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the contract to form the basis of an account. , legal objections filed by appellees were susThere was definite evidence of the payment stained and judgment of confirmation refused. of the $2,400 note of the complainant, but From that judgment this appeal was perno evidence whether or not she directed the fected. payment. The defendants had all her prop Forty-four legal objections of the 80 filed erty, and the debt was an unquestioned lia- by appellees were relied on by their counsel bility. It is only fair that the debt should in the hearing in the trial court. That court be paid out of the property and R. L. O'Fer- sustained the objection that the estimate of rall be reimbursed for the payment when the the improvement was not sufficiently itemizcomplainant asked for a reconveyance.

We ed. There is a dispute as to whether the conclude that the decree ought not to be re- other legal objections insisted on in the trial versed on the cross-errors.

were passed on. The decree is affirmed.

[1] Counsel for the appellant earnestly Decree affirmed.

argues that the trial court should not only have passed on the objection that the esti

mate was not sufficiently itemized, but on all (276 Ill. 24)

other objections relied on by appellees, basCITY OF HIGHLAND PARK v. GAIL et al. ing that argument mainly upon the provision (No. 11041.)

of section 48 of the Local Improvement Act, (Supreme Court of Illinois. Dec. 21, 1916.) which provides that upon the hearing on le 1. MUNICIPAL CORPORATIONS Om504 Im gal objections "the court shall determine all PROVEMENTS-STATUTES.

questions relating to the sufficiency of the Local Improvement Act, 8 48 (Hurd's Rev.

proceedings,

together with all othSt. 1915–16, c. 24), providing that upon the hearing on legal objections to confirmation of an

er questions arising in such proceeding," with assessment the court shall determine all ques- the exception of the objections that the proptions relating to the sufficiency of the proceed- erty is assessed more than it is benefited or ings, etc., with the exception of objections that more than its proportionate share of the the property is assessed more than it is benefited, or more than its proportionate share of the cost of the improvement, which are to be left cost of the improvement which are to be left to the jury. This argument is without to the jury, means that the court, and not the merit. This provision of the statute plainly jury, shall pass on all questions except those required to be submitted to the jury, and does

means that it is the duty of the court, and not require the court when it has found one

not the jury, to pass on all questions except fatal objection to pass on other objections raised those submitted to the jury, but it was cerby property owners.

tainly never intended that if the trial court (Ed. Note.-For other cases, see Municipal found one fatal objection it should be comCorporations, Cent. Dig. § 1176; Dec. Dig. Om 504.)

pelled to pass on several score of other objec

tions that might be raised by the property 2. MUNICIPAL CORPORATIONS - 444 IM PROVEMENTS ESTIMATES-SUFFICIENCY.

owners. The sustaining of one objection that Where an ordinance providing for a concrete is vital to the proceedings renders it unnecespavement specified a seal coat, failure of the

sary to pass on the other objections, either estimate for the improvement to include the seal in this or in the trial court. coat, rendered it defective as not estimating separately a substantial component part, and

The argument of counsel for appellant that constituted a variance between the ordinance the court owes a duty to the city authorities and the estimate which will defeat the confirma- to let them know whether there is any merit tion of the assessment.

in the other objections is certainly ground[Ed. Note.-For other cases, see Municipal less. The courts of this state are not called Corporations, Cent. Dig. 88 1064, 1069; Dec. Dig. Om 444.]

upon to decide moot questions. They are

now overburdened with work, and to lay Appeal from Lake County Court; Perry L. down any rule that would require the trial Persons, Judge. Proceedings by the City of Highland Park court or courts of review to decide all ques

tions in the case, regardless of whether or to confirm a special assessment for local im- not they were necessary to a decision of the provements, in which objections were filed by individual case, would greatly add to the E. S. Gail and others. From a judgment

work of the courts, already overcrowded with sustaining the objections, and refusing confirmation of the assessment, the petitioner cases, and would be against sound public

policy. appeals. Affirmed.

