Page images

ganized and existing under and by virtue of report of the evidence, and the trial judge the laws of the state of Delaware; that the does not certify that it contains all the eviprincipal office of said corporation is in Buf- dence heard. falo, N. Y.; that it has no office in the state The constitutional question raised by the of Ilinois, and had no office in the city of assignment of errors that the judgment viChicago at the time of the commencement olated the Constitution of this State and of of this suit, or at any time since; that said the United States by depriving defendant of corporation has never done business in the its property without due process of law destate of Illinois, has at all times been absent pends upon whether Diebl, upon whom the from the state, and that no service of the summons was served, was such an agent writ of summons has been made upon said of the defendant corporation that service of corporation. The affidavit further alleges summons upon him as such agent was lawDiehl is not, and never has been, the agent ful service upon defendant and gave the of said corporation, and has never in any court jurisdiction. There being no statement manner been authorized to represent the cor- of facts or correct stenographic report in the poration in any capacity and has never been record, we cannot determine that question. an officer or agent of said corporation. No The judgment of the municipal court is afmotion was made by plaintiff to strike this formed. affidavit from the files, and the court ap Judgment affirmed. pears to have treated it as an affidavit in support of the motion to quash the return, without objection on the part of plaintiff.

(275 Ill. 520) On February 4, 1916, the "statement of NICHOLS v. CALDWELL. (No. 10855.) facts" made part of the record shows that

(Supreme Court of Illinois. Oct. 24, 1916. upon the trial of the issue made by the affi

Rehearing Denied Dec. 12, 1916.) davit filed December 20, 1915, the court heard the testimony of Diehl (the party 1. DoWEB Ow81–PROCEEDING FOR ASSIGN

MENT-PARTIES BOUND BY DECREE. served as agent of defendant) and the testi

Tenants in possession of land, served and mony of plaintiff, and entered an order over- appearing in a proceeding for the assignment of ruling the motion to quash the return and or- dower, in which the decree assigned the land dered defendant to file an affidavit of merits as property of her late husband to a widow, within ten days. On February 21st, defend the widow, were bound by the adjudication of

such parties later claiming under a deed from ant not having complied with the order of the decree that the land was owned by her de the court to file an affidavit of merits or de- ceased husband. fense, judgment was entered against defend

[Ed. Note.-For other cases, see Dower, Cent.

Dig. 88 312-316; Dec. Dig. On 81.] ant by default.

Defendant in error contends that the state 12. DOWER 82-ASSIGNMENT. ment of facts in the record cannot be con- ers to assign dower did not contain either the

The objection that the oath of commissionsidered by this court (1) for the reason that word "swear" or "affirm" did not render it void, the statement of facts authorized by section when the jurat stated that it was signed and

cuit clerk, 23 of the Municipal Court Act (Hurd's Rev. sworn to before the St. 1915–16, c. 37, 8 286) applies only in cases Dig. § 321; Dec. Dig. Cm82.]

[Ed. Note.-For other cases, see Dower, Cent. of the fourth and fifth classes, and that in

3. DOWER O 98-PROCEEDING FOR ASSIGNactions of the first class a party desiring a

MENT-REPORT OF COMMISSIONERS-COLLATreview of the judgment must file a bill of

ERAL ATTACK. exceptions or stenographic report containing Where the statute required that the report all the evidence, as provided by section 81 made by the commissioners appointed should be

"signed by at least two of them," and where the of the Practice Act; (2) that, even if the jurat of the circuit clerk attached to the oath statement of facts is authorized in actions of stated that it was signed and sworn to by the the first class, the statement of facts here two commissioners before him, the fact that

but two of the three commissioners took the oath embraced in the record is insufficient, in that and made report did not render the proceeding it does not purport to contain all the evi- void and subject to collateral attack, although dence heard upon the issue of fact.

the statute required the appointment of three We shall not determine the first conten- make report in writing.

