text:
    City of Kankakee, Appellee, v. Sam Lang, Appellant.
    Gen. No. 9,952.
    Opinion filed April 27, 1944.
    John H. Beckers, of Kankakee, for appellant.
    Victor N. Cardosi, City Attorney, and Wayne H. Dyer and Frank Curran, both of Kankakee, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The City of Kankakee filed a complaint in the circuit court, of Kankakee county, Illinois, alleging that a certain two story frame building located at 842 S. Main St. in the City of Kankakee and owned by one Selma Epstein, of Chicago, was being used by the defendant Sam Lang as a place of storage for scrap paper, rags, old batteries, bottles, glass, broken bottles and other junk contrary to the provisions of the zoning ordinance of the City of Kankakee.

The defendant filed his answer admitting the allegations of the complaint, but denying that the purpose for which said building was alleged to be used violated said ordinance.

The appellee City thereafter filed an amendment to the complaint, alleging that the building upon said premises was in a dangerous and hazardous condition because of age and lack of repair, weakness of structure, and lack of plastering and constituted a dangerous fire hazard because the contents of said building consisted of inflammable materials which were stored in a haphazard manner within said building, and contrary to the ordinances of the City.

It further alleged that the building was especially susceptible to fire, because the plaster on the walls and ceilings was of great age, and a great part was loose and some had fallen from the laths; that the sheathing was in a state of disrepair; that the studs were rotted and the collar beams were of weak construction and not in sufficient number and the joists were not of sufficient strength; that the cornice was missing; that the building was of balloon construction with studding running from the basement to the roof without fire-stops.

The amendment to the complaint then realleges the nature of the contents of said building as set forth in the original complaint. It further alleges that the contents of said building were inflammable and combustible and endangered the safety of said building and was dangerous to persons and adjoining property. It further alleges that the chief of fire department of the appellee had ordered the defendant, Sam Lang, to make repairs and remove the contents of said building, and that he was afterwards fined, in the county court of Kankakee county for failure to comply with said order. It also charges that the maintenance of said building in its present condition and the use of said building as a place of storage for junk was a nuisance.

The amended complaint prayed that the defendant, Sam Lang, be ordered by an injunction, to place said building in a safe condition, to make repairs to the roof, studs, sheathing, walls, plaster and chimney as may be necessary to place said building in a safe condition and prevent it from being a hazard by fire, and that he be further ordered and restrained from using said building for the storage of loose papers, kindling wood, boxes, cartons and inflammable materials, and prevented from using said building for the storage of excess amounts of auto parts, machinery, scrap iron, junk, etc., and also prayed for general relief.

The defendant failed to file an answer to the amended complaint. On August 13, 1943, the appearance of A. W. DeSelm as attorney for the defendant, was entered and on motion of plaintiff, the defendant was defaulted for want of an answer and a default decree was entered.

The decree finds that there was personal service on the defendant, Sam Lang, and that he had failed to answer the amended complaint as required by a rule of court entered on July 26, 1943, and a default was ordered; that Sam Lang was for 10 years and now is, in possession and control of the premises and he is now the owner thereof. The decree then finds the facts to be in accordance with those charged in the petition, and said conditions are a menace to public safety and health and constitute a public nuisance which should be abated.

The decree then orders that an injunction should issue forthwith, restraining the defendant from using the building in manner complained of. It also orders him to repair the building in conformity with the ordinances of the City of Kankakee. At the conclusion of the decree, we find the following: “O. K; A. W. DeSelm.”

On September 3, 1943, the defendant, by his attorney, John H. Beckers, filed a sworn petition requesting an extension of time within which to comply with said decree. On September 24, 1943, the City of Kankakee made a motion to strike said petition. Before this motion was passed upon by the trial court, the defendant, on October 21,1943, filed a verified petition to vacate and set aside the decree of August 13, 1943, and to dissolve the injunction.

This petition alleges that the building code of the City of Kankakee is so indefinite and uncertain that it is void and the defendant is unable to understand the provisions of said code; that since the entering of said decree, the defendant has removed a great amount of the objectionable matter from the building in question; that said decree and writ of injunction are so vague, indefinite and uncertain in terms, that the defendant is unable to determine what repairs he has to make on said building; that the ordinances of the City of Kankakee are illegal and void; that the decree leaves the question of the nature, kind, extent and sufficiency of repairs to be made to the whims, discretion and prejudice of the building inspector of the City of Kankakee.

The petition further alleges that the defendant has applied to the 0. P. A. office in the City of Kankakee to get proper blanks which are necessary to obtain a priority rating on building materials and labor necessary to repair and to improve said building; that he will immediately fill out an application for a priority order and mail the same to the 0. P. A. office as directed, as soon as received, but at the time of the filing of said petition, he had received no reply to his application; that he attached to said application a copy of the decree granting the injunction; that without such priority rating the petitioner cannot proceed to make any repairs on said building, as it is impossible for him to get materials and labor to make such repairs.

The petition asks the court to vacate the decree and dissolve the writ, or in the alternative, to grant to the petitioner an extension of time until after the duration of the present war to make the repairs to said building. The court denied the prayer of the petition and fixed the appeal bond at five thousand dollars. On November 4, 1943, the appellant, Sam Lang, filed his notice of appeal from the decree of injunction as entered on August 13, 1943, and from the order of October 28, 1943.

The errors relied upon for reversal in this court are as follows: ‘ ‘ The decree of the court granting said injunction is so vague, indefinite and uncertain that the same is void.

“Sections 14 and 15 of the Building Code are the only ordinances regulating the repair of buildings within the fire limits of the City of Kankakee, and said sections and each of them, are void because they delegate legislative authority to the Building Inspector without setting out any standards to determine the action of said Building Inspector.

“Said sections and each of them are void because they leave the question of the nature, kind, extent and sufficiency of the repairs to be made to the building in question to the whims, discretion and prejudices of the Building Inspector.

"The decree is defective and should be reversed because the original complaint and the amended complaint both allege that the building in question is owned by one Selma Epstein of Chicago and that the appellant is in the possession of and in the control of said building, and there is no allegation in the complaint as amended that the defendant, Sam Lang, was under any obligation to repair said building, whereas, the decree finds that the defendant, Sam Lang, is the owner of said building and orders him as such owner to repair said building.

“The court erred in refusing to vacate said decree and to quash the injunction writ.

“The court erred in refusing to grant to the appellant an extension of time until after the duration of the present war to make repairs to said building.

“The decree and the order refusing to vacate the same are contrary to the law.”

As before stated, the decree was approved by the Honorable A. W. DeSelm, an attorney who" entered his appearance, and represented the defendant in the original injunction suit. This is a consent decree. In the case of Bergman v. Rhodes, 334 Ill. 137, our Supreme Court, in discussing, the law relative to a consent decree, on page 143 there states as follows: “A decree so entered by consent cannot be reviewed by appeal or writ of error. (Paine v. Doughty, 251 Ill. 396; Galway v. Galway, 231 id. 217.) It can only be set aside by an original bill in the nature of a bill of review. (Hohenadel v. Steele, 237 Ill. 229.) In Hungarian Benevolent Society v. Aid Society, 283 Ill. 99, it was held that where neither party objected to a master’s report, a decree in accordance with the master’s finding, which was approved before entry by the O.K. ’ and signature of counsel for both sides, became a consent decree; that where an attorney is the counsel of record for a client, his agreement in the conduct and management of the litigation must be considered as the agreement of his client, and if any of his acts are without sufficient authority as between him and his client the remedy of the client is against the counsel. ’ ’

In the case of American Tar Products Co. v. Bradner Smith & Co., 238 Ill. App. 151, we stated that a consent decree is like a written contract and should be enforced as written. The same ruling was announced by the Appellate Court of the first district in the case of Consaer v. Wisniewski, 293 Ill. App. 529. Since the decree in the present case was approved by the attorney of record for the defendant, he has waived his right to question it by appeal, either as to form or substance. The decree of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Thomas F. Kenney, Appellee, v. Fred Mozin and Benjamin Gold, Copartners, Trading as G. and M. Hardware and Paint Store et al. Appeal of Edward Caplan, Appellant.
    Gen. No. 42,377.
    Opinion filed May 1, 1944.
    Charles T. Shanner, of Chicago, for appellant; Gardner, Carton & Douglas and James A. Velde, all of Chicago, of counsel.
    James H. Turner, Lloyd T. Bailey and J. Theo. Kiggins, all of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendant, Edward Caplan, seeks to reverse a judgment for $2,500 entered on the verdict of a jury in a personal injury case.

The record discloses that plaintiff brought an action against Fred Mozin and Benjamin Gold, co-partners doing business as G. & M. Hardware and Paint Store, and Edward Caplan, to recover damages for personal injuries sustained by him on the claimed negligence of defendants, as a result of a collision between an automobile truck driven by plaintiff west in 49th street and another automobile truck belonging to defendants, Fred Mozin and Benjamin Gold and driven by the defendant, Caplan, south in Prairie avenue, Chicago. At the time of the accident plaintiff was employed by the South Side Laundry Company, a corporation, and the defendant, Caplan, was in the employ of the co-partnership.

The defense interposed by defendants was that the action could not be maintained because all of the parties were under the Workmen’s Compensation Act. The court sustained this defense of the partnership but overruled the defense as to the defendant Caplan. The case was then tried before a jury as against the defendant, Caplan, and there was a verdict and judgment as above stated.

