author: Mr. Presiding Justice Niemeyer

text:
    Jack Schneiderman, Appellee, v. Interstate Transit Lines, Inc., Appellant.
    Gen. No. 43,216.

      Heard in the first division of this court for the first district at the October term, 1944.
    Opinion filed March 26, 1945.
    Rehearing denied May 21, 1945.
    Released for publication May 21, 1945.
    Drennan J. Slater, of Chicago, and Thomas J. Hamer, for appellant.
    Joseph D. Ryan and Louis P. Miller, both of Chicago, for appellee.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court..

Defendant appeals from a judgment for $100,000 entered in an action for personal injuries sustained by plaintiff as the result of a collision between the automobile driven by plaintiff and defendant’s interstate passenger bus traveling from Omaha to Chicago.

The collision occurred at the intersection of Madison street and Oak Park avenue in the village of Oak Park at approximately 5:20 a. m., November 26, 1941. Oak Park avenue runs north and south and Madison street extends east and west; Oak Park avenue north of the intersection and Madison street west of the intersection are each 46 feet in width from curb to curb; south of the intersection the width of Oak Park is reduced to 38 feet and east of the intersection Madison is widened to 75 feet from curb to curb; Madison street and the intersection were paved with brick, which had become worn; Oak Park avenue to the north was paved with asphalt; there were two street car tracks in the center of Madison street; the southwest corner of the intersection was improved by a two-story brick building, extending to the building line on each street; on the northwest corner was a vacant lot 41 feet in width in which used cars were stored by the automobile agency occupying the. one-story brick building immediately to the west; this building abutted the building line, which was 16% feet north of the curb; at the time of the accident no automobiles were in the storage lot. Traffic at the intersection was regulated by stop and go lights placed on each corner, in approximately the following positions: on the northwest corner, 33 feet north of the north curb of Madison street; on the southwest corner, 20 feet west of the west curb of Oak Park; on the northeast corner, 15 feet east of the east curb of Oak Park; on the southeast corner, 33 feet south of the south curb of Madison. The light on the northwest corner is blind or blank on the west side, and its lights are projected only north and south on Oak Park, but, according to the uncontradicted testimony of Lang, a passenger .on the bus involved in the accident, are visible at a point 75 feet west of the Oak Park curb. These lights are operated on a 60 second cycle, showing green 33 seconds and red 27 seconds for traffic on Madison, and 27 seconds green and 33 seconds red for traffic on Oak Park; a yellow or amber light, indicating a change in traffic, appears with the green light for three seconds and with the red light for one second just before the change of lights on each street. The Oak Park lights and the Ridgeland lights, a half mile to the east, were synchronized for 30 miles an hour, but the speed limit is 25 miles an hour. At the time of the accident there was no other traffic, vehicular or pedestrian, on either Oak Park or Madison street; and, except for a sweating or dampness, usually found on brick pavement, the pavement in Madison street was dry,

Plaintiff, a police officer of the city of Chicago, but not then on duty, was alone in his Ford automobile, driving south on Oak Park avenue; the bus, carrying 16 or 17 passengers, was traveling east and was on time, being due at the Chicago terminal at 12th street and Wabash avenue around 6 o’clock; the headlights and other lights on the front of the bus, and the headlights of the Ford, were lighted; the collision occurred in the southwest quarter of the intersection and near the center lines of each street, from which point the automobile, impacted against the front of the bus, was pushed or carried in a southeasterly direction about 70 feet, to a point 4 or 5 feet north of the south curb of Madison and near a trolley post approximately 38 feet east of the east curb of Oak Park; the bus was equipped with dual tires in the rear and there were skid marks beginning just east of the center line of Oak Park and extending to the rear of the stopped bus.

The complaint consisted of two counts, the first charging negligence and the second charging wilful and wanton conduct. In addition to the charges of negligent operation of the bus, excessive speed and failure to keep a careful lookout or to sound a horn, the complaint charged that defendant negligently failed to yield the right of .way to the plaintiff, who had started to cross the intersection on the green light and “was lawfully within the intersection when the color green alone was thereafter exhibited on the signals regulating eastbound traffic,” and, by amendment made at the conclusion of all the testimony, that defendant negligently failed to yield the right of way to the plaintiff, “who was unable to stop in safety and was proceeding cautiously through the intersection while the color yellow following green was shown on the traffic control signals regulating southbound traffic, and who was lawfully within the intersection when the color green alone was thereafter exhibited on the signals regulating eastbound traffic.” Defendant answered, denying the charges of negligence and wilful and wanton conduct, and alleging that plaintiff was not in the exercise of due care for his own safety, and that plaintiff “wantonly and wilfully drove the same (his automobile) against the red light onto said intersection and into collision with said bus.” On appeal defendant’s principal contention is that the trial court erred in refusing to direct a verdict in its favor or to enter judgment for it notwithstanding the verdict.

We find no material error in the rulings on evidence or instructions. The damages awarded are unusually large, but the injuries sustained are exceptionally severe. Plaintiff, a strong and healthy man, around 35 years of age at the time of the accident, is now a hopeless and helpless invalid; he is suffering from aphasia, which is permanent and very likely to grow worse; he requires assistance in dressing, eating, and the ordinary activities of daily life. Defendant figures that based upon his expectancy of life, and investment at three per cent, the present value of his loss of wages is $59,000. This leaves nothing for pain and suffering, the cost of an attendant, or other necessary expenses of his invalidism. We will not disturb the judgment because of the size of the verdict.

As to the occurrence, plaintiff introduced the testimony of himself and a passenger on the bus. He called two physicians, who testified as to his physical and mental condition. The physician who treated him shortly after the accident and examined him several times thereafter, testified that at the time of the trial plaintiff’s “answers to questions are not dependable at all.” The other physician who examined plaintiff, for the purpose of testifying on the trial, said that plaintiff was suffering from a “marked aphasia of a motor type, which means that he is unable to formulate words and express them, either by speech or by writing. I found that . . . once his mind got in the groove, he stayed on one particular word, he kept repeating the same word, no matter what question was directed toward him”; that plaintiff “is not able to formulate sentences to speak of at all”; that most of plaintiff’s history was obtained from his brother and from material furnished to the witness; that “his answers to questions on account of the injury he received did not permit him to say what he meant”; that “you cannot converse with the man (plaintiff) at all.” The nature of plaintiff’s testimony and the degree of his incompetency may be judgéd from the following excerpts from his cross-examination: “Q. When did you go to the Cook County Hospital? Ans. Bight arm and brain. Q. Do you remember when you went to the County Hospital? Ans. One day.” And later: “Q. Then after you were in the Cook County Hospital, where did you go? Ans. Five weeks, Cook County, five weeks. Q. Well, from Cook County Hospital, where did you go ? Ans. Oak Park Hospital, thirteen days, and County Hospital five weeks. Q. Where did you go from County Hospital? Ans. I was going to take light, doctor, Light. Q. You went to Dr. Light? Ans. Yes. green. Q. Creen light? Ans. Light. Q. Was that the name of your doctor at Cook County Hospital? Ans. No, no. Six days, Light. Q. Light for six days? Ans. Kalamazoo.”

No objection to the competency of the witness has been made, but it is insisted that plaintiff’s testimony supports the conclusion of his doctors. Plaintiff’s counsel do not seriously dispute this contention. They say, “We do not claim that plaintiff’s testimony is entirely coherent or reliable. We called him to the stand chiefly for the purpose of demonstrating his condition, both mental and physical.” Our examination of the transcript of plaintiff’s testimony leads us to the conclusion that he was an incompetent witness, and by this incompetency his testimony is entirely destroyed as evidence. Conley v. People, 170 Ill. 587, 593-594; People v. Brothers, 347 Ill. 530, 543-544. We have disregarded it in our consideration of the case. Knudson v. Knudson, 382 Ill. 492, 499. Evidence supporting plaintiff’s claim, to bar the granting of defendant’s motion to direct a verdict, must be “competent, pertinent and coming from a legal source.” Hodges v. Baltimore Engine Co., 126 Md. 307; 26 R. C. L., Trial, § 75, p. 1067.

Broughton, the passenger called by plaintiff, lived in DeKalb, Illinois at the time of the accident; he was then employed as a night watchman in a manufacturing plant, but his life work had been that of a farmer; he became a passenger on the bus at DeKalb and was seated on the north or left side, directly back of the driver; as soon as the automobile came within range he saw it; the bus was then 150 feet west of Oak Park avenue — the distance being just a guess, and the automobile was probably 100 feet north of the center of Madison street; he watched the automobile, and it looked to him like they were going to have a collision; at no time did he see the color of the signal for Madison street; when the automobile came to the north side of Madison the bus was probably just starting to cross Oak Park avenue; the bus was going the regular speed —probably 30 miles per hour; he did not form any judgment as to the speed of the automobile — it was going maybe 20, maybe more; neither the automobile nor the bus changed speed up to the time of the accident ; he did not hear any horn or warning sound on the bus; about the center of the street the automobile swerved a little to the left, and immediately after the impact the bus swerved slightly to the right; at the time of the impact the automobile was probably very near the center of Oak Park and probably half way across the south track on Madison. The Oak Park police, called by plaintiff, say that the most northerly skid mark was within the eastbound car track about a foot, or just inside of the south rail, and led in a southeasterly direction 35 or 40 feet, to the rear of the stopped bus; that the debris was about in the center of Oak Park avenue and about a foot to the south of the rails of the eastbound car track; that the skid marks commenced where the debris was, and indicated that the brakes were applied after the impact. Other evidence on behalf of plaintiff, including a plat, covered the physical conditions at and surrounding the place of the accident and the location and operation of the traffic control lights. The plat shows that when within about 75 feet of the intersection, each driver had an unobstructed view of the other if not more than a like distance from the intersection.

