the contract to form the basis of an account., legal objections filed by appellees were susThere was definite evidence of the payment tained 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. Weed. 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. Decree affirmed. (276 Ill. 24) [1] Counsel for the appellant earnestly argues that the trial court should not only have passed on the objection that the estimate was not sufficiently itemized, but on all other objections relied on by appellees, bas CITY OF HIGHLAND PARK v. GAIL et al. ing that argument mainly upon the provision (No. 11041.) (Supreme Court of Illinois. Dec. 21, 1916.) 1. MUNICIPAL CORPORATIONS 504 IM PROVEMENTS-STATUTES. Local Improvement Act, § 48 (Hurd's Rev. St. 1915-16, c. 24), providing that upon the hearing on legal objections to confirmation of an assessment the court shall determine all questions relating to the sufficiency of the proceedings, etc., with the exception of objections that 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 to the jury, means that the court, and not the jury, shall pass on all questions except those required to be submitted to the jury, and does not require the court when it has found one fatal objection to pass on other objections raised by property owners. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1176; Dec. Dig. 504.] 2. MUNICIPAL CORPORATIONS 444 IMPROVEMENTS-ESTIMATES-SUFFICIENCY. Where an ordinance providing for a concrete pavement specified a seal coat, failure of the estimate for the improvement to include the seal coat, rendered it defective as not estimating separately a substantial component part, and constituted a variance between the ordinance and the estimate which will defeat the confirmation of the assessment. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1064, 1069; Dec. Dig. 444.] Appeal from Lake County Court; Perry L. Persons, Judge. Proceedings by the City of Highland Park to confirm a special assessment for local improvements, in which objections were filed by E. S. Gail and others. From a judgment sustaining the objections, and refusing confirmation of the assessment, the petitioner appeals. Affirmed. Samuel S. Holmes, of Chicago, for appellant. E. S. Gail, of Highland Park, for appellees. * of section 48 of the Local Improvement Act, which provides that upon the hearing on legal objections "the court shall determine all questions relating to the sufficiency of the proceedings, together with all other questions arising in such proceeding," with the exception of the objections that 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 to the jury. This argument is without merit. This provision of the statute plainly means that it is the duty of the court, and not the jury, to pass on all questions except those submitted to the jury, but it was certainly never intended that if the trial court found one fatal objection it should be compelled to pass on several score of other objections that might be raised by the property owners. The sustaining of one objection that is vital to the proceedings renders it unnecessary to pass on the other objections, either in this or in the trial court. The argument of counsel for appellant that the court owes a duty to the city authorities to let them know whether there is any merit in the other objections is certainly groundless. The courts of this state are not called upon to decide moot questions. They are now overburdened with work, and to lay down any rule that would require the trial court or courts of review to decide all questions in the case, regardless of whether or not they were necessary to a decision of the individual case, would greatly add to the work of the courts, already overcrowded with cases, and would be against sound public policy. This conclusion makes it unnecessary for us to consider or decide whether the bill of exceptions or the record proper should control 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was $64,110. The pavement in question was to have a bituminous concrete surface. The estimate as to this bituminous surface provides as follows: "18,800 sq. yds. two (2) inch thick bituminous concrete wearing surface (machine mixed) 18 ft. wide, upon a five (5) inch thick concrete foundation 19 ft. wide (except pavement width to vary at street intersections and turnarounds), composed of one (1) part Portland cement, two and one-half (22) parts sand and five (5) parts of stone, the outer six inches of foundation to have a curb edge 6 in. high and 4 in. wide on top, composed of one part Portland cement, two (2) parts sand and three and one-half (32) parts stone; all laid in place complete (measured from outside to outside of curb) at $1.70 per sq. yd., $31,960." necessary for the estimate to contain a complete inventory of every article that is to enter into the construction of the improvement. All that is necessary is that the substantial component elements are separately itemized and the cost of each set forth in the estimate. City of East St. Louis v. Davis, 233 Ill. 553, 84 N. E. 674; Village of Donovan v. Donovan, 236 Ill. 636, 86 N. E. 575; City of Chicago v. Underwood, 258 Ill. 116, 101 N. E. 261; Doran v. City of Murphysboro, 225 Ill. 514, 80 N. E. 323. The estimate, however, is defective if it does not estimate separately a substantial component element of the pavement. 