This conclusion makes it unnecessary for Samuel S. Holmes, of Chicago, for appel- us to consider or decide whether the bill of lant. E. S. Gail, of Highland Park, for ap exceptions or the record proper should conpellees.

trol as to the form of the order that was

entered in sustaining the legal objections ; CARTER, J. Appellant, the city of High- it being conceded by counsel for appellant land Park, instituted proceedings in the that the court did enter an order sustaining county court of Lake county for the purpose the objection that the estimate for the imof confirming a special assessment for pav-provement was not sufficiently itemized. ing and improving certain portions of Judson The estimated cost of putting down the avenue and other streets in said city. The concrete pavement in the street in question

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

was $64,110. The pavement in question was necessary for the estimate to contain a comco have a bituminous concrete surface. The plete inventory of every article that is to estimate as to this bituminous surface pro- enter into the construction of the improvevides as follows:

ment. All that is necessary is that the sub"18,800 sq. yds. two (2) inch thick bituminous stantial component elements are separately concrete wearing surface (machine mixed) 18 itemized and the cost of each set forth in the ft. wide, upon a five (5) inch thick concrete foundation 19 ft. wide (except pavement width estimate. City of East St. Louis v. Davis, 233 to vary at street intersections and turnarounds), Ill. 553, 84 N. E. 674; Village of Donovan v. composed of one (1) part Portland cement, two Donovan, 236 Ill. 636, 86 N. E. 575; City of and one-half (214) parts sand and five (5) parts Chicago v. Underwood, 258 I11. 116, 101 N. E. of stone, the outer six inches of foundation to have a curb edge 6 in. high and 4 in. wide on 261; Doran v. City of Murphysboro, 225 Ill. top, composed of one part Portland cement, two 514, 80 N. E. 323. The estimate, however, is (2) parts sand and three and one-half (312) parts defective if it does not estimate separately a stone; all laid in place complete (measured from outside to outside of curb) at $1.70 per substantial component element of the pave. sq. yd., $31,960."

ment. Bickerdike v. City of Chicago, 203 Ill. The ordinance provides as to this part of 636, 68 N. E. 161; Lyman v. Town of Cicero, the pavement, in part, as follows:

222 Ill. 379, 78 N. E. 830; City of Waukegan "Wearing Surface-Upon the foundation pre- v. Wetzel, 261 Ill. 498, 104 N. E. 184; City pared as herein provided shall be laid a two (2) of Hoopeston v. Smith, 272 IU. 604, 112 N. E. inch thick bituminous concrete wearing surface (including a seal coat), composed of a mineral 266. A substantial variance between the estiaggregate consisting of a mixture of selected mate and the ordinance will defeat the conhard crushed stone, sand and mineral dust, mix. firmation of the assessment. Smith v. City ed with asphaltic cement."

of Chicago, 214 Ill. 155, 73 N. E. 346; GardThe ordinance then goes on for some four ner v. City of Chicago, 224 Ill. 254, 79 N. E. pages of print specifying in detail the quality 624; Wetmore v. City of Chicago, 206 Ill. of materials and the method of work in put- 367, 69 N, E. 234; City of Chicago Heights v. ting down the main part of the bituminous Angus, 267 Ill. 628, 108 N. E. 758. The ordiconcrete wearing surface, and then con- nary layman could not understand from this tinues:

estimate whether it was intended to include Seal Coat-As soon as possible after rolling, the seal coat or not. The only testimony on and while the surface is fresh, clean and warm, a skim coat of pure asphaltic cement shall be this question is that of Charles E. Russell, poured on at a temperature of not_less than city engineer of appellant. He stated, in antwo hundred and fifty (250) degrees Fahrenheit swer to a question by the trial court, that the and evenly spread over the surface with rubber squeegees. Over this a top dressing of dry gran- seal coat in question would cost approximateite chips or clean, hard roofing gravel of such ly 10 per cent. as much as the two-inch sizes as will pass a one-half (42) inch screen bituminous concrete wearing surface would mesb and of which not less than seventy (70) per

cost. cent. will pass a screen having one-fourth (14)

This was the only testimony on this inch meshes, shall be immediately spread and question. Judged by this testimony, the cost rolled. All of said stone dressing shall be used of the seal coat could readily be estimated that can be rolled into the surface and leave a small surplus, which shall be left to be worn separately from the cost of the two-inch away by traffic."

