text:
    People of State of Illinois ex rel. Yvonne Harmon, Appellant, v. Frank G. Thompson, Director of Department of Registration and Education of State of Illinois, Appellee.
    Gen. No. 43,148.
    Heard in the third division of this court for the first district at the June term, 1945.
    Opinion filed November 7, 1945.
    Released for publication November 27, 1945.
    Joseph D. Teitelbaum, of Chicago, for appellant.
    George F. Barrett, Attorney General, for appellee; William C. Wines, Assistant Attorney General, of counsel.
   Mr. Presiding Justice Kiley

delivered the opinion of the court.

This is a mandamus proceeding to compel the defendant to permit plaintiff to take an examination for a license to practice osteopathy. The writ was denied and plaintiff was granted leave to appeal after 90' days from the entry of the judgment. Chap. 110, par. 200 (1) [Jones Ill. Stats. Ann. 104.076, subpar. (1)].

The case stands here upon plaintiff’s petition for leave to appeal, defendant’s answer and plaintiff’s suggestions in reply. Defendant’s argument in his brief is limited to the single point that the trial court was without jurisdiction because of improper venue and faulty service of process.

It is averred in the answer that although the entire transaction complained of by plaintiff occurred in Sangamon County, she began suit in Cook County and although defendant resides in Morgan County, the only process was delivery of a copy of the summons at the Chicago office of the Department of Registration and Education. Defendant says that these averments were properly presented by answer under the Practice Act, Chap. 110, par. 172 (4) [Jones Ill. Stats. Ann. 104.048, subpar. (4)], and are admitted because plaintiff filed no reply.

The record does not disclose that defendant urged these defenses at the trial. There is no record that they were ruled upon. The report of the proceedings is certified by the trial judge as “a true and correct copy of all proceedings” in the case and is approved as such by the Attorney General.

Defendant proceeded to trial on the merits without pressing his objection to the venue, (Chap. 110, par. 135 [Jones Ill. Stats; Ann. 104.011]), and to the process. By failing to have these defenses ruled upon in the trial court, and submitting to trial, defondant has waived the right to present them on appeal.

Plaintiff was graduated with a doctor’s degree from the Chicago College of Osteopathy, June, 1942. She applied to the department on two occasions thereafter for leave to take the State examinations for a license to practice. Following the second denial she brought this action.

The issue made by pleadings is whether her secondary schooling meets the requirement of the Medical Practice Act. Chap. 91, Secs. 1-16 [Jones Ill. Stats. Ann. 79.01 et seq.]. The examination for a license is required by section 3 of the Act. Minimum standards for the examinations and issuing licenses are provided in section 5. Plaintiff’s application was governed by section 5, paragraph 2 (b) which provides:

“ ... that such- . . . college ... at the time of his graduation required as a prerequisite to admission thereto a four years’ course of instruction in a high school, and as a prerequisite to graduation therefrom a four years’ course of instruction . . . of not less than eight months each, . . . , the time elapsing between the beginning of the first year and ending of the fourth year . . . having been not, less than thirty-six (36) months, such high school and such . . . college . . . having been reputable and in good standing in the judgment of the department ; ’ ’.

Defendant’s answer admitted the college was in good standing, but denied the high school which plaintiff attended was in good standing. There is no dispute in the evidence. Plaintiff was the only witness at the trial.

In order to qualify for admission to the college, plaintiff had studied in a state chartered adult high school and under private tutelage to gain 15 high school credits. To give proper value to the credits she took University of Illinois examinations in the high school subjects in 1937. She was admitted to the College in September, 1937, when she had passed the University of Illinois examinations covering 12% credits. The balance of the examinations had not then been graded. The College in admitting her assumed that she had 15 credits since she had completed the high school study and taken the University examinations. She was successful in the University examinations to the extent of two credits, but failed in physiography with a value of one-half credit. The College consented to her continued study on condition that she would make up the deficiency by examination. She failed in three examinations on the subject, however, abandoned that subject and-with consent of the College studied organic chemistry at Lewis Institute, in Chicago in the summer of 1938. She completed the summer course, overcame the one-half credit deficiency and in due course was graduated from the College.

We have not the benefit in defendant’s brief of his argument on the merits of this case. At the trial the Attorney G-eneral stated the defendant’s position was that the Act required “four years of time in a high school” and that plaintiff had completed part of her high school work after entering the College. Furthermore, it was stated that the Department required a high school diploma as evidence of completion of the four years’ high school course. In oral argument in this court, it was admitted on the part of the defendant that four years of high school is not required under the Act. Defendant contends that since plaintiff when she entered the College had not 15 credits, the equivalent of four years ’ high school, she did not qualify for the examination under the Act.

The question is whether plaintiff should be disqualified because when admitted to the College she was deficient in credits.

The College was in good standing with the Department when plaintiff entered. It considered her qualified to study osteopathy and admitted her assuming she had passed the University examinations. We believe there would have been no objection had the College, within a reasonable time after the beginning of its school year, admitted plaintiff with 15 credits. It follows there could be no reasonable objection to plaintiff’s having started study at the beginning of the year had later results of the examinations proved she passed in all the subjects.

The complaint is, however, that she entered with less than 15 credits. A consistent adherence to this position, would disqualify plaintiff even though she had passed all the examinations. The Act does not require 15 credits. There was no requirement under its provisions, that plaintiff must have had a high school education. The requirement was that the College at the time of plaintiff’s graduation should require as a prerequisite to admission, “a four years’ course . . . . ”

It is a matter of common knowledge that colleges and universities exercise a certain discretion in their admission requirements. Moreover, the tendency in judging educational attainments is strongly toward considerations of abilities rather than records or credits. Plaintiff repeatedly failed the conditional examination given her in physiography at the College. We do not doubt that many eminent physicians would fail examinations in that subject. In the summer succeeding her admission, she acquired the one-half credit in organic chemistry. If she had passed the University examination in physiography in the Summer of 1937, the Department, we assume from its position here, would have found her qualified to take the examination denied her. It seems to us she was better qualified after her creditable study in organic chemistry. We believe the discretion of the College extended to permitting plaintiff to continue study on the condition that she make up one-half credit.

The trial court apparently believed that plaintiff was a very competent person. The record shows that she has passed examinations in Wisconsin and Michigan to qualify for practice of osteopathy.

Under the circumstances in this case we think a grave injustice will be done if plaintiff is denied the writ of mandamus.

For the reasons given the judgment of the Superior Court is reversed and the cause is remanded with directions to enter judgment for plaintiff that the writ issue as prayed.

Reversed and remanded with directions.

Lews and Burke, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Kiley

license: Public Domain

text:
    Augustine F. McCarthy, Appellant, v. Arthur Lowenthal et al., Appellees.
    Gen. No. 43,451.

      Heard in the third division of this court for the first district at the June term, 1945.
    Opinion filed November 7, 1945.
    Released for publication November 27, 1945.
    Edwin O. Patzlaff, of Chicago, for appellant; Paul W. Schroeder, of Chicago, of counsel.
    P. J. Cahill and B. A. Cummins, both of Chicago, for appellees.
   Mr. Presiding Justice Kiley

delivered the opinion of the court.

This is an action to foreclose a trust deed securing a note dated February 11, 1930 and due February 11, 1933. On defendants’ motion the complaint was dismissed in the trial court on the ground that the action was barred by the Statute of Limitations. Plaintiff has appealed.

„ The question is whether the foreclosure action came within the 10 year limitation of Section 11 of the Limitations Act (Chap. 83, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 107.259 et seq.]) as defendants contend, or within the 20 year limitation of Section 11 (b) of the same Act. Section 11 bars foreclosure actions after 10.years from the dates they accrued. Section 11 (b) enacted in 1941 provides, among other things, a limitation on the lien of a trust deed, etc. to 20 years after the due date of the last payment, where that date appears on the face, or can be ascertained from the terms, of the instrument. The limitation in Section 11 (b) may be extended for intervals of 10 years by the recording of agreements extending payment of the debt or affidavits of the mortgagee, or on his behalf, showing the amount claimed to be unpaid on the mortgage indebtedness.

Section 11 has been in effect since 1872. Plaintiff contends that the 10 year limitation in Section 11 has been changed to 20 years by Section 11 (b). This is in effect saying that the latter section has repealed the former. There is no express repeal. Unless the two sections are clearly repugnant plaintiff’s conten-' tions must fail. Klemme v. Drainage District No. 5, 380 Ill. 221.

In Kraft v. Holzmann, 206 Ill. 548, decided in 1904, it was held that the extension of the indebtedness was sufficient to keep the lien of the trust deed alive without the execution of any agreement to accomplish that purpose and without recording the. agreement extend-" ing the indebtedness, as it was not necessary that subsequent purchasers should have notice of the extension. The court in that case said at page 549:

“We have repeatedly held in such cases, that the debt is the principal thing and the mortgage or trust deed but an incident thereto; that section 11 of the Limitation Act must be construed in connection with section 16, applicable to promissory notes, and that the mortgage will not be barred until the debt is barred.” (Cases cited.)

The legislature apparently sought to modify the rule in Kraft v. Holzmann, by enacting in 1935 Section 11 (a) of Chapter 83. That section provided, effective July 1,1940, a 20 year limitation, on the lien of a trust deed, etc. after the due date of the indebtedness shown by its face or according to its terms, or according to the terms of any recorded extension agreement showing the unpaid indebtedness, etc. Under it extension agreements could extend the limitation for a further period or periods of 10 years. That section was expressly repealed in 1941 by the enactment of Section 11 (b).

