text:
    Marie A. Fortier, Appellee, v. Peter J. Fortier, Appellant.
    Gen. No. 42,669.

      Opinion filed December 13, 1943.
    Rehearing denied December 28, 1943.
    Edward H. Nelson, of CMcago, for appellant.
    Herman L. Epstein, of Chicago, for appellee; Abraham Miller, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff filed her complaint for divorce charging defendant with cruelty, and being in fear of bodily harm, she was forced to separate from him October 10, 1939. She also alleged that prior to her marriage she had been gainfully employed and had accumulated about $2,500 which was used to purchase and repair a certain piece of real estate which was owned in joint tenancy; that the parties owned another piece of real estate the title to which was held by them as joint tenants and also owned various certificates of stock; that defendant had threatened to dispose of the real estate and the stock certificates and prayed that he be enjoined from doing so. Defendant answered denying the charges of cruelty and afterward filed his counterclaim and prayed for an accounting. Plaintiff filed her answer to the counterclaim and December 23, 1940, defendant filed an amendment to his counterclaim praying for a divorce on the ground that plaintiff had wilfully deserted him on October 10, 1939. Defendant’s counsel in his brief says that about two years thereafter, defendant “presented a motion for leave to file an amended cross-complaint for divorce” which was denied by the court December 8, 1942.

The question of the accounting was referred to a master in chancery and December 2, 1940, the parties began presenting the evidence, and while the matter was there pending the chancellor heard the divorce proceedings. June 13, 1941, both the complaint and the counterclaim were dismissed, apparently on the ground that neither party was entitled to a divorce. About 15 months afterward the master, on September 9, 1942, made up his report and October 16, 1942, he certified that he had overruled the objections to the report which had been filed by each of the parties. None of the evidence taken before the master, about 600 pages, has been abstracted. Only the common law record is abstracted.

January 11, 1943, the court entered a decree which purports to adjudicate the rights of the parties as to the property involved on the hearing before the master. The decree recites the pleadings; that a divorce had been denied to plaintiff and to the defendant and that “thereafter the said Peter J. Fortier, as defendant and counter-plaintiff filed his petition, praying that he be given leave to file an Amendment for Divorce.” The decree then recites that objections to the master’s report were overruled and that they were theretofore overruled by the court, and a disposition of the properties involved is provided for. The defendant and counter-claimant, Peter Fortier, appeals.

Counsel for defendant in stating his “Theories of the Case” says how the parties obtained the property involved and how the title was held; “that the plaintiff has never acted in good faith and has deliberately failed to account for all her properties . . . ; that each party hereto should be placed in the relative position before marriage, less costs of living during marital relationship and that the defendant be allowed to file his amended counterclaim for divorce, and if facts alleged be proven, the defendant granted a divorce and proper and equitable distribution of the real estate and personal-effects.” No points are made in the brief, as required by Rule .7 of this court, but counsel for defendant says that defendant “on December 8, 1942, while no divorce action pending since June 13, 1941, presented a motion for leave to file an amended cross-complaint for divorce alleging desertion” which motion the court denied. We have been unable to find the petition in the record, nor is there any showing what the allegations of the proposed amended counterclaim were. So that we are unable to say that the denial of defendant’s motion was not warranted.

A further argument is made by counsel for defendant as to the disposition of the property made by the decree but none of this evidence is abstracted, and while we do not want to be at all technical as to the sufficiency of the abstract, and in nearly every case that comes before this court we look at the record, yet we think that in the instant case, the abstract is wholly insufficient. As stated, none of the evidence taken before the master is abstracted, and we think it is not our duty to search through the 600 pages of the evidence.

We think we ought to say that in a divorce case the chancellor ought not to refer the question of the property rights to a master until the case has reached such a point that it is obvious a decree of divorce will be entered. Whether the court had any authority to enter the decree after the complaint and counterclaim for divorce had each been denied, dividing the property, need not be passed upon because no sucb suggestion is made by either party. Silkwood v. Silkwood, 262 Ill. App. 516.

We have been unable to find any evidence in the record taken before the chancellor on the divorce suit. In these circumstances the decree appealed from will not be disturbed. The errors claimed by defendant for reversal on the record, for the reasons stated, cannot be sustained.

Decree affirmed. ■

Niemeyer and Matchett, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Kling Bros. Engineering Works, Appellee and Cross Appellant, v. Whiting Corporation, Appellant and Cross Appellee, Carl W. Kling et al., Appellees.
    Gen. No. 42,705.

      Opinion filed December 13, 1943.
    Rehearing denied December 28, 1943.
    Pope & Ballard and McNab, Holmes & Long, all of Chicago, for appellant; Beverly B. Vedder, Charles R. Kaufman and Joseph T. Scott, all of Chicago, of counsel.
    Victor M. Theis and Robert Irmiger, both of Chicago, for appellees; Robert Irmiger, James J. Cusack, Jr., and John F. Cusack, all of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff, Kling Bros. Engineering Works, filed its complaint in chancery against defendant, Whiting Corporation, praying that what it claimed to be an alleged contract entered into June 5, 1935, between plaintiff and the Quiekwork Company, a corporation, and its successor defendant Whiting Corp. be decreed to be null and void, and that defendant be enjoined from interfering with plaintiff’s manufacturing business by communicating with its customers, etc. On motion of defendant Whiting, Carl, Olaf, Paul and Alfred Kling, Howard J. Aagaard and Benton W. Packer were made additional parties to the suit. Summons was issued and they filed their appearance as “counterclaim defendants.” Defendant Whiting filed its answer denying the invalidity of the contract and its counterclaim, praying an accounting for the work which had been done under the contract, and for damages for the breach thereof by plaintiff. The cause was referred to a master in chancery who took the evidence, made up his report and found the contract was not enforceable, lacked consideration and mutuality, and that it was in restraint of trade and illegal. Objections were filed by "Wbiting; they were overruled and ordered to stand as exceptions. February 1, 1943, a decree was entered dismissing the complaint and the counterclaim for want of equity, and taxing one-half of the costs to each party. Defendant Whiting appeals from that part of the decree dismissing its counterclaim and taxing one-half of the master’s fees against it. Plaintiff filed notice of a cross-appeal from that portion of the decree which dismissed its complaint and ordered it to pay one-half of the master’s fees.

Counsel for the Whiting Corp., in their brief say: “The sole issue involved is the validity of an agreement between the Klings and the Quickwork Company, to which Whiting is successor in interest,” and this seems to be the position of counsel for Kling Bros.

The record discloses that H. Collier Smith secured a patent on Quickwork rotary shears in 1910 or 1911, and was engaged in manufacturing the shears at St. Marys, Ohio, until his death in 1932. The shears were sold under the name of “Quickwork” all over the United States and many other countries. He was also engaged in manufacturing and selling power hammers. After Mr. Smith’s death his widow and son and the cross-defendant, Benton W. Packer, managed the business which was afterward moved to Chicago, and in 1935, the Klings approached Quickwork with a view to securing orders for the manufacture of Quick-work shears and hammers. Klings operated a job shop in Chicago and were experienced manufacturers of heavy machinery, manufacturing for distributors such as Joseph T. Ryerson & Son, Scully Steel and Iron Co., and others.

On June 5, 1935, the contract in question was executed by the Klings and the Quickwork Company. The pertinent provisions of it are: “It is the intention of this agreement to create a working arrangement between the Kling Bros. Engineering Works and The Qniekwork Company whereby the Kling Bros. Engineering Works will build certain machinery and parts for same on the order of The Quickwork Company and will in consideration of these orders protect the interests of The Quickwork Company in regard to the' building or sale of similar equipment not authorized by The Quickwork Company.”

That as a means of protecting the Quickwork Company’s interest Kling Bros, and its officers and stockholders who signed the agreement, bound themselves and their successors “not to build, sell, have built or sold or in any manner take part in or assist in any enterprise the practical effect of which would be to the detriment of The Quickwork Company, its successors . . . by competing with this Company in the supplying of the machinery described below or parts hereof.” Then follows a description of “rotary shearing or flanging machinery . . . Mechanically operated power hammers similar to those now being supplied to the industry by The Quickwork Company.” Then follows a recitation that while it is apparent that in all probability it will be for the best interest of the Quickwork Co. to have all of its machinery made by one builder, “The Quickwork Company does not agree to have all of its machinery built by the Kling Bros. Engineering Works” nor all of the parts of machinery, nor any specified part of its machinery built by the Kling Bros, for any specified length of time; that the agreement as to terms, prices and deliveries will have to be agreed upon by the parties as they arise; that all the patterns, drawings and jigs supplied by the Quickwork Co. for the use of the Kling Bros. Engineering Works, in the execution of the company’s orders are to be stored by the Kling Bros, in a suitable manner if so requested by Quick-work. And that they shall be immediately available to Quickwork upon request and will remain the sole property of Quickwork; that the work to be done by Kling Bros., unless specifically specified in an individual transaction shall be of the highest order— highest quality and first-class workmanship, etc.,

“This agreement shall be considered as being in force as long as the Kling Bros. Engineering Works continue to build the above machinery of parts therefor on the order of The Quickwork Company, its successors . . . and for an additional period of ten (10) years thereafter.”

After the execution of the contract, Quickwork placed many substantial orders for the manufacture of machines with Kling Bros, and delivered to the Klings drawings, jigs and technical information. Such orders were given, and manufactured by the Klings for about 6 years under the agreement, Quick-work paying Kling Bros, as high as $60,000 in one year and more than $200,000 altogether, for the manufacturing the Klings did. Early in 1940, Quickwork sold out to Whiting and the arrangement continued until early in 1941, when Kling Bros, employed two former employees of the Quickwork company and of Whiting.

