text:
    Arintha Hellrung, Appellee, v. John J. Hellrung, Appellant.

      Heard in this court at the October term, 1943.
    Opinion filed October 30, 1943.
    Rehearing denied February 23, 1944.
    DuHadway & Suddes, of Jerseyville, for appellant.
    J. P. Streuber, of Alton, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is an appeal by John J. Hellrung, defendant appellant, who will be designated in this opinion as defendant, from a decree for separate maintenance entered by the city court of Alton, October 14, 1942, in favor of Arintha Hellrung, plaintiff appellee, who will be designated in this opinion as plaintiff.

The case was tried upon an amended complaint, which charged defendant, aided by his parents and two sisters with a persistent, unjustifiable and wrongful course of conduct rendering the life of plaintiff miserable, and living with defendant unéndurable, and then and there endangering the life, person and health of plaintiff, and answer, denying such allegations and charging that plaintiff was at fault.

By the decree the court found that defendant had pursued a persistent, unjustifiable and wrongful course of conduct toward plaintiff, so as to render her life miserable and living with defendant unendurable, and decreed that she was living separate and apart from defendant without her fault, and should have separate maintenance in the sum of $40 a month, an additional sum of $10 a month for the support of their child, Tommy Hellrung, general custody of said child, the household furniture and effects delivered to her, a $500 allowance .for attorney fees and payment of costs, assessed against defendant.

It is assigned as error relied upon for reversal, that the finding of the court, that plaintiff was living separate and apart from defendant without her fault, was contrary to the law and the manifest weight of the evidence, that the court further erred in awarding major custody of said child to plaintiff, in awarding her the household effects, the $500 attorney fees, and costs.

It appears from the record that plaintiff and defendant, married since 1936, with one child Tommy, aged 4 years, lived next door to the parents of defendant. Defendant was engaged in the real estate improvement and maintenance business with his sister, Frances. On his parent’s premises were located a garage where he kept his work truck and a number of buildings where he kept tools and supplies for use in connection with his work.

Defendant was a member of the Catholic Church and plaintiff belonged to the Evangelical Reformed Church. Before the parties litigant were married, they signed an agreement, in view of their approaching marriage that all children born of the marriage should be baptized and educated in the Catholic faith. Three days after the child was born, without the knowledge or. consent of defendant, plaintiff had Tommy baptized in the Evangelical faith. When defendant found this out, and about 10 days after Tommy was . born, when plaintiff returned from the hospital, defendant gave her five days to get out of the house. Later so she claims, he gave her another week to get out, but she did not go and he made no attempt, then or since to put her out, nor did he again order her to leave.

In February 1938, there seems to have been an altercation about a baby buggy, and plaintiff claims that she tried to keep defendant from taking the child out of the buggy and he pushed her against the wall, and slapped her face. On one occasion in May 1941, it is claimed that plaintiff tried to prevent defendant from taking Tommy on the truck with him and she was pushed against the wall. These acts, however, do not seem to have motivated plaintiff in leaving her husband.

The record indicates that Tommy spent much time at his grandparents’ home next door. At times he had meals there and a few times stayed all night. He had some of his toys there, and a sand pile in the backyard where he played. His grandfather taught him 'from several primer books to do some reading and other things taught in kindergarten. It is claimed by plaintiff that defendant’s father took the custody of Tommy for more than two and one half years, and that she in effect, was denied the custody of him.

In May 1941, defendant came home and found that the clothes of both his wife and his child were gone from the house. He found plaintiff and the boy at the Illinois Terminal station preparing to leave for St. Louis and thence to Nokomis, where the people of plaintiff resided. Thereafter when defendant left home he took Tommy with him. Plaintiff then instituted a habeas corpus proceeding in the city court of Alton, and at the hearing on June 5, 1943, the court entered an order awarding the custody of Tommy to defendant, with the right to keep the child in his control and possession and when absent from home, to place the child in the custody and possession of his grandparents, with the right on the part of plaintiff to see the child at reasonable times, but not to remove the child from their custody.

The evening the court entered this order, plaintiff, defendant and Tommy went to the grandparents’ home, where Tommy was to stay all night. There was some disagreement over plaintiff’s insistence on staying there all night with the child. Plaintiff claims that defendant’s father refused her permission and pushed her from the porch. She then had a nervous attack and was taken to the hospital in a hysterical condition. Plaintiff stayed in the hospital four or five days and upon her discharge therefrom went to the home of her folks in Nokomis, and has not lived with the defendant since.

No advantage could be had in reciting the voluminous evidence in this case. It appears to us, that on many occasions plaintiff attempted to magnify everyday incidents to undue proportions. She elaborates upon one incident, when she came home one evening and saw a light in the bedroom and was afraid that some one other than the family might be in the house. Defendant was there, and did not answer her, and she called the police, who went in with her. On another occasion plaintiff took Tommy and drove home to her parents, without saying anything to defendant about it, and he went up and got the car, without saying anything to plaintiff about it, and she reported it as stolen, to the police, who located it in defendant’s possession.

In chancery cases, when the evidence is conflicting and heard in open court, the error in finding as to fact should be clear and palpable to authorize a reversal. Elmstedt v. Nicholson, 186 Ill. 580; Garvy v. Garvy, 282 Ill. App. 485. We realize that a reviewing court would have no right to disturb the findings of the chancellor who has heard the witnesses in open court and has seen them upon the witness stand, unless it can be said that the finding of the trial court is manifestly against the weight of the evidence. It has been held repeatedly in Illinois that incompatibility of disposition, slight moral obliquities, occasional exhibits of passion, trivial difficulties, are not good cause for living separate and apart. French v. French, 302 Ill. 152; Wahle v. Wahle, 71 Ill. 510; Johnson v. Johnson, 125 Ill. 510. Good cause for living separate and apart from her husband must be such conduct on the part of the husband as will directly endanger the life of the wife, her health or person, or such a course of conduct as will necessarily and inevitably render her life miserable and living with him as his wife unendurable. Jackman v. Jackman, 213 Ill. App. 329; Johnson v. Johnson, supra; French v. French, supra.

To maintain her suit against her husband, plaintiff herein must show not only that she had good cause for living separate and apart from her husband, but also that such living apart was without fault upon her part. Such fault, within the meaning of the statute, is a voluntary consenting by her to a separation or such failure of duty or misconduct on her part as materially contributed to a disruption of the marital relation. Decker v. Decker, 279 Ill. 300; Johnson v. Johnson, supra.

We do not believe that the fact that the couple lived close to defendant’s parents, even if the father and sister sought to control defendant’s household, warranted a finding that plaintiff was entitled to separate maintenance. In the case of Giese v. Giese, 107 Ill. App. 659, the Appellate Court held that the fact that the husband against his wife’s wishes suffered the mother of his former wife to control the household affairs absolutely, did not justify the wife in living separate and apart from her husband.