Defendant called seven occurrence witnesses — its driver and six passengers. The driver, 42 years of age, had had the run from Chicago to Iowa City and return since his employment by defendant in June 1933; he arrived in Iowa City at 8:04 in the morning preceding the accident, had gone to bed between 1 and 2 o’clock in the afternoon and gotten up about 10 o’clock that night; he left Iowa City at 11:3Q p. m., driving the bus involved in the accident; he entered Madison street from the north at Harlem avenue, a half mile west of Oak Park; he was driving east between 20 and 25 miles an hour; there were no stop lights between Harlem and Oak Park avenues; not all the street lights on Madison street were lighted; he was probably three blocks away when he first saw the traffic light on the southwest corner in front of the drugstore at Oak Park avenue; the other light was on the northeast corner; they were red; the lights changed from red to amber — the red staying on with the amber — when he was a little more than a block from the intersection; he was just about where Grove avenue runs south — about 350 feet west of Oak Park avenue — when he saw the lights were green for east and west traffic; he was in high or fourth speed, but dropped down to third for smoother operation; he was driving on the right-hand side of the street, with the south rail of the eastbound tracks under the center of the bus; when about 65 feet from the west curb of Oak Park at either the second or third establishment from the corner, he first saw the plaintiff’s automobile about 50 or 60 feet — later changed to about 23 feet — north of the stop light on Oak Park; he kept going, and looked to the south to see if any traffic was coming on Oak Park; this was a blind corner, and he could not see a vehicle coming from the south until he got practically into the intersection; when he next saw plaintiff’s automobile it was about the center of Madison street, three or four feet east of the bus and slightly to the northeast; he applied his brakés as soon as possible, but does not know where the bus was when the brakes started to take effect after the crash; it is more difficult to stop on a brick pavement than on a concrete pavement; on a dry concrete pavement, at 25 miles an hour, he would take about 36 feet to stop; at a speed of 40 miles an hour, confronted by an emergency, he could stop in about 60 to 70 feet — that is, from the time the foot brake is first applied until the bus is brought to a dead stop; when he first saw the automobile he did not see any suggestion that the driver was going through the traffic light; he assumed that the driver was going to stop because he had the red light and plenty of time to stop before he got to the stop light or curb line; he also assumed that everybody going north who had the red light would stop before he got to Madison street, but it was natural to look to his right because it was a blind corner where he could not see anything until he got within the building line; within a few hours after the collision he signed a statement prepared by the police, and which he says is true, stating: “I was going east on Madison street and when I was about a block away the light turned green in my favor for eastbound traffic, so I dropped it into third speed and I noticed this car approaching from the north with dim lights. I immediately saw that we were going to collide, so I put on my brakes. ... I hit this car about the center of Oak Park avenue, about in the middle of the car.” At one place in his cross-examination he said he was about 25 or 30 feet from the intersection of Oak Park avenue when the light flashed green. The six passengers (Zaborowski, Lang, MeKitrick (who testified by deposition), Howe, Mrs. Wermer and Miss Neyens) all testified that the bus entered the intersection on the green light; none of them saw the light change to green; when they observed the green light for Madison street, the bus, according to their respective estimates, was from 25 to 200 feet west of the intersection; Zaborowski and the driver say that the automobile went through the red light; Howe, after seeing the green light for Madison street, saw the automobile not more than 50 feet north of the north curb of Madison street; Mrs. Wermer said it was three or four car lengths from (north of) Madison street when she saw the green light for eastbound traffic; when Lang first saw the automobile it was about 40 feet from the place of the impact, or, north of the curb; Miss Neyens and MeKitrick did not see the automobile before the impact. None of the witnesses placed the speed of the bus over 30 miles an hour when approaching and entering the intersection; Zaborowski, Howe and Miss Neyens fixed its speed at 20 to 25 miles an hour, as did the driver; Mrs. Wermer said it was going between 20 and 30 miles; Lang and MeKitrick said approximately 30 miles. Lang and the driver testified that plaintiff’s automobile was traveling about the same speed as the bus, while Howe placed its speed at 35 to 40 miles, and Zaborowski judged it was going at a pretty good speed — somewhere between 50 and 60 miles; the other witnesses did not give an estimate of its speed. No witness testified that the speed of the automobile was diminished before the impact; Broughton, plaintiff’s witness, said it was going at the same speed right up to the time of the accident; Lang said he did not notice any change in its speed. The driver of the bus did not sound his horn or give other warning of his approach. There is no evidence that plaintiff gave any warning.

Defendant’s motion for.a directed verdict or for judgment notwithstanding the verdict should be allowed if, when all the evidence is considered, with all reasonable inferences to be drawn therefrom in its aspect most favorable to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case. Carrell v. New York Cent. R. Co., 384 Ill. 599; Nelson v. Stutz Chicago Factory Branch, Inc., 341 Ill. 387. Under the first count of the complaint plaintiff must show not only negligence of the defendant, but also absence of contributory negligence on his part. West Chicago St. R. Co. v. Liderman, 187 Ill. 463; Illinois Cent. R. Co. v. Oswald, 338 Ill. 270. Similarly, under the second count, plaintiff cannot recover if he was guilty of wilful and wanton conduct proximately contributing to his injury. Willgeroth v. Maddox, 281 Ill. App. 480; Restatement of the Law of Torts, § 503 (2); Hinkle v. Minneapolis A. & C. R. Co., 162 Minn. 112; Holwerson v. St. Louis & S. Ry. Co., 157 Mo. 216, 241.

Plaintiff’s evidence wholly failed to establish his ease. It merely proved the collision of the two vehicles near the center of Oak Park avenue and in the south or eastbound track on Madison street; that each vehicle was traveling at approximately the same speed, the automobile coming to the north side of Madison street when the bus was just starting to cross Oak Park avenue; that neither driver diminished his speed up to the time of the crash, or did anything to avoid the collision until too ■ late; that each had an unobstructed view of the other when not more than 75 feet from the intersection; it showed that the traffic was controlled by electrically operated signal lights on which the amber light, indicating a change, appeared with the green three seconds before the change to red; it did not show what color was displayed on the lights at or before the accident; the question of liability— wrongful conduct on the part of the bus driver and lack of contributory negligence or wilful and wanton conduct on the part of plaintiff — was left entirely to speculation. Plaintiff’s position was not improved at the close of all the evidence. It was then shown affirmatively, and without the slightest contradiction, that the bus entered the intersection on the green light and that it had that light when 25 feet or more from the intersection; that when the witnesses saw the green light for Madison street, plaintiff’s automobile was north of the north curb of Madison street, west of Oak Park; during the three seconds that the amber light showed, plaintiff’s automobile traveled 88 feet, at 20 miles an hour (the minimum speed for plaintiff’s automobile shown by the evidence — 20 to 25 miles being claimed by plaintiff’s counsel), so that plaintiff was not less than 50 feet north of the northwest traffic signal and not less than 115 feet north of the point of impact when the amber light warned him to stop; if he was traveling at a higher speed he was a greater distance to the north when he received the warning of the amber light; the asphalt pavement on Oak Park avenue was dry; plaintiff was not driving at excessive speed, and presumably his brakes were good. He could have stopped his Ford within a few feet. Grubb v. Illinois Terminal Co., 366 Ill. 330, 334. The street was free from all other traffic. In that situation plaintiff did not come within the provision of the statute regulating traffic (Ill. Rev. Stat. 1943, ch. 95½, par. 129 (b) 1 [Jones Ill. Stats. Ann. 85.161, subpar. (b) 1]), which permits a vehicle to be driven cautiously through the intersection when, on appearance of an amber light, a stop cannot be made in safety. Landless v, Mahler, 295 Ill. App. 498. Moreover, there is no evidence that plaintiff exercised any caution in attempting to proceed through the intersection, that he sounded his horn or gave other warning of his approach. He did not diminish his speed. There is nothing in the evidence to indicate that he was conscious of or heeded the color displayed 'on the traffic lights or the approaching bus until, when in a place of danger, a few feet from the point of impact, he swerved a little to the left. The law charges him with having seen the Tights and the bus, both being plainly before him (Dee v. City of Peru, 343 Ill. 36; Carrell v. New York Cent. R. Co., 384 Ill. 599), and with having knowingly entered the intersection against the lights. He had the same opportunity and was under at least the same obligation to observe his surroundings, the color displayed on the traffic lights and any approaching vehicles, as the driver of the bus. The most favorable position that can be taken in his behalf is that he was guilty of negligence or wilful and wanton conduct in whatever degree the bus driver was guilty. Willgeroth v. Maddox, 281 Ill. App. 480.

The trial court should have directed a verdict for defendant or have entered judgment for it notwithstanding the verdict. The judgment is reversed.

Reversed.

Matchett, J., concurs.

O’Connor, J., dissents.


source: Caselaw Access Project

license: Public Domain

text:
    Irving Berry Phillips, Appellant, v. Agnes Dunne O’Connell, Individually and as Executrix and Trustee Under Last Will of Eva Fitch Dunne, Deceased, et al., Appellees.
    Gen. Nos. 43,319, 43,328.

      Heard in the first division of this court for the first district at the February term, 1945.
    Opinion filed April 30, 1945.
    Rehearing denied May 14, 1945.
    Released for publication May 14, 1945.
    Sonnenschent, Berkson, Lautmann, Levinson & Morse, of Chicago, for appellant; Frank C. Bernard, of Chicago, of counsel.
    George A. Bosomburg, of Chicago, for appellees.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

By this appeal plaintiff seeks the reversal of an order denying a deficiency decree in a trust deed foreclosure proceeding against certain defendants, successors in interest to the mortgaged property, upon an agreement which the court held to he a contract of, guaranty. Plaintiff claims that it is an extension agreement in which the defendants assumed and agreed to pay the mortgage indebtedness.

