text:
    City of Lake View v. H. Tate.

      Railroads—Municipal Ordinance—Rate of Speed—Discrimination in Favor of One of Several Roads.

    1. A municipality may regulate by ordinance the rate of speed of railway trains within its limits.
    2. Ordinances of this character must be reasonable and consistent with the laws and policy of the State, and must not be oppressive, unequal, or unjust, or partial or discriminating in their operation.

      3. The question of whether an ordinance is a just and reasonable exercise of the power reposed in the common council is a question of law for the court, upon consideration of the circumstances of a given case.
    4. In an action to recover a penalty from an engineer for running a train through a municipality at a greater rate of speed than was allowable under one of its ordinances, this court holds that the ordinance in question in attempting to divide the city into two railroad districts, one for each of two roads, and to establish a lower rate of speed for one road than the other, was obnoxious to the objection that it attempted unjustly and oppressively to discriminate against such road, and declines to interfere with judgment for the defendant.
    [Opinion filed April 17, 1889.]
    Appeal from the Criminal Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
    Mr. Harvey H. Anderson, for appellant.
    Redfield, in his great work on the law of railways, pages 577-8, thus expresses himself:
    “ It has been held that a statute giving power to the common council of a city to regulate the running of cars within the corporate limits, authorizes the adoption of an ordinance entirely prohibiting the propelling of cars by steam through any part of the city. We should entertain no doubt of the right of the municipal authorities of a city, or large town, to adopt such an ordinance without any special legislative sanction, by virtue of the general supervision which they have over the police of their respective jurisdiction.”
    And Judge Dillon is strongly of this opinion. He says :
    “ Resulting from the power over streets, and to protect the safety of citizens, and their property, municipal corporations, in the absence of legislative restriction, may control the propelling of cars within their limits, and may prohibit the use of steam power.” Dillon on Mun. Corp., Sec. 713.
    Cooley says:

      “ Perhaps- the most striking illustrations of the principle here stated will be found among the judicial decisions which have held that the rights insured to private corporations by their charters, and the manner of their exercise, are subject to such new regulations as from time to time may be made by the State with a view to the public protection, health and safety, and in order to guard properly the rights of other individuals and corporations. Although these charters are to be regarded as contracts, and the rights assured by them are inviolable, it does not follow that these rights are at once, by force of the charter-contract, removed from the sphere of State regulation; and the charter implies an undertaking, on the part of the State, that in the same way in which their exercise is permissible at first, and under the regulations then existing, and those only, may the corporators continue to exercise their rights while the artificial existence continues.” Cooley’s Const. Lim. (5th Ed.) p. 575.
    Coming now to decided cases, and confining the investigation to our own State reports, the power in the legislature to regulate railway operations in the most ample manner has been fully sustained.
    In C., B. & Q. Ry. Co. v. Haggerty, 67 Ill. 113, the validity of a speed ordinance was in question. I now quote from the opinion: “It is contended that the ordinance is null and void, because the town had no authority to pass such an ordinance, and because the company was expressly authorized by law to fix and regulate the rate of speed of trains upon its road. There is no grant of power to this town, in express terms, to regulate the rate of speed of railway trains passing through the town, but by its charter (Pr. Laws 1857, pp. 540 and 541) the board of trustees of the town have the power to declare what shall be considered as nuisances, and to prevent and remove the same, and to regulate the police of the town, and to make such ordinances as the good of the inhabitants of the town may require. Under these powers we think the town possessed the authority so to order the use of private property within its limits as to prevent its proving dangerous to the safety of the persons and property of citizens; and we view the ordinance in question as but a police regulation for the preservation of the safety of persons and property, the adoption of which was no more than a fair exercise of the police power vested in the town. Nor has the railway company any just ground of complaint that the regulation interfered with the powers conferred upon it in its act of incorporation or by any other law of the State. In the exercise of the privileges so conferred upon it, the company is as much subject to the police laws of the State as an individual pursuing his business.”
    This view is confirmed in the North-Western Fertilizing Company v. Hyde Park, 70 Ill., page 646. The court say:
    “It is urged that railroads in cities and towns are nuisances, but they are only exercising their franchises in thus operating them. If this be true, and we doubt not they may be so operated as to make them such, still the General Assembly has, in numerous instances, long after their charters were granted and the roads were constructed, enacted laws regulating the speed of trains in cities and towns, or conferred the power on such municipalities to do the same thing, and thus prevent the roads from becoming a nuisance; nor are we aware that this salutary exercise of the police power has ever been challenged. Its justness and even necessity, have commended it to all, and it has not been questioned; and this is a fair illustration of the exercise of the police power over bodies corporate. It is on the same principle that railroads are required to fence their tracks, sound a whistle or ring a bell at highway crossings, and to come to a full stop before a train crosses another railroad. These, and many other duties are imposed as being necessary for the safety of the people and their property, and grow out of the implied power that the General Assembly may restrain these bodies, to promote the safety of community as it may individuals.”
    In the case of the Illinois Central Railroad Company v. Willenborg, reported in 117 Ill. page 203, the company endeavored to restrain the defendants from constructing, under Secs. 51 and 52, Chap. 114, of the Revised Statutes, a private crossing over its tracks at a certain point indicated.
    This is a very instructive ease, and I quote liberally from the opinion, and sufficient to enable the court to understand the point made, and the decision rendered, and the reasons therefor:

      “ The point is made, however, that these provisions are not obligatory on this corporation, because they were enacted many years since it received its charter from the State. This is a misapprehension of the law. The regulations in regard to fencing railroad tracks, and the construction of farm crossings for the use of adjoining land owners, are police regulations in the strict sense of those terms, and apply with equal force to the corporations whose tracks are already built, as well as to those thereafter constructed. They have reference to the public security, both as to persons and to property.
    “ All property devoted to public uses takes on a nature or qualification quasi public, and is for that reason held to be subject to legislative control in a greater or less degree, and to which the mere private property of the citizens is not subjected. Bights purely and exclusively private, in no wise affecting others and in no way affecting public morals, are not regarded as being within the control of the police power; nor can mere private property be taken for public uses without making to the owner just compensation; yet the law has always required the citizen to so use his property as not unnecessarily to injure another, and to compel the observance of that rule, even private property may be brought within legislative control to that extent. But where property, whether belonging to a natural person or to a corporation, becomes ‘ affected with a public interest, it ceases to be juris qyrivati only.’ Where a party devotes his property to a public use, the community at large acquire such a qualified interest as will subject it to legislative control for the common welfare.
    “ Accordingly, the property of railroads, and other similar corporations transacting business for and with the public, has been subjected to burdens not imposed on the owners of mere private interests. The distinctions in this regard have been uniformly observed. It is for this reason it has been frequently held that railroad corporations, notwithstanding no such right had been reserved in their charters, may be required to fence their track, to put in cattle-guards, to place upon their engines a bell, and to do many other things for the protection of life and property. Bo public exigency has ever made it necessary to impose such burdens on the citizen exercising no functions or occupations in their nature public or quasi public. Railroad companies are public corporations, in a limited sense, although the right of way, the road-bed, and the track thereon, are for the exclusive use of the owners, over which only their own conveyances are propelled. All others are excluded. The traffic, however, on railways, bears no analogy to our notions of travel on an ordinary or street highway. The uses are totally different and even inconsistent. The one is exclusive in favor of the owner, and the other is open and free to all.
    “ The common use of railroads by the public could not be otherwise than dangerous. It is for that reason their use is restricted to the owner. The fact railroad corporations are granted exclusive franchises to conduct a business in its nature public, must subject them to all reasonable control to secure the public safety and welfare. It is now the settled law, that railroad corporations are within the operation of all reasonable police regulations, otherwise there would be no security for the life or property of the citizen residing in the vicinity.”
    Of the power of the legislature or any municipal council or board to adopt police regulations affecting only a portion of the territory over which such body has authority, there seems to be no doubt in this State.
    Sub-section 46 of Sec. 32 of Chap. 24, R. S., authorizes city councils and villages to license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor.
    Sub-section 62 of the same section provides that the city council, for the purpose of guarding against the calamities of fire, shall have power to prescribe the limits within which wooden buildings shall not be erected or placed or repaired, etc.
    Sub-section 81 of the same section authorizes the city council to direct the location and regulate the management and construction of packing-houses, renderies, tallow-chandleries, bone factories, soap factories, and tanneries, within the limits of the city.
    Sub-section 82 authorizes the city council to direct the location, and regulate the use and construction of breweries, distilleries, livery stables, blacksmith shops, and foundries within the limits of the city or village.
    These provisions have all been sustained by numerous decisions of the Supreme Court of this State, which it would be a waste of space for me to quote.
    In The City of East St. Louis v. Wehrung, 46 Ill. 394, the Supreme Court say:
    “But an ordinance which merely discriminates between different localities in a city, according to the advantages they may present for the business for which license is sought, leaving all persons at equal liberty to apply for license in whatever locality they think proper, and making no distinction between persons, but between places only, is open to no objection.”
    Mr. Edwin Walker, for appellee.
    The ordinance is void because it discriminates between the two competing railway lines, and indirectly confers upon one, the Chicago and North-Western, the advantage of permission to make quicker time, an advantage which is inestimable from a railroad’s point of view. It subjects the defendant company to this great disadvantage without any reason or necessity.
    The proof shows conclusively that while for a short distance along one portion of the Chicago and Evanston line, the southeastern part of the city of Lake View is somewhat more thickly settled than it is along the Chicago and North-Western, along the balance, more than two-thirds the entire distance, it is far less thickly settled than along any portion of the North-Western. The North-Western being by far the oldest road, population was naturally attracted all along the line, while the Chicago and Evanston having been built recently, passes through what is in many sections farming land and very sparsely settled. And even in the thickly populated portion of the city the evidence does not show such a preponderance of public travel across the Chicago and Evanston, over the North-Western, as to warrant the passage of any ordinance embracing only the territory through which the company passes. The evidence further shows that at the crossings most frequented are gates and flagmen.
    It will be noticed from testimony of plaintiff’s witnesses as given in, the abstract, that in all instances testified to and relied upon to show exceptional preponderance of travel over certain crossings of the defendant, there was a station of defendant company in the immediate vicinity, which occasioned the travel, and that the same was true near stations of the North-Western. Otherwise no marked difference was proven between the travel over the crossings of the Chicago and Evanston, and the travel over the crossings of the Northwestern.
    Ordinances, as well as statutes, which are partial, which directly or indirectly confer special favor or advantages on favored parties or individuals, and which are unjust and unreasonable, are unconstitutional and void. The general rule is stated by Cooley, Const. Lim., 393:
    “ Equality of rights, privileges and capacities unquestionably should be the aim of the law; and if special privileges are granted, or special burdens or restrictions enjoined in any case, it must be presumed that the legislature designed to depart as little as possible from this fundamental maxim of government. * * *
    “ Special privileges are always obnoxious, and discriminations against persons or classes are still more so, and, as a rule of construction, are always to be looked upon as probably not contemplated or designed.”
    The case of Tugman v. City of Chicago, 78 Ill. 405, involved the validity of an ordinance which prohibited the operation of any slaughter house “ within the territory in the city of Chicago, bounded as follows, to wit: Fullerton avenue on the north, Thirty-fifth street on the south, Lake Michigan on the east and Western avenue on the west.”
    When the ordinance was passed several slaughter houses were in operation within the limits. The appellant, Tugman, erected and operated a slaughter house after the passage of the ordinance. The validity of the ordinance was contested on the grounds that it was unreasonable and oppressive. Cf the general principles involved in the case and which are applicable to the case at bar, the court say, page 407:
    “Where power is conferred upon the legislative department of a municipal corporation to enact by-laws and ordinances for the better government of the inhabitants of the municipality, the body intrusted with that power, in its exercise, can not enact ordinances that are unreasonable, oppressive, or such as will create a monopoly.” An ordinance, therefore, which would make an act done by one penal, and impose no penalty for the same act done, under like circumstances, upon another, could not be sanctioned or sustained, because it would be unjust and unreasonable. Dillon, Municip. Oorp., Sec. 256. And the ordinance was held invalid on those grounds.
    In Sec. 253, Dillon on Municip. Oorp., the general rule is laid down that all ordinances must be reasonable and consistent with the laws and policy of the State; and in Sec. 254, that they must not be oppressive.
    Sec. 255 says: “ Courts will declare void ordinances that are oppressive in their character.”
    Sec. 256: “ Must be impartial, fair and general. As it would be unreasonable and unjust to make, under the same circumstances, an act done by one person penal, and if done by another not so, ordinances which have this effect can not be sustained. Special and unwarranted discrimination, or unjust or oppressive interference in particular cases, is not to be allowed. The powers vested in municipal corporations should, so far as practicable, be exercised by ordinances general in their nature and impartial in their administration.”
    And the validity of an ordinance is for the court, and not the jury, to determine.
    Sec. 261: “Validity is for the court, and not the jury, to determine. Whether an ordinance be reasonable and consistent with the law or not, is a question for the court, and not the jury, and evidence to the latter on this subject is inadmissible. But in determining this question, the court will have regard to all the circumstances of the particular city or corporation, the objects to be attained, and the necessity which exists for the ordinance. Regulations proper for a large and populous city might be absurd or oppressive in a small and sparsely populated town, or in the country. An unreasonable by-law is void.”
    In T. W. & W. Ry. Co. v. City of Jacksonville, 67 Ill. 37, an ordinance requiring a flagman at a certain crossing was held void as being oppressive and unreasonable, because unnecessary. Speaking of such regulations and ordinances the court on page 40 says:

      “ But such regulations must be what they purport to be, police regulations, and must be reasonable where applied to corporations or individuals. What are reasonable regulations and what are subjects of police powers, must necessarily be judicial questions.”
    The court said that the facts disclosed by the record showed no necessity for a flagman at that crossing, and arrived at the conclusion “ that the ordinance under which it was sought to compel the railroad company to maintain a flagman at the point designated is not a reasonable requirement, and is therefore within the constitutional limitations on the exercise of police power.”
    In Meyers v. C., R. I. & P. Ry., 57 Iowa, 555, the court held an ordinance limiting speed of railway to four miles an hour void as unreasonable. “ Under the ordinance in question in this case, it would take three-quarters of an hour, after leaving the corporate limits of Council Bluffs, to pass over llirce miles of railroad, through agricultural lands fenced on both sides, and reach the inhabited portion of the city; and it would take over one hour and a quarter to reach the terminus of the railroad at the Union Pacific, depot. One of the objects of a railroad is to secure quick transportation for freight and passengers. The ordinance in question not only places an unreasonable restriction upon the railways themselves, but it unreasonably and unnecessarily impedes the whole traveling public. Ho necessity has been shown and none certainly exists, for limiting railways to a speed of four miles an hour for three miles before they enter the inhabited portion of a city and while passing through agricultural lands fenced on both sides. - If all the cities situated along the line of the defendant’s railroad between Council Bluffs and Chicago should enact a like ordinance it is apparent that the time between the two cities would be greatly increased. The ordinance acts as a restraint upon commerce, and, in our opinion, ought not to be sustained. The court did not err in refusing to hold the defendant liable for a violation of it.”
    The evidence in the case at bar has shown that the northern portion of Lake View through which the defendant’s line passes is an unsettled country and no possible necessity exists for limiting speed of trains there.
   Moran, J.

This was an action brought to recover a penalty against appellee, who was an engineer in the employ of the Chicago & Evanston By. Co., for running an engine and train of cars through the city of Lake View at a rate of speed forbidden by the ordinance of said city. On the trial in the Criminal Court the finding of the court was not guilty, and the city brings the appeal. The question presented, is the validity of the ordinance alleged to have been violated.

The city of Lake View extends along Lake Michigan north, for a distance of five miles from Fullerton avenue (which divides it from Chicago) to the line of the town of Evanston, and is bounded on the west by Western avenue. Ashland avenue, running north and south through Lake View, divides the territory comprising said city into two nearly equal parts. Two competing railroads run north and south through said Lake View, the C. & BT. W. west of, and C. & E. east of Ashland avenue, both roads nearly parallel with said street, which is about midway between them.

The common council of the city of Lake View by ordinance divided the territory comprising the city into two railroad districts, the boundary line between said two districts being Ashland avenue, and each district being five miles long from north to south and about one mile wide. The ordinance provides that no railroad train, locomotive or engine, or car used for the transportation of" passengers, shall be run through or within the limits of the “East Bailroad District” as described, at a greater rate of speed than ten miles per hour, and, repeals ordinances which had theretofore been in force, which were general in their provisions, and regulated the speed of trains alike upon all railroads running through the city. The effect of this legislation was to regulate the speed of the C. & E. trains down to ten miles an hour, and leave the C. & H. W. trains to run at any rate of speed the operators of said road saw fit to adopt. The evidence shows that both railroads cross the streets of Lake View on a level with the surface of such streets, and that all things considered, by the operation of the roads at an equal speed of trains, about as much inconvenience and danger will he caused by the one road as by the other, to residents of Lake View and the general public.