In the spring of 1940 plaintiff prepared that which might well be described as a marital bill of rights, which she presented to defendant and stated that unless he did the things enumerated therein, she would leave him and get a divorce. She followed this by a supplemental demand in the spring of 1941, all of these demands running the whole gamut of marital relationship, from where and how Tommy was to pray, to the demand that all insurance be in her name; at what time defendant should take care of his business; the operation of the car; all bank accounts to be joint, and a demand that he move away from his folks. She herein indicated a complete lack of conciliation. On the witness stand she stated, “I think I should have the exclusive say-so about Tommy’s education and what church he should go to. I think that we should agree in it.” Which was hardly indicative of a compromising state of mind. She seems to have had a peculiar attitude toward agreements. With reference to the prenuptial agreement, she claimed that she signed that contract with the understanding that it would not have to be carried out. We are of the opinion that she was not without fault.

Counsel for plaintiff say in their brief that the evidence definitely shows in this case that it is a contest between the paternal grandparents and defendant in depriving plaintiff of the companionship of her child. It would appear that this theory of the matter resulted in the case at bar being a retrial of the habeas corpus proceeding, previously instituted by plaintiff. The real issue in the case is whether plaintiff in the instant case is entitled to separate maintenance. The court is of the opinion that the finding of the trial court,' that plaintiff was living separate and apart from defendant without her fault is contrary to the manifest weight of the evidence.

For the reasons above stated and there being the further question of the custody of child; attorneys’ fees, and court costs involved in addition to the primary question of separate maintenance, the decree of the city court of Alton is reversed and remanded for further proceedings, not inconsistent with the views expressed in this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Kiley

license: Public Domain

text:
    Henry C. Kamienski, Appellee, v. Bluebird Air Service, Inc., Appellant.
    Gen. No. 42,324.
    Heard in the third division of this court for the first district at the October term, 1942.
    Opinion filed February 2, 1944.
    Rehearing denied March 6, 1944.

      Ekern, Meyers & Matthias, of Chicago, and Sears, O’Brien & Streit, of Aurora, for appellant; Barnabas F. Sears, of Aurora, and Donald L. Thompson and William G. Chorn, both of Chicago, of counsel.
    Howard D. Moses, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a personal injury action resulting from an airplane accident. Verdict was for plaintiff in the amount of $5,300 and upon his remitting $2,000 the court overruled the defendant’s motion for a new trial and entered judgment for plaintiff for $3,300. Defendant appeals.

Plaintiff, a passenger for hire, charges defendant in Count 1 with negligent operation of the plane, as a result of which he was injured; and in Count 2 with violation of certain United States Department of Commerce regulations for testing engines before take-off, and unsafe mechanical condition of the plane.

Plaintiff, B. S. in Education, University of Michigan, on July 30, 1939, took his first airplane ride in a tri-motor Stinson 12-passenger plane owned by defendant’s sightseeing service. He purchased a ticket, entered the plane and five or ten 'minutes later the pilot who landed at the airport in a single motored plane walked to the Stinson, entered and immediately started the motors. He taxied to the southwest corner of the Municipal Airport, turned to face northeast and-waited there from two to five minutes with the engine running before getting the signal to take off. The plane ran about a half mile on the runway, took off, crossed Cicero avenue east, turned north parallel with Cicero avenue, and after turning west, when the plane was about 500 feet in the air, the left motor began to miss and the plane started to lose altitude. The motors were turned off, the plane side-slipped, crashed on the left wing and dug into the ground burying the undercarriage. Plaintiff, able to walk, got out of the plane, helped remove the pilot who was badly injured, and assisted other passengers from the ship.

At the time of the accident plaintiff was 32 years of age, and a physical instructor at the Chicago Park District where he had worked since May of 1935 on a graduated scale salary which at the time of the trial would have been $160 a month. After the accident he was in the hospital 11 days and was later treated at his home by his family physician from August, 1939 until February, 1942, mostly by diathermy. He returned to work the middle of November, 1939, three and a half months after the accident, but, because of inability to perform his duties, having pains in his right leg, lower back and shoulder under strain, and because the condition grew worse instead of better, he left his position in January of 1940 for the University of Minnesota. At the University he swam for relaxation and had diathermy and hydrothermy treatments until June, when he returned to the Park District, where he worked until September 1,1941, but his condition did not permit full efficiency and he had “to go easy.” His lower back and leg bothered him at the time of the trial, when as playground instructor for the Board of Education, requiring less physical exertion than his prior work, he received a little over $138 per month. In the accident he suffered a bruised, swollen and discolored left shoulder and lacerations and bruises of his ankle and legs, wrenched, torn and stretched ligaments and muscles, and some hemorrhage under the muscles of the calf and hardening of the calf of the right leg. His actual expenses were $1,974.25 ; including $96.25 for hospital, $358 for doctors and $560 for three and a half months loss of work at the maximum of $160 per month, and an additional sum of $960 being for six months which he spent at the University of Minnesota in 1940.

Defendant contends the court erred in refusing to direct a verdict on Count 1 and in refusing judgment for defendant notwithstanding the verdict at the close of all the evidence, saying there was no evidence of a negligent breach of duty on its part. The court had directed a verdict for defendant at the close of plaintiff’s case on Count 2 and there is no cross-appeal. Defendant, however, introduced evidence in defense of its position that it had exercised the highest degree of care to make the plane safe for passengers and the jury was instructed thereon. This was the subject matter of the stricken Count 2. Under these circumstances we believe Count 2 was reinstated and we shall proceed to deal with this appeal as though the verdict had not been directed on that count.

The evidence is that after the crash United States Department of Commerce inspector sealed and took charge of the motor and a later examination showed that the cam gear was broken; and that a motor could not operate without a cam gear, since it controlled the timing. It appears from that evidence and inferences that the cam gear broke when in operation. The defendant admits, and this court has held in somewhat comparable circumstances (McCusker v. Curtiss Wright Flying Service, 269 Ill. App. 502), it is a common carrier and a presumption of negligence accordingly arises. Toledo, W. & W. R. Co. v. Beggs, 85 Ill. 80, 83; Smith v. O’Donnell, 215 Cal. 714, 12 P. (2d) 933. That presumption was sufficient warrant for denial by the court of defendant’s motion for directed verdict on both counts and for judgment notwithstanding the verdict. The question is, therefore, whether the defendant showed that it fulfilled its duty of the highest degree of care as a common carrier, by furnishing a competent pilot and rendering the plane airworthy. Toledo. W. & W. R. Co. v. Beggs; Smith v. O’Donnell.

The evidence showed that the pilot had several years flying experience, was licensed by the Department of Commerce as both pilot and mechanic and had, during the flight involved, done everything which could be reasonably expected of him after the motor failed, to bring the plane and passengers to a safe landing. We believe, accordingly, that defendant has met its burden with respect to its duty to furnish a competent pilot.

