author: Mr. Justice Scholfield Per Curiam:

text:
    The Chicago and Eastern Illinois Railroad Company v. Jeremiah O’Connor.

      Filed at Ottawa November 13, 1886

      Rehearing denied March Term, 1887.

    1. Action—whether right of action survives. Where the plaintiff, pend-ing an action brought by him to recover for a personal injury resulting from negligence, dies from some other cause than such injury, the action will survive, and may be prosecuted in the name of his administrator.
    2. Practice—how to avail of defect in the declaration. There is no authority for the practice of striking out portions of a declaration as not being sufficient. If the pleading is defective, a demurrer is the proper way to take advantage of the defect. In some cases its sufficiency may be tested on motion to exclude evidence, or bv instruction to the jury.
    3- Same —filing additional pleas. After a cause was at issue, the plaintiff died, and his administrator was substituted as plaintiff. The court allowed to be stocked out a certain part of the declaration, not changing the same materially, whereupon the defendant asked leave to plead de novo, and to file the plea of the Statute of Limitations, which was denied. It did not appear that such plea could have applied to any evidence that could have been produeed: Held, that there was no error in refusing leave to file the additional plea at that stage of the case.
    4. Evidence—testimony of deceased witness. Where a plaintiff dies after a trial had, in a case when the cause of action survives, and his administrator is made plaintiff, and the cause is again tried upon the same issues, it is competent for the administrator to prove, on the last trial, what the plaintiff testified to on the first.
    5. Appeal—reviewing facts. If there is evidence tending to show a right of recovery for a personal injury from negligence, its weight or sufficiency to sustain the finding and judgment below, and the reasonableness of the amount of the damages, are questions that belong only to the Appellate Court.
    6. Negligence—comparative negligence—of stating the rule in instructions. Under the present ruling of this court it is not necessary that the doctrine of comparative negligence shall be stated in the plaintiff’s instructions. It is sufficient if the jury are correctly instructed in other respects in regard to the doctrine of negligence. But if an attempt is made to state the doctrine of comparative negligence, it should be stated correctly.
    7. If it appears that the plaintiff, in an action to recover for a personal injury, has observed due care, and that he was injured by the negligence of the defendant, this will authorize a recovery. If the defendant desires an instruction upon the comparative negligence of the parties, he should ask it.
    8. Same—mistake or error in judgment, as affecting the fact of negligence. A mistake, that is, an error in judgment or opinion, does not necessarily imply a failure in duty,,on the part of the person mistaken', or negligence on his part. Hence it is error, in an instruction, to tell the jury, if the plaintiff’s injury was solely the result of his mistake as to a given fact, he can not recover.
    9. So where a servant of a railway company was run over by a train, and injured, there being two tracks at the place of the accident, and there was evidence of a failure to ring a bell or sound a whistle on the approaching train, on the trial of an action against the company to recover for the injury, the defendant asked the court to instruct the jury, that if they found that the deceased was injured solely by his making a mistake as to which track the train was coming on, then plaintiff could not recover: Held, that the instruction was properly refused, as the mistake of the deceased may have been caused by the neglect to give the proper signals of the approach of the train.
    10. Same—when negligence is a question of fact and when of law. It is only when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence, as a matter of law. If the conclusion of negligence, under the fact stated, may or may not result, or shall depend on other circumstances, the question is one of fact for the jury.
    11. Same—fellow-servants—whether the doctrine applies. In an action against a railroad company to recover for personal injuries received by the plaintiff from the alleged negligence of the defendant company in the running and management of one of its trains of cars, it appeared that the plaintiff was, at the time of the injury, in the employ of another company, and acting under the direction of a foreman who was also in the employ of such other company. The defendant company contended that if the accident was the result of the negligence of such foreman in failing to warn the plaintiff of his danger, then the rule of exemption as for an injury occasioned by the negligence of a fellow-servant would apply. It was not pretended, however, that such foreman had anything to do with the running and management of the defendant’s trains, hence the rule invoked had no pertinency to the case.
    12. Instruction—as to conclusions of fact. There is no error in refusing an instruction which seeks to put the court in the place of the juiy, and require it to draw the conclusions of fact for the jury, instead of leaving them to be drawn by the jury.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Eollin S. Williamson, Judge, presiding.
    This was an action on the case, by Jeremiah O’Connor, against the Chicago-and Eastern Illinois Eailroad Company, brought to the March term, A. D. 1882, of the Superior Court of Cook county. The declaration contains two counts, which are as follows:

      First count—For that, whereas, the defendant, to-wit, on the 14th day of July, A. D. 1881, in Cook county, Illinois, was possessed of and using and operating a certain railroad extending through a part of the county aforesaid, and was also then and there possessed of a certain locomotive engine, with a certain train of ears then attached thereto, which said locomotive engine and train were then and there under the care and management of divers then servants of the defendant, who were then and there driving the same upon and along the said railroad, to-wit, at or near Thirty-ninth street, in the city of Chicago, in the county aforesaid; and while the plaintiff, with all due care and diligence, was then and there rightfully standing upon the track of said railroad, using all due care and diligence in that regard, the defendant then and there, by its said servants, so negligently, carelessly and improperly drove and managed the said locomotive engine and train, that by and through the negligence and improper conduct of the defendant, by its said servants in that behalf, the said locomotive engine and train then and there struck, with great force and violence, against said plaintiff, and the said plaintiff was thrown to the ground and run over by the said locomotive engine and train of the defendant so negligently driven and managed as aforesaid, by means whereof, then and there, one of the legs of the plaintiff was cut off by said locomotive engine and train, and he was otherwise greatly bruised, hurt and wounded, and permanently crippled and disabled, and so remained for a long time, to-wit, thence hitherto, during all which time the plaintiff suffered great pain, and was hindered and prevented from transacting and attending to his business and affairs, and lost gains, etc., which otherwise he would have made, and has expended money, to-wit, $500, in trying to be cured, etc.

      Second count—And also that defendant, on said date, used and operated a certain railroad in Cook county, extending across two certain public highways there, to-wit, Thirty-ninth street and Thirty-seventh street, in the city of Chicago, in said county, at or near a certain place on the said public highway, called the Thirty-ninth street and Thirty-seventh street crossings, in said city, and whilst so using and operating the said railroad, as aforesaid, the defendant then and there drove a certain locomotive engine upon and along the said railroad, up to, upon and across the said public highways at the said crossings of the same and the said railroad, and in so doing, no bell of at least thirty pounds weight, or steam whistle, placed on the said locomotive engine, was rung or whistled by the engineer or fireman thereof, or any employe or servant of the said defendant, at the distance of at least eighty rods from the said crossing, and kept ringing or whistling until the said crossing was reached by the said locomotive engine, but therein the defendant wholly failed and made default, contrary to the form of the statute in such cases made and provided, - by means and in consequence of which default and neglect of the defendant, as aforesaid, the said locomotive engine then and there ran and struck, with great force and violence, the said plaintiff, who was then and there rightfully, and Avith all due care and diligence, standing on the railroad track of defendant, near said crossings betAveen Thirty-ninth and Thirty-seventh streets, and thereby the plaintiff Avas then and there thrown, Avith great force and violence, to the ground, and run over by said locomotive engine and train of the defendant, so negligently driven and managed as aforesaid, and-Avas thereby then and there greatly bruised and injured, and had one of his legs cut off, then and there, by said locomotive engine and train of cars of the defendant, as aforesaid, and he Avas otherwise greatly bruised and injured as aforesaid, and permanently crippled and disabled, and so remained for a long time, to-wit, thence hitherto, during all which time the plaintiff suffered great pain, and AAras hindered and prevented from transacting and attending to his business, and was deprived of great gains and profits which he would otherwise have acquired, and by means of the premises the plaintiff was forced to, and did then and. there, lay out divers sums of money, to-wit, about $500, in and about endeavoring to be cured of his said wounds, hurts and bruises occasioned as aforesaid, to the damage of $10,000, etc.
    The defendant pleaded not guilty. Trial was had at the October term, A. D. 18S2, of the Superior Court, resulting in a judgment for the plaintiff, for $5000. The defendant appealed to the Appellate Court for the First District, and pending that appeal, the plaintiff died intestate. His administrator,—his son, Jeremiah O’Connor,—Avas substituted in his place as plaintiff in the suit. The Appellate Court reversed the judgment of the Superior Court, and remanded the caAise for a trial ele novo. At the NoArember term, A.D. 1884, of the Superior Court, the defendant filed a plea in abatement, in substance that the original plaintiff in the suit died on the 24th day of August, A. D. 1883, from causes other than the injuries described in the declaration. Subsequently a demurrer. was sustained to this plea, and thereafter the court also sustained a motion to strike it from the files. Afterwards, the defendant moved to strike out the following words from each count of the declaration, namely: “Permanently crippled and disabled, and so remained for a long time, to7wit, thence hitherto, during all which time the plaintiff suffered great pain, and was hindered and prevented from, transacting and attending to his business and affairs, and lost and was deprived of divers great gains and profits, which he might and otherwise would have made and acquired, and was forced, .by means of the premises, to then and there lay out divers sums of money, to-wit, about $500, in and about endeavoring to be cured of his said wounds, hurts and bruises occasioned as aforesaid.” And for that reason, the defendant' says that the administrator has not the right to recover for the injuries therein mentioned.
    The court sustained the motion as to the words “permanently crippled and disabled,” as they occur in each paragraph of the declaration, and ordered said words stricken out, but overruled the defendant’s motion as .to the remainder. thereof. The defendant excepted. The defendant then presented and asked leave to file two pleas,—the general issue, and a plea of the two years’ Statute of Limitations,—which was denied.
    Mr. William Armstrong, for the appellant:
    The plea in abatement was filed on the authority of Holton v. Daly, 106 Ill. 131.
    If anything survives to the administrator, it is for actual pecuniary loss up to the time of the death. Loss for permanent injuries, pain, suffering, etc., abates with the death of the injured party.

