text:
    B. F. Jones v. J. W. Hunter.
    1. Instructions — To be Accurate, Where There is a Conflict in the Testimony. — Where there is a sharp conflict in the testimony, the accuracy of the instructions is especially important.
    2. Same— Where the Instructions Are Too General. — In an action for goods sold and delivered, where the declaration contains different counts, it is error to instruct the jury not to find for the plaintiff unless he has proved every material allegation contained in all the counts of his declaration. To a recovery it is only necessary for the plaintiff to prove the material allegations contained in some one count of his declaration.
    Assumpsit, for goods sold, etc. Appeal from the County Court of McLean County; the Hon. Roland A. Russell, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed December 10, 1901.
    Barry, Morrissey & Fifer, attorneys for appellant.
    Rowell, Neville & Lindley, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellee purchased a stock of goods of appellant at Chenoa, Blinois. Soon after, he entered into a contract for the purchase of another and larger stock of goods belonging to appellant at Monmouth, Illinois, at a price to be fixed by invoice of the goods at their market value. The terms of the contract required appellee, in payment of the Monmouth stock of goods, to turn over to appellant the Chenoa stock of goods at the price they had been invoiced to him in the previous trade, $6,806, to convey to appellant certain real estate at the value of one-half the balance, to transfer to appellant certain bank stock valued at $1,750, and to execute to appellant his promissory note for the remainder. It was further agreed that appellee should turn over to appellant all cash received by him from goods sold out of the Chenoa stock during the time he had possession of those goods. The Monmouth stock invoiced $15,601.02. The amount of cash received by appellee out of sales from the Chenoa stock, amounted to $34.88. Appellee conveyed to appellant real estate valued at $4,000, turned over the Chenoa stock of goods, and, instead of executing his note to appellant, paid him $3,900. These payments, together with certain small interest and expense charges made against appellant, aggregated $14,762.73.

This suit was brought by appellant to recover the difference between the invoice price of the goods and the amount of the payments, $838.29, and the $34.88 received from sales from tlie goods at Chenoa. Appellee pleaded the general issue, payment and accord and satisfaction, setting up that disputes having arisen as to the correctness of the invoice of the Monmouth stock of goods and as to the amount due from appellee in settlement of such disputes, appellee deeded to appellant certain Indiana real estate and paid him $3,900 in money, which was accepted and received by appellant in full satisfaction of all claims made by him against appellee. Upon replications, denying the pleas, being filed, a trial by jury was had, resulting in a verdict in favor of appellee and a judgment against appellant for costs.

As the judgment must be reversed because of an erroneous instruction, and the cause remanded for trial by another jury, we refrain from expressing any opinion upon the merits of the case, and do not care to enter into an extended discussion of the evidence.

There was a sharp conflict in the testimony upon the vital points in controversy, wherefore accuracy of instructions was especially important. Among the instructions given to the jury in behalf of appellee, we find the follow-

“6. The court instructs you that in this case the burden of proof is upon the plaintiff to prove all material allegations of the declaration by a preponderance of the evidence. If you believe, after considering all the evidence in the case, that the evidence is equally balanced on any material allegation of the declaration, or that the evidence preponderates in favor of the defendant on any such material issue made by the declaration, then you should find your verdict in favor of the defendant.”

The declaration contained a special count, under which the plaintiff sought a recovery for $838.29 difference, and the common counts, under which he sought a recovery for the $34.88 item. By the instruction quoted, the jury were told, in effect, that they should not find for the plaintiff tinless he proved every material allegation contained in all counts of the declaration, those in the special as well as those in the common counts. To a recovery, it was only necessary for the plaintiff to prove the material allegations contained in some one count of his declaration. The instruction is also open to the criticism that it leaves to the jury the determination of what are material allegations. Ho instruction- was given defining the material allegations involved.

The judgment will be reversed and the cause remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Harker

license: Public Domain

text:
    Abraham Brokaw v. Commissioners of Highways.
    1. Highways — Assess??? ent of Damages in Laying Out — Instructions. —Giving an instruction which ignores section 46 of the act in relation to laying out highways (Hurd’s R. S. 1899, page 1447), providing that in estimating the damages, other than for property actually taken, the jury may consider the benefits conferred, but no benefits enjoyed in common by the owners of surrounding property shall be considered in estimating such damages, is reversible error.
    , Assessing Damages, for land taken for a highway. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed December 10, 1901.

      Rowell, Neville & Lindley, attorneys for appellant.
    Barry, Morrissey & Fifer, attorneys for appellees.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellant owns a farm of ninety-nine acres in the town of Arrowsmith, McLean county, sixty-six rods wide, east and west, and 240 rods long, north and south. A public road runs along the west side of the farm and intersects an east and west road, three-fourths of a mile north of the farm. For quite a number of years before the commencement of this suit, a road leading from the first mentioned road, ran across the south part of appellant’s farm and thence in a northeasterly direction over other lands, to intersect with north and south road which led into the village of Arrowsmith. Proceedings to vacate that road and open up a new one across appellant’s farm farther north were had, and this suit was commenced before a justice of ' the peace for the purpose of determining appellant’s damages as provided by the forty-first section of the road and bridge act. Upon a trial there, his damages were assessed at $325. On an appeal prosecuted by him to the Circuit Court, another trial was had in which his damages were assessed at $151.

Among the instructions given for the appellees, appear the following:

“ Before you can allow defendant Brokaw anything for damages to the property not taken for the proposed new road, you must believe from the evidence and your view of the premises, that the market value of his land not taken will be depreciated by reason of the proposed improvement.”
“ Ton are instructed that if you believe from the evidence and your view of the premises in question, the lands of defendant Brokaw not actually taken for the proposed new road, would be specially benefited to the extent or greater than they would be damaged by the opening of the new road and the vacating or closing of the old road, then the jury should only find a verdict for the compensation for the strip of land actually required to be taken for the opening of the new road at its fair cash market value.”
Before you can allow defendant Brokaw any damages to his land not taken for the proposed new road, you must believe from the evidence that the making of the proposed new road will cause him a real damage. It must be of such a character as to depreciate the market value of the property; you can not allow him for any imaginary or speculative damages.”

These instructions ignore the latter part of section 46 of the act mentioned, which provides, “ that in estimating the damages, except damages to property actually taken for a road, the jury may consider the benefits conferred; but no benefits enjoyed in common by the owners of surrounding property shall be considered in estimating damages.” Hurd’s Revised Statutes, 1384.

From the situation of appellant’s land, the lands of others and the different roads in question, as shown by the evidence, all land owners in that vicinity may be benefited by the change. Under those instructions, the jury were authorized to consider such common benefits. Court and counsel were evidently led into the error contained in these instructions by having in mind the rule so frequently announced by our Supreme Court, that in proceedings under the eminent domain act, damages to property not taken may be compensated by benefits, and that the true measure is the difference in the value of the land before and after the proposed improvement. The eminent domain act contains no such provision as that quoted above, and the difference in the two acts in that regard is recognized by our Supreme Court in West Side Elevated Ry. Co. v. Stickney et al., 150 Ill. 362.

For the error contained in the instructions quoted and for the additional one that the damages allowed are entirely inadequate, as shown by the proofs, the judgment will be reversed and the cause remanded.


text:
    City of Taylorville v. Mary A. Stafford.
    1. Evidence — In Actions for Injuries Sustained upon Defective Sidewalks — Notice. —In an action for an injury sustained upon a defective sidewalk the plaintiff has the right to show the bad condition of the walk at other points in close proximity to the place where the injury occurred, and the length of time such condition had existed, as tending to show notice to the municipal authorities.

      2. Same — Of Similar Accidents at the Same Place. — In an action for injuries resulting from a fall upon a defective sidewalk, proof that other persons had met with similar accidents at the same place, is proper as tending to show the dangerous condition of the walk.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Christian County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed December 10, 1901.
    Leroy Anderson, City Attorney, Hogan & Drennan and Jas. B. Ricks, attorneys for appellant.
    J. C. & W. B. McBride, attorneys for appellee.
   Mr. Presiding Justice Harker

delivered the opinion of the court.

Appellee recovered a judgment of $1,000 for-injuries sustained by her in tripping and falling over a stub projecting from one of appellant’s sidewalks.

The chief ground for urging a reversal is that the verdict is not supported by the evidence. The evidence shows that while appellee, an elderly lady, was passing along one of appellant’s plank sidewalks, she struck her foot against a wooden stub which projected above the sidewalk about two inches-, and was thereby thrown to the ground with such force as to break her left arm. The sidewalk was a three plank walk, the plank running lengthwise on cross-stringers. At the point where appellee was injured, one of the planks had become decayed, and the city authorities, instead of replacing it with a sound plank, had removed the decayed part, and to fill the space thus left, had nailed down a wooden strip. two feet long. The strip was laid flush with the plank, one end resting on a cross-stringer. It was not long enough to fill up the entire space and a stub, one and three-fourths by two inches at the top, was driven into the ground at the other end to fill up the uncovered part. When placed, the stub was flush with the strip, but with the freezing and thawing of the ground, had ' worked up above the walk about two inches. It had been in that condition four or five weeks, when appellee sturn- ■ bled over it. It is vigorously contended that the stub was of such infinitesimal proportions that the city should not be charged with negligence for allowing it to remain in that condition. We can not take that view of it. It was of such proportions as to cause appellee to fall and break her arm. Several other persons had stumbled over it; one witness had, but a few hours before appellee was hurt. It was a menace to persons traveling over the walk by night or by day; and it had been in existence for such a length of time as to justify an inference of notice to the city authorities.