commissioners, who should allot dower and tion urged by defendant in error, for the rea [Ed. Note. For other cases, see Dower, Cent. son that in our view of the law our decision Dig. 88 342–344; Dec. Dig. Om98.] must be the same, no matter how that ques- 4. DOWER 98 PROCEEDING FOR ASSIGNtion might be decided. What is designated MENT-REPORT OF COMMISSIONERS-COLLAT"statement of facts," and certified by the ERAL ATTACK. trial judge as "a correct statement of the pointed to assign dower contained two words in

That the report of the commissioners apfacts appearing upon the trial,” is not a the description of the premises which were clearstatement of facts within the contemplation ly surplusage did not render the proceeding void of the Municipal Court Act, but purports to and subject to collateral attack, since these be the substance of the testimony, in narra- Claim of fraud in the proceeding.

words might be disregarded and there was no tive form, of Diehl and the plaintiff. Nor [Ed. Note. For other cases, see Dower, Cent. does it purport to be a correct stenographic Dig. $$ 342–344: Dec. Dig. Om98.]

[ocr errors]

5. LIMITATION OF ACTIONS O 44(6) Como D. Moudy, in the lands the bill alleged he


died seised and possessed of. The bill de Where the heir of land was not entitled to scribed the property here in controversy as the possession of land until the death of her part of the real estate owned by Moudy at mother, which occurred less than seven years the time of his death. Among other defendbefore the heir's ejectment suit to recover. it, ants to the bill were defendant here, Charles such suit was not barred by any statute of limi- M. Caldwell, and his brother, F. B. Caldwell

, tations.

[Ed. Note.- For other cases, see Limitation and they answered the bill. Plaintiff also of Actions, Cent. Dig. $ 230; Dec. Dig. offered in evidence a decree of the circuit 44(6).]

court of Washington county, rendered in said 6. EJECTMENT O 27-DEFENSE OF ESTOPPEL. cause at said April term, 1876, which recited

The fact that the only heir of land in pos- that the court found from the testimony session of her mother as tenant in dower was of age when her mother executed a deed of the that complainant in said suit was the widow land, knew of the deed. and attested it as wit- of James D. Moudy, who died intestate Ocness, and that she herself, in the conveyance of tober 1, 1873, seised in fee simple of the property adjoining the premises in controversy, lands described in the decree, which descripreferred, by way of exception thereto, to the property deeded by her mother, afforded no de- tions included premises here in controfense in ejectment, as estoppel cannot be avail- versy. Three commissioners were appointed ed of in such action, where only legal titles are by the decree to assign dower to complaint considered.

in all of said lands described and report to [Ed. Note. For other cases, see Ejectment, the court. The plaintiff also introduced in Cent. Dig. 8 114; Dec. Dig. Om 27.]

evidence the oath taken by two of said comAppeal from Circuit Court, Macon County; missioners; also the report of said two comWilliam K. Whitfield, Judge.

missioners assigning the premises here in Action by Dell D. Nichols against Charles controversy, though by a slightly incorrect M. Caldwell. From a judgment for plaintiff, description, to the widow as and for her defendant appeals. Affirmed.

dower. Plaintiff also offered in evidence the Charles C. LeForgee and Thomas W. Sam- minutes of the judge who heard the case uels, both of Decatur, and Geo. W. Black, and entered the decree, showing that the of Peoria, for appellant.

Jones & Van commissioners' report assigning dower was Cleve, of Decatur, and McCaskill & McCas approved by the court at the October term, kill, of Chicago, for appellee.

1876. The plaintiff also introduced in evi

dence a quitclaim deed, dated June 1, 1861, FARMER, J. This is an appeal from a

from Thomas 0. Smith and wife to James

D. Moudy, conveying to the grantee the judgment of the circuit court of Macon county in an action of ejectment. Dell D. Nich. premises here in disputer ols, appellee here, was plaintiff in the court

