author: Mr. Justice Stone

text:
    Lawrence Becherer et al., Appellees, v. Belleville-St. Louis Coach Company, Appellant.

      Heard in this court at the February term, 1944.
    Opinion filed February 28, 1944.
    Farmer, Klingel & Baltz, of Belleville, for appellant.
    Johnson & Johnson, of Belleville, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

Lawrence Becherer, Floyd G-rommet, and John Dahm, appellees (hereinafter designated as plaintiffs) filed suit in the county court of St. Clair county, each seeking damages from Belleville-St. Louis Coach Company, appellant (hereinafter designated as defendant), for its alleged negligence in causing an accident, or series of accidents, resulting in damage to each of the automobiles of the plaintiffs.

The pleadings consist of a complaint and answer. There are four charges of negligence alleged by each of the plaintiffs. These are:

(a) That the defendant negligently stopped, parked, or left standing its bns upon the paved highway, when it was practical to stop, park or leave its bus off of the paved highway, in violation of provisions of chapter 95%, section 185A;
(b) That no flares, lanterns or other signals were lighted or-placed upon the highway in accordance with the provisions of chapter 95%, section 218;
(c) That it negligently permitted the supply of gasoline in the tank on said bus to become exhausted, thereby negligently causing the bus to stop and become stalled on the highway;
(d) That it failed to inspect or check the supply of gasoline in the tank of the bus at a point where such inspection or check could have been made with reasonable safety.

These charges of negligence are denied by the answer.

It appears from the record that the automobiles of plaintiffs were damaged on November 23, 1941, at about 12:45 a. m. in collisions that occurred on State Bond Issue Route No. 159, a paved public highway in St.' Clair county, at a point approximately five miles south of Belleville. Running out of" gasoline, the bus operated by defendant, had stopped facing, north, in the east traffic lane, completely on the highway. This was about 100 feet north of the crest of a hill. It had been snowing most of the day and the wet snow had created a slushy condition on the highway. The defendant company, had been furnishing bus service to a dance and the bus in question had left the dance hall some time after midnight for the last trip back to Belleville. After the driver of the bus had proceeded a little more than a mile northwardly on the journey, his engine sputtered, indicating to him that the regular gas tank was empty. He coasted to a stop, raised the hood, flipped over a small lever which connected the auxiliary tank, got back in the bus and drove on. The testimony of the driver of the bus, and of two passengers therein, who testified on behalf of defendant, is to the effect that the bus was stopped at this time from 10 or 15 to 30 seconds. The testimony of plaintiff’s witnesses is to the effect that it was stopped from two to six or eight minutes on the highway.

It seems that there were five automobiles behind the bus. Numbering them from the north, southwardly, the first car was occupied by a man from Chicago or Waterloo, car number two was that of plaintiff Becherer, car number three was occupied by two soldiers, car number four was that of plaintiff Grommet and car number five was that of plaintiff Dahm. Beeherer testified that when he came within 40 or 50 feet of car number one and the bus, he noticed them and came to a stop. It appears that Dahm smashed into the rear of Grommet’s car, which was skidding sideways on the icy road. The impact of Dahm’s car into the Grommet car caused Grommet’s car to run into the rear of Beeherer’s car, which in turn bumped into car number one. This latter car did not bump the bus, and it appears that the driver was unaware of the series of collisions, until someone caught up with him where he had stopped farther down the road and so advised him.

Upon a trial before a jury, verdict was rendered in favor of Beeherer in the sum of $30.88; in favor of Dahm in the sum of $28.21 and in favor of Grommet in the sum of $75.80. It is urged as error that the trial court erred in failing to grant a peremptory instruction at the close of plaintiff’s case, again at the close of all the testimony, and in failing to grant a new trial.

It is contended on behalf of defendant that the evidence does not show that defendant was negligent, and that' it discloses a lack of due care and caution upon the part of plaintiffs. It is argued that the shoulder of the paved highway was too narrow and too soft to permit the driver of the bus to drive off of the highway and thus avoid stopping there.

Chapter 95%, sec. 185, Ill. Rev. Stat. 1943 (Jones Ill. Stats. Ann. 85.217), provides, “ (a) Upon any highway outside of a business, residence or suburban district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main travelled part of the highway, when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway. . . . (c) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main travelled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.”

In the ease of Fitzpatrick v. C. & H. Sugar Ref. Corp., Ltd., 309 Ill. App. 215, which was a case where an automobile had been stopped upon the paved highway, at night, so that an automobile following collided therewith, this court held that the only excuse for stopping a vehicle on the pavement was an emergency or exigency which left no other choice, citing with approval in that opinion, Hand v. Greathouse, 294 Ill. App. 383, 13 N. E. (2d) 1010; Frochter v. Arenholz, 242 Ill. App. 93; Sugrn v. Highland Park Yellow Cab Co., 251 Ill. App. 99; Crawford v. Gahalan, 259 Ill. App. 14; McLaren v. F. Byrd, Inc., 296 Ill. App. 345, 15 N. E. (2d) 993.

In the instant case, while the driver of the bus on behalf of defendant testified that the shoulder of the road was too narrow and too soft to permit him to drive the bus off the highway, according to at least one of plaintiffs’ witnesses, the shoulders were frozen, and Gfrommet testified that the shoulder was 8 to 10 feet wide, which was wide enough for the bus, 7 feet, 6 inches wide, to have been driven upon. The driver further testified that after he discovered that he was about out of gas, he rolled 40 or 50 feet. Whether he could have driven upon the shoulder, and thus avoided stopping upon the paved highway, was a disputed question of fact for the determination of the jury, in passing upon the question of the proximate cause of the collision. Waschow v. Kelly Coal Co., 245 Ill. 516; Illinois Cent. R. Co. v. Siler, 229 Ill. 390; Pullman Palace Car Co. v. Laack, 143 Ill. 242; Martin v. Village of Patoka, 305 Ill. App. 51. The question of plaintiffs’ contributory negligence was also for the jury. Fitzpatrick v. C. & H. Sugar Ref. Corp., Ltd., supra.

The jury saw and heard the witnesses. In passing upon the question of the alleged negligence of defendant and the alleged contributory negligence of plaintiffs, they had a right to and did, no doubt, take into consideration the testimony as to the softness or otherwise of the shoulder of the road; its width; the evidence as to whether or not there was a sufficient hill there near the scene of the-collision to have affected visibility, and as a background of the whole, the weather conditions at that time. It is not the province of the court to substitute its judgment for that of the triers of fact, where there is a conflict in the testimony. Martin v. Village of Patoka, 305 Ill. App. 51. The verdict so reached by the jury will not be disturbed, unless it is against the manifest weight of the evidence. Rembke v. Bieser, 289 Ill. App. 136; Leahy v. Morris, 289 Ill. App. 99. On this record, we are not inclined so to hold, and the judgment of the trial court will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    People of the City of Olney, Appellants, v. City of Olney, Defendant.
    Heard in this court at the February term, 1944.
    Opinion filed February 28, 1944.
    A. J. McMahan, of Olney, for appellants.
    A. E. Butterfield, of Olney, and Stevens & Herndon, of Springfield, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Richland county, finding in favor of the City of Olney, respondent defendant (hereinafter designated as respondent) and against the People of the City of 01-ney, petitioners appellants (hereinafter designated as petitioners) and growing out of a petition protesting against the passage by the City of Olney and going into effect of Ordinance No. C-28 and requesting a referendum thereon and objections to said petition.

It appears that on January 5, 1943, the city council of the City of Olney, Illinois, operating under the commission form of Municipal Government, passed an ordinance granting to Central Illinois Public Service ■ Company a franchise to use the streets, alleys and public places in the conduct of an electric public utility.

A petition was filed with the city clerk, on February 4th, following, pursuant to the provisions of section 19 — 53 of chapter 24, Ill. Rev. Stat. 1943, page 385 [Jones Ill. Stats. Ann. 21.1495], protesting against the ordinance. On February 9th, thereafter, objections to the petition were filed with the city clerk and on the day following both petition and objections were filed by him with the circuit clerk of Richland county and on that day presented by the circuit clerk to the circuit judge, who thereupon on that date noted on the petition and objections the date presented; noted thereon the date when he would hear them, fixing February 17th, for such hearing, at the courthouse in Olney and ordered five days ’ notice thereof to be given by publication in the Olney Daily Mail, a daily secular newspaper published in the City of Olney.

Thereafter hearings were held, at which considerable evidence was introduced relevant to the questions of genuineness of signatures of signers of the petition and their qualifications as electors, and on March 8, 1943, the court entered its decree reciting that the petitioners and objectors were represented by counsel; finding that the court had jurisdiction of the subject matter and of the parties; and finding that the petition did not comply with the statutes relating to form and sufficiency and that said petition was wholly insufficient and decreeing it void and of no force and effect, from which decree the petitioners prosecute their appeal to this court.

The principal errors assigned and relied upon for reversal hy petitioners are, that the court erred in entering an order sustaining the objections to said petition for the reason that the court was without jurisdiction of the cause of action; that the court erred in entering an order sustaining the objections to said petition for the reason that the court did not have jurisdiction of the necessary parties; and that the court erred in holding that the petition filed by petitioners was void, of no force nor effect, and not sufficient to comply with the statutes of the State of Illinois relating to the form and sufficiency of such petitions.

It is contended by petitioners that the record before the court on the dates of the hearing on February 17 and February 26, and up to and including the date on which the final order was entered, March 8, is barren of any evidence that the requirements of the statute or the requirements of the order of court were complied with as to the publication of notice, and that it necessarily follows, that the court not only failed to have jurisdiction of the cause but of the parties, as well.