The trust deed being foreclosed was executed January 14,1927 by Frederick T. Hoyt and Bettie F. Hoyt, his wife, to secure the payment of their principal promissory notes aggregating $37,500; March 29, 1927 the Hoyts conveyed the mortgaged property to Eva Fitch Dunne, subject to the trust deed securing the indebtedness above mentioned, “which indebtedness the grantee herein assumes and agrees to pay.” Eva Fitch Dunne died April 14, 1930, and by her last will the mortgaged premises were devised to her daughter Agnes D. O’Connell, defendant, as trustee for herself, J. Paul Dunne, Edith Dunne and Faith Dunne Kirkley, children of the testatrix. The balance of $28,500 of the principal indebtedness secured by the trust deed coming due and payable January 14, 1932, the four beneficiaries of the trust, individually, and Agnes Dunne O’Connell, as executrix and trustee under the will of Eva Fitch Dunne, deceased, under date of December 31, 1931 executed the agreement in controversy, hereinafter called the extension agreement. It recited the execution of the trust deed, the holding of the notes secured thereby by The Northern Trust Company, the payment of $9,000 on the principal of said notes, and (in typewriting) that “Whereas, Agnes Dunne O’Connell individually and as executrix and trustee under the will of Eva Fitch Dunne, deceased, Edith E. Dunne, Mary Faith Kirkley, J. Paul Dunne have requested of The Northern Trust Company an extension of the above indebtedness and in consideration for said extension her.eby guarantee payment of the same.” The operative part (mostly printed) provided that, in consideration of the mutual promises and agreements thereinafter made by and between the parties, The Northern Trust Company agrees to extend the payment of the balance due on said indebtedness for one year, namely, until January 14,1933, and the said beneficiaries under the trust, and Agnes Dunne O’Connell, as executrix and trustee, agree with The Northern Trust Company that they will pay to the legal owner of the notes the sum of $28,500 J anuary 14, 1933, with interest at six per cent, and further, that the parties mutually agree that “all of the provisions, stipulations, powers and covenants in the said principal note, and in the said Trust Deed contained, shall stand and remain unchanged and in full force and effect for and during said extended period . . . except as changed or modified in express terms by this agreement.”

Default having been made in the payment of the mortgage indebtedness as provided in the agreement for an extension of the time of payment, suit was instituted against the signers of the extension agreement and The Northern Trust Company, trustee. Faith Dunne Kirkley having died before the complaint was filed, James M. Kirkley, Sr., her divorced husband, James M. Kirkley, Jr., her son, and Edith Dunne, as trustee under her last will and testament, were made defendants. The complaint consisted of two counts: Count 1, being the ordinary foreclosure complaint in equity asking for a deficiency decree against those personally liable therefor; and Count 2, setting up an action at law for the mortgage indebtedness. Defendants Agnes O’Connell and Edith Dunne, individually and in their representative capacities, filed answers denying execution of the extension agreement in its final form, and alleging alteration of the agreement by striking from the body of it the name of Josephine Dunne, wife of J. Paul Dunne, and the failure of Josephine Dunne to sign it.

A decree of foreclosure was entered directing a sale of the mortgaged premises and reserving jurisdiction for the purpose of determining the personal liability, if any, of the defendants for a deficiency. A sale of the premises was.had and a decree approving same was entered June 14, 1938, finding a deficiency of $14,170.24, together with interest at five per cent from June 1, 1938. Shortly thereafter an order was entered referring the cause to a master in chancery “on the question of what persons, if any, are personally liable for the deficiency found in the former decree of this court,” and denying defendants’ countermotion that the matter be transferred to the law side of the court for a trial by jury. The master to whom the cause had been referred having been elected to the office of judge, a special commissioner was appointed who filed his report February 11, 1943. Plaintiff then moved for a decree against J. Paul Dunne, who had been defaulted, Agnes O’Connell, individually and as executrix and trustee, and Edith Dunne, individually, for the deficiency, then computed to be $9,945. He did not ask for a deficiency decree against the defendants substituted for Faith Dunne Barkley. Plaintiff’s objections to the report were permitted to stand as exceptions, and on hearing before the chancellor he, disregarding the commissioner’s report, held that the extension agreement was a contract of guaranty and not one in which the defendants, successors in interest to the mortgaged property, assumed and agreed to pay the indebtedness secured by the trust deed being foreclosed, and, by an order entered July 16, 1943, as amended July 28, 1943 (hereafter referred to as the 1943 orders), denied plaintiff’s motion for a deficiency decree and, on defendants’ motion, transferred the cause to the law side of the court for a trial by a jury of the issues under count 2 of the complaint. The special commissioner’s report was stricken from the files and jurisdiction in chancery retained for the purpose of determining the fees of the special commissioner after determination and disposition of the issues under count 2 on the law side of the court. From these orders plaintiff appealed, and on defendants’ motion we dismissed the appeal, holding that the orders were not final and appealable orders so long as the issues under count 2 were pending and undisposed of. (322 Ill. App. 164.) The mandate being filed, the court on June 30, 1944 ordered that “count 2 of the complaint be dismissed without prejudice on plaintiff’s motion and without prejudice to the defendants ’ right, if any, of a jury trial,” and gave leave to plaintiff to file instanter his petition to vacate the 1943 orders. By their answer to plaintiff’s petition defendants Agnes O’Connell, individually and as trustee, and Edith Dunne, individually, alleged among other matters that plaintiff’s claim for a deficiency was fully satisfied by settlement of his claim for deficiency against the estate of Frederick T. Hoyt, deceased, one of the makers of the original notes. On October 16, 1944 plaintiff’s petition was denied. His appeal from that order and the 1943 orders are before- us in cause 43319. Shortly thereafter, upon leave granted, plaintiff appealed from the order of June 30,1944 dismissing count 2 of his complaint on his motion, and from the 1943 orders. This appeal is numbered 43328. The appeals have been consolidated. Defendants have filed a motion to dismiss the appeal numbered 43328, and this motion has been reserved to final hearing.

The situation here presented by the 1943 orders denying a deficiency decree in the equity proceeding and transferring plaintiff’s action at law under count 2 for the balance unpaid on the mortgage notes to the law side of the court for a jury trial, is analogous to the situation created under the former Practice Act when a complaint in chancery was dismissed as to a part of the defendants and jurisdiction retained for disposition of the cause as to the remaining defendants. In such case it was held that there could be no appeal from the order of dismissal until the final disposition of the case. As said in Foote v. Yarlott, 238 Ill. 54, 57; ‘' The order was interlocutory and not appealable, since there can be no appeal until there has been a complete disposition of a cause as to all parties.......there could be no appeal until the final decree, when the whole record, including the order of dismissal, might be brought up for review. (Dreyer v. Goldy, 171 Ill. 434; Pain v. Kinney, 175 id. 264; Brodhead v. Minges, 198 id. 513.)” A similar practice prevails under the Civil Practice Act. In Walters v. Mercantile Nat. Bank of Chicago, 380 Ill. 477, the court of its own motion dismissed an appeal from a decree determining some but not all of the issues raised by the pleadings, and said (487): “The applicable provisions of the Civil Practice Act, even if construed to authorize separate decrees to be entered in a case of this kind, do not make such decrees final until the termination of the litigation by the decision of all the questions and issues raised between all the parties to the suit. (Rogers v. Barton, 375 Ill. 611; McDonald v. Walsh, 367 id. 529.) When the case is thus disposed of any party feeling himself aggrieved may perfect an appeal from any and all orders entered. Until that time, all such orders are interlocutory and cannot he reviewed on appeal.” The 1943 orders did not become final and appealable until the disposition of the issues presented by count 2, so the time within which such orders might be appealed from did not begin to run until the entry of the order disposing of count 2. Since the petition to vacate the 1943 orders was entered concurrently with the dismissal of count 2, that count was not finally disposed of until denial of the motion to vacate on October 16, 1944. Majewski v. Pozdol, 195 Ill. App. 400, 403. Under section 74 (subpar. 1) of the Practice Act appeals “. . . shall be deemed to present to the court all issues which heretofore have been presented by appeal and writ of error.” Under the former Practice Act the entire record'was subject to review on writ of error. Drummer Creek Drain. Dist. v. Roth, 244 Ill. 68, 72. In Bride v. Stormer, 368 Ill. 524, the right of plaintiff to appeal from an order dismissing a complaint to foreclose a trust deed as to one of the defendants against whom a deficiency was sought, entered more than three months before the final decree determining the amount of the deficiency and ordering execution against the remaining defendant, was questioned. The court said (p. 528): “Appellants could have reviewed both these decrees by a single writ of error before the adoption of the Civil Practice Act, and now, in view of section 74 (1), supra, both decrees may be reviewed by one appeal. The contention that the notice of appeal filed March 12, 1937, could not include the decree of November 19, 1936, cannot be sustained.” It was therefore proper to include the 1943 orders in the notice of appeal when appealing from the Order of October 16, 1944 denying the motion to vacate the 1943 orders.