      The court erred in refusing to allow us to plead ele novo. While it is true the plea of general issue was filed to the original declaration, and upon which the first trial was had, yet, after this, the plaintiff died, his administrator was substituted, motions were had as to plea in abatement, portions of the declaration were stricken out, and yet we were denied the right to plead to the amended declaration. We have this right in any ease, which is not at issue, and certainly have the right where material amendments are made. Railroad Co. v. Monka,107 Ill. 340.
    We waived nothing, as we had our pleas prepared, as the record shows, add were insisting on being allowed to file the same as soon as the court struck out a portion of the declaration, and before entering upon the trial of the cause. Certainly, nothing more could be asked of us.
    Where the parties proceed to trial without issue joined, the objection that could have been urged is presumed to be waived. Kelsey v. Lamb, 21 Ill. 559; Lindsay v. Stout, 59 id. 491.
    The instructions fail to state the law of comparative negligence correctly. Railroad Co. v. Thompson, 11 Bradw. 635; Railroad Co. v. Hightower, 92 id. 141; Railroad Co. v. O’Connor, 13 Bradw. 62.
    The courts have held that it is not only necessary that the terms “slight,” and “gross,” should be used, but that the court must give to the jury a definition of each, otherwise the jury would be left free to “ascribe to them definitions of their own invention.” Railroad Co. v. DeCamp, 11 Bradw. 475; Railroad Co. v. Thorsen, id. 631; Railroad Co. v. Kellaher, 12 id. 399.
    In instruction No. 3 we asked the court to instruct the jury, that in case the decedent, O’Conner, was injured solely by his making a mistake as to which track the train was coming on, he could not recover. This was refused, and we think, under the authorities cited, it was error.

      Messrs. Hynes, English & Dunne, for the appellee:
    It was conceded, on both sides, that O’Conner died from other causes than the injury in question. In such case the cause of action survived. Holton v. Daly, 106 Ill. 141.
    The testimony of O’Conner given on a former trial, he being dead, was properly admitted on the second trial, the issues being the same. Iglehart v. Jernegan, 16 Ill. 513; Railroad Co. v. Keep, 22 id. 9; 1 Greenleaf on Evidence, see. 164, p. 199; 1 Wharton on Evidence, sec. 177; Wade v. King, 19 Ill. 300; McConnel v. Smith, 23 id. 612; 27 id. 234.
    A ease closely resembling the case at bar in the matter of striking out the allegations of permanent injury in the declaration, wdll be found in the case of Burnap v. Wight, 14 Ill. 307. In that case the court say: “The allegations respecting his credit, business, and the like, may properly be rejected as surplusage. Excluding them entirely from the declaration, it still shows a good cause of action. They may be stricken out on motion, or the court will not allow any evidence to be given under them on the trial. It is well settled, that where unnecessary allegations are made in a declaration, which are foreign and irrelevant to the cause, they will be rejected as surplusage, and need not be proved, nor will they vitiate even upon special demurrer.” 1 Chitty’s Pleading, 262; Stephen’s Pleading, 524; Tucker v. Randall, 2 Mass. 283; Grannis v. Clarke, 8 Cow. 36; Wilmarth v. Mountford, 8 S. & R. 124.
    It is not necessary that a plaintiff’s instructions shall state the law of comparative negligence.
    The third instruction asked by the defendant was properly refused. A man in the exercise of the highest degree of care and caution may make a mistake. A mistake is not necessarily attributable to negligence.
   Mr. Justice Scholfield

delivered the opinion of the Court:

We have carefully considered the several grounds urged for a reversal of the judgment below, and are of opinion that they are all untenable.

First—The action being for personal injuries caused by the negligence of the defendant, it is within the statute, a-nd survives. (Rev. Stat. 1874, chap. 3, sec. 123.) And there is nothing in Holton v. Daly, Admx. 106 Ill. 131, which holds to the contrary. Indeed, it is expressly therein recognized that such actions do survive upon the death of the plaintiff, and it was held, when the death is the result of the injuries for which the suit is brought, t'he action must be prosecuted, after the death, for the benefit of the widow and the next of kin, and that in such case there can be no recovery for the bodily pain and suffering, but that where the death results from a cause other than the injuries for which the suit is brought, there may be a recovery, notwithstanding the death, for precisely the same injuries that the party himself could have recovered for, had he lived until after the final trial. The demurrer to the plea was, therefore, properly sustained. The motion afterwards made, to strike the plea from the files, was simply supererogatory. Sustaining it did no possible harm to the defendant.

Second—We are not aware of any authority which sanctions the practice of striking out portions of a declaration on mqtion. If a declaration is defective, a demurrer should be interposed, and, in some instances, the same question may be raised on objection to evidence, or on instructions to the jury. In no view do we think the defendant was prejudiced by the ruling of the circuit court in this respect. The question is not what we may think ought to survive, but what does the statute declare shall survive. Its language is free of ambiguity, very plain, and, it would seem, incapable of being misapprehended. It is: “In addition to the actions which survive by the common law, the following shall also survive: * * * Actions to recover damages for an injury to the person. ” This can simply mean nothing else than that the action shall proceed in the name of the administrator, just as if the party had not died. It does not, as does the act of February 12, 1853, give a new right of action to the administrator. It simply continues an existing action or right of action, and prevents its abating by the death of the plaintiff or party having the right of action.

Third—The plea of not guilty was already on file. The action of the court, in ordering, on defendant’s motion, that a portion of the declaration be stricken out, did not essentially change the material allegations of the declaration. The issues were, in substance, the same, afterwards as before. It is not pretended that, under any evidence that could have been produced, the Statute of Limitations could have been sustained. If that plea was intended to be interposed in good faith, it should have been done before the issues were closed. The death of the plaintiff did not, in any respect, affect any issue under that plea. It was discretionary with the court to allow' the plea to be filed at the late day that it was offered, and we perceive no abuse of discretion in refusing it.

Fourth—There was evidence before the jury tending—how much is immaterial—to establish negligence, and the question of the weight of it, and of the reasonableness of the amount of damages, belongs purely to the Appellate Court.