Section 19 — 59, ch. 24, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 21.1501], with reference to jurisdiction provides as follows: “Jurisdiction is vested in the County Court or in the judge thereof in vacation, or in the Circuit Court, or in a judge or judges thereof in vacation, to determine without a jury the sufficiency of the petition.” The section then next provides, “The Judge (1) shall note thereon the day presented, and (2) shall also note thereon the day when he will hear them, which day shall not be less than five nor more than ten days after the day of presentation, and (3) shall order five days’ notice thereof to be given by publication in some daily secular newspaper published in the municipality, or, if there is none, then by posting notices in five of the most public places in the municipality, including a notice at the municipal hall, if there is one. ’ ’ By this'provision, the legislature has prescribed that jurisdiction, unmodified, unlimited and unconditioned, is vested in the judge, and then requires of him the three specific, enumerated acts and thereafter proceeds at once to tell him to render judgment.

There appears in this statute, no requirement that the fact of publication be affirmatively shown. Obviously the legislature took it for granted that after ordering publication the judge would require that his order be carried out before rendering judgment. In the case of Hannas v. Hannas, 110 Ill. 53, service was had upon a nonresident by publication and mailing notice. The statute provided that before publication could be had a summons must have been issued and returned, “not found.” The record in the case was silent as to whether any summons had ever been issued and return made. The court however, held that the issuance of the summons would be presumed under the rule supporting judgments of courts of general jurisdiction. The court said, “We do not think the mere fact, that no summons is found in the record can be regarded as sufficient to overcome the presumption that, the clerk did his duty and issued one, the positive recitals in the notice published by him and the inference to be drawn from the recitals in the decree that due notice of the pendency of the suit was given. ’ ’ The only purpose of publication can be to give notice to interested parties, so that they may attend or not as they see fit. The record shows that all of the parties in the petition appeared in the circuit court in this proceeding and participated in the trial without objection. Appearance before a court of competent jurisdiction and submission to it of a controversy for adjudication, give it full power to try the case and render judgment, without regard to the original process by which the case is brought into court. Grier v. Cable, 159 Ill. 29; Pocahontas Min. Co. v. Industrial Commission, 301 Ill. 462; Gibson v. Glos, 271 Ill. 368; McDonnell v. Glos, 266 Ill. 504; O’Laughlin v. Govell, 222 Ill. 162. In our opinion there can be no question but what the trial court had jurisdiction of the subject matter and- of the parties.

It is further contended on behalf of petitioners that initiative and referendum laws should be liberally construed; that the directions of the statute with reference to the form of the petition are directory rather than mandatory, and that a substantial compliance with the requirements of the statute are sufficient, and that therefore the court should have held the petition to be sufficient.

The. statutory provisions prescribing what the petition must contain to be valid are all set forth in section 19-7-58, ch. 24, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 21.1500] which contains five subdivisions, lettered (a), (b), (c), (d) and (e).

Subdivision (b) of the section sets forth a form for the petition, consisting of the prayer, the signatures and accompanying data, and the affidavit.

Subdivision (c) provides that ‘ ‘ The petition shall consist of sheets having the form prescribed in Subdivision (b) of this Section, except the affidavit, printed or written at the top thereof . . . ”

Subdivision (c) also provides, in the second paragraph of that subdivision, that “At the bottom of each sheet shall be added the affidavit in the form specified in Subdivision (b) of this Section, . . . .”

Subdivision (c) also provides, in the first paragraph, that “No signature shall be valid unless the requirements in this Subdivision are complied with.”

Subdivision (d) of the section provides, that “The sheets shall be fastened together at the upper pages in one document and filed as a whole. When filed, the petition shall not be withdrawn or added to or altered in any manner by any person. ”

The record discloses that of the necessary 320 signatures, 293 are on sheets containing no heading protesting against the ordinance and asking for an election; 317 of the necessary 320 appear on sheets containing no verifying affidavit; none of the entire 367 signatures appear on sheets containing both a statement protesting against the franchise and requesting a vote and a verifying affidavit and the sheets of the petition were not fastened together in one document and filed' as a whole.

The law seems to be well settled in this State, the right to contest an election being purely statutory, that the procedure prescribed by statute must be strictly followed. Thompson v. Vaughan, 192 Mich. 512, 159 N. W. 65, 66, 70; People v. DeBoice, 377 Ill. 634, .639; Armstrong v. Wilkinson, 346 Ill. 322, 324; Girhard v. Yost, 344 Ill. 483, 484; Bowen v. Russell, 272 Ill. 313, 318.

On this record we cannot say that the trial court erred in finding the petition insufficient in law.

The Appellate Court will not reverse the judgment of a lower court when it can determine from the record, that the judgment is the only one which could properly be rendered. Heckle v. Grewe, 125 Ill. 58, 62; West Chicago St. Ry. Co. v. Maday, 188 Ill. 308, 310; Farmer v. Davis, 289 Ill. 392, 399; Pfeiffer v. McCullough, 115 Ill. App. 251, 255. The motion to strike parts of the record is denied.

We find no reversible error in the record and the judgment of the circuit court of Richland county will be affirmed.

Affirmed.


author: Mr. Justice Hayes

text:
    Louis R. Scheetz, Appellant, v. Kerman R. Crabill, Appellee. Gladys Crabill and State Bank of LaHarpe, Garnishees Appellees.
    Gen. No. 9,396.
    Heard in this court at the May term, 1943.
    Opinion filed February 29, 1944.
    Samuel Naylor, of Carthage, for appellant.
    Edward C. Mack and Homer H. Williams, both of Carthage, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

On April 7, 1941, John F. Martens filed an affidavit for attachment in the circuit court of Hancock county against Kerman R Crabill doing business as the Adrian Mill & Elevator Company, to recover the sum of $450.25. A writ of attachment was issued summoning the State Bank of Burnside as garnishee and was served on the Bank the same day. On that day, Crabill’s account in the Bank which amounted to $2,516.50 was debited with two checks, — one for $693.53 and the other for $1,053.66.. On the next day, four more checks were debited, one of which was in the sum of $450.53 and was made payable to Martens. This check was apparently intended to satisfy Crabill’s indebtedness to Martens. On April 28, 1941 Martens dismissed his suit.

In the meantime, on April 21, 1941, Louis R. Scheetz, plaintiff here, filed his affidavit for attachment in the same court against Crabill. The writ was issued and the State Bank of Burnside was again summoned as garnishee. The affidavit recited an indebtedness of $2,678 due Scheetz from Crabill. The Bank filed its answer to written interrogatories, to which answer Scheetz filed a traverse. On September 28, 1942 the Bank filed a motion for judgment. On December 12, 1942, judgment was rendered against Crabill by the circuit court for $2,678 and costs. On February 13,1943 that court entered judgment against the Bank in favor of Crabill for the use of Scheetz for $61.45, the balance in Crabill’s account on the date of the second writ of attachment. Scheetz has appealed to this court.

It is Scheetz’ contention that the Bank after service of the attachment writ on it in the Martens case was under a duty to refuse to honor any charges against Crabill’s account, that it even had no authority to pay over to Martens the amount of his indebtedness unless so ordered by the circuit court of Hancock county, and that because of the alleged improper payments made from Crabill’s account, the Bank is liable to Scheetz for the amount of his judgment. In support of this contention, Scheetz cites section 21 of the Attachment Act. Ill. Rev. Stat. 1943, ch. 11, sec. 21 [Jones Ill. Stats. Ann. 109.055]. That section, after its amendment in 1935, provides as follows: “Persons summoned as garnishees shall thereafter hold any property, effects, choses in action or credits in their possession or power belonging to tbp defendant which are not exempt, subject to the court’s order in such proceeding, and shall not pay to the defendant any indebtedness owed to him subject to such order, and such property, effects, dioses in action, credits and debts shall be considered to have been attached and the plaintiff’s claim to have become a lien thereon pending such suit.”

Prior to its amendment in 1935, section 21 was construed to provide that a garnishment created a personal liability, only as against the garnishee in the event he parted with assets of the debtor in his hands. McElwee v. Wilce, 80 Ill. App. 338. It is clear that section 21 now provides that assets in the hands of a garnishee are subject to a lien in favor of the plaintiff in the attachment proceedings and that the garnishee shall hold such assets subject to court order. Had Martens not been paid, it is obvious that section 21 would have operated in his favor. • The question here, however, is whether Scheetz can take advantage of the attachment writ in the Martens’ case and complain of the Bank failure to hold Crabill’s account intact until an order was entered in the Martens’ case.

We have been informed in the briefs in this cause that section 21 as amended, is unique and that similar statutes do not exist in other States. Thus we are not aided by decisions in other jurisdictions. Nor does it appear that other courts of review in this State have passed upon this precise question. We believe, however, that the construction of section 21 urged by Scheetz is unsound. To adopt his theory, would, in effect force a garnishee to be a receiver of a debtor’s assets in his hands, responsible to sill of the debtor’s creditors who might thereafter file attachments. The legislature has expressly provided in section 37 of the Attachment Act. Ill. Rev. Stat. 1943, ch. 11, sec. 37 [Jones Ill. Stats. Ann. 109.070], that under certain circumstances not present here, multiple attaching creditors may share in assets held by a garnishee by extending the protection of the first writ of attachment to all subsequent attaching creditors who meet the requirements of that section. We do not believe that the legislature intended to provide that subsequent attachments should receive similar benefits under section 21. While it is true that had the Bank here obeyed the provisions of section 21, a fund would have existed which would have been available to liquidate at least part of Scheetz’ indebtedness, we do not believe that he can take advantage of their failure to do so. Any protection that section 21 gives was intended for Martens in the present fact situation and only he could complain of the Bank violation thereof.

