author: Mr. Presiding Justice Dady

text:
    In re Estate of Rochester Sandusky and Appeal of Iva Kidd Sandusky.
    Gen. No. 9,388.

      Heard in this court at the October term, 1943.
    Opinion filed October 25, 1943.
    Rehearing denied January 17, 1944.
    Cotton, Canright & Massey, of Paris, for appellant.
    Acton, Acton, Baldwin & Bookwalter, of Danville, for appellees; W. M. Acton, of Danville, of counsel.
   Mr. Presiding Justice Dady

delivered the opinion of the court.

Rochester Sandusky died at Danville, Vermilion county, Illinois, on July 27, 1941.

The appellant, Iva Kidd Sandusky, claims she was married to Rochester Sandusky at Hopkinsville, Kentucky, on February 8, 1934. This is denied by the appellees, who are the executors and heirs at law of decedent. The sole question is whether appellant and Rochester Sandusky were so married.

For brevity, Rochester Sandusky will be referred to as “Sandusky.”

• In the testimony the appellant, Iva Kidd Sandusky, is referred to by some but not by all of her witnesses as “Iva Kidd Sandusky,” or “Mrs. Sandusky,” and is referred to by appellees’ witnesses as “Iva Kidd.” To avoid confusion she will be referred to as the “appellant.”

Sandusky was born October 18, 1853. He was never married, unless married to appellant. Apparently he always lived in Vermilion county, at or near Danville. During his active life he was a farmer.

During the winter of 1938, 1939, and many prior winters, he stayed at Boca Grande, Florida, returning to Vermilion county each spring.

In March 1939, Sandusky went to live at the home of appellant in Central Park, in or near Danville. As far as the record shows, this was the first time they ever occupied the same house. Thereafter he lived at such home of appellant until January 4, 1941, on which date he was taken to a hospital in Danville, where he remained until his death.

On August 1, 1941, his sister, Belle S. James, filed in the probate court of Vermilion county her petition which alleged that Sandusky left real estate of the value of $100,000 and personal estate of the value of $5,000, and left his sister and nephews and nieces as his heirs, legatees and devisees. The petition asked that a purported will of 'Sandusky, dated August 20, 1934, be admitted to probate.

On August 25, 1941, appellant filed in the probate court her petition which alleged that Sandusky left real estate of the value of $150,000 and personal estate of the value of $25,000, and that he left appellant as his widow, and said Belle S. James, and said nephews and nieces, and certain other persons therein named, as his heirs, legatees and devisees. Such petition asked that a purported will of Sandusky, dated June 19, 1939, be admitted to probate.

On August 25, 1941, appellant also filed in the probate court, in connection with such last petition, the alleged antenuptial agreement and the marriage certificate hereafter referred to.

On October 4, 1941, Belle S. James, by leave of court, amended her petition by alleging in the amendment that appellant claimed to be but was not in fact the widow of decedent, and asking that the heirship of decedent be adjudicated. On the same date, appellant entered her appearance in the matter of the hearing of such petition as amended.

On February 2, 1942, a hearing was had on said two petitions, and the probate court entered an order admitting to probate such purported will dated August 20,1934. Such order found that the purported will dated June 19, 1939, was not signed by Sandusky or by the alleged witnesses thereto, and denied probate thereof.

No appeal has been taken from such order.

The will of Sandusky dated August 20, 1934, so admitted to probate, was signed “Rochester Sandusky,” as testator. . It made no mention of appellant and did not refer to any marriage.

On March 10, 1942, the probate court entered an order finding that the decedent left his said sister and nephews and nieces as his sole heirs. From such order appellant appealed to the circuit court, where the hearing as to heirship was tried de novo.

On September 23, 1942, the circuit court entered an order which found that Sandusky and appellant were never married, that Sandusky was never married, and that he left surviving him such sister and nephews and nieces as his sole heirs.

This appeal is brought to review such last mentioned order.

The brief of appellant states that the petitioner, Belle S. James, made a prima facie case of nonmarriage by the evidence of J. T. McMillan, who testified that he was 88 years of age, that he married a sister of Sandusky and knew and was associated with Sandusky since they were both small children, and that as far as he knew Sandusky was never married.

Thereupon appellant introduced in evidence an authenticated copy of a marriage license and of a certificate of the person performing a marriage ceremony under such license. Such license was dated February 8,1934, was issued by the clerk of the county court of Christian county, Kentucky, and authorized the marriage of“R. Sandusky and Mrs. Iva Kidd.” Such certificate of performance was dated February 8, 1934 and was signed by J. P. Watson. By said certificate Watson certified that he was a Methodist minister, and that on February 8, 1934, at Hopkins-ville, Kentucky, under the authority of such license, he united in marriage “R. Sandusky and Mrs. Iva Kidd,” in the presence of Mrs. P. E. Steger and Clark Steger. A photostatic copy of the original certificate of performance later introduced in evidence shows that no one signed such certificate of performance as a witness, but it also shows that the printed form had no place indicated thereon for the signature of a witness.

To prove the identity of the “R. Sandusky and Mrs. Iva Kidd” named in such license and certificate, appellant introduced in evidence the testimony of Madge McGrath, P. E. Steger and George H. Smith, each of whom testified to being present and witnessing the marriage ceremony.

Mrs. McGrath, a niece of appellant, lived in California at the time of the trial and her testimony was by deposition. She testified that she had known appellant and Sandusky since childhood; that while living in Chicago, Illinois, on February 7, 1934, about 9 p. m., she, with her two small children, left Chicago in the automobile of and with a Mr. and Mrs. Lawrence, of Chicago, bound for Kentucky, she intending to visit her father who lived near Corbin, Kentucky; that the Lawrences intended going to Harlan, Kentucky, and were to drop Mrs. McGrath and the children off at Corbin; that they drove all night and on reaching Hopkinsville, Kentucky, about noon on February 8, 1934, had tire trouble; that the Lawrences then let Mrs. McGrath and the children out of the car and drove on to have the car repaired; that Mrs. McGrath and children walked along the street and came to a movie theatre, where they were looking at show posters when she looked up and saw appellant standing across the street; that she had never been in Hopkinsville before and did not know the name of the street; that she then ran to appellant, who was “shocked” at seeing her, as there was no previous appointment; that appellant then walked to a parked car which Sandusky had just gotten out of; that Mrs. McGrath then said to appellant, “What are you doing here?”, and the latter replied, “We are going to get married”; that she and the children and Sandusky and appellant then went to the clerk’s office in the courthouse; that after coming out of the clerk’s office appellant stopped and talked to some woman who “kind of pointed,” and Mrs. McGrath, her children, Sandusky and appellant then went to’ some real estate office to have the ceremony performed, where they met a man whom she thought was Steger, the “real estate man,” who introduced himself when they went in and introduced Sandusky and appellant to his wife, Mrs. Steger, and to their son, and to Watson, the minister; that at the real estate office they also met her uncle, Turner Brown, who shook hands with Sandusky and appellant; that she thought Turner Brown was looking for work and “it seemed like he had business” in that office, — “he was just as surprised as I was ’ ’; that immediately after such ceremony Turner Brown left the group and the rest of them then went to a restaurant where they ate; that she and the children then left Sandusky and appellant and she did not thereafter see them; that she then met the Lawrences on the street and they said they were going back to Chicago on account of the condition of the car; that she then learned she was clear across the State from Corbin, Kentucky, so they drove back to Chicago, arriving in Chicago the next morning.

P. E. Steger testified that he and Watson were partners in the real estate, loan and insurance business in Hopkinsville for several years; that Watson was also a Methodist minister and died in 1939. The witness was then shown several pictures of Sandusky and appellant which were admitted in evidence by agreement as being pictures of such parties. Steger then testified that the man and woman shown in such pictures were a couple that he saw married on February 8, 1934, in his office by Watson; that he, Steger, came into the office when Sandusky was handing the license to Watson; that he did not act' as a witness, but sat down and saw and heard the ceremony; that Steger’s wife acted as stenographer in the office and Watson asked her to fill out the return on the license, which she did, and while that was being done. Steger talked in ordinary conversational tones with Sandusky for from forty minutes to an hour, about trips to Florida and farming and things like that, and the couple then left; that this was the only time he saw decedent.

Smith testified that he had been sheriff of Christian county, Kentucky, for four years, and thereafter had been a constable for about twelve years; that at the ■time of the marriage he had no office, but generally sat around the courthouse, usually sitting in the hallway, and that he took special pleasure in looking after and directing strangers to offices'. He was then shown such photographs and said he recognized the couple as being the Rochester Sandusky and appellant whom he saw married on February 8, 1934; that they were then strangers to him and were walking in the hallway of the courthouse, and he asked them if he could assist them, and they told him that they were going to get a marriage license, so he took them to the clerk’s office and waited in the hallway while the license was being obtained; that another woman with two little girls was with them; that Sandusky then told him he wanted a preacher, so he directed them to Watson’s office where he saw them married, and that he did this as a matter of courtesy and without receiving any pay.

Smith also testified that he had no doubt he had been a witness at more weddings than any other one man in Hopkinsville, and recently “we have guided as many as fifteen couples a day” that wanted to get married; that one of the reasons he remembered the couple in question was because of the name “Sandusky,” that he knew some other Sanduskys and asked Sandusky if there was any relationship, and that Sandusky replied he did not know.

