author: Mr. Justice Lewe

text:
    Myrtle Felton, Appellant, v. Samuel Felton, Appellee.
    Gen. No. 43,005.
    Heard in the third division of this court for the first district at the April term, 1944.
    Opinion filed June 29, 1945.
    Released for publication July 24, 1945.
    Harold A. Fein, of Chicago, for appellant.
    E. J. Blair, of Chicago, for appellee.
   Mr. Justice Lewe

delivered the opinion of the court.

Plaintiff appealed from an order denying her petition for alimony which accrued under the terms of a divorce decree entered in her favor July 13,1934. Defendant filed a cross-appeal from the same order denying modification of the terms of the decree. Under the terms of the decree the defendant is required to pay the plaintiff the sum of $125 per month, commencing July 16, 1934, until she remarries; and in the event defendant shall have a monthly income from all sources in excess of $400, he is directed to pay, in addition to the monthly payment of $125, 25 per cent of the excess.

The material facts are uncontroverted. Since 1928 the defendant has been employed continuously by the Acme Steel Company as a traffic manager. At the time of the entry of the decree, his monthly income from all sources was $350; and periodically thereafter, commencing January 1,1935, defendant’s salary increased every year until it reached $708.33 monthly. Plaintiff is a resident of Miami, Florida, and has not remarried. Her only source of income has been the alimony payments of $125 monthly from the defendant. To recover the alimony which accrued under the terms of the divorce decree by reason of defendant’s monthly earnings in excess of $400, she filed her petition on April 19, 1943, which avers that “she believes that the defendant for some time prior to the filing of the petition has had income in excess of $400 a month and that he refuses to disclose the amount thereof and the date on which such excess commenced. ’ ’ Defendant filed a verified answer admitting that he had received $18,253.12 in excess of $400 per month, for the period beginning January 2, 1935, to April 30, 1943. The answer further avers that the plaintiff was guilty of laches in not asserting her claim for alimony, and concludes with a prayer that the divorce decree be modified by eliminating the provision for the payment of 25 per cent of his income in excess of $400 a month.

The chancellor referred the petition and answer to a special commissioner “to hear testimony and make his report and recommendation as to the law and facts.” In his report the special commissioner found, inter alia, that “she (plaintiff) is now estopped and barred from making any demand for past-due alimony which may have accrued,” which finding is based upon defendant’s Exhibit “A,” being a letter from the plaintiff to the defendant postmarked February 8, 1943, reading as follows:

“Now that I am supposed to pay my own income tax, you will have to send me the amount of the tax. If you will not, I will have to collect all you owe me. I am not asking for only what is mine. I don’t understand why you don’t pay it all now, because if you die first, I certainly would ask for it out of your estate. I am not threatening you, I am simply telling you. I will have Mr. Fein collect all you owe me if I have to.
(Signed) Myrtle.”

The special commissioner recommended that an order be entered denying the prayer of the defendant’s answer to modify the decree and also plaintiff’s petition for 25 per cent of the monthly earnings of the defendant in excess of $400.

The chancellor overruled the objections filed to the special commissioner’s report, and followed his findings and recommendations.

The first question presented for decision is whether plaintiff is guilty of laches in seeking the enforcement of her rights more than 8 years after defendant’s monthly income increased in excess of $400. The only evidence tending to sustain the special commissioner’s finding, which was adopted hy the chancellor, that plaintiff had any information with respect to defendant’s income, appears in the letter of February 8, 1943. The record is barren of any other proof that plaintiff delayed the assertion of her right to the accrued alimony. It was defendant’s obligation, under the provisions of the decree, to pay the additional alimony as his income increased, but the evidence does not disclose that he ever attempted to furnish the plaintiff with this information. Since the best source of information as to the defendant’s income lies within his own breast, it would be a strange doctrine indeed to place this burden upon the plaintiff, particularly while she was residing in a foreign state. It should also be noted that plaintiff instituted these proceedings about two months after she wrote defendant’s Exhibit A. We are unable to see the force of defendant’s argument that plaintiff was not diligent in pressing her claim. In support of defendant’s contention that the plaintiff has slept on her rights, he cites the case of Gordon v. Baker, 182 Ill. App. 587, and Price v. Price, 80 Colo. 158. Since the Price case is reviewed in the later case of Kaifer v. Kaifer, 286 Ill. App. 433, we shall not discuss it except to say that the factual situation is different from that in the case before us. In the Kaifer case, a decree of divorce was entered in January 1922, which was modified a year later. In October 1935, Mrs. Kaifer filed a petition charging that defendant ceased paying monthly instalments after June 1925. Defendant answered, as in the present case, that petitioner was guilty of laches in prosecuting her petition, but the court held, at page 439, that the decree for monthly payments was “a continuing order.”

Since the filing of this appeal, the case of Wadler v. Wadler, 325 Ill. App. 83, was determined. The authorities cited by defendant, and many others, involving the question of alimony where the defense of laches was interposed, are therein reviewed and distinguished. The court held, in effect, that a divorce decrée providing for the payment of alimony was, by its nature, a continuing order, and said, at page 93:

“If it be assumed that a decree for alimony is a money decree, as indicated by the foregoing decisions, it is difficult to perceive why the 20-year statute of limitations applicable to judgments, as provided in par. 24b, sec. 25, ch. 83, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 107.284 (2)], does not apply, and since plaintiff filed her petition for a money judgment long before any of the payments could have been barred by the 20-year limitation, the amount awarded her was manifestly proper.”

The only other contention requiring consideration is that the chancellor erred in failing to deduct defendant’s alleged' entertainment expense and the cost of operating an automobile, in determining his income. The evidence adduced before the special commissioner as to the necessity and amount of these deductions claimed by the defendant is very vague and indefinite, and we believe that the chancellor was warranted in refusing to consider them. It also appears that, subsequent to the filing of the bill of complaint for divorce, the parties entered into an agreement with respect to the alimony, which was later incorporated into the divorce decree.

The divorce decree with respect to alimony makes no provision for any deductions. The absence of such a provision, coupled with lack of proof showing any change in the defendant’s circumstances justifying a modification, amply supports the chancellor’s holding.

In view of what we have said, that portion of the order entered November 23,1943, denying defendant’s prayer to modify the divorce decree, is affirmed, and that part denying plaintiff’s petition for alimony which accrued under the terms of the divorce decree is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part and remanded with directions.

Burke, P. J., and Kiley, J., concur.


source: Caselaw Access Project

author: Justice Huffman.

license: Public Domain

text:
    Ethel G. Fidler, Appellee, v. John Kennedy et al., Appellants.
    Gen. No. 10,004.
    Heard in this court at the February term, 1945;
    opinion filed May 28, 1945;
    rehearing denied July 19, 1945; released for publication July 19, 1945.
    Murphy & Pearson and Perry & Elliott, for appellants;
    Robert P. McArdle, of counsel;
    James W. Milne and George E. Fidler, for appellee.
   Opinion by

Justice Huffman.

Not to be published in full.


author: Justice Wolfe.

text:
    C. H. Ramsey, Appellant, v. Stanley A. Bowlby, Appellee.
    Gen. No. 10,005.
    Heard in this court at the February term, 1945;
    opinion filed May 28, 1945;
    rehearing denied July 19, 1945;
    released for publication July 19, 1945.
    John H. Beckers and Amos H. Robillard, for appellant;
    Gower, Gray & Gower, for appellee.
   Opinion by

Justice Wolfe.

Not to be published in full.


author: Presiding Justice Sullivan.

text:
    Edward J. Dregoi, Appellant, v. John Hancock Mutual Life Insurance Company, Appellee.
    Gen. No. 42,934.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Eckert & Peterson, for appellee;
    Walter H. Eckert, Tom Deeming and Owen Rall, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Morris Singer, Appellant, v. Mutual Life Insurance Company of New York, Appellee.
    Gen. No. 42,935.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Wm. Marshall Bullitt, special counsel for appellee;
    Hoyne, O ’Connor & Rubinkam, Scott, MacLeish & Falk and Winston, Strawn & Shaw, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    John Caminker, Appellant, v. New York Life Insurance Company, Appellee.
    Gen. No. 42,936.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Wm. Marshall Bullitt, special counsel for appellee;
    Hoyne, O’Connor & Rubinkam, Scott, MacLeish & Falk and Winston, Strawn & Shaw, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Louis A. Fosse, Appellant, v. National Life Insurance Company, Appellee.
    Gen. No. 42,937.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Eckert & Peterson, for appellee;
    Walter H. Eckert, Tom Leeming and Owen Rall, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Simon L. Bernstein, Appellant, v. Security Mutual Life Insurance Company, Appellee.
    Gen. No. 42,938.
    Heard in, the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Hoyne, O’Connor & Rubinkam, for appellee;
    Nathaniel Rubinkam, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    David H. Caplow, Appellant, v. Prudential Insurance Company of America, Appellee.
    Gen. No. 42,939.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Wm. Marshall Bullitt, special counsel for appellee;
    Hoyne, O’Connor & Rubinkam, Scott, Macleish & Falk and Winston, Strawn & Shaw, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Irwin Jack Holden, Appellant, v. Home Life Insurance Company, Appellee.
    Gen. No. 42,940.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Winston, Strawn & Shaw, for appellee;
    George B. Christensen and Gerard Grashorn, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Edward K. Stackler, Appellant, v. New England Mutual Life Insurance Company, Appellee.
    Gen. No. 42,941.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945;
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Pam, Hurd & Reichmann, for appellee;
    Arthur M. Cox and Lester G. Britton, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published, in full.