It is claimed that appellee is not entitled to recover for the reason that she was not in the exercise of ordinary care for her own safety. It is argued that common observation would have discovered to her the stub and that she could have avoided it by walking on the other side of the walk, where there was plenty of room. While this contention does not harmonize very well with the “ infinitesimal proportions ” one, we will simply say in answer to it that the evidence shows that the stub was of the same color as the plank and that it was not such as to readily attract attention. Appellee knew nothing of its presence, and, being sixty-five years old, was of the age usually accompanied by failing eyesight. She was walking at a moderate rate and was giving usual observation as to where she was stepping. The jury were fully justified in saying, as they did by their verdict, that appellee was in the exercise of ordinary care for her own safety.

It is urged that the court erred in allowing proof of the existence of other like stubs near to and of like condition with the one that caused appellee’s fall. Appellee had the right to show the bad condition of the walk at other points in close proximity to where she was hurt and the length of time that condition had existed, as tending to prove notice to the city. Proof of similar dangerous stubs all along the walk in question and near by would show a state of facts from which notice of the defective condition ough t fairly to be inferred. Brownlee v. Village of Alexis, 39 Ill. App. 135; City of Shelbyville v. Brant, 61 Ill. App. 153.

Proof that others had stumbled over the same stub was proper for the same reason and as tending to show its dangerous condition. City of Bloomington v. Legg, 151 Ill. 9.

In view of the testimony of certain of appellant’s witnesses conflicting with appellee’s witnesses as to the height of the stub above the plank, it was proper for the court to allow in rebuttal that the stub had been driven down after the accident and before measurements were taken by appellant’s witnesses.

Although there was no evidence on which to base the fourth instruction given for appellee, yet we can not see how it worked any serious harm to appellant. We discover no error in the other instructions given for appellee, and to the contention that the court erred in refusing instructions asked by appellant, we only care to say that the instructions given in its behalf presented the law of the case and its defense in all its phases in as favorable a light as it was entitled to. Substantial justice has been done and the judgment will be affirmed.


author: Mr. Presiding Justice Burroughs

text:
    Piatt County v. J. D. Knott.
    1. Counties — Not Liable to Physicians for Making Examinations of Dead Bodies to Enable Them to Give Expert Testimony at Inquests.— There is no law in this State making a county liable for the services of a physician employed, by the coroner to make an examination of a dead body for the purpose of enabling him to give expert testimony at an inquest.

      Assumpsit, for professional fees earned as a physician to enable him to give expert testimony at an inquest held by the coroner. Appeal from the Circuit Court of Piatt County; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed.
    Opinion filed December 10, 1901.
    Charles F. Mansfield, State’s Attorney, for appellant.
    Reed & Edie, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

This was an action of assumpsit in which appellee recovered a judgment in the Circuit Court of Piatt County against that county for certain professional fees earned as a physician to enable him to give expert testimony in two inquests held by the coroner of that county upon the dead bodies of one Bearden and one Hines. The declaration contained the common counts only, and the plea was the general issue.

The trial was by the court without a jury, by consent, and resulted in a finding and judgment in favor of appellee for $70, to which appellant excepted, prosecutes this appeal, and to effect a reversal of the judgment insists, among other things, that the finding and the judgment are contrary to the law and evidence of the case.

It appears that appellee is a regularly licensed physician practicing his profession at Monticello in Piatt county, and at the request of the c roner of ’that county he made a post mortem examination of the body of one Bearden who had died in that county under circumstances which caused the coroner to hold an inquest upon the body, and at which the doctor was called by the coroner as a witness and gave expert testimony of what he discovered by said examination. Also that one Mrs. Hines died in the same county, and it being suspected that her death was due to the administration of poison, the coroner held an inquest upon her body and requested appellee to make a post mortem examination of it. The doctor went to the place where the body was, and finding that the stomach had been filled with embalming fluid, he would not make a post mortem examination because it could not then be accurately determined whether poison had been administered to her or not; but he did examine her body and was called by the coroner and testified as an expert witness as to what he discovered by the examination. The fees claimed by appellee for the two examinations were shown to be reasonably worth $70.

In support of the finding and judgment it is contended that the professional services in question having been performed at the request of the coroner in aid of the two inquests the county is liable to pay for them at what they were reasonably worth. But we can not concur in that view because there is no statute of this State which makes provision for the coroner to employ physicians to make examinations of dead bodies to enable them to give expert testimony at inquests and be paid by the county, as fees, therefor. And in the absence of any such statutory provision no such fees can be recovered from the estate of the deceased person whose body was examined (Smith v. McLaughlin, 77 Ill. 596), or from the county in the interest of the proper enforcement of our criminal laws (Fears v. Nacogdoches County, 71 Texas, 337), because “a witness or officer of the law has no legal right to recover on a quantum meruit for services rendered under the requirements of the law. For such services he is limited to the fee or compensation fixed by the statute.” Smith v. McLaughlin, supra,; Constant v. Matteson, 22 Ill. 546; Eimer v. Eimer, 47 Ill. 373; Dixon v. People, 63 Ill. App. 585, affirmed in 168 Ill. 179; and North Chicago Street R. R. Co. v. Zeiger, 182 Ill. 9.

In some of the States, statutes have been passed in the interest of apprehending those who commit crime authorizing coroners in their discretion to employ physicians to perform professional services to enable them to give expert testimony at inquests, and making provision for paying such services by the county; but until the legislature of our State shall have enacted such statute the courts must declare the law as it is.

It follows that the finding and judgment of the Circuit Court are contrary to the law and evidence of this case and for that reason we will reverse the latter with finding of facts. Reversed.

The clerk will incorporate in the judgment of this court this:

The court finds that the appellant was not indebted to appellee in manner and form as charged in the declaration.”


author: Mr. Justice Adams

text:
    J. Irving Pearce et al. v. Robert Miller.
    1. Confession of Judgments — Courts of Law Exercise Equitable Jurisdiction on Motions to Vacate. — On motions to vacate judgments by confession a court of law exercises a purely equitable jurisdiction and will not disturb such judgment unless the moving party shows that he does not owe the amount of it, and if it appears to the court that in an action on the note a judgment must be rendered against the moving party, the judgment by confession will not be disturbed.
    Motion to Vacate a Judgment by Confession. — Appeal from the Superior Court of Cook County; the Hon. Axel Chyteaus, Judge, presiding. Heard in this court at the October term, 1900.
    Affirmed.
    Opinion filed January 16, 1902.
    James E. Purnell and Brode B. Davis, attorneys for appellants.
    W. O. Johnson, D. J. & D. J. Schuyler, Jr., and John Stirlen, attorneys for appellee; D. J. Schuyler, of counsel.
   Mr. Justice Adams

delivered the opinion of the court. May 19, 1900, at the May term, 1900, of the court, judgment was entered by the trial court in favor of appellee and against appellants by confession, for the sum of $6,500, on the following note, and by the virtue of the power of attorney thereto attached:

“ $6,000. Chicago, III., May 18, 1900.
Ninety days after date, for value received, we promise to pay to the order of Produce Exchange Bank of Chicago,
$6,000, at their office in Chicago, Ill., with interest at seven per cent per annum after maturity until paid.
And to secure the payment of said amount we hereby authorize irrevocably any attorney of any court of record to appear for us in such court, in term time or vacation, at any time thereafter, and confess judgment without process in favor of the holder of this note for such amount as may appear to be unpaid, whether due or not, hereby expressly ivaiving all benefit under the exemption laws of Illinois, together with costs and five hundred dollars attorney’s fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that our attorney may do by virtue hereof. And said bank, or its assigns, is hereby authorized to apply upon this note, at its option, any money or other property in the possession of said bank, or its assigns, belonging to the undersigned.
John Irving Pearce, Jr.,
J. Irving Pearce.”

The pleadings are such as are usual in like cases. The appellants, J. Irving Pearce and J. Irving Pearce, Jr., moved the court, at the June term, 1900, of the court, to vacate and set aside the judgment, which motion was heard on affidavits in support of and in opposition to the motion. The court, June 30, 1900, reduced the amount of the attorney’s fee included in the judgment from $500 to $200, whereupon appellee remitted $300 from said judgment entered May 19, 1900, and the court overruled appellant’s motion to vacate the judgment. The affidavits are too voluminous to be set forth in this opinion or referred to in detail. The sole contention of appellants, as appears by the affidavits filed in support of their motion, is that when the note and warrant of attorney were executed by them, the word next before the words hundred dollars attorney’s fees ” was two,” and that since the execution and delivery of the instrument to the Produce Exchange Bank, the word two” has been changed to “ five.” We are of opinion, from a careful reading of the affidavits for and against the motion, and from inspection of a photograph in evidence of the words “ five hundred dollars,” now in the instrument, that no such change as claimed by appellants was made. The note on which judgment was entered, was assigned to appellee before maturity, and it was made under the following circumstances: Prior to February 17, 1900, appellant J. Irving Pearce, Jr., had borrowed from the Produce Exchange Bank $6,000, $5,000 of which was evidenced by his promissory note, payment of which was guaranteed by his father, J. Irving Pearce, the other appellant. February 17, 1900, the said sum of $6,000 being past due and wholly unpaid, the bank, at the request of appellants, extended the time for the payment of the same, on appellants executing to the bank a judgment note for $6,000, the warrant of attorney authorizing confession of judgment for $200 attorney’s fees, in addition to the principal sum evidenced by the note. When the last mentioned note fell due, appellants being unable to pay anything on it, the note first above mentioned, of date April 18, 1900, was made. It is apparent from the facts stated that, aside from the contention of the alteration of the amount of the attorney’s fee, there is no defense to the note.

Appellants do not claim that they are not justly indebted to appellee in the sum of $6,000, nor do they claim that they are not indebted for an attorney’s fee, except on' the theory that the warrant of attorney was altered as above mentioned, which theory we do not find supported by the weight of the evidence.