Under the Kraft v. Holzmann case, the lien of the trust deed, etc., was kept alive as long as the indebtedness secured thereby was continued in force, without the necessity of any recording of the extension agreement. The purpose of Section 11 (b) is to set a limit beyond which unrecorded extensions do not have that effect. If a mortgagee sees fit to extend the date of payment of the indebtedness, he may do so without prejudice to his lien and without recording the extension agreement for 20 years after the due date of the mortgage by its terms or on its face was due. If he wishes to preserve ‘his lien thereafter, however, he must see to it that the extension agreement or affidavit as provided in section 11 (b) is recorded.

We see no repugnancy between these sections and, accordingly, we hold that Section 11 (b) did not repeal Section 11. The action filed in this case came within the limitation of Section 11 and we believe the decree was proper. It is affirmed.

Affirmed.

Lews and Burke, JJ., concur.


author: Mr. Justice Burke

text:
    Herbert Muthart, for Use of Marjorie Allen Zitnik, Administratrix of Estate of William B. McInerney, Deceased, Appellee, v. William Burik et al., Defendants. United States Mutual Insurance Company, Appellant.
    Gen. No. 43,248.

      Heard in the third division of this court for the first district at the October term, 1944.
    Opinion filed November 7, 1945.
    Rehearing denied November 26, 1945.
    Released for publication November 27, 1945.
    Barrett, Barrett, Costello & Barrett, of Chicago, for appellant.

      Cattell & Waldron, of Chicago, for appellee; Alfred Roy Hulbert, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court. '

United States Mutual Insurance Company issued to Martin Burik a public liability automobile insurance policy covering the operation of a Ford coupe automobile for the period from September 5, 1941 to September 5, 1942. Burik and his wife conducted a retail grocery store and meat market at 10742 South Kedzie avenue, Chicago. Herbert Muthart lived with his wife and children at or near 101st street and Sacramento avenue, Chicago. Muthart’s home was about one and one half miles northeast of Burik’s store. These men had been friends for a number of years. On Saturday evening, June 20,1942, Muthart went to Burik’s store, where he purchased groceries. He remained at the store for three or four hours. The Buriks closed their store at about 10:00 p. m. and, accompanied by Muthart, went to a lunchroom for dinner. They remained there until about midnight, when they returned to the store. Neither at the restaurant, nor previous to their arrival, did Muthart or Burik drink alcoholic liquors. Burik was either planning or engaged in the work of strengthening the foundation of the store building. As Muthart was not going to work at his regular employment the next day, he volunteered to help Burik. Burik drove the automobile to and from the restaurant. Upon their arrival at the store, he stated to Muthart: “Take the car and drive home and come back in the morning.” Muthart replied: “All right.” Muthart drove away.

On Sunday, June 21, 1942, about 4:00 a. m., the car being driven by Muthart near the intersection of 88th and State streets in Chicago, struck William B. Mclnerney, and as a result of the injuries thereby inflicted, he died. At the time of the occurrence Muthart was alone in the car. On July 11, 1942 Marjorie Allen Zitnik, administratrix of the estate of William B. Mclnerney, filed a complaint in the circuit court of Cook county against Burik and Muthart, asking damages. Martin Burik was sued as William Burik. He was served with a summons on July 11,1942 and Muthart was served with a summons on July 13,1942. On July 31, 1942 an appearance for Burik was filed by attorneys retained by the insurance company, and on August 3, 1942 an appearance by an attorney not retained by the insurance company was filed for Muthart. On October 8, 1943 the cause came on for trial, and on motion of plaintiff was dismissed as to William Burik. It was submitted for trial without a jury. The court found the defendant guilty, assessed plaintiff’s damages at $5,000 and entered judgment therefor. An execution was returned unsatisfied, whereupon plaintiff filed an affidavit in garnishment, and a summons was served on the insurance company. The answer of the garnishee denied that there were any funds or property in its custody or control owing or belonging to Herbert Muthart. Issue was formed by plaintiff’s traverse of the garnishee’s answer. A trial before the court without a jury resulted in a judgment in favor of plaintiff and against the garnishee for $5,000, with a direction that the clerk incorporate in the judgment the additional sum to be arrived at by computing interest on $5,000 at 5 per cent per annum from October 8,1943. The garnishee appeals.

We turn to a consideration of a motion to dismiss the appeal filed by plaintiff (appellee), which was taken with the case. On May 2,1944 a judgment for plaintiff and against the garnishee in the sum of $5,000 was entered in the garnishment case. On June 13, 1944, pursuant to notice, a verified petition to vacate the judgment was filed by the garnishee. On June 15,1944 plaintiff filed a motion to strike the petition on the ground that more than 30 days had elapsed between the entry of the judgment in garnishment and the filing of the petition,' and that the court was without jurisdiction to enter any order whatsoever. ,At the same time plaintiff filed a verified answer to the petition. On June 23,< 1944 the court allowed the prayer of the petition, vacated the judgment of May 2, 1944 and re7entered the judgment. There was no appeal from the judgment of May 2, 1944 and no cross-appeal from that portion of the order of June 23, 1944, which vacated the judgment of May 2, 1944. Plaintiff urges that the trial court erred in vacating the judgment of May 2, 1944 and in re-entering the judgment from which the instant appeal has been perfected. Plaintiff suggests that by the re-entry of the judgment on June 23,1944, she obtained all the relief she sought and that it was not necessary for her to appeal from the order vacating the judgment.

The petition filed by the garnishee was a motion in writing under sec. 72 of the Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 196; Jones Ill. Stats. Ann. 104.072]. The filing of that motion was the commencement of a new suit in which the new issues presented were joined in by the plaintiff filing a motion to strike and also an answer to the petition. The issues were resolved after a hearing by a finding of facts by the court and a judgment thereon. A party not satisfied with a ruling on a motion under sec. 72 of the Civil Practice Act has a remedy by appeal, as an order vacating a judgment pursuant to a motion in the nature of a writ of error coram nobis is final and appealable. Jerome v. 5019-21 Quincy Street Bldg. Corp., 385 Ill. 524. The court had jurisdiction of the subject matter. Plaintiff did not appeal from the order of June 23, 1944, which vacated the previous judgment, as the judgment was in her favor. Rule 35 of the Supreme Court outlines the procedure for the prosecution of a cross-appeal. As plaintiff did not attempt to follow this procedure, the omission cannot be supplied by a motion to dismiss defendant’s appeal. For these reasons plaintiff’s motion to dismiss the appeal is denied.

Article 3 of the policy states:

“The unqualified word ‘insured’ wherever used (in coverages A and B and in other parts of this policy when applicable to such coverages) includes not only the named insured but also any person while using the automobile, and any person or organization legally responsible for the use thereof . . . provided further the actual use is with the permission of the named insured. ’ ’

Coverage A relates to an obligation to pay liability arising from bodily injury, or death resulting there.from, which was the basis of the original action in this case.

There was testimony that when Burik turned the car over to Muthart about midnight on June 20, 1942, he said: “As long as you are coming over to help me tomorrow you may as well take the car home. . . . You can bring the car back in the morning when you come over to help me. . . . Take the car and bring it home and come back in the morning. ’ ’ To this Muthart replied: “All right.” Burik testified that the last time he saw the car that night was when Muthart drove it away from the store. The record is silent as to where Muthart went. Police officers testified that at about 4:00 a. m. Sunday, June 21, 1942, the fatal mishap occurred near the intersection of 88th and State streets, and that this point was approximately 32 blocks east and 19 blocks north of Burik’s store. The place of the occurrence was approximately four miles east and one mile north of where Muthart lived. Defendant argues that the circumstantial evidence shows that Muthart first stopped the car at his home, where he left two bags of groceries he purchased at Burik’s store, and that he then started out on the journey which brought him to grief. We cannot agree with defendant that the evidence supports an inference that Muthart first stopped at his home. Defendant maintains that the undisputed evidence shows that Muthart had completed the journey to his home in the automobile which Burik loaned him for that purpose; that he thereafter drove it to the scene of the occurrence in the prosecution of an independent journey, on a mission personal to himself, which was wholly separate from and entirely unrelated to the objects and scope of the permitted use, and that under such circumstances he ceased to be an additional assured within the meaning of the omnibus coverage clause of the policy. Defendant places great reliance on Byrne for use of King v. Continental Casualty Co., 301 Ill. App. 447. In that case and the more recent case of Goff v. New Amsterdam Casualty Co., 318 Ill. App. 586, we gave consideration to the point now urged by the garnishee. The conversation between Burik and Muthart cannot be construed as confining the permission to use the car to driving it to Muthart’s home, parking it while he slept, and then returning it in the morning. The court, on the record, was right in finding that at the time of the unfortunate occurrence, Muthart was driving the car with the permission of Burik.

Sec. 2 of the policy reads:

“Defense, Settlement, Supplementary Payments. It is further agreed that as respects insurance afforded by this policy (under coverages A and B) the company shall (a) defend in his name and behalf any suit against the insured alleging such injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the> company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the company; (b) pay all premiums ... on appeal bonds required in any such defended suit, but without any obligation to apply for or furnish such bonds, all costs taxed against the insured in any such suit, all expenses incurred by the company, all interest accruing after entry of judgment until the company has paid, tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon. . . . The company agrees to pay the amounts incurred under divisions (a) and (b) of this section in addition to the applicable limit of liability of this policy.”

Clauses 5, 6, 7 and 8 of the “Conditions” of the policy read:

“5. Notice of Accident — Coverages A and B. Upon the occurrence of an accident written notice shall be given by or on behalf of the insured to the company at its home office, 2400 So. Michigan Avenue, Chicago, Illinois as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.

“6. Notice of Claim or Suit — Coverages A. and B. If claim is made or suit is brought against the insured, the insured shall immediately forward to the company’s home office every demand, notice, summons or other process received by him or his representatives.

“7. Assistance and Cooperation of the Insured. The insured shall cooperate with the company and, upon the company’s request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits; and the company shall reimburse the insured for expenses, other than loss of earnings, incurred at the company’s request. . . .