There can be no question as to the power of the common council of this municipality to regulate by ordinance the speed of trains upon railroads running through the territory over which it has control for the safety of the public, but such regulating ordinance must be reasonable and consistent with the laws and policy of the State, and must not be oppressive, unequal, or unjust, or partial and discriminating in its operation. Dillon on Munic. Corp., Secs. 253-61.

The question of whether the ordinance is a just and reasonable exercise of the power reposed in the council or not, is a question of law to be determined by the court, upon consideration of all the circumstances, and if the ordinance tends to create a monopoly or makes an act done by one, penal, and imposes no penalty upon another for the same act done under like circumstances, it can not be sanctioned or sustained, because it is unjust and unreasonable. Tugman v. City of Chicago, 78 Ill. 407.

On consideration of the circumstances in this record, we are of opinion that the ordinance in question is obnoxious to the objection that it attempts unjustly and oppressively to discriminate against the C. & E. road, and in favor of its competitor in business.

3STo reason—at least no reason which is in our opinion at all sufficient—appears for dividing the territory as is done by this ordinance, into two districts, and regulating the speed of trains in one of said districts only.

If the population in said district was dense, and in the other district sparse, a different question would be presented. Whatever the motive which dictated the legislation, the ordinance is one which can not receive the approval of this court, and the judgment of the Criminal Court will therefore be affirmed. T. W. & W. Ry. v. City of Jacksonville, 67 Ill. 37; Meyers v. C. R. I. & P. Ry., 57 Ia. 555; Cooley, Const. Lim., 393; Yeck Wo v. Hopkins, 118 U. S. 356.

Judgment affirmed.


source: Caselaw Access Project

author: Gary, J.

license: Public Domain

text:
    The Callender Insulating & Waterproofing Company v. Alpheus C. Badger.

      Negotiable Instruments—Note—Guaranty.

    In an action against the guarantor of a promissory note, the consideration thereof being certain wire involved in another suit, lately decided herein, this court declines to interfere with judgment for the defendant.
    [Opinion filed April 24, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.
    Messrs. Adams & Hamilton, for appellant
    Messrs. Gregory, Booth & Harlan, for appellee.
   Gary, J.

This is a suit by the appellant against the appellee, as guarantor of a promissory note made by Sheridan S. Badger to the appellant, the consideration of which was some of the wire that was the subject of the litigation in the suit of this appellant against Sheridan S. Badger, lately decided here.

It is conceded that this case is governed by that, but there has been some delay, for the purpose of permitting that case to be reviewed by the Supreme Court, if the appellant would take it there.

As that course has not been taken the judgment in this case is affirmed.

Judgment affirmed.


author: Garnett, P. J.

text:
    George D. Barrett and Edward J. Whitehead, Impleaded, etc., v. Regina Lingle.

      Appeal—Bond—Action of Debt on—Forcible Detainer—Pleading.

    In an action of debt upon a bond executed on an appeal taken from a judgment in behalf of plaintiff in an action of forcible detainer, a condition thereof being that certain rent then or to be due should be paid in case the judgment was affirmed or the appeal dismissed, this court holds that evidence as to the rental value of the premises in question was admissible notwithstanding the absence from the declaration of an averment of detention by defendant, the same being supplied by the plea of payment on his part, the evidence showing his possession at the time in question.
    [Opinion filed May 8, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Whitehead & Pickard, for appellants.
    Messrs. Thomas Dent and B. P. Blanchard, for appellee.
   Garnett, P. J.

Appellee sued appellants and Abel Housinger in an action of debt upon an appeal bond executed to appellee by defendants on an appeal taken by Housinger from a judgment in forcible detainer. The condition of the bond was that Housinger should prosecute his appeal with effect, and pay all rent then due or that might become due before the termination of the suit, and all damages and loss that the plaintiff might sustain by reason of the withholding of the premises, and by reason of any injury done thereto during such withholding, together with all costs until the restitution of possession to the plaintiff, in case the judgment should be affirmed or the appeal dismissed.

The declaration alleges in due form that on the trial of the appeal, the plaintiff had judgment of restitution and for costs, but that Housinger has not paid the rent that became due before the final termination of the suit, or the damages or loss which the plaintiff sustained by reason of the withholding of the premises, and of the injury thereto during such withholding, or the costs. Evidence was offered on the trial to prove the rental value of the premises. Defendants objected thereto on the ground that there was no averment in the declaration of detention of the premises by Housinger. The objection was overruled and we think properly. The allegation omitted in the declaration was supplied by the plea of payment, which impliedly admitted the withholding by Housinger. 1 Chitty on Pleadings, 671.

The evidence proved that Housinger was in possession of the premises during the time in question. The presumption is his possession was of the same character as it was at the time of the judgment of restitution. There is no rule which warrants the hypothesis that during that time he ■ was in by some, agreement with the plaintiff made subsequently to the giving of the appeal bond. The judgment is affirmed.

Judgment affirmed.

Gaby, J\, took no part in this case.


author: Moran, J.

text:
    Anna Schmidt v. Michael Bauer et al.

      Practice—Judgment by Confession—Entry of, in Term Time—In Vacation—Warrant of Attorney—Writ of Error—Bill of Exceptions.

      I. When a judgment by confession is entered in vacation before the clerk, the warrant of attorney becomes a part of the record by being filed, and no bill of exceptions is necessary.
    '2. When the judgm -nt is entered in term time, it becomes a part of the record only by being made so by such bill.
    3. When the absence of a bill of exceptions precludes this court from knowing what evidence was introduced in a given case, it will presume that it warranted the judgment which is shown by the record to be valid on its face.
    [Opinion filed May 8, 1889.]
    Iu error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. H. M. Plotke, for plaintiff in error.
    Mr. Francis Lackner, for defendants in error.
   Moran, J.

This writ of error brings up the record of a judgment entered in term by confession upon a warrant of attorney. It is contended that the warrant of attorney was joint, and did not authorize the confession of judgment against the plaintiff in error alone, and that the note introduced in evidence was not the same as the one declared on.

There is no bill of exceptions, and we have no means of knowing what evidence was introduced, but must presume that the evidence warranted the judgment which is shown by the record, and which is valid on its face. There is a copy of a note and warrant of attorney copied into the transcript but we can not regard it as in the case, because not made a part of the record by the bill of exceptions. When a judgment by confession is entered in vacation before the clerk, the warrant of attorney becomes a part of the record by being filed, and no bill of exceptions is necessary; but when the judgment is entered in term time, it will become a part of the record only by being made so by a bill of exceptions. Waterman v. Caton, 55 Ill. 94. There is nothing before us which affects the validity of the judgment, and the same will therefore be affirmed. Judgment affirmed.

Gary, J., takes no part in deciding this case in this court.


text:
    The Chicago City Railway Company v. Fanny Yancey.

      Master and Servant—Street Railway Company—Conductor—Negligence of—Premature Starting of Car—Personal Injuries—Damages—> Evidence—Instructions.

    One suffering from a personal injury caused by the negligence of another is entitled to damages up to the time of trial should the effects thereof continue so long, and thereafter, when the same are “imminent and sufficiently certain."
    [Opinion filed May 8, 1889.]
    In error to the Superior Court of Cook County; the Hon. Gwynn Garnett, Judge, presiding.
    Mr. C. M. Hardy, for plaintiff in error.
    Messrs. Allan 0. Story and Lonis Washington, for defendant in error.
   Gary, J.

There is no merit in this application to have the proceedings in the Superior Court reviewed.

The only testimony as to the accident was on the part of the defendant in error, plaintiff in the Superior Court. She testified and was corroborated, that, being a passenger on a car of the company, she attempted to alight from it, when the car had been stopped for that purpose, and while she was partly off, the car was started by the conductor, and she was thrown to the ground and hurt. On this evidence the brief consists of abuse of the witness, and a discussion on natural philosophy as to where would be the center of gravity of a woman alighting from a car.

The company on the trial admitted that the car was run by them, and yet the brief now says there is no proof of it. The criticism upon an instruction that the word “ negligently ” or “ carelessly ” is omitted where it should have been inserted, with reference to the act of the conductor in starting the car while she was getting off, is abstractly just. But that omission is utterly immaterial as to the merits of the case.

It is claimed that the jury should have been told that the defendant in error could have no damages except for injuries sustained before the suit was commenced. There was testimony as to permanent injury, and “ the actual effects down to the time of the trial, are provable; and whether those that may ensue later may be taken into account, will depend whether they are imminent and sufficiently certain.” 1 Sutherland on Damages, 187. The judgment is affirmed.

Judgment affirmed.


text:
    George W. Dumond v. Merchants National Bank.

      Banks—Deposits—Application of—Private Funds—Privity.