In Berg v. Commercial Nat. Bank, 84 Ill. App. 614, the warrant of attorney to confess judgment was executed by one of two partners in the partnership name, and it was conceded that one partner has no implied authority from the mere partnership relation, to bind his partner by the execution of a warrant under seal in the firm name, nevertheless, it appearing that the partnership owed the debt evidenced by the note, we affirmed the refusal of the trial court to set the judgment aside, saying :

“It has been repeatedly held that, in cases of judgments by confession, a court of law exercises a purely equitable jurisdiction, and that it will not disturb such a judgment upon a motion to vacate it, unless the moving party shows that he does not owe the amount of the judgment; or, in other words, that if it appears to the court that in an action on the note a judgment must be rendered against the moving party, the judgment by confession will not be disturbed. Hier v. Kaufman, 134 Ill. 215,225; Farwell v. Huston, 151 Ill. 239, 245.”

In Farwell v. Huston, 151 Ill. 239, 245, the court say:

“ Such relief will not be granted if it appears that the debtor owes the amount of the judgment, and has no defense, either legal or equitable, to the debt for which the judgment was rendered,” citing prior cases.

An application to set such a judgment aside must be determined on equitable grounds, as has been held in numerous cases, and we are satisfied that a court of equity would not, on bill filed, set aside the judgment in question on such evidence as is contained in the record before us.

We are of opinion, from inspection of the entire record, that substantial justice has been done, and the judgment will be affirmed.


author: Mr. Justice Sears

text:
    David Bradley & Co. v. Peabody Coal Co.
    1. Rents — When Due and Payable. — Where the rent reserved for the entire term of a demise is for a definite sum. the principal portion of
    ' which is made payable at fixed periods by the specific provisions of the lease, but as to the remaining portion no time is fixed for its payment, such portion is payable at the expiration of the term.
    2. Same — Where No Time is Fixed for the Payment of the Rent.— Where no time is fixed for the payment of a specific portion of the rent o£ a demise, such portion is due at the expiration of the term; but the payment of such portion at an earlier period of the term will be good as between the lessor and lessee, and a payment in advance will ordinarily be good as against a party who, after the payment, acquires the reversion and assignment of the lease.
    3. Presumptions — As to the Existence of the Common Law in Adjacent States. — The act of parliament in 32 Henry VIII, by which it was enacted in effect that the assignee of the reversion should be entitled to the rents, became by adoption a part of our common law, and in the absence of evidence to the contrary it will be presumed to be the law in the State of Iowa governing in controversies over transactions arising in that State.
    4. Attornment — Necessity of, Dispensed with by Statute. — Under section 14 of chapter 80 of the Revised Statutes, the necessity of an attornment is dispensed with in certain cases.
    5. Same — What is Tantamount to an Attornment. — The fact that after an assignment of a lease, the lessee recognizes the assignee as his landlord and pays rent to him, operates as a sufficient attornment in all cases.
    6. Assignment — Of Leases — Effect on Previous Payments of Rent.— Where no time is specified in a lease for the payment of a portion of the rent reserved, such portion does not become due until the expiration of the term; but the payment of it at any previous period operates to put < the assignee of the reversion in the place of the grantor or assignor, and vests him with the rights of such grantor or assignor, and if such payment is made before the assignment, whether in advance or otherwise, the lessor can not collect it a second time by suit, and no more can his grantee of the reversion or his assignee of the lease.
    7. Reversion — Effect of Mortgages upon. — The effect of giving a mortgage by a lessor upon his reversionary interest in the demised premises imposes no limitation upon his rights.
    8. Mortgage Sales — Of Demised Premises. — The purchaser at a sale of the demised premises under a decree of foreclosure acquires no right to the rent of such premises by reason of the mortgage or the sale upon foreclosure of the same, unless a notice of claim to the rents under the mortgage or notice of sale is given to the tenant before the ' payment of such rents by him.
    Action for Rents. — Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1901,
    Reversed and remanded.
    Opinion filed January 16, 1902.
    Statement. — David. Bradley & Go., a corporation, and • appellant herein, was engaged in the business of selling agricultural implements in Council Bluffs, Iowa. It took a written lease of certain premises from the owner thereof, George F. Wright, for the term of eight years. The lease was for the period from July 1, 1890, to June 30, 1898. It provided that the total rental for that period should be §20,000, to be paid, as follows:
    Cash down on July 1, 1890...............$8,000
    July 1,1891 ............... 4,000
    July 1, 1892............... 2,000
    July 1,1893 ............... 250 and. at the rate of $250, quarterly, for the five years from July 1, 1893, to June 30, 1898. While the total rent of the whole term was to be $20,000, the time of payment is specified in the lease for only $19,000. The lease does not state when the $1,000, being the difference between the total rental of $20,000 and the enumerated payments aggregating $19,000, was to be paid. It is to recover this sum of $1,000, as rent reserved by the lease, that this suit was brought.
    George F. Wright, the owner of the premises and lessor in the lease, was one of the attorneys for David Bradley & Co., lessee. Their relations were friendly. . Wright owned a farm near Council Bluffs, and during the period of the lease purchased his agricultural implements from his lessee, David Bradley & Co., which was doing business in that line. When he did so he would not pay for his implements in cash, but the amount would be charged up against any rent due him under the lease. Frequently he called for cash as rent under the lease, and David Bradley & Co. would pay it to him. The account ran on this way from July 1, 1890, the date of the making of the lease, to July 1, 1895. Frequently, during that period, the price of implements furnished and cash paid Wright, would exceed the amount due him for rent under the lease, and he would at such times give his note for the excess. On July 1, 1895, there had been paid by appellant to Wright, during the five years that the lease had then run, $17,000 as rent, and on that day there remained unpaid the sum of $3,000, being the rent to become due at the rate of $250 per quarter during the three years, from July 1,1895, to June 30, 1898.
    On July 1, 1895, the premises occupied by the appellant and leased as above stated, were conveyed by sheriff’s deed to Peabody Coal Company, appellee. At the same time George F. Wright executed an assignment to Peabody Coal Company, appellee, of the lease, and his interest in the rents to accrue thereunder after the date of the assignment. In other words, on July 1, 1895, the lease of appellant still had three years to run. The reversion was conveyed by sheriff’s deed on that date to appellee, and on that date appellee received an assignment of the lease from George F. Wright, entitling it to collect all the unpaid rents which should accrue during the last three years of the lease.
    After this date, July 1, 1895, appellant paid the rent as it accrued, $250 quarterly, to appellee, making a total payment by appellant to appellee of $3,000 during the last three years of the lease.
    In December, 1892, which was more than two years after the making of the lease, George F. Wright gave a mortgage on the leased premises to Francis 8. Peabody, president of appellee, which mortgage was shortly thereafter assigned to appellee, so that, in so far as this case is concerned, it may be treated as a mortgage to the Peabody Coal Company, appellee. In the spring of 1894 foreclosure proceedings were instituted by appellee against George F. Wright, owner of the premises, and a sale of the premises was had on June 18, 1894. Under the law of Iowa, Wright’s period of redemption expired in June, 1895. George F. Wright not having redeemed, the premises were conveyed by the sheriff on July 1, 1895, to appellee.
    It is undisputed that, after July 1, 1895, and up to June 30, 1898, appellant paid appellee the sum of $3,000 as rent under the lease, and that no question was raised during that time as to the $1,000 which is the subject of this suit. It is also practically undisputed that, prior to July 1, 1895, appellee had paid George F. Wright $17,000 as rent under the lease, although the payments specified in the lease as due for that period amount to only $16,000. In other words, appellant paid to George F. Wright, prior to the time appellee became the owner of the premises, the $1,000 rent, the time of payment of which was not specified in the lease. ,
    Appellee, as owner of the reversion and assignee of' the lease, brought this suit to recover the $1,000 of rent reserved by the terms of the lease, the time for the payment of which was not fixed by the lease. Appellant defended upon the ground that it had paid this rent to Wright, its lessor, before the right to the reversion had been acquired by appellee and before the assignment of the lease by Wright to appellee.
    The precise time of the payment of the $1,000 of rent in question by appellant to Wright does not appear, except that it was before July 1, 1895. Whether it was before or after the foreclosure sale of the demised premises under appellee’s mortgage, by which sale appellee became the purchaser, does not appear. Ho specific notice of the foreclosure proceeding appears to have been given by appellee to appellant, for the purpose of notifying appellant that after such sale the appellee would claim right to the rents of the premises. It is, however, contended by appellee that appellant, through its agent, Loomis, had knowledge of the foreclosure proceeding. This contention is based upon the following testimony of Loomis : “ I remember that Mr. Wright was likely to lose his title to the property through foreclosure proceedings.”
    The cause was submitted to a jury and a verdict was returned, by which the issues were found for appellee, and its damages were assessed at $1,000, the amount sued for.
    From judgment upon this verdict the appeal here is prosecuted.
    Henry A. Gardner and Henry L. Stern, attorneys for appellant.
    Arthur W. Underwood, attorney for appellee.
    Bent not due is a part of the realty itself. It is an incident of the reversion, and passes to a purchaser at sheriff’s sale. Burden v. Thayer, 3 Metc. (Mass.) 76; Disselhorst v. Cadogan, 21 Ill. App. 180; Foote v. Overman, 22 Ill. App. 184; Carson v. Crigler, 9 Ill. App. 83; Bloodworth v. Stevens, 51 Miss. 480; Lancashire v. Mason, 75 N. Car. 457; Montague v. Gay, 17 Mass. 439; Hatfield v. Lockwood, 18 Iowa, 296; Dixon v. Niccolls, 39 Ill. 384; Epley v. Eubanks, 11 Ill. App. 274; Van Wagner v. Nostrand, 19 Ia. 422; Hatfield v. Lockwood, 18 Ia. 296; Braddee v. Wiley, 10 Watts, 362; Abercrombie v. Redpath, 1 Clarke (Iowa), 111.

