make disclosure to the jury through his testimony or in his argument, of the fact that the defendant carries liability insurance. In a number of States, admissions made by a defendant wherein it appears as a part of the statement that he is insured, the entire statement becomes admissible in .evidence. 56 A. L. R. 1448; 74 A. L. R. 856; 95 A. L. R. 398 and numerous citations therein. That question does not seem to have been directly passed upon by g,ny Illinois court of review. It is also a recognized rule of law in this State that when the fact of insurance is elicited or disclosed by the defendant or his counsel, he will not be allowed to take advantage of the situation to procure a new trial or a reversal on the grounds of prejudice. Reitz v. Yellow Cab Co., 248 Ill. App. 287. In the present case, as pointed out by the trial judge in ruling upon the motion for a new trial, the fact as to insurance was disclosed by defendant’s cross-examination of the witness. After insistent cross-questioning as to whether or not he had stated all that he knew about the case, by the first quoted question of defendant’s counsel and as later repeated by the court, the witness finally repeated the content of his prior answer on direct examination and quoted verbatim defendant’s entire statement, including the element concerning his insurance protection. This had followed the added ruling of the court that the witness must reply to the general question. It may be said in passing that the above general question, frequently asked, is ordinarily intended to preclude the witness from giving any additional affirmative testimony upon redirect examination as to facts not disclosed upon direct or cross-examination. However, it has the vice of leaving to the judgment of the witness what is competent or not competent testimony and is in effect a broad invitation to him to state any matter which he may deem to he pertinent, material or relevant to the issues. Here, the court, who heard the witness testify and saw and observed his demeanor and the surrounding circumstances under which he was testifying, held that the facts did not show bad faith on the part of the witness or that he was looking for an excuse or opportunity to make the statement, but was inclined to believe from his consideration of the facts and a careful rereading of the record in relation thereto, that “the witness thought he was supposed to tell everything he knew.” Numerous cases are cited and sought to be applied to the circumstances of this case by respective counsel but no parallel factual situation is cited and none has come to the attention of this court. Ordinarily, cross-examination of a witness who is not a. party to the suit should be confined within the scope of the direct examination, with reasonable latitude for testing the knowledge, memory or credibility of the witness. It is not intended to cover any and everything that the witness “may know about the case.” The answer of the witness here was as responsive as any other answer could have been under the circumstances. The hesitancy of the witness and thé repeated objections of plaintiff’s counsel to the question which should have been sustained by the trial court, appear to this court to have elicited that part of the defendant’s statement complained of under circumstances showing neither bad faith on the part of the witness nor of the plaintiff, who had avoided that subject in the direct examination. The witness was repeatedly pressed in the cross-examination to answer whether he had told all he knew, and upon answering that he had told all he knew but one thing, defendant’s counsel then insisted upon him stating “What is that and what was it about. ’ ’ The fault, if any, was that of the defendant. The trial court did not err in ruling under the above circumstances that the answer elicited by the defendant on cross-examination did not constitute prejudicial error.

Some reference is made by appellant to argument of appellee’s counsel in closing the case. Most of the objections thereto are now raised for the first time upon appeal and .not upon objection and ruling thereon by the court, made and preserved in the record during the trial. We hold that such objections were thereby waived. Peterson v. Pusey, 237 Ill. 204, 86 N. E. 692. The statement to which an objection was made and preserved was not, in our opinion, of a nature that would influence «the jury or that constituted reversible error.

The principal remaining assignment of error concerns two given instructions for the plaintiff. One instruction was to the effect that the jury are the judges of the credibility of the witnesses and of the weight to be given to their testimony and if they believe that any witness has wilfully sworn falsely to any “material fact or facts” in the case, they are at liberty to disregard such testimony unless corroborated by other testimony, etc. It is pointed out by the court that a similar rule is substantially stated in an instruction given for the defendant, wherein he has used, instead of the words “material fact or facts” the words “Material point. ” Defendant may not take advantage of an error for the purpose of procuring a reversal or new trial where the same error, if it is an error, appears in an instruction offered and given in his own behalf. (Mowery v. City of Mounds, 245 Ill. App. 338, 343.)