To show declarations, in the nature of admissions, alleged to have been made by decedent as to his marital status, Evelyn Monroe, Mrs. Tables and Ealph Voyles testified for appellant.

Mrs. Monroe, of Chicago, testified she had known Sandusky and appellant for about seven years, first becoming acquainted with them in Florida; that after the first year she saw Sandusky in Florida every year for about seven years; that in 1939 Sandusky and appellant and the witness stayed at the Palmetto Inn, at Boca Grande; that appellant left for the north and about two or three days thereafter, in March, 1939, the witness met Sandusky in the hallway of the hotel; that on that occasion he asked her about appellant leaving, and asked her if she knew that they, meaning himself and appellant, had been married, and that she told him “Yes”; that Sandusky then told her he was going back to Danville to appellant’s home and live there.

She further testified that she “guessed” that appellant was registered at the hotel, but had a separate room, and that appellant went by the name of Mrs. Kidd and not by the name of Mrs. Sandusky; that she visited Sandusky and appellant at the Kidd home in Central Park in the spring of 1939 and each spring thereafter.

Mrs. Tables testified that from June 1939, until June 1941, she helped appellant with the housework ; that in 1940, when Sandusky and appellant were on the front porch and were joking, and did not know the witness was around, appellant asked Sandusky why he had married her, and he said, “Well, why did you marry me, for my money?”, and that appellant then said, “Well, I haven’t got it yet,” —that “it was just a joke, they were joking about it.” She further testified that was the only occasion she ever heard anybody say anything about marriage. She further testified that during such two years appellant cooked special dishes for Sandusky, put him to bed and helped him to dress, and that he treated her like a husband.

Ralph Voyles testified that he was g sexton at a cemetery in Danville wherein Sandusky had built a mausoleum; that on one occasion Sandusky told the witness that when he was put in the mausoleum some of the folks would be surprised. He further testified that Sandusky was buried in a single mausoleum.

Doctor Darroch testified that in 1939 Sandusky was injured and thereafter regularly came to the doctor’s office for treatment, for his throat, bladder and prostate, being brought there by appellant and her daughter, Mary Jane Kidd; that Sandusky always wanted appellant to be present during the treatment, even at times when Sandusky was pretty well stripped ; that appellant would instruct the doctor as to the treatments, and that on such occasions they treated each other like husband and wife.

Miss Long, a nurse, testified that in 1940 she was at appellant’s for about one week, and during that time appellant gave Sandusky good care; that she noticed Sandusky and appellant were fond of and kissed each other; and that she knew appellant by the name of “Mrs. Kidd.”

The foregoing is a fair statement of all the evidence offered or introduced by appellant.

The following is a fair statement of all the evidence admitted in rebuttal which we consider competent and material.

There was introduced in evidence a book containing the official record of the application for the marriage license in question. Blank places in the record were filled out by the deputy clerk immediately preceding the issuance of the license. Such application, so filled out, described “B. Sandusky” as then being aged 55 years, and Mrs. Iva Kidd as then being aged 49 years, and stated that Sandusky’s residence was Gfryehm, Kentucky, and that his occupation was that of a laborer.

A court reporter testified to the verbatim testimony of appellant in a proceeding had in the probate court on July 16, 1941, in the matter of the estate of Bochester Sandusky, an incompetent person, in which a citation had been issued against appellant. In such proceeding appellant testified that her name was Iva Kidd; that Sandusky was a very distant relative of hers, and came to her home in 1938 or 1939; that he was to pay her $10 a week for his board and washing ; that he had just come back from- Florida and had said he was coming to her house to stay. She was then asked whether she was ever married to Sandusky. On the advice of her attorney she at first refused to answer, but when the trial judge stated she would have to be committed for failure to answer, her attorney suggested that she answer, and she .then said, “No. Mr. Sandusky asked me to be his wife.” She was then asked where he asked her to be his wife, and she replied that she couldn’t just tell when and where.

The alleged antenuptial agreement dated February 7, 1934, hereinabove referred to was admitted in evidence over objection of appellant. It purported to bear the signatures of “R, Sandusky” and “Iva Kidd,” and stated in substance that she agreed to marry him and provide him a home when he required a home; that he would not reveal the marriage agreement, and that she would not reveal the “marriage contract publicly” before his death.

Such alleged will dated June 19, 1939, was admitted in evidence over the objection of appellant. It purported to bear the signature of “R. Sandusky” as testator, and the signatures of two witnesses. Such alleged will stated that the testator gave to his wife, “Iva Kidd Sandusky,” all of his personal property and certain real estate, and appointed his wife, “Iva Kidd Sandusky,” executrix thereof.

On the trial of the present case in the circuit court the then attorney for appellant stated, “For the purpose of the record and in view of the court’s other ruling, although we feel that none' of this is competent, we are willing at this time ... to stipulate for the purpose of the record in this case that such-alleged antenuptial agreement and such will dated June 19, 1939” do not bear the signature of Rochester Sandusky or R. Sandusky, “preserving our general objection, which the court said he would hear us on later.” He further stipulated that the alleged signatures of the two witnesses to such alleged will were not their genuine signatures.

It was shown that by deed dated December 12, 1938, appellant conveyed to a third party certain real estate in Vermilion county, which deed contained the recital that Mrs. Kidd was then a widow.

Mary Hafner testified that on January 4, 1941, she was the receiving clerk at the hospital at Danville at the time Sandusky was received as a patient at such hospital; that in the hospital office the witness, in the presence of appellant filled out the blank form used by the hospital in registering patients; that in filling out such form she used and wrote in the blank places the information furnished her by appellant. This form as so filled out by the witness was then admitted in evidence. It stated on its face that the marital status of Sandusky was “Single,” and that his nearest relative was his sister, Belle James.

Frank Boesch testified that he lived in Danville and knew Sandusky for about 70 years; that in the spring of 1939 appellant asked him to see if he could get Sandusky to come to her home, she saying she would take care of and keep Sandusky for $10 a week; that the two of them then went to see Sandusky, and appellant told Sandusky she would take him for $10 a week; that Sandusky said he would go if the witness would also go, so the next day the witness and Sandusky went to appellant’s home, where the witness and Sandusky occupied the same bedroom from about May 1st to August 1st, 1939.

Mrs. LeBoy testified by way of deposition that she was the manager of the Palmetto Inn at Boca Grande and knew Sandusky since 1921, since which time he was a guest during each winter at such hotel; that in 1939, while Sandusky was ill, he stayed at such hotel ; that appellant was also there for about two weeks, but Sandusky and appellant were not registered as man and wife and did not occupy the same room; that she never heard Sandusky call appellant his wife, and never heard appellant call him her husband; that one evening in 1939, when the witness .was about 15 feet distant, she overheard a part of a conversation between Sandusky and appellant, in which appellant asked Sandusky to let her get a magistrate so they could get married. The witness testified that she did not hear Sandusky’s reply.

Two grand nieces of Sandusky testified that Sandusky roomed and took his meals at their home from 1929 to 1936. That in February 1934, he was not in good health, and that they did not miss him from any meal on February 8, 1934.

Two witnesses testified that Mrs. Kidd did not attend the funeral of Sandusky.

In reviewing this case we will disregard the proof of appellees that a portion of the marriage record at Hopkinsville has been destroyed by some unknown person, there being no evidence tending to show who destroyed the same.

The first contention of appellant is that inasmuch as Belle S. James alleged in her amended petition for probate of the will dated August 20, 1934, that appellant was never married to Sandusky, and prayed therein that the probate court ascertain and declare the heirship of Sandusky, it follows that the burden of proof was on Belle S. James to prove such non-marriage. We do not agree with this contention. A party is not required to make plenary proof of a negative averment. It is enough that he introduces such evidence as, in the absence of all counter testimony, will afford reasonable ground for presuming that the allegation is true; and when this is done the onus probandi will be thrown on his adversary. (Vigus v. O’Bannon, 118 Ill. 334; Schmisseur v. Beatrie, 147 Ill. 210.) It is our opinion that, under the circumstances of this case, there was no presumption of marriage, and the burden was on the appellant to establish the alleged marriage. (See Gordon v. Gorden, 283 Ill. 182; 38 C. J. 321.)

It will be noted that the marriage license and the certificate of marriage referred to “R. Sandusky.” It will also be noted that the official records of the clerk’s office in Hopkinsville, Kentucky, described such “R. Sandusky” as then being aged 55 years, and his residence as being G-ryehm, Kentucky, whereas the Rochester Sandusky in question was then aged about 81 years and then resided in Danville, Illinois. Under these circumstances, it is our opinion that the burden of proving identity was on the appellant. (Bellinger v. Devine, 269 Ill. 72; In re Saunders, 245 Ill. App. 423.) We do not consider as being in point such cases as Schmisseur v. Beatrie, supra, wherein it is said that the burden of proving the invalidity of a marriage is on the one asserting invalidity. In the present case, the fact and not the validity of the alleged marriage is questioned.

In- attempting to explain why such record described “R. Sandusky” as being 55 instead of 81 years, appellant showed that the deputy clerk who actually ' issued the license and filled out the record was very deaf. Such deputy clerk testified but stated he had no memory of the particular couple. Inasmuch as the clerk saw both applicants at the time of making such record, the trial judge would be justified in not giving much weight to such explanation.

