Imágenes de páginas

costs, and we would not be ready to establish, of exceptions to masters' reports were to a rule that a complainant might at any time be put on the contested motion calendar. during the progress of the hearing make a The court denied the motion under a rule tender of the amount due and require the for emergency matters, on the ground that other party to pay the subsequent costs. the time for redemption from a foreclosure But this tender was made before the proceed- sale of the premises would expire in the folings on the reference began, and the appor lowing September. The solicitor, being still tionment was not unreasonable.

engaged in the trial of a case in another Appellants also insist that the court erred court, which he had left temporarily, asked in denying their petition for a change of for further time; but the court ordered him venue and in setting aside one of the rules of to proceed at once, and, upon the exceptions the court, and that there was an abuse of being read, overruled them and entered the discretion in both instances. The proceed decree. ings in the cause had been before another The obligation of a judge to allow a change judge of the superior court, and on July 6, of venue to one who brings himself within 1905, notice was given to the solicitor for the the provisions of the statute is imperative appellants that exceptions to the master's and admits of the exercise of no discretion. report would be called up on Monday, July Clark v. People, 1 Scam. 117. But the stat10th, before the judge who heard the ex

uto requires reasonable notice, and what is ceptions and entered the decree. Appellants

reasonable notice in a particular case must had filed objections to the report before the

be left to the discretion of the judge to master, and they were overruled on March 15, whom the application is made, and that dis1904. The report had remained with the

cretion will not be interfered with unless master for one year and three months there

abused. Berry v. Wilkinson, 1 Scam. 164. after, during which time no action had been

The cause had not previously been on the taken in the case. On July 10th the solicitor

calendar of the judge who heard it, but apfor appellants appeared in court and stated

pellants had received notice on July 6th that the cirumstances of the case and that he was

the exceptions would be called up before him engaged in another court, whereupon he was

on July 10th. We cannot say that it was

an abuse of discretion on the part of the ruled to file exceptions to the report by

court to hold that notice for one day under Wednesday morning of that week, at 10

such circumstances was insufficient, and the o'clock. He then stated that he should probably ask for a change of venue, and that they

same must be said of the decision that there had been trying to agree upon another judge

was an emergency justifying the setting aside

of the rule of the court. The emergency to hear the case, and gave verbal notice of

was not great, as the time for redemption the intended application to opposing counsel.

did not expire until some time in September, From that point the contest appears to have

but the matter was so largely in the disbeen between the judge and appellants, and

cretion of the court that we are not disposed the certificate of evidence shows that the

to reverse the decree on that account. following proceedings then took place: The

The tax deed was clearly invalid, and there judge ordered the case to proceed at once,

was no meritorious defense to the bill. No and the solicitor asked for time to file ex

other result as to the merits could have ceptions, whereupon he was ruled to file

been reached, and upon a consideration of the them instanter. The solicitor invoked the

whole case the decree is affirmed. rule that under that order he had all of

Decree affirmed. the day until the adjournment of the court to file his exceptions; but the judge said that instanter meant at once, and he could sit

(219 Ill. 195) down there and write his exceptions. The WENHAM et al. v. SCHMITT et al. judge set aside the order giving until (Supreme Court of Illinois. Dec. 20, 1905.) Wednesday morning at 10 o'clock to file 1. EXECUTION-REDEMPTION-PROPRIETY. exceptions; but, upon counsel for appellee The fact that the party redeeming from conceding that the solicitor was actually en

an execution sale has previously obtained an

order restraining the sheriff from issuing the gaged in impaneling a jury in another court,

deed or paying over the redemption money which he had left to attend to this matter, pending appeal from an order denying a motion an order was entered allowing him to file to set aside the sale does not affect the legality exceptions by 10 o'clock the next morning.

of the redemption, where it in all respects com

plies with the statute. At that time the solicitor presented a petition

2. SAME-AMOUNT TO BE PAID. of the appellants for a change of venue.

An appellant from an order denying a It was in all respects in compliance with the motion to set aside an execution sale, who also statute, but the judge ruled that the notice obtains an order restraining the sheriff from given the day before was insufficient, denied

making any deed or paying over any redemption

money pending the appeal, need not, on redeemthe petition, and ordered the case to proceed

ing from the sale before the appeal is deat once. The rule to file exceptions had been termined, pay interest on the amount of the bid complied with, and the solicitor for appel

from the time of the sale to the time of the lants then insisted upon a compliance with

determination of the appeal, as any liability

for the interest is to be determined by proceed. the rules of the court by which the hearing

ings on the appeal bond.