“8. Action Against Company — Coverages A. and B. No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all of the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the com-' pany. ...’-’

Garnishee argues that Muthart’s failure to render the co-operation required by the terms of the policy, as well as his failure to keep, observe and perform certain conditions precedent and promissory warranties of the policy, is a complete defense to plaintiff’s demand. Plaintiff urges that in the absence of any evidence to the effect that the insurance company notified the permissive user of his rights under the policy, defendant cannot be heard to complain that the permissive user failed to give the company all the cooperation demanded by it. It will be observed that the policy provides that the unqualified word “insured” wherever used therein, includes not only the named insured but also any person while using the automobile with the permission of the named insured. Therefore, whatever conditions precedent the named insured was required to fulfill, the additional insured was likewise required to fulfill. The usee cannot have any greater rights under the policy than the named insured. Plaintiff cannot recover against the insurance company if Muthart could not do so. Plaintiff stands in the shoes of Muthart.

Chief Justice Cardozo, speaking for the New York court of appeals in Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271, said (275):

. “The question remains whether the.conduct of the assured was such a refusal to co-operate as to vitiate the policy. We are satisfied it was. Co-operation does not mean that the assured is to combine with the insurer to present a sham defense. . Co-operation does mean that there shall be a fair and frank disclosure of information reasonably demanded by the insurer to enable it to determine whether there is a genuine defense. The attitude of this assured was one of willful and avowed obstruction. . . .

“The plaintiff makes the point that the default should be condoned, since there is no evidence that co-operation, however, willing, would have defeated the claim for damages or diminished its extent. For all that appears the insurer would be no better off if the assured had kept its covenant, and made disclosure full and free. The argument misconceives the effect of a refusal. Co-operation with the insurer is one of the conditions of the policy. . . . There has been a failure to fulfill a condition upon which obligation is dependent.”

In Schneider v. Autoist Mut. Ins. Co., 346 Ill. 137, our Supreme Court said (139):

“In the instant case the policy provided that the assured, Allen, should aid the insurance company in securing evidence and in procuring the attendance of witnesses in any claim against him which was covered by the policy. The evidence shows that the only witness who knew about the accident was the assured, Allen, and he refused to go and testify on the trial. He was notified upon such refusal on two occasions that the insurance company would not defend and that it would withdraw from the case. There was no duty resting upon the insurance company to cancel the policy, as it might cover other accidents during its life and it had not expired at the time. The condition of the policy requiring cooperation on the part of the assured in the defense of the action brought against him by the injured party is one of great importance. Without the presence of the assured and Ms aid in preparing the case for trial the insurance company is handicapped and such lack of co-operation must result in making the action incapable of defense. The action of Allen in refusing to go to New York on the trial of the case there prevented the insurance company from making any defense. Obviously he could not recover in a suit on the policy, and neither can the plaintiff here.”

In considering the evidence as to notice of the claim and suit, and the assistance and cooperation of the additional insured, we note that police officers arrested Muthart at the scene of the occurrence; that subsequently there was an inquest; that he was held to await the action of the grand jury; that the action taken by that body is not disclosed; that Muthart was confined in the Cook county jail for a short time immediately after the occurrence; that he employed counsel to represent him; that he was released from jail and that shortly thereafter he and his family disappeared and were not heard from again. Muthart did not give written notice of the occurrence to garnishee, nor did he communicate to it such particulars as were sufficient to identify the insured as well as the witnesses, if any, and their addresses. He also failed to furnish information respecting the time, place and circumstances as required by paragraph 5 of the conditions of the policy. On Monday, June 22,1942 garnishee learned of the occurrence and assigned its investigator, Robert Keebler, to the case. The latter heard that Muthart was in the county jail and several days after the occurrence he went there to see and talk to him. He did not find Muthart there, as he had been released from custody. On July 15, 1942 Keebler, accompanied by Lester Clark, a court reporter, went to the home of Muthart. He arrived there about 6:00 p. m. and remained until about 7:45 p. m. in an unsuccessful attempt to talk to Muthart. Keebler and Clark returned the following night and saw Muthart, his father and other members of his household. .Although Muthart appears not to have questioned the identity of Keebler, nevertheless the latter fully identified himself by showing Muthart and his father blank company drafts, accident'report blanks, envelopes with the printed name and address of the garnishee on them and statements about other accidents which he had obtained from other persons he had interviewed in the regular course of his work. He then explained to Muthart he wanted to get the facts about the occurrence, what took place and what had happened. To this request, as well as to all questions asked during the interview, Muthart replied that he had nothing to say, as his lawyers had advised him to keep his mouth shut. Muthart’s father was an active participant in the interview. Evidently, his view of the attitude his son should assume and maintain with respect to the garnishee’s investigation was in accord with the son’s representation of what his lawyers had instructed him to do, because he (the father) told Keebler that he had instructed his son to “keep his mouth shut” so long as Keebler and Clark were there and that there was not going to be any talking. Keebler did not take “No” for an answer, but persisted in his attempt to make the interview successful. He continued to ask questions and explained to Muthart that it was necessary that the company get his (Muthart’s) report. However, Muthart declined to answer any questions, insisting directly and through his father that he had nothing to say and would not talk no matter how long Keebler remained there. Muthart did not identify his lawyer, nor suggest that Keebler talk with him, nor did he explain that any circumstances connected with any criminal charge caused him to believe that he should not talk, nor did he suggest that there were or could be any conditions under which he would co-operate with the insurance company by making a statement of the facts and circumstances of the mishap.

It will be further noted that the action of plaintiff was commenced on July 11,1942; that both defendants were served with a summons on that day; that within a short time after the service of the summons on Muthart, he went to Burik’s store and talked with Burik about the occurrence and the suit that had been commenced against them; that Burik instructed Muthart to go down to the office of the garnishee and make a statement; that Muthart did not do so; that about three months after the occurrence Keebler went to Muthart’s home for the third time and found that he and his family had moved away; that inquiry among the neighbors and of Burik resulted in no information more certain than that Muthart had left the State and was .reported to have gone to Nevada “to some place like Elko”; that Keebler was the only investigator assigned to the case; and that he did not receive any letter, memorandum, telephone call or communication of any kind from Muthart or from any person purporting to act on his behalf relating to the subject. It is apparent both from the conversation which Muthart had with Keebler, and from the action taken by Muthart’s attorney, that he had resolved to make his own defense without regard to any policy obligation that the garnishee may have had to provide a defense for him. Presumably, Muthart’s attorney represented him until judgment was finally entered against him. The record does not show that Muthart at any time requested the garnishee to carry out any claimed obligation to him under the policy. The record is silent as to whether the garnishee did or did not inform Muthart that there was an omnibus clause in the policy. The position of the garnishee at all times-has been that the omnibus clause was not applicable, as at the time of the occurrence Muthart was not driving the car with the permission of Burik. The record shows further that the garnishee received a copy of the summons from its policyholder, Burik, which showed on its face that both the policyholder and Muthart were defendants; that the garnishee caused its lawyers to file an appearance and answer for its policyholder only; that the insurance company made an investigation of the occurrence and obtained a copy of the coroner’s transcript which showed the testimony of Muthart; that garnishee’s own attorneys appeared at the inquest on behalf of Burik only; and that no disclaimer of responsibility of liability toward Muthart was made by garnishee.

The garnishee relies on Whittle v. Associated Indemnity Corp., 130 N. J. L. 576; Curran v. Connecticut Indemnity Co. of New Haven, 127 Conn. 692; Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271; Margellini v. Pacific Auto Ins. Co., 33 Cal. App. (2d) 93; Schneider v. Autoist Mut. Ins. Co., 346 Ill. 137; Patton v. Washington Ins. Exchange, 288 Ill. App, 594, and other cases. Plaintiff relies on Scott v. Inter-Insurance Exchange of Chicago Motor Club, 267 Ill. App. 105, affirmed in 352 111. 572. We have carefully studied all of the cases cited. We are of the opinion that the Scott case is not applicable to the facts of this ease, as in that case there was full co-operation by the named insured and by the additional insured. Muthart gave no statement and answered no questions so as to enable defendant to determine whether or not he was an additional insured. Had Muthart talked to defendant’s representatives, the facts respecting the operation of the automobile would have been ascertained, and defendant could then have determined Muthart’s status as an additional insured or otherwise. It is interesting to observe that par. 58 (k), eh. 95½, Ill. Rev. Stat. 1941 [Jones Ill. Stats.^Ann. 85.064 (11)], adopted at a special session and'approved July 12, 1938, commonly known as the Financial Responsibility Act, defines a liability policy as a policy containing the omnibus coverage clause, extending the protection of the policy to persons who are driving automobiles with the permission of the named insured. In the instant case it is not claimed that the record shows that Muthart did not know of the existence of the omnibus coverage clause. Plaintiff says: “It is doubtful that Muthart ever knew that there was proteetion afforded Mm by the policy.” If there was a reasonable excuse for Muthart’s failure and refusal to comply with the policy conditions, the burden of proving that excuse rested upon plaintiff. Hoffman v. Employer’s Liability Assur. Corp., 146 Ore. 66; Houran v. Preferred Accident Ins. Co. of New York, 109 Vt. 258. Muthart was alone at the time of the mishap. It is clear that he failed to co-operate with defendant in its investigation of the occurrence. Burik did not know the facts. Muthart was the only one who knew the facts of the case. ■ It is obvious that under the facts disclosed by the record Muthart could not recover in a suit on the policy were he to pay the judgment, and neither can plaintiff, who stands in his shoes.

The judgment of the circuit court of Cook county is reversed and the cause remanded with directions to enter judgment for the garnishee, United States Mutual Ins. Co., a corporation, and against plaintiff.