bituminous concrete wearing surface and was [2] The trial court held that the seal coat not necessarily a part thereof. No attempt was a separate component part of the cost of was made by the city authorities to prove the improvement, and should have been item that persons familiar with this line of work ized separately.

would consider that the estimate here in Counsel for appellant admits that the esti- question included the cost of the seal coat, mate did not in specific terms include the or that the seal coat would be required on seal coat of the surface, but contends that the surface of the concrete wearing surface, from reading the estimate, in connection with from reading the estimate alone. The propthe ordinance, any one familiar with this erty owner certainly would not understand, class of work would understand from the even when reading the estimate in connecestimate that the seal coat was included tion with the ordinance, that the cost of the therein. This court has repeatedly held that seal coat was included in and estimated as a the estimate for a special assessment im- part of the cost of the wearing surface. provement is itemized sufficiently if it gives Under the reasoning of the decisions hereto the property owners a general idea of the tofore cited, on this record the objection that estimated cost of the substantial component. the estimate was not sufficiently itemized, elements of the improvement. Hulbert v. and that therefore there was a variance beCity of Chicago, 213 Ill. 452, 72 N. E. 1097;tween the ordinance and the estimate in this Chicago & Western Indiana Railroad Co. regard, was properly sustained. v. City of Chicago, 230 Ill. 9, 82 N. E. 399; The judgment of the county court will be Clark v. City of Chicago, 214 Ill. 318, 73 N. affirmed. E. 358. It has also been held that it is not Judgment affirmed.

(276 Ill. 157)

there was a stove, drinking water, and a L’EOPLE v. STARKS. (No. 11035.) bench extending east and west along the (Supreme Court of Illinois. Dec. 21, 1916.) south wall of the room. Lee went into the 1. HOMICIDE 257(1)-ASSAULT TO MURDER back room and was sitting on the bench talk-EVIDENCE-SUFFICIENCY.

ing to a man named Johnson when plaintifr In trial for assault to murder, evidence, al. in error entered the barber shop. Plaintiff in though conflictin that accused fired a gun at the other party, held suificient to support ver

error went to the door leading into the back dict of guilty.

room, or just inside of it, and, apparently (Ed. Note.-For other cases, see Homicide, seeing who was in the room, stopped. JohnCent. Dig. 88 543, 544, 552; Dec. Dig. Om 257 (1).]

son invited him to come in, but this plaintiff 2. HOMICIDE Cw190(8)-ASSAULT TO MURDER

in error declined to do. Lee and Johnson -THREATS OF ACCUSED.

testified plaintiff in error told Johnson he In trial for assault to murder, testimony of was keeping the wrong company and went assaulted party that he had heard accused was back into the barber shop, that Johnson going to kill him was properly admitted. [Ed. Note.-For other cases, see Homicide,

called to him to come back into the room Cent. Dig. $$ 410, 411; Dec. Dig. Om 190(8).j where he was, and that plaintiff in error 3. HOMICIDE 190(6)–ASSAULT TO MURDER used profane language, told Johnson not to -THREATS OF VICTIM.

call him any more, and said he would not In trial for assault to murder, testimony for go into the room. Plaintiff in error did not accused that on the same evening the shooting occurred, and prior to its occurrence, the assault leave the barber shop, and in a short time ed party said some one was accusing him of be-Lee and Johnson left the back room and went ing a "snitch," and he was going to blow his head into the barber shop. The evidence is conoff, but he mentioned no name, and the witness ficting as to whether plaintiff in error or Lee did not pretend to say that the assaulted party said anything to indicate the person he referred made the first demonstration of violence toto, was properly stricken out as not showing ward the other. Both were armed, and it the assaulted party bad accused in mind.

clearly appears that there was bad blood be(Ed. Note.-For other cases, see Homicide, tween them. Each claims the other started Cent. Dig. $ 404; Dec. Dig. Om190(6).]

to draw his gun first. When it looked like Error to City Court of Carbondale; Her- the parties were going to have trouble, the bert A. Hayes, Judge.