    One bank is not liable to an individual for money delivered to it by a second bank, accompanied by a deposit ticket directing that the same be placed to the credit of a third bank, in the absence of notice that the funds in question belonged to such person.
    [Opinion filed May 8, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Peokham & Brown, for appellant.
    We assert that as this money was the plaintiff’s, as it was deposited with the Merchants National Bank for the credit of the Exchange Bank of Earlville, as it was by the Exchange Bank of Earlville admitted to be plaintiff’s and ordered turned over to him, and as it does not appear that, upon the faith of the deposit to the credit of said Exchange Bank and before notice of the plaintiff’s rights, the Merchants National Bank had made any disbursements for said Exchange Bank or altered its position with relation to said Exchange Bank at all, the plaintiff can recover.
    We are ready to admit that as to any disbursements for the Exchange Bank made in good faith by the Merchants Bank, on the credit of the deposit to the account of said Exchange Bank, the Merchants National Bank would he protected. But this protection would not extend to a mere appropriation of the money to an antecedent existing debt of the Exchange Bank to it,"either before or after the notice, and much less can the Merchants. National Bank defend itself from the plaintiff’s claim without even pretending to show any disposition of the money, after it was deposited with it.
    We cite Van Alen v. American National Bank, 52 N. Y. 1; Pennell v. Deffell, 4 De Gex, M. & G.; Broderick v. Waltham Savings Bank, 109 Mass. 149; Merrill v. Bk. of Norfolk, 19 Pickering, 32; Burtnett v. First National Bank of Corunna, 38 Michigan, 630; Central Nat. Bank v. Conn. Mutual Life Ins. Co., 104 U. S. 54; Solomon v. Nicholas, 113 Ill. 351-7.
    In Van Alen v. Am. Nat. Bank, where the court cites with approbation Pennell v. Deffell, the New York Court of Appeals lays down the rule that money deposited in his own name by A, which belongs to B, the deposit being intended for the benefit of B, is B’s money, and not A’s, (in the case at bar, the money of Dumond, and not that of the Exchange Bank) although the bank had no notice that it was not an ordinary deposit made by A, and B can enforce payment to himself, if the bank has given nothing on the faith of the deposit. Says the court in this case:

      “ The title of the plaintiff does not depend on whether the bank knew he had a title or not; that rested upon other facts. A notice to the bank might have prevented any transfer or the creation of a lien by the depositor, or prevented the bank from taking or acquiring such lien in good faith, but could not otherwise be necessary or important.”
    In Broderick v. Waltham Savings Bank the plaintiff, to avoid attachment, deposited his money in the name of Ellen Whalen. It was held that he could recover the balance remaining to the credit of the account, though Ellen Whalen refused to authorize payment to him.
    In Merrill v. The Bank of Norfolk, the court say—treating of the right of the plaintiff in the case of a similar deposit to this, to recover:
    “ The plaintiff may follow the property, however it may change form or in whosesoever hands it may be found, until his rights be divested by his own act or authority.”
    In Burtnett v. The First National Bank of Corunna, one Raynale, who was agent for one Burtnett, deposited money of Burtnett’s, without his knowledge, in the defendant bank. The bank did not know but that it was Baynale’s own money, and after Baynale’s death proceeded to appropriate the balance of it (a small portion having been checked out by Baynale in his lifetime), to an antecedent debt owed by Baynale to it. Suit was brought by Burtnett’s administrator (Burtnett also having died) for the balance thus appropriated, no recovery being claimed of the amount which Baynale had checked out. The court say : “ If decedent owned the proceeds of the bond * * * when Baynale made the deposit, the mere fact (if it is a fact) that the bank officers were ignorant of such ownership, or the mere fact of their formal transfer on the bank books of such proceeds to satisfy the debt due to the bank from Baynale (if there was such a debt), or both facts together, could not extinguish Burtnett’s right to recovery as to the fund left in the bank, if capable of being traced. Had it been actually shown that Baynale actually participated in and assented to the appropriation attempted by the bank, the latter being ignorant and without any reasonable notice of decedent’s rights, there might be room for other considerations. But we are not aware of any principle which will enable a depository who has received from a trustee or agent a fund belonging in fact to the principal or beneficiary, to appropriate it by his sole act to his own debt held against the trustee or agent, and thereupon to insist that his want of knowledge of the true ownership is sufficient to guard such inequitable appropriation and bar tlie real owner from pursuing the fund. On the contrary, the doctrine is well settled that the beneficiary or principal may in such cases follow and claim his own.”
    In all of the cases we have cited, the general principle for which we contend has been recognized, and a great number of others might be adduced for its support.
    Mr. E. A. Otis, for appellee.
    The counsel for the appellant concede at the outset that every point which is relied upon as ground of reversal, has been passed upon adversely in Drovers National Bank v. O’Hare, 119 Ill. 346, after full hearing by the Supreme Court of Illinois, whose decision upon a state of facts conceded to be identical, this court is asked to reverse.
    The relation between a bank and its customer is simply that of debtor and creditor. 1 Morse on Banking, 3d Ed., Sec. 298.
    In Addison on Contracts, Vol. 1, *p. 371, 8th Ed., the doctrine is laid down as follows: “ In a banking account of the ordinary kind between a banker and his customers, it is not competent to any third person to interpose and say that the customer was his agent, and that the banker has, contracted with such third party through the medium of such customer, his agent. All checks and money paid into the bank by the customer are, as between the banker and the customer, the checks and money of the customer, whoever may be the real owner of them. If the owner of the cash allows his agent to deal with it as his own, and pay it into the bank in his own name, he has no power over it after it has reached the banker’s hands.
    In School Trustees v. Kirwin, 25 Ill. 76, the court in a similar case use the following language:
    “An important inquiry of a court of equity is, whether property, bound by a trust, has come into the hands of persons who are either bound to execute the trust or to preserve the property for the persons entitled to it. If the cases on this subject are adverted to, it will be found that trusts are enforced, not only against those persons who are rightfully possessed of trust property, as trustees, but also against all persons who come into possession of the property bound by the trust, with notice of the trust; and whoever so comes into possession, is considered as bound with respect to that special property, to the execution of the trust.
    “ This court held this doctrine in the case of Norton et al. v. Hixon, post.

    “ It is not necessary, if the trusts be moneys, that the particular coin or kind of money, or the individual pieces, shall be identified, in order to pursue it, but its identity as a fund must be preserved so that it can be distinguished from all other money.. * * * The means of ascertaining the identity of this fund having failed, by the money having been mixed and confounded in a general mass of property of the bank, of the same description, the right to pursue it must also fail.”
    The same doctrine is held in Otis v. Gross, 96 Ill. 612; Phoenix Bank v. Bisley, 111 U. S. 125; Marine Bank v. Rushmore, 28 Ill. 463.
    These authorities establish the position that the Merchants National Bank was not liable to the plaintiff in this case, entirely independent of the decision of the Supreme Court in Drovers Bank v. O’Hare. In any event, the trust fund could only be followed in equity, when the rights of all parties can be protected. The fact that the Earlville Bank, two days after its failure, while its assets were in the hands of a third person, presumably a trustee for its creditors, attempted to turn this deposit into a trust fund, cuts no figure in the case. It was apparently one of the common devices by which an insolvent debtor attempts to give priority to a favored creditor. The creditors of the Earlville Bank had the right to be consulted, and the Merchants National Bank had no right to give up this money without their consent. Whenever it is called upon to show the disposition made of this money, its answer will be satisfactory and sufficient, but the plaintiff has never placed himself in a position to require it. The plaintiff’s remedy, by suit against the Stock Yards Bank direct, was plainly pointed out to him by the decision of the Supreme Court in the Drovers Bank case, and the records of this court, in that “other case,” vaguely referred to by counsel in their brief, show that he promptly availed himself of it. The fact that this appeal is prosecuted by counsel for the Stock Yards Bank, indicates very clearly that it is the real party of record, masquerading under the plaintiffs name.
   Moran, J.

On December 18, 1884, the firm of Ed Brown

& Tipton deposited in the Union Stock Yards National Bank $1,182.30, with a deposit ticket as follows: “ Deposited with Merchants National Bank of Chicago, Illinois, to the credit of Exchange Bank, Earlville, Illinois, by Ed Brown & Tipton for the use of George W. Dumond, $1,182.30.

“ Date December 18, 1884.”

On the same day the Union Stock Yards National Bank delivered to the Merchants National a check for a large sum, which was paid through the clearing house on December 20th. This check was accompanied by the deposit ticket, which showed that $1,182.30 of the sum included in the check was for account of the Exchange National Bank, Earlville, Ill., but it was not stated that it was for the use of appellant. On December 20th, appellant presented to the Merchants National Bank the following letter from the Exchange Bank of Earlville:

"Exchange Bank, William Wilson & Co.,

Earlville, Ill., Dec. 30, 188-.