We hold that rule to be applicable to the specific assignment of error raised as to said instruction. The remaining instruction to which objection is made instructs the jury that if they should find from the preponderance of all the evidence in the case that the plaintiff is entitled to recover, then it will become the duty of the jury to assess plaintiff’s damages and the court instructs the jury that the measure of the plaintiff’s recovery in such case would be such amount as will fairly and justly compensate him for the damages he has sustained as a result of the injuries in question. It is expressly set forth and pointed out in one of the given instructions that all of the court’s instructions are to be considered by the jury as a connected series. The jury was further instructed that if, from the evidence in the case, they find that the plaintiff was not entitled to recover, then they would have no occasion to at all consider the character or extent of the plaintiff’s alleged injuries or damages, whether serious or slight, and in the instruction as to the form of the verdict, that if they find for the plaintiff and against the defendant, they were to assess plaintiff’s damages in the snm of - dollars, inserting in the blank such amount, if any, as you may find from the evidence plaintiff is entitled. Specific instructions concerning the necessity of proof by a preponderance of the evidence, of the material issues and elements of negligence, due care and of proximate resultant damages to the plaintiff are also recited and set forth in other given instructions. A further cautionary instruction was given, setting forth that the fact that the court has instructed the jury respecting the measure of damages which may be allowed the plaintiff in case they find that he is entitled to recover under the evidence and these instructions, and the fact that defendant’s counsel may have discussed the subject in argument before them is not to be taken or regarded by them as implying in any way that either the court or said counsel are of the opinion or are admitting that the plaintiff is entitled to an allowance of damages in any amount whatsoever. The instruction complained of could not have affected the primary question of liability and the amount of the verdict is well within the evidencé as to damages alleged and proven and is not excessive. Nothing appears to fairly indicate that the jury went outside of the record in considering and assessing the amount of damages. While the instruction complained of, standing alone, contains error; when read and considered in a connected series with the other instructions, as the jury was expressly instructed to do by the court (Cosmo v. Seegers, 307 Ill. App. 187, 30 N. E. (2d) 123, Lester v. Bugni, 316 Ill. App. 19, 44 N. E. (2d) 68), and when viewed as ordinary men acting as jurors would view and consider them, the error is rendered harmless. (Reivits v. Chicago Rapid Transit Co., 327 Ill. 207, 158 N. E. 380.) We are in accord with the holding of the trial court that when so considered, the jury was fairly instructed as to the law applicable to the evidence and issues presented hy the pleadings and that the instructions contained no prejudicial nor reversible error.

Defendant appellant further contends that the amount of the verdict and judgment was excessive. There was evidence of serious physical injuries to the plaintiff; especially to his head and one of his knees. The evidence includes that of semi-consciousness and bleeding from the ear and nostrils when brought into the physician’s office; of a basal fracture to the skull; severe and recurrent headaches; painful injuries to the chest and back; of subsequent pneumonia while he was still a patient in the hospital; some conflicting testimony of physicians as to whether or not the injuries were partially permanent; testimony as to pain and suffering and of the expense of treatment by several physicians and specialists; cost of hospitalization and numerous X-rays. We are in accord, with the holding of the trial court that the amount • of the damages awarded was not excessive.

Although the case was closely contested and the record is not entirely free from error, we hold that a fair trial was had, that substantial justice was done between the parties and that no reversible error appears in the record. The judgment of the trial court is therefore affirmed.

Judgment affirmed.


author: Presiding Justice Dove.

text:
    Bernadine Bissekumer, Appellant, v. Roger Bissekumer, Appellee.
    Gen. No. 9,933.
    opinion filed February 16, 1944;
    rehearing denied November 20, 1944; released for publication November 21,1944.
    Wilbur E. Johnson and Hall & Hall, for appellant; Roy E. Hall, of counsel; Welsh & Welsh, for appellee; C. K. Welsh, of counsel.
   Opinion by

Presiding Justice Dove.

