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7. PLEADING (§ 176*)-REPLICATION-DENIAL and others. Judgment for the relators, and OF MATTERS OF INDUCEMENT AND TENDER defendants bring error. Affirmed. OF ISSUES.

Replication denying matters of inducement and tendering issues were bad, because facts alleged by way of inducement are not subject to traverse.

W. C. Jones, of Streator, for plaintiffs in error. George S. Wiley, State's Atty., of Ottawa (J. A. Riely, of Minonk, and Arthur H. Shay, of Streator, of counsel), for defend

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 343, 345-353; Dec. Dig. § 176.*]| ants in error. 8. PLEADING (§ 290*)-REPLICATION-VERIFI

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CARTWRIGHT, C. J. The state's attorney of La Salle county presented to the circuit court of that county his petition for leave to file an information in the nature of quo warranto against the plaintiffs in error,

9. QUO WARRANTO (§ 51*)—PLEADING-REP- V. L. Strawn, R. M. Pritchett, and C. P. LICATION-NEW MATTER.

In quo warranto to require defendant to show by what warrant they exercised the franchise of a school district, a replication setting up new matter and concluding with a verification was good.

[Ed. Note.-For other cases, see Quo Warranto, Cent. Dig. § 56; Dec. Dig. § 51.*] 10. SCHOOLS AND SCHOOL DISTRICTS (§ 27*)

PETITION TO ORGANIZE-Purpose.

The purpose of serving a copy of the petition for the organization of a school district is to afford an opportunity for the district concerned to present reasons for or against the allowance of the petition, and the service of the copy is necessary to give the trustees jurisdiction.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 45; Dec. Dig.

§ 27.*]

11. QUO WARRANTO (§ 51*)-FRANCHISE OF SCHOOL DISTRICT REPLICATION SUFFICIENCY.

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On que warranto to require defendants to show by what warrant they exercised the franchise of a consolidated school district, a replication that the clerk of the board of directors of one of the component districts, to whom the pleas alleged a copy of the petition was delivered, had signed the petition in that district, and that the clerk in the other component district had signed the petition in that district, and concluding with a verification, in the absence of any objection for duplicity, was sufficient as against a demurrer.

[Ed. Note.-For other cases, see Quo Warranto, Cent. Dig. § 56; Dec. Dig. § 51.*] 12. SCHOOLS AND SCHOOL DISTRICTS (§ 27*)ORGANIZATION-PETITION.

A petition for the organization of a school district, which after certain names had been withdrawn therefrom was without a majority of the legal voters, left the trustees without jurisdiction to proceed, so that an order creating the district was void.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 45; Dec. Dig. § 27.*]

13. APPEAL AND ERROR (§ 1039*)-HARMLESS ERROR-RULINGS UPON PLEADINGS.

Where all the evidence competent under any pleadings that could be filed was admitted, a judgment should not be reversed on account of error in ruling upon the pleadings.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. 8 1039.*]

Jones, calling upon them to show by what warrant they assumed to exercise the franchise of school district No. 4 in township 29 north, range 2, in said county. The petition alleged that prior to March 1, 1912, there existed in La Salle county school districts numbered 4 and 5, both in township 29; that afterwards proceedings were had whereby it was sought to consolidate said districts and organize a new district out of the territory belonging to them, under the name of district No. 4, in said township; that the petition by the legal voters in the original district No. 4, when acted upon by the board of trustees, was not signed by a majority of the legal voters of the district; that the copy of

the petition was delivered by George H. Bane, one of the petitioners, to M. F. Bane, clerk of the board of directors of district No. 4, who was also one of the petitioners, and that the copy of the petition signed by the legal voters in district No. 5 was delivered by V. L. Strawn, one of the petitioners, to R. M. Pritchett, clerk of the board of directors of district No. 5, who was also one of the petitioners; that the proceedings were therefore illegal, null, and void; and that defendants were elected school directors of the pretended new school district on May 14, 1912, and since that time had been, and still were, holding and executing, without any warrant or right, the offices of school directors of the pretended new school district. The court, deeming the petition sufficient, granted leave and the information was filed. The defendants filed two pleas, setting forth in detail, by way of inducement, alleged facts as to the manner in which the new school district was organized and concluding with a denial under the absque hoc. To these pleas the people filed general and special demurrers, which were overruled by the court, and nine replications were filed under leave given to reply double. The defendants filed a general and special demurrer to the replications, and the court sustained the demurrer to the first eight and overruled it as to the ninth, and

Error to Circuit Court, La Salle County; the defendants elected to stand by their S. C. Stough, Judge.