      Payment of rent in advance is not a fulfillment of the covenant to pay rent, but is an advancement to the landlord, on an implied condition that he continue entitled to the rent till the day of payment. De Nichols v. Saunders, L. R., 5 C. P. 594; Cook v. Guerra, L. R., 7 C. P. 132; Stone v. Knight, 23 Pick. (Mass.) 97; Hatch v. Sykes, 64 Miss. 307; Jones on Mortgages, Vol. 1, Sec. 774; Clun’s case, 10 Co. R. 127 b; Wood fall, Landlord and Tenant, 423.
    A mortgage of leased premises transfers to the mortgagee the right to receive the rent. Pingrey on Mortgages,’Sec. 932.
    Grantee of leased premises may sue for rent in his own name. Foote v. Overman, 22 Ill. App. 184; Barnes v. Northern Trust Co., 169 Ill. 116.
   Mr. Justice Sears

delivered the opinion of the court.

The only question presented upon his appeal is as to the effect of the payment of the $1,000 of rent by appellant to Wright before the appellee had acquired the reversion through sheriff’s deed and before Wright had assigned the lease to appellee.

The rent reserved for the entire term of the demise was $20,000. Of this sum $19,000 was made payable at fixed times by specific provision of the lease. As to the remaining $1,000, no time was fixed for its payment. It would, therefore, be payable at the expiration of the term. The payment of it at any earlier period would, of course, be good, as between lessor and lessee. We are of opinion that such a payment in advance would also ordinarily be good as against one who, after the payment, acquired the reversion and assignment of the lease.

At the common law there was no right of action upon the lease in a grantee of the lessor’s reversion; for there was no privity of contract between such grantee and the lessee. Nor could an assignment of the lease operate at the common law to invest the assignee with legal title to the rents. By act of Parliament in 32 Henry VIII, it was enacted in effect that the assignee of the reversion should be entitled to the rents. This became, by adoption, a part of our common law. In the absence of evidence to the contrary, it must he presumed to be the law governing in the State of Iowa, where the transactions now in question arose. But the courts of England and of this country have held that even after the enactment of that statute, yet it "required an attornment by the tenant to enable the grantee of the reversion to maintain an action for the rents due upon a lease made by his grantor, for although the assignment of the reversion might create a privity of estate between lessee and assignee, yet there would be no privity of contract until the lessee had attorned. Such, at least, is the construction of the statute in this State. Fisher v. Deering, 60 Ill. 114.

Authorities elsewhere differ as to the effect of the statute and the necessity, after its enactment, of any attornment. 2 Taylor on Landlord and Tenant (8th Ed.), Sec. 439.

Our Illinois statute, Sec. 14, Chap. 80, K. S., dispenses with such necessity of an attornment. Howland v. White, 48 Ill. App. 236.

But in this case the fact that appellant, after the assignment, recognized appellee as its landlord and paid rent to it, operates as a sufficient attornment, and this is so under the common law of this country, and irrespective of the Illinois statute.

But the right to sue for the rents due under the lease, whether by virtue of the English enactment or by force of our Illinois statute, is a right only to enforce that which the lessor himself might enforce. It operates in effect to put the assignee of the reversion in the place of his grantor or assignor, and vest the former with the rights of such grantor or assignor. If, before the grant or assignment, the rent had been paid, whether in advance or otherwise, the lessor could not collect it a second time by suit, and no more could his grantee of the reversion or his assignee of the lease. It is the same remedies by entry, action, distress, or otherwise, as the lessor or grantor possessed, which vest in the grantee or assignee by force of the statute. Therefore, if no other question arose in this case than the effect of a payment in advance of rent under the lease made by the lessee to the lessor before a grant of the reversion to another, we would hold that such payment was good to release the lessee from any claim of the grantee for the rent so paid. But another question does arise in this case, viz., the effect of the sheriff’s sale to appellee of the demised premises. This sale was made on June 18, 1894, and was upon foreclosure of a mortgage made by Wright in December, 1892. It is contended by the learned counsel for appellee that the effect of this mortgage and the sale upon foreclosure of the same was to make ineffectual, the payment of the $1,000 of rent, which was made by Wright to appellant.

We have no doubt as to the effect of the mere giving of the mortgage. It imposed no limitation upon the right of lessor (who was the mortgagor of the reversion) to receive, or the right of the'lessee to make, payments in advance or otherwise, of the rent provided by the terms of the lease. If a mortgagee can be held to be a grantee of the reversion in whom the right to rents under the lease vests by force of the statute, as held in Scheidt v. Belz, 4 Ill. App. 431, yet, as suggested in that case, his right would only operate upon the lessee after he had notified the lessee that he elected to claim the rents as mortgagee. A somewhat 'different question arises as to the effect of the foreclosure sale. But we think that the sale could not affect the relation of appellant as lessee to Wright as lessor, to make payments of rent ineffectual when made after such sale, unless a notice of the sale was given to appellant. 2 Taylor’s Landlord & Tenant (8th Ed.), 442; Farley v. Thompson, 15 Mass. 18; F. C. M. Co. v. Melven, Id. 268; Stone v. Patterson, 19 Pick. 476; Smith v. Taylor, 9 Ala. 633; O’Connor v. Kelly, 41 Cal. 432; Winfrey v. Work, 75 Mo. 55; Weider v. Foster, 2 P. & W. 23.

We are therefore of opinion that appellee acquired no right to the rent in question by reason of the mortgage or the sale upon foreclosure of the same, unless a notice of claim to rents under the mortgage or notice of sale was given to appellant. That any such notice was given to appellant before the payment by it of the $1,000 rent, is not shown by the record. The testimony of Loomis that he remembered that Mr. Wright was likely to lose his title to the property through foreclosure proceedings, we regard as insufficient in this behalf. It does not appear that he “ remembered ” it as of any specific time, whether before or after the payment of the rent in question. Mo other showing of notice is made. Mor does it appear from the evidence wffiether the rent was paid before or after the sale. There is evidence tending to show that some part of it was paid after the sale, but it is very indefinite and uncertain.

We do not regard the conversation between appellee’s attorney and Wright or appellant’s representative at the time of the assignment, as sufficient to establish that the $1,000 was paid after July 1, 1895.

We are of opinion that upon the evidence the recovery can not be sustained.

The foregoing consideration is sufficient upon the questions raised as to instructions to the jury.

It is unnecessary to discuss the contention of counsel as to a variance between proof and narr. by reason of clerical error in striking out the name of Wright and substituting the name of appellee in certain parts of the declaration, since such faults can be corrected before another trial.

The judgment is reversed and the cause is remanded.


text:
    Lucas Brodhead v. John H. Minges et al.
    1. Appeals — Do Not Die from Interlocutoi'y Orders in Ohancery Proceedings. — An appeal does not lie from a decree in a chancery proceeding which is not final.
    2. Decebe — What is a Final Decree. — A decree is said to be final when it terminates the litigation between the parties on the merits of the case, so that when affirmed by a reviewing court, the trial court has nothing to do but to execute the decree already entered.
    Bill of Foreclosure. — Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1901.
    Appeal dismissed.
    Opinion filed January 16, 1902.
    This suit was brought by appellant to obtain a foreclosure of two trust deeds, in the nature of mortgages upon property in Cook county.
    The first trust deed was dated August 17, 1882, and was originally given by William A. Herting, since deceased, to secure the payment of two notes, one for $2,500, due in eighteen months, and the other for $13,000, due in five years, the aggregate amount secured being $15,500. The first note, for $2,500, was paid at or about its maturity, and is not involved in this litigation. The second note, for $13,000, with accrued interest, is due and unpaid, and sought to be foreclosed by this suit.
    The second trust deed was dated September 26,1888, and was originally given upon the same property by Julia H. Herting, who was the widow of William H. Herting, and is now deceased, to secure five notes, aggregating $10,000, the first note being for $1,000, the second, third and fourth notes being for $2,000 each, and the -fifth note for $3,000, due five years after its date. All of these notes secured by said second trust deed, except the last for $3,000, have been paid and are not involved in this litigation.
    The bill of complaint is in the usual form for the purpose of foreclosing the two trust deeds above mentioned. It described the deeds and the notes, and alleged that the note for $13,000, secured by the first trust deed, and a note for $3,000, secured by the second trust deed, with interest, were due and unpaid, and prayed that the property covered by said trust deeds might be sold to satisfy the indebtedness secured. ■ The appellant claimed to be the owner of both of the notes and trust deeds.
    John H. Hinges, Jacob Gr. Hinges and Barbara Hinges, some of the heirs at law of Julia H. Herting, deceased, answered the bill," averring that one Charles K. Hiller owned the notes and trust deeds in question prior to the time that the appellant became the owner thereof,and that, while such owner, he agreed with John H. Hinges, one of the defendants, that if he would institute a burnt record proceeding to cure certain supposed defects of title in'the premises covered by said trust deed, and would use reasonable diligence to press said proceedings to a conclusion, that he, the said Miller, would not sell said incumbrances, or foreclose the same, and would- not ask the payment of any interest upon said incumbrances, except in case he should need small sums of money, until such proceedings should be concluded. Said defendants claimed that, by reason of such agreement, said Miller, and his assignee, the complainant in said bill, the appellant here, were precluded from filing said bill, or attempting to foreclose the said trust deeds.
    Afterward John II., Jacob GL and Barbara Minges filed an amended or supplemental answer. In this answer these defendants claimed that Charles K. Miller, being the owner of the first trust deed herein mentioned, made a loan secured by the second trust deed, for the nominal sum of $10,000; tha,t the sum paid on account of the second loan by Miller was, however, only $9,000, because he had retained $1,000 for his commissions. This answer further sets up that the interest named by the second trust deed and the notes therein described was eight per centum per annum, and that the sum of $1,000, which was retained by Miller as his commissions, amounted to usury, and that the defendants were entitled to an accounting in regard to said commission of $1,000 and the excessive interest, and that all interest paid on said second incumbrance should be applied upon the principal.
    There appears to have been no amendment to the bill of complaint after the filing of these answers, but replications thereto were filed.
    The cause was referred to a master in chancery. The master reported, finding the material allegations of the bill of complaint to be true, and recommending a decree of foreclosure.
    One objection to the master’s report was filed by the complainant. Twenty-seven objections Avere filed to the report by the defendants. These objections were overruled by the master.
    Exceptions like to the objections were filed before the court. The court sustained certain of the exceptions to the master’s report, found that there was $26,174.92 due upon the promissory notes on April 27, 1900, and, in effect, that the averments of the answer are true as to usury and as to the agreement to forbear the payment of the debt until a certain burnt record proceeding might be prosecuted with due speed to a final termination; and that the bill -of complaint herein was prematurely filed.
    The decree or order is in part as follows :
    It is therefore ordered, adjudged and decreed that the amount due from said heirs, etc., to the owners of the notes secured by the trust deed from William A. Herting and Avife to Nathaniel M. Jones, trustee, was $26,174.92 on April 27, 1900; that the indebtedness on the notes executed by Julia H. Herting, November 26, 1888, for the then principal sum of $10,000, and all interest thereon, and all interest on the notes eiddencing the same, be and the same are hereby declared paid and satisfied in full, and that the trust deed securing said last notes running to Miles Almy, trustee, dated November 26, 1888, be and the same is hereby vacated, annulled and removed as a cloud upon said premises, and that the exceptions above found without merit or disapproved be and the same are overruled, and the exceptions approved are sustained, and the findings of the master above approved are thereby sustained; and further, that the cause be retained in court for a reasonable time, pursuant to the above findings.
    From this decree or order the appellant seeks to prosecute this appeal.
    N. M. Jones and Wm. Annan Taylor, attorneys for appellant.
    W. H. Wilkins and Louis Zimmerman, attorneys for appellees.
   Mr. Justice Sears