Appeal from Superior Court, Cook County; to the appellant Charles F. Wenbam for M. Kavanagh, Judge.

$2,990, and on July 23, 1902, a certificate of Bill by Isidora Schmitt against Charles sale was made and delivered to him by the F. Wenham and others, in which defendant sheriff. On January 22, 1903, Isidora Wenham filed a cross-bill against complain Schmitt filed her bill to set aside the certifiant and others and Zaidah E. Wenham filed a cate of sale. On May 4, 1903, the Internasupplemental bill. From a decree dismissing tional Packing Company, defendant in the exthe various bills, the Wenbams appeal. Af ecution under which the sale was made, prefirmed.

sented its motion to the superior court of Rehearing denied February 7, 1906.

Cook county, from which the execution isDavid K. Tone and Thomas J. Sutherland,

sued, for an order setting aside the execution,

levy, sale, and certificate of sale. The court for appellants. Barker, Church & Shepard

denied the motion, and the International (William T. Church, of counsel), for appellee

Packing Company prayed an appeal, which Schmitt. F. J. Canty and Americus B. Mel

was allowed upon filing a bond in the ville (H. E. Long, of counsel), for appellees

sum of $4,000, conditioned to pay to plainBarrett and International Packing Co.

tiff, Cichowicz, and to Charles F. Wenbam, CARTWRIGHT, C. J. Isidora Schmitt, the purchaser at the sale, all damages they one of the appellees, filed her bill of com

or either of them might sustain by the stayplaint in the superior court of Cook county,

ing of proceedings in said cause. The bond praying that court to set aside as a cloud was given in compliance with the order and upon her title a certificate of sale of premises

was approved by the court, and the sheriff owned by her, issued to Charles F. Wenham,

was restrained by order of the court on July one of the appellants, on a sale under an

1, 1903, during the pendency of the appeal, execution in favor of John Cichowicz against

from issuing any sheriff's deed, and, in case the International Packing Company, one of

of redemption, from paying over to any perthe appellees. The bill was afterward son the redemption money until the decision amended so as to allege that the Internation of the cause upon appeal, and Charles F. al Packing Company had redeemed the prem

Wenham was also restrained from taking ises from the sale in accordance with the

out any sheriff's deed based upon said sale the provisions of the statute. Charles F.

until such decision. On July 13, 1903, the Wenham, after demurring to the amended

International Packing Company paid to the bill, answered the same and filed his cross sheriff $3,169.40 to redeem the premises from bill against appellees, Isidora Schmitt, the the sale, and that was the full amount re International Packing Company, and Thomas

quired by the statute to effect a redemption. E. Barrett, sheriff, asking the court to set

The sheriff issued a certificate of redemption aside the sheriff's certificate of redemption

as required by the statute, and it was recordfrom said sale, to declare him the absolute

ed in the recorder's office. The Appellate owner of the premises, and to order the sher Court reversed the order of the superior ift to execute a sheriff's deed to him. The

court; but the judgment of the Appellate cross-bill was amended, and appellees demur

Court was reversed, and the order of the red to it. Zaidah E. Wenbam, the other ap

superior court was affirmed by this court. pellant, upon leave granted, filed a supple Wenham v. International Packing Co., 213 Ill. mental bill, alleging that Charles F. Wenham 397, 72 N. E. 1079. had conveyed to her all his right, title, and in