Judgment reversed and cause remanded with directions to enter judgment for garnishee.

Kiley, P. J., and Lews, J., concur.


author: Mr. Justice Lewe

text:
    Albert Nelson, Administrator of Estate of Louis Albert Nelson, Deceased, and Dorothy Peyton, Administratrix of Estate of John A. Peyton, Deceased, Appellants, v. Floyd Armistead, Appellee.
    Gen. No. 42,665.

      Heard in the third division of this court for the first district at the June term, 1943.
    Opinion filed November 7, 1945.
    Released for publication November 27, 1945.
    Royal W. Irwin and James A. Dooley, both of Chicago, for appellants.
    Charles E. Green, for appellee.
   Mr. Justice Lewe

delivered the opinion of the court.

Plaintiffs appeal from a judgment in favor of defendant entered on the verdict of a jury which found for defendant, in a suit brought under the Injuries Act to recover damages resulting from the wrongful deaths of plaintiffs’ intestates Louis Nelson, aged 10, and John Peyton, aged 5, while riding as guests in defendant’s automobile.

On Sunday, January 23,1938, the defendant, Floyd Armistead, drove his automobile, an Oldsmobile four-door sedan, from Chicago to Pistakee Lake in Lake county, Illinois, accompanied by his nephew Buben , Armistead and one Albert Nelson, father of Louis Nelson, for the purpose of fishing.through holes cut in the ice. When they reached the south shore line of a v-shaped inlet in the southeastern portion of the lake, Nelson walked out on the ice 25 or 30 feet, to make certain that it was of sufficient thickness to sustain the weight of the automobile and its passengers. After examining the ice, Nelson assured the defendant that it was “O. K.” Then, under Nelson’s guidance, defendant drove his car in a northerly direction over the ice about 100 feet from shore, following the irregular shore line of the v-shaped inlet to a place known as LeMoon’s Point, where he proceeded to the west about a quarter of a mile. Here by prearrangement they met other persons who constituted their fishing party.

Defendant’s car arrived at the fishing grounds about 11:30 a. m. After fishing for approximately two hours, Howard Peyton, father of John Peyton, deceased, suggested to defendant that he drive his car to the automobile of one Edward Murphy, also a member of the fishing party, to get more fishing tackle. Murphy ’s car was parked on the shore near the base of the v-shaped inlet and directly south of the point where the defendant and others had been fishing. About 1:15 p. m., the defendant, accompanied by Harold Murphy, son of Edward Murphy, Louis Nelson, John Peyton, and one Jess Lynn, proceeded to drive directly south toward the Murphy car. After defendant’s car had traveled about 1000 feet it crashed through the ice, leaving about six inches of the top protruding above the water. As the car submerged, Murphy, Lynn and the defendant managed to extricate themselves almost immediately, but the young boys, Louis Nelson and John Peyton, were brought to the surface after some delay. Bruce Balding, a doctor who happened to be in the vicinity, came to the scene of the tragedy a short time after the accident. He administered drugs and artificial respiration to the boys, but the resuscitative measures proved futile.

The gist of the amended complaint was that the defendant wantonly and wilfully drove his automobile across the ice in the lake where it was “thin and insecure.” Defendant’s answer and amendment of the answer to the amended complaint aver (a) that both of the intestates of the plaintiffs were guests riding in the automobile of the defendant without payment for such ride, and that the; occurrence was not caused by any wilful or wanton conduct on the part of the defendant; (b) that the fathers of both of plaintiffs’ intestates were present and consented to plaintiffs’ intestates becoming guest passengers under the circumstances, and thereby were guilty of. wanton and wilful misconduct contributing to cause the alleged damages to the plaintiffs. Plaintiffs’ contentions are that the defendant was guilty of wilful and wanton conduct in driving his automobile directly south over a much exposed area of ice instead of following the route along the eastern shore line where the ice was safe; that the verdict of the jury is against the manifest weight of the evidence; that defendant’s counsel’s argument was prejudicial; and the court erred in instructing the jury.

Plaintiffs introduced the testimony of Jess Lynn, Albert Nelson, and Dr. Balding who testified by deposition, as to the occurrence. Lynn testified that around 31:30 a. m. he walked out on the ice with Albert Nelson’s son Louis; the weather was clear and the temperature a little above freezing. As they walked out, the ice began to get sloppy. There were at least a hundred cars scattered in groups of two to four in different spots. About the time he got into the defendant’s car he saw the defendant talking with Nelson. While they were driving south, headed for the Murphy car, he observed water on the ice about them and said to the defendant, “Armistead, you are getting over where the ice is bad.” Defendant did not respond and the witness repeated the same statement, and was about to repeat it again when the defendant said, “No, I am going the right way; this is the way I come out this morning.” Lynn did not ask defendant to stop the automobile or turn to the right or left. Defendant continued to drive south in a straight line. Lynn also testified that some of the puddles of water on the ice were two or three inches deep and three or four feet square or larger.

Albert Nelson, father of Louis Nelson, one of the victims of the accident, testified that before they drove on to the ice he walked out 25 or 30 feet and then returned to the defendant’s car and said, “Well, let’s go. It is just as strong as it was last Sunday.” While they were proceeding north, “There were tire marks on the surface of the ice up to LeMoon’s Point,” but beyond that no tire marks were visible; that as they were driving out to the fishing grounds, the ice appeared different from what it was a week before; there was slush and there were pools of water to the left. When defendant was about to start back toward the Murphy car, witness’s son Louis .asked permission to ride with defendant, which was granted by Nelson, the father. Nelson then told defendant to head straight for the “tall stairs,” after which Nelson paid no further attention to the direction defendant’s car traveled, since he expected defendant “to use his own judgment.”

Dr. Bruce N. Balding, who was not acquainted with any of the occupants of the car, testified that there were tire marks along the shore to LeMoon’s Point, and characterized this as the normal route of approach. There were no signs marking the way for cars to travel to this fishing place, nor were there any signs indicating where there might have been thin ice.

For the defense, six witnesses, including the defendant, gave testimony as to the occurrence.

Defendant testified as follows: That he lived in Chicago and operated a bakery there; he had. known Albert Nelson, father of Louis Nelson, since 1922, and Howard Peyton, father of John Peyton, since 1934; that at the time of the accident Howard Peyton was employed in. defendant’s baking establishment. The first time he had fished through the ice at Pistakee Lake was in 1937, when he was accompanied by Albert Nelson. On the Sunday preceding the occurrence in question, he had fished through holes at approximately the same place, with Nelson and Peyton. He was not “familiar with the lake at all.” When they reached the southern shore of the v-shaped inlet, Nelson, after examining the ice, said, “It is perfectly safe as it was last Sunday. It is strong enough to hold a freight train.” They took the same course as on the Sunday before, and saw many people fishing there. Peyton asked the witness to get more fishing equipment and tackle, and then the Nelson boy and the Peyton boy asked their fathers, and were given permission to accompany defendant. The little Peyton girl wanted to go too, but her father told her “there were plenty in the car now.” Defendant further testified, “I headed back for the same white building that was visible where we had entered the lake that morning; there was moisture on the ice by that time, and no tracks of any kind were visible; as far as I know I was going over the same route that we had come in the morning; to the best of my knowledge we were about fifteen feet from the route we had used to go out in the morning; I don’t remember seeing the tall stairs; I was always guided by the white house.” He further testified that this was the first time he had driven across the ice without Nelson’s guidance. Defendant denied that Jess Lynn said, anything to him while he was driving.

John Pitzen, a resident of Johnsburg, Illinois, and investigator for the Department of Conservation, testified that the tracks made on the lake by automobiles had melted off around noon; that there was water over the whole lake that day and tire marks were not distinguishable any more; and that he did not know any of the members of the fishing party.

Frank Bella, testifying in behalf of the defendant, said there were several hundred automobiles on the ice; and that he helped remove the boys from the defendant’s car after it broke through the ice.

Ruben Armistead, nephew of the defendant, testified that he owned and operated a wholesale butter and egg business; that when they reached the south shore of Pistakee Lake, Nelson got out and went on the lake and said that the ice was about 18 inches thick. He did not see any cracks in the ice, nor were there any warning signs directing automobiles to take any particular route. He was fishing at the time of the accident, about three hundred yards from the place where the car went through the ice, which was directly south of him toward the shore. He did not remember seeing any tire tracks on the ice as they drove out to the fishing grounds. He only heard Nelson tell his uncle which way to drive.

■ Edward E. Murphy, testifying in behalf of defendant, said he was sales manager for Anheuser-Busch, and that he had known defendant for about ten years. Peyton wanted to get fishing tackle from the back of his car and he gave his son Harold the keys. The defendant drove back from the fishing holes in a southeasterly direction. At the time of the accident, water was standing all over the ice on the lake.

Harold Murphy, one of the passengers in defendant ’s car at the time of the occurrence, testified that he lived in Skokie, Illinois, and was employed as a baker. He did not know which direction the automobile went when it left the fishing grounds; that there was water all over the ice. He did not recall any conversation between Lynn and the defendant as they were riding in the car.

At the close of all the evidence, defendant offered a written motion for directed verdict and an instruction finding, the defendant not guilty, upon which the court reserved its rulings.

Plaintiffs’ theory is that the defendant was guilty of wilful and wanton conduct in the operation of his car on this body of ice in that he traveled, despite specific directions and warnings, from a point out on the lake directly south to the southern shore, over a large exposed area of ice, instead of following the usual route along the eastern shoreline.

Defendant contends that there is no evidence tending to support a charge of wilful and wanton conduct in the operation of his automobile.