Caplan contends that the judgment is wrong and should be reversed because all of the parties were under the Workmen’s Compensation Act and therefore plaintiff could not maintain a common law action. On the other hand counsel for plaintiff say that the provisions of the Workmen’s Compensation Act do not apply to the defendant, Caplan, for the reason that the jury answered a special interrogatory in the affirmative that defendant was guilty of willful and wanton misconduct and they say that “Judgment in tort based upon a special finding of the jury of malice is a separate and distinct recovery with separate and distinct remedies from an ordinary judgment in tort.” We think this contention cannot be sustained. Section 6 and section 29 of the Workmen’s Compensation Act. Ill. Rev. Stat. 1943, ch. 48, pars. 143 and 166 [Jones Ill. Stats. Ann. 143.21, 143.44].

Section 6 provides: “No common law or statutory right to recover damages for injury or death sustained by any employe while engaged in the line of his duty as such employe, other than the compensation herein provided, shall be available to any employe who is covered by the provisions of this act.” Section 29 provides: “Where an injury or death for which compensation is payable by the employer under this Act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this Act, and being bound thereby under section three (3) of this Act, then the right of the employee or personal representative to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee.” There is no provision of the Act which excludes a person whose willful and wanton misconduct causes injury to another. And we think it clear that the defendant, Caplan, was relieved from liability imposed by the common law whether his conduct for which liability was sought to be imposed, was negligence or willful and wanton misconduct. Thornton v. Herman, 380 Ill. 341.

The court erred in striking paragraphs 10, 11, 12 and 13 from defendant’s answer which set up that all parties were bound by the Compensation Act, and the judgment of the superior court of Cook county is reversed and the cause remanded.

Reversed and remanded.

Niemeyer and Matchett, JJ., concur.


author: Mr. Presiding Justice. O’Connor

text:
    Gwendolyn Lindauer Drangle, Appellee, v. Albert J. Lindauer, Appellant.
    Gen. No. 42,580.
    Opinion filed May 1, 1944.
    Henry H. Koven, Louis E. Levinson and James R. McKnight, all of Chicago, for appellant.
    Golan & Golan, of Chicago, for appellee.
   Mr. Presiding Justice. O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover $3,000 claimed to be due her under the terms of a written contract entered into between the parties May 14,1941. There was a trial before the court without a jury, a finding and judgment in plaintiff’s favor for $3,000 and defendant appeals.

The record discloses that the parties were married March 12, 1921, at Chicago, and on May 9, 1941, she filed her complaint for divorce in the Superior court of Cook county, and while the suit was pending, the parties entered into the contract of May 14, 1941, which is the basis of this suit. The contract recites that the parties were living separate and apart from each other on account of certain marital difficulties; that her husband was possessed of personal property of the value of $9,000, in addition to some household furniture, etc. That a divorce suit was pending between them but without any collusion the parties (independent of the divorce suit and a decree that might thereafter be entered) mutually agreed that he immediately pay her $1,000, and in consideration she would waive any claim to the balance of the personal property. That if there was a divorce and she remarried' before June 1,1942, he would pay her on or before that date $3,000; that if she remarried on or before June 1,1943, he would pay her $2,000 and if before June 1, 1944, he would pay her $1,000. That afterward a decree of divorce was entered May 22, 1941; that she married George J. Drangle April 23,1942, and later brought this action to recover the $3,000 under the terms of the contract.

After this agreement was executed, and before the divorce suit was heard, the parties by their counsel, discussed the case of Adler v. Adler, 373 Ill. 361, as to whether the court would enforce the provisions of the agreement of May 14, and it was then decided that another agreement would be executed by the parties. May 21, 1941, such agreement was executed, the provisions of which were incorporated in. the decree of divorce.

By the terms of the decree plaintiff was granted a divorce; the custody of their son, then 16 years of age, was awarded to the father. (The son was living at that time with his father and expressed a desire to so continue. ) It was further found by the decree that May 21, 1941, the parties had entered into an agreement adjusting their property rights and making provision for the support and maintenance of the wife. It was further decreed that defendant, in accordance with the terms of that agreement pay plaintiff for her support and maintenance $38.46 beginning June 1, 1941, and continuing weekly thereafter so long as plaintiff remained unmarried but in no event beyond May 31,1946; that ‘ all the rights, claims and demands of each party against the other, growing out of the marital relationship existing between them or otherwise, shall be, and the same are hereby forever barred, released, extinguished, and terminated.” There are other provisions in the decree for divorce but we think it unnecessary to refer to them further.

Defendant contends that the contract of May 14, is unenforcible because it violates § 18, ch. 40 of our statute on Divorce. (Ill. Rev. Stat. 1943, ch. 40, par. 19, § 18 [Jones Ill. Stats. Ann. 109.186].) That section has to do with the allowance of alimony, etc., and the amendment of 1933 provides that “a party shall not be entitled to alimony and maintenance after remarriage.” If the provision of the contracts of May 14 or May 21, for the payment of the $3,000 was the payment of alimony then obviously the provision would be invalid. Miller v. Miller, 317 Ill. App. 447; In re Estate of Young, 319 Ill. App. 513; Adler v. Adler, 373 Ill. 361. But in the instant case, the decree of divorce provided that defendant pay $38.46 per week for the support and maintenance of plaintiff while the payment of the $3,000 was to be made as a final property settlement and is valid and binding. Adler v. Adler, 373 Ill. 361.

In the Adler case, a decree of divorce was entered November 29, 1922, and the question of alimony was reserved for consideration. December 2, following, another decree was entered which stated that provision had been made for quarterly payments of $1,150 to the divorced wife during her life. In May, 1936, the former husband petitioned the court for a modification of the decred alleging that the wife had remarried and that there was a change in his financial condition and earning capacity. Some two years before the divorce suit was brought, the parties had executed two instruments. The court said the question presented is whether the provision in the decree of December 2, “for the quarterly payment of $1150, was an allowance of alimony and subject to modification under section 18 of the Divorce act, or was it a final settlement in gross, of all the interest of the parties arising out of the marital relation, and, therefore, beyond the power of the court to modify or change.” And the court held that the provision for the quarterly payment of $1,150 “was merged in the decree and, as such, became a provision for alimony and subject to modification,” and the remarriage required the cancellation “of all payments of alimony maturing after the date of the filing of the petition.” In that case the" court said: “It was lawful for petitioner and respondent to specify in the supplemental trust indenture and agreement of December 1,1922, that the quarterly payments to respondent should continue for her life regardless of her subsequent marriage. Eespondent could rely on the contract for the payment, and in the event of a breach in any of its parts, could bring appropriate action for the enforcement of its provisions, or she had the right with the approval of the petitioner, to have a consent decree entered adopting the provisions of the agreement. The latter action having been taken, the provisions for quarterly payments to respondent as provided in the supplemental trust indenture and trust agreement of December 1, 1922, became merged in the decree. The fact that the decree adopted the terms of the agreement did not destroy or affect the power of the court to alter such provisions when a change of circumstances justified a modification.”

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

Judgment affirmed.

Niemeyer and Matchett, JJ., concur.


author: Mr. Justice Matchett

text:
    State Bank of Blue Island, Appellee, v. George E. Kott et al. Charles Habich, Appellant.
    Gen. No. 42,970.

      Opinion filed May 1, 1944.
    Rehearing denied and supplemental opinion filed May 15, 1944.
    Klenk & Klein, of Chicago, for appellant; Franklin W. Klein, of Chicago, of counsel.
    Hummer, Van Ness & Yowell, of Chicago, for appellee; John J. Yowell and Edwin T. Schneberger, both of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Defendant appeals from an order entered July 2, 1943, denying his motion to open up a judgment by confession entered against him, in favor of the plaintiff, April 26,1943. The judgment was entered on a promissory note dated February 27, 1933, due 60 days after date, with power of attorney to confess judgment thereto attached. The judgment rendered was for the amount of $3,740.05, which included $178.10 attorney’s fees.

The time for making the motion was extended on several occasions by stipulations of the parties. The motion was finally made on June 28, 1943, supported by an affidavit of defendant that he was the owner of a counterclaim for rent, which he desired and claimed the right to present as a defense to the cause of action on which the judgment was rendered. There was no counter affidavit. An order was entered July 2, 1943, denying the motion of defendant to open the judgment and file the counterclaim. Notice of this appeal was filed by defendant September 28,1943.

The sole question for decision is whether the court erred in denying defendant’s motion.

Plaintiff contends that the general rule that a judgment by default or confession will not be set aside in the absence of a showing that the defendant has a defense on the merits is applicable here, and that under it a judgment will not be opened or vacated merely to permit a defendant to file a counterclaim. He cites many Illinois cases decided under statutes which do not now exist. Slack v. Casey, 22 Ill. App. 412; Boas v. Heffron, 40 Ill. App. 652; Koehler v. Glaum, 169 Ill. App. 537; State Bank of Mansfield v. Stauffer, 201 Ill. App. 132; Cook v. City of Du Quoin, 256 Ill. App. 452; Busse v. Muller, 295 Ill. App. 101, with 34 C. J., § 661. We hold the provisions of the present Civil Practice Act are controlling.

Section 4 of that act (Smith-Hurd’s Ann. Stats., par. 128 [ Jones Ill. Stats. Ann. 104.004]) provides:

“This Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act or to the rules made pursuant thereto. • • •

The procedure under which judgments may be confessed is set forth in section 50 (5) of the act [Jones Ill. Stats. Ann. 104.050]; and that under which such a judgment may be opened up or set aside is set forth in rule 26 of the Supreme Court (Smith-Hurd’s Ann. Stats, ch. 110, par. 259.26 [Jones Ill. Stats. Ann. 105.26]).