In the second appeal it is immaterial whether the order of June 30, 1944 dismissing count 2 is appealable by plaintiff because entered on his motion. Rule 33 (2) of the Supreme Court, prescribing the form and contents of a notice of appeal, provides that such notice “shall specify and describe the order, determination, decision, judgment or decree which is being appealed from, and if the appeal is from a part thereof only, it shall specify which part,” and (subpar. 3), that such notice “shall state what judgment, decrees, orders or proceedings are desired from the reviewing court by way of relief.” Plaintiff does not seek reversal or modification of the order dismissing count 2. It was not necessary to include it in the orders appealed from, although, as heretofore shown, that order and the subsequent order of October 16, 1944, refusing to vacate the 1943 orders, made the 1943 orders final and appealable. The orders of 1943 having been properly included in the first appeal, the second appeal was unnecessary. In view of the position taken by the defendants it was an advisable cautionary measure, and was allowed by us. It will be dismissed without costs.

Defendants contend that although the 1943 orders were not appealable, they were final, and the trial court was without jurisdiction to entertain plaintiff’s motion to vacate such orders. This position cannot be sustained. In Sheaff v. Spindler, 339 Ill. 540, a similar objection was made. In that case plaintiff filed a bill to quiet title; the demurrer of defendant Duplissis was sustained and the bill dismissed as to him November 28, 1921; within the term the order of dismissal was modified by adding, “Appeal prayed and allowed to ... , which appeal is to be perfected at the time of the final disposition of this cause”; Duplissis died March 2, 1928 and, the case not having been disposed of, plaintiff suggested the death of Duplissis, and his executors and others interested' in the distribution of his estate were substituted as defendants; plaintiff then moved to vacate the order of November 28, 1921 sustaining the demurrer of Duplissis; on February 25,1929 the motion to vacate was denied and bill dismissed as to all defendants; plaintiff then appealed. The reviewing court overruled the objection of the executors and representatives of Duplissis that the trial court was without jurisdiction to enter the substitution of the executor and representatives upon suggestion of the death of Duplissis, and reversed the decree and remanded the cause with directions to set aside the order sustaining the demurrer and to overrule it, etc. In Barnes v. American Brake-Beam Co., 238 Ill. 582, and Rogers v. Barton, 375 Ill. 611, where, as in the case before us, orders were entered final in their nature as to certain matters contested between the parties, but jurisdiction was retained for the determination of other matters, it was held that until final disposition of the case such orders could be vacated or modified by the trial court.

In denying a deficiency to plaintiff in the foreclosure proceeding the court construed the contract extending the time of payment of the mortgage notes as one of guaranty. This construction was based entirely upon the terms of the contract, and the word “guarantee” in the typewritten recital quoted above was held to control the principal undertaking of the defendants in the operative portion of the contract to pay the balance due on the notes. In consideration of this undertaking to pay, the legal owner of the notes extended the time of payment. There is no ambiguity or uncertainty in any of the provisions in the operative portion of the contract. In Chicago Daily News v. Kohler, 360 Ill. 351, where, as in the case before us, the recital was typed and the operative portions of the contract were printed, the court said (pp. 362, 363): “The operative part of the agreement is clear and free from ambiguity. Mere recitals, whether they are found in a preamble or at the end of a contract, are distinguishable from obligations or promises. The contract itself is one of bargain and sale, and its clearly expressed stipulations cannot be controlled by but must prevail over the recitals. (Williams v. Barkley, 165 N. Y. 48; Hansbarger v. Hansbarger, 206 Mich. 281; Irwin’s Bank v. Fletcher Savings and Trust Co., 195 Ind. 669.) ” To the same effect are Dunlop v. Lamb, 182 Ill. 319, 328; Burgess v. Badger, 124 Ill. 288, 293. The word “guarantee,” if it were in the operative portion of the contract, would not necessarily determine the character of defendants’ obligation. That is to be determined by the terms of the contract and the circumstances under which it was made. Vermont Marble Co. v. Bayne, 356 Ill. 127; Pan-American Bank & Trust Co. v. National City Bank of New York, 6 F. (2d) 762; Everts v. Matteson, 21 Cal. (2d) 437, 449. In the Everts ease the court had under consideration an agreement for the extension of a mortgage indebtedness which the grantees of the mortgaged premises had assumed and agreed to pay; that agreement provided that in consideration of the extension of the note the grantees “hereby guarantee the payment of the aforesaid note,” and that “this guaranty shall not be affected by any forbearance . . . And I (we) hereby promise to pay” the amount remaining unpaid at the times and in the several amounts therein specified. The court held that the agreement could not be construed as a contract of guaranty; that by it the grantees were assuming the trust deed indebtedness and becoming primary debtors on the obligation. A like holding was reached in Birkhofer v. Krumm, 4 Cal. App. (2d) 43, 40 P. (2d) 553. The trial court erred in holding the extension agreement to be a contract of guaranty. By its terms the defendants assumed and agreed to pay the mortgage indebtedness. The court had jurisdiction in a foreclosure proceeding to enter a deficiency decree against persons assuming the mortgage indebtedness. Albers v. Moe, 306 Ill. App. 208; Chicago Title & Trust Co. v. See-Moon & Co., 312 Ill. App. 527. It follows that the trial court erred in entering the 1943 orders and in refusing to vacate them. The report of the special commissioner has not been considered by the trial court. On the motion to vacate the 1943 orders defendants raised an additional defense to their alleged liability for a deficiency decree. That defense, if persisted in, should be set up by answer to the complaint upon leave granted by the trial court.

The orders appealed from are reversed and the cause is remanded for further proceedings in accord with this opinion.

Reversed and remanded.

Matchett and O’Connor, JJ., concur.


author: Mr. Justice Matchett

text:
    Anna A. Goodman, Appellee, v. Independent Order Bickur Cholem Ukadishu et al., Defendants. Independent Order Bickur Cholem Ukadishu and Abraham Bosley, Appellants.
    Gen. No. 43,209.

      Heard in the first division of this court for the first district at the October term, 1944.
    Opinion filed April 30, 1945.
    Released for publication May 14, 1945.
    Edward W. Weiss, of Chicago, for appellants.
    Philip A. Winston, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff is the widow of Salo Auerbach, who died November 11, 1927. Defendant is incorporated for charitable and benevolent purposes under the Act of 1872 and authorized to conduct a cemetery. '

May 20, 1928, plaintiff purchased from defendant a plot of land in defendant’s cemetery at Waldheim, Forest Park, Cook County, Illinois, for the sum of $3,000, for which she received a warranty deed. She caused the body of her husband to be laid at rest there and in his memory caused a mausoleum to be erected at a further cost of $12,500.

The deed by which she took title while a warranty in form was subject to conditions that the conveyance was subject to conditions stated in the by-laws. It contained no provision requiring the defendant corporation to provide care for the lot or the mausoleum. Defendant, however, had an official sexton who provided this care by private arrangement with plaintiff and other owners of lots in the cemetery.

Plaintiff became dissatisfied and apprehensive as to the care this property might receive in case of her death. She conceived the idea of selling her lot in defendant’s cemetery and buying one in another which provided for perpetual care. She told the sexton of her wishes and asked him if he could find a buyer. About June 10, 1943, she purchased vault space in another cemetery. September 23, 1943, she received a permit from the Department of Public Health of Forest Park, permitting an undertaking company to remove the remains of Mr. Auerbach to the new lot. The sexton secured a purchaser for her lot and mausoleum in defendant’s cemetery. His name was Samuel Best. He is of Jewish faith, and there is no objection to his character. The defendant corporation and its officers, however, denied requests by plaintiff for leave to sell the lot or to disinter the body of her husband. She employed an attorney, who met and negotiated with the attorney for the defendant corporation. October 5, 1943, the defendant’s attorney wrote a letter, stating the grounds on which the requests of plaintiff to sell and disinter were denied.

Plaintiff, on November 4, 1943, filed her complaint consisting of thirty-three paragraphs, reciting at length the narrative of her transactions with defendant, as above stated, and praying defendant corporation and its officers might be enjoined from refusing permission to remove the body and from denying permission to sell to Best for the consideration of $5,000, which he offered. The complaint is verified and attached to it is the written statement, signed by Walter S. Auerbach, only child and son of Salo and Anna Auerbach, consenting and agreeing to the removal of the remains of his father as arranged by his mother.

Defendants answered the bill, denying its equity and denying plaintiff was entitled to the relief for which she prayed.

Evidence was heard in open court. The chancellor found the equities with the plaintiff; that reasons assigned by defendants for refusal of their consent to the sale and reinterment were untenable; that while the by-laws of defendant provided an owner of a lot might not dispose of his rights without the consent of the defendant, this was a restriction which could be enforced only in proper cases and could not be unjustly and unreasonably withheld; that defendants might not arbitrarily transcend their powers to the injury of a lot owner. As to the removal of a body, the decree finds that in the absence of any provision in the charter or by-laws the rights of plaintiff must be determined upon equitable grounds not by Jewish law; that plaintiff had the right, with the consent of her son, to have the body removed to another cemetery without interference by defendants; that defendants’ claim that to allow the lot of plaintiff to remain empty would have a tendency to deteriorate the cemetery had no legal foundation, because there was no provision in the deed or by-laws requiring plaintiff or any other owner to keep up their property in the cemetery or care for their lots, this being voluntary on the part of the lot owners, and other owners had neglected to care for theirs.

The decree also finds that the real and underlying reason for denying plaintiff’s requests was “the fact that plaintiff refused to accede to the conditions laid down by the defendants, to-wit: that plaintiff deed the property to the defendant corporation for resale to Mr. Best who was to pay Five Thousand Dollars ($5,000.00) out of which the defendant corporation was to retain One Thousand Dollars ($1,000.00) for its own use and benefit.” This condition, the decree finds, was unjust, unreasonable and arbitrary, and not sanctioned by plaintiff’s deed or the charter and bylaws of the corporation. The injunctions as prayed for were therefore granted against the corporation, its superintendent and Mr. Abraham Bosely, chairman of its cemetery committee, who were ordered to grant these requests. From this decree the defendants named have appealed.