Fifth—It was entirely competent to prove, as was done, what O’Connor testified on the former trial. The issues were unchanged, in any respect, by his death. (Holton v. Daly, Admx. supra.) And that being so, all the authorities concur that it was competent to prove, on the last trial, what he testified to on the first. McConnel et al. v. Smith, Admr. et al. 27 Ill. 234; Iglehart v. Jernegan, 16 id. 513; M. P. R. Co. v. Keep, 22 id. 9; 1 Greenleaf on Evidence, (13th ed.) sec. 164.

Sixth—It is objected that the first instruction does not state the law of comparative negligence reeognizéd in this State. Notwithstanding any expressions that may be found in opinions in earlier cases, tending to authorize a conclusion to the contrary, it is now settled that it is not indispensable that such doctrine shall 'be stated in instructions for the plaintiff. If an attempt is made to state the doctrine, it should be stated correctly, as held in cases referred to in the plaintiff’s argument; but. if the jury are correctly instructed, in other respects, in regard to the doctrine of negligence, it will be sufficient. It must appear that the plaintiff has observed due care, and that he was injured by the negligence of the defendant; and if this does appear, it will authorize a recovery. If the defendant wishes the jury further instructed in regard to the comparative negligence of the parties, the counsel for that side should solicit the instructions. Calumet Iron and Steel Co. v. Martin, 115 Ill. 374.

But it is again objected, that this instruction excludes the idea that it should appear that the injury was caused by the negligence of the defendant. This is a misapprehension. In the introductory part of the instruction, the jury are told that the plaintiff seeks to recover on the ground that the defendant so negligently, carelessly and improperly drove and managed its locomotive engine and train, on the occasion in question, that the deceased, Jeremiah O’Connor, while in the exercise of ordinary care, suffered certain injuries; and in.the body of the instruction the jury are again told that the right of recovery is dependent upon their finding, from the evidence and under the instructions of the court, that “the defendant is guilty of having somegligently, carelessly and improperly driven and managed its locomotive engine and train on the occasion in question, that the deceased, Jeremiah O’Connor, while in the exercise of ordinary care, suffered certain injuries thereby, as alleged in the declaration.”

Seventh—It is objected that the court erred in refusing to give to the jury the defendant’s third and fourth instructions. The third instruction asked by the defendant reads thus: “In this' case, if you find, from the evidence, that the decedent, O’Connor, was injured solely by his making a mistake as to which track the train was coming on, then the. plaintiff can not recover, and you shall find a verdict for the defend-ant. ” This implies that if O’Connor made a mistake as to which track the train was coming on, it must, inevitably, have been either because he did not possess the knowledge in relation to the situation of the tracks and the running of the trains thereon, or because he did not exercise the care or skill in' this respect which the duties he had assumed to perform required, to ascertain on which track the'train was coming; ■but it is manifest this is untenable, because the failure of the defendant to ring. a bell, or to otherwise give warning of the approach of the train, or the peculiar manner in which the train was operated, may have caused O’Connor to make a mistake as to which track the train was coming on, notwithstanding that he was, at the time, in the exercise of due care. To mistake,—that is, to err in judgment or opinion,—does not necessarily imply a failure in duty on ■ the part of the person mistaken. He may have judged accurately, or, at .least, reasonably, in view of the lights before him, and yet he may have been mistaken,—his judgment wrong, through no fault of his,—because those lights were illusory and deceptive. Whether, here, assuming that O’Connor was mistaken in the respect indicated in the instruction, that mistake was because of some failure in duty on his part, or because of some failure in duty on the part of the defendant, was, under the evidence as preserved in the record, a question of fact for the jury. The court could not declare, as a matter of law, that it was because of a failure in duty on the part of O’Connor. It is only "when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence, as a matter of law. If the conclusion of negligence, under the fact stated, may or may not result, as shall depend on other circumstances, the question is one of fact for the jury. The fourth instruction asked by the defendant is repeated in the defendant’s twelfth and thirteenth instructions, which were given, and there was no necessity for further repetition.

Eighth—The sixth instruction was properly refused, because, in the first place, it seeks to put the court in the place of the jury, and require it to draw the conclusions of fact for the jury, instead of leaving them to be drawn by the jury; and, in the second place, the idea intended to be conveyed is fully expressed in the defendant’s fourteenth instruction, which was given. What was said by this coprt, supposed by counsel for the appellant to be pertinent, in Lake Shore and Michigan Southern Railroad Co. v. Hart, 87 Ill. 534, was in regard to travelers about to cross over railroad tracks, and is irrelevant to a case like the present, where an employe of a railroad company is injured in the performance of duties on or about railroad tracks.

Ninth—The defendant asked to have the jury instructed to the effect that the relation of co-servant existed between O’Connor and his foreman, and that if O’Connor was injured through the negligence of his foreman to give him warning, this would be the ■ negligence of a fellow-servant, and there could be no recovery. O’Conner and his foreman were in the employ of the Western Indiana Railroad Company. This suit is against the Chicago and Eastern Illinois Railroad Company, charging it with negligence. It is not pretended that O’Connor’s foreman had anything to do with the running and. management of the defendant’s trains, and hence the case is not one wherein the doctrine applicable to cases in which one servant is injured by the negligence of a co-servant, is pertinent. The questions are, did O’Connor observe due care to avoid the injury, and, if so, was he, while observing such care, injured by the defendant’s negligence. O’Connor could not, and it was not claimed that he should, ■ be absolved from his duty to observe clue care because he was under the control of a foreman. Of course, if he was injured solely in consequence of the negligence of his foreman, he was not injured in consequence of the negligence of the defendant; but this is only equivalent to saying, that if O’Conner was not injured by the defendant’s negligence, there could be no recovery. If not thus injured, it was immaterial how otherwise he was injured, and in this respect the jury was sufficiently instructed.

We are of opinion that there is no error in the ruling of the court upon any question of law presented by the record, which would justify us in reversing the judgment below.

The judgment is affirmed.

Judgment affirmed.

Subsequently, on the 22d of March, 1887, on an application for rehearing, the following additional opinion was filed:

Per Curiam:

We have carefully considered the petition filed herein, for a rehearing, but find no sufficient reason for granting its prayer. The petition is predicated upon the assumption that what is held in the foregoing opinion in respect of the right of recovery being for precisely the same injuries for which the intestate could have recovered had he lived, is in conflict with the ruling in Holton v. Daly, 106 111. 133, sustaining an instruction limiting the plaintiff’s right , to recover to damages sustained before the death of the intestate. This is a misapprehension. The subjects are not the same. In the present case we are speaking only of the cause of action, —that cause of which there may be a recovery,—but the instruction in that case, and the remarks therein referred to, relate to the extent of the recovery. Injuries for which there may be a recovery, is one thing, and the damages that may be recovered, is another and different thing. And so, although there may be, in different contingencies, the right of recovery in different parties for the same injuries, it does not follow that their measure of recovery,—i. e., the dayiages which, in legal estimation, they l)ave sustained,—is the same.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    John H. Long et al. v. Josiah Little et al.

      Filed at Ottawa October 5, 1886.

    1. Evidence—proof of signature—opinions of witnesses as to genuineness. Upon the question of the genuineness of a signature, the number of witnesses will not always control. In determining what weight shall be given to the testimony of a witness, his knowledge and means of information, and his honesty and intelligence, should all be considered.
    2. Where a witness shows he was acquainted with a person in his lifetime, and his handwriting, and had seen him write, he will be competent to give his opinion as to the genuineness of a signature purporting to be that of such deceased person. .
    3. Same—indorsement of payment of interest on a note—admission. An indorsement upon a note, in the handwriting of the maker, of the receipt of the interest thereon up to a given date, after which the interest should be eight per cent, if unexplained, is an admission that such note was in force at the time the indorsement was made. But if there is no proof aliunde of the payment of the interest, such indorsement will not be sufficient evidence to overcome the payee’s written receipt of payment in full, and his admission that the maker was “square” with him.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Lee county; the Hon. William Brown, Judge, presiding.
    . Messrs. William E. Ives & Son, Messrs. Dixon & Bethea, and Mr. William Barge, for the appellants.
    Messrs. Edsall & Edsall, and Mr. B. H. Trusdell, for the appellees.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by John H. and Sarah Long, to enjoin appellees, executors of the estate of Louis •Clapp, deceased, from selling certain lands under a power of sale contained in a mortgage dated October 12, 1876, which the complainants had executed to secure the payment of five certain promissory notes, amounting in the aggregate to the sum of $5800, and payable to Louis Clapp. The defendants to the bill, appellees here, put in an answer, in which the material allegations of the bill were denied. They also filed a cross-bill, in which they -prayed for a decree of foreclosure of the mortgage dated October 12, 1876, which purported to have been given to secure the payment of said sum of $5800, and interest thereon. Upon the hearing, on the pleadings,. and the evidence reported by the master in chancery, a decree was rendered dismissing the original bill and foreclosing the mortgage, as prayed for in .the cross-bill.