Plaintiff does not contend that the affidavit of defendant here in any respect fails to conform to the rule. The substance of its defense is that a counterclaim is not a defense to a judgment entered by confession. Under a strict construction of the statute and of the word “counterclaim,” as formerly used, it might well be so held. We have already seen that any strict construction of either rule or statute is forbidden by section 4 of the act. In our opinion plaintiff’s contention is rendered impossible by section 38 of the act (Smith-Hurd’s Ann. Stats., par. 162 [Jones Ill. Stats. Ann. 104.038]) which provides:

“(1) Subject to rules, any demand by one or more defendants against one or more plaintiffs, or against one or more co-defendants, whether in the nature of set-off, recoupment, cross-bill in equity or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross-demand in any action, and when so pleaded shall be called a, counter claim.
“ (2) The counterclaim shall be a part of the answer, and shall be designated as a counterclaim.
“ (3) Every counterclaim shall be pleaded in the same manner and with the same particularity as a complaint, and shall be complete in itself, but allegations set forth in other parts of the answer may be incorporated by specific reference instead of being repeated.”

On this section the annotator well says:

“This provision is of sweeping character, and does away with all former technicalities respecting the interposition, the pleading of and the distinctions between cross-demands. Because of this fact, the bulk of decisions under the former Chancery and Practice Acts are of little persuasive authority. ’ ’

When we consider the supposed purposes of the Civil Practice Act it becomes quite impossible to suppose that it was the intention of the legislature in the enactment of this law to make it possible for the holder of a note, on which money was due, to obtain and hold a judgment by confession against the maker of the note, while the defendant holds in his hand a lease under the terms of which there is more money due from the plaintiff to the defendant than the amount for which the plaintiff claims judgment.

Section 50, which authorizes confession of judgment in (3) thereof [Jones Ill. Stats. Ann. 104.050], says:

“In case a counterclaim is filed, the judgment shall be so drawn as to protect the interests of both parties, and subject to rules, no execution shall be issued until all the issues in the case have been determined by the judgment, except by leave of court. ’ ’

We think our construction is in conformity with the purpose of the act in the administration of justice. The judgment of the trial court will therefore be reversed and the cause remanded with directions to the court to enter an order opening up the judgment and giving leave to defendant to file his counterclaim.

Reversed and remanded with directions.

O’Connor, P. J., and Niemeyer, J., concur.

Supplemental Opinion

In its petition for rehearing, plaintiff correctly points out that the opinion of the court included among cases “decided under statutes which do not now exist” Busse v. Muller, 295 Ill. App. 101. This was by inadvertence, although a re-examination of the case does not lead to a different conclusion in this case.

In that case there was a motion to set aside a judgment entered by confession on a promissory note. The plaintiff sued as administrator. Defendant produced two affidavits for the purpose of showing that by agreement of the parties the note had been substantially paid up by the delivery of groceries to the payee. There were two affidavits; one by Muller, who, since plaintiff sued as administrator, was an incompetent witness; the other by a clerk in his grocery, Mr. Nutty, of whose affidavit the court said, it “did not set forth facts to show that defendants had a defense on the merits to the whole or a part of the plaintiff’s demand.” The opinion does not undertake to discuss the Civil Practice Act but makes a statement obiter dicta with which we do not.agree.

Rehearing denied.


author: Mr. Justice Niemeyer

text:
    People of the State of Illinois ex rel. Louis De Boer et al., Appellants, v. Joseph P. Geary et al., Appellees.
    Gen. No. 42,326.

      Opinion filed May 1, 1944.
    Poppenhusen, Johnston, Thompson & Raymond, of Chicago, for appellants; Anan Raymond and Albert E. Jenner, Jr., both of Chicago, of counsel.

      Barnet Hodes, Corporation Counsel, for appellees; James A. Velde, Fred V. Maguire, Carl H. Lundquist and L. Louis Karton, Assistant Corporation Counsel, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Petitioners appeal from an order sustaining respondents’ motion to strike and dismiss petitioners’ first amended petition for mandamus to compel the respondents to require the places and positions of employment in the Chicago Belief Administration to be classified in the civil service under the City Civil Service Act (Ill. Rev. Stat. 1943, ch. 24%, pars. 39-77 [Jones Ill. Stats. Ann. 23.040-23.079]) and dismissing the petition.

In February 1932 the Illinois Emergency Belief Commission was created to provide relief to residents of the State of Illinois who, by reason of unemployment or otherwise, were destitute and in necessitous circumstances and, to that end, to make use of and co-operate with counties, townships and any other municipal corporations charged by law with the duty of providing relief, and with other local relief agencies. (Laws of Illinois, 1932, 3rd special session, page 191.) The life of the commission was limited to March 1, 1933, but was extended from time to time until in 1941 it was superseded by the Illinois Public Aid Commission, a permanent body. (Ill. Rev. Stat. 1941, ch. 23, pars. 393, 394 [Jones Ill. Stats. Ann. 18.124, 18.125].) Prior to the creation of the relief commission the duty of relieving and supporting poor and indigent persons was imposed on counties and townships. (Ill. Rev. Stat. 1933, ch. 107, pars. 14, 15.) In 1935, by amendment of section 14 and repeal of section 15 of the Paupers Act, the duty of relieving and supporting all poor and indigent persons lawfully resident therein was imposed on the counties. (Ill. Rev. Stat. 1935, ch. 107, pars. 14, 15.) At the second special session of the legislature in 1936 a number of the sections of the Paupers Act were amended and other sections added. (Laws of Illinois, 1935, 1936, 2nd special session, pages 73-78.) We are concerned only with amended section 14 and added sections 14a and 17a. By amendment to section 14, counties not under township organization were exempted from the duty £ £ to relieve and support poor and indigent persons lawfully resident therein who are also lawful residents of any city, village .or incorporated town having a population of more than 500,000 inhabitants and located within or partly within such county, ’ ’ and by added section 14a the duty to relieve and support their poor and indigent residents was imposed on such cities, villages and incorporated towns. Added section 17a required such cities, villages and incorporated towns having a population of more than 500,000 inhabitants to “provide by ordinance for the appointment of an overseer of the poor or like officer and for such other employees and assistants as may be necessary to - properly relieve and support the poor and indigent persons lawfully resident therein.” At the same session of the legislature the act creating the Illinois Emergency Belief Commission was amended to terminate its direct administration of local relief after July 1, 1936 and to make provision for allocation of moneys paid over to the county treasurer for purposes of relief, to governmental units other than the county — such as the City of Chicago — required by law to provide relief and support. (Laws of Illinois, 1935,1936, 2nd special session, pages 27-29.) To meet this statutory obligation the City of Chicago by ordinance July 1, 1936 created the office of Commissioner of Belief. This ordinance provided that the commissioner “shall appoint, according to law, such assistants, clerks and subordinates in his office as may be authorized from time to time by appropriation ordinances, and he may remove any such appointees according to law.” (Italics ours.) Thereafter, by sundry appropriation ordinances, the city from time to time appropriated taxes levied by it, pursuant to section 16 — 2 of the Cities and Villages Act (Ill. Rev. Stat. 1943, ch. 24, art. 16, par. 16-2 [Jones Ill. Stats. Ann. 21.1402]), as well as State funds allocated to the city and paid into the city treasury, for the employment and payment of the employees under the Commissioner of Relief in the Chicago Relief Administration. In 1941 these employees exceeded 2900 in number and consisted of chiefs of divisions, supervisors, directors, case workers, investigators, stenographers, clerks and other office help, messengers, maintenance men, janitors, skilled tradesmen and engineers. The annual payroll was in excess of $3,000,000.

In 1895 the City of Chicago adopted the Civil Service Act. (Ill. Rev. Stat. 1943, ch. 24%, pars. 39-77 [Jones Ill. Stats. Ann. 23.040-23.079].') Section 3 of that act [Jones Ill. Stats. Ann. 23.042] requires that the civil service commissioners “shall classify all the offices and places of employment in such city with reference to the examinations hereinafter provided for, except those offices and places mentioned in section eleven of this act. The offices and places so classified by the commission shall constitute the classified civil service of such city; and no appointments to any of such offices or places shall be made except under and according to the rules hereinafter mentioned.” Section 11 [Jones Ill. Stats. Ann. 23.051] exempts from the classified service “Officers who are elected by the people, or who are elected by the city council pursuant to the city charter, or whose appointment is subject to confirmation by the city council, judges and clerks of election, members of any Board of Education, the superintendent and teachers of schools, heads of any principal department of the city, members of the law department, police officers above the grade of captain.

Respondents confine their argument here to the contention that a correct construction of the applicable statutes is, that the employees of the office of the Chicago Commissioner of Relief were not intended by the legislature to be subject to the civil service law. They argue that this intent is established by the fact that the Chicago Commissioner of Relief is successor to and co-ordinate with agencies not under civil service, by the language of section 17a of the Paupers Act, by circumstances: attending the enactment of that section, and by other aids to statutory construction. Their claim that the Commissioner of Relief is successor to agencies not under civil service is not supported by the facts. The Illinois Emergency Relief Commission ceased the direct administration of local relief July 1, 1936. Up to that time the Cook County Bureau of Public Welfare was the agency through which the State administered relief within Chicago and Cook county. Its employees were and are under civil service. (Ill. Rev. Stat. 1943, ch. 34, par. 67d [Jones Ill. Stats. Ann. 18.060].) Since July 1, 1936 relief of residents of Chicago has been administered by the Chicago Relief Administration, under the direction of the Commissioner of Relief. Respondents claim that he is the successor to the State commission. In 1932 the secretary (not a member) of the State civil service commission took the position that the employees of the State relief commission were not under the State Civil Service Act. In 1935 the Attorney General gave an opinion that such employees should be classified under the civil service law. This was never done. Respondents say “It is immaterial here whether or not the employees of the State commission should have been classified. The important fact here in seeking the intention of the legislature in providing for the creation of the Chicago Commissioner of Relief is that the employees of the State commission were actually not classified.” With this we cannot agree. Intent of the legislature cannot be predicated upon misinterpretation of the law (People v. Sergel, 269 Ill. 619, 624), and certainly not upon wilful disobedience of it. An examination of the-State Civil Service Act confirms the opinion of the Attorney General, which is in accord with the decision in Kraus v. Singstad, 275 N. Y. 302, holding that employees of the emergency relief agency of New York should be classified under civil service.