The case of the appellant is primarily and principally based on the testimony of Mrs. McGrath, P. E. Steger and George H. Smith. Necessarily, the testimony of the appellee is negative in character.

On cross-examination of Mrs. McGrath it was brought out that on January 10, 1941, she was divorced from McGrath, and a half hour later married one Grange; that she separated from Grange two weeks thereafter, since which time she and her former husband McGrath have been living in the same house, she intending to marry him when divorced from Grange. Although possibly true, it would seem unusual that on the day of the alleged marriage ceremony she would just happen to be in Hopkinsville, about 390 miles from her home in Chicago, meet her aunt on the street by chance and witness the alleged ceremony, and that" her uncle, Turner Brown, who lived at Danville, which was about 270 miles distant from Hopkinsville, would also apparently by chance be present at the ceremony.

It will be noted that she testified, in effect, that the wedding group were directed to the WatsonSteger office by some woman who pointed the way, while Smith testified he directed and accompanied the group to such office.

The witnesses Steger' and Smith never saw Sandusky before or after February 8, 1934. There was nothing to again call their attention to the alleged marriage until after Sandusky’s death seven years later. In the meantime Steger and Smith admittedly had witnessed a great many marriages by Watson.

Steger testified that on February 8, 1934, he noticed something wrong with Sandusky’s right eye; that it did not move, but he, Steger, couldn’t say whether the deceased had a glass eye; that it looked very peculiar. He also described Sandusky as being stooped a very little and stated that Sandusky seemed a little hard of hearing. By way of impeachment it was shown that on August 27, 1941, when interviewed-by appellees’ attorneys, Steger then stated that Sandusky was not stooped, had good eyesight and no peculiarities about his eyes and had good hearing. As a matter of fact the testimony of both sides shows that on February 8, 1934, Sandusky was somewhat stooped, had lost the use of one eye, that the lid of such eye drooped, that the defect in such eye was very noticeable and that Sandusky was then very deaf.

On cross-examination Smith stated that nothing had called his attention to this marriage from the time of the ceremony until a few weeks before the trial of the present case, when he was in the office of the marriage license clerk in Hopkinsville and then by chance overheard a Mr. Hardin (one of the attorneys for appellant in the trial court) talking with the clerk of the court, and overheard the name of Sandusky spoken by Hardin in connection with some lawsuit, and that he, Smith, before he was asked anything by Hardin, then stepped up to and told Hardin that he, Smith, evidently knew the couple in question; that he did not remember the name, but he talked to Hardin, and he testified “I did all I could to assist him.” Obviously, Smith was an unusual witness.

It is claimed by appellant that she and Sandusky were married for about seven years, yet she produced only the witnesses Monroe, Tables and Yoyles to show any statement or conduct by Sandusky suggesting or indicating such marriage. Mrs. Tables helped with the house work in appellant’s home practically all of the time while Sandusky lived there, yet the only conversation which she claims to have overheard indicating a marriage, was, she stated, a joking conversation. Mrs. Monroe was evidently very friendly to the appellant, and visited at appellant’s home in 1939 and each spring thereafter. She also saw appellant and Sandusky in Florida. Mrs. Monroe testified to only one conversation indicating marriage. As to the testimony of Yoyles that Sandusky told him that when he, Sandusky, was put in the mausoleum some of the folks would be surprised, we consider such statement to be of but little if any weight as indicating any marriage.

Sandusky and appellant, whatever their relations were in fact; never lived together publicly as husband and wife. As far as the record shows he never introduced her as his wife, she never introduced him as her husband, and they were not known or looked upon as husband and wife by their friends and neighbors. While in Florida they did not always stay at the same hotel, and when they did stay at the same hotel they never occupied the same room and did not register as husband and wife.

The failure of a litigant to call a witness within the control of such litigant is a proper subject of comment. (Lebanon Coal & Machine Ass'n v. Zerwick, 77 Ill. App. 486; Zimmerman v. Zimmerman, 149 Ill. App. 231, and Consolidated Coal Co. v. Scheiber, 167 Ill. 539.) It may be fairly open to doubt whether this rule of law applies to the failure of appellant to call as witnesses Mrs. P. E. Steger, Clark Steger, her son, and Turner Brown, because it might be said that they were not under the control of the appellant, and it is because of this that we have disregarded the fact that such witnesses were not called to testify. However, we believe such rule of law properly applies to the failure of the appellant tó call her daughter, Mary Jane Kidd, to testify as a witness. Mary Jane Kidd was a high school teacher. Apparently she lived in the home of appellant at all times after the alleged ceremony. Normally she would have known something about the true facts. We believe it is a reasonable inference that such daughter heard no admission by Sandusky, and saw no conduct between Sandusky and her mother, indicating, marriage. When neither party calls an available witness, whatever presumption will be indulged in from the failure to call such witness, will be against the party to whose interest such witness would most likely incline, and failure to produce such witness is, in such case, a proper subject of comment. (Zimmerman v. Zimmerman, supra.)

Mrs. Kidd would have been a competent witness to testify as to her testimony in the probate court proceeding, and as to what she was alleged to have said to the receiving clerk at the hospital when Sandusky was received at the hospital, and as to any facts occurring after the death of Sandusky, such as her failure to attend the funeral (Ill. Rev. Stat., ch. 51, sec. 2 [Jones Ill. Stats. Ann. 107.068]) but she was not called as a witness. She did not deny or attempt to explain her testimony in the probate court that Sandusky was merely a boarder at her home, and that they were not married, and did not deny or attempt to explain the information given by her to the receiving clerk at the hospital, wherein she told the receiving clerk in 1941 that Sandusky was then a single person and that his then nearest relative was his sister Belle James.

The only explanation now given by her counsel for her so testifying in the probate court is that Sandusky did not .want his relatives to know of the marriage and that there was an antenuptial agreement between Sandusky and appellant that the marriage would be kept secret. The claim he did not want the marriage known, is a mere inference and not based on any direct testimony. As to an alleged antenuptial agreement, the record shows no such agreement in fact.

Appellant contends that the trial court erred in admitting in evidence such alleged antenuptial agreement and such alleged will, and erred in admitting proof as to the signatures on such instruments not being genuine, and in so doing argues that there is no evidence tending to show that the signatures on such instruments were forged, and that all of such evidence was incompetent and immaterial on the issue of heir-ship. We consider such evidence was competent and material. Whether such signatures were forged or how they were placed on such instruments, the fact remains that such instruments were filed in the probate court by the appellant in connection with her petition for admission to probate of the alleged will dated June 19, 1934, and appellant admits the signatures on such instruments were not genuine. By filing such instruments in the probate court the appellant vouched for their genuineness. Each instrument, if genuine, would have tended to prove the alleged marriage, and in the absence of any explanation, we believe it is reasonable to infer that each instrument was prepared by or with the approval of the appellant, and later filed in the probate court, for the purpose of proving the alleged marriage, so that she could get at least a substantial share of the estate of the decedent. The fabrication of evidence is calculated to raise a presumption against the party who has recourse to such practice, not less than when evidence has been suppressed or withheld. (Winchell v. Edwards, 57 Ill. 41.)

It is our opinion that there was ample evidence in the record to justify the trial court in finding that the appellant and Sandusky were never married, and that Sandusky left Belle James, his sister, and certain nieces and nephews as his only heirs. Almost all of" the evidence in this case was heard by the* chancellor in open court. Where the chancellor receives the evidence in open court and sees the witnesses and hears them testify, he has a better opportunity for determining the weight and credit that should be given their testimony than does a court of review, and under such circumstances a court of review will not disturb the findings of the chancellor unless manifestly and palpably wrong, and this is true even though the court of review might be inclined to find otherwise had it been placed in the position of the trial court upon the trial of the case. (Hall v. Pittenger, 365 Ill. 135; Widmayer v. Davis, 231 Ill. 42.)

The judgment of the circuit court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Hayes

license: Public Domain

text:
    Fan M. Reed, Administratrix of Estate of Ralph A. Reed, Deceased, Appellant, v. Marie Landau, Administratrix of Estate of Otto Landau, Deceased, Appellee.
    Gen. No. 9,390.

      Heard in this court at the October term, 1943.
    Opinion filed October 25, 1943.
    Rehearing denied January 17, 1944.
    Craig & Craig, of Mattoon, for appellant.
    Hal M. Stone, of Bloomington, and Lindley, Pacey & Pacey, of Gibson City, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

This case arises out of an automobile collision which occurred on October 30,1941 about 4:30 p. m. in Ford county, just north of Gibson City, Illinois. Ralph Reed was riding in a car owned and operated by William H. Dykes, which car was traveling in a southerly direction on State Route No. 47. Coming in a northerly direction were two. cars, — one driven by Sam Bunting, Jr., and following it another car owned and operated by Otto Landau. Landau passed the Bunting-car and returned to his own lane on the pavement and proceeded in that lane for some five to fifteen rods. His car then swerved into the opposite lane of traffic where it collided with the car driven by Dykes in which Reed was riding. Reed was seriously injured as a result of the accident and later died. This action was brought by his administratrix against the administratrix of Landau’s estate in the circuit court of Ford county. A trial was had before a jury and at the close of plaintiff’s case the court, on motion of the defendant, directed a verdict for defendant and entered judgment thereon. Plaintiff has appealed to this court.