Scheetz also relies on Buckingham v. Shoyer, 86 Ill. App. 364. There, after service of a writ of attachment, an assignee of the debtor filed an inter-pleader claiming the funds in the hands of the garnishees as assignee of the debtor. After judgment but before the interpleader was disposed of, the garnishees paid the funds in their hands to the attaching creditors. On the interpleader, the assignee successfully established his claim and recovery against the garnishees was allowed. In that Buckingham case, however, only one attachment suit was involved and the garnishees paid over the funds in their hands after they had notice that a third party was asserting rights superior to the attaching creditor. Here, the Bank paid over sufficient funds to satisfy Martens’ indebtedness and then honored checks on the balance of the account, and all of this was done prior to the service of the writ in the Scheetz case. This case is clearly not in point here.

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

Judgment affirmed.


text:
    Consolidated Chemical Laboratories, Inc., Trading as Consolidated Laboratories, Appellee, v. County of Cass, Appellant.
    Gen. No. 9,407.
    Heard in this court at the October term, 1943.
    Opinion filed February 29, 1944.
    C. G. Colburn, of Virginia, Illinois, for appellant.
    Vaught, Foreman & Cleary, of Jacksonville, for appellee; E. W. Cleary, of Jacksonville, of counsel.
   Mr. Justice Hayes

delivered the opinion of the court.

On July 5, 1934, the sheriff of Cass County purchased an order of sanitary supplies for the court house and jail from a salesman for the Consolidated Chemical Laboratories, Inc., at a cost of $116.25. Under regulations enacted by the board of supervisors of Cass County and in effect for some time, it was necessary that approval of orders of this type be obtained from a member of the courthouse and jail committee of the board, and such approval was obtained for this order by the sheriff and the salesman. The following- day the sheriff placed another order for similar supplies from the same salesman, which order amounted to $452, and on August 14, 1934 still another order of the same character was made by the sheriff,' — this order amounting* to $85. Neither of these latter orders was approved by a member of the courthouse and jail committee. The supplies were delivered and a claim for the order of July 5,1934 was allowed and paid by the board of supervisors. No claims for the other two orders were filed until after the expiration of the sheriff’s term of office, and it was not until then that the board of supervisors learned of them. When it did discover that the orders had been made, it offered to return the balance of the supplies then on hand but the Laboratories refused to accept them. The claims filed for these two orders were not allowed and the board has repeatedly refused to pay them. The Laboratories filed suit against Cass County in the circuit court of that county. Accompanying their complaint was an affidavit asking for a summary judgment. The county answered and filed a motion to deny the summary judgment, supporting its motion with an "affidavit of merits. The Laboratories thereupon withdrew their motion for summary judgment, and the county then filed a written demand for a jury. The Laboratories moved to strike the jury demand, which motion was allowed, and a trial was held before the court who entered judgment for the plaintiff. The County of Cass has appealed to this court.

While it is true, as appellee contends, that the sheriff is entrusted with the care and custody of the courthouse and jail (Ill. Rev. Stat. 1943, ch. 125, sec. 14 [Jones Ill. Stats. Ann. 124.14]; Dahnke v. People, 168 Ill. 102) we believe his authority to create a liability against the county for supplies is subject to control by the board of supervisors of a county. It is to that board that the general corporate powers of the county have been delegated (Ill. Rev. Stat. 1943, ch. 34, sec. 23 [Jones Ill. Stats. Ann. 33.023]), and it is expressly given the power to make all contracts on behalf of the county. Ill. Rev. Stat. 1943, ch. 34, sec. 24 [Jones Ill. Stats. Ann. 33.024]; Stevens v. St. Mary’s Training School, 144 Ill. 336. The board of supervisors may delegate the execution of certain of its powers to committees or agents. Sexton v. County of Cook, 114 Ill. 174; Dunne v. Rock Island County, 283 Ill. 628. We believe it has the power to enact reasonable regulations controlling the exercise of delegated powers. In the present case we believe that the board of supervisors of Cass County had the authority to require the sheriff of that county to secure the approval of the courthouse and jail committee before entering into any contracts creating a liability against the county.

From the record in this case, it must be presumed that appellee had knowledge of the rule of the county board requiring approval of contracts made by the sheriff. Its salesman, if he did not know before, certainly learned of the restriction when he, together with the sheriff, secured approval of the order of July 5, 1934. It therefore accepted the second and third orders and sent the supplies at its own risk and cannot now complain of the action of the board in refusing to allow the claims filed therefor. Piatt County v. Republican Printing Co., 99 Ill. App. 411.

Because of the decision we have reached on the merits of this case it is not necessary for us to pass upon the order of the court striking appellant’s demand for a jury.

The judgment of the circuit court of Cass County is reversed and the cause remanded to that court with directions to enter judgment for defendant.

Reversed and remanded with directions.


author: Mr. Justice Riess

text:
    Ernest J. Mohr and Sylvia Mohr, Appellants, v. H. H. Messick, Appellee.
    Gen. No. 9,395.
    Heard in this court at the October term, 1943.
    Opinion filed February 29, 1944.
    C. E. Tate, of Champaign, for appellants.
    H. H. Morey, of Decatur, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

Ernest J. Mohr and Sylvia Mohr, his wife, plaintiffs appellants herein, have appealed from decretal orders of the circuit court of Champaign county dissolving a temporary writ of injunction issued on March 28, 1942 and dismissing their suit against defendant appellee H. H. Messiek for want of equity. The plaintiffs had filed a second amended complaint in the above suit on said date, whereby, they sought to restrain an execution sale and to remove an alleged cloud from the title to certain farm lands in Champaign county owned in fee simple by plaintiff Ernest J. Mohr. The execution had been issued upon a common law judgment previously entered in the circuit court of Macon county in favor of H. H. Messiek and against Ernest J. Mohr, which judgment, execution and levy on his interest in said lands were alleged to be void and to constitute a cloud upon the plaintiffs’ title thereto. Upon dismissing the suit, the court had assessed damages in the sum of $100 and costs of suit against the plaintiffs.

It appears from the record that the judgment against Ernest J. Mohr on which an execution was issued on November 18, 1941, had been entered in the Macon county circuit court on March 17, 1936 for the sum of $1,170.53, with accrued interest and costs. Appellants contended that the judgment was void, alleging that it was a renewal and revival of a previous judgment entered against Mohr in said court in vacation on March 26, 1929, in the sum of $862.59, upon a forged promissory note and warrant of attorney held by Messiek as assignee, which instruments had never been signed nor executed by Mohr as their purported maker.

Defendant Messiek denied that either of said judgments or the executions issued thereon were void and averred that plaintiff Mohr liad in 1935, petitioned for an order opening the original judgment so entered on said note in 1929 and for leave to plead, which petition had been denied by the Macon county circuit court and from that order no appeal was taken; that the judgment now in force on which the execution was issued had been duly entered in the Macon county circuit court on March 17, 1936, was valid and binding and remained wholly unsatisfied; that said judgment had been so entered in Macon county after due personal service upon appellant Ernest J. Mohr by summons more than 20 days before return day; that said defendant had failed to plead thereto, and after default, the judgment in question had been duly entered against the defendant and was never set aside nor appealed from; that in such proceedings there was available to the plaintiff complete and adequate defenses or alleged defenses and remedies at law which might otherwise be available to him in a suit in equity, had he seen fit to assert the same by pleading therein; that said judgment recited the jurisdiction of the court upon its face, purports a verity and became res judicata of the issues herein and cannot now be collaterally attacked, set aside nor held to be void; that the judgment and execution levy thereunder was not a cloud upon the title to appellants’ lands but was a valid subsisting lien upon the interest of Ernest J. Mohr therein levied upon, in which Sylvia Mohr was stipulated to have had only an inchoate dower interest, not levied upon nor in issue herein, and that the lands were therefore subject to execution levy and the sale of so much thereof as became necessary to satisfy the said judgment, interest and costs due the appellee from Ernest J. Mohr.

Further allegations concerning suits and prior proceedings had between the parties are discussed or recited in the pleadings, which we deem to be immaterial in passing upon the issues and assignments of error set forth herein.

Appellants contend that the order dismissing the suit for want of equity is against, the manifest weight of the evidence; assigns error in holding that the doctrine of res judicata prevents plaintiff from collaterally asserting in this proceeding the invalidity of the judgment reviving an original judgment based upon a forged note; error in dissolving the temporary injunction prior to the time of the filing of pleadings and joinder of issue by the defendant and as being contrary to the law and the evidence. No error is assigned to the holding of the chancellor that the plaintiff, Ernest J. Mohr, as defendant in the common law suit of 1936 in Macon county, was given a complete and adequate remedy at law which might have been asserted and pursued by him by way of an affirmative defense of fraud or forgery and by direct appeal had he seen fit to plead or assert the same.