delivered the opinion of the court.

The first, and, as we view it, controlling question in this appeal is raised by a motion of appellees to dismiss the appeal upon the ground that the decree or order is interlocutory only, and not final. We are of opinion that the contention is sound, and that the appeal must be dismissed.

The findings of the court that as to the note secured by the second trust deed no relief could be granted appellant because the debt had been paid by payments of usurious interest, and the further finding that as to the other note secured by the first trust deed, the suit was prematurely brought, were such findings as might naturally have been followed by an order dismissing appellant’s bill for want of equity. Such an order would have been final and appeal-able. But no such order was entered. On the contrary, the cause is retained upon the bill of complaint for the purpose evidently of awaiting termination of the period of forbearance, and then determining whether appellant will be entitled to relief. We have no occasion to revie \y the propriety of thus retaining the cause, for the very fact that it is retained and is not disposed of by final decree precludes us from review. If the order is interlocutory only, the appeal will not lie. Coates v. Cunningham, 80 Ill. 467. We are of opinion that it is interlocutory. Hayes v. Caldwell, 10 Ill. 33; R. & M. R. R. Co. v. F. L. & T. Co., 70 Ill. 249; Hunter v. Hunter, 100 Ill. 519; Gunn v. Donoghue, 135 Ill. 479; C. & N. W. Ry. Co. v. City, 148 Ill. 141; Grant v. Phoenix Co., 106 U. S. 429.

In Hunter v. Hunter, supra-, the decree in question had found that the complainant was entitled to a separate maintenance, and so decreed, but did not determine the amount which should be ordered paid for the complainant’s support. The Supreme Court held that this decree was not final in the sense that an appeal would lie from it; that it would become final and appealable only when the court decreed an amount to be paid, and that the Appellate Court had no jurisdiction to entertain an appeal from the decree.

In C. & H. W. Ry. Co. v. City, supra, the Supreme Court said:

“A judgment or decree is said to be final when it terminates the litigation between the parties on the merits of the case, so that, when affirmed by the reviewing court, the court below has nothing'to do but to execute the judgment or decree it had already entered.”

In Grant v. Phoenix Co., supra, a decree had been entered in a suit for foreclosure, by which it was determined that the plaintiff was the holder and owner of the obligations secured by the mortgage; that the defendant had made default in payment upon these obligations; that defendant had not paid taxes; and that the indebtedness of the defendant to the plaintiff exceeded the value of the mortgaged real estate; and an accounting was ordered to determine the amounts due and amount paid for taxes, etc. The court held upon review that the decree was not final, in that it did not order sale of the mortgaged land. This latter decision is upon the facts presented directly applicable to the case now under consideration.

The fact that a part of the order, if it stood alone, would be a final adjudication of the rights of the parties in that behalf, does not operate to make the decree a final decree when the court expressly reserves its final decision as to the granting or denying of the foreclosure which is prayed for by the bill of complaint. A cause can not be thus brought piecemeal for review. Sholty v. Sholty, 140 Ill. 81.

We are aware that it is held in a certain class of orders, interlocutory in nature, and where no appeal is provided by statute, that there may nevertheless be an appeal, which will be entertained upon the ground of a peculiar hardship which would result from a delay until final decree. Crouch v. Bank, 156 Ill. 342.

But we find nothing in this case to bring it within the exception. Pain v. Kinney, 175 Ill. 264.

The appeal is therefore dismissed.


author: Mr. Presiding Justice Windes

text:
    August Heineck v. Julius Grosse.
    1. City of Chicago — Right to Authorize the Use of Space Underneath Sidewalks. — The city of Chicago has the right to authorize the use of space underneath sidewalks, provided it does not, by doing so, infringe the full, free and safe use of the street in all its parts by the public; but it has no right to authorize the use of any part or portion of the sidewalks of the city for private purposes.

      2. Sidewai.es — Definition of, and Uses. — A sidewalk is a part of the street, set apart for the use of pedestrians.
    3. Cities — Cero Not Divert a Street for any Purpose Inconsistent with the Full and Free Bight of the Public to Use the Same. — A city has no power to divert the use of a portion of a street or sidewalk for private occupancy for business purposes and any attempt to do so is beyond its power. A permit to a person for such a purpose is absolutely void.
    4. Lease — Where It Can Not Be Made the Basis of an Action for Recovery of Bent. — A lease, in violation of an ordinance prohibiting the occupancy of a part of a sidewalk for private purposes is invalid and can not be made the basis of suit for the recovery of rent.
    Action for Kent. — Appeal from the Circuit Court of Cook County; the Hon. Edward F, Dunne, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed.
    Opinion filed January 16, 1902.
    Joseph W. Errant, attorney for appellant.
    M. E. Ames, attorney for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of "the court.

Appellee demised to appellant for the term of five years, at a rental of $65 per month, from May 1, 1892, by lease in writing, containing the customary provisions in city leases and the provisions below mentioned, the premises described as follows:

“ That part of the premises known as the southwest corner of Clark and South Water streets, in the city of Chicago, county of Cook and State of Illinois, which are under the sidewalk extending in front of the same premises on South Water street, together with the right to occupy such a portion of the sidewalk in front of said premises as the authorities of the said city of Chicago and its laws and ordinances may permit; it being distinctly understood that the meaning and intention of this lease and demise is to convey to said second party the right of occupancy only to such part of the premises hereinabove described as are now-in use and are occupied by him. And in the event that the said city of Chicago may restrict said second party from occupying the sidewalk as now occupied, or any portion thereof, in front of said premises, the rent for said premises herein described is to abate, by reason of the restrictive or prohibitory regulations or ordinances of said city of Chicago, and this lease is to become null and void.”

The appellant occupied said premises prior to the timé of the lease and continued so to occupy them and pay rent therefor to appellee under the lease for four and one-half years, when he vacated the same. This suit is for rent of the last six months of the term, less $25, which appellee collected from another person for the same premises during that period. The plaintiff declared specially upon the lease and on the common counts. The plea was the general issue. A trial before the court without a jury resulted in a finding for the plaintiff and judgment thereon for $365, from which the appeal is taken.

Ho rent ivas paid by appellant for the last six months of the term of the lease, and it is claimed that there could be no recovery because the lease, as it is claimed, is void, because unauthorized by law, and is in violation of the ordinances of the city of Chicago.

There were in force at the time of the making of this. lease the following ordinances:

“Section 1623. Ho person shall erect any booth or establish or fix any stand for the sale of fruit, books or other merchandise, or any article or thing of value whatever, incumbering any part or portion of the streets, or sidewalks, under the penalty of five dollars for each offense.”
“Section 1839. Stands for Fruit and Merchandise. — Ho person shall erect any booth or establish or fix any stand for the sale of fruit, books or other merchandise, or any article or thing of value whatever, incumbering any part or portion of the streets or sidewalks, under the penalty of not more than five dollars for each offense.”

There was also another ordinance in force prohibiting the occupation by any person of any space beneath the sidewalks of the city without a permit from the commissioner of public works first had and obtained, under severe penalties.

It is claimed for appellee that these ordinances were improperly admitted in evidence, because they were not pleaded. Appellee is not in a position to urge this contention, as he has assigned no cross-errors.

It is also said that only the portion underneath the sidewalk was leased to appellant, and he can not deny his landlord’s title; in other words, that the appellant can not be heard to say that appellee has no authority to lease a space underneath the sidewalk. We think this claim can not avail appellee, as the lease purports to and does, by its express terms, give the appellant the right to occupy a portion of the sidewalk in front of the premises known as the southwest corner of Clark and South Water streets.