The sole issue in this case is whether there was, as a matter of law, sufficient evidence to support a finding- by a jury that defendant’s intestate was negligent. It appears from the record that prior to the time of the accident it had been raining; that the pavement was wet, and that visibility was fair to good, although there was a slight drizzle. Both Dykes and Landau had their car lights on and both were traveling between 45 to 50 miles per hour. Dykes and Bunting who were eyewitnesses both testified that the Landau car skid into the opposite lane of travel but neither could establish the cause of the skidding. Plaintiff contends that the speed at which defendant’s intestate was traveling on a wet pavement was sufficient evidence of negligence to submit the case to the jury and further argues that negligence can be inferred under the doctrine of res ipsa loquitur.

The question before the trial judge on the motion to direct a verdict and before us on this appeal is not whether defendant’s intestate was guilty of negligence but rather whether a jury of reasonable men and women could properly find him negligent on the evidence introduced by plaintiff.

We have recently summarized the cases and set forth the rule on this question in Carrell v. New York Cent. R. Co., 317 Ill. App. 481, 47 N. E. (2d) 130. We there said: “Upon a motion of the defendant for a directed verdict, the court can only determine whether or not there was any evidence, which, with all reasonable inferences therefrom, viewed in the light most favorable to the plaintiff, tended to prove the material allegations of the complaint or some count thereof. If there was such evidence, it became the duty of the trial court to deny the defendant’s motion for a directed verdict and' to submit controverted issues of fact to the jury, subject only to the giving of proper written instructions by the court as to the law applicable thereto. A motion to direct a verdict should be allowed, if, when all the evidence is considered, with all reasonable inferences to be drawn therefrom in its aspect most favorable to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case.” Applying this rule to the present case we do not believe that there was such a failure of proof. Defendant’s intestate was under a duty to exercise reasonable care in driving his car. While the jury might properly find that he did so under the circumstances of this case, we do not believe that the trial court was justified in so holding as a matter of law. The degree of care and the rate of speed required of a driver of a car on a wet pavement at dusk is a question peculiarly in the province of the jury to determine.

Because we believe the question of negligence was raised by plaintiff’s evidence and should properly have been passed upon by a jury we do not find it necessary to determine whether the doctrine of res ipsa loquitur applies here.

The judgment of the circuit court of Ford county is reversed and the cause is remanded to that court for a new trial.

jReversed and remanded.


author: Mr. Justice Riess

text:
    Rose Smith, Plaintiff, v. Marian Harness et al., Defendants. Intervening Petition of John A. Johnson et al., Appellants, v. County Treasurer of Logan County, Illinois, Appellee.
    Gen. No. 9,378.

      Heard in this court at the October term, 1943.
    Opinion filed December 7, 1943.
    Rehearing denied January 17, 1944.
    Sumner C. Palmer, of Chicago, for appellants.
    No appearance for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

Among other provisions, the decree found and adjudged the sum of $8,767.47 to be the distributive share and interest accruing to the four children of Levina Harness Johnson, a surviving sister, and “blood relative” of Elias Harness Johnson who had departed this life prior to January 8, 1917, to be payable as follows: to three of the surviving children of Levina Harness Johnson, vis: John A. Johnson, George F. Johnson and Jennie McClelland, each a one-fourth share thereof, being $2,191.87, which respective amounts were so duly paid and distributed! by the master in chancery to each of them under the decree in said proceeding. The remaining one fourth or $2,191.87 was therein decreed to be due and payable to the fourth child of Levina Harness Johnson, namely: Susan Kilgore, nee Johnson (who had married Laban Kilgore), if living, or to her unknown heirs, if deceased. By a subsequent order of said court entered on January 4, 1924, the master in chancery paid said distributive share of $2,191.87 to the County Treasurer of Logan County; the order reciting that the court reserved express power to finally determine the rightful claimants to said distributive share in the future, and that said fund be held subject to further order of court.

The appellants’ petition prayed that the final order of distribution entered on June 29, 1917 be now modified or “amended” so as to decree payment to the petitioners as the three and only living children of Levina Johnson, deceased, or find that Susan Kilgore was presumptively or legally dead 13 years before the death of Martha Jane Harness without issue and was not entitled to any share in the estate of Elias Harness and that therefore said funds in the hands of the County Treasurer belonged to the petitioners, and further prays for an order directing that one third of said $2,191.87 be paid to petitioners, John A. Johnson; one third to George F. Johnson and the remaining one third to the children of Mrs. Jennie McClelland, since deceased. They expressly allege that “your petitioners claim this fund, not as heirs of Susan Kilgore, but as heirs of Levina Johnson, and as being a part of the money belonging to them and which should have come to them on the original distribution of the Elias Harness estate.”

Concerning the facts, as recited by the chancellor in his opinion below, “The petitioners in this case have offered the testimony taken in the partition suit on the 16th day of June A. D., 1917. The testimony taken in said suit relating to the interest of Susan Kilgore was that she had been unheard of for about twenty years. That at the time she absented herself she was residing with her husband on a farm in Jamestown, Ohio; that at that time she was married to one Laban Kilgore, who was still living at the time of the testimony in the partition suit, at Jeffersonville, Ohio; that no one ever knew of her having any children after she left Jamestown; that there had been no administration had on her estate; it was not known whether she ever procured a divorce; that her mother had died; that her father had died four or five years before Mrs. Tuttle, the Mrs. Tuttle referred to in this brief testimony is Martha J. Harness, wife of Elias Harness, hereinabove referred to, and who had remarried after the death of Elias Harness; and that Susie Kilgore at the time of the testimony on June 16, 1917 had no other brothers and sisters than John A. Johnson, George F. Johnson, two of the petitioners herein and Jennie McClelland, who was the mother of the remaining three petitioners herein.” . . . “There is no further proof in this record now than there was at the time the court entered the decree except by the public administrator of Logan county, which is very fragmentary, merely states that as public administrator he did have occasion to investigate the heirship of Susan Kilgore and that from such investigation that he finds that her heirs were petitioners John A. Johnson, George F. Johnson and Jennie McClelland, but that Jennie McClelland is dead leaving petitioners Madge Johnson, Ethel Tryner and Pearl McClelland. The administration is still pending in Logan county, the funds have never been turned over to the administrator because no one was ready to offer a bond as provided for in paragraph 78, chapter 3, Illinois Revised Stat-' utes 1939. This petition and the theory upon which their rights are asserted is predicated on the fact that they are unwilling or unable to give or to procure a bond as provided for in the above section.”

While the continuous absence of a person from his home or place of residence for a period of seven years, during which time nothing is heard from or concerning him, after diligent inquiry to learn of his whereabouts, raises a presumption of death for all legal purposes, this presumption is not conclusive, and the law cannot deprive an absentee of his estate if he is alive. A decree which deprives a living person of his interest in land on the theory that he is presumed to be dead is void as to such person and not merely erroneous. Eddy v. Eddy, 302 Ill. 446, 134 N. E. 801; Donovan v. Major, 253 Ill. 179, 97 N. E. 231. The courts of a State having jurisdiction of property within such State may provide for administration of an estate in a probate court where there is a presumption of death, under reasonable regulations and adequate protection of the property rights of the absentee, if it should turn out that he was alive. Eddy v. Eddy, supra; Stevenson v. Montgomery, 263 Ill. 93, 104 N. E. 1075; Cunnius v. Reading School District, 198 U. S. 458. In Illinois, such a provision was enacted by the legislature as section 78 of the Administration Act of 1911, and was in effect at the time of the entry of the decrees sought to be modified or “amended” by the appellants herein. Prior to the enactment of that act, administration of a living man’s estate was held to be absolutely void. Thomas v. People, 107 Ill. 517, 522; Salomon v. People, 191 Ill. 290, 294, 61 N. E. 83, cited in Eddy v. Eddy, supra, p. 453. That section, making provision to secure the property to the person presumed to be dead in case he should be alive, and section 21, thereof providing the form of letters showing that the administration was based on a presumption of death, obviated the objection to administration in such a case. Laws of 1911, p. 2; Stevenson v. Montgomery, supra; Eddy v. Eddy, supra. The law presumes that a person shown to be alive at a given time remains alive until the contrary is proved or a different presumption arises. The presumption of death which arises is not conclusive, and the law cannot deprive an absentee of his estate if he is alive. Cunnius v. Reading School District, supra. The same principle and the protection of the same constitutional provision necessarily applies to any similar proceeding in a court. Eddy v. Eddy, supra. It was therein held that a decree which contained no provision for the protection of the property rights of an absentee heir, if he should be living, but found from such unexplained absence for seven years that he was dead, unmarried and without descendants and transferred his estate to his brothers, sisters, nephews and nieces, without proof of actual death, rendered the decree void as against the subsequent claims of any such absent heir, between the parties to such decree. A similar holding by the chancellor herein, pursuant to the prayer and contentions of the appellants, that by the unexplained absence of Susan Kilgore for more than seven years, she had forfeited and became deprived of all right or interest as one of the four children of Levina Harness Johnson, deceased, would render such decree void as against the interest of said Susan Kilgore, her children or heirs, if living.' The trial court properly held that the appellants were not entitled to the relief so prayed in the petition.