In dissolving the temporary writ of injunction, the trial court used the following language: “In the case at bar, the plaintiffs have had a full and complete remedy to their motion to vacate the judgment and for leave to plead, and if not, they certainly then had full opportunity to present the defense of forgery and fraud when the suit was brought to Macon county to revive the original judgment. Having failed either to assert this defense then or to prevail upon it when it was asserted, equity will not permit a relitigation of the same matters in defiance of the judgments of the court of Macon county adjudicating them.” In subsequently passing upon the case on its merits, the court adopted the above opinion as announced in the trial at the time of the dissolution of the temporary injunction; found that the defendant in the chancery suit did not specifically deny the allegations that the original note was a forgery but averred the validity of all judgments; set forth that the only interest of Sylvia Mohr was the inchoate right of dower as stipulated between the parties; that the plaintiff Ernest J. Mohr, against whom the original judgment was entered in 1929, had made a motion to vacate the same in the circuit court of Macon county which had been denied; that the court was not concerned with the question of laches which were not in issue under the pleadings in the instant proceedings (see Messiah v. Mohr, 292 Ill. App. 69, 10 N. E. (2d) 870); that the chancellor was without power to again litigate in a collateral proceeding the issues raised and adjudicated in the original judgment and denial of motion to open the same, from which no appeal was taken; .that the common law judgment of revivor entered in 1936 in the Macon county circuit court was a new suit under the Civil Practice Act.

Fraud or forgery, like any other affirmative defense, will not be presumed, but must be averred and proven. If the court has jurisdiction of the parties and subject matter of the suit and. such defense is available, it must be affirmatively asserted. A defendant having full knowledge of the facts cannot sit idly by and negligently permit a default and judgment at law to be entered against him and then seek to relitigate the same cause or defense by a collateral suit in equity wherein his defense at law, if asserted and availed of, would have been a complete and adequate remedy in the prior proceeding.

In this case, the defense was not'equitable but was strictly and purely legal, and neither mistake, accident, fraud, deception or any other excuse for not making the defense in the circuit court of Macon county was alleged or proven, but with full knowledge of all the facts, with personal service and notice of the application for judgment, the interested complainant wholly ignored and disregarded the proceeding until a judgment was rendered against him and after due issuance and service of execution thereunder, now seeks to collaterally review or relitigate the issues in a court of equity and to set aside that judgment. This, he cannot do.

Courts of equity interpose their powers to grant relief against judgments in a limited class of cases and always upon some recognized ground of equity jurisdiction. Examples of such interposition are cases wherein the defense is equitable and not admissible in a court of law, or where the complainant, without any fault or negligence on his part or that of his agents, was prevented from making his defense by fraud or deception or failed to make it through mistake, surprise or some accidental circumstances beyond his control. Where a defense is available at law and there is no sufficient reason for a failure to make it, a court of equity has no power to grant relief against the judgment and will not give a complainant a second opportunity to make his defense. Thoeming v. Hawkins, 294 Ill. 30; Carney v. Village of Marseilles, 136 Ill. 401, 26 N. E. 491.

Equity will not relieve against a judgment at law except in cases of fraud, accident or mistake, and then only where the party applying for relief is free from all negligence. It is not enough that the judgment is unjust; it must have been obtained without negligence on the part of the appellant to entitle him to relief. Kretschmar v. Buprecht, 230 Ill. 492, 82 N. E. 836. Appellants could not willingly or negligently permit such judgment to be taken and then be relieved from it in equity. Supra. It is not the policy of the law to permit a party to slumber upon his rights when he has the opportunity and is required to assert them in a court of justice, and then seek them in another form. Supra. Wackerle v. Nies, 286 Ill. App. 51, 64, 3 N. E. (2d) 126; Goelitz v. Lathrop, 286 Ill. App. 248, 3 N. E. (2d) 305; Kretschmar v. Ruprecht, supra.

In the case of Cairo & St. L. R. Co. v. Holbrook, 92 Ill. 297, at page 301, the court tersely stated the rule as follows: “Where a party has been served with process and neglects to appear and defend, but suffers judgment to be rendered by default, it has long been settled that a court of equity will not relieve the negligent from such a judgment.” Ward v. Durham, 134 Ill. 195, 202; Kretchmar v. Ruprecht, supra; Goelitz v. Lathrop, supra.

The rule is likewise well established that the fraud for which a judgment may be enjoined in equity must be in the procurement of the judgment. If there be fraud entering into the cause of action which vitiates it, that is a defense which must be interposed in the action at law unless the party has been prevented from interposing the defense by fraud. While equity will relieve from a judgment obtained through fraud, accident or mistake, still the party invoking the interposition of equity must be free from negligence. Wackerle v. Nies, 286 Ill. App. 51, 3 N. E. (2d) 126; Kretschmar v. Ruprecht, 230 Ill. 492, 82 N. E. 836; Hollister v. Sobra, 264 Ill. 535, 106 N. E. 507.

A court of equity will afford no relief to enjoin a judgment where complainants had opportunity by proper proceedings to present their defense and by appeal to correct any error committed. Mazor v. Handler, 208 Ill. App. 312; Clark v. Chandler, 286 Ill. 180, 183, 121 N. E. 566. Where complainants seeking to enjoin the enforcement of a judgment were not prevented from obtaining relief in the trial court through any fraud, accident or mistake, but had opportunity by proper proceedings to present their defenses and by appeal to correct any error committed in the proceedings to obtain or vacate the judgment, equity will not afford them relief. Mazor v. Handler, supra. In Goelitz v. Lathrop, 286 Ill. App. 248, 3 N. E. (2d) 305, it was held that a party seeking to enjoin a judgment or the collection of a judgment must be free from all negligence and must have used the highest degree of diligence in the cause in which the judgment at law was entered. Where a party has been served with process and neglects to make his defense, he cannot invoke the aid of equity to grant him relief from the judgment.

It was not error by the chancellor to hold that the original Macon county judgment of March 25, 1929, a transcript whereof was filed in Champaign county on March 27, 1929 (see Messick v. Mohr, 292 Ill. App. 69) and the unsatisfied execution issued thereon, but long since expired by limitation, was not a lien upon plaintiffs ’ lands entitling him or them to the equitable relief prayed against the defendant in relation thereto in this proceeding, the controlling and decisive issues of which concerned the validity of the 1936 judgment and levy thereunder. Plaintiff against whom the judgment was entered and execution issued had an adequate and complete remedy at law in the common law proceeeding in Macon county wherein the judgment was entered in 1936, had he seen fit to assert it. No evidence-of any fraud, concealment, misrepresentation, mistake or other irregularity in connection with the personal service, default and entry of that judgment appears in the record. The judgment, so duly entered and remaining in full force and effect, precludes the plaintiffs from now seeking and asserting their equitable remedy alleged herein.

We believe that the errors assigned by the plaintiffs are without merit and that the chancellor properly dissolved the temporary writ of injunction and dismissed the suit for want of equity on the terms set forth in the decree. Finding no reversible error in the record, the decree of the circuit court of Champaign county is affirmed.

Decree affirmed.


author: Mr. Justice Biess

text:
    In re Estate of John Rankin, Incompetent.
    Gen. No. 9,400.
    Heard in this court at the May term, 1943.
    Opinion filed February 29, 1944.
    Homer D. McLaren, of Springfield, for appellant.
    Homer B. Harris and Lyman S. Mangas, both of Lincoln, for appellee.
   Mr. Justice Biess

delivered the opinion of the court.

After trial and verdict by a jury in the county court of Logan county on July 8, 1942, John Rankin was adjudged to be an incompetent person and incapable of managing his estate. An appeal was taken from that judgment to the circuit court of said county. On July 8, 1942, upon trial de. novo, an order was again entered finding appellant Rankin to be incompetent and incapable of managing his estate and on July 23, 1942, John F. Lanterman was duly appointed as conservator of said estate. From that order, an appeal was taken to this court which affirmed the judgment of the circuit court; the case being reported as Rankin v. Ranltin, 322 Ill. App. 90.

On December 15, 1942, the said conservator filed a petition in the above county court setting forth in substance that Paul Rankin, a nephew of John Rankin who had filed the original petition in Gen. No. 9,393 asking appointment of a conservator, was without funds or means to appear and defend said cause upon appeal and petitioned for an order directing the conservator to pay from the estate of said ward the cost of printing and preparing briefs, additional abstract and necessary costs or expenses including employment of counsel to represent appellee in said proceedings and defend the above order of the circuit court. John Rankin, by Homer D. McLaren, an attorney-at-law, appeared and filed an answer therein without any order or leave of court and opposed the prayer of said petition of the conservator, which petition was duly heard and allowed by said court on January 4, 1943. From that order, notice of appeal to the circuit court of said county was filed on January 21,1943, by said incompetent ward, appearing as “John Rankin, by his attorney Homer D. McLaren.” On January 23, 1942, an appeal bond to the circuit court of said county was approved by the judge of said county court in the sum of $100 signed by John Rankin, A. M. Park and Maud M. Campbell. No order of appointment of a guardian ad litem, nor of said Mc-Laren either as guardian ad litem or next friend of John Rankin authorizing him to prosecute an appeal from said order was entered previous to the order fixing and approving said appeal bond. Upon motion of the conservator in the circuit court, the appeal was dismissed for want of jurisdiction. From this order, an appeal was prayed to the Supreme Court in which briefs and abstracts were filed and a vacation order was entered therein on April 14, 1943, finding that said cause had been wrongfully appealed to the Supreme Court and transferring the same to this court for further proceedings.

Appellant assigns errors in dismissing the appeal from the county court to the circuit court for want of jurisdiction; in not interpreting the law in relation to conservatorships; in not passing upon the merits of the ease and in finding that the county court had not by any order authorized, allowed and approved the appeal.