In considering a motion for a directed verdict, the evidence must be considered in its aspect most favorable to the party adverse to the motion. (Shutan v. Bloomenthal, 371 Ill. 244, 254.) A review of all the evidence is required to determine whether there is any evidence, taken in its most favorable light, which tends to prove the charges in the complaint. (Darmody v. Kroger Grocery Co., 362 Ill. 554; Bartolucci v. Falleti, 382 Ill. 168, 173.)

Plaintiffs’ right to recover is governed by section 42-1 of the Motor Vehicle Act (Ill. Rev. Stats. 1945, ch. 95½, par. 58a [Jones Ill. Stats. Ann. 85.064(1)]), which provides:

“No person riding in a motor vehicle as a guest, without payment for such ride, nor his personal representative in the event of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.”

In construing our guest statute in Clarke v. Storchak, 384 Ill. 564, 579, the court said:

“That there should be a difference between the liability of a person who, out of the generosity of his heart, renders gratuitously some service to his fellow traveler over those rendering such service for hire and barter, can hardly be questioned. Those who are charitably inclined should not be restrained by fear of the consequences of their own charitable act and the recipients should not be permitted to gain by the generosity of their host. Undoubtedly the legislature, in adopting this act, was aware of the frequency of litigation in which passengers, carried gratuitously in automobiles, have sought the recovery of large sums for injuries alleged to have been due to negligent operation, and where, in the use of the automobile, which is almost universal, generous drivers might find themselves involved in litigation that often turned upon questions of ordinary negligence. It was evidently the intention of the legislature not only to correct this abuse but to promote the best interests of the people in their relation to each other. ’ ’

Negligence and wilful and wanton misconduct are not synonymous. The distinctions between these terms are clearly defined in Chicago, R. I. & P. R. Co. v. Hamler, 215 Ill. 525, 540. There the court said, at page 540:

“Negligence and wilfulness are as unmixable as oil and water. ‘Wilful negligence’ is as self-contradictory as ‘guilty innocence. ’ The substantive remains the same substantive, whatever the adjective.”

In the instant case there can be no recovery unless the proof shows that the accident which resulted in the death of the plaintiffs’ intestates was caused by defendant driving his automobile across the ice “where it was thin and insecure” wantonly and recklessly. To constitute a wanton act, the party doing the act or failing to act must be conscious of his conduct and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury. (Bartolucci v. Falleti, 382 Ill. 168,173, 174.)

In support of plaintiffs’ contention, counsel stresses the recent case of Huestis v. Lapham’s Estate, 113 Vt. 191, 32 (2d) Atl. 115. In that case Lapham was charged with gross and wilful negligence in an action brought under the guest statute of Vermont. Across the southern end of Lake Champlain, Lapham, driver of the automobile in question, marked a road about half a mile long on the ice by setting bushes three or four feet high, extending from Ferry Hill, Vermont tó Crown Point, New York on the opposite shore. It was the custom of those residing in the vicinity to go over the ice along a route marked by these bushes. Because of a current which made the ice thin and dangerous opposite and northerly of the point on the Vermont shore, the route ran southerly for about ten rods and then turned and ran westerly directly to the New York side. The accident happened in January 1942. The weather was mild and it had rained. Mrs. Huestis and Lapham talked for about a half hour about whether they would go home by the toll bridge or over the ice. Several times she said she was afraid to go back by way of the lake because there was so much water on the ice, and several times Lapham answered that the ice was “sixteen inches thick and plenty safe,” that he had staked out the road and that she had ridden with him before and was never afraid. Mrs. Huestis finally said, “If you know that the lake is safe, then I will ride with you.” About 5:30 p. m. she drove away with Lapham at the wheel. Mrs. Huestis was sitting on the front seat beside him, holding her daughter in her lap, and one Finn was on the back seat. Instead of crossing on the bushed road, Lap-ham’s car bore north of it and proceeded directly to the place where the ice was thin. When it neared the Vermont shore it broke through the ice about 150 feet north of the bushed road. All of the passengers, including Lapham, drowned. In its opinion the court points out that Lapham bushed out the road over the lake so as to avoid the thin ice opposite the point on the Vermont side; that after assuring Mrs. Huestis that she would be perfectly safe, he drove north of the bushed road for almost the entire distance across the lake, directly toward a place which he knew to be dangerous; and, under these circumstances, the court held the jury could properly infer that Lapham’s act of driving where he did was not due to error in judgment,. momentary inattention, or loss of presence of mind, but amounted to a failure to exercise even a slight degree of care and to indifference to his duty to his guests and utter forgetfulness of their safety, and constituted gross negligence.

In the case at bar there were no markers of any kind except some tire marks along the shore extending from the point where Nelson said the ice was “O. K.” to LeMoon’s Point. While the party was fishing during the mid-day hours, most or all of these tire marks were obliterated by the melting of the ice. No current or open water gave notice to defendant that the ice was more dangerous over the route he took than over any other route.

In the Huestis case, Lapham, the driver, staked out the road and knew of its hazards, whereas, in the instant case, the record does not disclose that the defendant had any knowledge that he was incurring an unnecessary hazard. In fact, plaintiffs’ witness Lynn corroborates defendant’s testimony that defendant believed he was returning over the same route he took in coming out in the morning. If it be. assumed that the defendant traveled a different route than that suggested by Nelson, the only inference that can be drawn from the evidence is that he erred in his judgment because of his unfamiliarity with this area.

In their brief, plaintiffs’ counsel cite many other cases, all of them involving guest passengers riding in automobiles while being driven on public highways. The facts in those cases are dissimilar. No case from the courts of thiá state has been cited in the briefs, nor have we been able to find any, involving a factual situation the same as or similar to that in the present case.

Wé have made a careful study of the record, and from application of the principles laid down in Bartolucci v. Falleti, 382 Ill. 168, and Clarke v. Storchak, 384 Ill. 564, and the cases cited in these decisions, to the facts of the instant case, we conclude that plaintiffs failed to introduce any evidence, taken in its most favorable aspect, which tends to prove the essential allegations of the amended complaint. Therefore, the trial court should have granted the written motion for a directed verdict and should have given the instruction finding the defendant not guilty, at the close of all the evidence. (Herbst v. Levy, 279 Ill. App. 353; Fina v. Richardson, 293 Ill. App. 133.)

We have not ■ discussed the other issues presented in the briefs and arguments, since that has not been necessary for a disposition of this cause; Where the plaintiff has no cause of action and the jury reaches a proper conclusion under the law, it is immaterial whether the court erred in its rulings during the trial. (Luly Stores Co. v. Hartman, 235 Ill. App. 319, 322.)

Since a proper conclusion was reached in this case, the judgment in favor of the defendant is affirmed.

Judgment affirmed.

Kiley, P. J., and Burke, J., concur.


text:
    Henry Thomas, Appellant, v. Andreas A. Bourdes et al., Appellees.
    Gen. No. 42,876.
    Heard in the third division of this court for the first district at the October term, 1943.
    Opinion filed November 7, 1945.
    Rehearing denied November 26, 1945.
    Released for publication November 27, 1945.

      Joseph B. Gilbert, of Chicago, for appellant.
    Ben Copple and Morris K. Levinson, both of Chicago, for appellees.
   Mr. Justice Lewe

delivered the opinion of the court.

By this appeal, plaintiff seeks to reverse an order sustaining defendants’ motion to dismiss plaintiff’s complaint under section 48 (f) of the Civil Practice Act.

Plaintiff filed his bill in chancery on October 7,1942, alleging,, in substance, that he was the holder of a beneficial certificate issued by the National Paper Napkin Company, a common law trust, hereinafter called “trust”; that in March 1929, the trustees of the trust committed a fraud upon the trust and its beneficiaries by transferring the trust assets to a corporation, organized by the trustees, known as the National Paper Napkin Manufacturing Company, hereafter called “corporation”; that the trustees converted the stock of said corporation to their own use and benefit; that. the trustees obtained control of the corporation and withheld large profits which in equity belong to plaintiff and other beneficiaries; and that the plaintiff• “learned only within the last thirty' days” preceding the filing of his suit of the aforesaid fraudulent acts committed by the trustees. It concludes with a prayer for an accounting.

On November 12, 1942, certain defendants filed answers which averred in substance that the plaintiff participated in the transfer of all the assets of the trust to the corporation and that the plaintiff had full knowledge, of the entire transaction, and denied that the trustees converted the stock and the profits to their own use.

On May 27> 1943, Peter Danos, one of the defendants, filed a written motion to dismiss the complaint under section 48 (f) of the Civil Practice Act [Ill. Key. Stat. 1945, ch. 110, par. 172, subpar. (f); Jones Ill. Stats. Ann. 104.048, subpar. (f)], supported by affidavits and documents which are attached to the motion and marked Exhibits 1, 2, 3 and 4. The gist of the allegations in defendant Peter Danos’ motion to dismiss is that the plaintiff and others executed the original subscription agreement to organize the corporation on February 9, 1929 and that the plaintiff acted as chairman of the meeting of the incorporators; that he signed the statement of incorporation pursuant to the terms of the subscription agreement; that he knew that the purpose of the formation of the corporation was to transfer the assets of the trust to the corporation.

We have made a careful examination of the motion to dismiss and the exhibits attached thereto, and it discloses that in 1929 the plaintiff had gained full knowledge of the facts which he alleges in his complaint that he learned “only within the last thirty days” prior to the filing of the instant suit. Our examination also discloses that a suit instituted by the plaintiff, entitled Henry Thomas v. National Paper Napkin Mfg. Co., Case No. 34 C 4959 in the circuit court, involved the same subject-matter as in the case at bar and was determined in this court on appeal and reported in volume 290 Ill. App. 291, all of which shows conclusively we think that the plaintiff obtained possession of the facts more than ten years before instituting this suit.