Defendant introduced evidence to show that no witness, including the experts in this case, had ever experienced a broken cam gear and that such an accident was extraordinary; that the plane was built about 1932, was owned by the American Air Lines and had been owned by defendant for about two years; and that at the time of the accident it had flown about 2,650 hours and was equipped with Lycoming motors which sometimes run over 10,000 hours and require overhauling every 300 hours. The log book required by the Department of Commerce for the motor involved, introduced by defendant, shows a major overhaul February 1, 1937 at 2,519 hours; and an overhaul in April, 1939 at 2,642 hours, consisting of a disassembling of the entire motor, installation of new parts, reassembly of the bearings, overhauling magnetos, magnefluxing of the master rod and all other steel parts and reassembly by mechanics Kopp and Smith who signed the overhaul record and who were licensed by the Department of Commerce and worked together 200 hours on each motor. After the last overhaul and before the accident, the plane was flown an additional 8 hours and 20 minutes, and on June 11, a test flight was made after the plane had been relicensed by the Department of Commerce, and the plane flown in various positions and observations made. It appears that the licenses for planes run from year to year and before renewal, inspection and replacement of worn parts is required by the government inspector; that the government inspection is made upon a record of previous compulsory Company inspection; that the plane was inspected by a licensed mechanic every 100 hours of flight and every 20 hours was greased, oil changed, valves checked and the engine and exerciser tested; and that prior to and on the day of the accident the plane' made four flights of about 20 minutes each and the required testing of the motors before and during taxiing and before take-offs, disclosed no defects.

There was evidence that when examined after the accident the cam gear bore a yellow paint mark which indicated that it had been magnefluxed; that magnefluzing is a process of electrolysis to determine interior flaws in steel; that the process of bathing steel parts in acid is a better process, but that this is a matter of opinion and that magnefluxing is recognized as a valid, practical test.

It would appear from the evidence that if the overhauling by the mechanics was properly accomplished, that defendant had established a good defense. A vital question was the condition of the cam gear. It was magnefluxed, and apparently by Kopp and Smith competent mechanics, and marked with yellow paint to designate soundness and approval. Plaintiffs point out, however, it was not sound and that the unsoundness should have been detected and that, if the magnefluxing was properly done, any defect would have been disclosed. The mechanics were not produced as witnesses by defendant because its president said they were busy in New York, doing national defense work -for the American Air Lines and could not be spared. This is hardly an adequate excuse for men with flying facilities at hand. The court would have undoubtedly accommodated its time to any arrangement which would have permitted these important witnesses to fly from New York to testify if, for some reason, their depositions could not have been taken. The evidence is that when they worked on the overhauling they were employees of the American Air Lines and worked on the motors of defendant’s plane on their own time, evenings and after finishing their work for the Air Lines at 3 p. m. and on Saturday and Sunday afternoons. We believe under the circumstances and in the absence of these witnesses, the jury could have believed with justification that defendant’s conduct did not measure up to the requisite standard of highest degree of care. They may have inferred that the mechanics were not as alert or as able or careful, after their day’s or week’s work for the regular employer, and that defendant should have recognized this fact. Common carriers, especially those transporting people through the air, cannot rely upon government inspections for fulfillment of their duty.

We are satisfied the jury was justified under the circumstances of this case in finding the defendant guilty. It follows, therefore, that we do not believe that plaintiff’s reference to an “insurance doctor” prejudiced the defendant on the question of its guilt, although it may have affected the allowance of damages. The judgment, after remittitur, however is supported by the proof of plaintiff’s damages and we are of the opinion it should be and hereby is affirmed.

Judgment affirmed.

Hebel, P. J., and Burke, J., concur.


author: Mr. Justice Kilby

text:
    North American Investment and Loan Association, Inc., Appellee, v. Rose Kitzer et al. Appeal of Philip Kitzer, Appellant.
    Gen. No. 42,418.
    Heard in the third division of this court for the first district at the October term, 1942.
    Opinion filed February 2, 1944.
    Rehearing denied March 3, 1944.
    J. J. Klepak and W. C. Anderson, both of Chicago, for appellant.
    No appearance for appellee.
   Mr. Justice Kilby

delivered the opinion of the court.

Defendant appeals from an order finding him guilty of contempt and sentencing him to the Cook county jail. His brief is the only one filed here and the record consists of the order only.

Defendant says the order is void because it does not show on its face that the court had jurisdiction; because he did not have his day in court and no rule to show cause, nor affidavit nor information was filed against him; and because the order failed to find his automobile was not exempt from court process. The pertinent part of the order follows:

This cause coming on to be heard why the defendant, . . . should not be attached for contempt of this Court for his failure to comply with an order . . . entered on July 7th, 1942 ... to turn over immediately one 1941 Packard automobile, that he owns, has in his possession . . . not exempt from execution to the Bailiff . . . to be' . . . sold . . . and the proceeds . . . applied towards the satisfaction of the execution; . . . the defendant being present in open Court and being represented by counsel and the Court having heard the testimony and it appearing to the Court that it has jurisdiction over the subject matter involved herein and the parties hereto Doth Find:

That the defendant ... in open Court has wilfully failed and refused to obey the order . . '. by refusing to turn over said 1941 Packard automobile immediately or at any other time to the Bailiff . . . to be . . . sold and the proceeds ....

The Court further finds and adjudges said defendant, . . . to be guilty of contempt . . . .”

The italicized portions of the order are sufficient to show the lack of merit in defendants’ contentions. From the record before us, we must infer that a prior order found that defendant’s car was not exempt from execution. It appears from the order itself that the contempt was direct and, therefore, no cases cited are applicable and no affidavit, information or rule to show cause necessary; that defendant had his day in court, was represented by counsel and testimony was heard; and that the court found it had jurisdiction and nothing to the contrary is shown. The defendant does not claim that any of the findings are not truthful.

The order is affirmed.

Order affirmed.

Hebel, P. J., and Burke, J., concur.


author: Mr. Justice Wolfe

text:
    Grant Lusk et al., Appellants, v. Edward H. Bluhm et al., Defendants. George Meyer, Appellee.
    Gen. No. 9,857.
    Heard in this court at the February term, 1943.
    Opinion filed February 16, 1944.
    Lidschin & Pucin, of Waukegan, for appellants.
    Peden & Overholser, of Chicago, and Snyder & Clarke, of Waukegan, for appellee; Gerald C. Snyder and Lewis D. Clarke, both of Waukegan, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

On June 1, 1942, Grant Lusk, Clara M. Lusk and Mildred Lusk recovered default judgments against George Meyer et al., in the circuit court of Lake county, Illinois. On July 13, 1942, George Meyer filed a motion to vacate the said judgments. On August 4, 1942, the plaintiffs filed a motion to dismiss the motion of George Meyer. A hearing was had on the plaintiffs’ motion, which motion was overruled by the court. Leave was granted George Meyer to file a petition to set aside the default judgments of June 1, 1942. On August 12, 1942, George Meyer filed his motion and prayed that the order of default be set aside. On August 15, 1942, the petition was- granted and an order to vacate and set aside the default and judgment was entered. George Meyer was given 10 days to answer the plaintiffs ’ complaint. On the same date. George Meyer filed his answer. From the order setting aside the default, and judgments, Grant Lusk et al., have perfected an appeal to this court.