On April 1, 1941, Kling Bros, wrote the following letter addressed to “The Quickwork Company, c/o Whiting Corporation, Harvey, Illinois. Gentlemen: Under date of June 5th, 1935, certain recitals were executed between your company and the undersigned. Inasmuch as your company has now ceased doing business, we are herewith notifying you that no further construction work will be performed under the arrangement referred to., and that said arrangement is herewith cancelled. ’ ’ Counsel for Whiting, in reply wrote Kling Bros, on April 4, 1941, acknowledging receipt of the letter, regretting that the Klings found it necessary to stop doing construction work under the contract of June 5, 1935, and hoping that the Klings’ decision might be reconsidered, and continuing: “If no further work is to be done by you, we assume that the ten-year period provided by the June 5, 1935, contract will begin to run when all of the work which you now have in process is completed and delivered. . . .

“It is not our understanding that the arrangement of June 5, 1935, is or can be canceled by you.” To this letter plaintiff replied April 14, 1941, stating that all work then in process would be completed by the Klings for Whiting, and the letter continues: “Inasmuch as the item Kling Bros. Engineering Works is manufacturing for your client is one that has no patent rights attaching thereto, and is therefore manufacturable by anyone, Kling Bros. Engineering Works is of the opinion the ten year period prescribed in the previous arrangement is of no effect.”

Afterward Kling Bros, manufactured a number of shears and hammers on their own account but none for Whiting, and a great deal of evidence was taken before the master as to whether such shears and hammers were similar or different from the ones theretofore manufactured by Kling Bros, for Whiting. We think the record discloses that the shears and hammers manufactured by Kling Bros, after they ceased doing business for Whiting, were substantially similar to the ones manufactured by them prior to that time.

Counsel for Whiting, in their brief argue and cite a number of authorities which they claim sustain their contention that the contract of June 5, 1935, is valid and enforceable, while counsel for the Klings contend to the contrary, with many citations of authorities.

We think the contract was unenforceable. It did not bind the Quickwork company or its successor, Whiting, to give any orders to plaintiff at. all. And it did not bind the Klings to do any work unless they saw fit to do so. Either party could refuse to carry out any of the terms of the contract or could stop at any time he saw fit.

There is considerable said in the briefs as to whether the contract is a bilateral or unilateral contract or no contract at all. Professor Williston, in Ms treatise on Contracts, Yol. 1, § 13, Revised Edition, says: “The term ‘unilateral contract’ is not infrequently used with a slightly different meaning from that here given; namely, to designate a promise for which no consideration was requested, or for which no sufficient consideration was given. It will he noticed that in this use of the word ‘unilateral’ as well as in the one suggested earlier in this section, the word indicates a promise made by one party to a bargain. If no sufficient consideration was requested for that promise or, if, though requested, the consideration was not given, the transaction is undoubtedly unilateral, but it is not a unilateral contract. A contract may give rise merely to an imperfectly enforceable or voidable obligation but a contract which creates no obligation is a contradiction in terms. Therefore, the term ‘unilateral contract’ should be reserved for cases where a legal obligation has been created, but only one party to the obligation has made a promise. Where there is no obligation, the transaction may be a unilateral promise or a unilateral offer, but it certainly cannot properly be called a unilateral contract.”

Arid the same author, in section 60, in discussing the “Revocation of offers for unilateral contracts” says:

“It seems difficult on theory successfully to question the power of one who offers to enter into a unilateral contract to withdraw his offer at any time until performance has been completed by the offeree, but great injustice may arise if the offeror’s power of revocation continues so long. . . .

“After the offeree has begun to perform under such an offer he may unquestionably stop performance halfway if he concludes that after all he does not care to enter into the contract, and if the offeror also may not revoke at that time he seems bound by a promise for which he has not received, and may never receive, the consideration requested, since the whole transaction is still optional with the offeree.” We quoted from this section in an earlier edition of Williston on Contracts in Alexander Hamilton Inst. v. Jones, 234 Ill. App. 444, where plaintiff was seeking to recover $110 under an alleged contract signed by defendant Jones. We affirmed the judgment in favor of defendant, holding the contract was invalid. In that case the defendant signed an “enrollment” for a course of service, agreeing to pay therefor $10 monthly until $120 was paid. He paid $10 and no more, and plaintiff brought suit to recover $110. Shortly after the contract was signed, 24 bound volumes, mentioned in the contract, were shipped by plaintiff to defendant, and shortly thereafter, defendant wrote plaintiff saying that because he had lost his business position it would be impossible for him to continue payment, and asked for advice concerning the disposition of the books. We there said: “On the face of the paper it is merely an offer by defendant and not enforceable until accepted by plaintiff so as to bind it to perform. It is what is sometimes called a unilateral contract void for want of mutuality. Vogel v. Pekoc, 157 Ill. 339. This seems to be conceded by plaintiff, but it is urged that part performance by the offeree, the plaintiff here, makes it a binding contract upon both parties. This is a broad statement of the rule. In writings of this sort the offeree may be bound in either of three ways: (1) by the offeree engaging, within a reasonable time, to perform the contract; (2) ‘by beginning such performance in a way which would bind him to complete it; and (3) by actual performance.’ Plumb v. Campbell, 129 Ill. 101.

‘ ‘ The question then is, did plaintiff, by shipping the books to defendant, which was the first of a series of things to be performed by it, begin such performance in a way which would bind it to complete the contract?

“The question involved is not free from difficulty. It has been the subject of discussion by text-writers and there is no uniformity of opinion in the decided cases. The right of the offerer to revoke his offer, even after part performance by the offeree, has the support of a considerable number of cases.” We then cite cases from Georgia, Massachusetts, Mississippi, Minnesota, New York, and Williston on Contracts, from which we have above quoted. And continuing we there said: “We are of the opinion that this writing was an offer by defendant to make periodical payments in consideration of a series of acts to be done by the plaintiff from time to time, and that an offer of this divisible character may be revoked not only" before any acceptance but also as to any portion of the offer still unaccepted.” See also The Central Guarantee Co. v. Fourth and Central Trust Co., 244 Ill. App. 61.

We are further of opinion that the contentions of plaintiff that the contract is invalid because it is in restraint of trade, must be sustained. The contract provides that Kling Bros, shall not build, sell or in any manner take part in any enterprise that will compete with the Quickwork company or its successor in an area which is unlimited. Parish v. Schwarts, 252 Ill. App. 591, affirmed, 344 Ill. 563. In that case we 'held it was against the public policy of Illinois that a citizen should not have the privilege of conducting its business at some place within its border.

The decree of the superior court of Cook county is affirmed.

Decree affirmed.

Niemeyer and Matchett, JJ., concur.


author: Mr. Justice Matchett

text:
    People of the State of Illinois ex rel. Walter S. Baltis, Appellee, v. Village of Westchester and John O. Allison, Appellants.
    Gen. No. 42,643.
    Opinion filed December 13, 1943.
    Rehearing denied December 28, 1943.
    Kihhe, Scoved, Bobsoh & Murphy, of Chicago, for appellants; Harry C. KusruE, of Chicago, of counsel.
    J. H. Silver, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Baltis, in the name of the People, filed a petition for a writ of mandamus against the Village of Westchester and its Building Commissioner to compel the issuance forthwith of two building permits for the, construction of two semi-detached single family structures, one on the northwest corner of 23rd street and Downing avenue and the other on the southwest corner of said streets, both on premises owned by him and described in his petition. The petition was filed November 17, 1942. On November 24, 1942, defendants made a motion to strike the petition and dismiss the cause. (Civil Practice Act, ch. 110, § 45, par. 169, Smith-Hurd’s Ann. Stats. [Jones Ill. Stats. Ann. 104.045].) On December 29, 1942, the motion was denied. Defendants elected to stand by their motion to strike, and it ivas adjudged that the writ issue, an order of default having been entered for want of an answer. Defendants prosecute this appeal.

The question for decision, of course, is whether, assuming the facts to be as set up in plaintiff’s petition, the judgment for the writ to issue was justified. The petitioner states that the parties entered into an agreement to arbitrate, as provided by section 10 of the building ordinance of the Village, which was enacted on July 11, 1939, and is as follows:

“Appeals and Arbitration. Should any of the decisions of the Building Commissioner excepting those relating to emergency matters' connected with danger to life or immediate safety of work, be disagreed with the applicant is required to notify the Commissioner and the President of his intention to appeal from the decision of the Commissioner. The decision of the Building Commissioner may be appealed from in the following manner — to-wit:
“The appellant shall select one person. The President of the Village Board of Westchester shall select one person, and these two persons shall select a third person, which third person shall not be a resident of Westchester. The arbitration proceedings shall be held in the Village Office at Westchester. Prior to beginning such proceedings each arbitrator shall, in the presence of the Village Clerk, or a Notary Public, make audibly the following oath or affirmation, to-wit:
“I,-, do solemnly swear (or affirm) that
I will carefully consider all evidence or facts submitted and will, to the best of my ability and judgment, render a fair and impartial decision on the issues involved.
“A written copy of the decision shall be filed with the Commissioner of Buildings and a copy shall also be given to the appellant. The expense, if any, of arbitration shall be paid by the parties to the proceeding in the proportion of two-thirds by the loser and one-third by the winner. ’ ’

It is also in substance averred that on November 4. 1942, pursuant to and in compliance with this Section 10, relator caused to be served on Nelson, President of the defendant Village, and on its Building Commissioner this notice:

“Notice is hereby given you that I am appealing from a decision of the Building Commissioner with respect to the refusal of the Building Commissioner to issue permits for the construction of the two semi-detached single family structures to be constructed on the southwest and northwest corners of 23rd Street and Downing Avenue, in the Village of Westchester, County of Cook and State of Illinois, which application for permits was made on the 3rd day of September, 1942.
“This notice is given you in conformity with Section 10 of the Building Code of the Village of Westchester, Illinois, which ordinance was passed on the 11th day of July, 1939, and in accordance with said Section 10 of said Building Code, I select Hugh M. Cornell, as one of the Arbitrators to sit on the Arbitration Board.
“Will you proceed to select your Arbitrator so that they in turn can select a third Arbitrator as provided in said Section 10 of the Building Code? Signed Baltis Built Homes, Walter S. Baltis, Sole Owner.”