Owing to the death of Clapp, the mortgagee, and the consequent disability of Long, the mortgagor, to testify in the case, many of the facts connected with the notes and mortgage in dispute are--left in doubt and uncertainty, which, doubtless, would be made plain if both of the parties were here to testify. For several years prior to October, 1876, John H. Long and Louis Clapp had dealings together. In 1874, Long became embarrassed, and upon application of some of his creditors, he was adjudged a bankrupt. At this time he was indebted to Clapp in the sum of $6000, and interest, and to one Simon Badger in the sum of $778.66, and several years’ interest. These sums were secured by mortgages on what was known -as the “Long farm.” This farm was sold by the assignee, subject to the mortgages, and bid in by F. A. Truman. Some time after the purchase he obtained a release of dower from Mrs. Long, and on the 9tli day of October, 1876, he convoyed all his interest in the farm to Louis Clapp. Clapp also purchased the Badger mortgage, and several tax liens on the premises. These various conveyances to Clapp, through which the legal title became vested in him, it is claimed were made through an arrangement entered into between Long and Clapp. It is also claimed by Long that the farm was worth much more than the claims against it, and that Clapp agreed

with him to accept that portion of the farm lying west of the road, and $1000, which, as claimed, was paid in cash, in full payment of all claims he had upon the land, and that Clapp agreed to convey that portion of the laud east of the road to Long.1 The conveyance wras made by Clapp, to Long, but it is claimed and alleged in the bill that Clapp feared proceedings might be instituted by the creditors of Long to reach the property, unless it should be made to appear that the lands east of the road; conveyed to Long, were in fact sold to'him, and in order to give the transaction that appearance, the notes and mortgage for $5800,'dated' October 12, 1876, were executed by Long and delivered to Clapp,—that the notes and mortgage for $5800 were executed merely to indemnify Clapp against any loss he might sustain should Long’s creditors deprive Clapp of the land west of the road, which, as alleged, had been conveyed to him in satisfaction of all his claims. The alleged arrangement between Clapp and Long was not established by the evidence. It seems quite evident, from all the facts connected with the transaction, that Clapp obtained a conveyance of the Long farm under some arrangement made between himself and Long. He retained that portion of the land west of the Binghampton .and. LaMoille road, consisting of two hundred and iifty-one acres, on account of the indebtedness wdiieh he held against Long. It is also true that- Clapp executed a conveyance to Long of that portion of the land east of the road. But the controverted question is, whether Clapp took and retained that portion of the Long farm west of the'road, in satisfaction of his claim against Long. If he did, then the decree foreclosing the mortgage can not be sustained.

On the trial, the defendant read in evidence a receipt purporting to have been executed by Louis Clapp on the same day he conveyed the land east of the road to Long, and on the same day Long gave Clapp his notes and mortgage for $5800. The receipt read as follows:

“Amboy, October 18, 1876.
“Deceived of John H. Long, $1000, in full payment of five certain notes, bearing even date with this receipt, amounting to $5800. Louis Clapp. ”

The genuineness of the receipt is disputed by appellees. The appellant introduced on the trial fourteen or fifteen witnesses who were acquainted with the handwriting of Clapp, and they testified that the receipt was executed by him. The appellees introduced six or seven witnesses, who gave it as" their opinion that the signature to the receipt was not that of Louis Clapp. It is quite true, as suggested by appellees’ counsel, that the number of witnesses upon a question of this character does not always control. The knowledge of a witness, and the means of knowledge,—his honesty and intelligence,—are all to be considered in determining what weight should be given to his evidence. The witnesses called by appellants were well acquainted with Louis Clapp. They had done business with him, had seen him write, and knew his handwriting. They were therefore well qualified to speak of the matter upon which they were called to testify, and as to the genuineness of the signature to the receipt. We are of opinion that the clear and decided preponderance of the .evidence is, that Louis Clapp executed the receipt. That the receipt referred to the notes in controversy in this case, there can be no doubt. There were no other five notes bearing even date with the receipt, for the sum of $5800, in existence when the receipt was executed, and hence it could have reference to no other notes. Indeed, it is not pretended, from any quarter, that the receipt refers to other notes.

Whether the two hundred and fifty-one acres of land which Clapp retained was sufficient to cover his claims on the land, would depend, of course, upon the price which should be placed upon the property. The evidence fails to show a specific contract, under which a definite price was agreed upon by the parties. But there is evidence that the land Clapp retained was worth $25 per acre, and it appears that when he first offered it for sale he held the land at that price, and subsequently, when he reduced the price to $20 and $18, and offered to sell at that price, he declared to a number of persons that the land had cost him much more than that amount. From these facts, the inference may fairly be drawn that the land was taken by Clapp at $25 per acre. If this be true, there would be no $5800 of indebtedness left after deducting the amount which should be allowed for the two hundred and fifty-one acres of land. The counsel for the respective parties do not agree as to the amount Clapp held against the land, and we do not propose to enter into an itemized account of the indebtedness; but it is apparent, from the evidence, that the claims did not amount to $12,000, or any such sum, which would be the case if the notes for $5800 represented a part ..of the indebtedness, and were to be paid.

There is another strong fact in the ease which strengthens appellant’s theory that the notes were never to be paid. It appears from the evidence, that on the 24tli day of January, 1880, Long deposited in Little’s bank, to the credit of Clapp, $500, and in like manner $2000.on January 29, 1880. The evidence shows that $1000 of this money so paid by Long to Clapp, belonged to the latter, as his share of the proceeds' of ce'rtain cattle which Long and Clapp held together, but the $1500 was applied in payment of certain notes held by Clapp against Long, which were secured by mortgage on real estate, and were not then due. At the time this money was paid, two of the notes of October 12, 1876, then amounting to $1300, were past due, and another note of $1000 was nearly due. If these notes of October 12, 1876, were to be paid, why, it may °be asked, did Clapp accept óf Long, money in payment of well secured paper not due, and permit the notes past due to remain unpaid ? This is not the manner in which such business is usually transacted by business men. Clapp was a money loaner, and, as his financial success demonstrates, was a successful business man. Is it reasonable to believe that when he held notes against a person, due, and others not due, he would accept payment of notes not due, and allow those that were due to stand, without any objection whatever ? This is unreasonable, and may wrell be regarded as a fact tending to prove that the notes of October 12, 1876, were not to be paid.

There is also another fact which has an important bearing on the case. It ivas proven that Clapp stated, shortly after the payment of the money heretofore spoken of, that he and Long were “square.” Why a remark of this character should be made, if Long, at the time, was still indebted to Clapp over §5000, would seem to need some explanation.

In opposition to the testimony tending to prove that these notes were not a binding obligation against Long, are two facts entitled to due consideration. First is the fact that the notes were found in the possession of Clapp, uncancelled, at his death. Second, on the back of the notes is an indorsement, in the handwriting of Long, as follows: “Received interest on the within note up to March 1, 1880; after that, eight per cent.” This indorsement, in the handwriting of Long, unexplained, is an admission that the notes were in force at the time the indorsement was made; but is it sufficient to overcome the receipt, signed by Clapp, showing that the notes were cancelled, and all the other evidence introduced by appellant bearing on the question ? We think not. There is no evidence in the record that any interest was paid on the notes at the time the indorsement was made. Indeed, we find no evidence whatever that any interest was ever, at any time, paid on the notes. No witness was present when the indorsement was made on the notes, and no living witness could explain tliat indorsement but Long, and his lips are closed by the statute, on account of the death of Clapp. Had the interest been paid annually on these notes, after they were given, up to the time of Clapp’s death, we would have no hesitation in holding that Long was bound to pay the notes according to their terms; but the indorsement made thereon, no interest haying been paid, we do not regard as sufficient to overcome the ease made by appellant that the notes were not binding on him.