It further appears that the petitioners had in 1917 accepted payment of the respective distributive shares and interests which were then found and decreed by the court to be due and payable to them as three of the four children and heirs of Levina Johnson, deceased. The same decretal order which so determined and set forth their respective shares and interests in said distributive fund, also found and decreed a similar fourth interest to be vested in their sister, Susan Kilgore, if living or to her heirs, if deceased. The decree so determining their respective interests, was, as we have heretofore indicated, a final and appealable order which was never modified, set aside nor appealed from. On the contrary, it clearly appears from the record that the petitioners received and accepted their several distributive shares and interests as determined and adjudicated by the court in that decree, and upon that issue, the decree became res adjudicata; both as to the court and the parties to this proceeding. The appellants are now estopped in equity from relitigating and asserting a new, different and conflicting theory in relation thereto, vis: that they now claim not as heirs of Susan Kilgore who is presumptively deceased, but as heirs of Elias Harness, to the exclusion of all other heirs or possible claimants. It is not a valid contention to now say that the original decree might or should have found the source and extent of the petitioners’ interests to be in accordance with their present contentions and that said decree may therefore be now changed or “amended.” It did not so find, and any decree undertaking to deprive or failing to protect the interests of a missing heir on the ground that he is presumptively dead, would not have been merely erroneous but void as between the parties to the proceeding. Eddy v. Eddy, 302 Ill. 446, 134 N. E. 801.

The further contention of appellants that since the petitioners are nonresidents of Illinois and are alleged to be financially unable to comply with the provisions of the Administration Act or any order of a court of competent jurisdiction requiring them to give bond to protect the interests of absentee heirs, if living, would entail an undue hardship upon them and should exempt them from such requirements or provisions of the statute, is wholly immaterial and without merit. A decree so providing would, as we have indicated, be void as to such interests. Either as a matter of equity or under the provisions of the statute which requires a distributee to give bond with sufficient surety “conditioned to refund and pay, on demand, to such presumed decedent, if alive, or to any other person lawfully entitled, all money and other property or assets received by such distributee as heir as aforesaid,” such security should in any event be réquired under the facts disclosed by the record herein. Otherwise, after the absence of any heir for seven or more years, claimants could collect and dissipate estates without protection to the absent heir. To meet this contingency, the above statute providing for. the administration of the estate of an heir presumed in law to be deceased, with proper safeguards, was enacted. In the case of Donovan v. Major, supra, wherein administration under the provisions of the above statute based upon the alleged presumptive death of one Will C. Wright, a missing heir, following more than seven years of unexplained absence, was in question, our Supreme Court, among other recitals, at page 184, said: “When the presumption of death arises the absent person is presumed to be dead for all purposes and in all Courts.” . . . “It is true that if he shall afterward appear this grant of administration will be of no validity, but until that event does happen the administration is valid and binding.” . . . “The trustees should not, however, be obliged to run the risk of the future appearance of Will C. Wright, and in any decree which may be rendered for the payment of this fund to his administrator, security should be required for their indemnification against loss by reason of any claim or demand of Will C. Wright or of any person claiming through or under him.” The above principle applies with equal force to the facts disclosed by the record herein. Stevenson v. Montgomery, 263 Ill. 93, 104 N. E. 1075.

It was further held by the trial court that the intervening petitioners, by virtue of the foregoing provisions of the Administration Act, were given a complete and adequate remedy at law which they were required to assert, unless it appeared that such remedy was not available to them, and that the original decree of the court impliedly recognized the applicable provisions of that statute in the absence of proof of the actual death of Susan Kilgore. In so holding under the record herein, the trial court committed no error. The appellants were not entitled to the specific relief prayed for in their petition.

For reasons which we have fully set forth in this opinion, we hold that under the allegations and prayer of the petition and the stipulation of facts and evidence appearing in the record before us, the petitioners, appellants herein, have failed to sustain their cause of action and that the chancellor below did not err in dismissing their intervening petition for want of equity. The order and decree of the circuit court of Logan county is therefore affirmed.

Decree affirmed.


author: Mr. Presiding Justice Friend

text:
    Jamil T. La Ham, Appellee, v. Sterling Canning Company, Inc. et al., Appellants. John C. Thrall et al., Other Defendants.
    Gen. No. 42,734.
    Heard in the second division of this court for the first district at the April term, 1943.
    Opinion filed December 14, 1943.
    Sheldon & Brown, of Sterling, and Dent, Weichelt & Hampton, of Chicago, for appellants.
    David & Fainman, of Chicago, for appellee; Sigmund W. David and Jerome L. Abrahams, both of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Jamil T. La Ham, a resident of Winneconne, Wisconsin, filed his complaint in chancery in the circuit court of Cook county against Sterling Canning Company, Inc., an Illinois corporation, having its principal, office and registered agent in Sterling, Whiteside county, Illinois, John W. and John C. Thrall, residents of Winneconne, Wisconsin, Douglas H. Thrall, a resident of Bock Falls, Whiteside county, Illinois, and John and Frank Schrader, residents of Bush Lake, Wisconsin, seeking to establish himself as the owner of one third of the shares of the Sterling Canning Company, alleged to have been acquired by purchase with funds contributed in equal parts by him and John W. and Douglas H. Thrall pursuant to an oral agreement entered into in Winneconne, Wisconsin, and praying for multiple relief, including liquidation of the canning company, an examination of the books and records of the corporation, an accounting, the recovery from certain of the individual defendants of damages on account of alleged misappropriation or waste of assets, the appointment of a receiver, and the issuance of a temporary injunction.

Although none of the defendants resides in Cook county, plaintiff sought to invoke the jurisdiction of the court pursuant to section 7 of the Civil Practice Act (Ill. Rev. Stat. 1943, ch. 110, par. 131 [Jones Ill. Stats. Ann. 104.007]), which provides that every civil action shall be commenced in the county where one or more defendants reside or “in which the transaction or some part thereof occurred out of which the cause of action arose.” None of the defendants was served with summons, but they were notified to appear in court on April 1, 1943 on plaintiff’s motion for the entry of an order requiring the Thralls to answer sub-paragraphs 1 to 9 of paragraph (a) of the complaint pertaining to that part of the transaction by which he and the Thralls agreed orally to purchase the Sterling Canning Company, a lucrative enterprise alleged to be capable of earning $100,000 annually, and acquire each one-third interest therein through the investment of equal amounts by each of the parties; also requiring defendants to produce the books and records of the defendant corporation in Cook county for examination and audit by plaintiff; restraining defendants as prayed in the complaint; and asking for the appointment of a receiver pendente lite of the defendant corporation.

In response to the notice the canning company, John W. and Douglas H. Thrall appeared specially to contest the jurisdiction of the court, and filed their respective motions to dismiss the complaint on the ground that the principal office of the canning company was in Whiteside county, Illinois, and not in Cook county, that it was not doing business and never had done business in Cook county, that the court did not have power to liquidate the business and assets of the canning company, that none of the defendants resided in Cook county, and that no part of the transaction out of which plaintiff’s alleged cause of action arose occurred within Cook county. Affidavits filed in support of the motion set forth in detail the several residences of the individual defendants in Illinois and Wisconsin, outside of Cook county, and alleged that the canning company does not have or maintain any office, warehouse, stock of merchandise or agent in Cook county, is not listed in any telephone directory in Cook county and is not now doing and has never done business in Cook county; that no one of the defendants resides within Cook county; that no part of the transaction out of which plaintiff alleges his cause of action arose occurred in Cook county; that no transaction, verbal or written, or undertaking or conference was ever had by and between plaintiff and any one or more of the defendants in relation to the subject matter of this suit in Cook county, but that all of them, in so far as they did occur, took place at either Sterling, Illinois or Winneconne, Wisconsin.

When the cause came on for hearing on April 1, 1943 upon plaintiff’s several motions and the motion of defendants, “appearing specially,” to dismiss the complaint, an order was entered “Upon motion of defendants, . . . that said motions and each of them” be continued to April 5, 1943 and at the same time leave was granted to Sterling Canning Company and the Thralls, “appearing specially,” to file additional affidavits in support of their respective-motions to dismiss the complaint. Thereafter, on April 5, 1943, John W. and Douglas H. Thrall filed their additional affidavits, supported by documentary evidence, setting forth the various steps taken with respect to the incorporation of the canning company, the several meetings had in pursuance of the plan, the times and places where the parties met, outside of Cook county, the subscriptions for stock and the sums paid on account thereof, together with a denial that plaintiff ever claimed he should own or did own a one-third interest in the canning company or shares to be issued by it, until filing his suit.

On April 5, 1943, the court, after reciting that defendants had appeared specially for the sole and only purpose of contesting the jurisdiction of the court, to dismiss plaintiff’s action, supported by their several affidavits, ruled that it had jurisdiction of the subject matter because a part of the transaction out of which plaintiff’s cause of action arose, occurred in Cook county, as well as “of all those defendants who will appear generally or will legally be served with process of this court,” and ordered that the motions of defendants to dismiss the complaint be denied.

Ho disposition was made of plaintiff’s several motions on April 5, but on April 9, 1943, the chancellor entered an order directing the Thralls to answer, under oath, the matters set forth in subparagraphs 1 to 9 of paragraph (a) of the complaint, directing them on a day certain to produce the books and records of the canning company before a master in chancery for examination and audit, and issued a temporary injunction as prayed for in the complaint.