The suit was started on October 23, 1940, and a demand made by the plaintiffs for a trial by a jury. The defendants were summoned on October 31, 1940, and on November 26, George Meyer entered his appearance through his attorney, J ohn V. Mooradian. On December 5, 1940, George Meyer made a motion to dismiss the complaint. The hearing on this motion was continued five times until April 18, 1941, at which time the motion to dismiss was overruled, and the court entered a rule against the defendants to plead to the complaint within 30 days.

On April 28, 1941, notice was served on George Meyer et al., that the plaintiffs would appear on April 28, and move for an order of default against Edward Bluhm, George Meyer and Hazel Bluhm. On April 28, 1941, an order of default was entered against George Meyer et al. On September 30,1941, the cause was set for hearing, but the hearing was continued until December 8, 1941. No action was taken at this time. On February 9, 1942, the case was set for trial for March 23, 1942. On March 19, the case was set for trial on April 29,1942. On May 25, 1942, the case was again set for trial, but the hearing was again continued.

On June 1, 1942, leave was granted the plaintiffs to file an amendment to the complaint instanter, and that the case be dismissed as to the defendant, George Brainard. No notice was given to George Meyer of any of these proceedings. The death of Hazel Bluhm was suggested, and the cause continued as to her estate. The amendment was filed, and the suit dismissed as to George Brainard. The amendment struck from the second line on page 2, of the complaint, the words, “Business advisor,” and struck from line 6 on page 2, of the complaint, “that at the times'in question hereinafter referred to, this plaintiff was in poor physical health,” and struck from line 9 page 3, the words, “That its stock was fully paid.” On the same day that the case was called for trial, the plaintiffs waived a jury, and the complaint was taken as confessed against George Meyer et al., and George Meyer adjudged in default by the court. The case was submitted to the court without a jury. He heard the evidence and found that the defendants were guilty of fraud and deceit, as alleged in the complaint; that malice is the gist of the action, and assessed the damage of the plaintiff, Grant Lusk, at $8,720, and rendered judgment for all the parties.

On July 13, 1942, George Meyer served notice upon the plaintiffs’ attorney that he would file a motion to set aside the default, and judgment and to recall the execution heretofore issued. The reasons for the motion were that the judgment was entered without notice to George Meyer, and that the default and judgment was entered without notice to the attorney of George Meyer, who had duly and regularly filed his appearance in said cause; that there were facts that existed on June 1, 1942, the date the judgment was entered, which, if the court had known, he would not have entered the judgments; that the proceedings surrounding the entering of said judgment were irregular and improper and fatally defective; that facts existed which are not apparent on the face of the record, which, if known by the court, would have precluded the entering of judgment on June 1, 1942; that the defendant has a good defense to this suit, and that he did not make any fraudulent representation nor participate in any fraudulent conduct; that he did not conspire to defraud; that he had nothing to do with the transactions alleged in the complaint, except that he did execute papers from time to time at the request of the said parties upon representations made; that the transactions were legitimate and being conducted in the usual course of business; that the transactions alleged in the complaint were business transactions in which the plaintiffs had as full and complete knowledge as the defendant. This petition was verified by the affidavit of George Meyer. The motion was set for hearing July 24, 1942.

On July 14, 1942, Edward H. Bluhm appeared in open court.and gave bond for his appearance, as required by order of the court. On August 4, 1942, the plaintiffs entered a motion to dismiss the motion of the defendant, George Meyer, because they claimed that George Meyer was in default by failure to plead, after due notice of application for said default was served upon his attorney before the default was taken; that paragraphs 3, 4 and 5 of the defendants’ motion are mere conclusions of law; that the court is without jurisdiction to grant leave, as requested; that the defendants ’ motion does not state a good and meritorious defense to said action; that the defendant, George Meyer, failed to show diligence in the presentation of his motion. This motion was not verified. On August 8, the plaintiffs’ motion to strike the motion of George Meyer was overruled, and the court vacated and set aside the judgment of June 1, 1942, and recalled the execution, and George Meyer was given five days to file his petition to set aside the default of April 28, 1941, and was given leave to plead. On August 12, 1942, George Meyer filed a verified answer to the complaint.

We have given the dates in the chronological order in which the various pleadings were filed, and the court’s orders relative thereto, because they are important in passing on the merits of the controversy. It will be observed that the motion to dismiss the complaint of the appellant was passed upon and overruled by the court on April 18, 1941, and at that time the court entered a 30-day rule against the defendant to plead or answer the complaint. Under that ruling the defendant had 30 days- from April 18, 1941, to file his pleadings, and the default was taken against him on April 28, 1941, long before the rule had expired, and before the defendant, George Meyer, could be in default for not filing an answer to the plaintiffs’ complaint.

If the default and judgment were entered without due notice to the attorney for George Meyer, who had duly and regularly filed his appearance, and facts exist which are not apparent on the face of the record, which, if they had been known by the court, the court would have been precluded from entering the judgment of June 1, 1942, then the court properly set aside the judgment in question. In the case of Barthelemy v. Braun, 272 Ill. App. 321, the court quotes to-wit: “In Quigley v. Ellenwood, 1 Cal. App. 626, the court said: In taking a judgment by default the plaintiff acts at his peril. He must see that the law has been complied with and that the time for appearance has expired. Otherwise he takes the chances of having his judgment set aside or reversed. In Hart & Co. v. Nixon & Co., 25 La. Ann. 136, it is there stated: The default having been improperly entered; there was no issue joined when the judgment was rendered. There was nothing, therefore, for the judgment to rest upon, and the judgment of the trial court was set aside.” The Appellate Court held that the default having been prematurely entered, the court did not have' jurisdiction to enter a judgment and that the appeal in that case need not necessarily come under section 89 of our Practice Act of 1907, as it has brought up the whole record for review. The court concludes its opinion by saying: “We are inclined to hold that the cases from foreign jurisdictions, above cited, state the rule which should prevail in this jurisdiction. It would open the door to confusion to permit a defendant to be defaulted before he was required to appear and plead. We think that orderly procedure in the courts, requires that a plaintiff who proceeds contrary to the rule in this respect, must subsequently proceed at his peril and with the knowledge that any judgment based upon this premature order of default will be vacated and set aside upon review.”