Defendants contend for reversal of the decree on two grounds: first, they argue the court erred in requiring them to consent to the transfer of plaintiff’s lot in the cemetery to Sam Best; secondly, that the decree errs in directing defendants to consent to the removal of the body of Salo Auerbach to another cemetery. The first contention clearly must depend upon the written contract between the parties, as expressed in the deed by which plaintiff received her rights. The instrument was dated May 20, 1928, in form a warranty deed. It was by its terms, however, subject to the by-laws of the defendant corporation then in force or which might thereafter be adopted. One of the objects of the defendant Order is by its charter stated to be to own and maintain a cemetery for the burial of its deceased members and their families. There is a board of trustees and a cemetery committee consisting of five members, including the superintendent, as chairman, and three others, whose duties are to have supervision and to act and determine all matters, complaints and disputes arising out of the cemetery. An appeal may be taken from the committee to the Order upon complaint in writing, and a two-thirds vote of members present is sufficient to reverse any finding of the committee. Any person of the Jewish faith who is not a member of the Order may purchase a lot, or if any member desires to purchase an additional lot, he shall pay for same at a price to be agreed upon between such person and the superintendent, as approved by this committee.

Pertinent provisions of the by-laws are:

“No owner of a lot may dispose of his rights therein without the specific consent of the Order.”
“This Order may own, maintain and control cemeteries to be known as the Independent Order Biekur Cholem Ukadishu cemeteries, and same shall be governed according to the rules and laws of this Order.”
“A beneficiary member shall have the right to purchase the use of a cemetery lot at such price and , on such terms as shall be determined by the Cemetery Committee. ’ ’
“The purchase of said lot shall give the purchaser the following rights with reference thereto at such time as fifty per cent of the purchase price of his lot has been paid; he shall have the right to use his lot for the burial of himself, his wife, his parents, his wife’s parents, his sons and daughters, including adopted children, his brothers and sisters.”

It will be noticed the by-laws, which by reference were part of the deed, provide that the owner of a lot may not dispose of his rights without the specific consent of the Order, and the by-laws provide the relationship of the persons to the owner who are permitted burial in the cemetery. These seem to be absolute and unconditional provisions. ' There is no provision in the deed or in any by-law by which an owner of a lot may compel the consent of the corporation or its officers to the transfer of these rights to any other person.

The decree finds these provisions to be proper but says that consent by the corporation cannot unjustly and unreasonably be withheld, and that defendants may not act arbitrarily or transcend their powers in this respect to the injury of a lot owner. The contract between plaintiff and the defendant corporation was voluntarily entered into. It may be true that the exaction of $1,000 from the plaintiff for permission to sell her lot to another person who is unobjectionable from any reasonable standpoint may seem arbitrary and unreasonable, but this is the contract which was voluntarily made by the parties, and we know of no case and none is cited which would give to this or any other court of equity the right to make for the parties a contract other and different from that which they made for themselves. The time for plaintiff to consult her lawyer was when she was buying not after she had bought. "Whether the duties imposed upon the defendant are those of a quasi public corporation as distinguished from a strictly private one would not make any difference in this respect. The question here is not like that in Houston Cemetery Co. v. Drew, 13 Tex. Civ. App. 536, 36 S. W. 802, 804, cited where it was held that there was certain duties a quasi public corporation might be held to perform for lot owners. What plaintiff here desires is not the performance of a particular duty due to her under her contract but a severance and destruction of the relationship created by her contract with the corporation. The power to make reasonable rules and regulations for the management of a cemetery, as was held in Rosehill Cemetery Co. v. Hopkinson, 114 Ill. 209, rests upon another and a different ground. The court may in such a case restrain a corporation from acting arbitrarily or transcending its powers to the injury of a lot owner.

As to the right of plaintiff and her son to disinter and remove the body- of the husband and father, defendant in its brief says:

“As to plaintiff’s right to disinter the remains of her previous husband, defendant relies entirely on one proposition for its refusal to permit it, hereby waiving all its other defenses to the right of plaintiff to remove such remains. Our position on this point is that plaintiff may not make the disinterment because she threatened that if defendant refused her the permission to sell her lot, she would remove the remains and purposely permit the appearance of the lot to be so unsightly and unkempt that the value of the surrounding lots and of the cemetery would depreciate. This was pleaded by the defendant and testified to by both sides.”

There are cases holding that where anyone who has the right protests the disinterring of a human body, the permission to do so will be denied where such disinterment would seem to be contrary to the religious convictions of the deceased person who has given particular directions as to the place in which his body is to be interred. Yome v. Gorman, 242 N. Y. 395; In re Weinstein, 243 App. Div. 738, 277 N. Y. S. 425; and Goldman v. Mollen, 168 Va. 345, 191 S. E. 627. There are no such objectors here, and fortunately, no question of race or religion is presented. Plaintiff’s husband did not select the cemetery in which his body would rest, but it lies where it is by the will and decision of the wife, who had the legal right to will and decide. She and the son (the only persons, so far as the record shows, who have any interest in this matter) agree to the removal. The corporation, which now arbitrarily desires to hold possession of his body, is very clearly not moved in the matter by a consideration of love or affection. Nor is it possible to believe that any threat by Mrs. Goodman (evidently made in anger) is the moving cause for the position defendants take. No case is cited where any such defense under such circumstances has been held available.

The decree so far'as it directs defendants to consent to the transfer of the rights in the lot in question to Sam Best or any other person is reversed; in so far as it directs the defendants to consent to the removal of the body, it will be affirmed. The cause will be remanded for proceedings in conformity with this opinion.

Affirmed in part and reversed in part and remanded.

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


author: Presiding Justice Bristow.

text:
    People of State of Illinois ex rel. F. J. Groff et al., Appellants, v. Board of Education of Crossville Community High School District No. 120, White County, Appellee.
    Term No. 4,308.
    Heard in this court at the February term, 1945;
    opinion filed April 25, 1945;
    released for publication May 26, 1945.
    Albert McCallister, State’s Attorney,
    Kern, Pearce & Pearce and Hefner & Harris, for appellants;
    Ulys Pyle and Cyril C. Endicott, for appellee.
   Opinion by

Presiding Justice Bristow.

Not to be published in full.


author: Presiding Justice Niemeyer.

text:
    Harry Danison, Appellee, v. Dorothy Brosmore, Appellant.
    Gen. No. 43,338.
    Heard in the first division, first district, this court at the February term, 1945;
    opinion filed April 30, 1945;
    rehearing denied May 14, 1945;
    released for publication May 14, 1945.
    Murphy & Dieringer, for appellant;
    William T. Murphy and Henry W. Dieringer, of counsel;
    Coghlan & Coghlan, for appellee;
    Malachy J. Coghlan and John P. Coghlan, of counsel.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


author: Justice Matchett.

text:
    Michael Braun and Glenemay Braun, Appellants, v. Julia Manaster, Appellee.
    Gen. No. 43,350.
    Heard in the first division, first district, this court at the February term, 1945;
    opinion filed April 30, 1945;
    released for publication May 14, 1945.
    Robert H. Holmes, for appellants;
    John R. Hlavacka, for appellee;
    John W. Golosinec, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


author: Justice O’Connor.

text:
    Mary Coit, Administratrix of Estate of Edlyn Coit, Deceased, Appellee, v. Albert Ormerod et al., Defendants. Checker Taxi Company and Clement Belinski, Appellants.
    Gen. No. 43,258.
    Heard in the first division, first district, this court at the October term, 1944;
    opinion filed April 30, 1945;
    rehearing denied May 14, 1945;
    released for publication May 14, 1945.
    Miller, Gorham, Wescott & Adams, for appellants;
    Herbert C. DeYoung and Charles F. White, of counsel;
    Joseph D. Ryan, Louis G. Davidson and Louis P. Miller, for appellee.
   Opinion by

Justice O’Connor.

Not to be published in fulL


text:
    L. A. Dubsky, Appellee, v. Charles Stern, Appellant.
    Gen. No. 43,310.
    Heard in the first division, first district, this court at the February term, 1945;
    opinion filed April 30, 1945;
    released for publication May 14, 1945.
    Despres & Lane, for appellant;
    Leon M. Despres and Albert Schwartz, of counsel;
    Lloyd W. Lehman, for appellee.
   Opinion by

Justice O’Connor.

Not to be published in full.


text:
    Charles C. Hoffman, Jr., et al., Appellants, v. Burnett Central Building, Inc., et al., Appellees.
    Gen. No. 43,331.
    Heard in the first division, first district, this court at the February term, 1945;
    opinion filed April 30, 1945;
    released for publicátion May 14, 1945.
    Shulman, Shulman & Abrams and William Henning Rubin, for appellants;
    Poppenhusen, Johnston, Thompson & Raymond and Miller, Gorham, Wescott & Adams, for appellees;
    Henry J. Brandt, of counsel.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Mr. Presiding Justice Dove

text:
    Paul J. Keller and Arthur E. Inglesh, Trustees, Appellees, v. James S. Rodie, Individually and Trustee of Longwood Trust et al., Defendants. W. Allan Wood, Appellant.
    Gen. No. 10,023.

      Heard in this court at the February term, 1945.
    Opinion filed May 28, 1945.
    Released for publication June 18, 1945.
    Adams, Moses & Culver, of Chicago, and Krusemark & Krusemark, of Joliet, for appellant.
    Charles H. Blim, of Joliet, for appellees.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

This cause is here by an appeal from an interlocutory ex parte order of the circuit court of Will county, entered on October 9, 1944, appointing a receiver for the mortgaged premises in a foreclosure suit, on the same day the complaint was filed.