The facts stated in the cross-bill, to which terest in the premises, and asking to be sub | the demurrer was sustained, show that the stituted as complainant in the cross-bill. The redemption was made within the time and in court sustained the demurrers of appellees to the manner prescribed by the statute and the cross-bill and supplemental bill, and, with the proper officer, that the amount paid appellants having elected to stand by their was sufficient to effect the redemption, and cross-bill and supplemental bill, the same

that a certificate evidencing the redemption were dismissed for want of equity. The was given and recorded in the recorder's original bill was then dismissed on mo office. The ground upon which counsel for tion of the appellee Isidora Schmitt. Ap appellants contend that the redemption was pellants appealed from the decree dismissing not effectual is that the superior court, on the original bill and the cross-bill and sup motion of the International Packing Complemental cross-bill.

pany, had restrained the sheriff, during the The sole question in this case is whether pendency of the appeal, from paying over the the payment by the execution debtor, the redemption money to the purchaser, so that International Packing Company, to the sher he could not obtain the redemption money at iff, within 12 months from the date of the once. The right to redeem property sold upsale, of the sum of $3,169.40, the amount of on execution is given and regulated by statthe sale with 6 per cent. interest thereon, in ute, and, the provisions of the statute having accordance with the statute, was a legal re been complied with, the property was redeemdemption from the sale. The facts alleged ed from the sale and freed from any claim of upon which the court held that the redemp the purchaser. If he was entitled to receive tion was legal and valid are as follows: The the redemption money at once and was de sale was made by the sheriff on July 15, 1902, prived of that right, it was through the order of the superior court, and the legality of the the payment of redemption money to the redemption was not affected thereby. The sheriff, but the statutory right of redemption redemption money was paid to the sheriff . was not exercised. No money was paid to without any condition whatever, and his cer the sheriff for the purpose of redeeming the tificate recited that it was paid for the bene property, nor was it paid to any one authorfit of the purchaser. The fact that the court, ized by the statute to receive it. There was on motion of the International Packing Com- | no redemption in that case, and the court so pany, had entered an order restraining the held; but in this case there was a redempsheriff from paying over the redemption mon tion in strict compliance with the statute. ey until the determination of the appeal, does The superior court did not err in sustaining not in any manner affect the question wheth the demurrers and dismissing the bills of aper there was a redemption. Counsel for ap pellants, nor in dismissing the original bill of pellants argue that a payment of money un appellee Isidora Schmitt. The decree is afder similar circumstances would not consti firmed. tute the payment of a debt or obligation, or Decree affirmed. a legal tender of payment; but the question what will constitute a redemption under the statute is not to be confused with either pay.

(219 III. 218) ment or tender. The only question is wheth

LEE et al. v. LOMAX. er the statute was complied with.

(Supreme Court of Illinois. Dec. 20, 1905.) Counsel for appellants further contend that EVIDENCE-EFFECT OF EXPERT TESTIMONY. the redemption was not valid because, when Testimony of attorneys as to the reasonthe appeal was finally determined in this

ableness of the charges of other attorneys for

services is not binding on the court. court, the money in the sheriff's hands was

[Ed. Note.-For cases in point, see vol. 20, not equal to the amount of the bid, with 6

Cent. Dig. Evidence, 8 2397.) per cent interest thereon to the time of such final determination. They treat the case as

Appeal from Appellate Court, First Disthough the payment to the sheriff was an at

trict, tempt to redeem at the time of the final de

Bill by Maria Lomax against Clyde D. termination of the appeal in this court, and