Thereafter, counsel served notice that on April 20, 1943 they would ‘ present the motion in writing of the defendants, . . . appearing specially, to vacate the [restraining] order” theretofore entered on April 9, 1943, specifically setting forth, inter alia, that the court did not “at the time such order was entered, . . . nor has it now, jurisdiction of either the subject matter . . . or of any of the defendants. ” The motion to vacate the injunction was denied by written order which again recited that “said defendants having theretofore appeared specially only to contest the jurisdiction of this court,” and at the same time, “on order of the court” the time for producing and examining defendants’ books and records was extended to May 13, 1943. Defendants appeal from the interlocutory injunctional order and the denial of their motion to vacate it.

Plaintiff first takes the position that defendants’ course of action as hereinbefore set forth, constituted a general appearance by them and submission to the jurisdiction of the court (1) because the order of April 1,1943, continuing the hearing on plaintiff’s motion for an injunction and on defendants’ motion to dismiss the cause for lack of jurisdiction, recites that the continuance was on motion of defendants, and (2) because the subsequent motion to dissolve the injunction order on April 20, 1943, was made by attorneys instead of by the defendants in their own proper persons. It must be conceded, of course, that on April 1, 1943 the defendants limited their appearances to the purpose of objecting to the jurisdiction of the court, and the record indicates that the motions to dismiss, to vacate, and in fact every motion filed by them in the cause, as well as the orders entered by the court, contain the statement that defendants appeared specially and for the purpose of objecting to the jurisdiction of the court. The continuance order of April 1, upon which plaintiff bases his contention, recites that defendants appeared specially, and clearly discloses that the obvious purpose of the continuance was to enable defendants to prepare and submit additional affidavits showing the lack of jurisdiction of the court. The motion to vacate, which was made by attorneys and not per se, states that defendants appeared specially and alleges constitutional and other reasons why the court did not have jurisdiction of the cause. It is thus apparent that all proceedings involved the defendants’ contention of lack of jurisdiction, and that they at all times expressed their unwillingness to submit to the jurisdiction of the court and urged on every occasion on which they appeared that the court lacked jurisdiction.

Plaintiff relies on Tagert v. Fletcher, 232 Ill. 197; Kelly v. Brown, 310 Ill. 319; In re Estate of Bransfield, 292 Ill. App. 206, and other decisions, to support his argument that defendants’ actions constituted a general appearance. However, in the cases cited, suit was brought in the proper county, but the several defendants challenged the jurisdiction of the court either because they had not yet been served with process or because of some alleged defect in the manner of service. Their motions were of a dilatory nature, and if they had been sustained the result would have been merely to suspend the proceedings until process could be served. In the ease at bar defendants’ motions were not dilatory. They challenged the jurisdiction of the court to enter any order, except for dismissal, and if sustained, would have prevented the entry of the restraining order from which they appeal. We are fully aware of decisions in Illinois which hold that a party may submit to the jurisdiction of the court by action which constitutes a general appearance, but in this proceeding defendants constantly denied that the court had jurisdiction of either their persons or the subject matter, and it would be a denial of their right to insist that they be sued in the place provided by statute to hold that they were divested of that right for either of the reasons assigned.

The more important question presented is whether, under the allegations of the complaint and the affidavits filed in support of defendants’ motions to dismiss the cause, the court properly ruled that that part of the transaction out of which the plaintiff’s cause of action arose occurred in Cook county. If the chancellor ’s ruling was correct the question heretofore considered assumes secondary importance because the statute provides, in the alternative, that civil actions shall be commenced in the county where one or more of the defendants reside or in which the "transaction or some part thereof occurred out of which the cause of action arose. Conversely, if the chancellor ruled erroneously it would follow that the court lacked jurisdiction because none of the defendants resides within Cook county, and therefore it had no power to enjoin them. Counsel agree that the “transaction” feature of section 7- does not appear in the statutes of any other State. It was evidently the draftsman’s concept of a proper basis for venue. Although the scope and meaning of the word “transaction” has frequently had judicial consideration in other States, and under other statutes, none of. the cases cited by counsel is pertinent to the circumstances here presented. Therefore, the question must be resolved through an analysis of the pleadings to determine what the transaction was and whether any part thereof out of which the cause of action arose, occurred in Cook county.

From the salient allegations of the complaint, which consists of some 50 pages, it appears that prior to April 1942 John W. and Douglas H. Thrall, father and son, were the principal officers, directors and stockholders of the Wisconsin Canning Company at Winneconne, Wisconsin. Plaintiff, who was a practicing physician in that city, had known them for years and had confidence in their integrity and good faith. Early in April 1942 the Thralls informed plaintiff of their prior negotiations in Chicago with the National Tea Company for the purchase of a factory and equipment in Sterling, Illinois, owned by the Sterling Food Products Company, a wholly owned subsidiary of National Tea Company. They believed the plant could he purchased for about $45,000; that the purchase money could be obtained by loan from the Crown Can Company on certain conditions; that the factory could be operated with an initial capital of approximately $24,000; and that the business, if efficiently operated, would yield a net profit of at least $100,000 a year. They told plaintiff they could not consummate the transaction themselves, but needed a responsible third person to obtain the loan from the Crown Can Company and to provide sufficient capital to operate the business, and proposed that plaintiff join with them in the enterprise and invest $8,000 as his share; that if he would do so, each of them would invest an equal sum and have and own a one-third interest in the plant to be purchased and in the canning business to be operated in Sterling, in which they would share the profits and losses equally, to the exclusion of any other person. Pursuant to the preliminary agreement, which was alleged to have been made in Winneconne, the Thralls, acting as agents for themselves and plaintiff, entered into a contract with the Sterling Food Products Company as seller and plaintiff and defendants as buyers, for the sale and purchase of the plant for $45,000. A down payment was made, all negotiations were carried on, and the contract was executed on the part of the seller, in Chicago. The agreement provided for the conveyance of title to plaintiff and defendants, the final purchase payment to be made at the office of the National Tea Company in Chicago, and the deed to the plant was to be delivered to the purchasers in Chicago. Before the deed was delivered, defendants and plaintiff had modified their enterprise to the extent that a corporation, rather than a copartnership, was to be formed, and the factory was to be owned and the business operated by the corporation. The "Sterling Food Products Company was authorized by plaintiff and defendants to make the deed to the corporation. Late in April the Thralls informed plaintiff that the business would not commence operations until August, and therefore it would not need $24,000 as capital, but that $15,000 would suffice; that each of the Thralls was putting in $5,000, and plaintiff should contribute $5,000 instead of $8,000. Plaintiff contributed $4,000 on April 30,- and an additional $1,000 on May 12, and has at all times been ready and able to pay the additional $3,000, as was originally agreed upon, or more if necessary, but has never been called upon to do so. Subsequently, when the Thralls wanted to get some of their personal friends into the business, to which plaintiff objected, he offered to put in another $5,000, but the Thralls refused his offer. Plaintiff alleged that when he delivered his checks for $5,000 it was agreed that he and each of the Thralls were to receive one third of all shares issued by the defendant corporation, that no further shares were to be issued until further equal contributions had been made by the parties, and that at all times since April 1942, until the end of November 1942, he was assured by the Thralls that he was, and was treated by them as, the owner of one-third interest in the corporation and one third of its stock.

It thus appears that the only part of the transaction alleged to have occurred in Cook county relates to the acquisition of 'the canning company, where negotiations between the Thralls on behalf of themselves and plaintiff took place, where draft of the contract for purchase of the factory was prepared, the first payment made, and where under the provisions of the agreement the purchase of' the plant was to be consummated by payment of the balance and delivery of the deed, which was signed and acknowledged in Chicago. But plaintiff does not complain of anything that occurred up to that stage of the transaction, and he does not allege that any of the wrongful acts or acts in violation of his rights occurred in Cook county. The canning company was acquired in pursuance of the oral agreement entered into in Winneconne and in strict conformity with his voluntary undertaking. At that point he had no complaint, and therefore no cause of action. The transactions of which he feels aggrieved and out of which he alleges his cause of action arose, all followed the purchase of the food products company, and none of them or any part thereof occurred in Cook county. Without exception, they took place either in Sterling, Illinois or Winneconne, Wisconsin.