The principal and controlling contention of appellee is that when a conservator has been appointed by the court having jurisdiction of the parties and subject matter, an action cannot be lawfully brought, prosecuted, defended or appealed by another person, acting for and on behalf of the ward, by designating himself as next friend, without express appointment and authority from the court. Appellee further contended that the appeal bond was void ab initio, since an incompetent person who signed the bond as principal could not be bound thereby under the inhibiting provisions of sec; 126, ch. 3, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 110.375], providing that “Every note, bill, bond or other contract by any person who is an adjudged insane or an adjudged incompetent person is void as against that person and his estate, . . . .” Appellee cited in support thereof and as construing said language, Karr v. Rust, 217 Ill. App. 555-562; Morrison v. Beers, 327 Ill. 139, 158 N. E. 371 and Bradshaw v. Lucas, 214 Ill. App. 218, 223. The latter case holds that from the time a person is adjudged to be distracted and incapable of caring for his property and effects, until, if ever, he is adjudged to be restored, he has no more legal power to act for himself than if he were dead and that a contract made, or release or receipt given by him has no legal significance. Chapter 86, sec. 14, Ill. Rev. Stat. Persons who, during that time, have business transactions in which the incompetent ward is concerned must deal with him through his conservator. Section 124 of the Probate Act expressly provides that the conservator shall appear and represent his ward in all legal proceedings, unless another person is appointed for that purpose as conservator or next friend. But this does not impair the power of any court to appoint a conservator or next friend to defend the interests of the ward in that court, or to appoint or allow any person as the next friend of a ward to commence, prosecute or defend any suit in his behalf. It is contended by appellee that the above salutary provision requiring such order of court is applicable and is designed and intended to protect the interests and estate of the incompetent ward. Here, it appears from the record that no order was entered by the county court appointing the said McLaren as guardian ad litem or next friend nor was any order of any kind authorizing him to appear in the county court in opposition to the conservator’s petition entered by said court. It is patent from the record that said McLaren appeared voluntarily in the proceeding and wholly without authority of any order of the court, ostensibly in behalf of the ward. It is said in Covington v. Neftzger, 140 Ill. 608-612 that one undertaking to appear on behalf of an insane person must have power to act for such person and bind him and his estate and that without proper authority, the lunatic or insane person cannot appear by his next friend. In Isle v. Granby, 199 Ill. 39, this is said to be especially true when there is a conservator and it appears that the next friend was not appointed by the court but seemed to have been a mere volunteer. In Covington v. Neftsger, supra, the Supreme Court further said: “The court required Covington, the next friend, to file bond for costs but this cannot be construed as an order authorizing him to sue as next friend.” The order providing the amount and approving the bond by the county court following the decision of the case granting the petition of the conservator sought to be appealed from in no sense obviated the necessity for the prior appointment of a guardian ad litem or next friend to appear and act in opposition to the petition or in the prosecution of an appeal.

While it is true that a court will exercise a sound discretion in protecting a ward against injustice or the unlawful and improvident dissipation of his property, it may be noted from the opinion of Rankin v. Rankin, 322 Ill. App. 90, that this court, in affirming the original order of appointment of the conservator and requiring an accounting of his business and property interests by other persons, sought to protect the interests of the ward against fraudulent conversion and dissipation of his valuable estate by interested persons sustaining a fiduciary relation to the ward*and who had allegedly secured control and possession thereof. The facts in relation thereto are fully set forth in the above opinion and we need not again discuss the same.

It appears from the record herein that appellee conservator was duly appointed and lawfully qualified and acting as conservator of the estate of said incompetent ward at the time of the filing of the petition; that without the appointment of a guardian ad litem or next friend by the county court with authority to represent the said ward in said proceeding, the circuit court, upon due motion by the conservator, properly held that it was without jurisdiction to entertain the appeal and try the cause de novo under the particular facts and circumstances disclosed by the record.

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

Affirmed.


author: Mr. Justice Bless

text:
    Edith Otter Lewis, Appellee, v. T. C. Hill, Individually and as Executor of Last Will and Testament of Sarah E. Collins, Deceased, et al., Appellants.
    Gen. No. 9,413.

      Heard in this court at the October term, 1943.
    Opinion filed February 29, 1944.
    Nichols & Jones, of Tuscola, for appellants.
    S. S. DuHamel, of Springfield, for appellee.
   Mr. Justice Bless

delivered the opinion of the court.

The same issues and assignments of error came before this court in a prior appeal in the same cause and between the same parties, which was heard and decided by this court at its February Term, A. D. 1943. The opinion therein, reported in full, appears in Lewis v. Hill, 317 Ill. App. 531, 47 N. E. (2d) 127. In passing upon the same contentions of the appellants herein, who were the appellees in that appeal, this court reversed and remanded the cause to the circuit court of Douglas county with instructions to overrule the defendants’ motion to dismiss the amended complaint. The mandate of this court was docketed in the circuit court below and defendants were ruled to answer. On June 17, 1943, answer was filed and on June 29, 1943, judgment was entered on the pleadings against the defendants and in favor of the appellee, from which judgment the appellants, defendants below, have perfected this appeal.

The record again raises the question of jurisdiction of the circuit court to hear the cause upon the issues framed by the pleadings; contending that sole jurisdiction thereof remained in the county court of said county and that the proceeds of the real estate devised to appellee herein and converted into personal property by judicial sale upon the petition of the conservator, now executor of the estate of the testatrix, Sarah E. Collins, has adeemed the devise to said appellee. Both the facts and the contentions presented herein were fully considered and passed upon in the unanimous opinion of this court upon the former appeal, cited supra. It is conceded that no new nor different contentions are made „by the respective parties and that no new cases nor citation of authorities have been given. Upon a careful consideration of the record before us, we find no valid reason for arriving at a different conclusion upon the issues heretofore discussed and passed upon by this court.

. We therefore hold: (a) that the decree appealed from was entered by the circuit court in the proper exercise of its equitable powers with jurisdiction of the parties and subject matter of the pending cause; (b) that the sale of the real estate in question did not adeem the specific devise to the plaintiff, but that the funds arising from the sale of the real estate described in said testamentary devise, being intact in the hands of the defendant executor, were impressed with an equitable trust in favor of the devisee, Edith Otter Lewis, and upon distribution of the estate of said testatrix, should be paid and distributed by the appellant executor, T. 0. Hill, to the plaintiff appellee herein, -under the applicable provisions of the will of said testatrix as found and decreed by the chancellor below; (c) that no prejudicial nor reversible error appears in the record and that the decree of the circuit court of Douglas county should be and is hereby affirmed.

Decree affirmed.


author: Presiding Justice Culbertson.

text:
    Union Trust Company of East St. Louis v. Elmer C. Rueck et al. Howard R. Moore, Appellee, v. Elmer C. Rueck and Edith Horine Rueck, Appellants.
    Heard in this court at the February term, 1944;
    opinion filed February 28, 1944.
    Joseph H. Goldenhersh, for appellants; Whitnel, Browning, Listeman & Walker, for appellee; Lloyd Middleton, of counsel.
   Opinion by

Presiding Justice Culbertson.

Not to be published in full.


text:
    Howard L. Short, Appellant, v. E. B. Chrisman, Appellee.

      Heard in this court at the February term, 1944;
    opinion filed February 28, 1944.
    Earns & Bandy, for appellant; Simpson, Reed & Burroughs, for appellee.
   Opinion by

Presiding Justice Culbertson.

Not to be published in full.


text:
    Carletos S. Donaldson, Appellee, v. Beulah Reynolds, Appellant.
    Heard in this court at the February term, 1944;
    opinion filed February 28, 1944.
    David V. Lansden, for appellant; Chas. L. Rice, for appellee.
   Opinion by

Presiding Justice Culbertson.

Not to be published in full.


author: Justice Bristow.

text:
    Peter Zanter, Appellee, v. Evan Todd, Appellant.
    Heard in this court at the February term, 1944;
    opinion filed February 28, 1944.
    J. H. Clayton and H. F. Knox, for appellant; Nealy I. Glenn, for appellee.
   Opinion by

Justice Bristow.

Not to be published in full.


text:
    Howard R. Moore, Appellee, v. Elmer C. Rueck, Appellant.
    Heard in this court at the February term, 1944;
    opinion filed February 28, 1944.
    Joseph H. Goldenhersh, for appellant; Whitnel, Browning, Listeman & Walker, for appellee; Lloyd Middleton, of counsel.
   Opinion by

Justice Bristow.

Not to be published in full.


text:
    Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, Appellee, v. Harry Pollack and L. Pollack, Copartners, Trading as Pollack Brothers, Appellants.
    Heard in this court at the February term, 1944;
    opinion filed February 28, 1944.
    A. D. Morgan, for .appellants; Whitnel, Browning, Listman & Walker and Leon A. Colp, for appellee; T. T. Bailey, of counsel.
   Opinion by

Justice Bristow.

Not to be published in full.


text:
    Agnes Lehan and Henry Lehan, Appellees, v. East St. Louis Shade and Fixture Company, Inc. et al., Appellants.
    Heard in this court at- the February term, 1944;
    opinion filed February 28, 1944.
    Earns & Bandy and Harry Fishbein, for appellants; Baker, Lesemann, Eagy & Wagner, for appellees.
   Opinion by

Justice Bristow.

Not to be published in full.


text:
    B. M. McGraw, Appellee, v. W. W. Shaffer and W. W. Toler, Trading as Shaffer and Toler, Copartnership, Appellants.
    Heard in this court at the February term, 1944;
    opinion filed February 28, 1944.
    E. Harold Wineland, for appellants; Pyle & McCallister, for appellee.
   Opinion by

Justice Bristow.

Not to be published in full.


author: Justice Stone.

text:
    St. Louis Envelope Company, Appellee, v. Centralia Mutual Benefit Association, Appellant.
    Heard in this court at the February term, 1944;
    opinion filed February 28, 1944.
    Orville L. Wollard, for appellant; Robertson & Conley and W. E. Knowles, for appellee.
   Opinion by

Justice Stone.