The city of Chicago has the right to authorize the use of space underneath sidewalks provided it does not infringe thereby the full, free and safe use of the street in all its parts by the public. West Chicago M. Ass’n v. Cohn, 192 Ill. 210-16, and cases cited.

The city has not, however, the right to authorize the use of any part or portion of the sidewalks of the city for private purposes. Canal Co. v. Garrity, 115 Ill. 155-67; Smith v. McDowell, 148 Ill. 51-64; Pennsylvania Co. v. City of Chicago, 181 Ill. 289-96; Cohn case, supra; Anisfield Co. v. Grossman Co., 98 Ill. App. 180.

In the Pennsylvania case, supra, the court say:

“ The city has no power of authority to grant the exclusive use of its streets to any private person or for any private purposes, but must hold and control the possession exclusively for public use, for purposes of travel and the like.”

The sidewalk is a part of the street set apart for pedestrians. City of Bloomington v. Bay, 42 Ill. 503.

In the Cohn case, supra,. the Supreme Court say that municipal authorities “ can not divert a street, or any portion thereof, to any purpose inconsistent with the full and free right of the public to use the same.” The use of a.

portion of the sidewalk for private occupancy for business purposes, as is attempted in this case, is clearly beyond the power of the city authorities, and any permit to the appellee for that purpose is absolutely void.

Moreover, the lease is in direct violation, so far as it provides for the occupancy of a portion of the sidewalk, of the municipal ordinances above set out, and is therefore invalid. Being invalid as to a part of the lease, because of its violation of the city ordinances, it can not be the basis of a recovery in this suit. Estate of Ramsey v. Whitbeck, 183 Ill. 550-65, and cases cited; Shortall v. Fitzsimons & O. Co., 93 Ill. App. 231-4, and cases cited.

In the Whitbeck case, supra, the Supreme Court say:

“Mo one can gain any right by obtaining, a promise founded upon considerations in violation of the law, and the courts will not destroy the respect due to the law by enforcing such a promise, but will leave the parties where they have placed themselves by their own conduct.”

In the Shortall case, supra, we said :

“We know of no well considered case where a recovery has been allowed, when the very basis of the action is an illegal contract or its breach. * * * If a part of the consideration upon which a promise rests is illegal, the entire promise fails.”

There being no evidence in the record to support the judgment, except the lease, we are of opinion that the learned trial judge erred in rendering judgment against appellant, and it is therefore reversed.


text:
    Lawton C. Bonney v. Frank H. Sellers, Receiver, etc.
    1. Courts of Equity — Acquiring Jurisdiction Will Retain it for Ultimate Purposes of the Litigation. — In order to take the affairs of an incorporated company out of the hands of its board of directors, to preserve and protect the property of the company pending a litigation for the benefit of its creditors, bondholders and stockholders according as their respective rights may appear upon a final hearing, it would seem to be absolutely necessary that the court acquiring jurisdiction should draw to itself all questions relating to the ownership of and claims upon the company’s property, and have the power, in its discretion, to compel the litigation of all questions pertaining to the title or liens upon such property in one court and in the principal case.
    2. Same — Power to Retain Jurisdiction for the Purpose of Preventing a Multiplicity of Suits. — A court of chancery having acquired jurisdiction, will generally, for the purpose of preventing a multiplicity of suits, retain the same until it has done complete equity between the parties in respect to the subject-matter of the litigation.
    3. Same — Will Retain Jurisdiction to Afford Complete Relief to the Parties. — It is well settled that if a court of equity acquires jurisdiction on any equitable ground, it will retain the cause and afford complete relief, although in so doing it becomes necessary to enforce purely legal rights.
    Bill for Belief. — Intervening petition. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed January 16, 1902.
    Lyman H. Paine, attorney for appellant.
    Charles L. Bonney, amicus curiae.

    Defrees, Brace & Ritter, attorneys for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

One Witbeck filed a bill April 14, 1900, against the Chicago General Bailwajr Co. and others, which was subsequently amended, a receiver appointed April 17, 1900, for the company, and a preliminary injunction granted. The company and other defendants in the case prosecuted an appeal to this court from the order of injunction, on which appeal it was contended, among other things, that the bill could not be maintained as a stockholder’s bill. We held to the contrary, and said that inasmuch as the substance and purport of the bill was to “ prevent the mismanagement and misappropriation of the company’s property and the fraudulent actions of a majority of its directors in the use of their powers,” chancery had jurisdiction at the suit of a stockholder.

After the decision of that appeal William Elmer, A. H. Briggs and A. N. Hall filed an intervening petition in said cause, in which they set up in substance, that John A. King, said Witbeck and other persons whose names were unknown, on May 4, 1899, and on other days, formed a conspiracy to injure the person, credit, character, business and property of said company and its bondholders, stockholders and creditors, and to hinder and prevent the construction of the railway of the company, to destroy the value of the railway and the' shares and bonds therein, and the credit of the company, and to acquire certain stocks and bonds of the company. The petition sets out certain acts of Witbeck and King alleged to have been done pursuant to the conspiracy, among others, that Witbeck, without the knowledge or consent of the directors of the company, removed from its office a large amount of stocks, bonds and notes; that the Fort Dearborn National Bank on May 8, 1899, held a note of the company for $25,000, with $50,000 face value of the company’s bonds as collateral, which note had been paid, but the bank refused to deliver up the collateral, King claiming the bonds as a reward for making loans for the bank to the company; that King is the president of said bank and Witbeck its vice-president, and that the bonds are the assets of the company. The petition prays that the receiver be directed to file his petition against Witbeck, King and the bank, to compel a delivery and restitution to the receiver of the property of the company so held by Wit-beck, King and the bank, also for an accounting and injunction.

A demurrer of the receiver to this petition was overruled and the receiver directed to file petitions against Witbeck, King and the bank. Pursuant to this order the receiver, on September 25,1901, filed two petitions, as directed by the order, and also against Lawton C. Bonney, in which it is alleged, besides the facts set up in the petition of Elmer and others above stated, the said Bonney, about February 1, 1900, executed an accommodation note for said company, of $15,000, to the National Bank of the Republic, which note was discounted by the company with the last named bank, and the company also at the same time deposited $30,000 of its bonds with the bank as collateral; that the note was paid by the company through Witbeck, the company’s president, and the note with the collateral was delivered to Witbeck, who brought suit upon the note against Bonney, claiming that he, Witbeck, was the owner of the note and collateral; also that said Bonney, prior to April 6,1900, made another accommodation note for $20,000, payable to C. T. Boal; that the company discounted this note with Boal and deposited as collateral thereto $50,000 of the company’s bonds; that this note was paid by the company through Witbeck, who took the note and collateral and brought suit on the note against said Bonney; also that two other notes made by the company, one to the Boyal Trust Company, and another to E. F. Bryant, each having large amounts of the company’s bonds pledged with payees for their security, were paid by the company through Witbeck, its president, who has since retained the same and claims to be the owner thereof, and refuses to deliver the same to the receiver; also, that February 1, 1900, Bonney Bros., being the appellant, and Charles L. Bonney, made their accommodation note, for the company to said Witbeck for $15,000, which note was paid by the latter as president of the company, but he retains possession of and claims to be the owner thereof, and has brought suit against Bonney Bros, on the note; also that Witbeck is possessed of 537-J- shares of the company’s stock, which is the property of the company; that by the order appointing the receiver the company, its officers, agents and employes, were directed to turn over and surrender to the receiver all property, books, papers and documents of the company; that said Fort Dearborn Bank and King, its president, have in their possession $40,000 of the company’s bonds, and the appellant has in his possession $10,000 of the company’s bonds, of which they claim to be owners and refuse to deliver the same to the receiver; that King is possessed of 400 shares of the company’s stock, which should be turned over to the receiver; that appellant has brought suit against the Fort Dearborn National Bank for the conversion of the company’s bonds held by it.

The petitions severally pray that the matters therein alleged be investigated, and if found to be true, as alleged, that the property and assets of the company held by said Witbeck, the Fort Dearborn National Bank, King and Bonney, the appellant, respectively, be'required to be turned over to said receiver, that the prosecution of the several suits against Bonney, Bonney Bros,, and the Fort Dearborn National Bank be enjoined, and for general relief.

Upon a hearing of . these petitions, neither of which is verified, the court ordered that the same be answered by Witbeck, the bank, King and appellant, within twenty days; that said suits at law be enjoined until the further order of the court, and that said parties be enjoined and restrained from transferring or otherwise disposing of, or from selling or assigning any of said stock, bonds or property of the company in said petitions set forth. From this order the appeal herein is taken.

The parties to this appeal have, by their respective solicitors, stipulated that the transcript of record filed in this court on the appeal of the company and against" Wit-beck in case No. 9949, should be considered as a part of the record in this cause; also that the appellant waives all question as to the insufficiency of the petitions herein because of lack of verification thereof, and the appellee waives all question as to the right of appeal in the cause. W e have therefore considered the transcript on the former appeal referred to, and have treated the petitions herein as properly verified, and that the appellant is entitled to have his appeal considered.

The original and supplemental bill, the sufficiency of which was considered on the former appeal, among other things, alleges that the Chicago General Bail way Company, when the bill was filed, was hopelessly insolvent; that its current indebtedness on open accounts and commercial paper past due exceeded $400,000^ and that its- liabilities were over $2,000,000; that a majority of its board of directors had mismanaged the business of the company and had entered into a fraudulent scheme, the details of which are set out fully, to defraud its stockholders, bondholders and creditors, including the complainant in the bill, who filed it on behalf not only of himself, but of all persons interested as stockholders, bondholders or creditors of the company. It prays for relief against the fraudulent acts of the defendants, for other specific relief, for the appointment of a receiver to collect and preserve the company’s property for the benefit of all parties interested, and to operate the company’s railway, and for general relief.