On the date that the judgment was taken against the appellee, the plaintiffs amended their complaint in a material manner. This court in the case of Dahlin v. Maytag Co., 238 Ill. App. 85, held that if an amendment to the pleadings was made after default has been entered against the defendant, the effect of such amendment is to automatically set aside the default and order pro confesso, and before a judgment can be entered, the defendant must be ruled to plead. If such rule is not entered, the judgment was erroneously ordered. This case was cited with approval in Frank v. Newburger, 298 Ill. App. 548. To the same effect is Odell v. Levy, 307 Ill. 277, 281. The default in the present case was entered before the rule to plead had expired, and therefore was improperly taken, and the-defendant was not in default at the time the judgment against him was entered. Further the complaint having been amended without taking a rule upon the defendants to plead, or answer the same, any judgment entered thereon, without such rule being entered, was improperly taken. This appeal brings up the whole record for a review. The motion of appellee to open up the judgment and for leave to plead was properly allowed.

In the appellee’s motion to set aside the default and judgment, he states the default and judgment were entered without any notice to his attorney, or to himself, and that the default was improperly taken. We have heretofore stated our reason why the default was improper. Section 1 of rule 9, of the rules of the circuit court of Lake county have been certified to us as a part of the record in this case, which is: “No motion shall be heard, or order made in any cause without notice to the opposite party, after such party has entered his appearance, so long as he is not in default for want of an answer.” The record shows that the default and judgment were taken contrary to this rule. The rule is well established in this State that motions of this character to set aside a default and for leave to plead are addressed to the sound discretion of the court, and will not be reversed, except in case of abuse of such discretion. The party seeking to have a default set aside must show that he acted with due diligence to protect his rights and that he has a meritorious defense. (Nitsche v. City of Chicago, 280 Ill. 268.)

George Meyer entered his motion to vacate and set aside the default and judgment as soon as he learned that the judgment had been entered against him, and his affidavit filed with this motion sets forth a meritorious defense to the cause of action, so he has complied fully with the law relative to his motion so far as the time element and meritorious defense are concerned.

Errors of facts which may be availed of to set aside a .judgment by motion under section 89 of the Practice Act of 1907 includes duress, fraud, and excusable mistakes. The error of fact must have been unknown to the court when the judgment was rendered, and it must be such as would have precluded the rendition of the judgment had it been known to the court. (People v. Green, 355 Ill. 468.)

At the time the default was entered and judgment rendered against the defendant; the court was unaware that there had not been any notice of such proceeding served upon the defendant, or upon his attorney. The language used by our Supreme Court in the case of the North Ave. Building & Loan Ass’n v. Huber, 286 Ill. 375, 383, is very applicable to this case and is: “It is insisted by defendant in error that the court was without jurisdiction to set aside its order of January 15, 1916, dismissing the bill for want of equity, because such order was made at a term subsequent to the term at which such order of dismissal was made. There is no merit in this contention. The order of dismissal was made without any notice whatever to plaintiffs in error or their counsel and against the express rule of practice of the circuit court. It would be more nearly exact to say the court had no jurisdiction to enter the order of dismissal for want of notice to plaintiffs in error. As we understand the record, this order had no binding force whatever on plaintiffs in error by reason of the express violation of the rule of court in respect to giving notice of the pendency of such motion. The rules of court have the same binding force upon parties, as well as upon the court, as have statutes. (Axtell v. Pulsifer, 155 Ill. 141.) It requires no further argument to show that plaintiffs in error were not bound by such order of court and that it was such an order as might be set aside at any time during the term when made, or at a subsequent term, where no discovery of such order is made by the parties injuriously affected thereby until such subsequent term.”

It was stated in the early case of Axtell v. Pulsifer, 155 Ill. 141, 151: “A rule of court in existence requiring that two days ’ notice for hearing of motions must be given, when adopted as a rule of court, has, with reference to practice in that court, all the binding effect of a statute.” This case has been cited with approval in Feldott v. Featherstone, 290 Ill. 485; Jacobson v. Ashkinaze, 337 Ill. 141; People v. Green, 355 Ill. 468; Marland Refining Co. v. Lewis, 264 Ill. App. 163, and by this court in Kelley v. United Benefit Life Ins. Co., 275 Ill. App. 112.

It is our conclusion that the motion and affidavit of the appellee, Meyer, complies strictly with the statute, and the court properly set aside the default and judgment. The judgment is therefore affirmed.

Judgment affirmed.


text:
    George W. Peters et al., Appellees, v. Esther A. Peters, Executrix of Last Will and Testament of Mary A. Peters, Deceased, Appellant.
    Gen. No. 9,935.
    Heard in this court at the October term, 1943.
    Opinion filed February 16, 1944.
    Jacob Cantlin, of Rock Falls, for appellant.
    Ward & Ward, of Sterling, for certain appellee.
    J. J. Ludens, of Sterling, for certain other appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Whiteside county, Illinois, in which it ordered that the fees and expenses incurred by Esther A. Peters, as executrix of the last will and testament of Mary A. Peters, deceased, in defending a contest to determine the validity of the will of said deceased, are payable ■out of the corpus of the estate, and not out of the income from the same. The court ordered said executrix to pay Ward Thompson and George W. Peters, the appellees herein, each a one-sixth part of the income of said estate now in the executrix’ hands.

George W. Peters, the appellee, filed his petition in the county court of Whiteside county stating that Esther A. Peters, the executrix, had, without notice to the other parties in interest, allowed claims against the estate of his mother in the amount of $5,545.49, including therein claims to the amount of $4,077.50 for attorney fees in defending the will of Mary A. Peters; that said claims were not filed until after the statutory period for filing claims had expired. The petition prays that the order allowing said claims be vacated, and prays for a partial distribution of the income from rents in the hands of the executrix. Ward Thompson and Laura Thompson, also appellees, filed a similar petition in the same court stating that they were assignees of the interest of James H. Peters in his mother’s estate and prayed for similar relief. The court granted the prayer of the petition and disallowed the claim for attorney fees, and ordered a partial distribution of the income derived from the demised premises. Esther A. Peters perfected an appeal to the circuit court, which sustained the findings of the county court and entered a decree in conformity therewith. It is from this decree that this appeal is prosecuted.