Not to be published in full.


text:
    John J. Treager, Jr., Executor of Estate of Mathilda J. Spoeneman Treager, Deceased, Appellant, v. Eugene Totsch and Hugo Heisler, Appellees.
    Heard in this court at the February term, 1944;
    opinion filed February 28, 1944.
    John R. Sprague, for appellant; Farmer, Klingel & Baltz, for appellees.
   Opinion by

Justice Stone.

Not to be published in full.


author: Presiding Justice Dady.

text:
    Margaret Cole, Appellant, v. Carl I. Glasgow et al., Appellees.
    Gen. No. 9,412.
    Heard in this court at the February term, 1944;
    opinion filed February 29, 1944.
    Dwight H. Doss, for appellant; Robt. P. Shonkwiler, for certain appellees; E. J. Hawbaker, pro se.

   Opinion by

Presiding Justice Dady.

Not to be published in full.


author: Justice Hayes.

text:
    Mary E. Hackett, Appellee, v. Glenn Hicks et al., Appellants.
    Gen. No. 9,392.
    Heard in this court at the February term, 1944;
    opinion filed February 29, 1944.
    T. J. Sullivan and Frank R. Sullivan, for appellants; Weaver & Jenkins, for appellee.
   Opinion by

Justice Hayes.

Not to be published in full.


author: Justice Hates.

text:
    Juanita Grotfeldt, Appellant, v. William F. Grotfeldt, Appellee.
    Gen. No. 9,404.
    Heard in this court at the February term, 1944;
    opinion filed February 29, 1944.
    C. E. Tate and James L. Capel, for appellant; Billy Wiese, of counsel; Harry E. Kerker, for appellee.
   Opinion by

Justice Hates.

Not to be published in full.


text:
    William S. Vrooman, Appellant, v. E. J. Hawbaker, Appellee.
    Gen. No. 9,411.
    Heard in this court at the February term, 1944;
    opinion filed February 29, 1944.
    Dwight H. Doss, for appellant; E. J. Hawbaker, pro se.

   Opinion by

Justice Hates.

Not to be published in full.


author: Justice Riess.

text:
    C. E. Siegle, Appellee, v. V. A. Pierce, Appellant.
    Gen. No. 9,403.
    Heard in this court at the October term, 1943;
    opinion filed February 29, 1944.
    A. W. Scliimmel, for appellant; Graham & Graham, for appellee.
   Opinion by

Justice Riess.

Not to be published in full.


author: Mr. Justice Wolfe

text:
    Theodore Lubezny, Appellee, v. Arley M. Ball, Township Treasurer, Appellant.
    Gen. No. 9,894.

      Heard in this court at the May term, 1943.
    Opinion filed August 19, 1943.
    Rehearing denied April 17, 1944.
    Roy A. Whiteside, of Chicago, for appellant; Ward Heidenrich and William H. Meyer, both of Chicago, of counsel.
    Richard F. Locke, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

Elmwood Park Public School District No. 85, Cook county, Illinois, on July 7, 1932, adopted a resolution to issue anticipation warrants drawn against and in anticipation of taxes levied for educational purposes for the district for the year 1932 under the provisions of section 117 of the Free Schools Act which then read as follows:

“When there is no money in the treasury of any school district of this State, whether governed by either or both the general school laws, or any special charter, to defray the necessary expenses of the district, the directors, board of education, or board of school inspectors, as the case may be, may issue warrants, or may provide a fund to meet said expenses by its issuing and disposing of warrants, drawn against and in anticipation of any taxes levied for the payment of the necessary expenses of the district, either for educational or for building purpose, as the case may be, to the extent of seventy-five'per cent of the total amount of the tax so levied. Such warrants shall show upon their face that they are payable solely from such taxes when collected, and shall be received by any collector .of taxes in payment of the taxes against which they are issued, and such taxes shall be set apart and held for their payment.
“Every warrant issued under the provisions of this section shall bear interest, payable only out of the taxes against which it is drawn, at a rate not exceeding six per centum per annum, from the date of its issuance until paid, or until notice shall be given by publication in a newspaper, or otherwise, that the money for its payment is available, and that it will be paid on presentation, unless a lower rate of interest shall be specified therein, in which case the interest shall be computed and paid at said lower rate.” (Sec. 117, ch. 124, Ill. Rev. Stat. 1931.)

Warrants were issued and sold by the district from July 1932, to January 1936. The warrants were numbered in sequence as issued, beginning with number one, and 3279 were issued. The warrants did not provide for their payment in any numerical order. $36,235 was paid in numerical order for warrants numbered from one to fifty-eight inclusive, when they were presented for payment and taxes had been collected to pay each of them. Warrants were received in payment of taxes against which they were issued. There is now outstanding and unpaid warrants aggregating the principal amount of $63,194.62. The petitioner is the assignee and holder of warrant number 59 for $75. There is in the hands of the' township treasurer $4,100 received by him from collection of taxes levied for educational purposes for the year 1932. The petitioner has made demand on the township treasurer for the payment of his warrant with 6 per cent interest, the rate of interest specified in the warrant, from its date, December 22, 1932. Payment of the warrant has been refused by the present township treasurer.

The petitioner on March 20, 1942, filed in the circuit court of Du Page county his petition for the writ of mandamus against the township treasurer (and ex oficio treasurer of the school district) commanding him, out of the fund then in his hands received from the collection of taxes levied for educational purpose for 1932, to pay petitioner’s warrant with interest thereon. The township treasurer filed an answer to the petition alleging (and undenied by the petitioner) that there are outstanding warrants to the aggregate principal amount of $25,000 which were issued within 75 per cent of said tax levy. The validity of petitioner’s warrant is not questioned, it having been issued before warrants were issued in excess of the 75 per cent limitation. It is stated in the pleadings that the total face amount of warrants issued aggregated approximately $121,000. The tax levy for educational purposes was $85,131.86. It appears from the pleadings that the $4,100 which the township treasurer has on hand together with the proceeds of the collection of all of said taxes outstanding, if and when made, will be insufficient to pay the lawful warrants to the aggregate amount ($25,000) of unpaid warrants' with interest.

The petition is drawn on the theory that the petitioner is entitled to the payment, in toto, of his warrant under the proper construction of the sections of the statute quoted. The answer of the respondent is framed on the theory that the taxes collected constitute a trust fund for the payment pro rata of all the valid, or lawful, anticipation warrants issued. The cause was heard by the trial judge upon the petition, the answer thereto and the arguments of counsel. The court ordered the peremptory writ of mandamus issued as prayed in the petition. The respondent appealed to the Supreme Court which transferred the case.to this court, the Supreme Court having decided that the case does not relate to revenue.

As before stated all warrants bearing a number less than 59 were paid in full by the district in numerical order beginning with lowest numbered warrant, when presented to the township treasurer then in office. It would thus appear that if the warrants are legally payable in this manner that the petitioner was entitled to the writ as prayed for in his petition.

The petition contains one paragraph which is the foundation of two reasons urged by the petitioner that the warrants should be paid in numerical order by the treasurer as a statutory duty. It is alleged that it was the long established practice, usage and custom respecting the payment of school anticipation warrants, prior to the year 1935, to pay such warrants in numerical order; that the General Assembly of the State of Illinois, in 1935, enacted an amendment to chapter 122, section 132, of the Revised Statutes providing that warrants issued under the provisions of said section shall show upon their face that they are payable in the numerical order of their issuance; and that, by so doing, said General Assembly made a part of the statutory law of this State the long established principles, practices, usages and customs theretofore existing respecting payment of school tax anticipation warrants. This allegation of the petition is admitted by the respondents’ answer. The implication of the allegation that it was the intention of the legislature, by amending the section, “to approve and recognize” the alleged custom, usage and practice to pay school anticipation warrants in numerical order, is a legal conclusion of the petitioner, and not binding on this court by any admission in the answer. It is not otherwise argued by the petitioner. (Phillips v. Gannon, 246 Ill. 98.)

The allegation relative to the long established custom of paying school anticipation warrants, however, forms the basis of the contention of the petitioner that section 117, was in 1932 entirely silent as to the manner in which the warrants were to be paid. That a judicial construction of the section is required and that this court should follow the doctrine that where a statutory provision is doubtful and there is need of interpretation, the practical exposition of it by departments of government called upon to act under it, acquiesced in by the people, especially for a considerable period of time, raises a strong presumption that it is correct and will generally be adopted by the courts. Neiberger v. McCullough, 253 Ill. 312. (See also Nye v. Foreman, 215 Ill. 285.)

It is stated by counsel for petitioner that the first tax anticipation warrant act applicable to school districts and boards of education was enacted in 1879 (Laws 1879, p. 78, sec. 2), and was re-enacted without substantial change in the School Act approved June 12, 1909. That between June 12, 1909, and July 10,1935, the legislature on at least three different, occasions considered and amended, section 117 of the School Act (Laws 1917, p. 758, sec. 1; Laws 1921, p. 832, sec. 1; Laws 1929, p. 701, sec. 1), but did not provide any change in the customary method of paying-tax anticipation warrants. It is also true as stated by the petitioner that in 1934 groups of holders of unpaid anticipation warrants, which had been issued by the board of education of the City of Chicago, began to.claim that their warrants should be paid pro rata because the balance- of uncollected taxes available for their payment was insufficient to pay all the warrants in full. A statement of - litigation based on claims above referred to appears in the case of South East Nat. Bank v. Board of Education, 298 Ill. App. 92. Those warrants were issued under section 132 of the School Act. It is also mentioned at this time that in the case of Board of Education of Chicago v. Norfolk & Western By. Co., 88 F. (2d) 462, the United States Circuit Court of Appeals held in 1937 that school anticipation warrants of said board issued before the amendatory acts hereinafter set forth were enacted, were payable pro rata out of the fund arising 'from taxes collected in cash for the payments of all warrants issued; thus eliminating warrants received in payment of such taxes as a factor in determining the pro rata distribution. (Norfolk & Western By. Co. v. Board of Education, 114 F. (2d) 859.)