text:
    William H. Kruspe, Appellant, v. Bankers Life Company, Appellee.
    Gen. No. 42,942.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Winston, Strawn & Shaw, for appellee;
    George B. Christensen and Gerard Grashorn, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    John H. Erby, Appellant, v. Penn Mutual Life Insurance Company, Appellee.
    Gen. No. 42,943.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Poppenhusen, Johnston, Thompson & Raymond, for appellee;
    Edward R. Johnston and Albert E. Jenner, Jr., of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Watson A. Simmonds, Appellant, v. State Mutual Life Insurance Company, Appellee.
    Gen. No. 42,944.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Eckert & Peterson, for appellee;
    Walter H. Eckert, Tom Leeming and Owen Rall, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Walter F. Jones, Appellant, v. Acacia Mutual Life Insurance Company, Appellee.
    Gen. No. 42,945.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Eckert & Peterson, for appellee;
    Walter H. Eckert, Tom Leeming and Owen Rall, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Arthur J. Schnase, Appellant, v. Phoenix Mutual Life insurance Company, Appellee.
    Gen. No. 42,946.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Eckert & Peterson, for appellee;
    Walter H. Eckert, Tom Leeming and Owen Rall, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Edward Altman, Appellant, v. Metropolitan Life Insurance Company, Appellee.
    Gen. No. 42,947.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Wm. Marshall Bullitt, special counsel for appellee;
    Hoyne, O’Connor & Rubinkam, Scott, MacLeish & Palk and Winston, Strawn & Shaw, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Clarence D. Shockley, Appellant, v. Mutual Benefit Life Insurance Company, Appellee.
    Gen. No. 42,948.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Poppenhusen, Johnston, Thompson & Raymond, for appellee;
    Edward R. Johnston and Albert E. Jenner, Jr., of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Jules E. Jenkins, Appellant, v. Northwestern Mutual Life Insurance Company, Appellee.
    Gen. No. 42,949.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Wm. Marshall Bullitt, special counsel for appellee;
    Hoyne, O’Connor & Rubinkam, Scott, MacLeish & Falk and Winston, Strawn & Shaw, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Max A. Goldsmith, Appellant, v. Massachusetts Mutual Life Insurance Company, Appellee.
    Gen. No. 42,950.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Eckert & Peterson, for appellee;
    Walter H. Eckert, Tom Leeming and Owen Rall, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Samuel J. Bennett, Appellant, v. Minnesota Mutual Life Insurance Company, Appellee.
    Gen. No. 42,951.
    Heard in the second division, first district, this court at the December term, 1943;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    David H. Caplow, Sol Andrews and Maurice L. Davis, for appellant;
    Scott, MacLeish & Falk, for appellee;
    Wendell J. Brown, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


author: Presiding Justice Friend.

text:
    Anna Pietrolonardo, Appellant, v. Jay R. Houghteling et al., Appellees.
    Gen. No. 42,973.

      Heard in the second division, first district, this court at the April term, 1944;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    Ryan, Sinnott & Miller, Louis G. Davidson and Sam Fink, for appellant;
    Samuel Levin, for appellees.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


author: Justice Friend.

text:
    T. L. Miller, Appellee, v. Union State Investment Company, et al., Defendants. In re Appeal of Union State Investment Company, Appellant.
    Gen. No. 43,393.
    Heard in the second division, first district, this court;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    Charles D. Snewind, for appellant; William Vihon, for appellee.
   Opinion by

Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    Paul Lenchard, Appellee, v. Thomas J. Friel et al., Appellants.
    Gen. No. 43,297.
    Heard in the second division, first district, this court at the December term, 1944;
    opinion filed June 15, 1945;
    additional opinion filed and rehearing denied June 26, 1945;
    released for publication June 27, 1945.
    Frank L. Kriete, Erwin H. Wright, and Arthur J. Donovan, for appellants;
    Wm. J. Flaherty, of counsel;
    James A. Dooley, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Thomas J. Scanlan and Ruby Scanlan, Appellants, v. Rubin Garrick and David Garrick, Appellees.
    Gen. No. 43,365.

      Heard in the second division, first district, this court at the April term, 1945;
    opinion filed June 15, 1945;
    released for publication June 27, 1945.
    Ellis D. Whipp, for appellants;
    no appearance for appellees.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Presiding Justice Matchett.

text:
    Sol Ganellin, Appellee, v. Harry Ginsberg and Anna Ginsberg, Wife, Co-partners, Trading as Fidelity Laundry Service, Appellants.
    Gen. No. 43,290.

      Heard in the first division, first district, this court at the December term, 1944;
    opinion filed June 25, 1945;
    rehearing denied July 16, 1945; released for publication July 19, 1945.
    Sears, O’Brien & Streit, Lester B. Masor and Ignatz Spitz, for appellants;
    Barnabas F. Sears and Ralph C. Putnam, Jr., of counsel;
    Morris K. Levinson, for appellee.
   Opinion by

Presiding Justice Matchett.

Not to be published in. full.


text:
    John A. Schillo, Administrator of Estate of John A. Schillo, Deceased, Appellant, v. City of Chicago, Appellee.
    Gen. No. 43,313.
    Heard in the first division, first district, this court at the February term, 1945;
    opinion filed June 25, 1945;
    released for publication July 19, 1945.
    Gardner, Morrow, Fowler & Merrick, for appellant;
    Walter M. Fowler, of counsel; Barnet Hodes, Corporation Counsel, for appellee;
    J. Herzl Segal and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
   Opinion by

Presiding Justice Matchett.

Not to be published in full.


author: Justice O’Connor.

text:
    People of State of Illinois, Defendant in Error, v. Ernest Johnson, Plaintiff in Error.
    Gen. Nos. 43,341, 43,346.
    Heard in the first division, first district, this court at the February term, 1945;
    opinion filed June 25, 1945;
    rehearing denied July 16, 1945;
    released for publication July 19, 1945.
    Everett Simpson, for plaintiff in error;
    William J. Tuohy, State’s Attorney, for defendant in error;
    Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice O’Connor.

Not to be published in full.


text:
    Jane Hirsch, v. Leo Paul Hirsch. Leo Paul Hirsch, Appellant, v. Philippa Weinstein, Appellee.
    Gen. No. 43,356.
    Heard in the first division, first district, this court at the April term, 1945;
    opinion filed June 25, 1945;
    rehearing denied July 19, 1945; released for publication July 19, 1945.
    Earl E. Friedlander, for appellant;
    Irving Eisenman and Hugh E. Johnson, for appellee.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Justice Kiley.

text:
    Federal Life Insurance Company, Appellant, v. Frederick L. Hunter, Jr., Appellee.
    Gen. No. 42,737.

      Heard in the third division, first district, this court at the October term, 1943;
    opinion filed June 29, 1945;
    released for publication July 24, 1945.
    Eckert & Peterson, for appellant;
    Walter H. Eckert, Owen Rall, Walter W. Ross, Jr. and Harold W. Huff, of counsel;
    Hubbard, Baker & Rice, for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Justice Lewe.

text:
    Leon Brownstein, Minor, by Anna Brownstein, His Mother and Next Friend, Appellant, v. Electric Household Utilities Corporation et al., Appellees.
    Gen. No. 42,995.
    Heard in the third division, first district, this court at the February term, 1944;
    opinion filed December 20, 1945;
    released for publication January 8, 1946.
    Krohn & MacDonald and Harry H. Kleper, for appellant;
    Stuart B. Krohn and Ian P. MacDonald, of counsel;
    Richard E. Keogh, for certain appellees;
    Andrew J. Farrell, for certain other appellee.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    Charles B. Rowe, Appellant, v. Vrooman Carpet Company, Inc., et al., Appellees. Vrooman Carpet Company, Inc., Appellee, v. Charles B. Rowe and Theodore A. Kolb, Defendants. Appeal of Theodore A. Kolb, Appellant.
    Gen. Nos. 43,208, 43,251.
    Heard in the third division, first district, this court at the October term, 1944;
    opinion filed June 29, 1945;
    released for publication July 24, 1945.
    Theodore A. Kolb, for appellant;
    no appearance for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    Edith A. Brown, Appellant, v. William A. Brown, Appellee.
    Gen. No. 43,221.

      Heard in the third division, first district, this court at the October term, 1944;
    opinion filed June 29, 1945;
    released for publication July 24, 1945.
    George Yellen and Louis Z. Grant, for appellant;
    Beckman, Healy, Reid & Hough, for appellee;
    Leonard C. Reid and Ira W. Hurley, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Mr. Justice Culbertson

text:
    People of State of Illinois, Defendant in Error, v. Willie Clymer, alias William Clymer, Plaintiff in Error.
    Term No. 45F3.