barber, Murray, caught one of them, and a Marshall Starks was convicted of assault customer who was being shaved jumped out with intent to commit murder, and brings of the chair and caught the other, in an efAffirmed.

fort to prevent difficulty between them. Lee W. P. Lightfoot, of Murphysboro (W. F. then had his gun in his hand and plaintiff in Ellis, of Murphysboro, of counsel), for plain error was trying to draw his from his pocktiff in error. P. J. Lucey, Atty. Gen., W. A. et. Fearing for their own safety, Murray Schwartz, State's Atty., of Carbondale, and his customer released the parties, they and Frank W. Sullivan, Asst. Atty. Gen. (J. came together, and there was the report of S. Kendall, of Carbondale, of counsel), for a gun. Most of the witnesses testified that the People.

they only heard one report, but it seems quite

certain both parties fired at the same time. FARMER, J. Marshall Starks, plaintiff in The plaintiff in error was hit. When Murerror, was convicted in the city court of ray returned to the shop, plaintiff in error Carbondale for the crime of assault with in- and Lee were clinched, the former's gun was tent to commit murder. The assault was lying on the floor, and he had Lee's gun in his alleged to have been committed upon one hand behind Lee's back. Plaintiff in error Lee with a revolver. Motion for a new testified he dropped his gun in trying to trial was overruled, the defendant sentenced draw it from his pocket, and that he wrenchto imprisonment in the penitentiary, and he ed Lee's gun out of his hand. Lee testified has sued out this writ of error to review the plaintiff in error drew his gun and pointed it judgment.

at him, and that he (Lee) struck plaintiff [1] Plaintiff in error and Lee are both col. in error's band and arm upwards and at that ored men. They met in the barber shop of a time both fired. An empty shell which witcolored man named Murray the evening of nesses testified from its appearance had been April 1, 1916, and had an altercation in freshly fired was in plaintiff in error's gun. which both drew revolvers, and, while the The next morning a bullet hole was found plaintiff in error denied using his, the proof in a board forming part of the wall of the warrants the conclusion that both fired. Lee barber shop, some eight 'or nine feet above was not hit, but plaintiff in error was wound the floor. ed in the mouth. Lee went into the barber While plaintiff in error testified he did not shop first. The shop was divided into two fire and that it was his custom to keep an rooms by a wood partition. The front room, empty shell in his gun, we think the evidence which faced east on the street, was the shop warrants the conclusion that he fired the where the barber chairs were. A door opened shot which went into the wall of the room, out of that room into the back room, where and that he and Lee fired simultaneously.

error.

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

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We shall not attempt to set out or analyze Appeal from City Court of Elgin; Frank
the testimony. It is sufficient to say that E. Shopen, Judge.
from a consideration of it it cannot be said Action by C. F. Irwin against J. M. Man-
the judgment should be reversed because not ley and others to remove a cloud on title.
authorized by the evidence. There was a Judgment for the defendants, and plaintiff
conflict in the testimony, but it was the prov- appeals. Cause transferred to the Appellate
ing of the jury to determine the credibility Court.
of the witnesses and the weight to be given

J. M. Manley and R. H. Kramer, both of their testimony. The case is not one where Elgin, for appellant. Charles B. Hazelhurst a reviewing court would be justified in dis- and George D. Carbary, both of Elgin, for turbing the verdict and judgment on the evi

appellees. dence. Henry v. People, 198 Ill. 162, 65 N. E. 120.

DUNN, J. The appellee filed in the city [2] Error is assigned upon certain rulings court of Elgin a bill to remove a cloud on of the court in admitting and rejecting testi- his title to lot 4 in block 56 of W. C. Kimmony. Lee testified he had heard plaintiff ball's Second addition to Elgin, alleging that in error was going to kill him, to which ob- James Sullivan, who was the owner of the jection was made and overruled. There was lot subject to a trust deed for $750, dated no error in this ruling. Campbell v. People, October 23, 1911, and due one year after 16 Ill. 17, 61 Am. Dec. 49; Painter v. People, date, on December 15, 1911, was living with 147 Ill. 444, 35 N. E. 64.