The petition goes further and avers that pursuant to the notice, Nelson, the President of the Village, appointed P. D. Cossitt; that Hugh M. Cornell and P. D. Cossitt appointed William K. Knight of LaGrange, Illinois, a nonresident of the Village of Westchester. It further avers that the arbitration proceedings were held on November 7, 1942, at the Village Hall located at Westchester, Illinois, and that the arbitrators, before entering upon their duties, in the presence of the Village Clerk, each made the proper oath, setting it up. It is then averred that on November 7, 1942, the arbitrators rendered their decision; that a written copy of the decision was filed with Commissioner Allison and a copy given to the relator. The decision is set up in words and figures as follows, to-wit:

“We have considered the case of the request for permit for two semi-detached houses as made by Baltis Home Builders to your Village Board on September 3, 1942, on lots as above stated.
“Our finding, after listening to the evidence of all parties that appeared at the hearing of the case on November 7, 1942, is that the permits should be granted.
“We feel that the applicant acted in good faith in asking for his permit as he had applied for priorities long in advance of date of application, which seems to have been common knowledge at the Village Hall, and from evidence presented we learned that if Interim Ordinance had not been passed at a date later than that of his application, the permit would probably have been issued in due course, notwithstanding the fact, that the application was not exactly in the manner provided by ordinance. The fact that the applicant used the Village form and made his request for permit as he had always done in the past was considered.
“We recognize that the Village has and must use its zoning control over the use of land within its jurisdiction hut feel from the evidence presented, that the applicant had a right to build structures as requested at the time that he made request for permit.”

The decision bears the signatures of the arbitrators, Knight, Cossitt and Cornell. The petition goes on to declare that it thereby became the duty of the Commissioner to issue the building permits in conformity with the award, that notwithstanding this award made by the arbitrators, Allison refused and still refuses to issue the permits. Wherefore, the writ is prayed.

The defendant cites a large number of propositions of law generally applicable to the issuance of writs of mandamus, about which there is no dispute; namely, that the petitioner must show a clear right to the writ; that legal conclusions of a pleader are not sufficient, etc. The plaintiff contends (and we think reasonably) that none of these legal propositions is applicable to this record. The facts alleged in this petition establish beyond question that defendants took part in the selection of the arbitrators, appeared and took part in the hearing, made no objection to any of the proceedings, and made no showing as to reasons that might have been urged against the issuance of the permits. By so doing, in the absence of fraud, the defendants are, we think, on the clearest principles estopped from denying the authority of the arbitrators and the justness of the award. City of Carlyle v. Village of Beckemeyer, 243 Ill. App. 460, 40 A. L. R. page 1370; 2 R. C. L. p. 357, 358. Defendants cite a number of cases, such as White Eagle Laundry Co. v. Slawek, 296 Ill. 240, which hold an agreement to submit the future controversies, to arbitration under the arbitration statute illegal. These cases, we hold, have no application to the situation here, where there was without question an actual controversy, namely, whether the permits should issue. Defendant says the ordinance is invalid. We hold the facts as alleged in the petition of plaintiff establish beyond question that the defendants took part in the selection of the arbitrators, appeared and took part in the hearing, made no objection to any of the proceedings, have made no showing as to reasons which might have been properly urged against the issuance of the permits. By so doing, in the absence of fraud, the defendant is now estopped from denying the authority of the arbitrators and the justice of the award.

This suit is based on an actual award made in a proceeding in which defendants voluntarily took part. Defendants did not appeal to the courts for relief against the award. They made no effort to have the award of the arbitrators modified or set aside. After submitting to and taking part in such proceedings they have arbitrarily refused to comply with the award. We hold that on the plainest principles of justice defendants should not be thus allowed to stultify themselves.

The sole question presented to this court is whether or not the petition of plaintiff, as admitted by the motion to strike, presented facts such as warranted the order of the superior court granting the writ of mandamus. We hold it did properly present such facts; that the order of the superior court for the writ correctly issued and the judgment of the superior court will be affirmed.

Affirmed.

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


text:
    People of the State of Illinois for use of Town of New Trier, by Frank J. Pavlicek, Appellant, v. Sanborn Hale et al., Appellees.
    Gen. No. 42,657.

      Opinion filed December 13, 1943.
    Thomas H. Murray and Arthur F. McCormick, both of Chicago, for appellant.
    Miller, Gorham, Wescott & Adams, of Chicago, for certain appellees.
    Eugene P. Kealy, of Chicago, for certain other appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

I.

This is an appeal by Pavlicek from a decree dismissing his bill for want of equity. The complaint was filed October 1, 1940. Pavlicek alleged himself to be a resident and taxpayer of the Town of New Trier in Cook county. He sued for himself and others likewise situated. The complaint named as defendants Sanborn Hale and various sureties on bonds given by him as town collector of the Town of New Trier. The suit of plaintiff is based on section 55 of the Fees and Salaries Act as amended (see Smith-Hurd Rev. Stat. 1925, ch. 53). This section in substance provides the town collector may be allowed a commission of 2 per cent on all moneys collected by him to be paid out of the funds collected as compensation; that sums in excess of $1,500 in counties of the first and second class and in excess of $4,000 in counties of the third class shall be paid into the town treasury. The complaint alleges in the year 1927 Hale retained the sum of $3,039.34 over and above the allowance of the statute; that for the years 1928 to 1931 he retained each year the sum of $6,000 above that amount, making a total sum of $27,039.34, retained by him for which defendants are alleged to be liable. The bill prays an accounting and that defendants may be decreed to pay to the People of the State for the use of the Town of New Trier the amount found due and the complainant allowed his reasonable solicitor’s fees, costs and expenses and further relief.

Defendants moved to strike the complaint. (Civil Practice Act, Smith-Hurd’s Ann. Stats., §48, par. 172, p. 390 [Jones Ill. Stats. Ann. 104.048].) The motion was denied. Defendants answered. Plaintiff then moved to strike certain paragraphs of the answers. Amendments were made. There were other motions to strike, some sustained, others denied. A final decree was entered December 31,1942.

II.

The decree provides:

‘ ‘ That the defendant, Sanborn Hale, as Town Collector for the Town of New Trier, was not lawfully authorized to receive out of the taxes collected by him for the years 1927, 1928, 1929, 1930 and 1931, the fees and commissions retained by him out of said collections, and that he has made default in failing and neglecting to account and pay over to said Town of New Trier that part of said commissions so retained and remaining in his hands after deducting his legal compensation of $4,000 per annum.
“That the amendment to the statute laws of 1923, Page 368, entitled ‘An Act to amend Section'36 of “An Act concerning Fees and Salaries and to classify the several Counties of this State with reference thereto,” approved March 29, 1872 as amended,’ approved July 14, 1927, being Chapter 53, Section 55, SmithHurd Ill. Ann. Stat., 1937, violates Section 13 of Article 4 and Sections 11 and 12 of Article 10 of the Constitution of the State of Illinois, and is therefore unconstitutional.
“That the said fees and commissions retained by the defendant, Sanborn Hale, are not undistributed tax moneys, which would be of interest to the People of the State of Illinois at large, but are moneys owed solely to the People of the Town of New Trier, and as such involve purely private rights, and that the People of the State of Illinois have no interest in the prosecution of this lawsuit and have no interest in said funds, nor any part thereof, but the right to the use of said funds and the use of such funds is confined solely to the inhabitants of New Trier Township.
“That plaintiff has- been guilty of laches, and the five year statute of limitations applies, being Section 15, Chapter 83, Ill. Rev. Stat., and is a valid defense to the complaint as amended.”

The decree recites that motions of plaintiff to strike certain paragraphs of the answers are overruled and that plaintiff elects to abide by his motions and it is therefore decreed the complaint of plaintiff, as amended be dismissed for want of equity, without costs to either side.

HI.

Except as to plaintiff’s right to sue, there is no question of fact in the case. The principal and controlling question is whether his suit is barred by the statute of limitations. Plaintiff says the statute is not applicable and the suit not barred by laches, because unlike other municipalities, such as cities, school districts, etc., the Town of New Trier is an involuntary corporation created by statute, existing solely for the purpose of acting as an arm of the State Government. Plaintiff says the organization, being involuntary and independent of the local inhabitants in its nature, is a part of the sovereignty of the State and the court, therefore, erred in holding the Statute of Limitations applicable to the suit. This contention involves a construction of the organization statute. The Town of New Trier was organized under the provisions of Chapter 139, Illinois Revised Statutes, 1941. The contention that it differs from other municipal corporations, in that it represents the sovereignty of the State, and that the Statute of Limitations would be wholly inapplicable to any suit brought in its behalf, is an ingenious contention. We find no language in the statute to justify it. Plaintiff’s brief does not consistently adhere to that theory. It cites no authority which actually so holds, and in analyzing authorities cited says:

“The distinguishing features which appear from.an examination of the numerous cases involving the definition of ‘public rights’ seems far from clear cut, and hinges on the nature of the fund and purpose of which its creation was intended, and not the question as to whether the municipality against whom the Statute of Limitations is pleaded is the state itself or some minor municipality.”