      Heard in this court at the May term, 1945.
    Opinion filed July 7, 1945.
    Released for publication August 7, 1945.
    Harry Faulkner, of Granite City, and Henry B. Eaton, of Edwardsville, for plaintiff in error.
    George F. Barrett, Attorney General, for defendant in error; C. W. Burton, State’s Attorney, and Fred P. Schuman, Assistant State’s Attorney, of counsel.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order of the circuit court, committing the plaintiff in error, Willie Clymer (hereinafter called defendant), to the Department of Public Safety of the State of Illinois as the result of the verdict of a jury finding the defendant “a criminal, sexual psychopathic person of the age of 41 years.”

The defendant had been indicted in May of 1943 on a charge of attempted rape. In the trial of that case there was a hung jury. Thereafter, an indictment was returned charging defendant with the crime of taking indecent liberties on the person of a female child of the age of 8 years, as a result of which defendant was held in the county jail through inability to give bail. After the second indictment had been returned, a petition was filed in the county court alleging that the defendant was suffering from a mental disorder, not insane or feeble-minded, which mental disorder has existed for a period of not less than one year prior to the filing of the petition, and that the mental disorder was coupled with criminal propensities to the commission of sex offenses. The petition prayed that two qualified psychiatrists he appointed' to examine the defendant, file their report, together with their conclusions and recommendations, and that a hearing be had upon the petition before a jury. Two psychiatrists were appointed and filed their report, and the defendant was held for trial on the petition. The proceedings were had pursuant to par. 824, ch. 38,1943 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 37.665(5)]. At the trial the two psychiatrists who had examined the defendant were the only witnesses for the State. Defendant testified in his own behalf. Defendant contends that the verdict of the jury is not supported by a preponderance of the evidence as required in cases of this kind.

It is not necessary to review the evidence in detail for the purposes of this opinion, and it will suffice for such purposes to observe that the- evidence produced by the State was sufficient to justify the verdict of the jury. The two psychiatrists who testified referred to specific indications which resulted from their examination of the defendant, which supported the conclusion that the requirements of the statute were complied with.

There was no objection to any of the medical testimony on behalf of the defendant at the time of its introduction in evidence. Defendant, however, raises a specific objection (also maintained by the court below) that the recorded and signed report of the doctors who testified was permitted by the court to be taken by the jury when it retired for its deliberations. While it was not proper procedure to send such report with the jury, it appears that substantial justice has been done in the case and that a reversal for the purposes of a trial with such report not being taken by the jury would not have resulted in a different verdict (Berry v. Breed, 311 Ill. App. 469). It is not necessary that the record be wholly free from error if substantial justice appears to have been done.

The verdict of the jury appears to have been supported by the preponderance of the evidence, and the order of the circuit court of Madison county, Illinois, will, therefore, be affirmed.

Affirmed.


text:
    J. L. Harris, Appellant, v. Ella T. Buder, Executrix of Estate of E. A. Buder, Deceased, Appellee.
    Term No. 45F8.

      Heard in this court at the May term, 1945.
    Opinion filed July 7, 1945.
    Released for publication August 7, 1945.
    Dorothy Wilbourn, of Cairo, for appellant.
    D. B. Reid and Charles L. Rice, both of Cairo, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Alexander county, in favor of appellee, Ella T. Buder, executrix of the estate of E. A. Buder, deceased (hereinafter called defendant), in an action for contribution which was originally brought by the appellant, J. L. Harris (hereinafter called plaintiff) as against E. A. Buder, as defendant. After the action was instituted E. A. Buder died and his executrix, Ella T. Buder, was substituted as defendant. The complaint upon which the proceedings were had alleged the execution and delivery of eight promissory notes upon which the defendant, E. A. Buder, and the plaintiff, J. L. Harris, were either makers or indorsers, and the Cairo-Alexander County Bank was the payee. In the complaint it is alleged that the bank referred to was insolvent and a receiver had been appointed therefor, and that a demand was made by the receiver of the bank and litigation threatened to enforce payment of the notes, and the plaintiff, J. L. Harris, paid the sum of $31,756.11 to the receiver upon the notes referred to. It was then alleged in the complaint that defendant, E. A. Buder, became indóbted to the plaintiff in the sum of $6,481.02 for his proportionate share of the money so paid on the notes. As a result of amended pleadings interest was claimed on such amount, and a number of affirmative defenses were set up by defendant in her answer and amendments thereto.

It was disclosed on the trial of the matter in the court below that the plaintiff, on January 21, 1937, paid the $31,756.11 on the notes as a result of proceedings by which the plaintiff Harris petitioned the circuit court (in a separate proceeding) asking that a set-off of the notes against his moneys in the bank be approved by the court. An order was entered to that effect on January 21, 1937.

The notes involved in this proceeding were executed at various dates, beginning March 16,1928, and ending February 9, 1930. Each note expressly stated that there was to be no priority as between indorsers and there was a waiver of demand, presentment, etc. All of the notes were signed by E. A. Buder, the original defendant, J. L. Harris, C. V. Neff, and David S. Lansden, either as makers or indorsers, and a W. B. Thistlewood signed as a maker or indorser on all but one of the notes. All of the persons named were at the time of the execution of the notes,' stockholders and directors of the Cairo-Alexander County Bank. At the time of the execution of the notes in 1930 the bank had, among its assets, certain paper which the State bank examiner found objectionable and classified as “slow and doubtful.” As a means of removing the objectionable assets which the bank examiner would not approve, the individual directors referred to, executed the eight notes involved in this proceeding and left such notes to replace the objectionable paper, which was then removed. Interest payments were made on the notes at various times from the date, of their execution, until 1931 and 1932, although there was some question as to whether any particular defendant made such payments, or whether the original defendants, E. A. Buder, made any such payments.

C. V. Neff, one of the signers of the notes, died on August 14, 1931. A claim was filed in the 0. V. Neff estate within the statutory period by the Cairo-Alexander County Bank, in the amount of $70,388.55, and the notes involved in this proceeding were a part of that claim. After the claim had been filed the bank was declared insolvent and a receiver was appointed on November 7,1933. No action had been taken in the matter of the claim against the Neff estate until June of 1942, five years after the plaintiff had made the payment through the set-off as against his accounts in the bank, as herein stated. On June 24 of 1942, a claim was allowed as against the Neff estate for an amount ($56,572.96), which was considerably less than the amount of the claim as filed. That claim against the Neff estate so allowed, has not been paid.

In January of 1937, as has been previously indicated, the plaintiff paid $31,756.11 in discharge of the eight notes involved in this proceeding, through the set-off of money which plaintiff had on deposit with the bank at the time it went into receivership, and pursuant to an order of the circuit court. The pro rata share of the original defendant, Buder, of the debt so paid, for which the plaintiff is seeking eontribution on the basis of the evidence produced in the court below, is the sum of $6,481.02, plus legal interest from the date of payment by the plaintiff. Upon trial of this cause by the court, without intervention of a jury, judgment was entered for the defendant. To sustain the judgment in her favor defendant has set up and argued, and presented on appeal, a number of defenses to which we shall give consideration in the course of this opinion.

The right to contribution arises by reason of a compulsory payment by a joint obligor of more than Ms share of a common- obligation (Harvey v. Drew, 82 Ill. 606; Schaefer v. Dippel, 250 Ill. App. 184), and the measure of contribution is the excess which the plaintiff paid over Ms own share of the obligation, plus interest from the date of payment (McCormick v. Unity Co., 239 Ill. 306; McMillan v. James, 105 Ill. 194).

There is sufficient evidence to establish the pro rata amount of contribution for which the defendant in the instant case is obliged to pay to the plaintiff. The serious questions arising on this appeal, result from the issues raised by defendant, as a basis for the denial of the right to contribution. We shall consider such issues separately in the interest of clarity.

It is, apparently, primarily contended by plaintiff that there was want of consideration for the notes which were given, and that the plaintiff was under no legal obligation to pay the notes because the bank, as payee, could not have sued plaintiff on the notes and recovered. A number of cases were cited by the defendant for the purposes of establishing lack of consideration, but such cases do not deal with factual situations such as were present in the instant case. In this case the makers of the notes were directors and stockholders of the bank. They were financially, interested in the bank and the notes which were given to replace objectionable assets were, therefore, supi ported by valid consideration (Central Republic Trust Co. v. Evans, 378 Ill. 58; Tegtmeyer v. Nordlund, 259 Ill. App. 247; Hinsdale State Bank v. Lytle, 262 Ill. App. 151). The cases emphasize that anything which tends to make the bank stronger or keep it going, or preserve its solvency, was a benefit to the stockholders and rests on good consideration. If, in the instant case, the signatory parties to the notes had not been directors and stockholders, the notes might have lacked consideration. The fact that they were given by stockholders and directors was sufficient consideration for the notes and they were legal obligations upon which the bank could have sued and recovered from the defendant.

It is similarly contended that the notes were never intended to be obligations on the part of the original defendant, Buder. In support of this contention the defendant contends that there had been a conditional delivery of the notes, and that the understanding was that they were not to be collected. We do not find that contention supported by the record. No evidence was produced to show a conditional delivery, nor was any evidence referred to in argument in this court, which would be competent to make a showing of such conditional delivery.