Ella Sullivan, his wife, on the premises, and [3] A witness for the defense testified that on that day left his home and deserted his on the same evening the shooting occurred, wife, who continued to live on the premises and prior to its occurrence, Lee said some until January 4, 1912; that on December 16, one was accusing him of being a “snitch," 1911, she filed a bill for divorce, which was and he was going to blow his head off, but he granted on January 4, 1912, and in the dementioned no name, and the witness did not cree it was provided that she take as perpretend to say that Lee said anything to in-manent alimony the fee-simple title to said dicate who the person he referred to was. lot 4 in full of solicitor's fees and costs as On motion of the people that testimony was well as of alimony, and the decree purported stricken out. There was no error in this rul- to vest her with the full, complete, absolute ing, as there was nothing in the statement of and indefeasible title, free from all claims, Lee in any way indicating he referred to or debts, and liabilities of her husband, except had plaintiff in error in mind. Holley v. such as appeared of record in the recorder's State, 39 Tex. Cr. R. 301, 46 S. W. 39. office of Kane county, as completely as

Some other complaints are made on the though the premises had been conveyed to court's rulings in admitting and refusing ev. her by a deed, and directed that a copy of idence and in giving certain instructions for the decree be filed with the recorder of the people. These objections are more crit- Kane county, and when so bled constitute a ical than meritorious and do not require dis- link in the chain of title to said premises. cussion in detail. Our attention has not After the rendition of this decree, on the been called to any error that would require same day the divorced wife conveyed the or justify a reversal of the judgment, and it premises by a warranty deed to the appellee, is affirmed.

who thereby became the owner of said premJudgment affirmed.

ises in fee simple, subject to the $750 trust
deed aforesaid. The bill alleged that on De-

cember 15, 1911, James Sullivan confessed a (276 Ill. 353)

judgment in the city court of Elgin in favor IRWIN v. MANLEY et al. (No. 11065.)

of J. M. Manley and R. H. Kramer in the (Supreme Court of Illinois. Dec. 21, 1916.)

sum of $420, upon which an execution was 1. COURTS Om 219(21) JURISDICTION SU

issued and was returned not satisfied, but PREME COURT-FREEHOLD.

A suit to remove the lien of a judgment as that the said judgment was not a lien on the a cloud on plaintiff's title in which defendant premises, because they were never worth to filed a cross-bill asking that plaintiff be, de exceed $1,700, and, being subject to the trust creed to hold the title in trust for both of them deed for $750, the estate of homestead to does not involve a freehold, and the Supreme Court has no jurisdiction of a direct appeal the extent of $1,000 left nothing to which the therein.

judgment lien could attach, and that the [Ed. Note.-For other cases, see Courts, Cent. said judgment was in most part fictitious Dig. 540; Dec. Dig. Om 219(2).]

and void and rendered by collusion between 2. APPEAL AND ERROR 173(5)—ADMISSIONS said Manley and Kramer and Sullivan; that -CONCLUSIVENESS.

A defendant whose pleadings admitted that the appellee, upon obtaining title to the complainant took title to the premises cannot premises, entered into possession of them, on appeal contend that complainant's title was and has continued in such possession to the not valid.

time of filing the bill, and on March 22, 1912. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $& 1087, 1110, 1111, 1113; entered into a contract to sell the said premDec. Dig. Om173(5).]

ises to Emma Petterson and Harry Petter.

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son for the sum of $1,700, free and clear of, bill, and the cross-bill was dismissed upon all incumbrances, and they moved into the motion of the cross-complainants. This appremises under the contract of sale and have peal is prosecuted by defendants to the origicontinued to reside there since; that the ap- nal bill, J. M. Manley and R. H. Kramer. pellee desires to comply with the contract of [1] Briefs have been filed by both parties sale, but the judgment of Manley and Kram- in which several questions have been diser against Sullivan is a cloud on his title, cussed, but the first point presented on be which he asks to have removed.