The gravamen of the complaint which gave rise to an alleged cause of action is that after the canning company had been acquired, the articles of incorporation for the new enterprise, which plaintiff signed but says he did not read and would not have understood if he had because he was unfamiliar with business practices, violated his oral agreement with the Thralls so that the structure of the corporation deprived him of his one-third interest in the business, and permitted outsiders who were friends or relatives of the Thralls to acquire stock in the company contrary to repeated assurances given him that he and the Thralls would be the sole owners of the corporation and would share in the profits and losses equally to the exclusion of any other person; that defendants and their attorneys assumed full control of the corporate records and books and operated the business without reference to their agreement with him, in violation of his rights and for the purpose of siphoning off the profits to themselves and obtaining stock and unconscionable salaries to which they were not entitled; that instead of becoming the owner of one third of the shares of the corporation, he ultimately learned in November 1942 that the stock had been apportioned as follows: John W. Thrall, 180 shares, Douglas H. Thrall, 80 shares, John and Frank Schrader, 50 shares each, and 50 shares to himself; that of the 180 shares apportioned to John W. Thrall, 100 shares thereof had been taken by him for alleged services rendered to the corporation; that the salaries of the Thralls as officers and executives had been greatly increased beyond his original agreement with them, and in addition thereto they had each been paid some $700, presumably for fees as directors for 1942; that over his objection the Thralls entered into an agreement with a finance company for additional working capital to carry out a contract with the government for canning beef stew, by which the finance company was to receive, in addition to interest on the money advanced, a large share of the profits on the contract, thus diverting a considerable part of the earnings of the company from the rightful owners thereof; that also in November 1942, over his objection, the Thralls proposed leasing the plant to another corporation known as John W. Thrall and Sons, and when plaintiff inquired as to the purpose of the proposed plans, they informed him that they and their family owned complete control of the Sterling Products Company and intended to do as they pleased with the corporation; that in response to his protest and his reminder that he owned a one-third interest in the defendant corporation, the Thralls said 1 ‘ That has been changed”; that these various acts constituted a conspiracy on the part of the Thralls for the purpose of exploiting the corporation for their own personal benefit and that of their relatives and friends and to deprive plaintiff of his just and rightful share of the profits of the company; that the defendant corporation, after three months’ operation, had made a gross profit of at least $75,000 and a net profit of approximately $35,000; that ultimately they tendered the $5,000 which he had paid on account of his stock subscription, together with his salary as vice president, at the same time advising him that he had failed to pay for the full amount of stock for which he had subscribed and was therefore no longer a shareholder in the corporation; that he then, for the first time, consulted counsel, and after certain correspondence between the attorneys for the respective parties, he lodged his complaint in the circuit court of Cook county.

Plaintiff argues that the “transaction’.’ embraces the entire series of agreements, dealings and acts from the time the preliminary contract was made until defendants attempted to rescind his status as a stockholder, and his counsel say that without the acquisition of the plant in Sterling, the oral agreement could not have been consummated and none of the parties would have acquired any rights against the others; therefore, they contend that no separate act, but all of them collectively, constituted the transaction, and if any of them occurred in Cook county the court had jurisdiction within contemplation of the statute. If that were true a party could fix venue at any place where an incident preliminary to the acts or omissions upon which a cause of action is based, might have occurred, and if a series of events or so-called transactions in one county had been most amicable but had in later years given rise to a cause of action through acts committed in another county,, plaintiff could nevertheless fix the venue in the former county by contending that the relationship throughout the years constituted one transaction. We do not think it was the intention of the legislature to fix venue at places where preliminary or incidental events occurred or where acts of inducement, as distinguished from the component facts of a cause of action, may have taken place. The word “transaction” in the statute is modified by the phrase “out of which the cause of action arose” and if no cause of action can be said to have arisen out of any of the events that occurred in Cook county, all of which were perfectly amicable and in accordance with the agreement of the parties, then no part of the transaction can be said to have occurred here within the meaning of the statute. Moreover, the term “transaction or some part thereof” must necessarily refer to dealings between the parties themselves where they are in a sense adversaries. It could not have been intended to include transactions which the parties had with third persons, out of which no cause of action has arisen. Such dealings as are incidental or preliminary to the transaction between the parties themselves and which do not form the basis of the cause of action, cannot have been intended to constitute the transaction or a part thereof. In Van Meter v. Goldfarb, 317 Ill. 620, the court, in discussing- the meaning of the term “transaction” as used in the Evidence Act, quoting from Craft Refrigerating Mach. Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 25 L. R. A. 856, said that “ ‘A “transaction” is something* which has taken place, whereby a cause of action has arisen . . . and by which the legal relations of such persons between themselves are altered,’ ” and likewise quoted with approval the dictum in Barnett’s Adm’r v. Brand, 165 Ky. 616, 177 S. W. 461, that “ ‘The word “transaction” ... is held to mean every variety of affairs which forms the subject of negotiations or actions between the parties.’ ”

Briefly summarized, the cause of action which plaintiff seeks to assert arises out of the alleged misappropriation of assets and mismanagement of the corporation, the breach of oral agreement, the wrongful issuance of shares and the refusal to permit inspection of the corporate records. Not a single one of these alleged acts occurred in Cook county. They all took place either in Sterling, Illinois or Winneconne, Wisconsin. In McCasldll’s 1936 edition of the Illinois Practice Act Annotated, page 21, the author, referring to section 7, points out that ‘1 Thoug'h transactions and parts of them out of which causes of action arise may have various meanings, the one here intended is one based on trial convenience, balancing all factors involved.” On that basis none of the parties would be conveniently served by trying the suit in Cook county. The corporate business is located in Sterling, Illinois, its records are kept there and all the parties reside in the general vicinity of Whiteside county. It seems to us that section 7 of the Civil Practice Act is not reasonably susceptible to the construction for which plaintiff contends, and we think it would be unfair to defendants to construe it so broadly as to allow plaintiff to select the forum and require them to defend the suit in Cook county where none of the parties resides.

For the reasons indicated we are of opinion that the injunction order was void for lack of jurisdiction, and it is therefore reversed.

Injunction order reversed.

Sullivah and Scanlah, JJ., concur.


author: Mr. Justice Scanlan

text:
    Prudential Insurance Company of America, Plaintiff, v. John F. Cahill, Administrator of Estate of Mary E. Carter, Deceased, et al., Defendants. Rosana St. Denis, Appellee, v. John F. Cahill, Administrator of Estate of Mary E. Carter, Deceased, Appellant.
    Gen. No. 42,037.

      Heard in the second division of this court for the first district at the October term, 1941.
    Opinion filed December 14, 1943.
    Max A. Kopstein, of Chicago, for appellant; Robert V. Conners, of Chicago, of counsel.
    Julius H. Selinger, of Chicago, for appellee.
   Mr. Justice Scanlan

The Prudential Insurance Company of America filed its complaint in an interpleader proceeding and made John F. Cahill, Administrator of the Estate of Mary E. Carter, Deceased, Rosana St. Denis and Forrest T. Stearns, defendants. An interlocutory decree was entered by the terms of which the proceeds of four policies issued by plaintiff on the life of Mary E. Carter totaling $907.40, less $24 court costs, or $883.40, were deposited with the clerk of the court, and plaintiff was discharged from any further liability upon the policies. The administrator and Rosana St. Denis each filed an answer to the complaint. Defendant Stearns filed an answer disclaiming all interest in the proceeds of the insurance policies. After a hearing before the trial court there was a final decree entered, which found, inter alia:

‘13. That the equities are with the claimant, Rosana St. Denis and that she has established her right to receive the said funds.

“4. That Mary E. Carter, deceased departed this life on the 12th day of April, 1940 and that said insurance policies upon her life, aggregating the net sum of Nine Hundred Seven and 40/100 Dollars became payable upon her death.

“5. That the claimant, Rosana St. Denis is entitled to the funds in the hands of the Clerk of this Court by virtue of a change of beneficiary executed by Mary E. Carter, in her lifetime designating Rosana St. Denis, as the beneficiary in said policies of insurance and that Mary E. Carter had performed in her lifetime all acts necessary in law to effect a change of beneficiary and that such change of beneficiary was effected in her lifetime.

“6. That the claimant, Rosana St. Denis has incurred expenses in the burial of the deceased and has become liable to pay her funeral bill.

“7. That the allegations of the answer of Rosana St. Denis are not denied by the pleadings in this cause.

“8. That the claimant, John F. Cahill, Administrator of the Estate of Mary E. Carter, deceased has not established his right to the proceeds of said insurance.”

The decree provides that the clerk of the court pay over to Rosana S.t. Denis the $883.40 on deposit with him. The administrator appeals.

The verified complaint, in paragraph II, alleges “that said policies were made payable to the executor or administrator of the insured, subject to the provisions of the following provision: ‘Facility op Payment. — It is understood and agreed that the said Company may make any payment or grant any non-forfeiture provision provided for in this Policy to any relative by blood or connection by marriage of the Insured, or to any person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the Insured, for his or her burial, or for any other purpose, and the production by the Company of a receipt signed by any or either of said persons or of other sufficient proof of such payment or grant of such provision to any or either of them shall be conclusive evidence that such payment or provision has been made or granted to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied. ’ ” It further alleges, in paragraph III, “that John F. Cahill, Administrator of the Estate of Mary E. Carter, Deceased, claimed and represented to the plaintiff herein that he was entitled to the proceeds of said policies by virtue of the fact that he is the duly appointed administrator of the estate of Mary E. Carter and as such is the designated beneficiary of said policies.” It further alleges, in paragraph IV, “that the said defendant, Rosana St. Denis, claimed and represented to the plaintiff herein that she was entitled to the proceeds of said policies by virtue of the fact that she had incurred expenses on behalf of the insured for her burial and for the reason that she was named beneficiary in said policies.”

The administrator filed, on March 31, 1941, the following verified answer to the complaint:

“Now comes John F. Cahill, Administrator of the Estate of Mary E. Carter, deceased, and for answer to the Complaint in interpleader, filed herein, states as follows:

' “1. This defendant admits the allegations in paragraphs I, II, III, and IV of the Complaint.

“2. This defendant states that he was appointed Administrator of the Estate of Mary E. Carter, deceased, by the Probate Court of Cook County, Illinois, and is acting as such, and as such Administrator is entitled to proceeds of the said policies payable by virtue of the death of the said Mary E. Carter, in accordance with the terms thereof.