The decree cannot be reversed on this theory.

IV.

The cases cited by plaintiff, while not sustaining this particular point as to the construction of the statute, sustain another rule so well settled as to hardly need the citation of authorities. The rule is that statutes of limitations are not ordinarily to be applied where suits are brought in the name of or for the benefit of the sovereign State, and that for the same reasons these statutes will not be applied where, in suits against municipalities, public rights as distinguished from private rights are the subject matter of the controversy. The many cases cited by the parties tend to support this rule and disclose that the real task of the courts in-such suits against municipalities has been to determine when public rights as distinguished from private rights are the subject matter of controversy. Of the many .cases cited by plaintiff are People v. Brown, 67 Ill. 435; Greenwood v. Town of LaSalle, 137 Ill. 225; People v. Town of Thornton, 186 Ill. 162; County of Cook v. City of Chicago, 311 Ill. 234; McEathron v. Worth Township, 315 Ill. App. 47; Close v. City of Chicago, 257 Ill. 47; People v. West Englewood Trust & Savings Bank, 353 Ill. 451, and Clare v. Bell, 378 Ill. 128. Of those relied on by defendants it will be sufficient to name City of Alton v. Illinois Transp. Co., 12 Ill. 38; County of Pike v. Cadwell, 78 Ill. App. 201; People ex rel. Town of Atlanta v. Town of Oran, 121 Ill. 650; Brown v. Trustees of Schools, 224 Ill. 184; Weisenborn v. People, 53 Ill. App. 32; People v. Davis, 157 Ill. App. 438; State Bank & Trust Co. v. Commercial Trust & Savings Bank, 300 Ill. App. 435; Trustees of Schools v. American Surety Co. of New York, 307 Ill. App. 398.

In Brown v. Trustees of Schools, 224 Ill. 184,186, Mr. Justice Cartwright, speaking for the court, said:

“Statutes of limitations do not run against the State, in respect to public rights, unless the State is expressly included with the terms of the statute. The rule is founded on the maxim of the common law, nullum tempus occurrit regi. It was supposed that the time and attention of the sovereign were occupied by the cares of government, and there could be no negligence or laches on his part. The same prerogative extends to the State, in its sovereign capacity, as to all governmental matters. As to them no delay in resorting to the remedy will bar the right; bnt if the State becomes a partner with individuals, or engages in business, it divests itself of its sovereign character and is subject to the statute. . . . The rule that statutes of limitation do not run against the State also extends to minor municipalities created by it as local governmental agencies in respect to governmental affairs affecting the general public. The exemption extends to counties, cities, towns and minor municipalities in all matters respecting strictly public rights as distinguished from private and local rights, but as to matters involving private rights they are subject to statutes of limitation to the same extent as individuals.
“The question in this case is whether there is an implied exemption for the statutes of limitation in favor of trustees of schools with respect to property held for the use of a particular school district, and that depends upon the meaning of the term ‘public rights,’ as used in the decisions. ’ ’

Citing the case of County of Piatt v. Goodell, 97 Ill. 84, the opinion states:

“That case involved the title to swamp lands owned by the county, in which the inhabitants of the county were interested. It was held that the public right and public use must be in the people of the State at large, and not in the inhabitants of a particular local district. It was said that there is a'well founded distinction between cases where the municipality is seeking to enforce a right in which the public in general have an interest in common with the people of such municipality, and cases where the public have no such interest; that the public generally had no interest in the tract of land in question in that case in common with the voters and taxpayers of Piatt county, and that the county for that reason was subject to the limitation laws.”

It would unduly extend this opinion to review all the authorities. While the action here is brought in the name of the People, that bare fact is not controlling. All the pleadings in the case show that the rights in controversy concern the Town of New Trier only. It is not a case in which the public at large is interested, and we hold that the trial court properly held the action was barred at law by section 15 of chapter 83, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 107.275]. If so barred at law, there is no question that equity following the law will hold the suit barred by laches.

With reference to the sums of money which were withheld by the defendant collector in the several years for which plaintiff sues, it is alleged in the answer and admitted by the motion to strike that in each of these years an account was rendered by the collector to the township authorities; that an itemized statement of commissions deducted by him from all taxes received was made, and that with each statement he tendered a check for the amount of any excess commissions, showing in his account in detail the manner of computation of the account and that he received from the treasurer and supervisor of New Trier Township each year a receipt in full settlement for each such excess commission; that as to the matters of 1931, these were of record for over 7 years, as to 1930 for more than 8 years, as to 1929 for more than 9 years, as to 1928 for more than 10 years, and as to 1927 for more than 11 years before this suit was begun. Both 5 and 10 years are suggested as limitations beyond which equity following the law would hold the suit of plaintiff to be barred by laches. Defendants have pointed out that while the defense is in equity technically one of laches, equity always follows the law. People for the use of Hammond v. Graydon, 306 Ill. App. 163, and Trustees of Schools v. American Surety Co. of New York, 307 Ill. App. 398. We hold that section 15 of the Limitations Act is applicable and that it is a good defense to plaintiff’s suit.

V.

It is said the statute of limitations will not run against the claim because the funds retained by Hale are undistributed tax money. Plaintiff cites People v. West Englewood Trust & Savings Bank, 353 Ill. 451; Lee v. Town of Mound Station, 118 Ill. 304, and Logan County Board of Sup’rs v. City of Lincoln, 81 Ill. 156. In the last named case the county held money under a public law for the benefit of the city. The county, when sued, interposed a plea of the statute of limitations, and the Supreme Court said the obligation did' not arise out of contract and that the statute of limitations could not be interposed. In Lee v. Town of Mound Station it was held that the title to certain real estate was vested in the town for public use, and the town held it in its governmental capacity in trust for the public, and that the statute of limitations would not run in favor of a private party so as to bar the rights of the public. In the West Englewood Bank case the bank acted as agent of the county collector to receive taxes, and it was held when the bank became insolvent that the claim of the State for taxes on deposit could not be defeated by the interposition of the statute of limitations. These cases are all easily distinguishable from the facts in this case.

VI.

Plaintiff next urges that the excess remaining in the collector’s hands was at least a trust fund against which the statute of limitations would be no defense, as the statute would not begin to run until it was repudiated and notice of the repudiation brought to the cestui qui trust. State Bank & Trust Co. v. Commercial Trust & Savings Bank, 300 Ill. App. 435; Trustees of Schools v. Arnold, 58 Ill. App. 103; Close v. City of Chicago, 257 Ill. 47; and People v. Commercial Union Fire Ins. Co., 322 Ill. 326, are cited. There is no merit to this contention on the facts as admitted by the pleadings. The collector did not conceal anything from anybody. His report made , each year was a distinct repudiation by him of any such trust. He made a full statement to the county collector, received his receipts in full each year for all taxes due from him, caused the same to be recorded, and under the provisions of sec. 205, par. 686 of ch. 120, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 119.702], this operated as a defense to any suit for tax moneys brought after three years of the time the satisfaction was recorded.

VII.

The point is made that because the defendants in their motion to strike the complaint raised the question of the statute of limitations, which the court then decided, these defendants were precluded from again raising the question by answer. This claim is made only as to certain of the surety companies. The collector himself did not raise that question on his first motion to strike. However, Rule 21 of the Supreme Court provides:

“Where after denial by the court of a motion under Section 48 of the Civil Practice Act, the defendant pleads over, this shall not be deemed a waiver of any error in the decision denying such motion, and the defendent shall have the right to assign such error on appeal from the final judgment. ” ■

The rule is conclusive against this point.

vin.

The equities of plaintiff’s case do not appeal. There is no doubt the collector at all times acted in good faith and the hoard of auditors of the Town of New Trier by resolution authorized the payment to him of additional compensation for the years in question, by way of allowing him for his expenses. Whether this is a complete legal defense it is not necessary for us to decide. Nor do we discuss the question of fact raised by defendants that Pavlicek is not a taxpayer in New Trier and not entitled to bring the suit. - We prefer to dispose of the case on the merits.

The decree will be affirmed.

Affirmed.

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


text:
    In re Estate of Christian Nielsen, Deceased. Appeal from the Probate Court of Cook County in re Probate of Will of Deceased. Robert F. Kolb, Appellee and Coappellant, v. Julius Nielsen et al., Appellees, Lena May Beverly, Appellant.
    Gen. No. 42,691.

      Opinion filed December 13, 1943.
    John J. Golden, of Chicago, for certain appellant.
    Tatge & Tatge, of Chicago, for appellee and coappellant ; Robert F. Kolb, of Chicago, of counsel.
    John J. Phelan and C. L. Banker, both of Chicago, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

Christian Nielsen died January 25, 1942, at Gaines-ville, Florida. He left an alleged last will and testament, executed by him at Chicago, Illinois, October 9, 1935. The record shows that he left personal property not to exceed $1,000 in value and real estate not to exceed $29,000 in value, located in Chicago and Cook county, and that his estate is more than sufficient to pay all his debts.

The will nominated Lena May Beverly as executrix but provided that in case she was not a resident of the State of Illinois Robert F. Kolb should act as such executor. Lena May Beverly is not a resident of the State of Illinois, and Kolb set up that fact in his petition for letters and to admit the will to probate.