Neither can we give weight to respondents’ claim that the Chicago Commissioner of Relief is co-ordinate with the agencies established for towns or precincts. The latter agencies are created for governmental divisions of little population as compared with Chicago, and their problems and needs are. dissimilar to those of a Commissioner of Relief in a metropolitan area. This difference between the problems of Chicago and Cook county and the remainder of the State has long been recognized by the legislature and the courts and is evidenced by the number of 'statutes made applicable only to Chicago and Cook county by limiting them to cities or counties having a population in excess of 500,000. It was recognized in the Paupers Act, where three distinct agencies for relief were created. The reasons which might make civil service advisable and practicable in agencies of more than 2900 employees would hardly be applicable to agencies of one or not' more than 15 or 20 employees. No inference that the legislature intended to exclude the employees in the Chicago Relief Administration from the civil service law can be drawn because there is no civil service law applicable to employees of towns and precincts administering relief.

Respondents stress that part of section 17a which requires the city council to “provide by ordinance for the appointment of an overseer of the poor . . . and for such other employees and assistants as may be necessary to properly relieve and support the poor and indigent persons lawfully resident therein,” and say, “The legislature intended by this language to grant to the city council the power to provide for the appointment, the terms of employment, and the method' of obtaining and terminating the employment of employees and assistants.” In support of this position they quote from Chicago Dock & Canal Co. v. Garrity, 115 Ill. 155, 163, 164, where the court, in considering the phrase “to provide for . . . the location ... of any railroad,” in the Cities and Villages Act, said: “ ‘To provide for,’ implies, of necessity, power ‘to direct and control.’ ” They also cite cases from other jurisdictions where the word “provide” was used in a like connection. In all these cases the word was given a liberal interpretation to effect the purposes of the respective statutes. The same word may mean one thing in one statute and a different thing in another, dependent upon the connection in which the word is used, the object or purposes of the statute and the consequences which will probably result from the proposed construction. Gormley v. Uthe, 116 Ill. 643, 648. When section 17a was passed by the legislature the Civil Service Act had been in force in the City of Chicago over 40 years. Under it a method existed for providing a list from which employees and assistants to the Commissioner of Relief could be appointed, and a procedure had been established for terminating their employment. The Civil Service Act made no provision for determining the number of employees, fixing their compensation, hours, etc., and making appropriations for their payment. These matters were outside the Civil Service Act, and provision for them had to be made if employees and assistants were to be available to the Commissioner of Relief. In the absence of express language indicating the intent, it will not be presumed that the legislature intended to grant greater power to the city council in providing for employees and assistants than was necessary to effect the purposes of the statute, especially when, as respondents claim, the result will be to repeal by implication the earlier provisions of section 3 of the City Civil Service Act [Jones Ill. Stats. Ann. 23.042]. Repeals by implication are not favored. City of Chicago v. Hastings Exp. Co., 369 Ill. 610, 615. It is only when there is such a clear repugnancy between an earlier and a later statute that the latter cannot be carried into effect that the former is repealed or amended. People v. Burke, 313 Ill. 576, 579; People v. Illinois Cent. R. Co., 314 Ill. 339, 342. If two constructions are possible, the one which operates to support the earlier act must he adopted. People v. United Medical Service, Inc., 362 Ill. 442, 450; People v. Board of Education of Chicago, 349 Ill. 390, 400. If the two acts can stand together it is immaterial that the later act is special and the prior act is general. People v. Singer, 288 Ill. 113, 123. The city council did not interpret section 17a as giving it power to provide for the appointment and discharge of employees and assistants to the Commissioner of Relief independent of the Civil Service Act. In the ordinance creating the office it gave the commissioner power to appoint and to remove the appointees “according to law,” and the only law regulating the appointment and removal of the employees of the City of Chicago was the Civil Service Act.

Respondents cite McGann v. People ex rel. Simpson, 227 Ill. 567, and McGann v. People ex rel. Hansen, 228 Ill. 203, as completely supporting their contention. These cases relate to deputy clerks and deputy bailiffs of the municipal court of Chicago. The statute creating, the court provided that the clerk and bailiff should appoint such number of deputies as should be determined by a majority of the judges, and that such deputies should be subject to removal at any time by an order signed by a majority of the judges of the municipal court. The Supreme Court held that these deputies were not under civil service and that the statute was not open to construction. Neither of these cases, nor the case of People ex rel. Coleman v. Lipsky, 307 Ill. App. 137, relating to the employees of the Board of Election Commissioners of the City of Chicago, who are under the control of the county court, is applicable to the present case. In further support of their position respondents urge the doctrine of contemporaneous construction, the professional status of trained social workers and the non-application of civil service laws to persons on work relief. The rule of contemporaneous construction is restricted to doubtful cases (Chicago Title & Trust Co. v. Central Republic Trust Co., 299 Ill. App. 483, 496; County of Lake v. Westerfield, 273 Ill. 124, 130), where there is a “contemporaneous, long, uniform and practical construction.” Nye v. Foreman, 215 Ill. 285. These essentials are lacking in the present case.

Respondents say that the distribution of relief funds has been in the hands of trained social workers who have a professional status, and “the legislature may have believed that professional employees cannot be selected and controlled as efficiently under civil service laws as under the jurisdiction of the city council.” (Italics ours.) This argument is based on conjecture as to what the legislature may have believed. Furthermore, there is nothing in the qualification of these workers and the nature of the work done by them which would make selection by fitness, ascertained by competitive examination, undesirable or impracticable. The employees of the Cook County Bureau of Public Welfare are under civil service. They handle not only relief for needy and indigent persons under the Paupers Act, but perform other social aid and welfare services requiring at least equal training and fitness. (Ill. Rev. Stat. 1943, ch. 34, pars. 67a-67j [Jones Ill. Stats. Ann. 18.057-18.065, 67j repealed].) Social workers performing similar services in New York are under civil service. Kraus v. Singstad, 275 N. Y. 302. The question of the application of the civil service laws to persons on work relief is not involved. The employees and assistants engaged in administration of relief in Chicago, for whose salaries appropriations are made by the city council, are not needy and indigent persons to whom the Chicago Relief Administration is furnishing aid and support. Their salaries are not determined on a relief basis. Social Investigator Eligibles Ass’n v. Taylor, 268 N. Y. 233. The position of respondents is not tenable. The employees and assistants of the Chicago Commissioner of Relief should be classified under civil service. The trial court erred in sustaining the motion to strike and dismissing the petition.

The judgment is reversed and the cause remanded.

Reversed and remanded.

O’Connor, P. J., and Hatchett, J., concur.


text:
    Ida Yedor, Appellee, v. Chicago City Bank and Trust Company, Individually and as Trustee, etc., et al., Appellants. Eugene Rodin et al., Appellees, v. George O. Carlson et al., Appellants. Ida Yedor, Appellee, v. Chicago City Bank and Trust Company, Individually, Appellant.
    Gen. Nos. 42,396, 42,397, 42,543.

      Opinion filed May 1, 1944.
    Rehearing denied May 15, 1944.
    Rathje, Hinckley, Barnard & Kulp, of Chicago, for appellants; Franklin J. Stransky and Francis E. Hinckley, both of Chicago, of counsel.
    Bernard Yedor and Charles Liebman, both of Chicago, for certain appellee.
    Alster, Berger & Wald, of Chicago, for certain other appellees.