Information in the nature of quo warranto by the People, on relation of William Koensgen and others, against V. L. Strawn

demurrer to the ninth replication. A trial of the issues was then had before the court, and during the trial the people, by leave of court, filed three additional replications, and by

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

order of court the demurrer to the original | berger v. Elliot Frog & Switch Co., 245 Ill. replications stood to the first and second ad- | 448, 92 N. E. 297. The record does not show ditional replications. The court overruled any motion or request to have the demurrer the demurrer and the defendants elected to carried back to the information, and there stand by it. The court found the issues for was no omission or defect in it if such a mothe people and entered judgment of ouster tion had been made, because in most general against the defendants and for costs, and terms it merely charged usurpation of a from that judgment this appeal was taken. franchise without setting forth the defects alleged in the petition.

The errors assigned and argued question the judgment on the following grounds, stated in their order: First, that by the information the new school district was made a defendant and its corporate existence thereby admitted; second, that the demurrer to the pleas should have been carried back and sustained to the information; third, that the trustees of schools had jurisdiction by the petitions signed by a majority of the legal voters and had the right to refuse to allow the withdrawal of names of petitioners; fourth, that the replications were demurrable, because they traversed allegations of inducement instead of the denial.

[1] Where a corporation is made a defendant and appears and defends as such, its existence as a corporation is admitted and cannot afterward be denied. People v. City | of Spring Valley, 129 Ill. 169, 21 N. E. 843; North & South Rolling Stock Co. v. People, 147 Ill. 234, 35 N. E. 608, 24 L. R. A. 462;| People v. Central Union Telephone Co., 192 Ill. 307, 61 N. E. 428, 85 Am. St. Rep. 338. But the school district was not made a defendant in this case and did not appear. The information charged that the defendants unlawfully held and executed, without any warrant or right whatsoever, the pretended offices of school directors of the pretended school district, and the information concluded with a prayer for process "against the said V. L. Strawn, R. M. Pritchett and C. P. Jones to make them answer to the said people by what warrant, right, or authority they claim and exercise the franchise of district No. four (4), in township No. twenty-nine (29) north, range No. two (2), east of the third principal meridian, county of La Salle and state of Illinois, and also by what warrant, right, or authority they claim to hold and exercise and execute the offices of school directors of said pretended district No. four (4), in township No. twenty-nine (29) north, range No. two (2), east of the third principal meridian, county of La Salle and state of Illinois, aforesaid."

[2-4] There are two obvious answers to the second proposition. The court overruled the demurrer of the people to the pleas and held the pleas good, so that there is no ground for complaint of the ruling. It is true that a demurrer reaches back through the whole record and attaches to the first substantial defect in the pleadings, but such a defect must be pointed out to the court if it exists and the court must be asked in some way to carry the demurrer back. Town of Scott v.

[5] As to the third proposition, the law is that the petitioners might withdraw their names from the petition prior to any action being taken on it. Littell v. Vermilion County, 198 Ill. 205, 65 N. E. 78; Theurer v. People, 211 Ill. 296, 71 N. E. 997, 1 Ann. Cas. 57; Kinsloe v. Pogue, 213 Ill. 302, 72 N. E. 906; Mack v. Polecat Drainage District, 216 Ill. 56, 74 N. E. 691; Boston v. Kickapoo Drainage District, 244 Ill. 577, 91 N. E. 707; Malcomson v. Strong, 245 Ill. 166, 91 N. E. 1036; Sny Island Drainage District v. Dewell, 256 Ill. 126, 99 N. E. 926.

[6] The answer made by counsel to the fourth proposition is that the third additional replication was not demurred to and was not subject to demurrer and that it threw upon the respondents the burden of proof to prove the facts alleged in the pleas, and it is therefore immaterial whether the other replications were good or bad. That is not exactly correct. The pleas alleged facts which upon the face of the pleas showed a legal organization of the district. The people had the right to reply to the pleas by reaffirming the usurpation, which would impose upon the defendants the duty of proving the facts alleged in the pleas. Wabash Western Railway Co. v. Friedman, 146 Ill. 583, 30 N. E. 353, 54 N. E. 1111; People v. Central Union Telephone Co., 232 Ill. 260, 83 N. E. 829. This was done by the third additional replication. But the right of the people to a judgment depended upon other matter, consisting of the withdrawal of signatures and the identity of persons upon whom copies were served with the persons signing the petition, and those matters could be set up by replication. The court sustained demurrers to the original replications setting up these facts and overruled demurrers to additional replications by which they were alleged, but on the trial both parties were permitted to prove every fact alleged in the pleadings. The court sustained demurrers to the first eight replications, so that error cannot be assigned on that ruling, but error is properly assigned on overruling the demurrers to the ninth replication and the first and second additional replications, and a general review of the replications seems to be called for.