Deceased left his son, Julius Nielsen, 1627 N. Keeler avenue, Chicago, his daughter, Lillian Thompson, 4044 Melrose avenue, Chicago, and his granddaughter, Fay Nielsen of Chicago, a minor, as his only heirs at law and next of kin. The will bequeathed to Lillian Thompson a two-story brick building located at 2929 N. Spaulding avenue, Chicago, Illinois; to his son, Julius Nielsen “my residence at 2932 Wisner avenue Chicago, Illinois.” All the rest of his estate he devised to “my business partner,” Lena May Beverly. As stated, she was also named executrix.

Kolb filed his petition alleging the disqualification of Lena May Beverly and asking the probate of the will in the probate court of Cook county on February 10,1942. The petition states the names of the legatees, Nielsen and Thompson, with addresses as above, and Lena May Beverly, c/o Mrs. Charles Lindsey, Dunedin, Florida. The petition states that petitioner resides at 224 Ridge avenue, Winnetka, Illinois, and is willing to accept the trust confided by the will.

The will, as already stated, is dated October 9, 1935, is duly signed and attested by three witnesses. An order was entered appointing a guardian ad litem for Fay Nielsen. The heirs and next of kin appeared and objected to the admission of the will to probate. On May 12, 1942, an order was entered by the probate court denying the prayer of the petition for letters, etc., “it appearing to the court that the domicile of the decedent herein is not in the State of Illinois.”

Kolb and Lena May Beverly each prayed and perfected separate appeals to the circuit court of Cook county, where the appeals were consolidated for hearing. The circuit court heard testimony, found also that the decedent at the time of his death was a resident of the State of Michigan and was not at that time a resident of the City of Chicago, Cook County, Illinois, and denied probate for that reason. Kolb and Beverly perfected their several appeals to the Supreme Court of Illinois, which in its opinion (382 Ill. 422) transferred the appeal to this court.

The first contention of the proponents of the will is that since it appeared without dispute the deceased owned real and personal property in Cook county, Illinois, at the time of his death, the will should.have been admitted to probate, regardless of any question of the residence or domicile of the decedent. This is a general rule as stated in 28 R. C. L., Wills, p. 365, § 367:

“. . . It is almost uniformly lield that where assets are found within a state, the courts of probate of that state have jurisdiction to grant original probate of a foreign will. In some states such jurisdiction is expressly given by statute, but such statutes have been characterized by' the courts as merely declaratory of the common law.” See In Re Estate of Holden, 110 Vt. 60, 1 A. (2d) 721, 119 A. L. R. 487, Annotation, page 491.

Explanatory of the rule, in 50 Harv. L. Rev., page 1119 at 1183, we find:

“A non-domiciliary state in which assets of the decedent are found has jurisdiction to grant original probate of a will. . . . Where there is original non-domiciliary probate, the decree of probate has no extra territorial effect.”

Such also in effect, was, we think, the law of Illinois prior to the enactment of the Illinois Probate Act, as illustrated by decisions construing in particular sections 10 and 11 of the Wills Act (Ill. Rev. Stat. 1939, ch. 148). Thus in Davis v. Upson, 230 Ill. 327, our Supreme Court said:

“It is clear from the language of section 10 that a foreign will can be admitted to probate in this State only in case the testator died seized of ‘lands or other real estate’ situated in this State.”

The clear inference is that if the deceased had either personal property or was seized with lands within this State, the probate or other county court, as the case might be, would have jurisdiction to issue the letters. Davis v. Upson was decided prior to the amendment of 1909 to section 10 of the Wills Act, providing that “the situs of specialty debts shall be where the instrument happens to be and of simple contract debts and other choses in action, where the debtor resides.”

In construing these sections the Supreme Court in Martin v. Central Trust Co., 327 Ill. 622, said:

“It is the universal policy of onr law to preserve local assets for the satisfaction, in the first instance, of local claims. (Coombs v. Carne, 236 Ill. 333; 18 Cyc. 1229.) Section 10 of the Wills Act was evidently passed for the sole purpose of further protecting local creditors living in this State in the collection of their debts against non-resident deceased debtors. It was not passed with a view of compelling administration of estates of non-residents by executors or administrators in cases where the non-residents owe no debt in this State and where such administration is unnecessary. ... In this ease there was a necessity for the probation of the will of the deceased under our Uniform Foreign Probate act for the purpose of showing a record title to the real estate.”

In the case of Chicago Terminal Transfer R. Co. v. Winslow, 216 Ill. 166, 172, decided in June 1905, prior to the amendment of 1909 and, of course, prior to the enactment of the present Probate Act, the question arose whether the will of a deceased person could be probated in some place other than the residence of the deceased at the time of his death. In that case the deceased lived in California, and her will had been probated in the State of'Washington. It was contended it could not be lawfully probated in any place other than California. Our Supreme Court held that the will should be admitted here, saying:

“While the rule generally speaking, is that a will should be probated in the first instance at the testator’s domicile, it is subject to the exception, which is almost as broad as the rule-itself, that it may be probated in any county in any state where the testator had and left assets, particularly real estate.”

We find nothing in the provisions of the Illinois Probate Act, §§ 54, 55, 60, 63, 85, 86, 87 and 88 (Ill. Probate Act Anno., Art. IV, V and VI, p. 64; Smith-Hurd Ill. Anno., §§206, 207, 212, 215, 237, 238, 239 and 240,

Art. IV, V and VI) which indicates any legislative intention to change this rule. The prohate of a foreign will seems to be covered by sections 85 and 86, which are as follows:

“Section 85. Foreign Will Admitted to Probate. A written will signed by the testator when proved as provided in this Article may be admitted to probate in this State when (a) the will has been admitted to probate outside of this State or (b) the will was executed outside of this State in accordance with the law of this State, of the place where executed, or of the testator’s domicile at the time of its execution.
“Section 86. Procedure for Probate of Foreign Will. The provisions of this Act concerning the procedure for the admission to probate of a domestic will govern the procedure for the admission to probate of a foreign will sought to be admitted to probate as provided by this Article, except for the manner of proof.”

These are followed by section 87, providing that when a foreign will has been admitted to probate outside of the State it is sufficiently proved to admit it to probate in this State by introducing in evidence a duly authenticated copy of the will and the probate thereof.

The heirs rely upon Barnett v. Barnett, 284 Ill. 580, but this, we think, does not hold to the contrary. The case was decided in 1918. The revised Probate Act was enacted in 1939. The decision, of course, does not undertake to construe the Act. The case was originally a partition proceeding, where it was necessary to establish the title to real estate. The evidence showed Anna Barnett died testate, having an interest in land, and at the time of her death she resided in Pueblo, Colorado. Her will had been executed in Illinois but probated in the former State. A certified copy of the will was offered in evidence but objected to because not properly certified and because it had been filed in the circuit court clerk’s office and not recorded in the prohate court. The decision of the Supreme Court was that the certified copy of the probate of the will was not admissible in evidence for these reasons. The opinion went on to say that the will was properly probated in Colorado because it was the residence of the deceased at the time of her death, a proposition not disputed. This comes far short of holding that the will would. not have been admissible for probate had it been offered in the county where the land was situated in the first instance.

The Probate Act of 1939 was evidently carefully prepared. If it had been the intention to change the rule of law and procedure formerly applicable in such cases, we do not doubt language would have been used showing clearly the intention. There is no language which can be so construed. On the contrary we find the express statement in section 85 that where, the will was executed in accordance with the law “of the place where executed” (in this case Illinois) it is admissible to probate. There is abundant proof in this record that this will was executed in Illinois in conformity with the laws of Illinois and that it disposes of property situated therein to residents of Illinois. Therefore, even if we assume that Illinois was not the domicile of the testator at the time of his death, we think the proponents were entitled to have it admitted to probate.

For another reason also we hold the judgment must be reversed. The testimony heard in the probate and circuit courts tending to show that the domicile of decedent was in the State of Michigan was given by decedent’s son Julius. It was objected to on the ground that Julius was an interested witness and therefore incompetent under section 2 of the Evidence Act. Such seems to be the law as held by the Supreme Court in Joyal v. Pilotte, 293 Ill. 377.

We also think the circuit court committed reversible error in its rulings upon the admission of the evidence of witness Shirden, who testified for the proponents. It appeared from his evidence that, after the death of the mother, wife of the deceased, he occupied the attic and that the lower part of the house was rented out hy him. He was asked whether there ever was a tenant in the attic; who kept the keys to the attic; whether anybody had keys to the attic; whether he ever got the keys to the attic. Objections to all these questions were sustained. The proponents then offered to prove by the witness that he (the witness) had never had the keys to the attic and that deceased kept them. An objection to this offer was sustained. We hold it to be clearly erroneous. At any rate, under the undisputed evidence, we think the proponents were entitled to have the will of the deceased admitted to probate.

The judgment of the circuit court will therefore be reversed and the cause remanded to that court with directions to remand the cause to the probate court of Cook county, with instructions to admit the will to probate.

jReversed and remanded with directions.

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


author: Mr. Justice Matohett

text:
    People of the State of Illinois, Defendant in Error, v. George Pitron, Plaintiff in Error.
    Gen. No. 42,721.

      Opinion filed December 13, 1943.
    W. Gr. Anderson, ,of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matohett

delivered the opinion of the court.