      Rempert & Wahler, of Chicago, for certain other appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Five appeals have been taken in this case. Plaintiff as owner of 5/1360ths interest in real estate in Chicago improved by an apartment and store building, title to which was held by the Chicago City Bank and Trust Company (hereafter called the bank), as trustee, instituted a partition proceeding; she later filed her supplemental complaint for partition, for removal of the trustee and for an accounting. The court overruled defendant’s motion to strike the supplemental complaint and allowed plaintiff’s motion for judgment on the pleadings. By decree of July 23,1940 the court ordered partition and fixed the interests in the property in equity in fee simple as follows: Plaintiff— 5/1360ths; defendant Goldstein — 15/1360ths; and defendants Carlson, Kingsbery and Ttterberg the remaining 1340/1360ths. This decree was affirmed by the Supreme Court (Yedor v. Chicago City Bank & Trust Co., 376 Ill. 121.) There was no disposition of or reference to that part of the supplemental complaint calling for the removal of the trustee and for an accounting. After remandment to the trial court an order was entered July 10, 1941 awarding plaintiff $8,155 for attorneys’ fees (more than 20 times the value of her interest — under $400, based on the commissioners’ appraisal of the property at $91,000), and $900 to the commissioners — one of whom was a deputy clerk and another the bailiff assigned to the court of the trial judge. July 16,1941 an order of sale was entered requiring any purchaser at the sale to deposit with the master cash, or a certified or cashier’s check in the amount of 10 per cent of his bid, notwithstanding Carlson, Kingsbery and Ttterberg were found by the decree, as affirmed by the Supreme Court, to own over 98 per cent of the property being sold. On appeal from these orders a conference of the parties was had in the early part of December 1941, at the suggestion of the second division of this court, to which the case had been1 assigned, and as a result a stipulation was entered into by plaintiff and Carlson, Kingsbery and Ytterberg whereby the, appeal was dismissed and it was agreed that no rights would be claimed under the order allowing the fees but that these matters would be submitted for adjudication without prejudice, and that the order of sale be amended so that if parties in interest such as Carlson, Kingsbery and Ytterberg were successful bidders they should not be required to deposit with their bid an amount greater than the aggregate sum which all other parties in interest would be entitled to receive from the sales price, even though the deposit should be less than 10 per cent of the amount bid. On January 2, 1942 the order of sale was amended accordingly, but no sale was had or attempted to be had under the amended order. On the same day an order was entered reciting that the default theretofore entered against Eugene Rodin (who claimed he had been made a party as unknown owner), be vacated as to all matters not theretofore adjudicated in the decree of partition, to the end that Rodin might “appear and defend with regard to the rights and liabilities existing between him, on the one hand, and Carlson, Kingsbery and Ytterberg and the Chicago City Bank and Trust Company on the other,” and that Rodin be given leave to file his answer and cross complaint. From this time plaintiff yielded the initiative and Rodin became the director of the proceeding; he filed his answer and a counterclaim and later succeeded in having 38 persons join with him as counterclaimants in an amended and supplemental counterclaim; while the motions for leave to these additional parties to appear were pending, a petition for change of venue from the trial judge and one other judge was filed by the bank, Carlson, Kingsbery, Ytterberg and four other defendants to the supplemental complaint; Bodin and the other 38 persons, who had not yet become parties to the cause, filed a motion to strike the petition; an order was entered April 24, 1942 sustaining plaintiff’s motion (not shown by the record) to strike the petition and denying the change of venue; July 2, 1942, on motion of plaintiff, Bodin, and the 38 other owners who had been permitted to intervene and who, with Bodin, had filed an amended- and supplemental counterclaim, a third1 order of sale was entered, together with an order declaring rights with relation to bidding at the sale in the counter claimants. These orders violated the stipulation upon which the order of sale of January 2,1942 ivas entered and the conditions upon which intervention was permitted. Counter-claimants seek to justify their position by claiming they were not parties to the stipulation. From these orders the bank, Carlson, Kingsbery and Ytterberg (counter-defendants) appealed. July 13, 1942, on motion of counterclaimants, concurred in by the plaintiff, an order was entered removing the bank as trustee under Trusts 1090 and 2738 (explained more fully hereafter), and appointing a successor trustee in Trust 1090. From this order the bank appealed. September 26, 1942 on motion of plaintiff, the bank was ordered to pay to the master in chancery $586.52 to reimburse the master for obligations alleged by the plaintiff to have been incurred by the master in advertising the property for sale under the order of July 16, 1941. The bank appealed from this order. These appeals have been consolidated and motions to dismiss each appeal or, in the alternative, to transfer the two appeals first taken to the Supreme Court, have been reversed for final hearing.

In this court plaintiff joins with the counter claimants in the motions relating to the two appeals from the orders decreeing the sale, fixing the rights of connterclaimants with relation to bidding on the sale and removing the bank as trustee; she yields to counter-claimants the defense of these orders on the merits and adopts the points, authorities and arguments of counterclaimants ; she argues only the merits on the appeal with respect to the order of payment of money to the master, in which appeal she also made a motion to dismiss.

As appears from the opinion of the Supreme Court, the bank first acquired title to the property involved August 15, 1926, as trustee under a trust deed given to secure certain serial bonds; default having been made, the property was deeded to the bank August 15, 1932, as trustee under Trust 1090 for the benefit of the bondholders, all of whom deposited their unpaid bonds, which aggregated $136,000, and received certificatés of interest — one share or unit for each $100 par value of bonds deposited; the trust agreement and the certificates of interest contained provisions that the holders of beneficial interests had no right, title or interest, legal or equitable in or to any of the property covered by the trust agreement, but only an interest in the net income, proceeds and avails thereof, and that such interest shall be conclusively deemed and taken to be personal property. By the terms of the agreement the property was to be sold not later than August 15, 1939, and neither the managing committee provided for in the agreement nor any other person was given any power to continue or postpone the sale beyond that date. No sale was made within the time limited. On August 14, 1939 (the day before Trust 1090 expired), the bank, managing committee, assenting beneficiaries of the trust and a certificate holders’ committee, consisting of Carlson, Kingsbery and Ytterberg, entered into a new trust agreement — Trust 2738; this trust was to last 10 years, and under it all former certificate holders were to deposit their certificates with the bank and sell them to the certificate holders’ committee, which was to purchase the real estate from the bank and reconvey it in trust for the assenting certificate holders; all certificate holders assented except plaintiff and defendant Goldstein — holding respectively 5 and 15 units; on December 6, 1939, the day plaintiff instituted this partition proceeding, the bank sold the premises for $13,600 (one-tenth of the par value of outstanding certificates) to Carlson, Kingsbery and Ytterberg, who acted under Trust 2738 and reconveyed to the bank as trustee under that trust; in the partition proceeding the bank sought to have Trust 2738 and the sale and conveyance made in order to effectuate the trust approved and to compel the plaintiff to elect whether she would accept five shares under Trust 2738 or $50 in cash. The Supreme Court said (376 Ill. at p. 131): “They (the bank and the certificate holders’ committee) had no power to compel appellee to either enter into a new trust agreement, to accept a new certificate for five shares or to accept ten cents on the dollar. The bank’s authority had ended and Avhether it can be said that there can be a breach of a terminated trust, the agreement dated August 14, 1939, and the subsequent sale, conveyance and reconveyance, were void.” Counterclaimants, who were not then before the court and who had assented to the formation of Trust 2738 and surrendered their certificates of interest under Trust 1090 and received certificates under Trust 2738, now take the position that the Supreme Court has finally and conclusively adjudicated the latter trust to be void as to them and all other holders of beneficial interests. This is an erroneous construction of the opinion. The Supreme Court had before it only the rights of nonassenting certificate holders and was deciding only the matters in issue. In Aloe v. Lowe, 298 Ill. 404, 408, 409, the court said: “It is well settled that a decree is to be construed with reference to the issues it was intended to decide, and if its language is broader than is required it "will be limited by construction so that its effect shall be such, only, as is needed for the purposes of the case that has been made and the issues that have been decided. (City of Vicksburg v. Henson, 231 U. S. 259; Graham v. Chamberlain, 3 Wall. 704; Doscher v. Blackiston, 7 Ore. 403; Clay v. Hildebrand, 34 Kan. 701.) ” To the same effect is People v. LaMothe, 331 Ill. 351, 357. The same rule of construction was applied to opinions of the Supreme Court in People v. Wethel, 202 Ill. App. 77, and People v. Grant, 208 Ill. App. 235 (affirmed in 283 Ill. 391.) No legal impediment is urged by counter claimants'and none is suggested by the record before us to prevent assenting certificate holders, the bank, Carlson, Kingsbery and Ytterberg entering into Trust 2738 and continuing it as to the interests owned by them.

The motions to dismiss the appeals taken from the orders of July 2 and July 13, or in the alternative to transfer each of the appeals to the Supreme Court, were filed by counterclaimants and concurred in by plaintiff and Elmer Haserodt (one of more than 100 persons made defendants to the amended and supplemental counterclaim as holders of beneficial interests under Trust 2738). As to the first appeal it is suggested that the decree of sale — the principal order appealed from, is not a final or appealable order. The authorities are in conflict as to whether an appeal lie's from such an order. 40 Am. Jur., Partition, sec. 82. In Bergman v. Rhodes, 334 Ill. 137, an appeal prosecuted from an order affirming the report of the commissioners and decreeing a sale was considered by the Appellate and Supreme Courts, no objection having been made. By the decree and a prior order on which it is based the court determined that the property was not susceptible of division and directed that it be sold. If affirmed the trial court has only to proceed with its execution. It therefore has the essential elements of finality. Groves v. Farmers State Bank of Woodlawn, 368 Ill. 35; Kawszewicz v. Kawszewics, 385 Ill. 461. In the present case, concurrently with the entry of the decree of sale an order designated as a supplementary order was entered which definitely fixed the rights of counterclaimants in bidding at the sale. The right to appeal from this order is not questioned. Such appeal would be futile if a sale was had pending the appeal. No authorities are cited in support of counter-claimants’ contention that the order removing the trustee is not appealable, and no substantial argument is made in support of the position taken. We see no reason to hold that it is an order from which the bank, ousted as trustee, cannot appeal. The objection that both appeals should be dismissed for uncertainty as to the party appealing because the notices were signed by the bank as trustee, without designating the trust under which the trustee is acting, is hypercritical and will be ignored.

The only other ground for dismissing these appeals which needs consideration is that no notice of appeal was served on Elmer V. Haserodt. He and Elsie Gr. Haserodt were made parties defendant to the amended and supplemental counterclaim as joint trust beneficiaries under the trusts involved; on July 3, the day on which notice of appeal from the orders of July 2 was served, Haserodt entered1 his appearance and filed an answer neither admitting nor denying any of the allegations of the amended or supplemental counterclaim, except to admit that he is a beneficiary of the trust (without stating the extent of his interest), but demanding strict proof thereof. It does not appear that defendants and counter-defendants appealing had actual notice of his appearance and answer. He is the only one of more than 100 persons, alleged to be beneficial owners under the trust and made defendants to the counterclaim, who has appeared; he prayed for no relief and has taken no action in the case except to join in counter-claimants’ motion to dismiss the appeals. While, as counter-defendants insist, suspicion may rightfully be aroused1 as to why Haserodt entered his appearance at the time and in the manner shown, his interest does not appear to be sufficiently adverse to that of counter-defendants appealing to cause dismissal of the appeal. The motions to dismiss these appeals are denied.