Counsel for appellant, as such, filed a petition to remove the receiver, and the defendants filed a motion to dismiss the complaint. Appellee Keller filed a motion to strike the petition of appellant’s counsel, and later appellant Wood filed a motion to vacate the order appointing the receiver, adopting the prior petition of his counsel. The latter motion was filed on December 2, 1944, and a hearing was had on that day. At the close of the hearing the court stated: “Show for your minutes: Proofs heard and closed and motions to vacate denied and motion to strike denied. Receivership continued with qualifications set forth in order. See order.” The record shows a signed order of the court entitled: “Order of December 2nd, 1944,” under a placita of and purporting to be entered on that date. While it is somewhat confused as to the character of the matters presented on the hearing, it orders only: “That the motions to discharge the receiver and the motion to strike the motion to discharge the receiver are denied',” and continues the receivership with qualifications. The order does not pass upon appellant’s motion to vacate the order appointing the receiver, and no such order has been entered. Under Supreme Court Rule 31 (Ill. Rev. Stat. 1943, ch. 110, par. 259.31 [Jones Ill. Stats. Ann. 105.31]), providing for an appeal from an interlocutory ex parte order if the court does not act upon the motion to vacate the same within seven days after its presentation, the appeal was properly prosecuted from'the order appointing the receiver.

The indebtedness secured by the trust deed in controversy is evidenced by 15 promissory notes for the principal sum of $17,500,14 of them for $750 each due semiannually, beginning November 1, 1941, and one note for $7,000 due November 1,1948, with semiannual coupon interest notes. The notes, payable to bearer, and the trust deed to Arthur E. Inglesh, as trustee, all dated November 1, 1938, were executed by James S. Brodie, as trustee of Longwood trust. The trust deed conveys approximately 212 acres of land in Will county, adjacent to the, State line between Illinois and Indiana, and known as Longwood Country Club. It was conveyed to appellant W. Allan Wood on March 31, 1942, by the successor trustee of Longwood trust, and was formerly used as a golf club, but not within about three years next prior to the filing of the foreclosure suit. Appellee Paul J. Keller lives in Indiana on the adjoining property. The trust deed provides, in case of any default in payment of principal or interest, for acceleration of the maturity of the principal sum and immediate foreclosure, at the option of the holder of the principal notes; and that upon the filing of any bill for foreclosure, for the immediate appointment of a receiver without notice, with power to immediately enter and collect the rents, issues and profits.

The complaint for foreclosure, which is sworn to by appellee Keller, alleges his ownership of all the principal notes and of coupon interest notes numbers 8 to 20, the prior coupon notes having been paid; that $150 had been paid on coupon note No. 8 on December 1, 1942; that the first six principal notes and coupon notes 8 to 11 were in default, and that he had elected to declare all of principal notes and coupon notes due; that the premises were improved for a golf course and certain buildings, including a clubhouse; that the buildings were unoccupied except as golfers were in them in the day time, and that plaintiffs fear that in case of loss by fire or otherwise they will be unable to collect the insurance thereon; that the fixtures are covered by the trust deed, and that certain agents or employees of the defendants have carried away some of them, and that plaintiffs fear that other fixtures will be carried away; that the premises are scant security for the indebtedness, costs and expenses; that the mortgagor has not applied the rents to the indebtedness, and if the premises cannot be sold for an amount sufficient to pay the debt, costs and expenses, a personal decree against the mortgagor and the present owner would be unavailing. The complaint concludes with a prayer for foreclosure and the appointment of a receiver. The abstract does not show that any answer to the complaint was filed.

All the defendants entered their general appearance, and in their motion to dismiss the complaint adopted the petition of appellant’s counsel to remove the receiver. The contention that the trial court erred in appointing a receiver without notice to any of the defendants is without merit, as the trust deed expressly provides that upon the filing of any bill for foreclosure, the court may immediately appoint a receiver without notice to any of the interested parties.

The claim that the order appointing the receiver should have been vacated because the plaintiffs ’ bond, made on the application for the appointment, runs to the People, instead of the adverse party, as required by the statute (Ill. Rev. Stat. 1943, ch. 22, par. 54 [Jones Ill. Stats. Ann. 106.19]), is equally untenable. The appointment of a receiver is not void even though no bond at all be filed without an order dispensing therewith as required by the same section of the statute. (Walenti v. Krolik, 234 Ill. App. 407.) If the bond was not sufficient an application should have been made to require the filing of a sufficient bond to correct the defect. (Schmidt v. Johnson, 166 Ill. App. 622, 623.) Furthermore, the want of a sufficient bond not having been raised in the trial court, cannot be urged here on appeal. (Meyer v. Wiltshire, 92 Ill. 395, 396.)

It is next claimed that the court erred in refusing to vacate the order upon proof of a bona fide sale of the premises to a bona fide purchaser for more than twice the amount due under the trust deed, within a few days prior to the filing of the complaint for foreclosure. The allegation in the verified complaint that the property is scant security for the debt, costs and expenses, raised a question of fact, and the court heard evidence on that question, and as to the impairment of the security and the danger of loss to the holder of the obligation.

Appellant introduced in evidence a contract dated September 22, 1944, for the sale of the premises to Russell H. McBride, a Chicago lawyer, “not personally but as Trustee under Trust agreement dated September 19, 1944,” signed: “Allan Wood by Estelle B. Hunter, Atty. in Fact,” and “Russell H. McBride, not personally but as Trustee,” for $40',000, with $2,000 down payment, $20,000 in instalments over a period of nine months, and a trust deed for the balance of $18,000, due on or before five years after its date. Proof of the down payment to Thomas F. Seay, a broker, by the purchaser was made, and an affidavit of the purchaser recites that he is ready, willing and able to carry out and perform all the terms of the contract. He did not testify on the hearing. The broker testified that he had one offer of $27,000, all cash, from a Gary, Indiana, broker, and another of $32,000, with a small down payment from another Chicago lawyer; that he “judged the property is worth forty, forty-five or maybe fifty thousand dollars, if you got the right buyer.” On cross-examination he said the property was rolling, all grown up in weeds, the greens were in bad shape, and it would cost from $300 to $350 each to réseed them; he also testified to the dilapidated condition of the buildings; that it would cost $15,000 to put the premises in shape; that they figured the property was no good for farm land, and its best use was for a golf course; and that the present owner plans a colored golf course, selling memberships to colored people in Chicago.

A disinterested witness who operates general machine rights and a real estate business in the vicinity of the premise's in controversy, testified that the fair market value was $15,000; that he was familiar with the land; that the soil is the poorest in that territory, part wet and part dry, and the best use to which it could be put at present is to raise cattle; that the club house is an old barn, probably built 60 to 80 years ago and dilapidated; that nobody would tear it down for it, and $500 would be the most that could be gotten for it; that the women’s quarters are in worse shape than the barn, and $2,000 would have to be spent on the house to get anyone to move there, and that it would fall apart unless repaired; that he would say it was worth $2,000, and the other buildings are not worth fixing; that the property is five miles from a railroad station, and the club house is one half mile from a concrete highway. Another witness testified that he talked to Mr. Wood about repairing the buildings and that Mr. Wood said he was not going to spend a dime on it. The testimony also shows that the caddy buildings, the pump to furnish water to the greens, approximately 275 lockers, and the freezing unit had been sold and removed from the property.

It appears from the testimony that the property had been offered to a hunting club on a basis of $28,000, which they were trying to raise, but were very uncertain about; that Mr. Keller had put in $1,000, and there was talk of acquiring only the equity, but the negotiations fell through. It also appears that Mr. Keller talked with one of appellant’s counsel in the presence of Mr. McBride, and knew of the $40,000 contract before he purchased the notes and trust deed, and that he started foreclosure within a few days after his purchase. He testified that he first learned that the property had been sold, from some negroes who stopped their car at his house to meet the neighbors. The record at this point indicates that Mr. McBride was one of the occupants of the car. Mr. Keller further testified that the purchaser attempted a scare by attempting to sell to negroes, and'threatened to do so unless paid $13,000 for possession and the equity; and that later Ralph Weimer, the agent of the purchaser, told the witness that they had paid $2,000 down on the contract, and offered to sell for $15,000, or they would turn the property over to colored people. Mr. Keller’s testimony is not contradicted.

There is no question but what the debt is in default as alleged in the complaint. The purchaser entered into the contract of purchase only as trustee, and his obligations are expressly limited to that ca-parity, and there is no testimony that tends to show that the parties whom he represents will be able to make any of the payments provided for therein, nor is there any testimony that shows that either of the other parties who Mr: Seay testified had made offers for the property was able to carry out such offers. The chancellor saw and heard the witnesses testify, and we cannot say that his conclusions as to the property being wasted and scant security for the debt and costs is against the weight of the evidence.

The next contention is that the court erred in refusing to vacate the order appointing the receiver because appellant is in the Maritime Service of the United States, and that all real estate taxes and insurance premiums were paid in full to the date of the filing of the' foreclosure suit, and that the principal and interest of the mortgage debt were not in‘default when he entered the service. On December 20, 1944, appellant was present in court in person and it was stipulated that he is a lieutenant commander in the Maritime Service. The record shows that he has been in such service since on or about May 19, 1942.

The functions of the Maritime. Commission were transferred to the Commandant of the United States Coast Guard by Executive Order No. 9083 of the President, effective March 1, 1942. (7 Fed. Reg. 1609). Section 511 of the Soldiers’ and Sailors’ Civil Relief Act (USCA title 50, § 511) extends its provisions to all members of the Army, the Navy, the Marine Corps, the Coast Guard, etc. Appellant relies upon this Executive Order, sec. 511, and subsec. (3) of sec. 532 of the Soldiers’ and Sailors’ Civil Relief Act, applying to mortgages, trust deeds, etc., as amended on October 6, 1942.