Mary A. Peters died leaving a last will and testament which was duly admitted to probate in the county court of Whiteside county, Illinois. Esther A. Peters was named executrix in said will. She qualified, and is now acting in that capacity. The testatrix in her will provided for the payment of all lawful debts and ex-' penses, including that of her last illness, her funeral expense and expenses of administration. She made some bequests to certain grandchildren, but they are not involved in this appeal. Paragraph 4, of the will is as follows: “I give, devise and bequeath to my said daughter, Esther A. Peters, in trust for the use and benefit of my son George W. Peters, an undivided one-fourth interest in and to the rest, residue and remainder of my estate, real, personal and mixed and wherever situated, after the payment of the foregoing bequests in paragraph 2 of this my will, and after the payment of the debts and expenses as aforesaid, she to pay the net profits, rents, and income from said undivided one-fourth interest to said George W. Peters annually so long as he shall live.” Then follows in paragraph 4 an identical clause providing for the payment of the income from one-fourth interest to James H. Peters, a son of the deceased, and to Mabel Peters Carpenter, a daughter of the deceased. The will then provides that after the death of George W. Peters, James H. Peters, and Mabel Peters Carpenter, title to the shares which have been given in trust to Esther A. Peters for the benefit of her brothers and sister shall be vested absolutely in Esther A. Peters.

It is stipulated by the parties that the net income turned over to the executor, by the temporary trustee, is $7,485.46; that there are other assets in the estate, namely, two farms aggregating 360 acres, from which the income turned over by the temporary trustee to the executrix was derived, and that said two farms are the only assets of the estate remaining; that certain claims have been paid out of the personal property, which are not included in the amounts stipulated herein.

The circuit court decreed that any fees and expenses allowed by the county court in connection with the defending of the will contest shall be payable from the corpus of the estate, and that the amount of such allowance and the procedure thereof, remain subject to the adjudication by the county court in due course of administration; that the executrix shall distribute to Ward Thompson and George W. Peters each, one sixth of the income of the trust received by her, and retain the balance of said income subject to further order of the county court.

The sole question involved in this appeal relates to the decision of the trial court in holding that the fees and expenses incurred by Esther A. Peters, .as executrix of the last will and testament of Mary A. Peters, deceased, in defending the will of said deceased in the contest thereof, should be paid from the corpus of the estate, and not from the income of the trust, and that part of said income be distributed to Ward Thompson and George W. Peters.

From the statements of the litigants, facts appear that are not disclosed by the pleadings in the case. The record does disclose that the executrix has on hand the income from the farms in the sum of $7,485.46. The time it has taken to accumulate this amount, does not appear in the record. Neither does the abstract show when Mary A. Peters died, or when her will was admitted to probate. It does appear that George W. Peters filed a bill in chancery to contest the validity of his mother’s will and that the suit'is still pending. It is stated by the litigants that the case has been tried twice, and is still not concluded.

It is insisted by the appellant that the large attorney fees were caused by George W. Peters in filing the will contest, and that is one reason why the expenses of the will contest should be paid from the income of the mother’s estate. In the case of State Bank of Chicago v. Gross, 344 Ill. 512, a legatee under the will had filed a suit to contest the will. The question arose as to when the legacy, which was from the income of the trust fund, should be paid to him. The executor and trustee claimed the delay in payments was on account of the will contest by the legatee. The court there said: “There is no law which penalizes a legatee if he is unsuccessful in a will contest. He does not file a bill to contest a will at his peril unless some clear provision to that effect is found in the will itself. The executor has no authority to impose a penalty upon the legatee who sought a larger estate by a will contest, as he is powerless to change any of the directions of the will, which still remain in force.” We find no merit in appellant’s contention that the will contest should have any bearing upon how the income should be distributed.

The appellant has quoted from the case of Industrial Trust Co. v. Harrison, 67 R. I. 131, 21 A. (2d) 254 as supporting their contention. The court in their opinion uses this language: “By the first question we are asked whether the executors may, under the will, properly pay executors’ and attorneys’ fees, now owed, from the income which has been collected since the testator’s death and which is now held by them, or may later be so held, for the benefit of the said two minor children. Ordinarily, such fees are, in the absence of a contrary intent on the testator’s part, payable out of the principal of the estate being administered, if sufficient, and not out of the income therefrom.” The court then say, “from an examination of the will in question, we think that it was the intent of the testatrix that the expenses incurred in the estate should be paid out of the income rather than to sell any of the stock, or credits from which the income must be derived to be paid to any of the beneficiaries under the will.” The appellees agree with the Rhode Island case in the statement of the rule as a general proposition, but claim in the present case that there is nothing in the will of Mary A. Peters to indicate that she desired any expenses for the contest of the will to be paid out, of the income of her estate that she had given to her children.

It is argued that the executrix in the present case has a self interest in this litigation and is trying to have the expenses of the will contest paid from the income rather than from the corpus, because the corpus of the estate eventually goes to her and if it is paid from the corpus, it will diminish the value of her estate; while, if it comes from the income, three fourths of the expenses would come from the other legatees in her mother’s will. Our attention has not been called to any part of the will of Mary A. Peters that indicates in any way her intention to have such expenses paid from the income rather than from the corpus of the estate. Certainly it cannot be said that Mary A. Peters, at the time she executed the will, anticipated that one of the beneficiaries named in the will would file a contest to have the same declared invalid.

It is held in State Bank of Chicago v. Gross, 344 Ill. 512, that unless a contrary intention appears in the will, a beneficiary of the income from a certain fund given to a trustee, is entitled to said income from the time of the testator’s death. It will be presumed that at the time Mary A. Peters executed her will, she had this provision of the law in mind, that her children were entitled to this income from the date of her death. It was given for the express purpose to provide an income for her children. It is our conclusion that to allow the contention of appellant in this case, would be to enrich the residuary legatee by income from the trust fund which would not properly belong to the residuum of the estate.

The court properly held the debts created by the executrix in defending the will contest, should be a charge against the corpus of the estate, and that the income should be distributed as directed. The decree =of the trial court is affirmed.

Affirmed.


author: Justice Bristow.

text:
    Mary C. Gass Mueller, Appellant, v. Ford F. Bittle et al., Appellees.
    Heard in this court at the October term, 1943;
    opinion filed October 30, 1943;
    rehearing denied February 23, 1944.
    Wilmer D. Vogt and Edward K. Schwartz, for appellant; Whitnel, Browning, Listeman & Walker and L. R. Stewart, for certain appellee.
   Opinion by

Justice Bristow.

Not to be published in full.


author: Justice Kiley.

text:
    Robert S. Tomaso, Appellee, v. Fred Sestak, Appellant.
    Gen. No. 42,341.
    Heard in the third division, first district, this court at the October term, 1942;
    opinion filed February 2, 1944;
    rehearing denied March 3, 1944.
    Rider & Thuma and Chester D. Kern, for appellant; Elliodor M. Libonati, for appellee; Abraham Miller, of counsel; Samuel Nicosia, amicus curiae.

   Opinion by

Justice Kiley.

Not to be published in full.


author: Presiding Justice Dove.

text:
    Henning A. Hanson, Appellee, v. Simon Blatt, Appellant.
    Gen. No. 9,905.
    Heard in this court at the October term, 1943;
    opinion filed February 16, 1944.
    Hal M. Stone and Pallissard & Fleming, for appellant; Wallace J. Bell, Gerald A. O’Brien and William Greene, for appellee; William Greene, of counsel.
   Opinion by

Presiding Justice Dove.