Defendant seriously pleads and contends that the obligation of defendant is tolled by the Statute of Limitations. There is some apparent confusion in such defense for the reason that the ten-year Statute of Limitations is not applicable in this action, which was a suit for contribution. An action for contribution is an action on an implied contract and the period of limitation involved is the five-year period. The surety’s right to contribution arises when the surety has paid more than his proportionate share of the total liability. The action for contribution must thereafter be filed within the five-year period, under the Illinois law (Schroeder v. Bozarth, 224 Ill. 310; Whittemore v. Weber, 217 Ill. App. 628). The suit for contribution in the instant case was filed within the five-year period of limitation, and the contention of the defendant that the ten-year Statute of Limitations from the time that the bank had a right to take action on the notes, applies in the instant case, cannot be sustained.

Further confusion is noted in the contention of defendant that the period of limitation specified in sec. 3, ch. 132, 1943 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 128.03] applies. In that section it is simply provided that a claim must be filed against an estate within one year from the issuance of letters or sureties would be released from payment to the extent that the claim might have been collected if presented within the proper time. The bank did file its claim against the Neff estate within the one-year period, and the surety consequently would not be released from his obligation .on the notes. The section does not contemplate that action must be taken as against the sureties within the one-year period fixed for filing of a claim as against an estate.

It is contended also that the allowance of the claim as against the Neff estate would be a discharge of the original debt and bars the instant action for contribution. The claim of the bank and the bank’s receiver, which was filed against the Neff estate, was not allowed until after the plaintiff had paid the notes pursuant to a court order. The notes had, therefore, been paid prior to the time the claim was allowed. The fact that there had been a reduction in the amount allowed on the claim tends to support the conclusion that this faict was probably considered in connection with the allowance of that claim. The plaintiff had paid the notes and had them in his possession for five years before the bank recovered its judgment. Even if the hank or the receiver had recovered an unsatisfied judgment as against a principal, it would not have discharged the surety, but if the judgment had been paid the surety would have been discharged. The evidence shows that the judgment against the Neff estate has never been paid, and that the estate is insolvent. It is, therefore, apparent that the contention that the allowance of the claim as against the Neff estate constituted a discharge of the original debt and a bar to the suit for contribution, likewise cannot be sustained.

A similar defense is raised by reason of the fact that the receiver of the payee bank released one of the makers of two of the notes at the same time that plaintiff paid the notes, and that that action constitutes a release of all indorsers thereon. The evidence shows that plaintiff had filed a petition to set-off the notes as against his moneys in the bank, in September of 1936. On January 21, 1937, the court ordered the set-off to be made, and on that same date Lansden filed his petition for settlement of his liabilities with the bank, and that petition was also granted on the same date by order of court. The petition of the receiver in connection with Lansden’s liabilities indicates that the approval of the payment of the notes by plaintiff preceded the discharge of Lansden, and was expressly conditioned on settlement with the plaintiff, which (the petition recites), had been approved by the court. It is reasonable to conclude from the record, therefore, that the court first approved the set-off and payment by Harris, and then entered an order on Lansden’s petition for compromise, releasing Lansden from the remaining claims of the receiver as against him.

It is also contended by the. defendant that the notes were negotiated an unreasonable length of time after the date of issuance and that plaintiff was, therefore, not a holder in due course, under ch. 98, par. 73, 1943 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 89.073]. How that statute can be of any aid to defendant escapes us. The present action is a suit for contribution arising out of an implied contract by the co-makers and co-indorsers, and is hot a suit on the notes, and in any event the most favorable conclusion as to defendant from an application of that section would be to permit defendant to set up the same defenses as if the notes were non-negotiable. That would be of no aid to defendant in the action for contribution.

Defendant also raises in her brief the contention that the giving of the notes involved an illegal transaction, which is contrary to public policy, and that, therefore, contribution should be denied. The transaction disclosed by the facts was neither illegal nor immoral. The action of directors and stockholders of a bank to do what they can to protect the solvency of the bank and to safeguard the depositors, through the removal of bad or objectionable paper at the request of the State bank examiner could not be a violation of the banking laws or the basis of a finding of illegality. The action was taken to protect the bank and its assets, and apparently, for no other purpose. Nor does the evidence show that the notes were made and delivered for the purpose of deceiving the bank examiner since the paper was removed by the directors at the request of the bank examiner.

A review of the entire record in this cause, and the law applicable to the facts, establishes that the plaintiff was entitled to contribution as against defendant, and that the judgment of the circuit court for the defendant was erroneous. This cause will, therer fore, be reversed and remanded to the circuit court of Alexander county, with directions to enter judgment in this proceeding in the sum of $6,481.02, together with legal interest thereon from January 21, 1937, in favor of plaintiff, J. L. Harris, and as against defendant, Ella T. Buder, executrix of the estate of E. A. Buder, deceased.

Reversed and remanded, with directions.


author: Mr. Presiding Justice Dove

text:
    Wallace S. Mason, Administrator d. b. n. with Will Annexed of Estate of Lillie Isabella Willis, Deceased, Appellee, v. Albert Willis, Executor of Will of Henry William Willis, Deceased et al., Appellants. The Salvation Army, Appellees.
    Gen. No. 10,013.

      Heard in this court at the February term, 1945.
    Opinion filed July 11, 1945.
    Released for publication July 27, 1945.

      Sturtz & Ewan, of Kewanee, for appellants; James N. Cummings, of Kewanee, of counsel.
    Reynolds M. Everett, of Galva, for appellee.
    Thomas J. Welch, of Kewanee, and Moses, Kennedy, Stein & Bachrach, of Chicago, for certain appellee ; Thomas J. Welch, of Kewanee, and Herbert H. Kennedy, of Chicago, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

This cause is here by an appeal from a decree of the circuit court of Henry county, construing the fifth paragraph of the last will of Lillie Isabella Willis deceased, and ordering the subject matter thereof to be paid and distributed to the Salvation Army, an Illinois corporation.

The testatrix died at the City of Calva in Henry county, on February 11, 1941, and her will, dated May 28, 1921, was admitted to probate by the county court of that county. The second paragraph of the will devised and bequeathed the use and income of all of her estate to her only brother, Henry William Willis, for and during his natural life, and at his death, the principal to be distributed “as hereinafter provided. ’ ’

Two small legacies, one of them to a cemetery, and the other to a Sunday school, are provided by the third and fourth paragraphs of the will. The fifth paragraph, here in controversy, provides:

“Fifth: All the rest, residue and remainder of my property, I give, devise and bequeath (after the death of my brother, and the payments of debts and bequests herein made) unto the Salvation Army of America, and I desire this bequest to be paid in money, the same to be used for such purposes as the Salvation Army may desire. I am prompted to make this disposition of the residue of my estate because of the efficient and substantial help and assistance the Salvation Army gave to the American soldiers during the recent World War.”

The sixth paragraph authorizes and requests the executor to s.ell and convey all of the testatrix’s real estate for the purpose of paying the bequests made in the will, and the eighth paragraph provides:

“Eighth: I make the above disposition of my property for the reason that I am a Spinster, my father and mother are both dead, my nearest and dearest relative is my only brother, Henry William Willis, and after providing for his welfare, I feel that what little estate I have will do the most good by being given to Charity.”

Shortly after the death of the testatrix’s brother in 1943, the complaint in this cause was filed by the executor of her will, alleging an ambiguity and uncertainty in the meaning and intention of the fifth paragraph thereof, and asking for a decree construing the fifth paragraph, and fixing the rights of the defendants to the residue and remainder of the estate. The complaint alleges that at the time of the execution of the will and at the date of the testatrix’s death there was no such corporation in existence as “The Salvation Army of America,” but there were five separate and distinct corporations, each named “The Salvation Army,” organized and existing under the laws of the States of New York, New Jersey, Michigan, California and Illinois, respectively; that each of them claims the residue and remainder of the estate, and that nothing in the will aids in identifying either of such corporations as the object of the testatrix’s bounty; that the ambiguity may have created a condition whereby the deceased died intestate as to the residue and remainder of the estate; and that the executor and the beneficiaries of the will of the deceased brother of the testatrix also claim the same.

The answer of the executor of the deceased brother’s estate and the beneficiaries thereof admits the allegations of ambiguity, and as an affirmative defense alleges that by reason thereof the fifth paragraph has no legal effect, and that the deceased died intestate as to the residue and remainder of her estate.

The answers of the defendant corporations allege their separate corporate existence, and the charitable character of the work performed by each -of them, and that each of them carries on the work in the State in which it is organized; that the national commander of the Salvation Army is the president of each of the corporations, and all work is performed under his supervision; that the Illinois corporation was the only corporation or organization which carried on the work of the Salvation Army in Illinois at the times mentioned; that the testatrix in her life time was acquainted with the work of the Illinois corporation in and about G-alva, and on different occasions donated her time, services and money to its work. The answers deny that there is any ambiguity in the language of the fifth paragraph, or any intestacy; and allege that the decedent intended that the residue and remainder of her estate shall be paid and delivered to the Illinois corporation; and, in the alternative, that if the court should find that she intended that any of the other corporations should receive any part thereof, that each of them has, for a valuable consideration, assigned and transferred its rights to the Illinois corporation.

The executor died during the pendency of the suit, and the administrator d. b. n. with the will annexed was substituted as plaintiff. On the hearing, the separate corporate entities of the defendants, the charitable nature of their work, their exclusive activities in their respective territories, and that the work in Illinois was performed exclusively by the Illinois corporation, including the work at Galva and Kewanee, was proven; and written assignments of the interests, if any, in the residue of the estate, of all the other corporations to the Illinois corporation, were produced in evidence.