John O. Nelly, Esq., Cashier.

Dear Sir:—Deposit of eleven hundred and eighty-two and 30-100 dollars by Stock Yards National for use of G. W. Dumond, we can not receive, as we had closed our doors before it reached you. You will therefore deliver to him the amount, his signature is here (G. W. Dumond), or to his order.

Respectfully yours,

William Wilson & Oo.”

The Merchants National Bank refused to pay the amount to Dumond, and this action is brought to recover it, as money had and received by the bank which belongs to Dumond, and which the bank ought not to retain.

The same circumstances that have occurred in this case with reference to appellant’s money, existed in Drovers National Bank v. O’Hare, 119 Ill. 646, as regarded the money of O’Hare. The Northwestern National Bank held the same position in relation to O’Hare in that transaction that appellee does to appellant in this one. In answer to the contention of counsel in that case, that the action should have been brought against the Northwestern National Bank, the Supreme Court gave the following expression:

We are of opinion the suit was properly brought. The Northwestern National Bank had no notice whatever that the check of appellant represented money belonging to appellee, or that appellee was in any wise interested therein. It never consented to become his debtor, or to become the depositor of funds for his use, and received the money without notice that it was charged with such use. The check purported to transfer to the Northwestern National Bank, funds of the Henry Bank, going to general account to the credit of the Henry Bank by the Northwestern National Bank. Them was no privity of contract between the Northwestern National Bank and appellee. The transfer was made to that bank without his authority or consent, nor did the Northwestern National Bank consent to act as trustee in respect of this money, for its transmission to the Henry Bank, for his use. No action would lie by appellee to recover of the Northwestern National Bank.”

Counsel for appellant in this case contended that the question before the Supreme Court in the case in which the language quoted was used, was the liability of the Drovers National Bank, and not that of the Northwestern; and that what was said in the opinion on the latter question was merely dictum,, and ought not to control this court on the question as now directly presented, and counsel have cited a number of cases which appear to give substantial and authoritative support to their contention that appellee is liable to appellant in an action for money had and received under the facts of this case. It may be that Drovers Bank v. O’Hare could have been decided without reference to the liability of the Northwestern National Bank, but the question was made in the briefs of counsel, and received attention and consideration from the court, and whatever might be our view on the authorities, if the question was clearly open to us, we do not feel at liberty to disregard the clear expression of the Supreme Court, given advisedly on a question made in argument, though not necessary to the decision, as we might, do in a case where the expression was inadvertent and uncalled for. We prefer to govern the action of this court by the opinion of the Supreme Court as expressed, and leave counsel to urge in that court the arguments which support their client’s right to recover notwithstanding Drovers National Bank v. O’Hare. The judgment of the Supreme Court will be affirmed.

Judgment affirmed.

Gaby, J., takes no part in deciding this case.


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    The Union Stock Yards National Bank v. George W. Dumond.

      Banks—Deposits—Acceptance of with Instructions—Identity—Failure to Preserve.

    One bank is liable for a deposit with it to the credit of a second bank for the use of an individual, when it delivers the same to a third bank to be credited to such second bank, without giving notice of the rights of the person in question. /
    [Opinion filed May 8, 1889.]
    In error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge presiding.
    Messrs. Peokham & Brown, for plaintiff in error.
    Mr. Frank J. Crawford, for defendant in error.
   Garnett, P. J.

The facts in this case are set out in the opinion of this court filed at this term in Dumond v. Merchants National Bank. On those facts the court below, in this suit of appellee against appellant, found the issues for appellee and rendered judgment accordingly.

The decision in Drovers national Bank v. O’Hare, 119 Ill. 646, we regard as controlling authority in this case. The fault of the Drovers Bank was in wrongfully delivering O’Hare’s money to the northwestern national Bank. Here the fault of the Stock Yards Bank was in depositing the money of Dumond with the Merchants national Bank, without preserving its identity in pursuance of instructions which were entirely plain. Having accepted the money with the instructions it should have pursued the course marked out for it.

If there is any substantial distinction between this case and the Drovers Bank case, we fail to perceive it.

Judgment affirmed.

Gaby, J., took no part in this case.


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    Benjamin J. Ettelsohn v. Charles H. Kirkwood.

      Contracts—Written and Oral—Particulars—Bill of—Request by Counsel that Jurors Shall Note Items of Claim—Witnesses—Credibility of —Evidence.

    1. A party to a written agreement freely entered into, can not deny the truth of the recitals therein.
    2. An attorney in a cause should not, upon trial, request a juror to note down the items of his client’s claim.
    3. In an action by one of two creditors against the other to recover a balance claimed to be due under a written agreement entered into by them evenly to divide the proceeds of such property of a common debtor as might come to the hand of either, this court, upon the ground that the credibility of the testimony was a question for the jury alone, declines to interfere with the verdict for the plaintiff.
    [Opinion filed May 8, 1889.]

      Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    Messrs. Kraus, Mayer & Stein, for appellant.
    Messrs. Doolittle & MoKey, for appellee.
   Gary, J.

These parties both had claims against one Emma Lesser who had been doing business in Ishpeming in northern Michigan and who had absconded. The appellee resided there? and the appellant in Chicago. The appellant went to Ishpeming, and as the result of negotiations between these parties a written agreement was made that they should share equally the proceeds of all property of Lesser which either of them could obtain, the appellant agreeing that $1,000 for insurance should be considered as received by him. In a little time thereafter the appellant received $1,500 or $1,510 for goods of Lesser sold by appellant. He had before this suit paid to appellee $750, and this suit was brought by appellee to recover the unpaid residue, according to the terms of their agreement.

The appellant sought to avoid the effect of the agreement by denying the truth of its recitals, which was not admissible, (Wynkoop v. Cowing, 21 Ill. 570), and by alleging a subsequent parol agreement that the appellee should share expenses, which he testified to having paid. Whether such an agreement was made, and if made, whether the appellant made any proof of the payment of any expenses which would be covered by it, were questions for the jury, in the presentation of which the appellant had greatly the advantage, as the evidence for the appellee, except'the original agreement, was by depositions, while the appellant was present and testified before the jury.

The depositions contained testimony as to other claims of the appellee than for half of the money received or acknowledged by appellant under the original agreement. On the trial appellant testified in regard to such other claims. Ho bill of particulars of them was actually filed, until the argument of the case began. While the counsel for appellant was making his argument, he asked a juror to put down on a' slip of paper the items of the claims of the appellant so that the jury might remember them. To this he had no right. Ind. & St. L. R. R. v. Miller, 71 Ill. 463. The counsel for the appellee said there was no need of that, as the jury could take the bill of particulars of the appellant with them. After the jury retired the appellant wished his bill of particulars to go with them, and the appellee wanted his to go with it, to which appellant objecting, neither was sent, and appellant excepted. It can hardly be expected that this court should hold that fair and equal treatment in the Circuit Court, is error in this. The jury rejected both bills of particulars, and found for the appellee the amount unpaid of the money due under the original agreement. In so doing they may have been influenced by the attempt of the appellant to obtain, before them, an unfair advantage, but whatever may have been the motive, the credibility of testimony was for their consideration.

There is no error and the judgment is affirmed.

Judgment affirmed.


author: Gabnett, P. J.

text:
    Frank Belz v. Gretchen Belz.

      Divorce—Desertion—Summons—Service of Default—Collusion.

    This court affirms a decree dismissing a bill for divorce, upon the ground of collusion.
    [Opinion filed May 8, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
    Messrs. Goldzier & Rodgers, for appellant.
    Ho appearance for appellee.
   Gabnett, P. J.

The bill for divorce in this case was filed by appellant against appellee on the 15 th day of December, 1888, and alleged, as ground for the relief prayed, that the defendant deserted complainant on March 24, 1885, and had ever since that time, without cause or provocation, refused to live with him. The summons was issued and served the same day on the defendant while she was iñ the office of the solicitor who filed the bill. On the same day she, by a writing signed by her, authorized another solicitor to appear in the cause for her, waive her right to answer the bill and consent to a default. That paper was filed in the cause on the 18th day of December, 1888, and at the same time the solicitor, so authorized, entered her appearance, waived her right to answer and consented to a default. In pursuance of the consent so given, the bill was taken as confessed by the defendant on the day last named. The cause came on to be heard January 5,1889, on proofs produced in behalf of the complainant only. It appeared from the testimony of complainant, that about three weeks before the hearing, he and defendant had an interview, and he told her he had filed a bill for divorce, to which she replied “all right.” The judge by whom the case was heard interrogated him, and he answered as follows :

Q. “Did your lawyers tell yon anything about your wife’s entering her appearance in this case ? ”
A. “Ho, sir; I didn’t know that she did.”
Q. “ Did he tell you that she signed that paper ? ”
A. “Yes, sir.”
Q. “ He told you about that, did he ?”
A. “ Yes, sir.”
Q. “ Did he tell you how he got it? ”
A. “ Yes, sir.”
Q. “ What did he say ?”
A. “ He said that my wife had spoken to him about it.”
Q. “ What did he say she said ? ”
A. “ That she had spoken to him about it. He told me
that my wife said that she wanted her divorce from me.”