Not to be published in full.


text:
    Elmhurst Lumber and Coal Company v. John H. Alke and Anna Alke, Appellants. Sigismondo Sinibaldi, Intervening Petitioner, Appellee. Elmhurst Lumber and Coal Company v. John H. Alke and Anna Alke, Appellants. Paul Grusecki, Intervening Petitioner, Appellee.
    Gen. No. 9,906.
    Heard in this court at the October term, 1943;
    opinion filed February 16, 1944.
    Rathje & Woodward, for appellants; John S. Woodward, of counsel; George W. Thoma, for appellee Sigismundo Sinibaldi; Edwin O. Linden, of counsel; Weaver & Weaver, for intervening petitioner Paul Grusecki; Edwin R. Farrar, of counsel.
   Opinion by

Presiding Justice Dove.

Not to be published, in full.


text:
    In re Estate of Thomas F. Berry, Deceased. Francis Ortscheid and Joseph Kissem, Administrators De Bonis Non with Will Annexed of Estate of Thomas F. Berry, Deceased, Appellees, v. Thomas Berry, Jr., Appellant.
    Gen. No. 9,927.
    Heard in this court at the October term, 1943;
    opinion filed February 16, 1944.
    F. J. Campbell, for appellant; Nack & Nack, for appellees.
   Opinion by

Presiding Justice Dove.

Not to be published in full.


author: Justice Huffman.

text:
    Raymond G. Thompson, Appellant, v. Charles W. Kent, Otherwise Known as C. W. Kent, Trading as Electreat Manufacturing Company of City of Peoria, Illinois, Appellee.
    Gen. No. 9,913.

      Heard in this court at the October term, 1943;
    opinion filed February 16, 1944.
    Ira J. Covey, Wayne H. Mathis and Chester F. Barnett, for appellant; McGrath & Copeland, for appellee.
   Opinion by

Justice Huffman.

Not to be published in full.


author: Presiding Justice O’Connor.

text:
    Benjamin B. Morris, Appellee, v. Wacker Hotel Company et al., Appellants.
    Gen. No. 42,722.
    Matchett, J., dissents.
    Heard in the first division, first district, this court at the June term, 1943;
    opinion filed February 18, 1944;
    supplemental opinion filed and rehearing denied March 2, 1944.
    Brown, Fox & Blumberg, for appellants; Charles LeRoy Brown and Jacob Logan Fox, of counsel; David I. Spark, for appellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in. full.


author: Mr. Presiding Justice Hebel

text:
    Fannie Theus and Lee Andrew Theus, Appellees, v. Lawrence J. Young et al. Appeal of Corine Gaines, Appellant.
    Gen. No. 42,955.
    Heard in the third division of this court.
    Opinion filed February 2, 1944.
    Howard D. Geter, of Chicago, for appellant.
    No appearance for appellees.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by one of the defendants, Corine Gaines, from an interlocutory injunction order, entered on the 8th day of October, 1943, without notice and without bond, restraining this defendant from evicting the plaintiffs, Fannie Theus and Lee Andrew Theus, from the premises known as 9603-7 Princeton avenue, Chicago, Illinois, by a certain order of eviction issued by the municipal court of Chicago in favor of Corine Gaines and against Lee Andrew Theus in case No. 43 M 51169.

From the record as it appears before this court, the defendant, Corine Gaines, seeks to reverse and set aside this order, which temporarily enjoined and restrained this defendant in words as follows: “from evicting or attempting to evict or dispossess the plaintiffs, Lee Andrew Theus, and the person occupying said premises under Lee Andrew Theus and Fannie Theus and each and all of them be restrained and enjoined from molesting, interfering with or attempting to molest or interfere with the occupancy of the premises known as 9603-9607 Princeton avenue, Cook county, Illinois, by the said Fannie Theus and Lee Andrew Theus, and the persons occupying said premises under them, and that each and all of them be restrained and enjoined from forcing or attempting to enforce the orders and judgments entered in the municipal court of Chicago in the case entitled Corine Gaines v. Lee Andrew Theus, No. 43 M 51169 until further order of court, and for good causes shown, that said injunction issue without Bond,” which order was entered on the 8th day of October, 1943.

At the time the aforesaid restraining order was entered, the plaintiff, Fannie Theus, and her attorney, Joseph E. Clayton, Jr., knew that Fannie Theus and the other occupants of the premises at 9603-7 Princeton avenue, had been evicted on October 7, 1943, by the bailiff of the municipal court of Chicago and this fact was made known to the Honorable Julius H. Miner, judge of the circuit court of Cook county, Illinois, and the court refused to restrain the defendants, Lawrence J. Young, Eva Mae Gibbs and Albert J. Horan, bailiff of the municipal court of Chicago, by striking their names from the restraining order which was presented to him by the attorney for the plaintiffs.

It further appears from this record before this court on appeal that the plaintiff, Fannie Theus, after obtaining the restraining order on October 8, 1943, against the defendant, Corine Gaines, went back to the premises at 9603-7 Princeton avenue, with a police officer from the fourteenth district of Chicago and forced the defendant, Corine Gaines, who was then in possession of the premises, to leave and the said Fannie Theus then had her furniture moved back into the premises while the furniture belonging to Corine Gaines was and still is on the premises.

Thereafter the defendant, Corine Gaines, on the 13th day of October, 1943, moved the court to dissolve the temporary injunction issued against her on October 8, 1943, and in support of her motion submitted the testimony of Fannie Theus, the plaintiff, who admitted that she had been evicted on the 7th day of October, 1943, and that she made application for the restraining order the next day, October 8,1943. Corine Gaines testified in her own behalf that she took possession of the premises in question on the 7th day of October, 1943, after the bailiff had evicted the plaintiff; Albert Thompson testified that he moved Corine Gaines’ furniture into the premises on October 7, 1943, and was present the following day when Fannie Theus, plaintiff, came back to the premises with the restraining order; Ray Byloski, deputy bailiff of municipal court testified that he ordered the eviction of the premises at 9603-7 Princeton avenue on the 7th day of October, 1943, and the original return made by Deputy Bailiff Sengstack showed the writ was executed on October 7,1943.

The court, after hearing the testimony of witnesses and argument of counsel, entered an order on the 13th day of October, 1943, overruling the motion to dissolve the temporary injunction, and set the defendant’s cost bond on appeal at $200.

Thereafter, the defendant, Corine Gaines, served and filed a notice of appeal and filed and had approved by the court her bond for costs on appeal.

The case not being at issue, no point is raised on the pleadings.