The deposition of Lawrence C. Johnson (since deceased) who was the lawyer who drew the will and the executor thereof, shows that the testatrix said to him, at the time he prepared the will, that she desired her brother to have the use of all her property during his lifetime; and that after his death, and the payment of the two small legacies, the Salvation Army was to receive the entire residuary estate, because she was familiar with its work around G-alva, and also because of the help and assistance the Salvation Army had given the American soldiers during the World War. A written memorandum prepared by him at that time corroborates his testimony.

A retired officer of the Salvation Army, who had been connected with it for 45 years, and who was the adjutant in charge of the corps office at Kewanee in 1917 and 1918, testified that he and his wife visited at G-alva almost weekly for meetings and Salvation Army work; that he met the decedent within two or three weeks after coming to Kewanee; that she and his wife became great friends and visited each other in their homes; that the decedent often attended the Sunday meetings, and made a number of cash contributions to the work, sometimes $5, sometimes $10, and at Christmas time, $50; that she was also interested in the distribution of Christmas baskets by the Salvation Army among the poor, and that in the early part of the year 1918, she told him in substance: “Well, now I am giving you this, but when I pass out of the state of action, or pass out, I am going to give the Salvation Army a good donation in my will”; that in speaking of the war, she said: “If you want money at any time, I will gladly give it to help the boys”; that she was interested in the hospital work of the Salvation Army, and its work among fallen girls; and that she sometimes came to Kewanee by interurban and sometimes friends brought her in a buggy. His testimony is not contradicted, and it is not discredited by the rigid and lengthy cross-examination to which he was subjected, nor by the testimony of witnesses produced by appellants, who testified in substance that the decedent was exceedingly economical in her contributions to charity; that they never saw her at any Salvation Army meeting, or heard her speak of any contributions to it; and that she seldom left home.

The claim that the testimony of the Salvation Army officer wás incompetent because it was evidence of events and statements too long before the execution of the will, is untenable. The abstract does not disclose that any such objection was interposed in the trial court, and it cannot be raised here for the first time; and at any rate, the testimony was not incompetent, but its probative force was a question for the determination of the court. So, too, the claim that the testimony of Lawrence C. Johnson was incompetent because the subject matter was privileged, was not raised in the trial court, and cannot now be urged. Furthermore, although statements made by a testatrix to her attorney would be privileged if offered in evidence in a suit against her, they are not privileged after her death. (Scott v. Harris, 113 Ill. 447, 455; Norton v. Clark, 253 Ill. 557, 565.)

Courts of equity are jealous in their protection of gifts to charities and will not allow them to fail if a reasonable construction of the will permits. (Smith v. Renne, 382 Ill. 26, 29.) Gifts to charities are viewed with peculiar favor by the courts and every presumption consistent with the language used will be employed to sustain them (Village of Hinsdale v. Chicago City Missionary Society, 375 Ill. 220, 231; Peek v. Woman’s Home Missionary Society, 304 Ill. 427, 436), and they will receive more liberal construction than a bequest to an individual. (Mills v. Newberry, 112 Ill. 123, 133; Hitchcock v. Board of Home Missions of Presbyterian Church, 259 Ill. 288, 293.)

Under the presumption that a testator intended to dispose of his entire estate, where a provision in a will is open to more than one construction, a construction resulting in intestacy as to any part of the estate will not he adopted, if by a reasonable construction, it can be avoided. (Woman’s Union Missionary Society of America v. Mead, 131 Ill. 338, 358; 69 C. J. 91.)

It is also well settled that a misnomer in a will in designating the charitable organization to be benefited will not defeat the bequest if it can be reasonably shown that charitable organization was in fact intended by the testator, and when a charitable organization is designated in a will by an erroneous name, extrinsic evidence is always admissible to identify the charitable organization intended. (Woman’s Union Missionary Society of America v. Mead, supra; Norton v. Jordan, 360 Ill. 419, 427-429; Hitchcock v. Board of Home Missions of Presbyterian Church, supra, page 294.) The same principle is laid down by the courts in numerous other jurisdictions, and in various textbooks.

Appellants’ argument in this court that there is no ambiguity in the fifth paragraph of the will is inconsistent with and directly opposed to their answer to the complaint in the trial court where the ambiguity is expressly admitted. Cases cited by them that extrinsic evidence is never admissible to vary the intent clearly expressed in a will, and cases where the intention of the testator was clear and no ambiguity existed, or where the extrinsic evidence did not show that the testator had any interest in the claimants involved, or where the testator failed to designate any beneficiary, have no application here. The argument that because there was no such corporation as “The Salvation Army of America,” the bequest fails for uncertainty and the property became intestate, is conclusively answered contrary to their contention in Norton v. Jordan, supra, at page 429, where, citing numerous authorities, the court held: “Where the ambiguity consists of a misnomer or misdescription, as in the present case, the false words may be stricken, and if after these words are discarded oa sufficient description remains, when interpreted in the light of surrounding circumstances, to identify the object or subject of the testator’s gift with certainty, the will may be read and construed with the false words eliminated.” Discarding the words “of America,” clearly leaves a gift to the Salvation Army; and there can be no doubt that the testatrix intended the Salvation Army should receive the residue of her estate. Although there were five existing corporations of that name, we think the evidence clearly shows that the testatrix intended the Illinois corporation as the object of her bounty, and in any event, the other corporations of the same name assigned their rights, if any, to it. The decree of the trial court was correct, and is affirmed.

Decree affirmed.


author: Mr. Justice Wolfe

text:
    Marian Secrist, Appellee, v. Anna Raffleson, Administratrix of Estate of Sidney J. Raffleson, Deceased, Appellant.
    Gen. No. 10,022.

      Heard in this court at the February term, 1945.
    Opinion filed July 11, 1945.
    Released for publication July 27, 1945.
    Arthur L. Puklin and Edward Puklin, both of Elgin, for appellant.
    Ellis, Hamilton & Geister, of Elgin, for appellee; DeGoy B. Ellis and Paul M. Hamilton, both of Elgin, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

Marian Secrist brought suit in the circuit court of Kane county against Anna Raffleson, administratrix of the estate of Sidney J. Raffleson, deceased, claiming damages for personal injuries sustained by her in an automobile accident while she was riding as a guest passenger in a motor vehicle of Sidney J. Raffleson. Sidney J. Raffleson died as a result of injuries he sustained in the same accident.

The complaint consists of four counts, all of which charge the defendant with wilful and wanton misconduct in the operation of his automobile. The first counts allege the ownership of the automobile, the plaintiff’s status in the automobile at the time of the accident, the damages and injuries sustained by the plaintiff, and the appointment of the defendant as administratrix of the estate of Sidney J. Raffleson, deceased, and that the plaintiff was in the exercise of due care and caution for her own safety.

The defendant filed her answer and admitted the facts as stated in the first paragraphs of the complaint excepting as to damáges sustained by the plaintiff, and denied the due care on the part of the plaintiff and denied that the driver was guilty of wanton and wilful misconduct that caused the plaintiff’s injuries.

The case was tried before a jury which found the issues in favor of the plaintiff and assessed her damages at $3,000.- At the request of the defendant, a special interrogatory was submitted to the jury, which was answered in the affirmative, that Sidney J. Raffle-son was guilty of wilful and wanton misconduct, which was the proximate cause of the plaintiff’s injuries.

The evidence discloses that the plaintiff and Sidney J. Raffleson had been friends for a number of years and that they were riding together in an automobile, at the time of the accident; that they had been in Aurora, Illinois, and about two o’clock a. m. they started for the home of the plaintiff, and on the way, the defendant intestate’s car ran into the abutment of a bridge at the edge of the paved highway and the plaintiff was injured and the driver received injuries, from which he died.

At the close of the plaintiff’s case and at the close of all the evidence, the defendant entered a motion for a directed verdict. These motions were denied. After the verdict of the jury, the defendant entered a motion for judgment notwithstanding the verdict, and also a motion for a new trial. Both of these motions were overruled, and judgment rendered on the verdict. It is from this judgment, an appeal has been perfected.

The errors assigned are that the verdict of the jury is contrary to the weight of the evidence, and that there is not sufficient evidence to sustain the findings of the jury that the deceased, Sidney J. Raffleson, was guilty of wilful and wanton misconduct that was the proximate cause of the plaintiff’s injury.

The appellant argues that because the plaintiff did not offer herself as a witness in her own behalf, or make an offer to take the witness stand, this was obviously an attempt to conceal the true facts concerning the accident. Under the Evidence Act the plaintiff was an incompetent witness. We find no merit in the contention that her failure to offer herself as a witness has any bearing on the merits of the case.