Defendant, in addition to objecting to the below. The property which she claimed to competency of certain of plaintiff's proof and own in fee simple is described in her decla- the sufficiency of her title as shown by the ration as the west 35 feet off the east 654 proof, introduced in evidence a warranty feet of lot 8 in block 3 of the original town deed from Minnie H. Moudy, widow of James (now city) of Decatur, otherwise described D. Moudy, to Charles M. and Freeland B. as 35 feet off the east side of lot 7 of the Caldwell, for the premises in controversy, resurvey of lot 8 of block 3 in the original dated February 25, 1882; also a deed from town (now city) of Decatur. The case has Freeland B. Caldwell and wife to Edward been tried three times in the circuit court, A. Jones, dated July 7, 1887, for the undividonce resulting in a judgment for defendant ed one-half of said premises; and a warranty and twice in judgments for plaintiff. From deed from Edward A. Jones and wife, dated the last judgment in favor of plaintiff, de May 3, 1890, to defendant for the undivided fendant has prosecuted this appeal.

one-half of said premises. Defendant also Plaintiff stated on oath upon the trial, in introduced in evidence the report of the the form of an affidavit, that she claimed commissioners who assigned dower to the title through a common source with defend- widow of James D. Moudy, appointed in the ant; that the common source was plaintiff's suit before referred to in the Washington father, James D. Moudy, from whom plain county circuit court, the decree of said tiff inherited the premises as his only heir. court confirming the report of the commisThe proof shows Moudy died in Washington sioners and following the description in said county, Ill., in 1873. He left surviving him report, and also certain other documentary a widow, Minnie H. Moudy, and plaintiff, his evidence, such as tax receipts, but which we only child and heir at law. Plaintiff, to think have no bearing upon the issues in prove her title, offered in evidence a bill in this case. chancery filed to the August term, 1876, of [1] The contention of defendant that the Washington county circuit court by the plaintiff did not prove title to the land in widow, Minnie H. Moudy, against plaintiff James D. Moudy, the alleged common source, and others, for the assignment of dower to is untenable, if the proceeding in Washingsaid Minnie H. Moudy, as widow of James ton county, the record of which was intro

w For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes




duced in evidence, was not a void proceeding. the proceeding void and subject to collateral
Defendant here was a party defendant to the attack..
bill in that case, was duly served by sum [4] A further objection is that the report of
mons, and filed an answer. The bill in that the commissioners does not describe the prop-
case alleged that James D. Moudy died erty here in controversy. According to the
seised and possessed in fee simple of the original plat and survey of the town of De
premises in controversy. The decree found | catur, the property in controversy was a part
that Moudy was seised and possessed of the of lot 8 in block 3. Subsequently there was
premises at the time of his death, in October, a resurvey of said block 3, and lot 8 was
1873, that he died intestate, that defendant subdivided into four lots, numbered 5, 6, 7,
and F. B. Caldwell were tenants in posses- and 8. The report of the commissioners de
sion of the premises described in the declara- scribed the property as 35 feet off the east
tion in this case, and that commissioners side of lot 7, block 3, of the resurvey of lot
were appointed to assign dower to the widow 3 of the original town (now city) of Decatur.
in all the lands of the deceased, of which the The objection to this description, as we un-
premises in controversy are a part. Inde derstand it, is the mention of lot 3. As we
pendently of the deed from Smith to Moudy, have said, at the time of the resurvey of
this was an adjudication in a proceeding to block 3, what was then lot 8 of that block was
which defendant was a party that Moudy subdivided into lots 5, 6, 7, and 8. Treating
was the owner of the premises at the time the words “lot 3" as surplusage, the report of
of his death, and plaintiff was not required the commissioners contains a good descrip-
to prove when or how he acquired title. tion of the property. Burns v. Miller, 110 Ill.
The title claimed by defendant was under

a deed from Minnie H. Moudy. The prem-
ises were assigned to her as dower, as the the commissioners were directed to assign