Plaintiff in error was tried on an information, which charged that on May 25, 1940, at the city of Chicago, in Cook county in the State of>Illinois, he “did then and there unlawfully and wilfully steal, take and carry away to-wit: — United States Currency; of the value of Fourteen ($14.00) Dollars, the personal goods and property of Tom Demos. ’ ’

The record shows defendant was arrested without warrant, was present in open court; that it was ordered the bailiff take him into custody; that being duly arraigned and advised by the court as to his legal rights, the consequence of his plea of guilty and his right to trial by jury, he persisted in the plea; that thereupon the plea was received and recorded; that the court then heard and examined witnesses in mitigation of the offense, that he was adjudged guilty and sentenced to pay a fine of $1.00 and to serve a term of one year in the county jail.

This writ of error has been sued out and it is contended that the allegation of the information is insufficient to state a crime and that the judgment against defendant should therefore be reversed. In support of defendant’s contention People of the State of Illinois v. Hunt, 251 Ill. 446, is cited. That the information would have been found defective and insufficient upon a motion to quash or upon a motion in arrest of judgment under the law as stated in that case may be conceded. The Supreme Court in the opinion in that case said:

“The rule is undoubtedly well established that an indictment for the larceny of money should contain such a description as to call to mind the particular coins or bills and thus identify the things stolen. The reasons for this requirement are concisely and accurately stated by the Supreme Court of Michigan in Merwin v. People, 26 Mich. 298, as follows.:
“ ‘Among the objects to be accomplished by the mode of setting forth the criminal charge, with its essential and descriptive circumstances, and especially the description of property stolen, the following have always been recognized as fundamental: First, to identify the particular transaction charged as criminal, so that the defendant shall not be liable to be put upon his trial for an offense different from that for which the grand jury have found the bill, or (when under our law the information is substituted) different from that to which the person verifying the information intended to swear; second, that the defendant’s conviction or acquittal may inure to his subsequent protection should he be again prosecuted for the same offense, (and, though the identity may be shown by evidence aliunde, where it does not clearly appear from the record, yet it would be more difficult for the defendant to show such identity where no specific description is given in the indictment;) third, to inform the defendant of the particular transaction constituting the offense for which he is to be tried, that he may be able to prepare for his defense; and fourth, to enable the court, looking at the record after the conviction, to decide whether the facts as charged are sufficient to support the conviction and warrant the judgment.’ ”

The opinion goes on to say that the rule is sometimes relaxed of necessity, where it is impossible to ascertain a particular description of the money taken, as where the indictment states that the denominations are unknown, etc. The case is clearly distinguishable from the one on which plaintiff in error relies in that it there appears there was a motion to quash and also a motion in arrest of judgment, which-does not appear to be true in this case. The cases are further distinguishable in the fact that here no bill of exceptions has been preserved. Evidence was taken by the court, the record shows, but as to what the evidence was we have no information. For aught this court can tell, the exact denominations of the currency may have been proved. That this is probable would seem to appear from the fact that there is a finding by the court of the exact value of the money stolen.

Plaintiff in error also contends that the record indicates that he was not represented by counsel, and it is said that since the record fails to show defendant “competently and intelligently waived his constitutional right to counsel,” the cause must be reversed, citing Johnson v. Zerbst, 304 U. S. 458. People v. Parcora, 358 Ill. 448, seems to be a sufficient answer to this contention. The court there said:

“Court in the trial of criminal cases is hound to see that counsel is provided, when requested, for defendants unable to procure such assistance. It is a matter of common knowledge that in a court such as the Municipal Court of Chicago hundreds of cases are heard without the intervention of counsel. In the absence of a sufficient showing to the contrary, this court must presume that the judge hearing this case in the Municipal Court did not deny a request for the services of counsel.”

It appears from the record that the instant was not the only offense of this character of which defendant was found guilty at this time, and it is contended in behalf of plaintiff in error that the trial court’s attempt to.punish plaintiff in error with three consecutive sentences of one year imprisonment was insufficient because the judgment did not contain the proper language. The language was as follows:

“Df. sentenced to confinement in the County Jail of Cook County for term of one year and further sentenced to pay a fine in the sum of one dollar.
“It is hereby ordered that the sentence in this case commence at the expiration of one year sentence in case No. 1717289 and he served cumulatively (concurrently) thereafter.”

We hold the language was sufficient. People v. Decker, 347 Ill. 258. The judgment will he affirmed.

Affirmed.

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


author: Mr. Justice Niemeyer

text:
    Katie M. Havill, Appellee, v. Norman S. Darch et al., Defendants. Norman S. Darch, Appellant.
    Gen. No. 42,673.
    Opinion filed December 13, 1943.
    Newell Mecartney and Eugene M. Darch, both of Chicago, for appellant.

      Edward E. Fleming and Ewart Harris, both of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

The defendant Norman S. Darch appeals from a decree of foreclosure of a mortgage executed August 8, 1927 by William S. Marston and Madeline Lave Mars-ton, his wife, to secure their promissory note of that date in the sum of $4,500, payable five years after the date thereof, with interest.

This note was extended in 1932, and again on August 8, 1937, by extension agreement executed by Madeline Lave Marston (divorced and not remarried). Defendant obtained a deed to the premises involved through bankruptcy sale had January 9, 1941, in the matter of Madeline Marston, bankrupt. The decree found $5,295.08 to be due plaintiff and decreed sale, but stayed the sale under the Soldiers’ and Sailors’ Civil Relief Act because the defendant was then in the military service of the United States. Since 1932 the income from the premises was being collected by a real estate agent under an assignment of rents, for the benefit of the holder of the mortgage note.

Plaintiff closed her proof before the master without showing an accounting as to receipts and disbursements of the assignee of the rents. Defendant then made a motion for recommendation by the master that the complaint be dismissed. Plaintiff asked leave to reopen the case for the introduction of evidence as to the accounting. Defendant objected and by written motion asked that the question of reopening proofs be referred to the chancellor. This motion was overruled and plaintiff proceeded to offer testimony as to the accounting. Defendant objected that the master was without jurisdiction to reopen the evidence and hear further testimony and protested against further proceedings before the master. He was permitted a general objection on this ground to all testimony, and by agreement was permitted to object to tbe competency and relevancy of any testimony without prejudice to the want of jurisdiction or authority in the master to proceed. No evidence was offered on behalf of the defendant.

The master filed a report finding the issues for the plaintiff and recommending foreclosure and sale, etc. In respect to the accounting the master found that the assignee and agent of the owner and holder of the promissory note being foreclosed paid out of the proceeds of the rents received by him all of the operating expenses of the premises, the taxes for certain years and interest on the mortgage indebtedness to and including August 8, 1941, and that he had on hand on July 27, 1942, the sum of $10.67, which amount should be credited upon the indebtedness due on the note. No schedule of receipts and disbursements is attached to the report. Defendant filed objections to the master’s report, which were later considered as exceptions and overruled. No objection was made or exception taken that the master erred in stating the account without setting up a schedule of the receipts and disbursements or the credits to and charges against the collector of the rents. On this appeal defendant questions the right of the master to open up the case and receive further evidence as to the accounting, and also insists that the report of the accounting is defective because not stated in detail.

Prior to the 1941 amendment to section 64 of the Civil Practice Act (ch. 110, par. 188, subpar. (4) [Jones Ill. Stats. Ann. 104.064, subpar. (4)]) a motion to dismiss a complaint for want of equity on a trial before the chancellor was not regarded as proper practice. It was treated as a submission of the cause to the court and the defendant was not entitled as a matter of right to offer any further testimony in the event his motion was overruled. Koebel v. Doyle, 256 Ill. 610, 614; Thorworth v. Scheets, 269 Ill. 573; Abel v. Flesher, 296 Ill. 604. By the 1941 amendment the practice prevailing in actions at law is made applicable to chancery proceedings, the motion to dismiss receives recognition, and the defendant is permitted as a matter of right to proceed to adduce evidence in support of his defense on refusal of his motion to dismiss, the introduction of such evidence being’ deemed to be a withdrawal or waiver of the motion to dismiss. The right of a trial court to open a case for the introduction of evidence after its submission to the court is generally recognized, in equity as well as in law. In Brelsford v. Community High School Dist. No. 36, 328 Ill. 27, 30, an election contest, the court said: “The admission of testimony after the arguments have been made and the instructions read rests in the sound discretion of the court, and the exercise of such discretion is not ground for reversal unless some injury is occasioned to the party complaining. (Indiana, Decatur and Western Railway Co. v. Hendrian, 190 Ill. 501.) The order of the introduction of evidence rests in the sound discretion of the court, and.the exercise of such discretion by allowing the case to be opened for hearing further evidence after both parties had rested and the cause had been taken under advisement by the court will not be interfered with except for clear abuse, and greater latitude should be allowed where the case is tried by the court without a jury than where there is a jury trial. (People v. St. Louis, Iron Mountain and Southern Railway Co., 278 Ill. 25.) The above were cases at law but the rule is not different in equity.” To the same effect is Johnson v. Johnson, 381 Ill. 362, where in considering a case tried before the above mentioned amendment to the Civil Practice Act in 1941, it was held that the chancellor erred in not permitting the defendant in a divorce suit to present her evidence after overruling her motion to dismiss the complaint at the close of plaintiff’s testimony. The court there said (p. 372): “As stated in 30 Corpus Juris Secundum, Equity, section 492, p. 888, ‘A court of equity has full power to set aside a submission of the cause for the purpose of permitting the taking of additional testimony. The matter rests in the discretion of the court.’ ”

Defendant, however, insists that the master, being a ministerial and not a judicial officer, is without power to exercise this discretion. The master is required in the first instance to rule upon the competency of witnesses and the admissibility of testimony. Ellwood v. Walter, 103 Ill. App. 219, 223. His rulings are then reviewed by the chancellor on exceptions to his report. There seems to be no valid reason why the same practice should not prevail on the question of opening the case for further evidence, as was done here. Defendant availed himself of his right of exception before the chancellor, where the action of the master was upheld. Had defendant wished to offer further evidence or to recall plaintiff’s witnesses for cross-examination he could have urged the matter before the trial court and undoubtedly the opportunity would have been given him. The master properly permitted additional evidence to be offered after defendant’s motion to dismiss had brought to plaintiff’s attention a failure to prove a substantial element of her case. Upon the adverse rulings of the master and the trial court, defendant, having failed to request an opportunity to meet the additional evidence by cross-examination or otherwise, cannot now complain.