There is very little dispute as to the facts in the case. Charles Anderson, a deputy sheriff, testified that he talked to Sidney J. Raffleson at the hospital after the accident, and asked him how the accident occurred ; and that Raffleson replied that “the accident was caused by his falling asleep.” Cecil Hallmair testified that she visited Sidney Raffleson at the hospital after the accident and she asked Raffleson “how badly he was hurt and how the accident happened.” That, he, Raffleson, said “he went to sleep, and that is how they got hurt. ’ ’ Jessie Irving testified that she is the mother of Marian Seerist; that she visited Sidney J. Raffleson at the hospital, and had a conversation with him; that she asked him how the accident happened and he replied, “I went to sleep,” Dr. Clark Heathering testified that he was the physician that attended Raffleson from the day of the accident until his death; that he had many conversations with him, and that he asked Baffleson how the accident happened, to which Baffleson replied, “he fell asleep while driving the car about three or four o’clock in the morning;” that during the four days he had treated the deceased, he, Baffleson, had told him several times that, “he had fallen asleep while he was driving the car.”

This evidence is uncontradicted. The cases of Tennues v. Tennes, 320 Ill. App. 19; Marks v. Marks, 308 Ill. App. 276, and Barmann v. McConachie, 289 Ill. App. 196, are cases in which plaintiffs recovered damages for personal injury while riding as guest passengers in an automobile and who were injured, because the driver of the automobile had fallen asleep and thus lost control of the automobile he was driving, and injured the plaintiff. The court held that such conduct constituted wilful and wanton misconduct as defined by our Injuries Act statute.

From a review of the evidence in this case, it is our conclusion that the jury properly found that the deceased, Sidney J. Baffleson, was guilty of wilful and wanton misconduct which was the proximate cause of the plaintiff’s injuries.

The court at the plaintiff’s request gave to the jury the following instruction: “The Court instructs the jury that the driver of an automobile is bound to keep a particularly continuous lookout while driving, but no such duty is imposed upon the passenger or guest. In the absence of knowledge of passenger, or facts which would give her such knowledge, a passenger or guest may properly rely , on the driver to attend to the driving of the automobile. The primary duty of care for the safe operation rests upon the driver. However, a guest is not relieved from the exercise of such care for her own safety as is reasonable under all the circumstances.” The Appellate Court of the first district in the case of Tennes v. Tennes, supra, held that it was reversible error for the circuit court to refuse to give a similar instruction to the jury. In the Temes case the instruction was that the driver of the car should keep a practically continuous lookout for danger while driving the car; while the present instruction is that the driver of the car is bound to keep “particularly continuous lookout.” No doubt the present instruction is inartfully drawn, but we believe that it states the law, that the driver of the automobile is bound to keep a continuous lookout while driving his car on a paved highway, especially after dark. The instruction does not direct a verdict, and we think on the whole the jurors were properly instructed and could not have been misled by the questioned instruction. In this case the question as to whether he was to keep a lookout for danger was not involved. The thing for the jury to decide was whether or not the defendant’s intestate fell asleep while driving his car, and if so, was he guilty of wilful and wanton misconduct, which was the proximate cause of the plaintiff’s injury, and they decide he was.

On the whole we think the defendant had a fair trial and the judgment of the trial court should be affirmed.

Affirmed.


text:
    Sylvia Franceschi, Appellee, v. J. B. Franceschi, Mike Gulotta and Lena Gulotta, Appellants.
    Gen. No. 10,017.

      Heard in this court at the December term, 1944.
    Opinion filed July 11, 1945.
    Released for publication July 27, 1945.

      Miller, Thomas & Hickey, of Rockford, for certain appellants; Hall & Hall, of Rockford, for certain other appellant.
    Frank E. Maynard, of Rockford, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The defendants, J. B. Franeesehi, Mike Gulotta and Lena Gulotta, have appealed from a decree of the circuit court of Winnebago county directing the sale of real estate to satisfy instalments of alimony and support money allowed the plaintiff, Sylvia Franeesehi, by a divorce decree of that court, entered against the defendant J. B. Franeesehi. The decree from which, the appeal is taken was not rendered in the divorce suit, but under a complaint filed by the plaintiff in the present suit, alleging fraudulent conduct on. the part of Franeesehi and the defendant, Mike Gulotta, by transferring the title to real estate from Franeesehi to Gulotta before the divorce suit was instituted, so as to defeat the plaintiff of her marital rights in the property.

On August 9,1943, the circuit court entered a decree granting a divorce to the plaintiff from Franeesehi. The'decree orders Franeesehi to pay $25 each week as alimony and support money for their two minor children whose custody was granted to the plaintiff; also, to pay $150 solicitor’s fee to the plaintiff. The plaintiff was awarded the use and occupancy of the homestead and Franeesehi was directed to pay the taxes thereon, the costs of necessary repairs, maintenance and upkeep thereof, including premiums for policies of insurance for at least two thirds of the value of the homestead.

When the divorce- decree was signed, Franeesehi was $217 in arrears for temporary alimony. The decree of divorce makes the $217 and the alimony and support money a lien on the home place and on certain premises known as number 636 North Chicago Avenue, Rockford, Illinois, which is designated by the parties as the avenue property. Gulotta was not a party to the divorce. suit. In the divorce decree there is a finding that Franeesehi has an equity and interest in the avenue property which is .subject to some claim of Gulotta who purchased the property at sheriff’s sale, but that Franeesehi still retains an interest therein which is recognized by Gulotta. This litigation is not concerned with the home place.

On December 17, 1943, Franeesehi was $801 in arrears in payments of alimony, support money and solicitor’s fee, and a judgment was rendered against him for that amount in the divorce suit in favor of the plaintiff. On June 23, 1944, a similar judgment was entered against him for $536.50, being the amount he was in arrears from December 17, 1943, to June 23, 1944. The two judgments were in the sum of $1,337.50. The judgments not being paid, the plaintiff, on April 7, 1944, filed her complaint in the present suit against Franeesehi, Mike Gulotta. and his wife, Lena. There was personal service on Franc,eschi. He appeared personally in open court at the beginning of the hearing, and upon his failure to plead, he was defaulted and the complaint taken as confessed against him.

It appears from the record that it was necessary to satisfy instalments of the divorce decree by sale of defendant’s real estate under sec. 20 of the Divorce Act. (Par. 21, ch. 40, Ill. Rev. Stats. 1943; [Jones Ill. Stats. Ann. 109.188]) (Campbell v. Leonard, 132 Ill. 232; Henderson v. Craig, 179 Ill. 395; Anderson v. Anderson, 380 Ill. 435.) The alimony is a debt against Franeesehi in favor of the plaintiff, and the complaint alleging fraudulent conduct on the part of Franeesehi and Gulotta to defeat her marital rights, is analogous to a creditor’s bill. Where a husband conveys his property to defraud his wife of her marital rights she is within the protection of the statute against conveyances made with intent to hinder and delay creditors. (Deke v. Huenkemeier, 289 Ill. 148, 155; Deke v. Huenkemeier, 260 Ill. 131.) The wife in such a case as here presented is considered as in the same position as a defrauded creditor. (Deke v.Huenkemeier, 289 Ill. 148; Ellet v. Farmer, 384 Ill. 343.) The divorce decree, as stated, makes the instalments of alimony and support money a lien on the avenue property, and the issuance of an execution and its return nulla bona was not essential to the jurisdiction of the court in this suit. (Scott v. Aultman Co., 211 Ill. 612; Scanlan v. Murphy, 51 Minn. 536, 53 N. W. 799; Cornell v. Radway, 22 Wis. 260.)

It is not the rule in this State that a conveyance made in fraud of creditors will be declared absolutely void and the title reinstated in the former owner, or grantor. Such a conveyance is taken as void only as against such persons and their representatives as shall or might be delayed or defrauded. (Deke v. Huenkemeier, 289 Ill. 148.) The prayer of the complaint, based on the charge that by the fraudulent conduct of Franceschi and Gulotta the legal title to the avenue property became vested in Gulotta, and that the transaction between them be declared void and the property placed in the name of Franceschi, should not be granted.

The complaint prays for general relief and the plaintiff is entitled to such relief in the protection of her marital rights as the facts and circumstances appearing in evidence warrant. (Geiger v. Merle, 360 Ill. 497.) The decree dissolving the marriage, bars the plaintiff claiming any statutory interest in the avenue property excepting dower. (Sec. 23, Probate Act, Seuss v. Schukat, 358 Ill. 27.) The court had the right to protect the plaintiff’s right of inchoate dower by the decree rendered in this suit. (Deke v. Huenkemeier, 260 Ill. 131.) The plaintiff was also entitled to have her right to alimony protected against a fraudulent conveyance as provided by sec. 20 of the Divorce Act. (Deke v. Huenkemeier, 289 Ill. 148, 155.)

The plaintiff married Franeeschi on November 11, 1911, and they lived together until November 29, 1942. Some time before July 1940, one Ross Linton, a real estate agent, at the request of Franeeschi, secured a purchaser for the avenue property. Franeeschi became enraged at the plaintiff because she would not release her inchoate dower in the property. On July 6, 1940, Linton secured a judgment of $200 for his broker’s commission against Franeeschi before a jusr tice of the peace. A transcript of the judgment was filed in the circuit court. Execution was levied on the property and at sheriff’s sale defendant Gulotta became the purchaser thereof. He bought the property valued at about $7,000, for $187.79, the amount of the judgment with costs, less $53192 which Franeeschi had paid on the judgment. Gulotta obtained a sheriff’s deed on July 20, 1942.