The judge called the complainant’s solicitor as a witness, and from his testimony, it appeared that before the filing of the bill in this case, appellee applied to him and requested him to secure a divorce for her, at the same time presenting a paper signed by her husband authorizing her to get a divorce. After hearing her statement he told her that she could not get a divorce, as she had no ground for it, and if there was to be a separation, her husband would have to ask for it. Proceeding, the witness said: “ She then sent her husband to me. 1 had a talk with her husband, and found that he had good grounds for a divorce, and, consequently, I filed the bill for a divorce for him. * * * I don’t really know whether I sent for her, or whether she came of her own accord.” The court dismissed the bill, the order being in form the usual order dismissing for want of equity. The real ground, however, for the action of the court, was the apparent collusion between the comp’ainant and defendant. The first arrangement they entered into was that the wife should file the bill, and the husband, so far as he could make the proceedings effectual, sought to accomplish the desired end by giving her written authority for that purpose. Why the wife was chosen as the moving party when she had, as now claimed, no cause of complaint, is known only to the persons interested. So long as she was intended as the ostensible complainant, they were evidently of one mind, both actually seeking the same end. The change of front which made him take the place was not followed by any adverse action on her part, or even by merely passive acquiescence. She directed him to the solicitor’s office. She was served with process in the office of the same solicitor on the day the bill was filed, and was probably waiting there for that purpose. She immediately executed a written authority for the entry of her appearance, and for an immediate default by consent.

In the usual course the default could not have been taken until the 23d of January, but by the accommodating assistance of the defendant the cause was actually heard eighteen days earlier than that. We are of opinion that the evidence warranted the court in finding that there was collusion or conspiracy between the complainant and defendant for the purpose of procuring a divorce. In such cases the law conclusively presumes that a good defense might have been presented, if there had been no collusive action. What proof was made as to the fact of desertion, was of no consequence. Desertion is sometimes justified under the law, and is often made to appear as desertion when, in fact, the separation was by agreement. But it is needless to speculate as to what defense could have been shown, as the wise policy of the law denies relief where collusion is proven.

In his work on Marriage and Divorce, Sec. 28a, Bishop says: “Collusion is equally possible in a good case, though it is less frequently practiced, the temptation being wanting. For, however just a cause in itself may be, if parties corruptly collude in the management of it before the tribunal, so that in reality both are plaintiffs, while by the record the one appears as plaintiff, and the other as defendant, this, in reason, and it is believed also in authority, will, as collusion, har the proceeding.”

Hamilton v. Hamilton, 89 Ill. 349, was a suit in assumpsit brought by a divorced wife against her former husband, on a contract made between them pending a suit by her against him for divorce. By the terms of the contract he agreed to give her a certain farm and $500 in addition, and in consideration thereof she agreed to unite with him in the conveyance of all of his other real estate, waiving her homestead and dower rights; she further agreed to dissolve the injunction issued against him in the divorce suit, and to dismiss her claim for alimony in that suit The court said that the contract was “in its essence and character against public policy, and that it must be held invalid upon that ground. While divorces are authorized by law, they ought not to be encouraged. In this contract there is no express agreement that the husband would not resist the application for a divorce or that he would consent to a divorce, still it is thought that to permit such a contract as this to be enforced in the courts, would open the door for the attainment of divorces by collusion.” If that contract had been brought to the notice of the court on the hearing of the divorce suit between those parties, and no other proof made on the subject of collusion, what would have been the duty of the court? A dismissal of the bill would necessarily have followed.

A similar case is Danforth v. Danforth, 105 Ill. 603, where the court said: “ It is conceded and such is the unquestioned law, that if there is an agreement in a divorce case that the defendant will not defend against a decree, or the parties collude to obtain a divorce, or so as to produce that result, the relief will not be granted. It is upon the principle that the parties do not have the only interest, but the public also has an interest in the marriage relation and in its proper maintenance ; and the courts have ever been vigilant in preventing divorces from being obtained by fraud or collusion of the parties. * * * The effect of this agreement must have been precisely the same as had appellant and appellee agreed that she would do nothing to prevent him from obtaining a divorce, and, if necessary, she would assist for the purpose. It is not the mere form of words, but it is the intent—the thing or purpose intended to be accomplished—that constitutes the agreement, when that can be determined from the instrument itself.” The principle of these decisions is applicable to the case at bar. There was here a common design followed up by both parties with the intent that the desired result should be produced in one way or another. "We have neither the disposition nor the right to depart from this settled rule. The decree of the Circuit Court is affirmed.

Decree affirmed,.


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    Mathias Schmidt et al. v. Edward F. Thomas.

      Practice—Default—Motion to Set Aside—Circuit- Court—Jurisdiction of —Pleading.

    1. The Circuit Court can not grant a motion to set aside a default at a term subsequent to the one at which it was entered for any error of law apparent on the record.

      2. The allegation as a ground for such motion that through “accident and mistake” the party making the same was prevented from presenting a meritorious defense, has no weight.
    3. A declaration must state with certainty who are the parties to a given suit, and the same must be commenced and prosecuted in the proper Christian and surnames thereof.
    4. Failure in this regard is cured by personal service, but nob in the absence of appearance, where service is by publication.
    5. Where a defendant personally served, fails to appear, a judgment by default is erroneous, when the name of the party in the process is such that the law does not recognize it as the name of an individual or corporation.
    6. The abbreviation “ Mrs.” is not a name.
    7. Where a case has been fully tried, errors which did no injury may be disregarded, if it appears that justice has been done.
    [Opinion filed May 8, 1889.]
    In eeeoe to the Circuit Court of Cook County ; the Hou. Biohaed S. Tuthill, Judge, presiding.
    Mr. Geoege F. Westoveb, for plaintiffs in error.
    The judgment below was erroneous and void, because no declaration was filed against the defendant as named in the writ of summons and as named in the judgment.
    The precipe and the writ of summons issued August 6, 1888, described the defendants, against whom the writ was issued, as “ Mathias Schmidt and Mrs. Schmidt.” The return of the sheriff shows the summons was served on the “ defendants Mathias Sclimidt and Mrs. Schmidt,” August 15, 1888.
    A déclaration was filed on the 4th of October, 1888, against “ Mathias Sclimidt and his wife, Mrs. Harriet C. Schmidt, whose other name is unknown to the plaintiff.”
    The declaration states a joint cause of action against Mathias Schmidt and Harriet C. Schmidt. The judgment was rendered against “ the said defendants Mathias Schmidt and Mrs. Schmidt.”
    The person actually served with summons, and who joins Mathias Schmidt in the writ of error, is Catherine Schmidt, wife of Mathias Schmidt.
    A judgment rendered against persons jointly liable is an entirety, and if void as to one defendant is void as to all. Slniford v. Cain, 2 Abb. U. S. 302; Kitchen v. Hutchins, 44 Ga. 620; Commercial Bank v. Wilson, 14 Gr. Ch. 473; C. M. L. Ins. Co. v. Clover, 36 Mo. 392; Holbrook v. Hurray, 5 Wend. 561.
    Messrs. Patterson & Langworthy and John Moffitt, for defendant in error.
   Gary, J.

The judgment complained of was by default and entered at the October term, 1888, and the motion to set it aside was made at the Hovember term, 1888.

The Circuit Court could not grant the motion made at a term subsequent to the term at which the judgment was entered, for any error of law apparent on the record. Such a motion is by statute, (Sec. 66, Practice) a substitute for tbe common law writ of error coram, nobis, on which the court could not correct its own error in law. 2 Tidd Pr. 1137, and notes; Knox v. Winsted Bk., 57 Ill. 330; Becker v. Sauter, 89 Ill. 596; Lili v. Stookey, 72 Ill. 495.

The ground of the motion that by accident and mistake the plaintiffs in error were prevented from presenting a meritorious defense, is no ground for such a writ. Kilholz v. Wolff, 8 Ill. App. 371; Fix v. Quinn, 75 Ill. 232; Courson v Hixon, 78 Ill. 339.