The judgment of the Appellate Court, and the decree of the circuit court, will be reversed, and the cause remanded to the circuit court for further proceedings consistent with this opinion.

Judgment reversed.

Sheldon and Sgholfield, JJ., dissenting.


author: Mr. Justice Sheldon

text:
    William Bradish v. George R. Grant.

      Filed at Ottawa November 13, 1886.

    1. Ejectment—plaintiff’s proof under general issue. Where the general issue alone is pleaded in an action of ejectment, under section 22, chapter 45, of the Be vised Statutes of 1874, the plaintiff has but to prove title in himself, to maintain his action.
    2. Burnt Becords act—decree finding title—conclusiveness. A decree in a proceeding under the Burnt Becords act, finding the title to a certain lot or tract of land to be in one of the parties, is conclusive evidence of that party’s title at the commencement of the suit, as against all the other parties to the proceeding.
    3. So in a proceeding to establish title to real estate under the Burnt Becords act, the court having jurisdiction of the necessary parties, found and decreed the title in one J., as derived by a deed from one N. On the trial of an action of ejectment, the defendant, who was a party to the decree, offered to show that the deed from N. to J. was a forgery, and offered in evidence a deed from J. to himself,—all of which the court, on objection, excluded: Held, that the genuineness of the deed from if. to J. was established by the decree, which could not be contradicted in that way.

      4. Chancery—impeaching decree for want of jurisdiction of the person—estoppel by dismissal of bill. "Where a complainant in chancery seeks by his bill to impeach a decree against him in a prior suit, on the ground that no service was had upon him, but his appearance was fraudulently entered by an attorney without authority, which bill, on the hearing, is dismissed for want of equity, such decree of dismissal will estop and conclude him from afterward attempting to show .a want of jurisdiction of his person in such prior suit.
    5. Same—dismissal of amended bill—effect thereof as a final disposition of the case. An amended bill being but the original bill as amended, it follows that a decree dismissing an amended bill means the dismissal of the hill as amended, and is a final disposition of the whole case,
    6. Limitation—when the statute begins to run—as against title under Burnt Records act. In a proceeding under the Burnt Records act the decree found the title to be in one of the parties in 1875, and it was held, another party to such decree would not be allowed to defeat that title by showing an adverse possession in another person for twenty years, commencing anterior to such decree. In such case the limitation could not begin to run until after the decree.
    7. Ebbob will not always beyeese—refusal to instruct the jury, or to permit argument. Where there is no other evidence in an action of ejectment, except a decree and a conveyance, which establish the plaintiff’s right to recover, the giving of instructions for the defendant, or allowing him to address the jury, being of no possible advantage to him, a refusal to give his instructions and to allow him to address the jury will not call for a reversal of a judgment for the plaintiff.
    Appeal from the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Messrs. Cunningham & Keily, for the appellant:
    William Bradish was not affected by the decree finding the title in Jones, for want of service on him, or rightful entry of his appearance.
    The court erred in hot permitting us to prove the title of Mr. Grant was obtained by a forged deed. Phillipson v. Lord Egermont, 6 Q. B. 582; Lord Brandon v. Beecher, 3 Cl. & Fin. 510; Tommy v. White, 4 H. L. 313; Sheldon v. Patrick, 1 MacG. 535; Perry v. Meddowcraft, 10 Beav. 122; Harrison v. Mayor, 4 D., M. & G. 137; 2 Smith’s Leading Cases, 687;
      Brownswood v. Edwards, 2 Ves. 246; Rex v. Duchess of Kingston, 20 How. St. Tr. 544.
    The court erred in overruling the motion to dismiss the suit when the plaintiff rested his case. When a party intends to avail himself of a decree, he must show the proceedings upon which it is founded. 1 Greenleaf on Evidence, see. 511; Winans v. Dunham, 5 Wend. 47.
    The court erred in not permitting the defendant to show outstanding title in others, and in refusing to read or consider the defendant’s instructions.
    The court erred in refusing counsel for the defendant the privilege of arguing the case to the jury. Meredith v. People, 84 Ill. 480; Corey v. Silcox, 5 Ind. 370.
    Mr. Jesse B. Barton, for the appellee:
    A decree of a court of general jurisdiction, is, as between the parties to it and their privies, conclusive as to its findings, and is absolutely binding until reversed, and can not be attacked collaterally. Arenz v. Ruhler, 1 Scam. 340; Rowe v. Bowen, 28 Ill. 116; Cemetery Co. v. People, 92 id. 619.
    The decree, if conclusive, would operate to exclude any evidence offered by defendant which was adjudicated in that decree. The title being decreed in Jones, in 1875, as against Bradish, no possessory title in favor of Bradish could begin to run prior to that decree, and twenty years not running since the decree, there could be no evidence of a possessory title. The Noble title having been adjudicated and determined by the decree, could not be resuscitated in this suit.
    A complete transcript is never necessary when only the decree is relied on, unless in an action on the decree itself. Phillips v. Webster, 85 Ill. 146 ; Walker v. Doane, 108 id. 236; McMillan v. Lovejoy, 115 id. 498.
    When the record presents.no question for a jury, and when, as in the case at bar, the evidence is solely records and deeds, it is proper for the court to direct a finding; and even if such direction were erroneous, it would Toe no ground for reversal, unless the result would be affected thereby. Smith v. Wetherell, 4 Bradw. 655; Thompson on Charging the Jury, p. 44, and cases cited; Simmons v. Railroad Co. 110 Ill. 340; Cook v. Norwood, 106 id. 558.
    This court has held that in criminal cases the trial judge has no power to exclude or limit arguments by counsel for the criminal, and this right is reserved to all persons prosecuted criminally, by section 9 of the Bill of Bights; but neither in the laws nor the practice is any such right reserved in civil suits, and it is a universal practice in our courts to exclude, arguments when there are no questions of fact to argue. Here, then, were two legal documents in evidence, and nothing more. Their effect and construction were alone for the court to determine. The office of the jury was wholly perfunctory. What was the advantage to be gained by an argument to the jury ? What to be lost by the exclusion of such argument ?
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of ejectment, brought by George B. Grant, against William Bradish, to recover the possession of the west forty feet of lots 7 and 8, in block 60, in Bussell, Mather & Boberts’ addition to Chicago. The plea, alone, of not guilty was filed, whereby, under section 22, chapter 45, of the Bevised Statutes of 1874, the plaintiff had but to prove title in himself to maintain his action. This he did, by the introduction, in evidence, of the decree and bill of complaint in a chancery suit, brought to the May term, 1875, of the circuit court of Cook county, under the “Burnt Becords” act, to establish title in said lots, wherein one Daniel T. Elston was complainant, and Fernando Jones, Bradish, (the defendant here,) and. others, were defendants. Also, a decree and bill in a subsequent suit in chancery in that court, wherein Bradish was complainant, and Grant, (the plaintiff here,) with others, was defendant; and a deed for said lots 7 and 8, from Fernando Jones to Grant, dated March 8, 1878.