On November 29, 1942, Franeeschi attacked the plaintiff with a heavy cane and gave her a terrible beating. On December 4, 1942, the plaintiff filed a complaint for divorce. Upon Franceschi’s promise to provide for his family and treat his wife kindly, the plaintiff dismissed her complaint.

Subsequent to the dismissal of her complaint for divorce, Franeeschi again resorted to cruel and inhuman treatment of the plaintiff. On April 28, 1943, she filed her second complaint for divorce, which she successfully prosecuted and secured the decree of divorce which has been referred to. This decree is an exhibit in the record before this court and it appears therein that from January 17, 1936, until the second complaint for divorce was filed that Franeeschi was guilty of vicious treatment of the plaintiff. It also appears from the record that Franeeschi obstinately and wilfully refused to pay alimony and support money allowed the plaintiff by the divorce decree. The facts above recited clearly indicate that Francesehi had in mind a determination to frustrate the plaintiff’s right to alimony and her marital rights in his property dating back to July 1940. That he did conspire with Gulotta to defraud the plaintiff of her marital rights is admitted by Francesehi’s default.

The present complaint alleges a conspiracy by Franceschi and Gulotta to "perpetrate a fraud on the plaintiff beginning in the year 1940. The allegations of the complaint charging the conspiracy may be summarized as follows: Francesehi procured Gulotta under a concealed agreement and arrangement to bid $187.79 for the avenue property at the sheriff’s sale. The property was sold to him at the sale for that amount and he subsequently obtained a sheriff’s deed thereto. The property was worth $7,5Q0, free of incumbrance, which was well known and understood by Gulotta. Gulotta claimed to have loaned Francesehi about $1,300 for repairing and improving said premises known as 636 North Chicago avenue, Eockford, Illinois, and to build a garage thereon; that the defendant, J. B. Francesehi, and Mike Gulotta, agreed that if Gulotta would buy said property at said sheriff’s sale, he could hold the same as security for the money which he, Gulotta, had advanced to said Francesehi as security for his debt; that the said defendant, J. B. Francesehi, conspired and agreed with said defendant, Mike Gulotta, who had been his close and intimate friend for many years, to purchase said premises at said sheriff’s sale, with the secret understanding that said premises were to be held by him thereafter in secret trust for the said defendant, J. B. Francesehi, so as to get the title thereto out of the name of said J. B. Francesehi, so as to defeat and cut off any right which the plaintiff might have in law or equity therein, and so that the same might be sold without notice to plaintiff. '

There is some criticism by counsel for appellants directed against the decree based on the foregoing allegation of the complaint and which should he disposed of. In the case of Bostwick v. Blake, 145 Ill. 85, the wife of one Barnum Blake, on October 12, 1889, obtained a judgment against him for alimony. The decree was rendered in October 1888, and she had a writ of attachment levied' on real estate formerly belonging to her husband. Appellant, Bostwick, intervened and claimed title to the real estate under a sheriff’s deed, dated August 16, 1876. It was charged by the wife that Bostwick held the real estate in secret trust for Blake and the deed was void as to her right to alimony. The court held that where a party obtains a sheriff’s deed for the land of a debtor, in pursuance of an arrangement with the latter, and holds the same in secret trust for the debtor, the conveyance will be fraudulent in law and void as to his creditors. It matters not that the transaction may be upon a valuable consideration, if it lacks the element of good faith. In such cases the conveyance is'void both as to existing and subsequent creditors. The fraud is a continuing one, and may actually operate as such, as well in reference to debts contracted after, as before the conveyance. (See also McKey v. Cochran, 262 Ill. 376.)

As to the rights of the appellant, Francesehi, the rule is that a defendant to a complaint in chancery, where a default and decree pro confesso has been entered against him, may on appeal contest the sufficiency of the complaint, or that its averments do not justify the decree. He cannot, on appeal, question the want or sufficiency of the evidence upon which the court acted. (Monarch Brewing Co. v. Wolford, 179 Ill. 252; Dunfee v. Mutual Building S Loan Ass’n, 206 Ill. 133.) The averments of the complaint are sufficient to sustain the decree.

The answer of Gulotta denies that Francesehi procured him (under a concealed agreement or any other agreement) to bid upon the premises sold at sheriff’s sale. It alleges that, Francesehi was indebted to Gulotta in the amount of $1,300, represented by a judgment note dated July 1, 1937, bearing interest at three per cent per year, and the proceeds of which note had been used in the improvement of the said premises; that Gulotta knew that Francesehi was indebted to his brother, N. V. Francesehi of California, in the amount of $4,500, which money was used in building the house on the said premises; that when Gulotta was advised by Francesehi that the premises were to be sold, he insisted he was going to purchase it at said sale in order to recoup his own money invested in the premises; that before making the purchase at the sale, he agreed with N. V. Francesehi that upon reselling said premises he would pay him the amount then unpaid on his note; that he did on or about February 15, 1944, pay $500 to N. Y. Francesehi to be credited on interest, and on April 26, 1944, paid to N. Y. Francesehi on said note $550; that the divorce litigation between plaintiff and Francesehi so beclouded the title to the premises that Gulotta could not sell them in compliance with a deal which Gulotta negotiated in the summer of 1943, so that he applied whatever spare money he had to the note held by N. Y. Francesehi; that the sheriff’s deed is good and sufficient at law; and is not void for the reasons stated in the complaint; and should not be set aside nor should the title be placed in Francesehi.

After part testimony was heard, and the chancellor indicated that the charging allegations of the complaint had been proved by the plaintiff, Gulotta obtained leave to file a counterclaim. The counterclaim alleges payments made by Francesehi on Gulotta’s note for $1,300 as interest which was due semiannually.

No interest was paid on the note by Francesehi on Jan. 1,1940, nor thereafter. On an accounting of rents collected by Gulotta for the avenue property, his expenditures for taxes and repairs, a computation of the balance dne on Ms note, and an allowance of $299 advanced by Grulotta for purchasing the property at sheriff’s sale, the chancellor decreed that there was due Grulotta $622.76. This amount is not disputed by the plaintiff.

It appears from the record that N. Y. Franeesehi held Franeesehi’s note for $4,500, dated Jan. 1, 1936, on which Franeesehi, according to indorsements on the back of the note, paid the interest semiannually, the last payment being on July 30,1940. TMs note recited: “This note is secured by unencumbered six-room residence located at 636 North Chicago Avenue, Rockford, Illinois.”

It appears from the evidence the answer and counterclaim of Grulotta as follows: When Grulotta was advised by FrancescM that the property was going to be sold, he insisted that he was going to purchase it at the sheriff’s sale in ofder to recoup his own money invested in the property, and before making the purchase at the sale, agreed with N. Y. Franeesehi that upon reselling the property he would pay to N. Y. Franeesehi the amount unpaid on Ms $4,500 note, representing money which had been used to improve the property. In December 1940, Grulotta wrote to N. Y. Franeesehi and informed Mm that if Grulotta got title to the avenue property, he would see to it that N. Y. Franeesehi was paid as soon as the property was sold. That Frank North, the attorney for N. Y. Franceschi, sometime in the early part of August 1943 had a conversation with Grulotta about the payment of the mote for $4,500. Grulotta stated to North that there was some “disturbance” in the title to the avenue property through a divorce decree. He said that he would take care of the note; and that he thought there would be enough from the sale to pay the note without interest. The “disturbance in the title’’ and the “sale” referred to a sale of the avenue property which Grulotta had negotiated in 1943, but wMeh failed because the purchaser would not accept the title without the signature of the plaintiff.

On July 25,1943, Gulotta wrote to N. V. Franeesehi as follows: “Received your letter and will say that your offer sound's very good to me. As you probably know the sale of the property hit a snag a couple of times already, due to the greed and meddling of somebody you know, but our attorneys aye working on the case and are hopeful that in the near future a satisfactory solution will be found, one way or other. You can depend on me that everything will be attended to in justice and fairness to all concerned.”

On December 28, 1943, North received the note of $4,500 from N. V. Franeesehi and thereafter North examined the records at the court house and'he ascertained that N. V. Franeesehi did not have a mortgage on the avenue property. On February 8,1944, Gulotta gave $500 to North which North* credited as an interest payment on the note. On February 15, 1944, North wrote to Gulotta as follows: ‘ ‘1 have heard from N. V. Franeesehi and I have authority from him to sell the note of Dr. J. B. Franeesehi at 20 per cent of its face value less interest. The entire sum of $500.00 which you paid on this note was credited to interest; but it is my understanding that Mr. N. Y. Franeesehi will accept the $500.00 as a payment on the principal of the note as it stood prior to the payment of $500.00. Please get in touch with me if you are interested.” On April 26, 1944, Gulotta sent to N. Y. Franeesehi a draft for $510 as a payment on the note.

From the foregoing it is clear that N. Y. Fran-' ceschi knew in 1940 that Gulotta had purchased the avenue property and he was bound to know that Gulotta, after he secured sheriff’s deed in 1942, could give .a valid deed for the property to a bona fide purchaser which would be clear of his secret lien, - (if any he held on the avenue property under the terms of his note). Having accepted payments on his note after his knowledge that Gulotta had secured a deed to the property it would not be equitable nor just to allow him to attack the deed and claim his alleged secret lien in preference to the rights of the plaintiff. (27 C. J. p. 482, p. 857, sec. 826; Milan Bank v. Richmond, 280 Mo. 30, 217 S. W. 74, 9 A. L. R. 353; Rappleye v. International Bank, 93 Ill. 396.) The decree should not be reversed because N. V. Franceschi was not made a party to this suit on objection of the appellants first made in this proceeding in this court. (Krzeminski v. Krzeminski, 285 Ill. 113; Heinroth v. Griffin, 242 Ill. 610.)