The summons named Mathias Schmidt and Mrs. Schmidt as defendants, and is returned as served upon them. The declaration is against Mathias Schmidt and his wife, Mrs. Harriet Schmidt, and the judgment is against Mathias Schmidt and Mrs. Schmidt. In this writ of error she is named Catherine Schmidt.

A body of pleading called a declaration, but in fact, consisting of two complete and formal decorations, is filed as one-It must be stated with certainty who are the parties to the suit, and actions to be properly brought, must be commenced and prosecuted in the proper Christian and surnames of the parties. 1 Chit. PI. 256; Elberson v. Richards, 42 N. J. Law, 69. If this rule is neglected, but there is personal service, a judgment by default is not void. Opinion of Breese, J., in Hammond v. People, 32 Ill. 446; Martin v. Barron, 37 Mo. 301. Though if the service be by publication, and no appearance, the judgment may be wholly void. Skelton v. Saekett, 91 Mo. 377.

But if the defendant does not appear, though there be personal service, if the name of the parties in the process be such that the law does not recognize it as the name of an individual or corporation, a judgment by default is erroneous. Day v. Cushman, 1 Scam. 475; Elberson v. Richards, 42 N. J. Law. 69; Revis v. Lamme, 2 Mo. 206. It seems superfluous to cite authority that the abbreviation “ Mrs.” is not a name, yet it has been so decided. Elberson v. Richards, 42 N. J. Law 69,

In England, under the old practice, such a question as is here presented could never have arisen in a court of error, as there were no judgments by default for want of appearance. The defendant must have appeared or been outlawed, if the plaintiff pursued him to the full extent of the law (3 Bl. Comm. 280), and without such appearance, the plaintiff could not proceed with the action. 3 Ch. Gen. Pr. 141. But the court in which the proceedings originated, would on such a defect set aside the writ and put the plaintiff to a new suit. Tomlin v. Preston, 1 Ch. R. 397.

Where a case has been fully presented on both sides, errors which did not injure may be disregarded if it appears that justice has been done, but on a judgment by default, this court can have no information as to what the merits are, and can not be required to strain the rules of law to supply the omission of the parties. The judgment is reversed and the case remanded. The defendant in error may amend and the plaintiffs in error plead, and their respective rights be determined. -

Reversed and remanded.


text:
    George S. Poppers v. George F. Wagner.

      Master and Servants—Trespass—Tortious Act of Servants under Direction of Master—Removal of Personal Propertyfrom Dwelling—Evidence of Wife.

    1. In an action against an employer for the alleged trespass of his servants in entering a dwelling and removing personal property therefrom, this court hold as erroneous the action of the 'trial court in allowing the wife of plaintiff to testify as to the circumstances attending such removal-her husband being absent at the time.
    2. In the case presented, the acts of the wrongdoers were not “ matters of business transactions, where the transactions were had and conducted by such married woman as the agent of her husband,” as laid down by the statute.
    [Opinion filed May 8, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Eichard S. Tuthill, Judge, presiding.
    Mr. Thomas Shirley, for appellant.
    Messrs. Gentleman & Purnell, for appellee.
   Gary, J.

This was an action of trespass by the appellee against the appellant for an entry by, as alleged, servants of appellant, into the dwelling of appellee and taking his goods. The wife of the appellee was alone at the time the alleged trespassers came, and was, against the objection and over an exception taken by appellant, admitted as a competent witness, to testify to what then happened, upon the ground, apparently, that while she was in the control of the furniture, in the absence of her husband, the acts of wrongdoers in her presence affecting the furniture, were, in the language of the statute, lCmatters of business transactions, where the transactions were had and conducted by such married woman as the agent of her husband.”

This was error. She, as agent, conducted no business. Being a spectator conferred upon her no more the character of an agent, as to the acts she witnessed, than it would have done upon any other spectator, and the control of the furniture by her in the absence of her husband, was a circumstance wholly extrinsic to, and independent of, the acts of the alleged trespassers. The acts were not a transaction had and conducted by her. East St. Louis v. O’Flynn, 19 Ill. App. 64; White v. Chancy, 20 Mo. App. 389; Baxter v. B. & W. R. R., 102 Mass. 383. The judgment must be reversed and the cause remanded.

Reversed and remtmded.


text:
    Chicago & Northwestern Railway Company v. Joseph Drake.

      Railroads—Personal Injury—Passengers—Negligent Starting of Train—Intoxication—Evidence—Instructions.

    1. The conduct of a man, drunk or sober, at the time of a given transaction, is the subject of investigation, and if it was characterized by a proper degree of care and prudence, whether he made more or less effort to pursue that line of conduct is immaterial.
    2. Total inattention to a passenger getting on in the dark, and starting a train while, with ordinary care, he is attempting to get on, when the circumstances are such as constitute an invitation to the passenger to make the attempt, render the company responsible for the consequences.
    3. In an action against a railroad company to recover damages for injuries alleged to have been caused through the negligent starting of one of its trains, this court declines to interfere with the verdict for the plaintiff.
    [Opinion filed May 8, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. W. C. Goudy and W. B. Keep, for appellant.

      Messrs. Jambs McGrath and D. P. Hendricks, for appellee.
   Gary, J.

Except as to the sufficiency of the evidence to justify the verdict, the only question presented by the brief of the appellants is upon the refusal of this instruction:

The jury are instructed, as a matter of law applicable to this case, that if they believe from all the evidence in the case, that the plaintiff, at the time of the injury complained of, was intoxicated, that that fact is not an excuse for his not exercising due care and prudence for his own safety, but of itself makes it incumbent upon him to exercise great care and prudence when he places himself in a place of danger.”

Ho argument is made or authority cited that a man intoxicated is required to exercise a greater degree of care and prudence than a sober one should do. The conduct of the man, drunk or sober, at the time of the transaction, is the subject of investigation, and if that conduct is characterized by a proper degree of care and prudence, whether the man makes more or less effort to pursue that line of conduct is immaterial.

On the evidence the facts which the preponderance of it tends to prove, are, that May 5, 1885, at 10:40 p. m., a train of appellant was due, and arrived from the north at Eosehill Station, a few miles north of Chicago; the train made the usual stop, at the usual place; the platform is a very long one; the night was dark and wet; the station house was shut, and both house and platform unlighted; no conductor or brakeman took any notice whether any passenger left or took the train. The appellee had been waiting on the platform five to ten minutes for the train, and attempted to get upon it; immediately after the train started a jolt was felt, a signal to stop given, the train backed again, and then it was found that the right foot of appellant had been crushed by the train.

He testified not so explicitly on his direct examination as he did under the antagonism of the cross-examination, that after the train stopped, he attempted to step upon the car step, and while he was so doing, the train started and the jerk threw him off. If this was in fact the way the accident happened, and the appellee was exercising ordinary care in his attempt to get upon the train, the verdict is right. It was the duty of the company to use all reasonable precaution for the safety of the traveling public.” C. & A. R. R. Co. v. Wilson, 63 Ill. 167. Total inattention to a passenger getting on in the dark, and starting the train while, with ordinary care, he is attempting to get on, when the circumstances are such as constitute an invitation by the company to the passenger to make the attempt, make the company responsible for the consequences. There is some conflict in.the testimony as to the condition of appellant as to sobriety. That matter was left to the jury under proper instruction.

A police sergeant testified that he saw the appellee attempt to get on the train, and that it was before the train stopped; that the train did not stop at the depot, but went about one hundred feet south; that it kept moving until after the accident; and then backed up one hundred feet or less. But he is so manifestly mistaken as to the movement of the. train, and it is so clear that the train was stopped the second time, and backed up because of the jolt felt upon the train after it started from the first stop, that the jury were fully warranted in believing that he was mistaken also as to the movements, of the appellee.

Eo cause is shown for reversing the judgment, and it is therefore affirmed.

Judgment affirmed.


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    Esther E. Taylor v. Lake Shore & Michigan Southern Railway Company.

      Injunctions—Railroad Right of Way—Remedy at Laxo—Costs—Restitution.