“3. This defendant states that he is not advised as to the claims made by the other defendants to the proceeds of the said policies but states that no other person, firm or corporation is entitled to the said proceeds and further states that the proper forum for the adjudication of any claims by the said defendants against the said estate is the Probate Court of Cook County, Illinois where the said estate is being probated.”

On April 23, 1941, Rosana St. Denis filed the following unverified answer to the complaint:

“. . . 2. She neither admits nor denies the allegations of Paragraph 3 and says she does not have sufficient knowledge and information from which to form a belief. 3. She admits the allegations of Paragraph 4. . . . 6. With relation to the prayer for relief, this defendant says that she is the only person entitled to be paid the proceeds of the policies of insurance and that all other defendants be deemed not to have any right or interest in the policies or the proceeds therefrom and she says further that she is the beneficiary designated in the policies of insurance and that as between the various claimants to the proceeds her right thereto arises from the act of the deceased, the insured, who in her lifetime performed all acts necessary or required for the purpose of effecting a change of beneficiary and that such change of beneficiary was effected and insofar as it lay with the deceased and insured to do so, such change of beneficiary was completed. ’ ’

When the case was called for trial the four policies were admitted by agreement and it is not disputed that on the face of the policies the administrator of the estate of the deceased was made the beneficiary, subject to the “Facility of Payment” provision. Counsel for Mrs. St. Denis made the following statement to the court: ‘‘ The facts are these. Prior to the death of the insured, she had been sick for a considerable length of time, and Mrs. St. Denis had been a friend of hers for upward of fifteen years, and during her many illnesses she nursed her, took care of her, gave her money, paid insurance premiums for her, and assured her that the funeral bill would be paid. In consideration for that, Mary E. Carter about twelve or fifteen days before her death, called in the agent of the Prudential Insurance Company and requested that he supply her with forms for designating a change in beneficiary, and that was done on March 19, 1940. The insurance agent came to her home and provided her with the necessary forms for the designated beneficiary. She signed those forms, and designated in the forms Mrs. St. Denis, the claimant in these proceedings, as beneficiary to the policies. The agent witnessed these forms and sent them to New York to the Home Office. The Home Office received these forms, and because there were some incomplete answers, and because the Insurance Company wanted more information, they sent them to the Local Office in Chicago, and requested that the agent fill in some information concerning the beneficiary. On April 10, 1940, these forms were returned to the Local Office here in Chicago, but before the agent could come back to Mrs. Carter to have the information filled out about Mrs. St. Denis, Mrs. Carter died. She was buried, my client guaranteed the funeral bill and bought the shroud and funeral clothes — such things as stockings and dress, in order to bury her decently, took possession of her dog and had him asphyxiated, according to Mary Carter’s wishes, and did several other things according to the wishes of Mary Carter.”

Counsel for the administrator stated that the position of the administrator was that the policies by their terms are payable to the administrator of the estate and that the administrator claimed the proceeds; that the administrator was in no position to positively deny Mrs. St. Denis’ claim that the deceased had made a change in the beneficiary, but that in order to sustain her claim she must prove it. Counsel for Mrs. St. Denis then offered in evidence four exhibits in support of her claim that the deceased had made a written request on the Insurance Company by the terms of which she requested the Insurance Company to designate by indorsement upon the policies Rosana St. Denis as beneficiary to • receive the death benefits thereunder. Counsel for the administrator objected to the introduction of the exhibits upon a number of grounds, but only one need be considered, vis., that it was incumbent upon the claimant, St. Denis, to establish the fact that the exhibits were executed by the insured. Counsel for Mrs. St. Denis undertook to prove that the exhibits were executed by Mrs. Carter. The first witness called was the claimant, -Mrs. St. Denis, but the court properly ruled that she was incompetent as a witness against the administrator. Counsel then called Julia Barr, who testified that during the last month of the illness of Mrs. Carter she was with the latter “every other day, sometimes every day”; that one day she came in and Mrs. Carter had a pencil on the table nearby and wrote her name, “Mary.” “I believe I know her signature. I saw her write only ‘Mary.’ She was making the ‘y’ as I stepped in.” The trial court properly held that the testimony of Mrs. Barr was not sufficient to prove the execution of the proposed exhibits. After the trial court had stated repeatedly that it was necessary for Mrs. St. Denis to make proof of the signature of Mrs. Carter before the exhibits could be introduced in evidence, counsel for Mrs. St. Denis took the position that proof that Mrs. Carter had executed the exhibits was superfluous “because in the pleadings, the interpleader charges that our claim is based upon the beneficiary in the policy. There is no denial anywhere in the pleadings of that. That is admitted, and the Court knows no evidence is necessary to support it, in view of the state of the pleadings. . . . There is no duty under the pleadings for me to do anything more than point out the statements of the issues in the pleadings — the introduction of these papers and I have a right to rest. . . . The Court: If you are willing to take a chance, all right. Mr. Selinger [attorney for Rosana St. Denis]: I take that chance, if the Court please.” Thereupon, over the objection of the administrator, St. Denis’ exhibits 1-a, 2-a, 3-a and 4-a were admitted in evidence. No other proof was offered by Mrs. St. Denis and her case was closed.

Counsel for Mrs. St. Denis calls our attention to paragraph 6 in her answer and contends that that paragraph sets up new matter and that “it was incumbent upon the attorney for the administrator to file a reply to the St. Denis answer denying the allegations of Paragraph 6 or to set pp such countervailing matter as would create an issue of fact. As the pleadings now stand the claim of St. Denis to the proceeds stands unanswered and therefore admitted.” In support of this contention counsel cites section 32 and section 40, subsection (2), of the Civil Practice Act (par. 156, sec. 32, and par. 164, sec. 40 (2), ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.032 and 104.040 (2)]). It is clear that this case was decided by the trial court upon a point that was without the slightest merit. The complaint sets forth that the policies were made payable to the executor or administrator of the insured, and while the claimant, Mrs. St. Denis, stated in paragraph 2 of her answer that she does not have sufficient knowledge and information from which to form a belief as to whether the said policies were made payable to the executor or administrator, upon the hearing of the cause the four policies, admitted in evidence, show upon their face that the amount of the insurance specified in the policies was to be paid to the executors or administrators of the insured, subject to the “Facility of Payment” provision, and no proof was offered that had any bearing upon that provision. It is conceded that there is no testimony in the record to support the claim of Mrs. St. Denis that the four exhibits offered by her were ever executed by Mrs. Carter or that the latter ever saw them. The answer of the administrator, as well as the answer of Mrs. St. Denis, was to the complaint filed by the Insurance Company. In a bill of interpleader a claimant must recover on the strength of his own title and not on the weakness of the title of his adversary. (See Mutual Life Ins. Co. of N. Y. v. Ritsher, 196 Ill. App. 27, 33.) “As between the defendants compelled to interplead, recovery rests upon the strength of the claim of one, rather than upon the weakness of the other.” (30 Am. Jur. 232.) In Lawrence v. Paden, 76 Ill. 510, Mr. Presiding Justice Adams speaking for the court said (p. 514):

“A cross-bill would seem to be unnecessary as between the defendants to a bill of interpleader. It is only necessary for them to set up their grounds of claim or right to the subject-matter of the bill, and the court can then adjudge who has the better right and, under the prayer of the bill, decree accordingly.”

The disclaimer filed by the defendant Stearns did not tend to make out a case for either of the other two defendants. Faulty pleadings or a lack of proper pleadings by one defendant would not aid the claim of the other defendant. The contention that because one defendant is derelict in the matter of pleadings the other defendant is excused from proving his claim is without the slightest merit. In the answer of the administrator he alleges that as administrator he is entitled to the proceeds of the policies in accordance with the terms thereof and that “no other person, firm or corporation is entitled to the said proceeds.” If there were any force in the position taken by Mrs. St. Denis — and there is none — it might be urged by the administrator that the claim he asserted in his answer, that he is the beneficiary under the policies and “that no other person, firm or corporation is entitled to the said proceeds,” is not denied in the answer of Mrs. St. Denis, and, therefore, she concedes his claim. The claim of Mrs. St. Denis was based upon the theory that there was a change of beneficiary effected, but although the allegations of paragraph 6 state that the deceased “performed all acts necessary or required for the purpose of effecting a change of beneficiary and that such change of beneficiary was effected and insofar as it lay with the deceased and insured to do so, such change of beneficiary was completed,” nevertheless, there is no affirmative allegation that as a result of the acts alleged to have been performed by the deceased, Mrs. St. Denis was made the beneficiary. While the answer of Mrs. St. Denis does not make out a clear prima facie case entitling her to the proceeds, it does make claim to the fund and does state that no one else was entitled to it. Giving to her answer a liberal interpretation, this cause should have been determined upon the merits, and the disposal of the estate of Mrs. Carter upon the ground interposed by Mrs. St. Denis’ counsel shocks one’s sense of justice. In this connection it must be noted that the record shows that there were claims filed against the estate of Mrs. Carter in the probate court. The fact that the estate was not a large one does not cure the erroneous ruling of the trial court. The administrator strenuously insists that upon the pleadings and the evidence he is entitled to a decree in his favor, but we believe that justice will be best served by a new trial of this cause upon the merits.

The decretal order of the superior court of Cook county is reversed and the cause is remanded for a new trial.

Decretal order reversed and cause remanded for a new trial.

Friend, P. J., and Sullivan-} J., concur.