half of the appellee is that this court has no J. M. Manley and R. H. Kramer were jurisdiction of the appeal because no freemade defendants to the bill, and their an- hold is involved. No other ground of jurisswer admitted James Sullivan's ownership diction exists, and it is apparent that a freeof lot 4, the giving of the trust deed, the hold is not in issue under the pleadings and filing of the bill for divorce, the entry of the will not be affected by the decree. The sole judgment, the deed of Ella Sullivan to the object of the bill is to procure the removal appellee, and the appellee's contract of sale. of the judgment as a lien on the lot, and if It alleges that the judgment was rendered the judgment were held to be a valid lien, upon a promissory note of James Sullivan the loss of the freehold could be avoided by to the defendants for services rendered and the payment of the judgment. Such a con to be rendered; that about December 30, troversy does not involve a freehold. Helton 1911, certain other judgments were about to v. Elledge, 199 Ill. 95, 64 N. E. 1091. In casbe taken by other creditors against the said es where the complainant alleges that he James Sullivan which would be liens upon holds the title in fee, and the defendant dethe lot in question; that the defendants were nies such allegation, and this question is consolicitors for James Sullivan in the divorce tested on the trial, the title is put directly suit, and communicated their information in issue in the pleading and a freehold is inthat such judgments were about to be enter- volved (Hibernian Banking Ass'n v. Comed to the appellee, who was the solicitor for mercial Nat. Bank, 157 Ill. 576, 41 N. E. 918), Ella Sullivan, and thereupon an agreement but there is no such issue in the pleadings was made that the divorce suit be tried im- in this case. The complainant alleges that mediately, that the title to said lot 4 be vest- he took the title in fee, and the defendants ed in said Ella Sullivan, and after the pay- expressly admit it. ment of the costs of suit and a reasonable

[2] The appellants have discussed, among sum to said Ella Sullivan as alimony, said other questions, whether the evidence establot 4 should belong to and be the property of lishes an estate of homestead in James Sulthe defendants and the appellee, and that livan, whether the decree of divorce conveysuch agreement was for the purpose of payed the title to lot 4 to Ella Sullivan, and ing the solicitors' fees of the defendants and whether ber deed conveyed it to appellee. the appellee, and it was then and there These questions cannot be considered on this agreed by the appellee that he would take record in view of the position of the appeland hold the title to said lot as trustee for

lan taken in the pleadings, which admit the defendants and himself for such pur

that the appellee took the title to the prempose; that, pursuant to such agreement, the ises and insist that he took it as trustee and defendants entered the appearance of Sulli- should account to them as such trustee. van in the divorce suit, filed his answer, and

The appeal was improperly brought to this consented to an immediate hearing; that said court, and the cause will be transferred to divorce suit was heard on January 4, 1912, the Appellate Court for the Second District. and the appellee on the same day obtained

Cause transferred. title to said lot as trustee for the benefit of himself and the answering defendants pursu

(276 Ill. 11) ant to such agreement, and is now holding

WOLF et al. V. LAWRENCE et al. (No. the title to said premises as such trustee.

11064.) The defendants Manley and Kramer also filed a cross-bill representing that the ap

(Supreme Court of Illinois. Dec. 21, 1916.) pellee took and holds the title to the lot in 1. EVIDENCE Om 141(5)—ORAL CONTRACTcontroversy as trustee for the benefit of

MERGER WITH WRITTEN AGREEMENT. Manley and Kramer and himself and to pay was executed at the same time as two written

Where a deed conveying laud as security their judgment, and praying that the appel-agreements between the parties, all previous lee be decreed to hold the title to said lot as conversations and oral agreements were merged

in the written agreements. such trustee and required to account to Manley and Kramer for their interest in the lot. Cent. Dig. Så 1746-1755, 2039, 2040; Dec. Dig.

[Ed. Note. -For other cases, see Evidence, An answer was filed by the appellee to the m441(5).] cross-bill, among other things denying that 2. SPECIFIC PERFORMANCE Om121(2)—ORAL he took the title to the lot as trustee and CONTRACT–PROOF. averring that he purchased it in good faith.

An oral contract for the conveyance of real Upon a hearing the court entered a decree it is clear, certain, and unequivocal in its terms.

estate will not be specifically enforced, unless granting the relief prayed in the original and is convincingly established beyond a rea

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

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