The alternative motions to transfer the appeals to the Supreme Court are based on the claim that a freehold is involved in each appeal. Counter-defendants base their appeal solely upon questions of practice, namely, that the trial court erred in permitting counterclaimants to intervene and in denying the petition for change of venue. The right to appeal to the Appellate Court in such cases has been decided a number of times. In Miller v. Kensil, 223 Ill. 201, a partition suit, the court said’: “Appellant only urges a question of practice, — that the court improperly struck his plea in abatement from the files. When such questions only are raised the appeal should be taken to the Appellate Court. (Fread v. Fread, 165 Ill. 228.) The fact that a freehold has been involved in a suit does not determine the question of jurisdiction upon appeal. The freehold must not only be involved in the original decree but also in the questions to be determined on the appeal, in order that this court may have jurisdiction. Hutchinson v. Spoehr, 221 Ill. 312; Prouty v. Moss, 188 id. 84; In re Estate of Ross, 220 id. 142; Douglas Park Building Ass’n v. Roberts, 218 id. 454; Franklin v. Loan and Investment Co., 152 id. 345.” The alternative motions to transfer the appeals are denied.

In respect to the right of counterclaimants to intervene, the record shows that in Rodin’s petition for leave to appear and defend, filed December 30, 1941, it is stated on the oath of his attorney that up to November 3,1941 Rodin “had no knowledge of the pend-ency of the proceedings herein, having been made party defendant hereto only by the name and description of ‘unknown owners,’ ” and “that he accepts and adopts all of the proceedings heretofore had herein, including the decree of partition heretofore had herein, except that he desires to have his rights determined as between him and the defendants Carlson, Kingsbery and Ytterberg, and the Chicago City Bank and Trust Company, as trustee under Trust No. 1090, and as trustee under Trust No. 2738.” And by his counterclaim for dissolution of the trust, for accounting, for removal of trustees, for appointment of successor trustees and for appointment of receiver, filed January 6, 1942, it is stated on the oath of the same attorney that Mary Steffen, a widow, departed this life April 7, 1935, leaving, among other properties and assets, a certificate for five shares of beneficial interest in and to Trust 1090; that her administrator surrendered that certificate in exchange for a new certificate for five units of beneficial interest in Trust 2738; that pursuant to an order of the probate court of Cook county entered Novembpr 17, 1941, the administrator sold, assigned and conveyed his interest in and1 to the certificate under Trust 2738 to Rodin, and that on December 3 and December 15, 1941, certain heirs of Mary Steffen conveyed and quitclaimed to Rodin their right, title and interest in and to the real estate which is the subject of this proceeding, and that at the time of the filing of the counterclaim the remaining heirs of Mary Steffen, deceased, had committed themselves to convey and quitclaim to Rodin within a short date their right, title and interest in and to real estate involved herein. The interest claimed to have been acquired and expected to be acquired by Rodin cannot exceed in value the interest of the plaintiff, which is not in excess of $400. With his maximum recovery limited to this comparatively small amount, Rodin claims to have acquired an insignificant interest —less than one half of one per cent — in property involved in litigation, employs attorneys, files an answer and counterclaim, procures by order of court a list of beneficiaries under Trusts 1090 and 2738, corresponds with all the persons named as beneficiaries, joins with those whom he succeeds in getting to unite with him in an amended and supplemental counterclaim, based primarily upon alleged frauds perpetrated prior to the acquisition of his interest, and then assumes the laboring oar on the appeals to this court. Unless we reject all our experience we can reach no conclusion other than that Rodin acquired his insignificant interest solely for the purpose of injecting himself into this litigation and directing it for some advantage to himself or others beyond the realization of the actual value of the interest he now claims to own. Courts should not encourage such intermeddling in litigation. The situation is similar to that in Langson v. Goldberg, 373 Ill. 297.

It appears affirmatively from Rodin’s petition and counterclaim and the answer of counter-defendants thereto that Rodin and each of the other 38 counter-claimants entered this case as persons who had theretofore been made defendants to the original complaint, as amended, under the name, style and description of unknown owners. Their right to appear as unknown owners is limited to within one year from the entry of the decree, (Ill. Rev. Stat. 1943, ch. 110, par. 174, sub-par. 8 [Jones Ill. Stats. Ann. 104.050].) By analogy, by former section 19 of the Chancery Act (Busby v. Maus, 294 Ill. 401, 406; Barney v. Froehlich, 286 Ill. App. 41.) The decree involved is a decree of partition entered July 23, 1940, which definitely fixed the interests of the various persons in the property and ordered partition. The first petition to intervene — that of Rodin, was not filed until December 30, 1941 and, therefore, after the decree had become fixed as against Rodin, his grantors and1 the remaining counterclaim-ants. After stating in their brief, “The counter-claimants do not rely and never have relied on subdivision 8 of section 50 of the Civil Practice Act as a basis for their right to appear and be heard in this proceeding,” connterclaimants assert the right to intervene under sections 14, 15, 31 and 39 of the Partition Act (Ill. Rev. Stat. 1943, ch. 106 [Jones Ill. Stats. Ann. 109.462, 109.463, 109.479, 109.488]), and under sections 4, 25 and 26 of the Practice Act (ch. 110, pars. 128, 149 and 150 [Jones Ill. Stats. Ann. 104.004, 104.025, 104.026]), as well as under the general chancery practice. Section 14 of the Partition Act provides: “During the pendency of any such suit, any person claiming to be interested in the premises to be assigned or aparted, may appear and answer the petition and assert his or her rights by way of inter-pleader.” Rodin in his petition to intervene “accepts and adopts all the proceedings heretofore had, including the decree of partition,” and the order permitting him to intervene vacated the default against him “as to all matters not heretofore adjudicated in said decree of partition.” Rodin therefore is in no position to open that part of the decree, affirmed by the Supreme Court, fixing 1340/1360ths interest in the property in equity in fee simple in Carlson, Kingsbery and Ytterberg. The remaining counterclaimants who sought leave to appear and join in the amended supplemental counterclaim of Rodin could not enlarge the rights of Rodin but were bound to accept the case in the condition in which they found it. In re Estate of Blyman, 382 111. 520, and cases cited. Further, Rodin came in after the decree of sale entered July 16, 1941, and the other counterclaimants came in after the amended decree of sale, entered January 2,1942. This was too late. In Haase v. Haase, 261 Ill. 30, a partition suit, where a party claiming an interest in the property sought to intervene after decree of sale, the court said: “It was only after the entry of the decree of sale that he asked to intervene, and it was then too late. There was no longer any cause in which to intervene. It was ended. An intervention implies a suit pending between parties in which another applies to be heard. After a canse has been heard and determined between the parties there can be no intervention by a third person. Whatever rights another may then have in the subject matter of the controversy must be enforced by an original proceeding. That course is still open to the appellant.” • To the same effect is In re Estate of Reemts, 383 Ill. 447, and cases cited. The provisions of the Practice Act relied upon by counterclaimants do not aid them. Section 4 requires that the act be liberally construed. Section 25 permits the court to direct the bringing in of persons without whose presence a complete determination of the controversy cannot be had, and section 26 permits the adding of new parties as the needs of justice may require. These sections added nothing to the existing law on the subject of intervention. Bernero v. Bernero, 363 Ill. 328; Hairgrove v. City of Jacksonville, 366 Ill. 163. Counterclaimants have no rights involved in the partition suit, unless they open up the decree of partition which became fixed as to them long before they sought to intervene. This should not be permitted. Whatever rights counterclaimants may have for an accounting and removal of the trustee are independent of the partition proceeding and will survive it. There are no allegations of insolvency of the counter-defendants or of other facts which would require the proceeds of the partition sale to be retained under the control of the court for the protection of the interests of persons claiming under either trust. The cases cited above show that counterclaimants had no right to intervene under general chancery practice.

Pending application of the 38 counterclaimants, other than Rodin, to intervene, a petition for change of venue was filed, signed by the bank, individually and as trustee under Trusts Nos. 1090 and 2738, Arthur G. Rathje, W. W. Beymer, Charles Palmer, Frank J. Burke, George 0. Carlson, Howard G. Kingsbery and Victory E. Ytterberg; it was sworn to by Arthur G. Rathje, who stated under oath “he is one of the above named petitioners and has signed the foregoing petition by and with the consent of the said other petitioners and said other petitioners have joined therein by signing the same.” This petition was stricken and the change of venue denied. The petition was signed by 10 of the 11 parties defendant to the original and supplemental complaint for partition; it was signed by 8 of the 10 parties made defendants to the amended1 and supplemental counterclaim subsequently filed. The pertinent parts of the Change of Venue Act are sections 3 and 9 (Ill. Rev. Stat. 1943, ch. 146 [Jones Ill. Stats. Ann. 107.318, 107.324]). Section 3 requires every application for change of venue to be made by petition, which shall “be verified by the affidavit of the applicant.” Section 9 provides, “When there are two or more plaintiffs or defendants, a change of venue shall not be granted unless the application is made by or with the consent of at least three-fourths of the parties, plaintiff or defendant, as the case may be. . . . ” In considering this statute in the case of People v. Scott, 326 Ill. 327, 341, a civil proceeding to determine the sanity of defendant, the court said: “The spirit of our laws demands that every case, whether a statutory proceeding or otherwise, shall be fairly and impartially tried, and no judge should think of presiding in a case in which his good faith in so doing is open to such serious question as that presented by this record. These provisions of the statute should receive a broad and liberal, rather than a technical and strict, construction, and should be construed so as not to defeat the right attempted to be attained therein.” All that the statute requires where there are two or more defendants, as in this case, is that three fourths of the defendants consent to the change of venue. Here the requisite number signed the petition, thereby signifying their consent as strongly as though all the defendants, other than Rathje who swore to the petition, had signed and filed a separate writing in which they expressly consented. The truth of the petition was sworn to by Rathje, who stated under oath that he signed it by and with the consent of the other petitioners. This was sufficient. People v. May, 276 Ill. 332 (affirming 198 Ill. App. 625), cited by counterclaim-ants, merely holds that for want of a bill of exceptions the record did not present any question concerning the motion for change of venue. It follows that the question was not before the Appellate Court, which decided the case on the same record. However, it is readily distinguishable. In speaking of the petition there involved the Appellate Court said (630): “It purports to have been made by Thomas May, Jr. on behalf of himself and his codefendants Hurras and Meints and is sworn to by May alone. It does not state that it is made at the request of Hurras and Meints or with their knowledge or consent.” It cannot be said that the petition was filed too late. The partition proceeding had long been disposed of except for the sale, which plaintiff showed no disposition to hasten, except in conjunction with counterclaimants, who sought to set aside the decree of partition; 38 counterclaimants were seeking to intervene and inject into the case certain charges of fraud perpetrated upon each of them, and for an accounting, etc. This was a new matter, collateral to the main issue, and the petition for change of venue filed before hearings on the petition to intervene were commenced was in apt time. Des Chatelets v. Des Chatelets, 292 Ill. App. 357; Jackson v. Jackson, 294 Ill. App. 508.