It is thus apparent that the scope of the original and supplemental bill is administrative in its nature, and its intent is in part to take the affairs and business of the company out of the hands of its board of directors, and preserve and protect the company’s property pending the litigation for the benefit of its creditors, bondholders and stockholders, according as their rights might appear on a final hearing. In order to accomplish these things it would seem absolutely necessary, the court having jurisdiction, as we held upon the former appeal," that it should draw to itself all questions relating to the ownership of and claims upon the company’s property, and that the chancery court would have the power, in its discretion, to compel the litigation of all questions pertaining to the title or liens upon the company’s property in one court and in the principal case. 1 Daniell's Chcy. Pldg. & Pr., pg. 330; Roseboom v. Whittaker, 132 Ill. 81-9; School Directors v. School D., 135 Ill. 464-78, and cases cited; Cook County v. Davis, 143 Ill. 151-5.

In the Roseboom case, supra, which was a stockholders’ bill, in which a receiver was appointed to preserve the property of a corporation, the court say:

“ After the aid of a court of equity has been invoked and that court has taken the assets of the insolvent into its hands, its jurisdiction becomes necessarily exclusive, and it will proceed, in administering the insolvent estate, upon the maxim that equality is equity. After that jurisdiction has attached, ordinarily, no creditor can pursue a legal remedy, at least in such way as to obtain for himself a preference.”

In the School Directors case, supra, it is said:

“ A court of chancery having acquired jurisdiction, will generally, for the purpose of preventing multiplicity of suits, retain the same until it has done complete equity between the parties, in respect of the subject-matter of the litigation.”

In the Davis case, supra, the court say:

“ It is well settled that if the court of equity acquires jurisdiction on any equitable ground, it will retain the cause and afford complete relief, although it becomes necessary to enforce purely legal rights.”

It is apparent from the allegations of the petitions herein, which for the purposes of the case must be taken as true, that all the suits, the prosecution of which is enjoined by the order appealed from, involve the title to the property of the company which it is sought by the bill to preserve and protect for the benefit of all parties in interest. The appellant and Witbeck are parties to the main cause, as is also Charles L. Bonney. The Fort Dear-born National Bank and King are brought before the court by the petitions, and are not complaining. We see no reason why all these separate suits may not and can not be properly litigated in the cause. If it should be determined that the company is the owner of the several notes sued on by Witbeck, then he certainly would not be entitled to recover thereon, and if the appellant was not the owner of the bonds in the possession of the Fort Dearborn National Bank or King, certainly he could not maintain an action for their conversion; and if the company is the owner of said bonds, then they should be turned over to the receiver. In any event, if the chancery court should determine that the company did not own these bonds, the injunction order would no doubt be vacated and appellant be permitted to prosecute his suit at law.

The claim of appellant that his suit was wrongfully enjoined, because the order authorizing the receiver to file these petitions did not authorize him to file a petition against appellant, is, in our opinion, without merit. The petition was filed against appellant; the court considered it and made the order, thus approving of and ratifying the receiver’s act in that regard. This has all the force of an order of the court in the first instance, directing a petition to be filed against appellant.

If, as suggested by appellant’s counsel, there are any circumstances existing why the injunction as against him is unjust or inequitable, they may be shown by answer to the petition, when, no doubt, he will be given his equitable rights. In the absence of any such showing, we can not perceive that any wrong is done appellant by the injunction order. The chancellor, in the exercise of a sound discretion, had the right to enjoin appellant’s suit, and the order is therefore affirmed.


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    Charles T. Richey v. Alexander E. Guild, Jr.
    1. Parties — Appeals by Persons Not Originally Parties. — Where a person is not a party to a suit in chancery as originally commenced, but subsequently appears, files his answer and is recognized by the court below as a party to the suit, an appeal by him from an order entered in the suit is properly allowed.
    2. Receivers — Appointment of, in Foreclosure Suits. — In a proceeding to foreclose a mortgage, a receiver will not be appointed unless it is made to appear that the mortgaged premises are insufficient security for the debt, and the individual personally liable for it is insolvent.
    Bill for Foreclosure. — Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the October term, 1901.
    Order appointing a receiver reversed.
    Opinion filed January 16, 1902.
    Statement. — This appeal is prosecuted from an interlocutory order appointing a receiver. The suit is for foreclosure of a trust deed in the nature of a mortgage. The order was entered upon the bill of complaint and affidavits in support of the motion for appointment of receiver and affidavits presented in opposition to the motion. At the time the motion was heard and the order entered no answer had been filed by Charles T. Richey, who prosecutes this appeal. The bill of complaint does not make him a party defendant. It appears by answer of appellant afterward filed, that he purchased the mortgaged premises on July 26, 1901, which was a little more than one month prior to' the filing of the bill of complaint herein; that after the purchase appellant paid off a third mortgage indebtedness of $1,500 upon the premises; that one year’s taxes and a small amount of interest are due under the terms of the trust deed, and appellant offered by his answer to pay these amounts into court. By his answer he also avers that the property is ample security for the debt evidenced by the mortgage notes which are the subject of this suit; and that the mortgage debt has been assumed by persons who are able to respond therefor, one of them being worth $10,000 and the other $60,000 in real estate in this city. The amount of the debt evidenced by the notes secured by the trust deed which it is sought to foreclose, is $4,699.82. The default, by reason of which a suit for foreclosure is brought, consisted in non-payment of interest amounting to about $100, as claimed by appellee, and about $40, as claimed by appellant, and a failure to pay taxes amounting to some forty odd dollars. Upon the application for a receiver two affidavits were presented by appellee, by which it is averred that the mortgage debt is $4,699.82, and the property upon which the debt is secured is worth only $4,000. On behalf of appellant and against the motion for a receiver, the affidavits of eight persons were presented, by which the value of the mortgaged premises are shown to be from $6,000, the lowest estimate, to $7,500, the highest. One affiant states that appellee had loaned $6,000 upon the property within three years, a part of which loan, viz., $1,500, had been paid within a few days preceding the hearing. Another affiant states that Harrahan, who had assumed the payment of the mortgage debt, was the owner of real estate in Cook county worth $75,000. The bill of complaint does not allege that the individuals personally liable for the mortgage debt are insolvent.
    After the order appointing the receiver was entered, appellant prayed an appeal, and the court entered an order allowing an appeal to appellant as a defendant in the cause.

      Afterward appellant filed his answer.
    Willis H. Hutson, attorney for appellant.
    John T. Richards, attorney for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

It is urged by the learned counsel for appellee that this appeal should be dismissed, because appellant was not a party defendant to the suit when the order appealed from was entered, and therefore had no right to appeal. We think this motion should not be granted. It is true that when the order was entered appellant was not a party to the suit. But he afterward filed his answer and was recognized by the court below as a party to the suit, in that the court granted his prayer for an appeal (which was superfluous, as this appeal is from an interlocutory order), and made a certificate of the evidence at his instance. By these acts the court recognized appellant as a party to the suit.

The formal and correct procedure would have been for appellant to have moved for an order making him a party defendant to the suit and permitting him to answer the bill. But this formal procedure was evidently dispensed with by the court below, which permitted appellant to answer the bill, by which answer he shows that he is the owner of the equity of redemption in the mortgaged property, and also permitted him to have a certificate of the evidence made.

The time when a defendant appears, whether before or after the entering of an interlocutory order, is of no consequence as affecting his right to appeal from such order. We are therefore of opinion that the motion to dismiss the appeal should be denied.

The remaining question is as to the propriety of the order appointing a receiver.

It does not appear from the abstract that the trust deeds here in question provide for the appointment of a receiver before foreclosure. The evidence heard upon the application consists only of the' unverified bill of complaint and the affidavits noted in the foregoing statement of facts.

From all this it appears that the persons who are personally liable for the mortgage debt, so far from being insolvent, are amply able to respond for that debt.

The value of the mortgaged premises is a matter of dispute, but eight affidavits against two, estimate its value at much'more than the mortgage debt. Upon this showing, we are of opinion that no receiver should have been appointed. Haas v. C. B. Society, 89 Ill. 498.

In that case the Supreme Court said, referring to a receivership:

“ Such action will not be taken, however, unless it be made to appear that the mortgaged premises are an insufficient security for the debt and the person liable personally for the debt is insolvent. * * * A combination of these two things seems to be required in all cases we have,examined.”

This announcement was in relation to a receivership after foreclosure sale, and when a deficiency existed, but it applies with greater force to an interlocutory receivership, when it appears without dispute that the persons who are individually liable for the mortgage debt are amply able to respond for the same. The order is reversed.