By the decree first named, it was found that the title to said lots 7 and 8 was in Fernando Jones, in fee simple absolute, at the time of the filing of the bill in that case, stating how he derived title, setting forth a chain of title to him from the United States. By section 10 of the act under which that proceeding was had, the court is given power, in ease of the destruction of the records of any county, by fire-or otherwise, to inquire into the condition of any title to or interest in any land in the county, and make all such decrees as may be necessary to. determine and establish said title or interest against all persons. Section 15 provides, that it shall be competent for the court to determine and decree in whom the title in any or all of the lands described in the petition in the case, is vested,—whether in the petitioner, or in any other of the parties before the court. The decree found that all the parties were properly before the court, and that the court had jurisdiction of the subject matter and of the parties to the proceeding. Bradish being a party defendant, the decree was, as against him, a conclusive adjudication that the title to these lots was in Fernando Jones at the time of the commencement of that proceeding. It stands established, then, that at that time the title was in Jones, and the subsequent deed from Jones to Grant vested the title in the latter. This was the case made by the plaintiff in this suit. The defendant introduced no evidence. He made various offers of evidence, which the court rejected, and of which he complains. He offered to prove that there was no service on him in the first chancery suit, that the court had no jurisdiction over him, and that the entry of his appearance by an attorney was without authority, and was fraudulent. He was debarred from making this proof by the second above decree. That decree was in the case of a bill in chancery filed by him, against Grant and others, for the'purpose of impeaching the former decree upon these very grounds, among others, and this decree there, upon hearing and proofs heard, was one dismissing the bill for want of equity.

Against the effect of the second decree it is urged that the plaintiff introduced in evidence the original bill and the order dismissing the amended bill, and that the amended bill not appearing in evidence, it does not appear what the amended bill contained which was so dismissed, and so the order of dismissal is without effect here. All the foundation for this objection is, that the certificate of evidence recites that the plaintiff offered in evidence the bill of complaint and decree in the case, the bill being set forth, and being of the character above stated. In the entitling of the cause in the decretal order, it is styled “bill and amended bill, ” and the decree dismisses the amended bill, at the complainant’s costs, for want of equity. The amendment of a bill does not put two bills into the ease. There remains afterward but one bill,—the bill as amended. Dismissal of the amended bill, here, meant dismissing the bill as amended. An amended bill is considered as an original bill. 2 Madd. Ch. Pr. 36S. See Luce v. Graham, 4 Johns. Ch. 169, as to mode of amendment of bill.

In like manner, rejection was proper of evidence of a deed from John Noble, sole liéir of Mark Noble, to defendant, subsequent to the decree, and that the deed from John Noble to Fernando Jones, in the latter’s chain of title, as shown by the decree, was a forgery. There was no title shown in John Noble, or offer to show title in him. Without that, the mere deed from John Noble was no evidence of title, and was rightly excluded.

It is said that as a deed to Mark Noble, ancestor of John Noble, appears in the chain of title which is set forth in the burnt record decree, that is evidence against plaintiff, of title in Mark Noble. But if that chain of title shows a deed to Mark Noble, it also shows a deed from him, so that if the decree shows title in Mark Noble, it likewise shows title out of him, and thus, taken altogether, the decree avails nothing in showing title in Mark Noble, November 21,1883,■—the date of the deed from John Noble,—the decree having been entered April 12, 1883.

The offer of evidence to prove title in defendant by twenty years’ adverse possession, was properly refused. The title being decreed in Jones, in 1875, as against Bradish, no possessory title in favor of Bradish could begin to run prior to that decree, and twenty years not running since the decree, there could be no evidence of such a possessory title. And the same is to be said of the offer of .proof that one Callaghan had been in possession of part of said lots 7 and 8 for twenty-eight years continuously, and had paid taxes on the same during all that time, he having been a party defendant to the suit in which the decree first named was made. And so the offer of a deed from Fannie T. Elston, and Daniel T. Elston, her husband, to one Barton, of date March 15, 1883, was properly rejected, Daniel T. Elston being the plaintiff in said suit, and no title being shown, or offered to be shown, in his wife, Fannie. We find no error in the exclusion of evidence.

The court refused all the instructions asked by the defendant, and denied him the privilege to argue the case to the jury. The rule is familiar, that harmless errors form no ground for reversing a judgment. The giving of instructions in this case, or the defendant’s addressing the jury, could have been of no possible legitimate benefit to him. All the evidence was, the two decrees and bills, and, the deed. All the question there was in the ease, was the legal effect of these documents. That was a question for the court to decide. This proof showed a complete title in the plaintiff, and, under the law, a verdict for the plaintiff followed as the unavoidable result. The defendant suffered no harm from the rulings of the court.

The judgment must be affirmed.

Judgment affirmed,.


text:
    William Buck v. Cyrus L. Buck.

      Filed at Ottawa November 13, 1886.

      Practice—after reversal and remandment—what .further proceedings may be had. Where this court in a chancery case finds for the defendants on the merits, and reverses the decree in favor of the complainant, and remands the cause for further proceedings in conformity with the opinion, this is equivalent to a reversal with direction to dismiss the bill. In such case the complainant will have no right to have the case heard again on the merits, or to file a supplemental or amended bill.
    Appeal from the Circuit Court of Warren county; the Hon. T. M. Shaw, Judge,, presiding.
    Mr. I. M. Kirkpatrick, for the appellant:
    The court below acted upon the idea that the whole matter was disposed of by this court, and that nothing was left but to dismiss the bill. We refer to the following cases: West v. Reed, 55 Ill. 242; 70 id. 479; Carr v. Rising, id. 596; Hough v. Harvey, 71 id. 72; Blatchford v. Newberry, 99 id. 11; Wadhams v. Gay, 73 id. 415; Blatchford v. Newberry, 100 id. 492.
    Upon the point whether the court below should have allowed the supplemental bill to be filed, or allowed an amendment to the bill, we refer to the following authorities: Chickering v. Failes, 29 Ill. 284; Shinn v. Shinn, 15 Bradw. 145; 91 Ill. 477; Carpenter v. Calvert, 83 id. 62; 96 id. 63; Elston v. Kennicott, 52 id. 274; Russell v. Epler, 10 Bradw. 305; Williams v. Walker, 62 Ill. 518.
    Messrs. Stewart & Stewart, for the appellee:
    A party can not, on a subsequent appeal, assign for error any cause that accrued prior to the former decision of the Supreme Court. Ogden v. Larrabee, 70 Ill. 510; Newberry v. Blatchford 106 id. 584.
    A second appeal in the same case, where the first decision covers the merits of the controversy in all its bearings, brings up only the subsequent proceedings had after the mandate of the court of last resort was sent down. Newberry v. Blatchford, 106 Ill. 584.
    On a second appeal to the Supreme Court, presenting the same questions decided on the first appeal, the question of res judicata may be presented and considered without any formal plea. Newberry v. Blatchford, 106 111. 5S4.
    In this case there was a single issue presented, and that was as to the validity of the will. The evidence was all that could be adduced as to the questions sought to be raised now, and the Supreme Court, with a full record before them, decided the question in favor of the will and defendant in error. Atwood v. Buck, 113 Ill. 268.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This case was before this court at a former term, and is reported in 113 Ill. 269. (Atwood v. Buck.) The facts relating to the claims of the parties are set forth in the opinion there reported, to which reference is made. In brief, the bill was filed by William Buck, complainant, against Cyrus L. Buck, defendant, for partition of certain real estate in Warren county, of which it was. alleged Murray Buck died seized. The reason .of the name, of Atwood appearing in the reported case was, that in the progress of the' suit, Atwood, assignee in bankruptcy of William Buck, was substituted in his place, and afterward, and after the remandment of the cause, Atwood’s interest as assignee having become determined, and he having reconveyed to William Buck, the latter, by order of court, was re-substituted as complainant. The complainant in the bill alleged that Murray Buck died intestate, and claimed a share in the real estate as heir. The defendant claimed the whole-of the property under a devise thereof to him by a will made by Murray Buck. The will had been admitted to probate in Knox county, in this State, but it was claimed by the complainant that a probate court in the State of Vermont refused to admit the will to probate, and that such refusal was an adjudication which was final and conclusive. It was said in the opinion: “Treating the will of Murray Buck as valid, and as having been regularly admitted to probate in Knox county, where the testator died, it would pass the entire title of the land to defendant, Cyrus L. Buck, and that would be the end of all controversy. ” The question as to the Vermont court’s refusal to probate the will was considered, and it was found there was no competent evidence of any adjudication touching the will in any court in the State of Vermont. The probate of the will in Knox county, in this State, was then considered, and it was held that it was there regularly admitted to probate, and established as the last will and testament of the' decedent. It was then said : “That probate of the will stands unreversed, and no reason is perceived why defendant does not, under its provisions, take the entire land. This view being conclusive of the whole case, etc., * * * the decree of the circuit court must be reversed, and the cause remanded for further proceedings conforming to this opinion.” When the cause was re-docketed in the circuit court, from which the appeal had been taken, that court denied motions made by the complainant for leave to file a supplemental bill, and for leave to amend the original bill, and set aside the decree of partition and dismissed the bill. Complainant appeals, and assigns for error this action of the circuit court.