Not to be published in full.


author: Presiding Justice Dadt.

text:
    Gay Gorrell, Now Gay Roley McClelland, Appellant, v. May Gorrell Roley et al., Appellees.
    Gen. No. 9,439.
    opinion filed October 26, 1944;
    released for publication November 21, 1944.
    Dwight H. Doss, for appellant; N. E. Hutson, for appellees.
   Opinion by

Presiding Justice Dadt.

Not to be published in full.


author: Presiding Justice Dady.

text:
    In re Estate of Olive M. Campbell, Deceased. Irving B. Campbell et al., Appellants, v. Arthur W. Jones, Individually and as Executor, Appellee.
    Gen. No. 9,443.
    opinion filed October 26, 1944;
    released for publication November 21, 1944.
    Irving B. Campbell, for appellants; Harry I. Hannah and Thomas R. Figenbaum, for appellee.
   Opinion by

Presiding Justice Dady.

Not to be published in full.


author: Justice Hayes.

text:
    Bertha Gale et al., Appellants, v. Ethel Heckman Roberts, Appellee.
    Gen. No. 9,420.
    opinion filed October 26, 1944;
    released for publication November 21, 1944.
    Dwight H. Doss, for appellants; Weilepp & Wilson, for appellee.
   Opinion by

Justice Hayes.

Not to be published in full.


author: Opinion by Justice Hates.

text:
    Monte L. Goad, Appellant, v. Thelma Stoner Phipps, Appellee.
    Gen. No. 9,432.
    opinion filed October 26, 1944;
    released for publication November 21, 1944.
    Mann & Stiller, for appellant; Alton B. Gofer, for appellee.
   Opinion by

Justice Hates.

Not to be published in full.


author: Justice Riess.

text:
    Victoria Darmer, Appellant, v. John E. Darmer, Appellee.
    Gen. No. 9,444.

      opinion filed October 26, 1944;
    released for publication November 21, 1944.
    Londrigan & Londrigan, for appellant; A. M. Fitzgerald and Walter T. Day, for appellee.
   Opinion by

Justice Riess.

Not to be published in full.


author: Mr. Justice Culbertson

text:
    Tillie Elliott McGuire, Appellant, v. Lewis Ebb Etherton, County Superintendent of Schools of Jackson County et al., Appellees.
    Opinion filed October 27, 1944.
    Released for publication November 27, 1944.
    Fletcher Lewis, of Murphysboro, for appellant.
    Glenn O. Brown, State’s Attorney of Jackson County, Murphysboro, and L. R. Stewart, of Murphysboro, for appellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order and judgment of the circuit court of Jackson county, dismissing appellant’s petition for writ of certiorari in the circuit court, and superseding and quashing the writ, as a result of a mo- , tion made by appellees.

It is suggested by appellant that the sole question presented to this court is whether appellant, by her petition, as plaintiff, for the common-law writ of certiorari, is entitled to a review of the proceedings of the appellees, Board of Education of School District Number 106 of Jackson County, and Appeal Committee of the County Superintendent of Schools of such County, dismissing and removing her from her position as a tenure teacher. The appellees indicate that the appeal also presents a question as to whether or not the petition, on its face, shows that the School Board dismissed the plaintiff for sufficient cause.

Such petition sets forth the entire record of the case, which indicates that appellant was in the employ of the appellees, Board of Education, as a teacher in the public schools in the City of Murphysboro, Jackson County, Illinois, and began her first year as a tenure teacher, having completed her last year as a probation teacher on August 31, 1941. A written contract was entered into between appellant and the Board for her services as a tenure teacher, on March 26, 1942. The record shows that on March 23,1942, the School Board adopted a resolution confirming the policy of the School Board, in force for more than 14 consecutive years, not to employ female married teachers on contract, and that the policy had been consistently enforced. On March 23, 1942, the School Board adopted a resolution incorporating that policy with relation to married teachers in a rule made a matter of record.