The decree correctly described the property widow of James D. Moudy. Both parties

dower in. Defendant and F. B. Caldwell therefore claim title through a

were lessees of the property in controversy [2, 3] The court had jurisdiction of the at the time it was assigned as dower to the subject-matter and of the parties in the pro

widow. The commissioners did actually asceeding by the widow of James D. Moudy in sign the property in controversy as dower, the circuit court of Washington county to as- and defendant and all other parties interestsign dower, and in our opinion there is no ed so understood it. None of the objections such irregularity appearing in the record of made to the Washington county dower pro the proceeding in said case as to render it ceeding render it void and subject to collater. void and subject to collateral attack. The al attack. At most they were but Irregularl. objections urged against the validity of the ties, which could only be taken advantage of Washington county proceeding, and which upon appeal or writ of error. No claim is it is claimed render the decree in that case made that there was any fraud in said dower void, are that only two of the three commis- proceeding. Miller v. Rowan, 251 Ill. 344, 96 sioners appointed took the oath, viewed the N. E. 285. premises, and made report, that the oath is

[5] Plaintiff was not entitled to the possesnot in proper form, and that the report of the sion of the premises until the death of her commissioners assigning dower does not cor- mother, which occurred less than seven years rectly describe the premises in controversy, before the commencement of this suit, and no The objection to the form of the oath is that statute of limitations can therefore be init reads, “I do solemnly

that I will voked. fairly and impartially allot and set off to [6] It is also contended by the defendant Minnie H. Moudy her dower," etc., and does that the plaintiff is estopped from asserting not contain the word of affirmation. The title to the premises by her conduct. This jurat of the circuit clerk attached to the oath contention is based upon the claim that plainstates that it was signed and sworn to by said tiff was of age at the time her mother exetwo commissioners before him. The omission cuted the deed to the Caldwells; that she in the body of the oath of the word "swear" or knew of the conveyance and attested the deed "affirm” did not render it void. Neither does as a witness; that plaintiff herself conveyed the fact that but two of the commissioners property adjoining the premises in controvertook the oath and made the report. While sy to defendant in 1888, in the conveyance of the statute requires the appointment of three which she referred, by way of exception from commissioners, who shall go upon the prem- the conveyance, to the property deeded by her ises, allot dower to the person entitled there mother to the Caldwells in 1882. It seems to, and make report in writing, the report is too obvious to require discussion that these not required to be signed by all three of them, things afford no bar or estoppel to the asbut the statute provides that it shall be sertion by the plaintiff of her title even in a “signed by at least two of them.” The re-court of equity, and such a defense cannot be port was signed by two commissioners, and avalled of in an action of ejectment, where the fact that it was only shown said two only legal titles are considered. Hayden v.

of Ainboy V. Illinois Central Railroad Co., | not compulsory in its application, inducements 236 III, 236, 86 N. E. 238.

were held out to facilitate its acceptance both The judgment was warranted by the proof, by the employers and employés. and is affirmed.

[Ed. Note.-For other cases, see Master and

Servant, Dec. Dig. Om 348.) Judgment affirmed.


“Subscriber," as used in the Workmen's (225 Mass. 220)

Compensation Act, means an employer who has In re COX.

become a member of the association or insured (Supreme Judicial Court of Massachusetts.

under the act. Suffolk. Nov. 28, 1916.)

[Ed. Note.-For other cases, see Master and

Servant, Dec. Dig. Om383. 1. MASTER AND SERVANT 417(7) WORK For other definitions, see Words and Phrases,

MEN'S COMPENSATION ACT-FINDINGS-CON- First and Second Series, Subscriber.]

Under the Workmen's Compensation Act (St. 7. MASTER AND SERVANT Om361-WORKMEN'S 1911, c. 751), the finding of the arbitration com

COMPENSATION ACT-"EMPLOYÉ." mittee, affirmed by the Industrial Accident

Every person in the service of another under Board that an employé received an injury in the app.contract of hire, express or implied, oral or course of and arising out of his employment can written, is an "employe" under the Workmen's not be set aside if there is any evidence upon

Compensation Act, pt. 5, § 2. which it can rest.

[Ed. Note.-For other cases, see Master and [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. Ow361. Servant, Dec. Dig. 417(7).]