As there was no specific direction by this court to dismiss the bill, it is insisted the court below should have allowed the motions to file a supplemental bill and to amend the original bill, and have reheard the cause. The supplemental bill contained no matter which had happened subsequent to the original hearing of the cause in the circuit court. It, and the proposed amendment, set forth only that in obtaining the probate of the will in Knox county, defendant perpetrated a fraud upon the probate court, and upon the rights of complainant,—it being alleged to consist in certain enumerated acts and doings of defendant in receiving, as heir-at-law and as intestate estate, a share of other property situated elsewhere, of which the decedent died seized, including the property by the will devised to others, and in not informing the probate court of Knox county thereof, or of the refusal of the court in Vermont to probate the will.

It will be seen, from what has been said in respect of our former decision, that we determined the cause upon its merits, in favor of the defendant. This court has repeatedly held, that where a chancery cause is decided in this court upon the merits, the opinion finding there is no equity in complainant’s bill, and the cause is remanded for further proceedings in conformity with the opinion, it is the duty of the court below to dismiss the bill for wrant of equity,—that such order, in such-case, is equivalent to a specific direction to so dismiss .the bill. (Boggs v. Willard, 70 Ill. 315; Wadhams v. Gay, 83 id. 251; Newberry v. Blatchford, 106 id. 584.) In Wadhams v. Gay, it was expressly declared, that “on the receipt of the mandate and opinion, the Superior Court was bound to carry into complete effect the decision of this court, not to re-try the cause, or place the complainants (the appellees) in a position by which the cause might be re-tried. ” In Boggs v. Willard, reference is made to the statute which empowers this court to give final judgment and issue execution, or remand the cause that execution may issue, or that other proceedings may be had thereon, and the purport of the decision is, that such a decree in this court, in favor of the defendant, upon the merits, is a virtual decree of dismissal, and that the cause is only remanded that the court below may dismiss the bill and issue execution for costs from that court instead of this, and that under such a remanding order as that in this ease, the court below could only act in conformity with the opinion, and dismiss the bill. The reason is well stated in Hollowbush v. McConnel, 12 Ill. 204: “There must be an end of litigation somewhere, and there would be none if parties were at liberty, after a case had received the final determination of the court of last resort, to litigate, the same matter anew, and bring it again and again before the court for its decision. ”

What was sought here, was to make a further ground of attack against this will. This would be a continuance of litigation, which the law does not favor. The whole question of the validity of the will, and the devise to the defendant, should have been gone into, and determined upon the hearing which had before been had. We find no error, and the decree must be affirmed.

Decree affirmed.


author: Mr. Chief Justice Scott Mr. Justice Shope,

text:
    Edward Simons v. The People ex rel. Andrew Dunning.

      Filed at Ottawa November 13, 1886.

    1. Elections—when there is no vacancy. After a successor of a deceased trustee of schools has been regularly and legally elected, and qualified, a second election to fill the same unexpired term will be a nullity, for the reason there is no vacancy to fill.
    2. Same—school trustees—polling places—and herein, of changing the place of voting. Elections for trustees of schools are properly held at the places fixed by the county board for holding general elections.
    3. An election to fill a vacancy in the office of a school trustee, held at the time and places stated in the notices thereof, (which places are those fixed by the county board for holding general elections,) and held by proper officers, will be a legal election.

      4. A certain town in a township was divided into two voting districts by the county board, for general elections, with a polling place in each. The trastees of schools fixed only one polling place for such town, which was a central point, at which school elections had been held for several years prior thereto. It was conceded- that no one was prevented from voting for want of enough voting places, or on account of the place at which the votes were taken. It also appeared that it was not practicable to have held the election at both polling places fixed by the county board: Held, that the board properly held the election at the place at which the school elections had been previously had.
    5. Any such change in the place of receiving votes at an election for school trustees as would mislead electors, or prevent a full and fair election, will render the election invalid. But a slight change from that named in the notice, as to the place of voting, which misleads or deceives no voter, will not invalidate the election.
    6. So where an established polling place was, in the notice of an election to fill a vacancy in the office of school trustee, described as “Kuhn’s Hall," instead of “Kuhn’s real estate office,” on the morning of the election the voting place was changed to the latter place, not more than two hundred feet from “Kuhn’s Hall,” and in plain view of the same: Held, that so slight a change in the place of voting ought not to render the election void, it being in all other respects legal, especially when it was conceded that no one was prevented from voting at such election on account of such change.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Messrs. Matthews & Dicker, for the appellant:
    The right to hold an election, or even to fill a vacancy, is derived from the law, and not from the notice. McCrary on Elections, sec. 118.
    It was proper, at the election in October, to appoint but one polling place for the Norwood Park district. Rev. Stat. chap. 122, sec. 27; chap. 46, sec. 30; chap. 139, sec. 67; chap. 46, secs. 52, 58, 62, 63.
    As to the power to change the voting place on election day, as before referred to, see Knowles v. Yates, 31 Cal. 83; Miller v. English, 21 N. J. L. 317; Broadhead v. Milwaukee, 19 Wis. 624; People v. Martin, 5 N. Y. 27; Goodell v. Baker,
      8 Cow. 286; Dale v. Irwin, 78 Ill. 170; Chicago v. People, 80 id. 496.
    Messrs. Crafts & Stevens, for the appellee:
    The holding of elections at the places fixed hy law is not directory, but mandatory, whether they are fixed by a court or by a board of officers. "When once legally fixed by proper authority, it can only be changed hy proper authority, and in the manner provided by law. McCrary on Elections, 126, sec. 115; Commonwealth v. Commissioners, 5 Rawle, 75; Marshall v. Kerns, 2 Swan. 68; Foster v. Scarff, 15 Ohio St. 535; Stephens v. People, 89 Ill. 342; Rev. Stat. chap. 122, sec. 27.
    As to estoppel to question the validity and legality of elections, see People v. Wait, 70 Ill. 27; People v. Moore, 73 id. 132.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The information in this case is in the nature of a quo warranto, and charges Edward Simons with having usurped and entered into, and exercised the powers and duties of the office of trustee of schools of a certain township, particularly described, both by name and numbers. Two .pleas, stating definitely the title of respondent to the office in question, were filed by him, and to both of which a demurrer was sustained, and respondent not answering further, judgment of ouster was pronounced. In the first count of the information, respondent is simply charged with usurping the office of trustee of schools in a certain township, and exercising the powers and duties of such office, but in the second count it is averred the relator, Andrew Dunning, on the 21st day of November, 1885, was regularly and legally elected to the office of trustee of schools in such township, by the legal voters, and that he took the necessary oath required by law, and entered upon the duties of such office, and that afterwards, respondent unlawfully usurped such office, and entered into and exercised the powers and duties of the same, without any authority of law for so doing. The title to such office, as set forth in the first plea, respondent avers was acquired under an election held on the 24th day of October, 1885, to elect a successor to a former deceased trustee, to fill the unexpired time of such deceased officer, and at which election respondent was elected his successor. In the second plea, respondent avers he was elected trustee of schools at a .special election held in the township on the 21st day of November, 1885. It is obvious, if respondent was regularly and legally elected trustee of schools at the election held on the 24th day of October, 1885, to fill the unexpired term of the former trustee, the second election, held on the 21st day of November, 1885, to elect a successor to the same deceased trustee, would be a mere nullity, for it would be an election to fill a vacancy in an office where none existed, either in law or in fact.