Lee and others. Decree for defendants was that interest at 6 per cent. from the time of reversed by the Appellate Court, and they the sale up to such final determination would

appeal. Affirmed. be necessary to effect such a redemption. Rehearing denied February 7, 1906. That position is not correct; but, on the con J. S. McClure, for appellants. Vail & Pain, trary, when the appeal was finally decided for appellee. the time for redemption had expired, and neither the packing company nor its grantee, CARTWRIGHT, O. J. Appellee, Maria Isidora Schmitt, would then have been en Lomax, filed her bill in the circuit court of titled to redeem upon the payment of any Cook county against appellants, Clyde D. sum of money. Interest on the redemption Lee, Bernard L. Lee, and F. B. Schuchardt, money after it was deposited with the sheriff a firm of attorneys, to compel the surrender could not be considered as redemption money, of her papers, upon which they claimed a or any part of it. The packing company lien for attorney's fees, and for an accountwas not bound to allow the time for the re ing, and to enjoin them from prosecuting a demption to expire while litigating the ques suit against her for such fees. The defendtion whether the purchaser was entitled to ants answered, admitting that they had actreceive the redemption money, and interest on ed as the complainant's attorneys, claiming the money while the purchaser was deprived that she was largely indebted to them for of its use is in the nature of damages. It

legal services, and alleging that they had could not be added to the amount paid to the

rendered a bill to her for $1,400 for fees and sberiff for the purpose of invalidating a re had commenced a suit at law to compel pay. demption lawfully made. If the purchaser

ment. A replication having been filed, the suffered any damage by the loss of interest,

cause was referred to a master in chancery. he can only be reimbursed by the security Complainant's claim on the accounting before afforded by the bond filed in pursuance of the the master consisted of a promissory note uporder of court and conditioned to pay him all on which there was $312.84 due and which such damages. After the redemption he had was not in dispute. Defendants' account no right to the land, or to a deed; but his presented to the master consisted of three right was to receive the money. If he suffer

charges: One of $750, for two suits comed any damage, it was because of the re menced against the Chicago Consolidated straining order, and the bond was given to Bottling Company for rent, upon which charge secure payment of such damage.

$200 had been paid; $500 for examining Counsel for appellants liken this case to titles and preparing to begin a suit for parthat of Lynch v. Burt, 132 Fed. 417, 67 C. C. I tition; and $50 for placing two children in an A. 305, where a cross-bill was filed to set | orphans' home. The amount claimed to be aside certificates of sale, and the amount re- due on these three charges was $1,050, and quired to redeem was deposited in court. that was the amount in controversy in the The statute provided for a redemption by suit. The master gave defendants credit for

the charge of $50 for placing the children in | results had been obtained, and there was the orphans' home, and no objection or ex nothing in the question, which was the same ception to that allowance was filed by the in both suits, requiring any extended recomplainant. The master disallowed the search. The $200 paid for fees in those suits other items, and, after deducting $50 from the was ample compensation for all the services amount due on the note, reported a balance performed in relation to the rent or the suits. due complainant of $262.84. The court sus The charge of $500 was of the most general tained exceptions of the defendants to the re character, and there was nothing substantial port, and allowed to them for fees the exact about it. It was claimed that a great amount amount due on the note, so as to balance the of time and labor had been expended in accounts, and ordered the note canceled and getting information and determining questhe costs equally divided between the parties. tions of law preparatory to bringing the suit. The complainant appealed to the Appellate Defendants had been acting as attorneys for Court, and that court reversed the decree and the complainant, and in doing so had informed remanded the cause, with directions to over themselves as to her property and estate, and rule the exceptions to the report of the master had been paid for it. They had given many and to enter a decree in accordance with the receipts in full for all legal services up to the report and for costs of the suit.

dates of such receipts, and when they were After the death of her husband complain discharged they understood they had been ant employed defendants as her attorneys to paid in full for all their services. We are attend to her interests, and they acted as satisfied with the conclusions of the master such from December 18, 1899, until dischar- | and the Appellate Court on that question. ged. She made frequent payments to them The decree of the circuit court had no basis of various amounts for their services, for in the evidence, and the judgment of the Apwhich they gave receipts, amounting in all to pellate Court reversing it was correct. $853.25 up to February 15, 1902. The receipts The judgment of the Appellate Court is given on the 15th days of September, October, , affirmed. November, and December, 1901, and January Judgment affirmed. and February, 1902, were in full for all seryices up to the dates of said receipts, respectively. After those receipts were given