No counter affidavits were filed by plaintiff to defendants’ motion to dismiss, nor was any pleading filed by the plaintiff attacking the sufficiency of the motion. On June 30, 1943, the chancellor gave leave to the defendants who had filed answers to withdraw them and to join in and adopt the motion to dismiss filed by the defendant Peter Danos. On the hearing of the motion to dismiss, no issue of fact having been created, the court sustained defendants’ motion and dismissed the cause for want of equity.

Plaintiff’s theory of the case is that the affidavits filed in support of defendants ’ motion to dismiss could not be considered where they purported to set up facts contrary to the allegations of the complaint and that no statute of limitations is a bar to a suit against a trustee for an accounting until the trustee has openly and unequivocally repudiated the trust relationship.

Defendants’ theory is that a motion to dismiss a complaint pursuant to the provisions of section 48 (f) of ch. 110, Ill. Rev. Stat. 1945, supported by affidavits to which no counter affidavits were filed, creates an issue of law which can be passed upon by the court; and that inasmuch as it appears from the affidavits that the plaintiff knew, more than ten years before the institution of the suit, of the alleged breach of trust and the repudiation of the trust by the trustees, the statute of limitations is a complete bar to the action.

Plaintiff’s contentions involve the construction of section 48 (f). Except for a slight change in phraseology, the language' is the same as Rule 107 of the New York Rules of Civil Practice, which has been in effect for several decades. In Koerner v. Apple, 120 Misc. 266, 199 N. Y. S. 171, at 172, the court, in construing Rule 107 of the Rules of Civil Practice, said:

“By the present practice a defendant may present the facts constituting this defense by affidavit before answering, and where the facts are not controverted by the plaintiff’s affidavits the sufficiency of the defense may be disposed of as a matter of law.”

In Herzog v. Brown, 217 App. Div. 402, 216 N. Y. S. 134, at 135, the court held that,

“Rule 107, Rules of Civil Practice, is an adaptation to actions at law of the old equity practice of raising questions of law by a plea in bar and having them determined before the defendant pleads to the merits. A plea in equity had for its purpose the presentation of some distinct fact, not appearing on the face of the pleadings, which of itself created a bar to the suit, while an answer was to meet all the allegations of the bill.”

In passing upon the provisions of this Section, the court said in Montgomery v. Whitlock, 306 Ill. App. 271, that affidavits may be considered if they fall within section 48, and that motions under the Civil Practice Act are now substituted for demurrers. In the recent case of Rickey v. Northwestern University, 323 Ill. App. 293, defendant made a motion to dismiss, alleging that the suit was barred by the statute of limitations. The court held that a motion under section 48 (f) would lie.

The plaintiff having failed to controvert the facts contained in the defendants’ motion to dismiss and affidavits supporting it, they must be taken as true. (People v. United States Fidelity & Guaranty Co., 306 Ill. App. 518, 523; Brandt v. St. Paul Mercury Indemnity Co., 285 Ill. App. 212.) Since the facts related in defendants ’ motion to dismiss and the attached exhibits clearly show that the plaintiff knew for more than ten years prior to the institution of his suit that the trust was terminated by the transfer of its assets to the corporation, we do not think his position is tenable. In Becker v. Billings, 304 Ill. 190, 199, the court said:

“It may be conceded that so long as a trustee continues to exercise his powers as trustee in regard to property that he can be called to an account in regard to that trust, but when he has parted with all control over the property and has closed up his relation to the trust and no longer claims or exercises any authority under the trust, the principles which lie at the foundation of all statutes of limitation assert themselves in his favor and time begins to cover his past transactions with her mantle of repose.”

This doctrine also applies to cases of express trust.

(Simpson v. Manson, 345 Ill. 543, 554.)

Plaintiff also urges that the affidavits marked as Exhibits 2, 3 and 4 were executed by attorneys for certain defendants and therefore should not be considered, and that the particular statute of limitations applicable must be pleaded. Since these points were not raised before the trial court we shall not consider them. (City of Lincoln v. Chicago & A. R. Co., 262 Ill. 98; Haugan v. Michalopoulos, 280 Ill. App. 239, 245.

For the reasons indicated, the order sustaining defendants’ motion to dismiss is affirmed.

Affirmed.

Kiley, P. J., and Burke, J., concur.


author: Presiding Justice Dove.

text:
    Earle B. Tilton, Appellant, v. Robert R. Ludwig, Appellee.
    Gen. No. 10,028.
    Heard in this court at the May term, 1945;
    opinion filed October 22, 1945;
    released for publication November 19, 1945.
    Rathje & Woodward, for appellant; John S. Woodward, of counsel; Perry & Elliott, for appellee.
   Opinion by

Presiding Justice Dove.

Not to be published in full.


author: Justice Bristow.

text:
    George Edwards, Appellant, v. Irvin E. Wernick, Appellee.
    Gen. No. 10,033.
    Heard in this court at the May term, 1945;
    opinion filed October 22, 1945;
    rehearing denied November 28, 1945;
    released for publication November 29, 1945.
    John B. Snively, for appellant; Raphael E. Yalden, for appellee.
   Opinion by

Justice Bristow.

Not to be published in full.


author: Presiding Justice Hayes.

text:
    Benjamin W. Wise et al., Appellees, v. Potomac National Bank of Potomac, Illinois et al., Appellants.
    Gen. No. 9,473.
    Cause transferred.
    Heard in this court at the October term, 1945;
    opinion filed October 23, 1945;
    released for publication November 19, 1945.
    Steely, Steely, Graham & Dysert and Hutton, Clark & Hutton, for appellants; H. Ernest Hutton and Benjamin I. Norwood, Jr., of counsel; Rearick & Rearick for appellees.
   Opinion by

Presiding Justice Hayes.

Not to be published in full.


text:
    K. Layne, Appellant, v. Loren B. Colegrove, Appellee.
    Gen. No. 9,478.
    Heard in this court at the October term, 1945;
    opinion filed October 23, 1945;
    released for publication November 19, 1945.
    Hogan & Coale, for appellant; Harold Broverman, for appellee.
   Opinion by

Presiding Justice Hayes.

Not to be published in full.


author: Justice Dady.

text:
    Arvil Russell and Robert Russell, by Othal Russell, Father and Next Friend, Appellees, v. Consolidated Forwarding Corporation, Inc., Appellant.
    Gen. No. 9,479.
    Heard in this court at the October term, 1945;
    opinion filed October 23, 1945;
    released for publication November 19, 1945.
    Earl S. Hodges, for appellant; Harold Broverman and Harry B. Grundy, for appellees.
   Opinion by

Justice Dady.

Not to be published in full.


author: Presiding Justice Stone.

text:
    Sunflower Natural Gasoline Company, Appellant, v. O. E. Brown, Appellee.
    Term No. 44M1.
    Heard in this court at the May term, 1944;
    opinion filed October 26, 1945;
    released for publication November 27, 1945.
    Dowell & Dowell (George W. Dowell), for appellant ; Raymond O. Horn, for appellee.
   Opinion by

Presiding Justice Stone.

Not to be published in full.


text:
    Reinhardt Rixmann, Appellant, v. C. W. Witwer and Nellie S. Witwer, Appellees.
    Term No. 45M1.
    Heard in this court at the May term, 1945;
    opinion filed October 26, 1945;
    released for publication November 27, 1945.
    Robert M. Washburn, for appellant; Russell Wilson, for appellees.
   Opinion by

Presiding Justice Stone.

Not to be published in full.


author: Justice Bartley.

text:
    Minnie Bartels, Administratrix of Estate of Henry F. Bartels, Deceased, Appellee, v. Donald McGarvey, Appellant.
    Term No. 45M3.
    Heard in this court at the May term, 1945;
    opinion filed October 26, 1945;
    released for publication November 27, 1945.
    Green & Hoagland, for appellant; Kenneth F. Kelly, of counsel; Harold J. Bandy and Ogle E. Veach, for appellee.
   Opinion by

Justice Bartley.

Not to be published in full.


text:
    Bernard Schaefer, Appellant, v. Margaret Then, Appellee. Joseph Then, Appellee, v. Bernard Schaefer, Appellant.
    Term No. 45M11.
    Heard in this court at the May term, 1945;
    opinion filed October 26, 1945;
    released for publication November 27, 1945.
    Goldenhersh & Goldenhersh, for appellant; Kramer, Campbell, Costello & Wieehert, for appellee.
   Opinion by

Justice Bartley.

Not to be published in full.


author: Presiding Justice Friend.

text:
    Sol R. Malkin, Trading as Malkin, Glick and Malkin, Appellee, v. Arthur August, Trading as Preferred Builders of Chicago, and Arthur August Lumber and Supply Company, Appellant. Arthur August, Trading as Preferred Builders of Chicago, and Arthur August Lumber and Supply Company, Appellant, v. Sol R. Malkin, Trading as Malkin, Glick and Malkin, Appellee.
    Gen. No. 43,314.
    Heard in the second division, first district, this court at the February term, 1945;
    opinion filed November 6, 1945;
    released for publication November 20, 1945.
    Rathje, Hinckley, Kulp & Sabel, for appellant; James P. Walsh and Joseph J. Sullivan, Jr., of counsel; Norman Asher, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full


text:
    Sol R. Malkin, Trading as Malkin, Glick and Malkin, Appellee, v. Arthur August, Trading as Preferred Builders of Chicago, and Arthur August Lumber and Supply Company, Appellant. Continental Illinois National Bank and Trust Company, Garnishee.
    Gen. No. 43,315.