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    John J. Lynch v. Clara Lynch.
    1. Attorneys — No Authority to Make Motions in a Suit After Mis Discharge. — A party to a suit has a legal right to discharge his solicitor, and after his discharge such solicitor has no right to make a motion in the cause in the name of such party.
    2. Alimony — Orders for, Must he in Favor of the Wife. — An order for alimony pendente lite, in a suit for divorce, must be made payable to the wife. The provision of the statute for it is in her favor in order to enable her to prosecute her suit, to employ counsel and make proper preparation for trial.
    3. Same — Purposes of the Alloioanee. — The allowance of alimony when made, is designed to meet all the just and reasonable expenses which the wife may be put to in suits for divorce, including the fees of officers and witnesses, taking depositions, expenses in attendance upon court and the services of her solicitor. The fees of such solicitor are on no other or different footing from any other expenses which she may properly incur.
    4. Same — The Allowance is for the Wife. — The allowance of alimony in a proceeding for divorce is for the wife and not for the officers, witnesses or the commissioners who may take depositions, or the master who may perform services, and, so far as such expenses are concerned, if the costs are not paid, the claim of the officers and witnesses for them, is against the wife.
    o. Same — Motions for, Must be in the Name of the Wife.■ — All motions for an allowance of alimony, under the statute, must be in the name of the wife, and the allowance is to be made to her and not the party whom she employs. When collected she may apply it as may be necessary for the prosecution of her suit.
    6. Solicitor’s Fees — No Allowances for Past Services. — In a proceeding for divorce, the general rule is, that there can be no allowance on account of the complainant’s solicitor’s fees for past services.
    Bill for Divorce. — Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed.
    Opinion filed January 16, 1902.
    Statement. — This is an appeal from the following order entered November 20, 1900, in a suit for divorce by appellee against appellant:
    “ This cause coming on this day to be heard upon the master’s report as amended, filed July 5, 1900, and upon the objections of Nathan Neufeld and Clara Lynch, which objections shall stand as exceptions, and upon the exceptions of the defendant and upon testimony heard in open court and the argument of the counsel for the respective parties, and the court, being fully advised in the premises and upon consideration thereof, overruled the exceptions of said John J. Lynch, defendant, and sustained the objections of Nathan Neufeld and Clara Lynch, and orders that said report be and the same is hereby modified as by this decree hereinafter provided. That the court finds from the evidence that there is now actually due complainant from said defendant, John J. Lynch, for the solicitor’s fees of Nathan Neufeld, the sum of two hundred and fifty dollars. It is therefore ordered that the defendant, John J. Lynch, pay to the clerk of this court, within one day from this date, for said complainant, the sum of two hundred and fifty dollars, to be devoted to the payment of solicitor’s fees of said Nathan Neufeld, which the clerk is directed to turn over to said Nathan Neufeld. It is further ordered that the defendant, John J. Lynch, likewise pay to the clerk of this court for complainant, to be devoted to the payment of the cost of reference in this cause, the sum of fifty dollars, which said clerk is directed to tax as costs, and that execution issue therefor unless the same is paid within one day, and that the said clerk upon receiving the said sum of money turn the same over to the said Nathan Neufeld for the payment of said master’s fees.”
    Nathan Neufeld acted as appellee’s solicitor in filing the bill for divorce. It appears from the record that April 2, 1900, Robert E. Cantwell, a solicitor of the court, moved the court to substitute him as solicitor in the cause instead of Neufeld, and in support of the motion, filed appellee’s affidavit, in which she states, in substance, that she wishes Neufeld removed as her solicitor, because she has no confidence in him, and because he, at various times since she had been receiving alimony, had insisted that she should pay him out of her alimony the sum of $2.50 per week, which she was unable to do; that she had paid him $25, and had been informed that he had received, in addition, $75 from appellant, and that she was unwilling to pay him any more for his services in the cause. Nathan Neufeld filed a dross-motion, that, before allowing substitution of solicitor, the court ascertain the amount due him and order appellant to pay the same, which motion the court sustained, and April 11, 1900, entered an order referring the cause to a master, “to ascertain the amount of solicitor’s fees due N. Neufeld in this cause and report the same to this court.” Subsequently, it was ordered that the master have the testimony on the reference written up, the costs to be paid by appellee, and to be taxed as costs against appellant, after trial, if such should prove proper. July 5,1900, the master’s report was filed finding that it appeared from the evidence that $350 would be a usual, reasonable and customary fee for Neufeld’s services. ’ Then followed the order first above quoted. December 14, 1900, appellant moved the court to set aside the order of November 20, 1900, appealed from, and in support of his motion filed the affidavit of appellee and the affidavit of Eugene Clifford, solicitor for appellant.
    In appellee’s affidavit it is stated, in substance, that Decomber 12, 1900, she first learned of the order of November 29th; that she never authorized the motion on which that order was based; that, before said motion was made, she had discharged Neufeld and employed Cantwell; that she knew that proceedings were pending to compel appellant to pay additional solicitor’s fees, but understood that Neufeld was acting in his own behalf, and did not know her name was being used for that purpose; that anything done by Neufeld in the cause since April 1, 1900, was done without her authority, consent or knowledge, and she repudiates the same. The affidavit concludes as follows:
    u Affiant further says that it is her desire and she hereby requests that the court vacate said order of November 20, 1900, in so far as the same may show or indicate that the said order was obtained at the instance or procurement or bv or with the authority or consent of this affiant, and she hereby discharges and releases the said John J. Lynch from compliance with said order in so far as she may legally discharge and release him.”
    Eugene Clifford deposed that until December 12, 1900, he did not know, and had no intimation that the order of November 20th had been entered.
    A brief purporting to be for appellee has been filed here by Messrs. Blum & Blum, solicitors, which appellant’s counsel have moved to strike from the files, and in support of the motion have filed the affidavit of appellee, which, omitting title, jurat, etc., is as follows:
    “ Clara Lynch, being first duly sworn, on her oath, says, that she is the appellee in the above entitled cause, and that she never employed the firm of Blum & Blum, or any member of such firm, to represent her in the above entitled cause, or in any other matter whatever; and, further, that she never authorized or requested any person to employ any attorney to represent her in the above entitled cause, and does not wish to be represented in said cause.”
    No affidavit is filed in opposition to the motion, but Messrs. Blum & Blum have filed suggestions, in which they state that they were employed to file a brief for appellee by Neufeld, and that they think Neufeld had the right to use appellee’s name in the cause, etc.

      Eugene Clifford and William W. Fuller, attorneys for appellant.
    Blum & Blum, attorneys for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

We think it apparent from the record that the motion of Nathan Neufeld, made April 2, 1900, was unauthorized by appellee, and was made against her will. Her affidavit, filed in support of the motion to substitute Cantwell for Neufeld, as her solicitor, must have apprised the court that she was unwilling that anything should be done in the cause by Neufeld in her name. She had a clear legal right to discharge Neufeld as her solicitor and employ another, she being responsible to him for the consequences; and although Neufeld was her solicitor of record when the motion to substitute Cantwell for him was made, yet after being informed by her affidavit that she did not wish him to act further for her, we are of opinion that he had no right to make any motion in the cause in her name, and that the court should not have entertained his cross-motion. But, aside from this view, the decree can not be sustained. The order is: “It is therefore ordered that the defendant, John J. Lynch, pay to the clerk of this court, within one day from this date, for said complainant, the sum of two hundred and fifty dollars, to be devoted to the payment of solicitor’s fees of said Nathan Neufeld, which the clerk is directed to turn over to said Nathan Neufeld.” The order, in providing that the $250 shall be devoted to the payment of Neufeld’s fees, and that when the money is paid to the clerk he shall turn it over to Neufeld, is erroneous. In Anderson v. Steger, 173 Ill. 112, a similar order was made, and the court, commenting on the statutory provision for alimony pendente lite, say:

“This provision is in favor of the wife, so she may be able to present her cause to the court, to employ counsel and to make proper preparations for trial. She can not bind her husband to pay her counsel, and may be unable to prosecute her suit without the assistance of the court, and if her bill shows a meritorious cause of action and there is a showing of good faith on her part, the court will extend its aid under that statute. Harding v. Harding, 144 Ill. 588. The allowance, when made, is designed to meet all just and reasonable expenses to which she may be put, including the fees of officers and witnesses, taking depositions, expenses in attendance upon court and the services of her solicitor; and the fees of such solicitor are on no different footing from any other expenses which she may properly incur. The allowance is for her, and not for the officers or witnesses, the commissioners who may take depositions or the master who may perform services. So far as such expenses are concerned, if such costs are not paid the claim of the officer or witness is against her; and it would not be proper for the court to make orders in favor of such parties against the defendant, so as to bring into the suit all those parties, and give each one a separate writ of error in case the court should refuse to order defendant to pay his fee. Any motion for allowance under the statute must be in her name and the allowance is to be made to her and not to the party whom she employs. When collected, she may apply it as may be necessary for the prosecution of her suit. The right being in her, the decree of the Circuit Court should not, in any event, have been in favor of her solicitor, but should have followed the statute and required the money to be paid to her or to the clerk for her use. The Appellate Court would have been justified in reversing the decree for that reason, but it is also erroneous for other reasons.” Ib. 118-119.

In this case it is apparent from the evidence reported by the master, including KTeufeld’s own testimony, that all of Heufeld’s claim, for which the allowance was made, was for past services, and that the ^greater part of the claim allowed was for services other than were necessary in the preparation and filing of the bill. Heufeld testified that he had received $75 by order of the court, and that appellee herself had paid him $25, out of which he paid the costs, presumably $10, on filing the bill, and the sheriff’s fee for service' of summons; and one of his own witnesses, Mr. Bynam, a competent attorney, testified that preparing the bill and commencing suit, was worth $50. There has been no final decree of divorce against appellant. In such case, the general rule is that there can be no allowance on account of the complainant’s solicitor’s fees for past services. Anderson v. Steger, 173 Ill. 119-20.

The only exception to the rule is thus stated by the court:

From the necessities of the case, the solicitor may prepare a bill and render such services as may be necessary to present her application to the court, and until there shall be a session of the court, when her application can be made for an allowance, but no further.” Ib. 120.

While we do not in the least question the good faith of the solicitors who filed a brief for appellee, the motion to strike the brief from the files, purporting to be for appellee, must be sustained. An attorney or solicitor has not, merely by virtue of his employment as such, power to employ for his client another attorney or solicitor, much less has a solicitor who has been discharged by his client, such power.

We regard appellee’s affidavit in support of the motion to strike the brief from the files, as a virtual confession of' errors, but prefer to rest our decision on the other grounds stated.

The brief and argument purporting to be for appellee will be stricken from the files, and the decree will be reversed.