(219 III. 310) defendants commenced a suit for complainant

HEIMANN et al. v. WILKE. in one of the courts of Cook county against (Supreme Court of Illinois. Dec. 20, 1905.) the Chicago Consolidated Bottling Company APPEAL-LAW OF THE CASE-SECOND APPEAL. for rent, and on March 13, 1902, she paid them Where a judgment sustaining a demurrer $100 and they gave her a receipt for their fee

to a bill is reversed by the Supreme Court on in the matter of the lease with said company

appeal, on the ground that the facts alleged

require the granting of the relief prayed for, and the suit to be instituted against said

if they are established by the evidence, the law company for rent coming due. They com- announced on the first appeal cannot be quesmenced another suit in another court for the tioned on appeal from the decree granting such same subject-matter, the only reason for


[Ed. Note. For cases in point, see vol. 3, which was that, having two suits, the chances

Cent. Dig. Appeal and Error, 884358-4368.] for an early trial would be better, and on May 28, 1902, the complainant again paid Appeal from Circuit Court, Cook County; them $100, and they gave her a receipt for John L. Healy, Judge. that amount for their fee in the case. She

Billby Frank Wilke against Ferdinand discharged them in August, 1902. Mr. Clyde Heimann and others. On the death of Frank D. Lee then stated that defendants had been

Wilke, Catherina Wilke, his devisee, was paid in full for their services and that com substituted as complainant. Decree for complainant did not owe them anything.

plainant, and defendants appeal. Affirmed. The fees for which the charges were made! Rehearing denied February 7, 1906. were for alleged research and investigation Collins & Kennedy, for appellants. J. Henof the law with reference to bringing the suit | ry Kraft, for appellee. against the bottling company for rent and the examination of abstracts and titles with a CARTWRIGHT, C. J. Frank Wilke filed view to commencing a partition suit. Two his bill in this case in the circuit court attorneys, with a complaisance not unusual in of Cook county against appellants and others such cases, testified that the charges were not to compel a conveyance by appellants of unreasonable, and the services were worth 212 acres of land in said county. The court somewhat more than the charges. Evidence sustained a demurrer to the bill and dismissof that kind is admissible; but it is in ed it. The complainant brought the record the nature of opinions, and generally influen- | to this court by appeal, and we decided ced by a desire to be obliging and to conform that the facts alleged in the bill of comto t

· views and wishes of brother attorneys, | plaint were sufficient to require the court and it is never binding on the court. Courts to grant the relief therein prayed for, and are entirely capable of forming and exercising that the court erred in sustaining the dean independent judgment on the question. / murrer. The decree was reversed, and the The two suits had been instituted, but no cause remanded to the circuit court with

directions to overrule the demurrer. The i 4. APPEAL – ESTOPPEL TO ALLEGE ERROR – nature of the case and the averments of the ERROR COMMITTED BY PARTY COMPLAINING. bill are set out at length in the opinion then

Where a party, on introducing a paper in

evidence, obtains a ruling that certain memofiled. Wilke 7. Miller, 171 Ill. 556, 49 N. E.

randa on the back thereof should be excluded, he 484. The cause was reinstated in the cir should erase the memoranda, and, failing to do cuit court, and, the demurrer having been

so, cannot complain because the jury, in retiring, overruled, the defendants answered the bill.

took the paper with them with the memoranda

still upon it. The separate answer of appellants denied

5. Costs - ALLOWANCE TO PLAINTIFF -- PARthe averments upon which the prayer for TIAL RECOVERY. relief was founded, and also claimed the Where plaintiff recovers judgment for part benefit of the statute of frauds. The is- of her demand, the defense being the general sues were referred to a master in chancery,

issue, and no tender as to the part of the de

mand recovered being pleaded, though tender and his term having expired the reference was made before suit, she is entitled to costs. was continued to him as a special commis- | 6. SAME-TENDER-NECESSITY OF INCLUDING sioner. Frank Wilke died, and the appellee, Costs. Catherina Wilke, his sole devisee, was sub