In considering the case it is well to have the facts in mind, which are that the plaintiff claims title to the property located at 9603-7 Princeton avenue, Chicago, Illinois, adversely to the defendant Corine Gaines; that Corine Gaines brought an action of forcible entry and detainer in the municipal court of Chicago against Lee Andrew Theus, one of the plaintiffs; that on the 7th day of October, Fannie Theus, one of the plaintiffs, and all of the occupants of the premises at 9603-7 Princeton avenue were evicted, and that Corine Gaines, the defendant, went into possession of the premises.

On the next day, October 8,1943, Fannie Theus, one of the plaintiffs, appeared before the Honorable Julius H. Miner, one of the judges of the circuit court of Cook county, and moved the court, without notice to Corine Gaines, defendant, for a temporary injunction, based upon a bill of complaint to set aside a deed, to restrain the defendants, Lawrence J. Young, Eva Mae Gibbs, Corine Gaines and Albert J. Horan, bailiff of the municipal court, from evicting, molesting or enforcing the judgments of eviction issued by the municipal court against Lee Andrew Theus. At the hearing of the motion the plaintiffs’ attorney and the bailiff informed the court that Fannie Theus had been put out of possession on the 7th day of October, 1943, and the court refused to enter the order against Lawrence J. Young, Eva Mae Gibbs or Albert J. Horan, bailiff, but did enter the order against Corine Gaines, defendant, who was in possession of the premises.

Fannie Theus, upon advice of her attorney and with the assistance of a policeman, forced Corine Gaines to allow her to move her furniture back into the premises at 9603-7 Princeton avenue.

One of the propositions of law offered for the attention of this court is that a preliminary injunction will not be granted where the act sought to be enjoined has been done. It appears that the plaintiff Fannie Theus knew on the 8th day of October, 1943, when she made application for the preliminary injunction that she had been evicted from the premises in question on October 7, 1943, — the day before. There is uncontradicted testimony of Corine Gaines, defendant, that she was present at 9603-7 Princeton avenue when the bailiff of the municipal court removed the property of Fannie Theus, plaintiff, from the premises, and that she, Corine Gaines, moved into possession and was in possession of the premises on October 8, 1943. There is testimony of Albert Thompson who states that he moved furniture of the defendant, Corine Gaines, into the premises and that he remained on the premises until the next day when the plaintiff, Fannie Theus, came back with a court order.

There is also the suggestion that upon further examination of the testimony given on October 13, 1943, in support of the motion to dissolve the preliminary injunction, Bay Byloski testified substantially: that he has been deputy bailiff of the municipal court of Chicago for 20 years in charge of evictions, that he received an eviction order and deposit to evict persons occupying the premises at 9603-7 Princeton avenue, on August 18, 1943, and then he received a stay order to October 1, 1943, and on October 7, 1943, he ordered the eviction and from the original return made by Deputy Sengstack the writ was executed on October 7, 1943.

One of the cases suggested in the brief that was before this court is the case of Lake Shore & M. S. Ry. Co. v. Taylor, 134 Ill. 603, where the court held that where the act sought to be enjoined is done before the complainant’s bill is filed, and he knows it is already done, a preliminary injunction issued to prevent the act is improvidently granted, and will be properly dismissed on hearing.

A further point before the court is that where an injunction is improvidently issued, upon the dissolution of the injunction the court should place the parties in status qiio. Upon an examination of the testimony offered in support of the motion of the defendant herein to dissolve the injunction, the evidence shows that Fannie Theus, plaintiff, upon advice of her attorney took possession of the premises in question from the defendant Corine Gaines and that upon motion duly made on the 13th day of October, 1943 for a writ of restitution the motion should have been granted and the respective parties placed in status quo. In support of this suggestion our attention is called to the case of Wangelin v. Goe, 50 Ill. 459, to the effect that it was proper for the court, in dissolving the injunction, to restore the defendant to possession by a writ of restitution. And then again in the case of Lake Shore & M. S. Ry. Co. v. Taylor, 134 Ill. 603, at page 606, the court said: “It is immaterial here in whom the legal title, or whether when appellant built its fence it was a trespasser or lawfully in possession — it is sufficient, for the present, that the appellee, after having tied the hands of appellant as to the assertion of its claim of right, and while they were so tied, has changed the status quo of the parties in this respect. She must restore things to the same plight, as nearly as possible, in which they were when the judge made the order upon her bill that an injunction issue.”

Then again it is suggested that a preliminary injunction is to preserve the status quo of the parties and not to undo what has been done. It appears from the testimony that was offered in support of the motion to dissolve the restraining order, which was entered on the date of October 8, 1943, that it stands without contradiction that the plaintiff, Fannie Theus, had been evicted before the order was entered and that the said Fannie Theus used the process of the court to undo what had already been done. As appears in the case of Thomson & Taylor Spice Co. v. Lanski & Sons Scrap Iron Co., 209 Ill. App. 331, and in Lowenthal v. New Music Hall Co., 100 Ill. App. 274, it was held: “The purpose of a preliminary injunction is to preserve the status of the parties until the court can determine the merits of the controversy, and it cannot" be used for the purpose of compelling one to undo what has already been done. ’ ’

Further it was suggested that an improper exercise of discretion is shown if it appears that some established rule of law or principle of equity has been violated in granting preliminary injunction. From the record it appears that on the 13th day of October, 1943, on the motion to dissolve the injunction by the attorney for the plaintiff, before any testimony was taken, the following statement was made to the court by plaintiff’s attorney: “Mr. Clayton: I told the court that the bailiff put her out, and I told her to go back. They evicted her on the 7th, by Albert J. Horan’s office, and when I was here before, I told the court, in the presence of Mr. Byloski, that they set the things out.” In this connection the case is cited of City of Chicago v. Peoples Gas Light & Coke Co., 170 Ill. App. 98, where it was held: “An improper exercise of discretion is shown if some established rule of law or principle of equity has been violated in granting the injunction.”

It appears from the argument that was offered that defendant Corine Gaines contends that the circuit court of Cook county erred in issuing the aforesaid injunction on the 8th day of October, 1943, and in denying the motion to vacate the same on the 13th day of October, 1943, and the defendant prays that this court reverse said orders and dissolve the said injunction and order a writ of restitution to issue in favor of Corine Gaines and against Fannie Theus and other persons who are now occupying the premises at 9603-7 Princeton avenue, Chicago, Illinois.

It appears that the defendant, Corine Gaines is the only person that has called the attention of this court to the facts and the law as it applies to these facts, the plaintiff not offering any suggestions that might aid ■ the court.

However, this court, for the reasons heretofore set forth, upon the record before it and the law reverses said orders and dissolves said injunction with directions that a writ of restitution issue in favor of Corine Gaines and against Fannie Theus and other persons who are now occupying the premises at 9603-7 Princeton avenue, Chicago, Illinois.

Reversed and remanded with directions.

Burke and Kilby, JJ., concur.