As we have indicated, the contract between plaintiff and the School Board was executed on March 26, 1942, and included this clause: “It is further agreed that this contract is subject to the school laws of Illinois and the reasonable and lawful regulations -that now exist and those that may be adopted from time to time by said Board.” On October 17, 1942, plaintiff was married to George M. McGuire. About six days later, on October 22 or 23, 1942, the School Board sent plaintiff a notice which recites the Board’s resolution of March 23, 1942, and gave plaintiff notice of the termination of her contract on October 23, 1942. Thereafter, on November 2,1942, plaintiff, by her attorney, demanded a public hearing and to be allowed to be present at the hearing with counsel to present evidence aiid defenses and to cross-examine witnesses. On November 9,1942, the School Board unanimously adopted a resolution reciting that in the judgment and discretion of the School Board, their contract with plaintiff ought to be and was terminated upon the charge and for the reason that plaintiff had married, for which cause the Board was authorized by the contract with plaintiff to terminate it, without liability to her, and in the resolution recited that the action is subject to the proceedings at a public hearing set for December 14, 1942. Plaintiff was suspended in the resolution from teaching and the resolution expressly recites that the interests of the schools required such action, and that by the adoption of the resolution the School Board did not admit that the provisions of section 127% of the School Law (Ill. Rev. Stat. 1943, ch. 122, par. 136c [Jones Ill. Stats. Ann. 123.161 (1)]) with reference to procedure for dismissal or removal of teachers serving, under contracts for continued service are applicable, or that the provisions are constitutional.

On December 14, 1942, the School Board conducted a hearing and at the close of the hearing, adopted by unanimous vote a resolution showing that plaintiff had a public hearing, at which she was represented by counsel; that evidence was taken; and that the School Board found that she knew and realized prior to her marriage, the policy of the Board with reference to not employing female married teachers, and of the existence of the resolution and regulations adopted March 23,1942, which was one of the rules and regulations referred to in the contract she signed; that her marriage, in view of said established policy and regulation, was good and sufficient cause for cancellation of her contract and for her suspension as a teacher; and that in the opinion of the School Board, the interest of the schools required such action.

An appeal was taken from this action of the Board of Education, in accordance with the provisions of paragraph 136c of ch. 122 of Ill. Rev. Stat., to the appellee, County Superintendent of Schools, whose Appeal Committee reviewed the case, and on July 3, 1943, unanimously affirmed- the decision of the School Board. Thereafter, plaintiff filed her petition for a common-law writ of certiorari in the circuit court of Jackson county, which writ was issued ex parte. The appellees appeared generally, and filed their motions to dismiss the petition, and to supersede and quash the writ. In such motion of appellees it is contended that the petition for writ of certiorari shows that appellant had a hearing before the appellee,' Board of Education, and an appeal from its decision to the Appeal Committee; that the proceedings were in accordance with the law; and that the evidence in the record fairly tended to support the charges of the Board of Education; and that if any error was made, it was of discretion, which the circuit court had no power to review by a common-law writ of certiorari. It was, likewise, contended and is contended in this court, that aside from the procedural question as to whether or not plaintiff is entitled to a review of her case by common-law writ of certiorari, appellees contend that there is no merit in her case on the substantive facts set up in her petition because, (First) Her contract, which was specifically made subject to the existing lawful regulations, or those thereafter adopted from time to time by the Board, contains a lawful and enforceable agreement on her part that it might be terminated by the Board, without liability, if she married; and (Secondly) Plaintiff’s marriage, in violation of the long-standing policy of the Board against employing married teachers on contract, and the rules supplementing such standing policy, was a sufficient cause for plaintiff’s dismissal, and good ground to support the opinion and judgment of the Board that the interest of schools required it.

The petition for certiorari alleges the facts with reference to the marriage of plaintiff, and charges that the Board of Education arbitrarily and illegally removed the dismissed appellant, without power so to do; and that the Appeal Committee of the Superintendent of Schools exceeded their lawful power and jurisdiction in upholding the Board.

It is contended in this court that the circuit court erred in rendering and entering the order sustaining the motion of appellees to dismiss the petition for certiorari, and to supersede and quash the writ. It is the contention of the appellees that plaintiff was granted a public hearing by the School Board, but with an express reservation that her right to such hearing was not conceded. After such hearing, by unanimous vote of all Board members present, a decision was finally entered against her, after which she took her contentions, “by appeal, to the Appeal Committee appointed by the' County Superintendent of Schools, which committee unanimously affirmed the decision of the School Board.