Under the express provisions of Hurd's stituted as complainant. The special com

Rev. St. 1899, c. 135, § 4, a tender after suit

brought in avoidance of further accruing costs missioner reported the evidence with his must include the amount conceded to be due conclusions that the material averments of and the "costs of suit incurred up to the time the bill were proved, and that the defendant

of tender." Ferdinand Heimann, by the purchase of the Appeal from Appellate Court, First Dis5 acres at the master's sale acquired title trict. to the 242 acres thereof which are in con Action by Appollonia Warth, trading as troversy, upon a constructive trust for com Albin Warth. against L. Loewenstein & plainant, and that appellants should be de Sons. From a judgment of the Appellate creed to convey the same upon the payment Court, affirming a judgment of the circuit of a proportionate share of the purchase court, plaintiff appeals. Affirmed in part. price, with subsequent taxes and interest. Rehearing denied February 7, 1906. Exceptions to the commissioner's report were

Helmer, Moulton & Whitman, for apoverruled, and a decree 'was entered in ac

pellant. Newman, Northrup, Levinson & cordance with the report. From that decree,

Becker (Harry Goodman, Arthur B. Schaffthis appeal was prosecuted.

ner, and Chester E. Cleveland, of counsel), All questions of law in this case were set

for appellee. tled on the former appeal, including the question whether the statute of frauds was BOGGS, J. This is an appeal perfected by available as a defense to the bill. The prin the appellant, Appollonia Warth, trading as ciples of law then announced cannot be ques. Albin Warth, from a judgment entered in the tioned on this appeal. Taylor v. Frew, 113 Appellate Court for the First District afIll. 358; Keokuk Bridge Co. v. People, 185 firming a judgment of the circuit court of Ill. 276, 56 N. E. 1049; Pease v. Ditto, 189 Cook county against the appellee corporation Ill. 456, 59 N. E. 983. Upon the reference in her favor in the sum of $87.50, and also to the master the facts alleged were proved entering judgment for the costs in that court and were found and reported by him to the against appellant. A certificate of impor. court, and the findings were approved by the tance was granted by the said Appellate court. The decree is affirmed.

Court. Decree affirmed.

The action was assumpsit by the appellant

against the appellee, and the declaration (219 Ill. 222)

contained four counts. The first count alleged WARTH v. L. LOEWENSTEIN & SONS.

that in April, 1895, appellant, at the request

of appellee, a corporation, "licensed, let, and (Supreme Court of Illinois. Dec. 20, 1905.)

delivered to use" to appellee a pateņted ma1. APPEAL - RESERVATION OF GROUNDS OF

chine for cutting cloth, constructed under REVIEW-MOTION FOR NEW TRIAL. Where plaintiff submits the case to the

certain letters patent of the United States jury without moving to exclude the evidence, or belonging to her, "under licenses, terms, and demurring thereto, or asking a peremptory in conditions" which the count set out in full, struction, the question whether there is any

and that the appellee agreed to pay $150 evidence to support the defense is not preserved for review by plaintiff's motion for new trial.

semiannually to the appellant. The seventh 2. EVIDENCE - FAILURE TO PRODUCE-RIGHT

clause of said license is as follows: “The TO EXPLAIN.

said licensees may terminate the payment of Where, a witness whom a party would be royalty herein mentioned upon the condition expected to produce is absent in foreign parts,

| that the aforesaid machine shall be resuch party may state the reason for the witness' absence, in order to rebut any unfavorable

turned and delivered to said licensor by the inference which might arise from his nonpro said licensees with payment of royalty up to duction.

date of such return; and upon the further 3. WITNESS-CROSS-EXAMINATION,

condition, and the said licensees agree, that A witness may be questioned on cross-examination as to statements made by him in a

they will not thereafter use or authorize, deposition, although such deposition is not

or allow to be used, directly or indirectly, in introduced in evidence.

| their business or elsewhere, any other cloth

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