[7-11] Of the original replications the first, third, and fourth denied matter of inducement and tendered an issue, and were bad because facts alleged by way of inducement are not subject to traverse. The sixth and

prove, the signing of the petitions; the fact that as signed and filed they represented a majority of the legal voters in each district; that the copies of the petitions were served on the clerks of the board of directors as alleged; that the trustees granted the prayers of the petitions and that upon appeal taken to the county superintendent of schools the order was confirmed; and that the defendants were regularly elected school directors of the alleged new district. The people, on the other hand, proved that there were 19 legal voters of school district No. 4; that John G. Vissering signed the petition in that district in the evening of March 12, 1912, the last day on which it could be filed; that Charles Whetzel was called out of bed and signed it after 10 o'clock, and it was filed by the clerk shortly before midnight of that day; that the meeting of the trustees was held on April 1, 1912; that on March 29, 1912, before that meeting was held, Whetzel filed with the clerk of the board his written withdrawal from the petition, leaving less than a majority of the legal voters as signers; that John G. Vissering and Whetzel appeared in person before the board and before the petition was acted upon withdrew their names. As the withdrawal of Charles Whetzel on March 29th by the writing then filed by him left the petition without a majority of the legal voters of the school district, the trustees were without jurisdiction to proceed and the order creating the district was null and void.

concluded with a verification, and were bad | fendants were permitted to prove, and did for both reasons. The ninth was a mere averment that the matters and things in the pleas alleged were not true. As it applied only to matter of inducement, the replication was bad, and it was error to overrule the demurrer to it. The second replication alleged that Charles Whetzel, one of the signers of the petition in district No. 4, before any action was taken by the trustees, filed with the clerk of the board a paper directing his name to be canceled and stricken from the petition, and appeared in person at the meeting of the trustees and prior to any action being taken on the petition withdrew his name therefrom, leaving less than a majority of the legal voters as signers. The replication concluded with a verification, and was good, as setting up new matter in reply to the pleas. The fifth replication alleged that R. M. Pritchett, clerk of the board of directors of school district No. 5, to whom the pleas alleged a copy of the petition was delivered, was the same R. M. Pritchett who signed the petition in that district, and that M. F. Bane, to whom the pleas alleged a copy of the petition was delivered as clerk of the board of directors of school district No. 4, was the same M. F. Bane who signed the petition in that district, and the replication concluded with a verification. The purpose of serving a copy of the petition is to afford an opportunity for the district concerned to appear and present reasons for or against the allowance of the petition, and the service of the copy is necessary to give the trustees jurisdiction. People v. Feicke, 252 Ill. 414, 96 N. E. 1052. No objection was made or is now made to this replication on account of duplicity, and the demurrer was not good. The eighth replication alleged that Charles Whetzel and John G. Vissering, signers of the petition in district No. 4 set forth in the pleas, appeared in person in the meeting of the trustees, and prior to any action being taken on the petition withdrew their names therefrom, which was a good defense. The first additional replication again alleged the withdrawal by Charles Whetzel and John G. Vissering of their names from the petition in district No. 4, leaving less than a majority of the legal voters in the district, and it concluded with a verification; and the second additional replication averred that M. F. Bane on whom a copy was served was the same M. F. Bane who signed the petition in district No. 4, and that R. M. Pritchett on whom service was had was the same R. M. Pritchett who signed the petition in district No. 5. There was no objection to either of them on account of duplicity, and the court did not err in overruling the demurrers to them.

[13] As all the evidence competent under any pleadings that could be filed was admitted, the judgment should not be reversed on account of any error in ruling upon the pleadings.

The judgment is affirmed.
Judgment affirmed.

(265 I11. 310)

PATRY. CHICAGO & W. I. R. CO.

(No. 9563.) (Supreme Court of Illinois. Oct. 16, 1914. Rehearing Denied Dec. 4, 1914.)

1. COMMERCE (§ 27*)-EMPLOYERS' LIABILITY ACT-PARTICULAR SERVICE.

The provisions of the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), ticular service in which the employé was enare limited to injuries occurring while the pargaged was a part of interstate commerce.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*] 2. APPEAL and Error (§ 232*)—Grounds for REVIEW-QUESTION OF LAW.