Subsec. (3) of sec. 532, as so amended, provides:

“No sale, foreclosure, or seizure of property for nonpayment of any sum due under any such obligation, or for any other breach of the terms thereof, whether under a power of sale, under judgment entered upon warrant of attorney to confess judgment contained therein, or otherwise, shall be valid if made after the date of enactment of the Soldiers’ and Sailors’ Civil Belief Act Amendments of 1942 and during the period of military service, or within three months thereafter, except pursuant to an agreement as provided in section 107 (section 107 of this appendix referring to agreements entered into after entry into the military service) unless upon an order previously granted by the court and a return thereto made and approved by the court. ’ ’

Subsec. (2) of the same sec. 532, as amended, provides that a proceeding in which a person in military service is involved, either as plaintiff or defendant, shall, on the application of such person or some person on his behalf, be stayed as provided in the Act, unless in the opinion of the court, the ability of the plaintiff to prosecute his action or the defendant to conduct his defense is not materially affected by his military service. Under the familiar well-established rule of statutory construction, the provisions of both subsec. (2) and (3) of sec. 532 must be construed together.

In Cortland Sav. Bank v. Ivory, 27 N. Y. S. (2d) 313, (1941), relied upon by appellees, a foreclosure was stayed on condition that the mortgagor, who had been called into service in the' Navy, pay $26.95 monthly to cover taxes and interest on the unpaid balance of the mortgage.

In O’Leary v. Horgan, 39 N. Y. S. (2d) 555 (1943) also relied upon by appellees, the plaintiff consented to a stay on condition that he have leave to examine the wife of the service man defendant before trial but not oftener than once a year as to the financial ability of the defendants and details of the occupancy of the premises if not occupied by the defendant’s family; that he might apply for leave to proceed on notice to the wife or her attorney if the defendants’ financial condition had improved sufficiently to make the monthly payments without hardship to the defendants ; that plaintiff have leave to apply for a receiver if the premises became vacant; and that defendants be denied leave to answer after her time had expired. In approving the stay under these conditions the court said: “This section does not contemplate complete immunity since the court is required to make such disposition ‘as may be equitable to conserve the interest of all parties.’ ”

In Jamaica Sav. Bank v. Bryan, 175 Misc. 978, 25 N. Y. S. (2d) 17, (1941) also relied upon by appellees, a stay was denied as to the husband of the owner of the premises in a mortgage foreclosure, where the husband, who was in the military service in the National Guard on a part time basis, was not liable on the mortgage bond, but was made a party because he was the husband of the owner and was an occupant of the premises. The court said in the opinion: “It is difficult to see how the defendant’s military service materially affects his ability to conduct his defense to the action. In fact, no evidence has been adduced to indicate that he has a defense to the action.”

In Ligthner v. Boone, 222 N. C. 205, 22 S. E. (2d) 426, (Nov. 7, 1942) the plaintiff commenced an action against the defendant, who was in the military service, for an accounting of trust funds. Through his attorney he moved for a stay on the ground that he was in the military service. One continuance was granted to a fixed date, and on the latter date his attorney declined to appear further in the case. The court proceeded with the trial, which resulted in a verdict and judgment against the defendant. Although the attorney announced that he appeared for the sole purpose of moving for a continuance,' the Supreme Court held that the appearance was general, and that there was no error in proceeding with the trial without appointing another attorney pursuant to sec. 200 of the Act. The judgment was affirmed by the Supreme Court, and it is said in the opinion: “He (the trial court) permitted the defendant to use the Act of Congress as a shield, and declined to permit him to use it as a sword. In this, we think the trial court pursued the intent of the statute.”

In The Sylph, 42 F. Supp. 354 (Dist. Ct., East Dist. N. Y. 1941) the defendant was in the military service, and a decree of foreclosure and sale, where the defendant had permitted a default, and it appeared he had no defense, was stayed for 60 days, and it was ordered that the sale could then be made, provided the libelant stipulated to waive a personal judgment against the defendant.

In Pope v. United States Fidelity & Guaranty Co., 67 Ga. App. 415, 20 S. E. (2d) 618, a judgment creditor levied on the debtor’s life interest in real estate. The judgment debtor made application for a stay on the sole ground that he was a lieutenant colonel in the army, on active duty. He was receiving a substantial salary and subsistence, and the stay was denied on the ground that the record failed to show that his ability to comply with the-judgment was materially affected by his military service.

The circumstance in the Jamaica Sav. Bank case, that no personal judgment could be entered against the service man, and in the case of The Sylph that none was to be entered against the defendant, is analogous to the situation here, where it is apparent that no deficiency judgment could be entered against appellant.

The quoted words in the Jamaica Sav. Bank case are appropriate» here. Appellant was in court in person on December 20, 1944. The record shows that one of his present counsel, procured an extension of one of the principal notes which was in default in May 1942, by appellant paying coupon note No. 7, and has represented him ever since in relation to the property in controversy, and Ms activities demonstrate that he is able and resourceful. How Mr. Wood could' have done any more, if he had not been in the Maritime Service, than his counsel has done, is not suggested, nor is it suggested how his military service or the receivership will in any way impair his ability to conduct his defense. On the contrary, the record shows that his ability to conduct his defense is not materially, nor in any appreciable degree, affected by his military service. Furthermore, under the doctrine of ejusdem generis, we think that the words “or otherwise” in subsec. (3) of sec. 532 relate only to a sale, foreclosure or seizure of the same class as “under a power of sale or under judgment entered upon warrant of attorney to confess judgment contained therein.” TMs view is borne out by the fact that a sale or seizure under a power of sale or under a judgment by confession may deprive the defendant of his property so seized and sold without any notice to him or any opportunity to make a defense, and the manifest object of tMs subsection is to prevent such an occurrence, as demonstrated by the' latter part of the same subsection. Under a receivership, the rents are merely sequestered in the custody of the court, awaiting the final determination of the suit, and if there is no deficiency when the property is sold, the rents are returned to the defendant, and if he has been wronged by the receivership, a proper bond of the plaintiff is a resource for recovery. We do not think that subsec. (3) of sec. 532 applies in this case, but that it is governed by the provisions of subsec. (2). It is also to be noticed that the order appointing the receiver was jnodified so as to permit the defendants and persons holding under them to make repairs and improvements without the attaching of any liens on account thereof. The order is affirmed..

Order affirmed.


author: Mr. Presiding Justice Riess

text:
    Otis Lee Roady, Administrator of Estate of Willard Lee Roady, Deceased et al., Appellants, v. Otis Rhodes, Appellee.
    Gen. No. 9,455.
    Heard in this court at the May term, 1945.
    Opinion filed May 28, 1945.
    Released for publication June 23, 1945.
    Thomas S. MacKihlay, of Chicago, for appellants.
    Hershey & Bliss, of Taylorville, and Lester K. Vandever, of Hillsboro, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

Plaintiffs have appealed from a judgment in favor of the defendant and against the plaintiffs in bar of suit which was entered upon verdicts of a jury in an action at law in tort seeking recovery of alleged damages arising out of an automobile collision between a Chevrolet coach driven and occupied by three of the plaintiffs and the plaintiff’s intestate and a Ford truck driven by the defendant, Otis Bhodes, along an 18 foot “black top’'’ public highway about four and one-half miles south of Nokomis, Illinois, in which plaintiff’s intestate, Willard Lee Boady, met his death and George Andrew Boady, Otis Franklin Boady and Melvin Groves Boady, all brothers and coplaintiffs, sustained serious bodily injuries.

Plaintiffs appellants have assigned prejudicial and reversible error by the court (1) in denying plaintiffs’ motion for a new trial because the verdicts were contrary to the manifest weight of the evidence; (2) in giving erroneous instructions on behalf of the defendant (a) concerning the duty of a passenger in a vehicle to give warning of approaching danger to the driver (b) on the degree of care required in an emergency resulting in imminent peril and (c) in giving several instructions concluding with a direction to find the defendant not guilty.