It is stated by Gulotta in his verified counterclaim that, “Gulotta informed Franceschi he would bid at the sale and if there was no redemption and if he secured a deed he would offer the place for sale and pay out of the proceeds, the money he had advanced, also the note held by N. Y. Franceschi and he would give the balance to the defendant.” (Franceschi.) The counterclaim prays for a decree declaring title to the avenue property to be held in trust for the benefit of Franceschi, and ordering him to pay to Gulotta within a short day, all monies advanced by Gulotta on account of his agreement with Franceschi, and interest on the $1,300 note; and that on default the property be sold and out of the proceeds Gulotta be paid all monies he has advanced, as aforesaid, and that balance due N. Y. Franceschi on his note be paid, and remainder brought into court to be paid as equity may require.

The counterclaim was prepared in the light of the testimony introduced by the plaintiff and an analysis of the evidence is not called for. However, we have carefully examined the evidence and it cannot be said that there is no evidence sustaining the decree finding that Gulotta held the property in secret trust .for Franceschi, nor that the decree is against the manifest weight of the evidence. It is held in the case of McKey v. Cochran, 262 Ill. 376 that, a conveyance of land by a debtor, to be held wholly or in part in trust for him, is a fraud upon the creditors whether so intended or not, and the conveyance is void both as to existing and subsequent creditors, as the fraud is a continuing one.

The decree is long and only those parts of it which are the matter of controversy between the parties will be summarized.

The decree orders as follows: Defendant Franceschi to pay to Gulotta within ten days the sum of $622.76, and defendant Franceschi to pay to plaintiff within ten days, her judgments of $801 and $536.50. Defendant Franceschi to pay to Gulotta within ten days the sum of $1,050 with interest. Gulotta is entitled to -a first lien against the premises in the sum of $622.76 with lawful interest and to have the same out of the proceeds of any sale pursuant to this decree. Plaintiff is entitled to a lien against premises in the sum of $1,336.50, and to have the same paid out of the proceeds of any sale pursuant to this decree, subject to the lien of Gulotta. Plaintiff is entitled to a continuing lien against the premises in accordance with the terms of the decree of divorce in Cause No. 50582, and in accordance with ch. 40, sec. 21, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 109.188], entitled, “Lien of decree sales,” for all past due, present and future payments of alimony and support and “other items in said decree mentioned.” Gulotta is entitled to a lien against the premises for $1,050 with interest, and to have the same paid out of the proceeds of any sale pursuant to this decree, subject to the first lien of Gulotta and the liens of plaintiff. In default of said payments the premises, or so much thereof as may be sufficient to realize the amount so due Gulotta, the plaintiff, and the costs, including the fees, disbursements and commissions on the sale, and which may be sold separately without material injury to the parties interested, be sold at public vendue for cash in hand to the highest bidder, etc., subject to unpaid taxes and subject to the continuing lien of plaintiff for all other past due, present and future payments of' alimony, “and other items mentioned in the decree of divorce entered in Cause 50582,” and in accordance with ch. 40, sec. 21 of the statutes. That the master in chancery execute this decree, etc. That the master retain his fees and disbursements, pay the court costs, and distribute the balance to the parties as their rights are found in the decree.

A part of section 45 of the Chancery Act reads as follows: “Whenever, by any decree, any party to a suit in equity shall lie required to perform any act other than the payment of money, or to refrain from performing any act, the court may, in each such decree, order that the same shall be a lien upon the real or personal estate, or both, of such party until such decree shall be fully complied with; and such lien shall have the same force and effect, and be subject to the same limitations and restrictions, as judgments at law.”

The plaintiff has assigned cross-errors objecting to that part of the decree which awards Gulotta $622.76 as a first lien on the property, and also allows him a lien for $1,050 subject to Gulotta’s first lien. The basis of. the cross-errors is the charge that Gulotta does not come into a court of equity with clean hands and which charge was made by the plaintiff in her reply to Gulotta’s counterclaim.

As to the item of $622.76 it appears from the record that Gulotta consulted an attorney before the sheriff’s sale and he was advised to buy the property to protect his note for $1,300. We do not understand that the plaintiff in her argument contends that the allowance of the $622.76 by the terms of the decree should be stricken from the decree. The item for $1,050, was paid in two payments. The first one was made after Gulotta was well aware that the plaintiff claimed some right in the avenue property and that she had secured a divorce decree against Franceschi. Gulotta and Franceschi were good friends and in constant communication regarding the situation and developments concerning the avenue property, since the year 1940. The second payment was made after Gulotta was served with a summons in the present suit, in which Gulotta was charged with buying the property at the sheriff’s- sale in secret trust for Franceschi. The letter of Gulotta to 1ST. V. Franceschi on July 25, 1943, was written under the guidance of Franceschi. The payments were made by Gulotta, according to his testimony, because he thought that the note of N. Y. Franceschi created a lien on the property which Gulotta was obligated to pay.

The effect of the decree making the $1,050 a lien on the avenue property is to subrogate Gulotta so that he succeeds, pro tanto, to the rights of 1ST. Y. Franceschi under his note of $4,500 against Franceschi. (Bruschke v. Wright, 166 Ill. 183, 195.) By making the payments on the note Gulotta could enforce only such rights as N. Y. Franceschi could enforce against Franceschi under the note. (60 C. J., p. 723.) Secret liens are not favored either in law or equity; to allow an impairment of the divorce decree making alimony and support money a lien on the avenue property is similar to a collateral attack on a decree by a secret lien holder. (Heinroth v. Griffin, 242 Ill. 610.) See also Schechner v. Oriental Holding Co., 107 N. J. Eq. 600, 153 Atl. 704.) Making this claim a lien on the property was error.

By her acquiescence in the present decree directing the master in chancery upon sale of the avenue property to convey the property to the purchaser in fee simple and to divide the proceeds of the sale as provided in the decree, the plaintiff is estopped to claim her inchoate right of dower in the property. (Adams v. Storey, 135 Ill. 448.)

That part of the decree making the claim of Gulotta for $1,050, a lien on the premises is hereby reversed. In other respects the decree is affirmed.

Affirmed in part and reversed in part and cause remanded.


author: Presiding Justice Bristow.

text:
    Ada Dill, Appellee, v. Absalom Patterson, Appellant.
    Term No. 4,404.
    Heard in this court at the May term, 1945;
    opinion filed July 7, 1945;
    released for publication August 7, 1945.
    Scerial Thompson, for appellant;
    no appearance for appellee.
   Opinion by

Presiding Justice Bristow.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Catherine Elizabeth Peters, Plaintiff in Error.
    Term No. 45F4.
    Heard in this court at the May term, 1945;
    opinion filed July 7, 1945;
    released for publication August 7, 1945.
    L. H. Holland and Henry B. Eaton, for plaintiff in error;
    C. W. Burton, State's Attorney, and Fred P. Schuman, Assistant State's Attorney, for defendant in error.
   Opinion by

Presiding Justice Bristow.

Not to be published in full.


author: Justice Stone.

text:
    G. H. Fritch, Appellant, v. Luke Barnhill, Appellee.
    Term No. 45F6.
    Heard in this court at the May term, 1945;
    opinion filed July 7, 1945;
    released for publication August 7, 1945.
    Chas. Durfee and L. M. Hancock, for appellant;
    H. N. Finney, for appellee;
    Alpheus Gustin, of counsel.
   Opinion by

Justice Stone.

Not to be published in full.


text:
    Jennie Strong, Appellee, v. John W. Strong, Appellant.
    Term No. 45F7.
    Heard in this court at the May term, 1945;
    opinion filed July 7, 1945;
    released for publication August 7, 1945.
    Louis Beasley, for appellant;
    Jas. F. Wheatley, for appellee.
   Opinion by

Justice Stone.

Not to be published in full.


author: Presiding Justice Dove.

text:
    People of State of Illinois, Defendant in Error, v. Merle Hoffman, Plaintiff in Error.
    Gen. No. 10,010.
    Heard in this court at the February term, 1945;
    opinion filed July 11, 1945;
    released for publication July 27, 1945.
    Fort & Fort, for plaintiff in error;
    Hubert H. Edwards, State’s Attorney, for defendant in error.
   Opinion by

Presiding Justice Dove.

Not to be published, in full.


text:
    Agnes La Prise, Administrator of Estate of Harold La Prise, Deceased, Appellant, v. Carr-Leasing, Inc., Frank-McCrary and John Rehak, Appellees.
    Gen. No. 10,024.

      Heard in this court at the February term, 1945;
    opinion filed July 11, 1945;
    released for publication July 27, 1945.
    Perry & Elliott, for appellant;
    Hadley & Leren, for appellees;
    Charles W. Hadley, of counsel.
   Opinion by

Presiding Justice Dove.

Not to be published in full.