Under the established rules the report of the master as to the accounting is undoubtedly informal. Craig v. McKinney, 72 Ill. 305. Had proper objection been made before the master and the court, the insufficiency of the report could have been corrected.

The defendant did not abstract the testimony received after the denial of his motion to dismiss the complaint. Eeference to the record shows that there is evidence relative to the assignment of the rents for the benefit of the holder of the mortgage note; that there is detailed information as to receipts and disbursements by the agent collecting the rents from July 1935, and that at the time of the last extension of the mortgage note in August 1937, a statement of income and disbursements, together with receipts covering the expenditures, were submitted to the then owner of the premises and accepted without any objection. The ledger sheets of the firm collecting the rents, itemizing receipts and disbursements, were introduced. Defendant does not point out any error as to any item received or claimed to have been disbursed, and relies solely upon the technical objection that the account has not been stated in detail. Having failed to make the objection before the master, it cannot now be raised.

The decree of the superior court is affirmed.

Affirmed.

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


text:
    Louis Kulesza et al., Appellants, v. Steve Kalisz et al., Appellees.
    Gen. No. 42,688.

      Opinion filed December 13, 1943.
    Harold O. Mules, of Chicago, for appellants.
    Mitchell Kilahowski, of Chicago, for appellees.
   Mr. Justice Niemeyer

delivered the opinion of the court.

In 1942 plaintiffs brought a class suit to establish an equitable lien upon certain patents covering car wheels, axles, etc., for the benefit of themselves and several thousands of other holders of notes totaling $85,000,000, given in consideration of $2,500,000 loaned to the inventor and original owner of the patents prior to 1920. On motion of defendants, sued as the present owners of the patents, the second amended complaint was dismissed. Plaintiffs appeal.

Defendants assign several grounds for the dismissal of the complaint. However, there is a - controlling reason which would have justified the court, upon its own motion, taking such action. The complaint shows that through the lapse of time the subject matter of the litigation has wasted away, so that granting relief would be futile, benefiting no one. The latest patent involved was issued in 1908. All patents had expired by 1926. With their expiration all rights to manufacture, sale or use thereunder ceased (Kellogg Co. v. National Biscuit Co., 305 U. S. 111; Delong Hook & Eye Co. v. Hump Hairpin Mfg. Co., 297 Ill. 359), as did the right to institute equitable proceedings, for infringement. Root v. Lake Shore & M. S. R. Co., 105 U. S. 189; Rice & Adams Corp. v. Lathrop, 278 U. S. 509. Furthermore, the federal statute (U. S. Code, Title 35 Patents, sec. 70) provides that “in any suit or action brought for the infringement of any patent there shall be no recovery of profits or damages for any infringement committed more than six years before the filing of the bill of complaint or the issuing of the writ in such suit or action.” Therefore, nothing remains but an abstract principle, devoid of tangible significance, and for the vindication of that equity will not entertain jurisdiction. 19 Am. Jur., Equity, secs. 20, 21. Nicholson v. Nicholson, 67 Mont. 517, 522.

Upon oral argument plaintiffs advanced the proposition that if interest in the patents was established, they might appeal to Congress for a renewal of the patents. If this power of renewal exists the exercise of it rests solely in Congress as a matter of favor or grace and creates no right or interest in plaintiffs recognized in law. Their position is not unlike that of a person who seeks to protect the estate of a rich relative in the hope or expectation that if the estate is preserved the active litigant may inherit a share of it. This expectancy, subject to defeat by the lawful act of the owner of the estate, is too conjectural and remote to be recognized as a legal right. Sanborn v. Carpenter, 140 Wis. 572.

The order of the circuit court is affirmed.

Affirmed.

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


author: Me. Justice Niemeyer

text:
    First National Bank of Chicago, Appellant, v. Stella L. Counselbaum, Appellee.
    Gen. No. 42,726.
    Opinion filed December 13, 1943.
    Amberg, Livingston, Kearns & Dahlin, of Chicago, for appellant; Ralph J. Mohan and Robert G. Appel, Both of Chicago, of connsel.
    Rothbart & Rosenfield, of Chicago, for appellee; J. M. Rosenfield, of Chicago, of connsel.
   Me. Justice Niemeyer

delivered the opinion, of the court.

Plaintiff appeals from a judgment for defendant in an action to recover the amount due on certain second mortgage bonds and interest coupons, tried before the court on a stipulation of facts. The only issue in the trial court and here is whether plaintiff’s action is barred by its failure to assert its claim against defendant in two foreclosure suits upon a first mortgage covering the same property as that covered in the second mortgage securing the bonds and coupons involved herein.

From the stipulation of facts and the answer of the defendant it appears that plaintiff is the legal holder and owner of 45 bonds of $1,000 each, and the interest coupons relating thereto, executed and delivered by defendant on or about May 1, 1928 and secured by junior mortgage trust deed of that date; that Gabriel Dunkleman, owner and holder of one of the bonds secured by a first mortgage trust deed executed by defendant and conveying the premises described in the junior mortgage trust deed securing payment of the bonds and coupons held by plaintiff, filed a bill for the partial foreclosure of the lien of the first mortgage trust deed, making the parties hereto defendants to that suit; that plaintiff appeared and made proof of its ownership of the bonds and coupons; that a decree of partial foreclosure was entered in which plaintiff was found to be the owner of the bonds involved in this suit; that plaintiff neither asked for nor was granted any relief; that defendant herein was served with summons in that suit; that on a sale of the premises under the decree the full amount due plaintiff in the foreclosure proceeding was bid and no deficiency decree was taken against defendant; that thereafter the Chicago Title & Trust Co., as trustee under the first mortgage trust deed, instituted suit against defendant herein to foreclose the first mortgage trust deed, that defendant was personally served with summons, that plaintiff was made a defendant to the suit and on April 18, 1932 entered its appearance and filed its answer claiming’ ownership of the bonds and coupons on which the present action is based; that plaintiff asked for no affirmative relief and none was granted to it; a decree of foreclosure and sale was entered and after sale a deficiency decree of $86,135.78 was entered November 29, 1939 in favor of the Chicago Title & Trust Co., as trustee.

The parties hereto were codefendants in the foreclosure proceeding’s which defendant relies upon. The rule as to the effect of judgments or decrees in subsequent controversies between coparties is stated in Renfro v. Hanon, 297 Ill. 353, as follows (p. 357): “The general rule is that parties on the same side of a litigation are not bound by a judgment or decree in subsequent controversies between each other respecting their rights, unless they have formed or contested an issue respecting the same and the judgment or decree has determined such rights. The only parties concluded by a decree are adversary parties, and the matter determined must be in issue between them either by the pleadings or in fact. If no issue between co-defendants in a chancery suit is presented and adjudicated the decree is not evidence in favor of either party against the other. (Conwell v. Thompson, 50 Ill. 329; Gouwens v. Gouwens, 222 id. 223; Dempster v. Lansingh, 244 id. 402; 23 Cyc. 1279; 15 R. C. L. 1013.) ” This rule was applied in circumstances almost identical with those in the present case in Gouwens v. Gouwens, 222 Ill. 223, cited above, and very strongly relied upon by plaintiff. In that case two foreclosure proceedings were interposed as a defense to a bill by the plaintiff, wife of the mortgagor, to restrain the levy, etc., of the judgment executions on the premises involyed in one of the foreclosure proceedings. For present purposes it is not necessary to refer to the facts in the foreclosure proceeding involving property other than that levied on. The judgment creditors, together with the mortgagor-owner of the premises and his wife, were parties defendant; each judgment creditor filed an answer setting up the recovery of his judgment and asking that any surplus arising from the sale of the premises should be applied toward the payment of the judgments; a decree of foreclosure was entered finding the amounts due upon the trust deed and the judgments; the judgments were found to be concurrent liens on the premises, subject to the lien of the trust deed; foreclosure and sale were decreed and it was ordered that if there should be any deficiency the master should report the amount, and if there should be any surplus he should hold it subject to the order of the court; the property sold for exactly the amount due upon the trust deed, and costs; subsequently the wife acquired her husband’s title to the property and redeemed from the sale; the judgment creditors then sought to realize their judgments by levy on the property involved in the foreclosure suit; the wife filed a bill to restrain the levy and other proceedings under the executions, making the judgment creditors parties defendant; the judgment creditors filed pleas setting up the foreclosure proceeding, and insisting that the decree therein was res judicata of the lien of the judgments upon the property. The Supreme Court reversed the order of the trial court sustaining these pleas and dismissing the bill, and said (230, 231): “It is undoubtedly proper for persons claiming liens who are made defendants to a foreclosure suit to set up their claims by their answers and to make proof of the facts upon which they claim the liens, but unless there is a surplus after satisfying the mortgage debt there is nothing to litigate as between co-defendants who claim nothing .except a right to participate in such surplus. The only parties concluded by a decree are adversary parties, and the matter determined must be in issue between them. Parties on the same side of a foreclosure suit are not concluded, as against each other, if no issue between them was presented and adjudicated. Where nothing has been litigated as between co-defendants in a chancery suit the decree is not evidence in favor of either party against the other. (Conwell v. Thompson, 50 Ill. 329.) If there had been a surplus there would have been adverse interests between the judgment creditors claiming liens and the mortgagor, and the decision of that question by the court would have been an adjudication of such adverse interests. Manifestly, when the judgment creditors answered in the foreclosure' suit that they had liens, neither the complainant nor her husband could have filed a cross-bill or entered into litigation with their co-defendants as to the existence of their liens. The complainants would have no interest in that controversy, and the court would not listen to it when it could not be known that there would be any surplus to which the alleged liens would be transferred after the sale.”