For other definitions, see Words and Phrases,

First and Second Series, Employé.] 2. MASTER AND SERVANT Om 375(1) WORR



THE ACT. Where an employé was injured in answering Where an employer becomes a subscriber un. a personal private telephone call, the nature of der the Workmen's Compensation Act, all the the call does not prevent his injury from "arising branches of his business come under the act, and out of and in the course of his employment," if he cannot accept the act as to a part of the busiit was a part of his duties to answer telephone ness and reject it as to a part. calls.

[Ed. Note. For other cases, see Master and (Ed. Note.-For other cases, see Master and Servant, Dec. Dig. Om351.] Servant, Dec. Dig. Om375(1).

9. MASTER AND SERVANT 383-WORKMEN'S For other definitions, see Words and Phrases, COMPENSATION ACT – INSURANCE POLICY First and Second Series, Course of Employ EFFECT ON RIGHTS OF EMPLOYÉ. ment.]

The Workmen's Compensation Act fixes the 3. MASTER AND SERVANT 405(4) WORK. scope of the insurance so far as the rights of the

MEN'S COMPENSATION ACT – INJURIES ARIS. employé are affected, and such rights cannot be ING OUT OF AND IN THE COURSE OF EMPLOY- narrowed by contract between the employer and MENT.

insurer. An employé, who was hired as manager of a [Ed. Note. For other cases, see Master and retail shoe store, reported for duty before his Servant, Dec, Dig. 383.] predecessor had concluded his service, and while 10. INSURANCE Cw435—WORKMEN'S COMPENassisting such predecessor in the performance of the managerial duties, which included the an

SATION ACT- LIABILITY OF INSURER. swering of telephone calls, was injured by the workmen's Compensation Act to a manufacturer

Under an insurance policy issued under the falling down stairs after business hours, and of shoes who was also extensively engaged in while answering a private personal telepbone the business of retailing shoes, which insurance call. Held, a finding that such injury arose out policy made no reference to the retail business of and in the course of the employment was sup-1 of the subscriber, but obligated the insurer to pay ported by the evidence.

the compensation provided by the act to any per(Ed. Note.-For other cases, see Master and son to whom such compensation shall become Servant, Dec. Dig. Ow405(4).]

due, held that the obligation of insurer was as 4. MASTER AND SERVANT 351-WORKMEN'S broad as the act, and covered injuries to em

COMPENSATION ACT – OCCUPATIONS WITHIN ployés received in the business of retailing shoes. Аст.

(Ed. Note.-For other cases, see Insurance, Where a corporation is both a manufacturer Cent. Dig. $ 1144; Dec.

435.] and retail dealer of shoes, and is a subscriber and insurer under the Workmen's Compensation Appeal from Superior Court, Suffolk Act, the business of conducting its retail store County. comes under the act; it not being permitted tbat

Proceedings under the Workmen's Compenan employer may become a subscriber as to only one part of its business and remain a nonsub-sation Act. From a decree of the superior scriber as to the rest.

court, the insurer appeals. Afirmed. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. Om351.]

Sawyer, Hardy, Stane & Morrison, of 6. MASTER AND SERVANT Cw348—WOBKMEN'S for appellant.

Boston (E. C. Stone, of Boston, of counsel), COMPENSATION ACT-PURPOSE.

The general purpose of the Workmen's Compensation Act was to substitute its provisions RUGG, C. J. [1-3] This is a proceeding for the pre-existing rights and remedies under under the Workmen's Compensation Act. the law respecting injuries sustained in indus- The first question is whether the finding of trial pursuits, and it was a humanitarian measure whose general adoption throughout the com- the arbitration committee, affirmed by the monwealth was the legislative aim; and, while Industrial Accident Board, that Wardwell D.