The facts appear on admission by demurrer to the plea, and it is a question of law whether the facts, as stated in the first plea, show that respondent was legally elected to the office of trustee of schools at the election held on the 24th day of October, 1885. On the 10th day of October, 1885, the surviving trustees ordered an election to be held in the township, on Saturday, the 24th day of October, 1885, to elect a trustee to fill the vacancy in the board, occasioned by the death of one of the trustees. At the same meeting when the election was ordered, the board appointed the polling places in the township, six in number, all of which polling places are situated in the township, and conveniently located for receiving the votes of all the voters of the township. Accordingly, the township treasurer gave the usual notice for the holding of such election, on the day named, and at the several places appointed by the board to be polling places to be used at the ensuing election. It is then averred, “that the manner of calling said election, and of fixing the polling places and giving notice of the same, was as provided by law, and in accordance with the custom used at the previous election of school trustees in said township; the polling places before named were the same polling places named and used at three previous elections of trustees of schools of said township, and the boundaries of the districts for which each of said polling places was appointed were well understood by the electors of said township, and said districts, taken together, embraced the whole of said township, and no more territory, and no person entitled to vote at said election failed to do so by reason of any insufficiency of the number of polling places appointed, or by reason of any misunderstanding of the boundaries of any district for which any of the said polling places "were appointed, as aforesaid.”

The election ordered to be held on the 24th of October, 1885, was in fact held on that day at the polling places appointed by the board, in pursuance of the notice given, except that on the day of the election the polling place in district No. 3 was changed from “Kuhn’s Hall” to “Kuhn’s real estate office,” the latter place being in plain sight of the former, with the space between, vacant, and except a similar change was made before the voting began, on the day of the election, in the Norwood Park "district, from “Ball’s store” across the railroad to “Fox’s store.” It is averred the polling places, and the boundaries for the voting districts, used at such elections, were the same as fixed by the board of commissioners of Cook county to be used at general elections in the towns of Jefferson and Norwood Park, except that the county board divided the town of Norwood Park into two voting districts, with a polling place for each, and with one-half of the territory of each such voting district within township 40, and at such election only one polling place was used in the part of the town of Norwood Park within township 40, which polling place so used was nearer the center of that part of the town of Norwood Park within township 40, than were either of the polling places fixed by the board of commissioners to be used at general elections in the town for polling places for the tw7o voting districts into which the whole town of Norwood Park was divided.

It will thus be seen, the polling places at which the election was held under the order of the board calling such election, were the same as fixed by the county board for holding general elections, except in the district of Norwood Park. In all districts other than the latter, the election was held at the places fixed by the county board for holding general elections, and that is according to law. As to the Norwood Park district, the admission is, the election was appointed to be held at the place where the three previous elections for trustees of schools had been held. At the election so held in pursuance of the notice given, respondent received a majority of the votes of the township cast at such election, and it is by virtue of that election respondent claims the right to exercise the powers and duties of the office of trustee of schools.

It must be conceded, the elections held in the first, second, fourth and fifth districts, at which respondent claims to have been elected, on the 24th of October, were entirely regular in every respect. The election in these several districts was held at the time stated in the notices given, at the places stated, which were the polling places fixed by the county board for holding general elections, and by the proper officers. Of the votes east at these four polling places, where it is conceded the election was held according to law, respondent received a majority of the votes so cast, over his opponent, Mr. Fry. If the votes in districts Nos. 3 and 6, where, it is insisted, irregularities intervened, should be counted, still, respondent would have a majority of all the votes cast at such election. There was no candidate opposed to respondent, except Mr. Fry, and it does not appear he ever claimed to have been elected at that election, or at any other time.

What is it then, if anything, that renders the election of the 24th of October, 1SS5, void? It was held in the several districts of the township at the time mentioned in the notice, and every legal voter was afforded an opportunity to vote for the candidate of his choice. The only irregularity in the third district in conducting the election, is, that it is admitted by the plea the polling place on the morning of the election was changed from “Kuhn’s Hall” to “Kuhn’s real estate office. ” It will be seen the averment is, “Kuhn’s real estate office” is the place in that district fixed by the county board where all general and special elections shall be held. The notice given by the treasurer seems to have stated the election would be held at “Kuhn’s Hall. ” All that was done was, on the morning of the election, to change the polling place from the hall to the real estate office, which was the proper place fixed by the proper authorities for holding the election. The buildings were not more than two hundred feet apart, in plain sight of each other, with open space between. Every voter could readily see.what was done. Indeed, the buildings were in fact so near together they-were practically at the same place. So slight a change in the place of voting ought not to render void an election in all other respects regular and according to law,—especially so, when it is admitted no one was prevented from voting at such election on account of the change of the polling place. As was said by this court in Chicago v. People, 80 Ill. 507: “It is not perceived wherein the change made was calculated to produce any injurious effects, and- we think it should not be held sufficient grounds to invalidate the election.” Dale v. Irwin, 78 Ill. 170.

With respect to the polling place in Norwood Park district, it appears, from the averments of the plea, the county board had divided the town of Norwood Park into two voting districts, with a polling place in each, and with one-half of the territory of each such voting district within township 40, where the election was to be held. It also appears, only one polling place was used at this school election in the part of the town of Norwood Park within township 40, but it is alleged the place so used was nearer the center of that part of the town of Norwood Park within township 40, than were either of the polling places fixed by the county board to be used at general elections in that town for polling places for the two voting districts into which the town of Norwood Park was divided. The polling place appointed in Norwood Park district was the usual polling place for school elections, and it appears the three last elections for school trustees had been held at that place, and the allegation is, this fact was well understood by the electors of the township. It is alleged, and of course admitted by the demurrer, the districts, taken together, embraced the whole of the township, and no more territory, and that no person entitled to vote at such election failed to do so by reason of any insufficiency in the number of polling places appointed, or by reason of any misunderstanding of the boundaries of any district for which polling places were appointed. The law does not contemplate there shall be more than one polling place in each district, and it seems it would not have been practicable to hold an election for school trustee at both polling places fixed by the county board for holding general elections in the two districts composing the entire town of Norwood Park. It was therefore proper for the board of trustees to appoint, as a polling place in Norwood Park, the place at which school elections had been previously held. It was well understood by the electors, and no one ever complained he was incommoded or prevented from voting at such election on account of the polling place selected.

The only remaining question to be considered has reference to the removal of the polling place in Norwood Park district on the morning of the election, before the voting commenced. The polling place first appointed was at “Ball’s store, ” but it was changed from that place across the railroad to “Fox’s store, ” and it is averred, in this connection, no voter in the district was ignorant of the change made, or failed to vote at such election by reason of the change in the polling place. What was said in respect to changing the polling place in district 3, applies' with equal force to changing the polling place in Norwood Park district. No great or material change was made of the polling places in either district, and it is distinctly made to appear no voter was ignorant of such changes, or failed to vote on account of the changes made in the polling places. The election was as full and fair, so far as anything appears from the record, as it would have been had no changes been made as to the place of receiving the votes. Every elector was afforded an opportunity to vote for the candidate of his choice. Any such change in polling places as would mislead electors, or prevent a full and fair election, would, of course, render the election invalid. But in this ease it is made to appear no injurious effects followed from the slight changes made in the polling places, as was done, and this court is unwilling, to hold that mere trivial causes will invalidate and render void an election otherwise full, free and fair. Public policy forbids the adoption of any rule that will work such disastrous results, and defeat the expression of the popular will at elections.

There is yet another view that may be taken, and that is," if the election held in the third district and in Norwood Park district • should be held to be invalid on account of changing the polling places, as was done, and the votes of both districts rejected, still, as has been seen, respondent would have been elected by the legal votes cast at the election in the other districts. The result is precisely the same, whether the votes cast in district No. 3 and in Norwood Park district be counted or not. In either case, it will appear respondent was elected, and can hold the office until his successor shall be elected according to law.

Holding, as is done, the election set forth in the first plea gave respondent a valid title to the office he is charged with usurping, the demurrer to the plea should have been overruled. This view disposes of the whole case, and it will not. be necessary to consider any question supposed to arise on the second plea.

The judgment of the Appellate Court will be reversed, and the cause remanded to the circuit" court.

Judgment reversed.

Mr. Justice Shope,

dissenting.

Sheldon and Magbugeb, JJ.: We concur in the opinion, except as respects the second plea. We think that the second plea should have been disposed of.