In the present case, as in the Gouwens case, there being no surplus in the hands of the master as the proceeds of the foreclosure sales, there was never a time in the foreclosure proceedings when an issue arose between plaintiff and defendant. Defendant insists that the Gouwens case is no longer controlling because that case “was decided in 1906 when the present liberal pleading rules under the Illinois Civil Practice Act did not exist.” The foreclosure proceeding brought by the trustee for the benefit of all bondholders was instituted and the appearance and answer of the plaintiff here, as defendant in that suit, was filed as early as April 1932, almost 20 months before the present practice act became effective. The deficiency decree was entered in 1939, but the record does not show when the decree of foreclosure and sale was entered. The partial foreclosure proceeding was concluded before the institution of the suit by the trustee. The provisions of the present practice act as to pleadings, including the right or duty to file counterclaims, did not apply to either of the foreclosure suits. Ill. Rev. Stat. 1943, ch. 110, par. 259.1 [Jones Ill. Stats. Ann. 105.01]. Under the former practice act it has been held .repeatedly that the plaintiff in a foreclosure suit might, but was not obliged to, apply for a money judgment or deficiency when foreclosing. Palmer v. Harris, 100 Ill. 276; Rohrer v. Deatherage, 336 Ill. 450; Lindheimer v. Supreme Liberty Life Co., 263 Ill. App. 524. We need not consider the construction placed by defendant upon Skolnik v. Petella, 376 Ill. 500. The parties to that cause were adversary parties in the foreclosure proceeding interposed as a bar, whereas the parties in the present case were codefendants in the proceedings interposed as a bar to this action.

Defendant insists that of the amount claimed by plaintiff, $22,200 was barred by the statute of limitations. Plaintiff admits this to be correct but states, and the record shows, that defendant’s answer raised the defense of the statute of limitations to only $16,950. On remandment of the case defendant’s answer may be amended in this respect.

The judgment of the municipal court is reversed and the cause remanded with directions to proceed in conformity with this opinion.

Reversed and remanded with directions.

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


author: Justice Burke.

text:
    Howard F. Bishop, Appellee, v. George J. Nikolas, Sr. et al. Appeal of George J. Nikolas, Sr., Appellant.
    Gen. No. 42,620.
    Hebel, P. J., not participating.
    opinion filed November 17, 1943;
    rehearing denied December 27, 1943.
    Johnson & Wiles, for appellant;
    Walter E. Wiles and William B. Basile, of counsel;
    Robert G. Sippel, of counsel, on petition for rehearing;
    Floyd Lanham, for appellee.
   Opinion by

Justice Burke.

Not to be published. in full.


text:
    G. S. Freudenthal, Appellee, v. C. E. L. Lipman, Appellant.
    Gen. No. 42,630.
    Hebel, P. J., not participating.
    opinion filed November 17, 1943.
    A. B. Manion, for appellant;
    G. S. Freudenthal, Jr., for appellee.
   Opinion by

Justice Burke.

Not to be pubUshed in full.


text:
    Donald Rieck, Appellee, v. Benjamin Barsema, Defendant, Thomas M. Madden Company, Intervening Petitioner. Appeal of Thomas M. Madden Company, Appellant.
    Gen. No. 42,818.
    Hebel, P. J., not participating.
    opinion filed November 17, 1943.
    Ross, Berchem & Sehwantes, for appellant;
    no appearance for appellee.
   Opinion by

Justice Burke.

Not to be published in full.


author: Justice Kiley.

text:
    William H. Gray et al., Appellants, v. First National Bank of Chicago, Appellee, Ina Gray Cook, Appellant, John J. Ames, Appellant.
    Gen. No. 42,211.
    Hebel, P. J., not participating.
    opinion filed November 17, 1943.
    Coburn & Coburn, for certain appellants;
    Louis T. Herzon, of counsel;
    Weinberg, Kjellander, O’Farrell & Ames, for certain other appellants;
    John J. Ames, of counsel;
    Amberg, Livingston, Kearns & Dahlin and Nat M. Kahn, for appellee;
    John W. Kearns and Nat M. Kahn, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    In re Estate of Frederick E. Foster, Deceased. Richard O. Olson, Administrator, Appellee, v. Murray A. H. Turner, Appellant.
    Gen. No. 42,280.
    Hebel, P. J., not participating.
    opinion filed November 17, 1943.
    Joseph W. Cox, for appellant;
    Downer McCord and Harold E. Christensen, for appellee.
   Opinion by

Justice Kiley.

Not to be published in fuU.


text:
    Woodlawn Union Baptist Church et al., Appellees, v. Hamilton D. Martin et al., Appellants.
    Gen. No. 42,287.
    Hebel, P. J., not participating.
    opinion filed November 17, 1943.
    Ellis & Westbrooks and Lucia Theodosia Thomas, for appellants;
    Richard E. Westbrooks, of counsel;
    William H. Haynes, for appellees.
   Opinion by

Justice Kiley.

Not to be published in. full.


text:
    William Langford, Appellant, v. Paul F. Smith, Appellee.
    Gen. No. 42,405.
    Hebel, P. J., not participating.
    opinion filed November 17, 1943.
    James A. Dayton and William H. Leigh, for appellant;
    Rosen, Praneis & Cleveland, for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Presiding Justice O’Connor.

text:
    City of Chicago, Appellee, v. Wholesale Coal Distributors Company and William H. Rubin, Appellants.
    Gen. No. 42,683.
    opinion filed December 13, 1943.
    William Henning Eubin, for appellants;
    Barnet Hodes, Corporation Counsel, for appellee;
    J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Escanaba Veneer Company, Appellee, v. W. A. Herbert, Individually and Trading as W. A. Herbert and Company, Appellant.
    Gen. No. 42,693.

      opinion filed December 13, 1943.
    C. J. Morgan and E. A. Halligan, for appellant;
    Musgrave, Oppenheim, Price & Ewins, for appellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Anna Berning, Appellee, v. Carrie E. Berning et al. Appeal of Carrie E. Berning, Appellant.
    Gen. No. 42,714.
    opinion filed December 13, 1943.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Presiding Justice O ’Connor.

text:
    Josephine Larson, Appellee, v. City of Chicago, and Walter J. Cummings and Daniel C. Green, Receivers, et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 42,733.
    Niemeyer, J., dissenting in part.
    opinion filed December 13, 1943.
    Barnet Hodes, Corporation Counsel, for certain appellant;
    J. Herzl Segal, Assistant Corporation Counsel, of counsel;
    Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, for certain other appellants;
    William J. Flaherty, of counsel;
    Whitney, Teitelbaum & Freeman, for appellee.
   Opinion by

Presiding Justice O ’Connor.

Not to be published in full.


author: Justice Matchett.

text:
    Lucy W. Dobson, Appellant and Cross Appellee, v. Robert B. Dobson, Appellee and Cross Appellant.
    Gen. No. 42,678.

      opinion filed December 13, 1943;
    rehearing denied December 28, 1943.
    J. Edward Jones, for appellant and cross appellee;
    Norman C. Barry and Eraneis L. Brinkman, for appellee and cross appellant.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Walter Hamilton, Appellant, v. Country Club Properties, Inc., Appellee, Trust Company of Chicago, Supplemental Defendant, Appellee.
    Gen. No. 42,711.
    opinion filed December 13, 1943.
    Walter Hamilton, pro se; Charles H. Borden, for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Lillian Nacon, Appellee, v. Ira Isaacson and Ethel Isaacson, Appellants.
    Gen. No. 42,730.
    opinion filed December 13, 1943.
    Anderson & Roehej for appellants;
    no appearance for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


author: Justice Niemeyer.

text:
    Lillian Goldberg, Appellant, v. Christ Georgeadis, Appellee.
    Gen. No. 42,660.
    opinion filed December 13, 1943.
    Philip J. Simon, for appellant;
    Ed McTiernan and Jaeob Levy, of counsel;
    Immenhausen, Banovitz, Balin & Goebel, for appellee;
    Meyer C. Balin, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Eldra Hague, Plaintiff, v. Edith M. Kiester, etc., et al., Defendants. Edith M. Kiester, Appellant, v. Charles Busam, Appellee.
    Gen. No. 42,663.
    opinion filed December 13, 1943;
    rehearing denied December 28, 1943.
    George A. Bosomburg, for appellant;
    Kinne, Seovel, Robson & Murphy, for appellee;
    Harold E. Seovel, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Justice Niekeyer.

text:
    Norman P. Johnson, Appellee, v. Borden Company, Appellant.
    Gen. No. 42,717.
    Matchett, J., dissenting.

      opinion filed December 13, 1943;
    rehearing denied December 28, 1943.
    Philip S. Campbell, for appellant;
    Edward L. Richter and Pereival E. Thompson, for appellee.
   Opinion by

Justice Niekeyer.

Not to be published, in full.