In a switchman's action for injuries, submitted upon counts, charging that the parties were engaged in interstate commerce, and claiming a liability under the federal Employers' [12] The only matters in controversy were where counsel for both sides, after the close of Liability Act, also liability at common law, those set out in the pleas and be the replica- the evidence, prepared their instructions for tions which were good. Or the crial the de-submission to the court, exchanged them for •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

examination, and after their return submitted lision of cars in the Dearborn Station, in them to court, and counsel for defendant asked a verdict as to each count, and the court gave their instructions generally, the question of any legal evidence to sustain the claim that they were engaged in interstate commerce was preserved as a question of law.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. § 232.*]

Chicago, and recovered a judgment for $12,-
000, which Branch B of the Appellate Court
for the First District reversed, with a find-
ing of facts rendering final judgment against
the appellant. A certificate of importance
and an appeal to this court were allowed.
[1] The case was submitted to the jury

3. TRIAL (§ 424*)—INSTRUCTIONS-OBJECTIONS Upon four original counts, each charging that

-WAIVER-THEORY OF CAUSE.

In a switchman's action for injuries, where both parties tried the case on the theory that whether a particular act or service of a railroad was within the federal Employers' Liability Act depended on whether the act had a relation to, or connection with, interstate commerce, and not whether it was actually a part of it, and where defendant's request to direct a verdict because the evidence showed that it was not engaged in such commerce was refused, it might request an instruction based on the view taken by the court, and on which the case was tried, without thereby waiving the ruling on the former instruction or a right to assign error to its

refusal.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 985, 986; Dec. Dig. § 424.*]

both the plaintiff and the defendant were engaged in interstate commerce at the time of the accident and claiming a liability under the federal Employers' Liability Act, and two additional counts claiming a liability at common law. It is not necessary to state the facts at length. They may be found in the opinion of the Appellate Court, 185 Ill. App. 361. Since the filing of that opinion the Supreme Court of the United States has decided, in the case of Illinois Central Railroad Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, that the provisions of the federal Employers' Liability Act are limited to injuries occurring while the par4. APPEAL And Error (§ 1122*)—APPELLATE ticular service in which the employé was enCOURT-FINDINGS OF FACT. In a switchman's action for injuries sub-gaged was a part of interstate commerce. It mitted upon counts under the federal Employ- is conceded that the particular service in ers' Liability Act, and also at common law, which the plaintiff was engaged at the time where the verdict apparently was based upon of his injury was not interstate commerce the Liability Act, and the answers to special within this decision, and therefore no liabilinterrogatories were such that it could not be ity existed under that act. It is, however, ascertained that there was any finding on contributory negligence, the Appellate Court, which contended by the appellant that the question had no authority to make findings of fact unless whether or not the appellant and the appelit finds the facts in whole or in part different lee were engaged in interstate commerce was from the finding of the trial court, had no power to find thereon and make it the basis of its not subject to review in the Appellate Court final judgment. either as a question of fact or a question of law-not as a question of fact, because the jury, in answer to special interrogatories, found that the appellant and the appellee were engaged in interstate commerce at the time of the accident, and the appellant did not move to set aside these findings in its motion for a new trial or otherwise, and therefore is bound by them; not as a question of law, because the legal question whether there was any evidence tending to show that the appellant and the appellee were engaged in interstate commerce was not saved by the refusal of a peremptory instruction as to each count, for the reason that such peremptory instructions were not asked before, but either with or after the general instructions submitting the question as one of fact, and for the further reason that there was one common-law count which the evidence tended to prove. Disregarding the question as one of fact, there were no disputed facts in the evidence as to this question and no room for two conclusions from those facts under the law as declared in Illinois Central RailThe request road Co. v. Behrens, supra.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4420; Dec. Dig. § 1122.*] 5. TRIAL (§ 365*)—SPECIAL FINDINGS-CON

STRUCTION.

Where the jury found specially the total damages which plaintiff sustained by negligent injuries, and, in response to a question as to how much should be deducted as the proportion attributable to his own negligence, answered "$5,000," there was no finding by the jury of contributory negligence; that having been assumed by the question and not submitted to them.

[Ed. Note. For other cases, see Trial, Dec. Dig. § 365.*]

Appeal from Branch B Appellate Court, First District, on Appeal from Circuit Court, Cook County; Mazzini Shisser, Judge.

Action by Henry J. Patry against the Chicago & Western Indiana Railroad Company. Judgment for plaintiff was reversed by the Appellate Court (185 Ill. App. 361), and a certificate of importance and an appeal allowed. Reversed and remanded.

James C. McShane, of Chicago, for appellant. C. G. Austin and Beverly W. Howe, both of Chicago (W. S. Kies, of Chicago, of counsel), for appellee.

DUNN, J. The appellant, Henry J. Patry, a switchman in the employ of the Chicago & Western Indiana Railroad Company, sued that company for injuries sustained by a col

for the instruction, therefore, raised the question as one of law, unless for some reason outside the instruction itself the court was justified in refusing it.