It is further stated by the petitioner that when the matter of warrant holders claiming a pro rata distribution of unpaid warrants came to the attention of the legislature in 1933 it then amended section 132 of the School Act, applicable to Boards of Education in cities exceeding 500,000 inhabitants (par. 155, ch. 122, Ca-hill’s St. 1933) and section 2 of the amendatory act reads as follows: “Whereas, warrants issued under this section are retired in the order of their issuance beginning with warrants having the lowest number and it is desired to make certain the validity of such procedure and thus increase the salability of such warrants so as to get .money to pay current school expenditures, therefore, an emergency exists and this Act shall take effect upon its passage.”

It is further stated by petitioner: “Again on May 4, 1934, the legislature considered section 132 of the School Act and by emergency amendment thereto, and provided that tax anticipation warrants issued under that section by the Board of Education of the City of Chicago should on their face state that they are ‘payable in the numerical order of their issuance. ’ Section 2 of the amendatory act which also shows the intention of the legislature, reads as follows: ‘Whereas, in one of the cities affected by Section 132 (this section) an effort is now being made through threatened litigation by holders of certain tax anticipation warrants issued against the taxes for school purposes to compel the city’s officers to pay them off on a pro rata basis as collections are made from time to time, which would cause extra expense, confusion and unnecessary litigation, therefore, an emergency exists and this Act shall take effect upon its passage.’ The following year section 117 of the School Act was amended in the same manner. (July 10, Laws 1935, Page 1403, Section 1.) ”

These amendatory acts of the General Assembly, it is argued by the petitioner, amount to a declaration of the legislative intent and of the true meaning of section 117 and the other similar tax anticipation warrant statutes as they existed prior to such amendments. Our Supreme or Appellate Courts have not passed upon the claim of a holder of a tax anticipation warrant that his warrant should be paid in numerical order and in full (when there were other unpaid warrants) when there was sufficient money in the fund created by collection of taxes against which the warrant was issued to pay the warrant.

It is our opinion that it cannot be correctly stated that it was the long established and general custom in the State of Illinois to pay school anticipation warrants in numerical order whenever the taxes collected to pay the warrants were not sufficient to pay all valid warrants in full. It would appear from the fact that the legislature in 1909 re-enacted section 117, the section now in question, and amended the section three times before 1935 without providing that anticipation warrants under the section should be paid in numerical number, beginning with the lowest numbered warrant, although before 1935 the legislature had provided that anticipation warrants, issued by free schools and other taxing bodies, not including warrants issued under section 117, should be paid in numerical order (see also Warrant Act, ch. 146%, Smith-Hurd’s Ann. Stats.), that before 1935 taxes collected to pay warrants issued under section 117 were sufficient to pay all legal warrants in full.

It was after normal conditions became disturbed that the question of the method of paying the warrants issued under section 117 became a matter of importance and controversy. After the demands and claims of owners of such anticipation warrants came in conflict, because the tax fund for their payment was insufficient, the legislature enacted the requirement that all warrants under the section should be numbered in order of issuance and paid in numerical order beginning with the warrant bearing the lowest number. The amendments to the section, or others which were of like tenor, subsequent to the provisions of the section under which petitioner’s warrant was issued and his assignor’s rights vested, do not control nor determine the legal status of the warrant. Retroactive legislation changing rights is not favored, and a court will never give to a law such an operation unless compelled to do so by language so clear and explicit as to admit of no other interpretation. (People v. Foreman, 296 Ill. 487, at p. 493.) The adoption of a new law can have no retrospective operation so far as vested rights are concerned. (People v. Sears, 344 Ill. 189; People v. Lindheimer, 371 Ill. 367.) In the case of Eddy v. Morgan, 216 Ill. 437, it was held that the amendment of 1899 to the Police Pension Act of 1887 was not retroactive, so as to entitle the widow of a pensioner who died before the passage of the amendment, to a pension under its provisions. In the opinion in that case it is stated: “We do not regard as important the allegation of the petition that efforts were made to have an act passed before and at the time of the passage of this act (the amendment of 1899) should have the retrospective effect contended for, and that in the opinion of certain legislators such was the effect of the act. While journals and proceedings of the legislature are sometimes looked to in an endeavor to ascertain a proper construction of' the statute, so that the court may have before it what is authentic that surrounded the enactment of the law, we are aware of no authority, and none has been pointed out, where the action of the lobby or the opinions of the legislators as individuals has been taken into account. In fact, we understand the rule to be otherwise and that such matters are inadmissible. (6 Am. & Eng. Ency. of Law, — ad ed. — 638.)” It is also to be noted that the amendment of 1935 of section 117 .of the Free Schools Act provides that, “Such warrants shall show upon their face that they are payable in the numerical order of their issuance solely from such taxes when collected.” Also, that the amendments of 1933 and 1935 to section 132 of the School Act both provided that each amendment should take effect upon its passage. (Beckford v. Cheshire, 128 Misc. 10, 217 N. Y. S. 215.) The two contentions of the petitioner, immediately above considered, cannot be sustained.

It is also contended by the petitioner that as the warrants are assignments of the taxes when, collected, that is, equitable assignments, and the equities of the warrant purchasers being equal, their right to payment of their warrants should be tested under the maxim that, “Where equities are equal, the first in time should prevail”; thus giving priority of payments of the warrants in order of their purchase. That a tax anticipation warrant is an assignment of tax money, the petitioner cites several cases including Leviton v. Board of Education, 374 Ill., 594.

Where there are successive assignments of a chose in action and the equities of the assignees are equal, there is a conflict of authority on the question if the first assignee, the one first in time, shall prevail under a rule, as between equities, the first in time is best in right, or, if the assignee who first gives notice of his assignment to the debtor shall prevail. The divergent views of the courts, are fully discussed in the cases of Salem Trust Co. v. Manufactures' Finance Co., 264 U. S. 182, 68 L. Ed. 628 and State ex rel. Crane Co. v. Stokke, 65 S. D. 207, 272 N. W. 811.

The school district had the right to issue successive warrants within the 75 per cent limitation of the statute, of which right the buyer of petitioner’s warrant was informed when he bought his warrant; notice or demand of the petitioner upon the district for the payment of his warrants, or otherwise, could not add to his rights or prejudice the rights of other warrant holders. The basis of the doctrine that notice by an assignee of his assignment to the debtor, thus preventing fraudulent successive assignments, is wholly lacking. (State v. Stokke, supra.) The obligation of the district to pay the warrants was fixed at the time of the sale of the warrants, which could not be changed by any act of a warrant holder.

The warrants were successive assignments of the anticipated taxes, which when collected, were to “be set apart and held for their payment” — section 117, supra. It cannot be said that the entire 75 per cent of the levy was assigned to pay the warrant of the petitioner and that nothing remained of the levy to pay the other warrants. The warrants read, in part, “which taxes are especially assigned and pledged to the payment of this warrant.” So much of 75 per cent of the levy, when collected, was security for all the warrants sold as they were all issued under the same transaction of creating a “fund” for their payment (section .117, supra; Baldwin v. Bradley, 69 Ill. 32). We are of the opinion that the rule, first in time is best in right, is founded on the fact that after the first assignment of an entire chose in action, nothing remains to be assigned by the creditor. (State v. Stokke, supra.) The maxim stated by the petitioner is not applicable to the facts in this case.

Where obligations or securities are issued by a taxing body which are payable solely out of taxes collected to pay them, thus creating a fund as the only source from which the obligations are payable, and the obligations are not subject to payment by an unlimited power to tax by the taxing body, and there is no statutory or other express regulation as to the priority of their payment, the general rule is, that such fund is a trust fund and there is no priority among the security holders and they share pro rata from the fund if it is insufficient to pay all the obligations in full. (Thomas v. Patterson, 61 Colo. 547, 159 Pac. 34; Norris v. Montezuma Valley Irr. Dist., 248 Fed. 369, writ of cert, denied in 248 U. S. 569, 63 L. Ed. 425; People v. Anderson, 380 Ill. 158; see also annotations in 90 A. L. R. beg. p. 717 to the case of State ex rel. Buckwalter v. City of Lakeland, 112 Fla. 200, 150 So. 508.) It is our opinion that such method of payment under the above circumstances, is fair to the security holders and yet will serve the best interests of the taxing body. If warrants were issued without any regulation as to the manner of their payment and they would be paid in full according to the lowest numbered warrant, and it would so happen that the holders of the higher numbered warrants received nothing, the salability of warrants would be impaired. (Vanderpol v. Borough of Mt. Ephraim, 111 N. J. L. 423, 168 Atl. 575, 89 A. L. R. 862.)