      Heard in the second division, first district, this court at the February term, 1945;
    opinion filed November 6, 1945;
    released for publication November 20, 1945.
    Rathje, Hinckley, Kulp & Sabel, for appellant; James P. Walsh and Joseph J. Sullivan, Jr., of counsel; Norman Asher, for appellee.
   Opinion by

Presiding Justice

Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    Patrick H. McCormack, Appellee, v. Thomas J. Friel et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,262.
    Heard in the second division, first district, this court at the December term, 1944;
    opinion filed November 6, 1945;
    released for publication November 20, 1945.
    Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, for appellants; William J. Flaherty, of counsel; Alexander J. Reiff, Joseph A. McInerney and Ode L. Rankin, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    John Prochaska, Minor, by Charles Prochaska, Father and Next Friend et al., Appellants, v. H. A. DeCosta, Appellee.
    Gen. No. 43,288.
    Heard in the second division, first district, this court at the February term, 1945;
    opinion filed November 6, 1945;
    released for publication November 20, 1945.
    Alfred M. Loeser, for appellants; Burt A. Crowe, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Gustave Koch, Appellant, v. Nettie B. Stevenson et al., Defendants. A. F. Waldschmidt, Treasurer of Township 36 North et al., Appellees.
    Gen. No. 43,321.
    Heard in the second division, first district, this court at the February term, 1945;
    opinion filed November 6, 1945;
    rehearing denied November 20, 1945;
    released for publication November 20, 1945.
    H. J. Thal, for appellant; Langworthy & Bartlit, for appellees; B. F. Langworthy, of counsel; Moses, Kennedy, Stein & Bachrach, for certain appellees; Herbert H. Kennedy, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Clara E. Sussin, Appellee, v. Victor Sussin, Appellant.
    Gen. No. 43,354.
    Heard in the second division, first district, this court at the April term, 1945;
    opinion filed November 6, 1945;
    released for publication November 20, 1945.
    Allen & Darlington, for appellant; Glynn J. Elliott, of counsel; Carleton L. Banker, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Justice Sullivan.

text:
    George Loverde and Vito Loverde, Appellants, v. Consumers Petroleum Company, Appellee.
    Gen. No. 42,807.

      Heard in the second division, first district, this court at the October term, 1943;
    opinion filed November 6, 1945;
    released for publication November 20, 1945.
    Julius S. Neale and Frank M. Kelly, for appellants; Walter E. Moss, of counsel; Andrew J. Farrell, for appellee.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Bessie Simon, Appellant, v. Paula Balasic and Alfred Balasic, Appellees.
    Gen. No. 43,367.
    Heard in the second division, first district, this court at the April term, 1945;
    opinion filed November 6, 1945;
    released for publication November 20, 1945.
    Jacob Levy, for appellant; Max M. & Samuel Grossman, for appellees; Samuel Grossman and Louis N. Grossman, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Illinois Development Corporation, Appellee, v. John W. Wuerth, President of Board of Trustees of Skokie et al., Appellants.
    Gen. No. 43,561.
    Heard in the second division, first district;
    opinion filed November 6, 1945;
    released for publication November 20, 1945.
    Nicholson, Barrett, Nisen & Keyes and Peter J. Struck, for appellants; John R. Nicholson and Ernest V. Keyes, of counsel; Herbert Ritz, for appellee.
   Opinion by

Justice Sullivan.

Not to be published in full.


author: Justice Kiley.

text:
    In re Estate of Franklin Magill, Deceased. Frank W. Heiskell, Administrator of Estate of Franklin Magill, Deceased, Appellee, v. Etta E. Klasky, Appellant.
    Gen. No. 43,062.

      Heard in the third division, first district, this court at the April term, 1944;
    opinion filed June 29, 1945;
    rehearing opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Peabody, West-brook, Watson & Stephenson, Isidore Brown and Brown, Fox & Blumberg, for appellant; Charles Le Roy Brown and Charles H. Watson, of counsel; Hymen S. Gratch and Edwin A. Halligan, for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Presiding Justice Kiley.

text:
    People of State of Illinois, Defendant in Error, v. Chester Rudnicki, Plaintiff in Error.
    Gen. No. 43,123.

      Heard in the third division, first district, this court at the April term, 1945;
    opinion filed November 7, 1945;
    rehearing denied November 26, 1945;
    released for publication November 27, 1945.
    Thaddeus C. Toudor, for plaintiff in error; George F. Barrett, Attorney General, for defendant in error; William J. Tuohy, State’s Attorney, Edward E. Wilson, John T. Gallagher and Melvin S. Bembe, Assistant State’s Attorneys,- of counsel.
   Opinion by

Presiding Justice Kiley.

Not to be published in. full.


text:
    Lulu I. Knaus, Appellant, v. M. R. C. Finance Corporation, Appellees.
    Gen. No. 43,160.
    Heard in the third division, first district, this court at the October term, 1944;
    opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Balford Quintín Shields, for appellant; Teller, Levit & Silvertrust, for appellees.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


text:
    Clara Trachtenberg, Appellant, v. Harold B. Fuerstenberg et al., Appellees.
    Gen. No. 43,392.
    Heard in the third division, first district, this court at the June term, 1945;
    opinion filed November 7, 1945;
    rehearing denied November 26, 1945;
    released for publication November 27, 1945.
    Bernard J. Brown, for appellant; Lee D. Mathias, for appellees.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


text:
    F. W. Fischer, Appellant, v. Queen Hedwig’s Polish National Catholic Church of Chicago, Appellee.
    Gen. No. 43,405.

      Heard in the third division, first district, this court at the June term, 1945;
    opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Reden, Ryan & Andreas, for appellant; Gerald Ryan, of counsel; no appearance for appellee.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


author: Justice Burke.

text:
    Century Indemnity Company, Appellee, v. Board of Education of City of Chicago, Appellant.
    Gen. No. 43,085.
    Heard in the third division, first district, this court at the June term, 1944;
    opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Richard S. Polsom, for appellant; James W. Coffey and Sherman W. Clark, of counsel; Geary V. Stibgen and Edward T. Duday, for appellee.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    Joseph E. Halloran, Appellee, v. Chicago and North Western Railway Company, Appellant.
    Gen. No. 43,130.
    Heard in the third division, first district, this court at the October term, 1944;
    opinion filed May 18, 1945;
    rehearing opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Drennan J. Slater and James B. O’Shaughnessy, for appellant; Joseph D. Byan and Louis P. Miller, for appellee.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    People of State of Illinois ex rel. John S. Rusch, Appellee, v. Sylvia Fusco et al., Appellants.
    Gen. No. 43,149.

      Judgment reversed and cause remanded. Heard in the third division, first district, this court at the October term, 1944;
    opinion filed November 7, 1945;
    rehearing denied November 26, 1945;
    released for publication November 27, 1945.
    Samuel S. Epstein and Walter Hamilton, for appellants; Mayer Goldberg, of counsel; Wil: liam J. Tuohy, State’s Attorney, for appellee; John F. Cashen, Jr., Special Attorney to Board of Election Commissioners.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    Kasia Syroishka, Appellant, v. Albert Pieniozek, Appellee.
    Gen. No. 43,286.
    Heard in the third division, first district, this court at the December term, 1944;
    opinion filed November 7, 1945;
    released for publication November 27, 1945.
    David Freedkin, for appellant; Maxfield Weisbrod, of counsel; Brodkin & Bieber, for appellee; Irving W. Eiserman, of counsel.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    Consolidated Wire & Associated Corporations, Appellee, v. Rudolph Weiss, Trading as Arrow Sales Company, Appellant.
    Gen. No. 43,298.
    Heard in the third division, first district, this court at the December term, 1944;
    opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Edward S. King, for appellant; Ode L. Rankin, of counsel; William Eriedman and Raymond M. Grossman, for appellee; Zeamore A. Ader, of counsel.
   Opinion by

Justice Burke.

Not to be published in full.


author: Justice Lewe.

text:
    Western Engineering Co., Appellee, v. Miller-Connell Manufacturing Company, Appellant.
    Gen. No. 42,811.
    Heard in the third division, first district, this court at the October term, 1943;
    opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Bernard Brown, for appellant; William A. Goldman, of counsel; Morris Spector and David F. Dockman, for appellee.
   Opinion by

Justice

Lewe.

Not to be published in full.


text:
    Silver Creek Coal Company, Appellant, v. Bulk Service Stations, Inc., Appellee.
    Gen. No. 42,848.
    Heard in the third division, first district, this court at the October term, 1943;
    opinion filed November 7, 1945;
    rehearing denied November 26, 1945;
    released for publication November 27, 1945.
    Daniel L. Madden, for appellant; Edward MeTiernan, of counsel; Bippus, Bose, Burt & Pierce, for appellee; S. T. McCray, of counsel.
   Opinion by

Justice Lewe.

Not to be published in fulL


text:
    Marie A. Carpenter, Appellee, v. Metropolitan Trust Company et al., Executors of Last Will and Testament of Charles E. Carpenter, Deceased, Appellants.
    Gen. No. 42,854.

      Heard in the third division, first district, this court at the October term, 1943;
    opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Levinson, Becker, Peebles & Swiren, for appellants; Don M. Peebles, of counsel; Lewis 0. Coyner, for appellee.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    Joseph Breitmeier, Appellant, v. Sam P. Sutera, Appellee.
    Gen. No. 42,910.
    Heard in the third division, first district, this court at the December term, 1943;
    opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Sher & Karlin, for appellant; Leo S. Karlin, of counsel; Wyatt Jacobs and Walter A. Christopher, for appellee.
   Opinion by

Justice Lewe.

Not to be published in fulL


text:
    Trust Company of Chicago, Administrator of Estate of Elizabeth Palmer Smith, Deceased, and Jason Paige, Executor of Estate of Carrie E. Paige, Deceased et al., Appellants, v. City of Chicago et al. Appellees.
    Gen. No. 42,962.
    Heard in the third division, first district, this court at the December term, 1943;
    opinion filed November 7, 1945;
    rehearing denied November 26, 1945;
    released for publication November 27, 1945.
    Weightstill Woods, for appellants; Clarence N. Boord, Benjamin Franklin Langworthy, George A. Mason, Lawrence C. Mills, Horace Russell and William D. Wollesen, of counsel; Barnet Hodes, Corporation Counsel, for appellees; J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Lewe.