In a number of cases in this State it has been pointed out that the common-law writ of certiorari will not lie in any case, except where the lower tribunal had no jurisdiction, exceeded its jurisdiction, or proceeded illegally (Ennis v. Ennis, 110 Ill. 78; Donahue v. County of Will, 100 Ill. 94; Joyce v. City of Chicago, 216 Ill. 466; Hopkins v. Ames, 344 Ill. 527).

In the instant case the plaintiff demanded and was awarded a public hearing by the School Board. She appeared generally, with counsel, and actively participated in the hearing. She apparently does not contend that the Board was without jurisdiction to conduct the hearing. It is contended by appellees that plaintiff cannot properly contend that the School Board exceeded its jurisdiction in deciding that her marriage was a good and sufficient ground for terminating her contract and dismissing her as a teacher. In this connection it is pointed out that the School Act gives the Board power to adopt and enforce all necessary rules and regulations for management and government of public schools of their district, and to dismiss teachers for sufficient cause. It is contended that the most that plaintiff can properly assert is that the Board committed an error of judgment in sustaining her dismissal for the assigned cause. We are inclined to agree that under the facts in the record that necessarily would be the basis of the plaintiff’s petition and, if so, that is not a ground for a review of the case by the common-law writ of certiorari (Joyce v. City of Chicago, supra; People ex rel. Maloney v. Lindblom, 182 Ill. 241; Carroll v. Houston, 341 Ill. 531; Hopkins v. Ames, supra).

On the basis of such precedents if a court of review should come to the conclusion that the School Board made an error in concluding that it had the right to* terminate plaintiff’s employment under the terms of her contract and because of the policy of the Board against employing married' teachers, it was an error of judgment and did not involve a situation where there was no jurisdiction, an excess of jurisdiction, or illegal procedure, and under the state of facts in the record, and on the basis of the precedents cited, it appears that there was no basis for a common-law writ of certiorari as disclosed by the record. It is hardly a proper characterization of the action of the School Board to assert that its action was arbitrary in the state of the record. It apparently involved an exercise of discretion by the Board, as to which the common-law writ of certiorari does not lie (City of Harvey v. Dean, 62 Ill. App. 41), and the determination of the Board of Education does not, under the facts, seem to be an arbitrary exercise of such discretion.

In connection with a consideration of the basic question before us on the merits, we note that a number of cases in other jurisdictions have determined parallel problems and have sustained the action of Boards of Education in dismissal pursuant to similar rules relating to married teachers (Rinaldo v. Dreyer, 294 Mass. 167, 1 N. E. (2d) 37, 118 A. L. R. 1084). In the Rinaldo case, the Massachusetts court construed the language, “other good cause” for dismissal to include marriage, and not to be limited to some form of inefficiency or misconduct on the part of the person dismissed. It was observed by that court that whether or not married women should teach in public schools is a matter about which there may be an honest difference of opinion, and that some other courts have come to opposite conclusions.

The Indiana court, in McQuaid v. State ex rel. Sigler, 211 Ind. 595, 6 N. E. (2d) 574, in reviewing a number of authorities, including the English cases, stated that the great weight of authority supports the view that where the action of a School Board is taken pursuant to a policy adopted in good faith, marriage is a good and just cause for the cancellation of a tenure teacher’s contract when the contract is made with specific reference to or with full knowledge of the rule or policy. Our analysis of the cases to which our attention has been called, bearing on the problem, sustains that conclusion.

We believe it would serve no useful purpose and would not be consistent with proper procedure to require the remandment of this cause to the circuit court for the purpose of making futile formal charges as to which there is no dispute in the record. We believe that the action of the circuit court in dismissing plaintiff’s petition for writ of certiorari and in superseding and quashing the writ was proper in view of the record and under the facts and circumstances in this case. Such action will, therefore, be affirmed.

Judgment affirmed.