As before indicated the United States Circuit Court of Appeals, in the case of Board of Education v. Norfolk & Western Ry. Co., 88 F. (2d) 462, passed upon the question now under consideration. It is stated in the opinion of that case: “The taxes received by the Board constituted a trust fund for the payment of all warrants.” “The Board held the funds as trustee.” In the case of Jewell v. City of Superior, 135 Fed. 19, cited with several other cases. In Norfolk & Western Ry. Co. v. Board of Education, 114 F. (2d) 859, supra, the court states: ‘ ‘ The fifth assignment questions the action of the trial court in limiting the amount of his recovery to his pro rata share of the fund to which the holders of all bonds were entitled. This fund, derivable from the assessments, was a trust fund, pledged to the payment of all the bonds. The right of the appellant therein was only to such portion of the fund realized as the sum of his bonds bore to the entire amount of the issue of the bonds. It is true that equity favors the vigilant, not the slothful; but we think it would be a manifest perversion of equity to require a trustee to commit a breach of trust owing to other cestuis que trustent, by taking from other bondholders and awarding to the appellant so much of this fund as would pay his bond in full. We know of no principle of equity which would warrant such a decree.” The same principle is laid down as the general rule by courts of other States. In our opinion it is a fair and equitable method of payment.

The order of the trial court issuing the writ is reversed and the cause remanded to the circuit court of Du Page county with direction to enter an order denying the prayer of the petition.

Reversed and remanded.


author: Mr. Presiding Justice Dady

text:
    Paul E. Rankin, Appellee, v. John Rankin, Appellant.
    Gen. No. 9,393.

      Heard in this court at the May term, 1943.
    Opinion filed February 29, 1944.
    Rehearing denied April 22, 1944.
    Homer D. McLaren, of Springfield, for appellant.
    Homer B. Harris and Lyman S. Mangas, of Lincoln, for appellee.
   Mr. Presiding Justice Dady

delivered the opinion of the court.

On April 9, 1942, in a conservatorship proceeding then pending in the county court of Logan county, a jury returned a verdict finding that the appellant John Rankin was incompetent and incapable of managing his estate. Thereupon, on the same day, the county court entered judgment on such verdict and adjudged appellant to be an incompetent and incapable of managing his estate.

Thereafter appellant perfected an appeal to the circuit court from such order of the county court. Thereafter, by agreement of the petitioner and of appellant, by their- respective attorneys, the cause was tried in the circuit court before the court, without a jury. At the conclusion of such trial on July 8, 1942, the circuit court entered an order finding-that appellant “is an incompetent and is incapable of managing his estate.” On July 23, 1942, the circuit court entered an order appointing a conservator.

Appellant brings this appeal from such' order of July 23, 1942.

Appellant contends that the circuit court erred in . not appointing a guardian ad litem to represent him in such circuit court proceeding.

Appellant cites many cases in which it is held that it is the duty of a court to appoint a guardian ad litem to represent persons defendant who have already been adjudicated insane. We do not consider such cases in point.

Appellant also relies on section 118 of our Probate Court Act (par. 270, ch. 3, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 110.367]), which provides that “In any proceeding for the appointment of a conservator the court may appoint a guardian ad litem to represent the alleged incompetent in the proceedings.” Appellant contends this section is mandatory and should be construed as though the word “shall” were therein used instead of the word “may.” With this contention we do not agree.

Generally words of a statute are to be construed in accordance with their ordinary use and meaning and in all cases the primary object is to ascertain the legislative intent. (Landry v. E. G. Shinner & Co., Inc., 344 Ill. 579.) The word “may” is usually employed as implying permissive or discretional as opposed to mandatory action or conduct. (Foutch v. Zempel, 332 ILl. 192, 198.) The word “may” is construed as “shall” or “must” only where it is necessary so to construe it to carry out the intention of the legislature, or when the rights of the public or third persons depend upon the exercise of the power given. (Kane v. Footh, 70 Ill. 587.)

In the case before us we do not perceive that either the rights of the public or third persons demand that the court shall in all cases appoint a guardian act litem in behalf of the alleged incompetent upon the hearing for the appointment of a conservator. In many cases, and the one before us is an example, where it appears that the alleged incompetent is aware of the nature of the proceeding brought against him and possesses sufficient judgment to select his own counsel to defend his interests, then we do not think that any useful purpose would be served by the appointment of a guardian ad litem. We can conceive, however, that other cases may arise where it would be apparent that the alleged incompetent by reason of his physical or mental condition was not capable of defending his own interests when it would be a,n abuse of discretion for the court not to appoint a guardian ad litem.

From the provisions of section 118 and other provisions of the Probate Act, it appears to us that the legislature intended to leave the question of the appointment of such a guardian ad litem to the sound discretion of the trial judge, to be exercised by him according to the circumstances of each particular case.

In section 67 (par. 219) of the same Probate Act [Jones Ill. Stats. Ann. 110.316] it is provided that if any heir, legatee or devisee of a testator is a minor, the probate court ‘ ‘ shall appoint a guardian ad litem' to represent him at the hearing on the admission of the will to probate, but the court in its discretion may waive the appointment if it appears unnecessary to protect the interests of the minor.” Here, although the word “shall” is used, the legislature by the language that follows clearly shows an intention to give the trial court a discretion in making the appointment, and the paramount consideration appears to be the necessity for the protection of the interests of the minor. Tkére is nothing in section 118 to indicate that the legislature intended to deprive the trial court of this same discretion where the interests of an incompetent are involved.

Appellant contends that he was an incompetent witness-and that it was therefore error to require his examination as an adverse witness. He testified not only as an adverse witness, but later testified as a witness in his own behalf. It is our opinion that his testimony was competent (People v. Payne, 161 Ill. App. 640; Dowie v. Driscoll, 203 Ill. 480), and that it was proper to require the adverse examination.

Appellant next contends that the finding of incompetency is against the manifest weight of the evidence. The trial lasted many days. Ten witnesses testified for the petitioner and thirty-three for the respondent. The testimony is voluminous, taking up about 1,400 pages of the record. Obviously, it is impractical and would serve no useful purpose to attempt to make a detailed review of all of such testimony.

At the time of the hearing appellant was aged 78 years. He was a bachelor, and his nearest relatives were nephews and nieces, the petitioner being a nephew. He “didn’t go very fár in school,” never worked for any one, and “just had farming and limestone plant experience.” He owned 503 acres of farm land which he had inherited. In 1935 the quarry produced about 39,000 tons, in 1940, 44,000 tons and in the first eight months of 1941 about 24,000 tons. The product sold at from $1.00 to $1.15 per ton.

In the fall of 1938 appellant’s face and hands were severely scalded in an explosion at the plant, and as a result he was in a hospital for a short time. Thereafter he was apparently not very active in the management or conduct of the business. He then lived alone in a house on the farm. A woman whom he had known for several years, but who was then apparently only a casual acquaintance, was in the hospital visiting another patient and while there stepped into appellant’s room and visited with him. Thereafter, until the trial, this woman apparently had a dominating influence in the life and business affairs of appellant. On November 1, 1938, she and her husband moved into and thereafter until the time of the trial lived in the Rankin home. She was the housekeeper, and in a very short time also acted as bookkeeper at the plant, and soon thereafter was the apparent, if not the actual, manager of the business, although she had no previous business experience. She made all or practically all collections and disbursements, consisting of large sums of money, and had charge of the books and bank accounts. Apparently she ran the business in a haphazard sort of way. She testified that most of the account books and records for the years 1939 and 1940 were eaten by mice or burned before the trial. The plant ceased operations in September 1941. .She testified that when she took over the books he was indebted in about the sum of $30,000 and at the time of the trial was indebted in about the same amount. On December 1, 1941, appellant gave this woman a bill of sale for the expressed consideration of $1, by which he conveyed to her “all live stock, furniture, automobile, farming implements, poultry and all machinery and equipment of every kind and character whatsoever used in and about the operation of the quarry, . . . including all grain and other personal property now owned by me and located as above set forth. ” It is not contended that there was any actual consideration for this conveyance, but it appears to be contended that such conveyance was for the convenience of appellant. On February 4, 1942, she reconveyed most of such personal property to appellant, but this was after the petition for the appointment of a conservator was filed on January 8, 1942.

During this time the husband of this woman was employed on the farm and about the business, but never received any set wages. During such period there was also employed on such premises several relatives of such woman and of her husband, as well as a former husband of such woman. Although she was supposed to receive as compensation only the sum of $15 per week, plus “extra” money for what she might do, and although her husband received no set wages or salary, yet this couple apparently greatly prospered by their relations with appellant. At the time of the trial she held three notes signed by appellant for the aggregate sum of $2,822.65 which she claimed he owed her.

We have carefully reviewed the evidence, and it is our opinion that there was ample evidence to justify the finding of the trial court that the appellant was incompetent and incapable of managing his estate.

Where the chancellor receives the evidence in open court and sees the witnesses and hears them testify, he has a better opportunity for determining the weight and credit that should be given their testimony than does a court of review, and under such circumstances a court of review will not disturb the findings of the chancellor unless manifestly and palpably wrong, and this is true even though the court of review might be inclined to find otherwise had it been placed in the position of the trial court upon the trial of the case. (Hall v. Pitt eng er, 365 Ill. 135; Widmayer v. Davis, 231 Ill. 42.)

The remaining contention of the appellant is that the circuit court had no jurisdiction to appoint a conservator, but that if a conservator was to be appointed, the circuit court, after finding the appellant incompetent, should have remanded the cause to the county court for further proceedings in such court. For some reason, not apparent, the county court did not appoint a conservator.

In Snyder v. Snyder, 142 Ill. 60, 65, the precise question was passed upon, and the Supreme Court there said, “On a trial of the appeal in the circuit court, as the trial was required to be de novo, upon the return of the verdict that Mary T. Snyder was distracted it was the duty of the circuit court to appoint a conservator, which it did.” (See also McMahan v. Trautvetter, 305 Ill. 395.)

The judgment of the circuit court is affirmed.1

Affirmed.