    Upon an appeal from an order dissolving an injunction, dismissing a bill for want of equity, and awarding a writ of restitution for premises taken possession of under cover of the injunction, the trial court finding that the same was improperly obtained for that purpose, this court enters a new decree, in lieu of, and as a substitute for the decree of the trial court, by modifying the same in so far as to dismiss the bill and cross-bill in the case without prejudice to the rights and remedies at law of either and both of the parties to the suit.
    [Opinion filed May 8, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Messrs. Booth & Booth, for appellant.
    The second assignment of error calls in question the decree dismissing the bill and cross-bill at costs of complainant in original bill.
    It is true that the awarding of costs in equity cases is in the discretion of the chancellor, but a sound discretion must be exercised.
    The appellee filed a cross-bill against appellant, which cross-bill the chancellor dismissed for want, of equity, at costs of defendant (appellant) to said cross-bill. If there was no equity—no just ground for filing the cross-bill against appellant—why should she pay the costs? We think such a decree oversteps the discretion vested in a chancellor, and it ought not to stand. Linton v. Quimby, 57 Ill. 271; Chapin v. Dake, 57 Ill. 295.
    Mr. Pliny B. Smith, for appellee.
    Where an injunction is obtained by deception or misrepresentation, the court will dissolve it. High on Injunctions, 1474.
    In Illinois it is the law that where an injunction is the only relief sought, the court, on dissolving the injunction, will dismiss the bill. Titus v. Mabee, 25 Ill. 257; Shaw v. Hill, 67 Ill. 455; Weaver v. Payer, 70 Ill. 567; Prout v. Lomer, 79 Ill. 331.
    Hence it follows in this case that, if the injunction should be dissolved, the bill should be dismissed.
    The bill should be dismissed furthermore on the broad ground that its averments were proven to be not true.

      The complainant was not and never had been the owner of the premises, and was not in possession until she took possession after the granting and under cover of the injunction, and inclosed the land with a fence. The defendant was not about to take possession of the land, but was in actual possession, and had had constructive possession since the time it first built its track.
    Complainant’s counsel make a distinction as to the consequences between the act of filing the bill and the act of procuring the order for the injunction. They say, in their brief, “ the controversy turns on whether, at the time the bill was filed, the appellant or appellee was in possession,” and allege that at the time the bill was filed the appellant had destroyed the fence and taken possession. It is undisputed, however, that the bill was drawn and sworn to and the order for the injunction procured before the fence was destroyed. The inference of counsel, therefore, seems to be that although the allegations of the bill were false when the bill was drawn and sworn to, and when presented to the court and the order for the injunction procured, yet, because in the interim the fence had been torn down, the averments of the bill were true when the bill was filed, and therefore the suit can be maintained. This proposition is not sound. The bill was before the court when the order for the injunction was granted, even though the bill was not filed until an hour later, and the inception of the proceedings must date from the time that the bill was presented to the court, even though counsel carried the bill in their pocket for some time thereafter before filing.
    The purpose of a writ of injunction is to maintain the status quo, until the court can hear the case and make such order as a deliberate consideration of the case may require; and where a person procures a writ of injunction and thereby ties the hands of the opposing party, and then himself changes the status, the court will require the party so abusing its process to restore matters to their original condition; and in this case, it was the duty of the court to dismiss the bill and restore this property to the defendant. Wangelin v. Groe, 50 Ill. 459; Herrington v. Herrington, 11 Ill. App. 121; Hawks v. Champion, Cary’s Reports, 51; Dowche v. Borrot, Cary’s Reports, 63; Hill v. Portmann, Cary’s Reports, 140; Harbottle v. Pooley, 2 L. T. R. 436; Van Zandt v. The Argentine Mining Co., 2 McCreary, 642: Hate v. Lucia, 36 Wis. 355.
   Gary, J.

The appellant claimed as her own, a strip of ground twenty-five feet in width along the side of land which is the undisputed right of way of the appellee.

The appellee began, and perhaps finished, fencing it into their apparent right of way. The husband of the appellant, seeing the work in progress, procured the preparation of the bill in this case, swore to it and departed for the premises, several miles from the city. The solicitors of the appellant, having upon the bill so prepared, obtained an order for the injunction afterward issued, waiting until they7 felt assured that the husband had had time to tear down the fence of the railway, filed the bill and took out the writ, enjoining the railway from disturbing her. She has parted with her title pendente lite, and has now no interest in the premises. On these facts being shown the court dismissed her bill. Other circumstances in the case need not be noticed.

The decree of the court is right, except that the right of the parties at law should be left unaffected by it. It does not appear that the appellant asked that the dismissal should be without prejudice to her rights and remedies at law, nor is it now assigned as error that it was dismissed without such saving. In the brief, however, that matter is complained of, and ex gratia the decree of the Circuit Court is so modified that the bill of the appellant and the cross-bill of the appellee are both dismissed without prejudice to the respective rights and remedies of either and both of the parties at law, and a new decree, in lieu of, and as a substitute for, the decree of the Circuit Court will be here entered to that effect.

The appellees will recover from the appellant their costs in this court, except upon the cross-error assigned; those of the Circuit Court are provided for by that portion of the decree there not affected by the decree here. Restitution is not awarded, as she did not take possession under the process of the court. Deaxe affirmed.


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    Charles P. Packer et al. v. Elizabeth Phillips.

      Attachment—Surties—Action upon Bond—Costs.

    1. In an action upon an attachment bond given in proceedings in aid of a pending action, this court holds, in view of the fact that the attachment was not of an original character, that the costs thereof are not recoverable herein.
    2. Any damage covered by such bond is recoverable without having the same first assessed in an action for wrongfully suing out the attachment, notwithstanding the condition is to pay such damages as shall be awarded in any suit subsequently brought upon such ground.
    [Opinion filed May 8, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Mr. E. A. Sherburne, for appellants.
    Mr. James B. Galloway, for appellee.
   Gary, J.

This is an action upon an attachment bond, purporting to be executed by appellants as sureties for Mary J. Lewis, in an action by her against the appellee. The bond recites that Lewis had prayed an attachment, that the court ordered it, and that it was about to be issued, but there was no proof that it ever was .issued, or that it could have done any harm to the appellee if it had been.

She recovered in this case what appeared to be the general costs of the action that Lewis prosecuted against her unsuccessfully. As the attachment prayed was not an original one, hut in aid of a pending action, those costs were not covered by the bond. Wallis v. Keeney, 88 Ill. 370, and Jevne v. Osgood, 57 Ill. 340, are in principle the same as this case. If the appellee had sustained any damage covered by the bond, she might have recovered, without having her damages first assessed in an action for wrongfully suing out the attachment, notwithstanding the words of the condition are, to pay such damages as shall be awarded in any suit which may hereafter be bronghtfor wrongfully suing out the attachment. Churchill v. Abraham, 22 Ill. 455.

There being no proof to warrant the finding, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    First National Bank of Chicago v. The William Ruehl Brewing Company.

      Negotiable Instruments—Chech—Payment—New Trial—Neivly Discovered Evidence.

    In an action to recover the amount of a check this court declines to interfere with the judgment for the plaintiff, and holds that the trial court properly declined to grant anew trial upon the ground of newly discovered evidence, it appearing that the same is inconclusive and cumulative, and that the reasons adduced for its non-production upon trial are of an unsatisfactory nature.
    [Opinion filed May 8, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Bichard W. Clifford, Judge, presiding.
    Messrs. Kraus, Mayer & Stein, for appellant.
    Messrs. Smith & Pence, for appellee.
   Moran, J.

This was an action to recover the amount of check drawn on appellant and indorsed to appellee.

The drawer of the check, one B. J. Ettelsohn, stopped the payment of the cheek, and is the real defendant, and prosecutes this appeal in the name of appellant. The case was submitted to the court for trial without a jury and the defense was based on the claim that fraudulent representations were made to Ettelsohn as to the value of a certain saloon stock by which he was induced to advance to one Meyers the check in question as a part of a loan made on said saloon. The court found in favor of appellee, and thereupon a motion for new trial was interposed which was overruled and judgment entered on the finding. Afterward and at the same term of court another motion for new trial was made on the ground of newly discovered evidence, which was supported by affidavits of said Ettelsohn and two others. The court denied said motion.

The finding of the court at the trial is clearly supported by the evidence, and it is not contended that any error of law was committed. It is urged, however, that the last motion for new trial should have been allowed in order that appellant might have the benefit of the newly discovered evidence.

Before the order of a court overruling such motion will be reversed, it must appear from the record that the newly discovered evidence is not merely cumulative, but that it is controlling and conclusive, and that the party urging the new trial has not been negligent in not producing it at the trial.

We have carefully examined the affidavits in connection with the testimony given by Ettelsohn on the trial, and we are satisfied that no case for a new trial was made which comes up to the conditions above stated. The testimony of Ettelsohn given on the trial shows that he had knowledge of facts which would have led, upon very slight inquiry, to all he alleges he discovered after the trial, and the two new witnesses were known to him at the time of the trial, and it appears that they were present at the very conversation in which he claims that fraudulent representations were made to him, and the excuses presented by him for not having their testimony, are very tenuous and unsatisfactory. The evidence is also of a cumulative character, and by no means conclusive. It merely adds more testimony on one side of an issue heard at the trial, and upon a new trial the question would be as it was on the last one, who would the court believe?

The court did not err in overruling the motion for a new trial, and the judgment must be affirmed.

Judgment affirmed.