This leaves for consideration the appeal from the order directing the bank to pay to the master $586.52, representing obligations incurred by the master in advertising the sale of the property under the order of June 16, 1941. .The master is not seeking this relief. It was sought by plaintiff, who has no interest in the matter. Her petition does not state that the master has paid the bills. Plaintiff’s sole argument is that the order is only for costs, and not appealable. The amount had not been taxed as costs and, if the averments of the bank’s answer are sustained on a hearing there may be a question whether the sum should be taxed as costs. The order was a direction to pay a specific sum, and therefore appealable. People v. Prendergast, 117 Ill. 588; People v. Illinois State Bank of Crete, 312 Ill. 613. The motion to dismiss this appeal is denied.

Finally, as all the orders appealed from were entered after the court had wrongfully refused to grant the motion for change of venue, they must be regarded as nullities and should be rescinded. Wendt v. City of Elgin, 264 Ill. App. 433. Accordingly, each of the orders appealed from is reversed. The cause is remanded with directions to grant the change of venue, to rescind all orders entered subsequent to the filing of the petition for change of venue, and to proceed in accordance with this opinion.

Reversed and remanded with directions.

O’Cohnor, P. J., and Matchett, J., concur.


text:
    Ethel O. Henderson et al., Appellees, v. Bankers Life and Casualty Company, Appellant.
    Gen. No. 42,472.

      Opinion filed May 1, 1944.
    Hubert Lee Steed and Meter A. Ginsburg, both of Chicago, for appellant.
    Sidney J. Sparberg, of Chicago, for appellees.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Defendant appeals from a judgment entered against it in favor of fifteen plaintiffs — beneficiaries under a like number of life insurance policies issued by the Lafayette Mutual Benefit Association (hereafter called the Lafayette) and reinsured conditionally by the Jefferson National Life Insurance Company (hereafter called the Jefferson), whose obligations and liabilities were assumed by the defendant.

The motion of plaintiffs to strike from the record the report of the proceedings before the trial court has been reserved to the hearing. The ground of the motion is that the report was not submitted to the trial judge for his certificate and filed in the trial court within the time prescribed by the rules of the Appellate Court. It appears from the record that a written order that the original copy of the proceedings at the trial be incorporated in the record on appeal, entered in the trial court, bears the O. K. of plaintiffs ’ counsel. Plaintiffs are therefore estopped to say that the record was not properly signed by the trial judge and filed in apt time. Fedorchak v. Jeffers, 287 Ill. App. 457; Madden v. City of Chicago, 283 Ill. 165. The motion is denied.

The case was tried before the court without a jury upon a third amended complaint, alleging that the plaintiffs severally are beneficiaries under policies issued by the Lafayette during the years 1934, 1935 and 1936 upon the lives of certain assureds, each of whom died between June 16, 1938 and July 16, 1938; that on June 16, 1938 the Lafayette entered into a contract with the Jefferson, a copy of which is attached as an exhibit to the complaint, whereby the Jefferson assumed and agreed to pay any liabilities due under the Lafayette policies; that the Jefferson paid each of the plaintiffs as beneficiaries of the respective policies under which each was claiming, a sum less than was provided in the policies; that on account of the subsequent insolvency of the Jefferson, the defendant, on February 1, 1940, under an agreement with the Jefferson, approved by the director of insurance of the State of Illinois, assumed and agreed to pay any and all liability of the Jefferson. Defendant does not contest its liability for the Jefferson obligations under the reinsurance contract. In its answer it states that this liability is restricted by section 7 (d) of that agreement and has been fully discharged by payment to the respective plaintiffs of the amounts admitted to have been received by them, and further, that such payments constituted1 an accord and satisfaction.

The material provisions of the reinsurance contract between the Lafayette and the Jefferson are: Section 1, “The Jefferson does hereby reinsure and assume, on the effective date of this agreement, subject to the terms and conditions and provisions and only to the extent herein provided, the liability of the Lafayette under all the Certificates . . . .” Section 2, “. . . As of the assumption date of this agreement the1 members of the Lafayette shall become members of the Jefferson upon the terms and conditions hereinafter set forth in this agreement and . . • . subject to all the terms and conditions of this agreement.” Section 4 (after reciting the transfer, assignment and delivery to the Jefferson of all the assets of every kind and nature of the Lafayette), “In consideration thereof, the Jefferson promises fully to discharge every legal or equitable obligation or liability of the Lafayette, provided, however, that the policy obligations and liabilities hereunder are assumed by the Jefferson only on the terms and conditions herein set forth.” Section 7 (d), 1‘ The liability assumed by the Jefferson with respect to any member of the Lafayette under any certificate of membership hereby reinsured is to be in accordance with such certificate of membership as of the effective date of this reinsurance contract, provided that the member pays to the Jefferson the required premium as of his attained age nearest birthday on the effective date of this contract, for the amount of insurance specified in his certificate according. to the "monthly premium rates for $100 of insurance shown in the following schedule. The amount of insurance referred1 to above is the face or ultimate amount not restricted or limited by the grading of benefits. Since the membership of the Lafayette has been accustomed to paying a monthly premium of $1.00, the member is hereby given the option of continuing to pay $1.00 per month and maintaining his certificate in force for the amount of insurance purchased by $1.00 per month at his attained age nearest birthday on the effective date of this contract, in accordance with the following schedule. In such event this amount shall not change during the lifetime of the member. (Schedule.) The payment of the first premium within thirty days after the assumption date shall constitute an election by the member to maintain the amount of insurance hereunder according to the benefits specified in his certificate of membership or to decrease his insurance to the amount which the premium of $1.00 per month will buy as of the attained age of the member.”

On June 16 or 17,1938, the Jefferson mailed to each policyholder of the Lafayette in good standing a certificate of assumption, reciting on the first page that the designated certificate issued by the Lafayette has been assumed by the Jefferson, “subject to the terms and conditions of said certificate and the reinsurance contract recited on the succeeding pages hereof, effective as of midnight June 16, 1938.” On pages 2 and 3 following appeared the contract of reinsurance. Each of the assureds made payments of $1.00 after June 16 and before their respective deaths, which occurred prior to July 16,1938; settlements were made with all beneficiaries by paying each the full amount of insurance purchasable for $1.00 per month, as provided in section 7 (d) of the contract of insurance, by a check bearing on its face, “In full settlement on life of (blank), insured,” accompanied by a letter stating that payment was “in full of the company’s liability.” The plaintiffs received the money on the checks and surrendered the policies, each of which bore an indorsement by the respective beneficiary of receipt of the sum named in the check in full payment of all benefits due and payable under the policy surrendered by the beneficiary. This action was commenced about two years after acceptance of these payments.

By the amended complaint plaintiffs ’ action is based upon the contract of reinsurance. At the commencement of the trial plaintiffs’ counsel stated that they were not suing on the certificates; that the contract of reinsurance was the basis of the action. They say here that “The basic issue involved herein is rather whether the attempt by Jefferson to Limit its liability in the reinsurance agreement during the lifetime of the assureds, was binding upon them so as to limit the amount due the beneficiaries under the original certificates of insurance issued by Lafayette.”

In Weil v. Federal Life Ins. Co., 264 Ill. 425, an action by a beneficiary against the reinsurer, the court said (433): “The Inter-State Insurance Company (original insurer) could not transfer its liability to the defendant and compel Weil to accept it as an insurer. . . . But Weil had his election to repudiate the transfer if he saw fit or to accept the obligation imposed upon the defendant by its contract. (4 Cooley’s Briefs on Insurance, 3942.) ” In 29 Am. Jur., Insurance, sec. 1366, the author says: “. . . the general rule is that the reinsurer is liable either under its reinsurance contract or upon a subsequent agreement with the original insured; ... In some cases, however, under the contracts of reinsurance, the reinsurer, as a result of the construction of the reinsurance contract, has been held liable for a smaller amount than that provided for by the original policy. ’ ’ In Garretson v. Western Life Indemnity Co., 175 Iowa 172, where the judgment, entered on a directed verdict against the insurer in the sum of $308.37 on two policies issued by the original insurer in the sum of $4,000, was affirmed, the court said (177): “The general rule as to reinsurance contracts is that the reinsurer is to be held liable either under its reinsurance contract or upon a subsequent agreement made between it and the assured, and the assured has the right to accept the reinsurance offered him, or to sue the original company for damages.” To the same effect is Northwestern Nat. Life Ins. Co. v. Gray, 161 Fed. 488. The case of Roper v. Columbian Circle, 113 Kas. 280, is very much like the present case. The insured obtained a benefit certificate for $2,000 from The Sons & Daughters of Justice, a fraternal beneficiary society, naming her husband as beneficiary ; about 20 years later, the society being in financial difficulties, a receiver was appointed and took charge of all the assets and affairs of the society; shortly thereafter a contract of reinsurance was entered into whereby the Columbian Circle agreed to insure the living members of the several classes of The Sons & Daughters of Justice; this agreement was brought about under the supervision of the court and was approved by the insurance departments of Kansas and Illinois, the states of organization of the insurer and reinsurer; all assets of the society were delivered to the defendant; the insured died before the rerating of the assessments and benefits for members of the society had been made; defendant calculated that the insured was entitled under the reinsurance contract to $504.03; plaintiff, the husband of insured, accepted the sum and signed the receipt acknowledging payment in full of the benefit due and delivered the certificate to the defendant; he later brought suit to recover $1,425 upon the certificate; the trial court directed a verdict for the defendant. The Supreme Court held that the liability of the defendant must be measured under the contract of reinsurance and that the only right which plaintiff had against defendant was the enforcement of the obligations assumed in that contract. The reinsurance contract contained a provision for rerating the members of the society at their attained ages at rates based on the American Experience Tables of Mortality, and that members electing to pay their former contribution or assessment rates should receive benefits in the proportion of their contributions to the rates based on the American Experience Tables of Mortality. The amount due under this provision was the amount paid to the husband and accepted by him. The Supreme Court said1: “Under the contract and without regard to the effect of the release executed by the plaintiff, he was entitled to claim no more from the defendant than it had agreed to pay, and that amount having been paid, the court properly directed a verdict in favor of the defendant.”