It appears from the bill of exceptions that after the introduction of all the evidence the

jury were excused, the court and counsel ticular act or service itself was actually a retired to the judge's chambers, the court part of interstate commerce; that the parrequested counsel to let him have their mo- ties both adopted this test and theory on the tions, and some statements were made in trial, and that the appellee having tried the regard to motions made at the close of plain- case on this theory cannot now abandon it. tiff's case. Then the court instructed coun- The appellee asked, and the court gave, an sel on each side to exchange instructions for instruction based on this theory, and this the purpose of examination during the noon is now cited as showing his adoption of such hour and to return them to the court with theory. The asking of this instruction did such advice and criticism as they desired not, however, under the circumstances, comto make, and thereupon copies of the appel- mit the appellee irrevocably to that view of lant's instructions were given to the appellee the law. Its counsel had asked the court, and copies of the appellee's instructions to in accordance with their view of the law, to the appellant for perusal during the noon instruct the jury to return a verdict for it hour. When the court met at 2 o'clock these because the evidence showed that it and the instructions were returned to the respective appellant were not engaged in interstate comcounsel. Thereupon the appellee, by its coun- merce. Having preserved an exception to the sel, moved for an instruction to find the de- refusal of this instruction, the appellee had fendant not guilty severally as to each count a right to request an instruction based on of the declaration, accompanying each mo- the view of the law taken by the court withtion with a written instruction. These mo- out waiving thereby the ruling on the intions were all denied, and the rulings were struction or the right to assign error on its excepted to. A number of special interroga- refusal. North Chicago Electric Railway Co. tories were then asked and allowed. Some v. Peuser, 190 Ill. 67, 60 N. E. 78. of the argument of counsel is then set out in the bill of exceptions, which then proceeds: "And thereupon, before argument of counsel to the jury and before tendering any other instruction to the court, which were afterward tendered to the court and refused and given, as hereinafter set forth, plaintiff tendered to the court and requested the court to give to the jury" certain instructions. The court refused two and modified and gave one. "And thereupon, at the same place and time, but after the argument of counsel to the Jury," the court gave to the jury, at the request of the plaintiff, certain instructions and at the request of the defendant certain instructions.

[2] From this record it is apparent that when the evidence closed, counsel on either ade had their instructions prepared for submission to the court and at the court's suggestion exchanged them for mutual examination during the noon hour, but they were not then submitted to the court for his consider ation. When court met, each party received his own instructions from the other, but they sel for the appellant presented first his written instruction for a verdict as to each count, and counsel for appellee then presented his preliminary instructions. Afterward the court, at the request of the respective parties, gave their instructions in the case generally. The question as to whether there was any legal evidence to sustain the claim that the parties were engaged in interstate commerce was thus preserved as a question of law.

were not then submitted to the court. Coun

[3] It is argued for the appellant that prior to the decision of Illinois Central Railroad Co. v. Behrens, supra, the test in deciding

whether a particular act or service of a railroad was within the Employers' Liability Act was whether such act had a real and substantial relation to or connection with such commerce, and not whether the par

Treat

[4, 5] It is argued on behalf of the appellant that if the judgment could not be sustained under the Employers' Liability Act the Appellate Court should have remanded the cause for a new trial on the commonlaw counts. Since the court properly held there was no liability under the Employers' Liability Act as a matter of law, the judgment would properly be reversed, so far as that issue was concerned, without remandment. The Appellate Court has no authority to make a finding of facts unless it finds the facts in whole or in part different from the finding of the trial court. v. Merchants' Life Ass'n, 198 Ill. 431, 64 N. E. 992. The verdict apparently was based upon the Employers' Liability Act, for the tories, that both the appellant and the apjury found, in answer to special interrogapellee were at the time of the accident enprecluded any liability under the commongaged in interstate commerce. This finding law counts, and the other findings of fact not such that the judgment of the jury as in answer to the special interrogatories are to whether the appellant was guilty of contributory negligence or not can be ascertained. There was a general verdict of guilty. If this referred to the common-law counts alone, it implied a finding that the appellant was not guilty of contributory negligence, but if it referred to the interstate commerce counts it did not. finding that it was the appellant's duty to look out for signals to transmit them to the engineer, but no finding that he was guilty of negligence which contributed to his injury. The following interrogatories were answered

as indicated:

There is a

"What sum is the whole amount of damages sustained by the plaintiff by reason of the injuries sustained by him?-$20,000."

"What sum, if any, should be deducted from the damages sustained by the plaintiff as the

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