ow For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

Cox received an injury in the course of and become due, and to indemnify the insured arising out of his employment, finds any sup- under provisions of section 22 of part 4 of port in the evidence. It cannot be set aside said act, for or on account of personal inif there is any evidence upon which it can juries, including death resulting at any time rest. Pigeon's Case, 216 Mass. 51, 102 N. E. therefrom, received or suffered by any em932. The evidence was that Cox had been ployee or employees of the insured, or of a employed to work in a shoe store in Boston. contractor or subcontractor as defined by secHe was notified to report for work on Sep-tion 17 of part 3 of said act, within the policy tember 13th, and the injury was received on term, subject, however, to the agreements on September 17th. His position at the moment the following pages and conditions herein of his injury, although not quite clear, was stated." Among the "agreements” was one the equivalent in right of that of manager. giving the insurer ample power to examine He was to be manager of the store, but his the buildings and plants, to inspect the books predecessor was still in the store and was to of the insured for information as to wages conclude his service the next day. He was of its employees, and to require written stategetting through when Cox came to work, but ments as to such wages. at Cox's request was relieving him of the [4] The question is whether, under these duty of making out the daily report at the circumstances the business of conducting the time of the injury. Cox was working over- retail shoe store in Boston is under the Worktime taking account of stock. He was injured men's Compensation Act. We are of opinion by falling down stairs at eight o'clock in the that it is. The Workmen's Compensation evening while answering a telephone call Act does not permit an employer to become from his daughter, who asked when he was a subscriber as to one part of its business and coming home. The evidence would warrant to remain a nonsubscriber as to the rest of a the conclusion that it was the duty of Cox business which is in substance and effect to answer telephone calls even outside the conducted as one business. It has been deusual business hours. If this was his duty, cided that insurance as to one class of emthen the circumstance that the call happened ployees of a farmer, engaged as drivers and to be one which interested him personally helpers in the distribution and marketing of would not prevent his conduct in attending to his produce, does not require insurance of the call from being service arising out of and farm laborers who are expressly exempted in the course of his employment. There is from the act. Keaney's Case, 217 Mass. 5, nothing to indicate that the time spent at the 104 N. E. 438. We do not include within the telephone was longer than necessary to an- scope of this decision transportation comswer a call. The finding in this respect can-panies carrying on interstate commerce and not be said to be without substantial founda- in this regard wholly subject to the acts of tion in the evidence.

Congress (Corbett v. Boston & Maine R. R., The employer and subscriber was the 219 Mass. 351, 107 N. E. 60; Northern PacifFramingham Shoe Company, a manufacturer ic ky. v. Washington, 222 U. S. 370, 32 Sup. of shoes apparently upon a somewhat ex. Ct. 160, 56 L. Ed. 237), but subject to state tensive scale, with a factory at Framing- law as to intrastate business, nor those conham. That corporation and its manager ducting two wholly different and distinct operate from seventy-five to one hundred kinds of business quite disconnected with shoe stores, all those in this commonwealth each other in place, nature and management. being owned and operated by the corporation. Such cases, if and when they arise, are to It was insured in accordance with the Work- be considered on their own merits. We are men's Compensation Act by a policy which, dealing here with a case where one employer under the heading "Classification. Schedule is conducting under a single general adminof Business Operations," and subheading, istration the business “of manufacturing, “Location of each Building, Factory, Shop, jobbing at the factory and selling at retail Yard, or Place where the Trade, Business, in the factory and in stores.” The circumProfession or Occupation will be conducted,” stance that at the retail stores are sold other contained these words: “Framingham, Mass." shoes and rubbers beside those manufactured Under the further subheading, "Kind of at the factory, does not render the retail Trade, Business, Profession or Occupation stores a business separate from the general (Manual Classification),” were these words: business which is carried on as a unit made "Boot & Shoe Mfrs. Military Goods Mfrs. (no up of numerous parts. metal stamping), Drivers and Drivers' Help [5] The general purpose of the act was to ers, Rates 30c and 80c respectively with 4 substitute its provision for the pre-existing per cent. specific discount." The contract of rights and remedies under the law respecting insurance was “to pay the compensation and injuries sustained by those engaged in into furnish the medical and hospital services dustrial pursuits, with exceptions not here and medicines provided for by The Work- material. Although not compulsory in its men's Compensation Act, viz.: part 2 of application, inducements were held out to chapter 751 of the Massachusetts Acts and facilitate its voluntary acceptance both by Resolves of 1911, and amendments and ad- employers and employees. It was an humanditions thereto, to any person or persons to itarian measure enacted in response to a

« PreviousContinue »