Plaintiffs rely principally upon Wallace v. Commercial Life Ins. Co., 271 Ill. App. 291. The Commercial entered into a contract of reinsurance with the International Mutual Union, the original insurer; January 2, 1931 it mailed a rider of assumption to Lena M. Wallace, the insured and wife of the plaintiff, substantially the same as the certificate of assumption in the present case, except that neither a copy of the reinsurance agreement nor a statement of its limitations, restrictions, conditions and provisions relied upon as affecting the liability of the Commercial and reducing the amount of the insurance was given to the insured ; assessments levied on the Wallace certificate were all paid up to the death of Lena Wallace on March 3,1931; the Commercial offered to pay $134.33, in accordance with its interpretation of the limitations contained in section 6 of the insurance agreement, instead of the $1,000 stated in the certificate; judgment for plaintiff for $1,000 was affirmed. In determining the rights of the insured the Appellate Court held that neither the insurer nor the reinsurer could take any action which would impair the contract of the certificate holder unless the certificate holder consented to the change (citing Jones v. Loaleen Mut. Benefit Ass’n, 337 Ill. 431, and York v. Central Illinois Mut. Relief Ass’n, 340 Ill. 595), and that in all the communications to Lena Wallace, the policyholder, there was no reference to any change in the terms of the certificate; that there was no proof of any intention to accept the terms of the new certificate. In determining the liability of the defendant as reinsurer, the court said (295): “The Commercial Life Insurance Company having contracted to take over the assets and assume the liabilities of the International Mutual Union, became primarily liable on the original certificate . . . .” The provisions of the contract of reinsurance are not set out in the opinion, but it is stated that the Commercial entered into a reinsurance agreement “whereby the said Commercial Life Insurance Company agreed to reinsure all certificates of membership of International Mutual Union that were in full force and good standing, subject however to the limitations, restrictions, conditions and provisions contained in the reinsurance agreement. ’ ’ The conclusion of the court that the reinsurer contracted to' assume the liabilities of the original insurer ignores whatever limitations;, restrictions or conditions benefiting the reinsurer were to be found in the contract. No authorities are cited and no reason is given to justify doing so. A policy of insurance cannot be altered without the consent of the insured. An insured cannot be compelled to accept a contract of reinsurance, but it does not follow that he can accept a part of it and reject other parts; that he can impose upon the reinsurer the burdens of the contract and deny it the benefit of the provisions which lighten the load it is to carry. If, as plaintiffs claim, the insured1 under the policies here involved have made no election to accept the reinsurance contract, the plaintiffs, like the insured, must accept or reject it as a whole. Bringing suit upon it is. an acceptance of it, and plaintiffs are bound by all its terms.

The Jones and Yorh cases, cited in the Wallace case, do not support plaintiffs’ theory. The cases are practically identical. They are not reinsurance cases. The action in each was based upon a certificate issued by a mutual benefit association, incorporated under the Corporation Act of 1872 as a corporation not for pecuniary profit, which was required to reincorporate under certain legislative acts of 1927; the old certificates were for larger sums than was permitted under the later legislation and the reincorporated companies sought to limit their liability to the smaller sums payable under the new legislation. The Supreme Court in each case held that the contract with the insured could pot be changed without his consent ánd, as said in the Jones case (440): “We agree with the statement of the Appellate Court in this connection, that ‘the legislature intended that if an existing corporation under the act of 1872 desired to be re-incorporated under the act of 1927 it might do so, and having reincorporated, its liability under existing insurance contracts should continue, but that as to all new business the policies issued should be in accordance with the limited liability fixed by the act of 1927.’ ” Nothing that is said in either case is inconsistent with the position we take, that in bringing suit upon the reinsurance contract, and thereby accepting it, plaintiffs are bound by its terms.

The position taken by the defendant that its liability on the policies here involved was for a sum less than the face of the policies, to be determined by a rerating of the assureds under the provision of the reinsurance contract, was not arbitrary and baseless. The contract was drawn to protect the Jefferson in this respect, and it consistently adhered to its position. Acceptance by the respective plaintiffs of the amount due under the several policies according to defendant’s construction of the reinsurance contract and its liability thereunder, in full settlement of all claims under the policies surrendered by each plaintiff, constituted a valid accord and satisfaction, relieving defendant from liability on the policies. Greenberg v. Metropolitan Life Ins. Co., 379 Ill. 421; Farmers & Mechanics Life Ass’n v. Caine, 224 Ill. 599.

The judgment is reversed.

Reversed.

O’Conn ob, P. J., and Hatchett, J., concur.


author: Justice Riess.

text:
    Guy Martin, Appellant, v. Equitable Life Assurance Society of United States, Appellee.
    Gen. No. 9,385.
    opinion filed April 12, 1944;
    rehearing denied May 29, 1944.
    C. E. Tate, for appellant; Henry I. Green and C. W. Richards, for appellee; Oris Barth and Enos L. Phillips, of counsel.
   Opinion by

Justice Riess.

Not to be published in full.


author: Justice Huffman.

text:
    John R. Snively and James W. Snively, by John R. Snively, His Father and Next Friend, Appellants, v. Merle G. Barber, Trading as Barber’s Wholesale Grocery, and William A. Gowan, Appellees.
    Gen. No. 9,947.
    opinion filed April 27, 1944;
    rehearing denied May 29, 1944.
    John R. Snively, pro se, and other appellant; Lisle W. Menzimer, for appellees.
   Opinion by

Justice Huffman.

Not to be published in full.


text:
    Abingdon Bank and Trust Company of Abingdon, Illinois, Appellant, v. H. C. Bulkeley et al., Appellees.
    Gen. No. 9,950.
    opinion filed April 27, 1944;
    rehearing denied May 29, 1944.
    Burrel Barash, for appellant; Kenworthy, Harper, Sollo & Graham, for appellees; S. R. Kenworthy and R. G. Graham, of counsel.
   Opinion by

Justice Huffman.

Not to be published in full.


author: Presiding Justice O’Connor.

text:
    Minnie Weinstein, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 42,441.
    opinion filed May 1, 1944.
    Hoyne, O’Connor, Rubinkam & Melaniphy, for appellant; Nathaniel Rubinkam and John C. Melaniphy, of counsel; Dent, Weichelt & Hampton, for appellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Jack Elliott and Joseph Epstein, Appellees, v. Bulk Service Stations, Inc., Appellant.
    Gen. No. 42,469.
    opinion filed May 1, 1944;
    rehearing denied May 15, 1944.
    Bippus, Rose, Burt & Pierce, for appellant; S. T. McCray, of counsel; Wetten, Pegler & Dale, for appellees; Milton Gerwin and Greydon L. Walker, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    In re Estate of Edward J. O’Hare, Deceased. George Remus, Appellant, v. Northern Trust Company, Executor of Estate of Edward J. O’Hare, Deceased, Appellee.
    Gen. No. 42,501.

      opinion filed May 1, 1944;
    rehearing denied May 15, 1944.
    Chancellor & Chancellor, for appellant; Justus Chancellor and Justus Chancellor, Jr., of counsel; Wilson & McIlvaine, for appellee; J. F. Dammann, Clarence E. Fox and John C. Lobb, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Weightstill Woods, Appellant, v. Village of La Grange Park, Appellee.
    Gen. No. 42,539.
    opinion filed May 1, 1944;
    rehearing denied May 15, 1944.
    Weightstill Woods, pro se; Benjamin Franklin Langworthy, James Glenn McConaughy and Maloney & Wooster, of counsel; Stevens & Stevens, for appellee; George M. Stevens, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Justice Matchett.

text:
    Bertha S. Stromberg et al. v. Harold R. Blomstrand et al. In re Petition of William C. Liddell, Liquidating Receiver, Appellee, v. Oscar Turner, Appellant.
    Gen. No. 42,930.

      O’Connor, P. J., dissents.
    opinion filed May 1, 1944;
    rehearing denied May 15, 1944.
    Turner, Kaplan & Turner, for appellant; Ode L. Rankin, of counsel; Sarsfield Collins, for appellee.
   Opinion by

Justice Matchett.

Hot to be published in full.


author: Justice Niemeyer.

text:
    Trust Company of Chicago, Administrator of Estate of Florence D. Steven, Deceased, Appellant, v. Sutherland Hotel Company, Appellee.
    Gen. No. 42,448.
    Matchett, J., dissents.
    opinion filed May 1, 1944;
    rehearing denied May 15, 1944.
    Samuel A. Rinella, for appellant; Joseph Barbera and Harry G. Fins, of counsel; Lord, Bissell & Kadyk, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.