Not to be published in fuU.


text:
    John A. McCue, Appellee, v. J. P. Flynn, Jr., and Mrs. J. P. Flynn, Jr., Appellant.
    Gen. No. 42,972.

      Heard in the third division, first district, this court at the February term, 1944;
    opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Charles V. Falkenberg, for appellant; no appearance for appellee.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    Joseph Kaszab, Inc., Appellee, v. T. K. Gibson, Defendants. Appeal of A. W. Williams, Appellant.
    Gen. No. 43,103.
    Heard in the third division, first district, this court at the June term, 1944;
    opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Prescott, Burroughs & Taylor, for appellant; Patrick B. Prescott, Jr. and Archibald J. Carey, Jr., of counsel; Siebel & Siebel, for appellee; A. F. W. Siebel and Arthur F. Siebel, of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    Edwin M. Hadley, Jr., Appellee, v. Ernest E. Lilliander et al., Defendants. Appeal of William H. Murphy and Henry F. Hagemeyer, Appellants.
    Gen. No. 43,119.
    Heard in the third division, first district, this court at the June term, 1944;
    opinion filed November 7, 1945;
    released for publication November 27, 1945.
    Winston, Strawn ,& Shaw, for appellants; John D. Black, of counsel; Haight, Goldstein & Hobbs, for appellee; George Í. Haight and Chas. H. Lereh, of counsel.
   Opinion by

Justice Lewe.

Not «to be

published in full.


author: Mr. Justice Dady

text:
    Gay Roley McClelland, Appellant, v. In re Estate of Alva Gorrell, Deceased. Clarence Gorrell, Executor of the Last Will and Testament of Alva Gorrell, Deceased, Appellee.
    Gen. No. 9,475.

      Heard in this court at the October term, 1945.
    Opinion filed October 23, 1945.
    Behearing denied December 15, 1945.
    Beleased for publication December 15, 1945.
    Dwight H. Doss, of Monticello, for appellant.
    N. E. Hutson, of Monticello, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

This is an appeal from an order of the circuit court which dismissed an appeal brought to that court from the county court acting in probate.

The appellant, Gray Eoley McClelland, duly filed in the county court of Piatt county her claim in the amount of $3,425 against the estate of Alva Grorrell, deceased.

On October 14, 1944, the county court entered an order denying such claim. The order allowed an appeal and fixed the amount of the appeal bond at $100.

On November 2,1944, an appeal bond in such amount was duly filed in and approved by the county court.

On November 29, 1944, the county clerk filed with the clerk of the circuit court the transcript on appeal.

On December 15, 1944, the executor of the estate entered in the circuit court his special appearance for the purpose of moving to dismiss the appeal for lack of jurisdiction of the circuit court. On January 16, 1945, the circuit court entered an order allowing such motion and dismissing such appeal.

The claimant appellant has brought this appeal from such last order.

The motion to dismiss stated that the claimant filed .her appeal bond within the time provided by statute, but that the appeal should be dismissed because the claimant did not pay the fees and costs within the time provided by such statute.

The facts as to payment are as follows:

Attached to and filed with and made a part of the transcript on appeal to the circuit court was a certificate by the county clerk that the costs of the county clerk in connection with the appeal were as follows:

Appeal Bond ..............$ 1.00

Filing claim.................25

Witness fees................ 3.30

Preparing transcript 8.00

Total ..........$12.55

The certificate further stated that such costs “have been paid” by the attorney for the claimant, and that the cost of filing such appeal in the circuit court in the amount of $5 was paid by said attorney on November 2, 1944,

At the time of filing the appeal bond on November 2, 1944, the attorney for the claimant did not give the county clerk any cash, but gave to such clerk three checks, each signed by such attorney. One check for $4.55 was payable to the county clerk and was in payment of the costs which then appeared1 on such clerk’s records. One check for $5 was payable to the circuit court clerk, and was to be in payment of the latter’s filing fee when the transcript was thereafter filed in the circuit court by the county clerk. Such $5 check was delivered to the circuit court clerk by the county clerk at the time such transcript was filed in the circuit court and was then accepted by the circuit court clerk as his filing fee. The third check was payable to the county clerk but was left in a blank amount. The blank was not filled in at the time the check was drawn for the reason that the county clerk did not then know the cost of preparing the transcript and he suggested the leaving of such blank check. Before or at the time of filing the transcript in the circuit court the county clerk filled out the blank check for the amount of $8.

All checks were paid when presented for payment to the bank on which they were drawn.

In his brief filed in this court appellee says, “It is conceded that the sum of $4.55 was paid within the time required.”

The only questions before us are whether the $5 filing fee of the circuit clerk and the balance of the fee of the county clerk, amounting to $8 for preparing the transcript, were paid within the required time.

The only sections of the statute applicable are secs. 330 and 332 [pars. 484, 486] of ch. 3, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 110.581, 110.583], which sections are as follows:

Section 330. Appeal to Circuit Court. “An appeal from any other order .... of the probate court may be taken ... to the circuit court by the filing in, and the approval by, the probate court of an appeal bond and the payment of the costs and fees of the appeal. The bond shall be filed and approved and the fees and costs paid within twenty days after the entry of the order . . . appealed from or within such further time, not to exceed sixty days after the entry of the order . . . appealed from, as the probate court may allow on application made within the twenty days.”

Section 332. “On payment of his fees therefor and of the costs of filing the proceeding in the circuit court, it is the duty of the clerk of the probate court to prepare a transcript of the record and within thirty days after the bond is approved to file the transcript with the clerk of the circuit court. The failure of the clerk of the probate court to do so does not affect the validity of the appeal.”

Such statute first became effective on July 24, 1939.

Apparently this is the first time a court of review has been called on to construe such statute so far as the question now raised is concerned.

In Davison v. Heinrich, 340 Ill. 349, the court held that under a somewhat. similar statute the payment of the appeal fee of the circuit clerk within the time required by such statute was jurisdictional. In the Davison case the fees of the circuit clerk were not paid or attempted to be paid until the expiration of at least 63 days after the entry of the order appealed from, although the statute which allowed such an appeal provided that “the fee provided by law for the filing’ of such appeal” to the circuit court should be paid “by the party praying for an appeal . . . within twenty days from the rendition of the judgment” appealed from.

It is our opinion that the requirement of the statute for the prepayment of the “costs and fees of the appeal” is primarily intended for the protection of the officers of the court and to facilitate the collection of such costs and fees. (See Seaboard Nat. Bank v. Fischer, 98 Vt. 20, 124 Atl. 588; Wright v. Walker County Fertilizer Co., 164 Ga. 260, 138 S. E. 151; Drennen v. Johnson, 65 Colo. 381,176 Pac. 479.)

It will be noted that the appellee concedes that the sum of $4.55 was paid within the time required. Such sum of $4.55 was paid by check on the nineteenth day after the order appealed from was entered.

In Johns v. McKibben, 156 Ill. 71, in discussing the powers of a tax collector the court said at page 78: “It is familiar doctrine that the collector has no authority to receive anything in payment of taxes except money. He can not be required to receive a note or check on a bank, for such check would be only a conditional payment.” However, at page 77, the court also said: “The collector undoubtedly might receive a check as payment, and if so received the transaction would constitute a valid payment of the taxes.” In Hubbard v. Auditor General, 120 Mich. 505, 79 N. W. 979, the court held that the original owners of land were in no position to question the receipt by the auditor general of a check from tax title purchasers, where the check is paid and the deed issued, and in doing so said: “Relators are not in position to question the method of payment between the auditor general and tax-title purchasers. The auditor general saw fit to accept the check in payment. It was paid, and the deed issued. This point is ruled by People v. Commissioner of the State Land Office, 19 Mich. 469.”

As to the payment of the filing fee on appeal to the clerk of the circuit court, it will be noted that sec. 330 provides for “the payment of the costs and fees of the appeal,” but does not specifically say to whom they shall be paid, — while sec. 332 says that “on payment of his fees therefor and of the costs of filing the proceeding in the circuit court, it is the duty of the clerk of the probate court to prepare a transcript of the record' and within thirty days after the bond is approved to file the transcript with the clerk of the circuit court.” Obviously the plain meaning and intent of such statute is that all such fees and costs, including the filing fee of the circuit clerk, shall in the first instance be collected by and paid to the clerk of the probate court, and that out of such fees and costs when paid the clerk of the probate court shall thereafter pay the filing fee of the clerk of the circuit court.

In apparent good faith the appellant, through her attorney, duly, gave the clerk of the probate court a $5 check to cover the fee due the clerk of the circuit court. This check was a good check and was accepted as payment first by the clerk of the probate court and thereafter by the clerk' of the circuit court from the clerk of the probate court. As to the payment of the balance of the fees and costs of the clerk of the probate court for making out the transcript, amounting to $8, it appears that the appellant, in effect and in apparent good faith, duly tendered payment thereof to the clerk of the probate court, but such clerk was unable to determine the amount, and that in lieu of cash the appellant, through her attorney, then gave to the clerk of the probate court and such clerk then accepted a blank check, with the express or implied authority to fill out such check for the correct amount when ascertainable, — which was done.

It is our opinion that appellee cannot successfully complain of the manner of payment, that the appeal was duly perfected, and that the trial court erred in allowing the motion to dismiss.

The judgment of the trial court is reversed and the cause is remanded1 to such court, with directions to deny the motion to dismiss the appeal, and for further proceedings consistent with this opinion.

Reversed and remanded with directions.