Briefly recited, the evidence tended to show that on the evening of January 22, 1943, the intestate deceased, Willard Lee Boady, aged 21 years; George Andrew Boady, aged 18 years; Otis Franklin Boady, aged 16 years and Melvin Groves Boady, aged 15 years drove from their home upon a farm in Montgomery county to Nokomis, Illinois, in an old Chevrolet coach recently acquired by Willard Lee Boady where they called at the home of one Haggerty and also procured keys for temporary repairs to the rear axle of the car and after a visit with the Haggerty family, started home in their car at about 10 o’clock p. m., along a “black top” highway of unmarked center having a width of about 18 feet, with dirt and grass shoulders of 3 to 7 feet width on each side, beyond which were located shallow ditches; that there was considerable fog at various points along the highway which materially interfered with their vision; that while proceeding along the highway in a southerly direction at an estimated speed of 20 miles per hour, there suddenly loomed up in the fog ahead of them the defendant’s Ford truck. Two of the plaintiffs, George Andrew Roady and Otis Franklin Roady testified that their'car was driven along about a foot or two from the right edge of the “black top” paving portion of the highway; that George Roady was the driver of the car and that Otis Roady sat in the front seat and watched out of the side window to see that the car kept to the right of the highway; that at a distance of about 60 feet, they saw the lights of an approaching vehicle and that George Andrew Roady slowed the car and turned to the right edge of the paved highway; that the Ford truck, which was proceeding northward, turned across the highway and struck the left front fender of plaintiffs’ car which was knocked or driven to the right side of the highway with the left front wheel of defendant’s truck resting upon the fender or rear part of the engine block of plaintiffs’ car; that plaintiffs’ car then faced west and defendant’s truck in" a northwesterly direction where they remained and were seen by several oEcers and witnesses following the collision and resultant injuries to the plaintiffs. Defendant Rhodes testified that he had been trucking lime and loads of corn between farms and points in the neighborhood during the day and was proceeding homeward followed at some distance by two other farm trucks of that neighborhood; that there was fog along the highway and defendant had attached fog lights to his front axle, one of which lights pointed to the right edge of the pavement and the other one downward in direction immediately ahead and that four bulb lights were burning at the top of the truck. These bulb lights had been seen by plaintiffs in their approaching car. Defendant Rhodes testified that as he was proceeding along the right side of the center of the unmarked black top highway, there suddenly loomed up in front of him plaintiffs’ automobile at a distance of about 30 feet away and that the greater portion of plaintiffs’ car was to the left or wrong side of the highway and that to avoid a head-on collision, if possible, defendant suddenly veered his truck to the left or northwesterly direction to avoid the collision; that thereupon plaintiffs also turned their car in a westerly direction and caused the collision complained of in which defendant testified that the left front ends of the two cars had come together and following the impact were left standing upon the left side of the highway where plaintiffs’ ear was headed westward and defendant’s truck of an over-all length of about 22 feet was facing northwestward with its rear end partly across the center line of the highway. There were no other occurrence witnesses. Willard Lee Roady became unconscious and later died from the injuries. One of the brothers who was in the rear seat of the Roady car was asleep when the collision occurred. No warning appears to have been given by occupants of the car to the driver. There was evidence of one witness of fine broken glass near the center of the highway and of broken windows on the Roady car. Other witnesses who 'came upon the scene after the occurrence testified in substance to the location of the damaged cars, as above indicated. Two witnesses testified that they were able to drive northward on the right side of the road which was free of interference by the wrecked cars.

The secondhand Roady car recently acquired at a cost of $40 was being driven without a State license and its right wheel and axle had slid loose between 15 and 25 times on the road into Nokomis and it had a leaky radiator. The car’s condition required frequent stops to temporarily push the axle back in place while proceeding. The keys were placed at the end of the axle to prevent it from sliding off on the road home. At one point, a Mr. Meyer gave some assistance to plaintiffs and advised them not to make the trip into town but they proceeded notwithstanding the condition of the car and foggy weather. They delivered a butchered hog at Haggerty’s and stated that they desired to get a certificate of title and apply for a license in Nokomis but did not do so while there. Some of these facts are not relevant to the issues of negligence at and immediately before the time of the collision.

Upon the question of plaintiffs’ contention that the verdicts and judgment were contrary to the manifest weight of the evidence, it may be said that at "the time of the collision, there was fog along the highway which materially interfered with the vision of both drivers and occupants of the cars; that immediately before the collision when the vehicles became visible to the respective drivers, both drivers veered their cars toward the westerly side of the highway; each apparently seeking to thereby avoid a collision in the emergency that suddenly confronted them. Defendant’s car did not proceed toward the right but turned to the left in an effort to avoid the collision. The testimony of plaintiffs was somewhat confused and evidently unconvincing to the jury in some material aspects.

The state of the record’ is such that it became necessary that the jury be accurately instructed as to the law and while we cannot say from the evidence alone that this court should substitute its judgment upon; the weight and probative value of the testimony for that of the jury and trial court which saw and heard the witnesses testify, we have examined the instructions complained of and believe that, when considered in the light of the particular facts presented by the record, no substantial nor prejudicial error appears in the two instructions complained of. It is a principle of law well recognized in this State that the driver of a vehicle who is faced in a sudden emergency with imminent peril is not required to use the same degree of self-possession, coolness and judgment as when there is no imminent peril. He is only required to act as an ordinarily prudent person would act under similar circumstances. From the testimony of the. defendant upon which he is entitled to have an instruction setting forth the applicable rule of law in his behalf, the principle involved in the above instruction was applicable under the sudden emergency and imminent peril which arose. Whether the conduct of the defendant at the time in seeking to avoid a collision was that of an ordinarily prudent person similarly situated became peculiarly a question of fact for the jury, and this court cannot, as a matter of law, hold that the defendant was guilty of negligence or failure to exercise that degree of ordinary care which the circumstances required. No excessive number of instructions were given by the court on any of the issues.

Upon a former jury trial wherein the representative of the plaintiff’s intestate and the coplaintiff Otis Franklin Roady tried the ease after a voluntary non-suit had been entered as to the eoplaintiffs George Andrew Roady and Melvin Groves Roady, a mistrial resulted following a “hung jury.” By consent of the parties, the additional plaintiffs were added, followed by a jury trial and separate verdicts against each of the four plaintiffs under the four counts of the amended complaint. A case very similar upon the facts to the case at bar in which the judgment of the trial court was affirmed by this court is that of Bunch v. McAllister, 266 Ill. App. 248.

Objections concerning other matters referred to in the motion are neither argued' nor referred to in appellants’ brief and argument before this court.

We find no prejudicial nor reversible error in the record and the judgment of the circuit court of Montgomery county is affirmed.

Judgment affirmed.


text:
    Goldie Bandy, Appellee, v. Frank M. Bandy, Appellant.
    Gen. No. 9,468.
    Heard in this court at the May term, 1945.
    Opinion filed May 28, 1945.
    Released for publication June 23, 1945.

      Francis R. Wiley, of Decatur, for appellant.
    Charles E. Lee, of Decatur, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

Defendant and counterclaimant, Frank M. Bandy, has appealed from a decree of the circuit court of Macon county granting a divorce to plaintiff appellee G-oldie Bandy upon the statutory ground of wilful desertion, wherein she was awarded the home and furnishings in Decatur, Illinois, the legal title to which was previously vested in her name and also a 63 acre tract of farm lands, the title to which was held in joint tenancy by-the plaintiff and defendant. On account of special equities in evidence, defendant was awarded all interest in a lot wherein he held an equitable interest and plaintiff was barred from any interest therein or in other lands held by the defendant growing out of the marital status of the parties. The prayer of defendant for a decree of divorce under his counterclaim was. denied. Both parties were gainfully employed but no specific alimony allowance in money for the support of the plaintiff was granted in the decree. Each party sought a decree, of divorce, but the controversy herein arises out of the legal and equitable division of the property interests of the respective parties.

Error is assigned in granting the decree of divorce; in adjusting the property interests by allegedly giving property to plaintiff in lieu of an alimony allowance; in not decreeing joint ownership in the residence property and in awarding the residence, farm land and household goods to the plaintiff; in not ascertaining the joint incomes and applying the rule allowing her oqe half the difference in their respective incomes as alimony and in fixing the rights of the parties to the properties contrary to alleged prayer for alimony payments.

We need not go into a discussion of the conflicting testimony concerning the issues of wilful desertion for more than one year without reasonable cause and the weight of the proof concerning respective charges of adultery. From the whole of the record, we find that the decree of the circuit court in relation to these issues was in accord with the greater weight of the evidence. A discussion of the facts appears in a written opinion filed by the court below.

Where special equities in.real estate or chattels are shown by the parties, the court may adjust these equities and in this case, the court has undertaken to do so by the proper exercise of its equitable powers as expressly prayed in the complaint. Meighen v. Meighen, 307 Ill. 306; 138 N. E. 613; Byerly v. Byerly, 363 Ill. 517, 526, 2 N. E. (2d) 898. In considering the allowance of alimony in connection with the ascertainment and adjustment of the legal and equitable interests of the parties in the real estate and chattels in controversy, a reasonable latitude is allowed to the chancellor consistent with the facts appearing in the record. The court, in determining and allowing alimony, will consider such factors as the age and condition of health of the parties, their property and income, their station in life and the conduct of the respective parties and may equitably adjust their property interests. Both parties had prayed for such equitable relief. Byerly v. Byerly, supra. Proof of the contributions in money and from earnings of the respective parties appears in the record.

In the instant case, it appeared that the parties were married in 1909 and had lived together as man and wife for 33 years, having reared a family, all of whom are now adults. The plaintiff was residing with a married daughter in property which had been purchased by the joint earnings of the parties and previously occupied as a home by the parties while still living together. The wife had been employed in gainful pursuits outside of the home during 16 years of their married life and the husband had been employed principally in work on a railroad which will entitle him to a pension. The home had been acquired and held by the parties in joint tenancy. Subsequently, they had disposed of a lot similarly held and the proceeds were turned over to the defendant who engaged in a trucking -adventure. The home itself had in the meantime been transferred to the wife who now holds and claims the same and refused to reconvey this tract to be again held in joint tenancy by the parties. The trucking adventure of defendant was not a financial success and he returned to his work upon the railroad; Defendant contends that the transfer to plaintiff was intended as a protection against possible suits for damages, which contention was controverted by the plaintiff. No fraud is charged or proven in connection with the transfers of the property between the husband and wife. The 63 acres of farm land was purchased for $1,500 and was taken subject to a mortgage. Each party claimed that the lien thereon had been subsequently reduced by payments from their respective earnings. The wife contended that she had paid the indebtedness. A mortgage lien was also placed against the home, the proceeds of which appear to have been used in making improvements thereon. This unpaid indebtedness, together with any liens against the above properties is assumed and must be paid by the wife under the terms of the decree. It appears that on account of the misconduct of the husband, the wife had contracted a venereal disease which the testimony tends to show had seriously affected her general health.

In view of the special equities involved and shown by the evidence to have existed in relation to the respective properties, the court was fully empowered to enter the decree complained of and under the evidence appearing in the record and the principles of law applieable thereto, we find no substantial nor prejudicial error appearing in the record. The decree will therefore be affirmed.

Decree affirmed.