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 Ill. 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." The ordinance then goes on for some four pages of print specifying in detail the quality of materials and the method of work in putting down the main part of the bituminous concrete wearing surface, and then continues: small surplus, which shall be left to be worn away by traffic." 影 of Chicago, 214 Ill. 155, 73 N. E. 346; Gardner v. City of Chicago, 224 Ill. 254, 79 N. E. 624; Wetmore v. City of Chicago, 206 Ill. 367, 69 N. E. 234; City of Chicago Heights v. Angus, 267 Ill. 628, 108 N. E. 758. The ordinary layman could not understand from this estimate whether it was intended to include the seal coat or not. The only testimony on this question is that of Charles E. Russell, city engineer of appellant. He stated, in answer to a question by the trial court, that the seal coat in question would cost approximately 10 per cent. as much as the two-inch bituminous concrete wearing surface would cost. This was the only testimony on this "Seal Coat-As soon as possible after rolling, and while the surface is fresh, clean and warm, a skim coat of pure asphaltic cement shall be poured on at a temperature of not less than two hundred and fifty (250) degrees Fahrenheit and evenly spread over the surface with rubber squeegees. Over this a top dressing of dry granite chips or clean, hard roofing gravel of such sizes as will pass a one-half (2) inch screen mesh and of which not less than seventy (70) per cent. will pass a screen having one-fourth (4) 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 separately from the cost of the two-inch bituminous concrete wearing surface and was not necessarily a part thereof. No attempt was made by the city authorities to prove that persons familiar with this line of work would consider that the estimate here in question included the cost of the seal coat, or that the seal coat would be required on the surface of the concrete wearing surface, from reading the estimate alone. The property owner certainly would not understand, even when reading the estimate in connection with the ordinance, that the cost of the seal coat was included in and estimated as a part of the cost of the wearing surface. [2] The trial court held that the seal coat was a separate component part of the cost of the improvement, and should have been itemized separately. Counsel for appellant admits that the estimate did not in specific terms include the seal coat of the surface, but contends that from reading the estimate, in connection with the ordinance, any one familiar with this class of work would understand from the estimate that the seal coat was included therein. This court has repeatedly held that the estimate for a special assessment improvement is itemized sufficiently if it gives to the property owners a general idea of the estimated cost of the substantial component elements of the improvement. Hulbert v. City of Chicago, 213 Ill. 452, 72 N. E. 1097; Chicago & Western Indiana Railroad Co. v. City of Chicago, 230 Ill. 9, 82 N. E. 399; Clark v. City of Chicago, 214 Ill. 318, 73 N. E. 358. It has also been held that it is not Under the reasoning of the decisions heretofore cited, on this record the objection that the estimate was not sufficiently itemized, and that therefore there was a variance between the ordinance and the estimate in this regard, was properly sustained. The judgment of the county court will be affirmed. Judgment affirmed. (276 Ill. 157) PEOPLE v. STARKS. (No. 11035.) (Supreme Court of Illinois. Dec. 21, 1916.) 1. HOMICIDE 257(1)-ASSAULT TO MURDER -EVIDENCE-SUFFICIENCY. In trial for assault to murder, evidence, although conflicting, that accused fired a gun at the other party, held sufficient to support verdict of guilty. [Ed. Note. For other cases, see Homicide. Cent. Dig. 88 543, 544, 552; Dec. Dig. 257 (1).] 2. HOMICIDE 190(8)—Assault to MurdER -THREATS OF ACCUSED. In trial for assault to murder, testimony of assaulted party that he had heard accused was going to kill him was properly admitted. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 410, 411; Dec. Dig. 190(8).] 3. HOMICIDE 190(6)—ASSAULT TO MURDER -THREATS OF VICTIM. In trial for assault to murder, testimony for accused that on the same evening the shooting occurred, and prior to its occurrence, the assaulted party said some one was accusing him of being a "snitch," and he was going to blow his head off, but he mentioned no name, and the witness did not pretend to say that the assaulted party said anything to indicate the person he referred to, was properly stricken out as not showing the assaulted party had accused in mind. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 404; Dec. Dig. 190(6).] there was a stove, drinking water, and a Error to City Court of Carbondale; Her- the parties were going to have trouble, the bert A. Hayes, Judge. Marshall Starks was convicted of assault with intent to commit murder, and brings Affirmed. error. W. P. Lightfoot, of Murphysboro (W. F. Ellis, of Murphysboro, of counsel), for plaintiff in error. P. J. Lucey, Atty. Gen., W. A. Schwartz, State's Atty., of Carbondale, and Frank W. Sullivan, Asst. Atty. Gen. (J. S. Kendall, of Carbondale, of counsel), for the People. FARMER, J. Marshall Starks, plaintiff in error, was convicted in the city court of Carbondale for the crime of assault with intent to commit murder. The assault was alleged to have been committed upon one Lee with a revolver. Motion for a new trial was overruled, the defendant sentenced to imprisonment in the penitentiary, and he has sued out this writ of error to review the judgment. [1] Plaintiff in error and Lee are both colored men. They met in the barber shop of a colored man named Murray the evening of April 1, 1916, and had an altercation in which both drew revolvers, and, while the plaintiff in error denied using his, the proof warrants the conclusion that both fired. Lee was not hit, but plaintiff in error was wounded in the mouth. Lee went into the barber shop first. The shop was divided into two rooms by a wood partition. The front room, which faced east on the street, was the shop where the barber chairs were. A door opened out of that room into the back room, where et. barber, Murray, caught one of them, and a customer who was being shaved jumped out of the chair and caught the other, in an effort to prevent difficulty between them. Lee then had his gun in his hand and plaintiff in error was trying to draw his from his pockFearing for their own safety, Murray and his customer released the parties, they came together, and there was the report of a gun. Most of the witnesses testified that they only heard one report, but it seems quite certain both parties fired at the same time. The plaintiff in error was hit. When Murray returned to the shop, plaintiff in error and Lee were clinched, the former's gun was lying on the floor, and he had Lee's gun in his hand behind Lee's back. Plaintiff in error testified he dropped his gun in trying to draw it from his pocket, and that he wrenched Lee's gun out of his hand. Lee testified plaintiff in error drew his gun and pointed it at him, and that he (Lee) struck plaintiff in error's hand and arm upwards and at that time both fired. An empty shell which witnesses testified from its appearance had been freshly fired was in plaintiff in error's gun. The next morning a bullet hole was found in a board forming part of the wall of the barber shop, some eight or nine feet above the floor. While plaintiff in error testified he did not fire and that it was his custom to keep an empty shell in his gun, we think the evidence warrants the conclusion that he fired the shot which went into the wall of the room, and that he and Lee fired simultaneously. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from City Court of Elgin; Frank E. Shopen, Judge. We shall not attempt to set out or analyze the testimony. It is sufficient to say that from a consideration of it it cannot be said Action by C. F. Irwin against J. M. Manthe 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 ince of the jury to determine the credibility | Court. of the witnesses and the weight to be given their testimony. The case is not one where a reviewing court would be justified in disturbing the verdict and judgment on the evidence. Henry v. People, 198 III. 162, 65 N. E. 120. [2] Error is assigned upon certain rulings of the court in admitting and rejecting testimony. Lee testified he had heard plaintiff in error was going to kill him, to which objection was made and overruled. There was no error in this ruling. Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49; Painter v. People, 147 Ill. 444, 35 N. E. 64. [3] A witness for the defense testified that on the same evening the shooting occurred, and prior to its occurrence, Lee said some one was accusing him of being a "snitch," and he was going to blow his head off, but he mentioned no name, and the witness did not pretend to say that Lee said anything to indicate who the person he referred to was. On motion of the people that testimony was stricken out. There was no error in this ruling, as there was nothing in the statement of Lee in any way indicating he referred to or had plaintiff in error in mind. Holley v. State, 39 Tex. Cr. R. 301, 46 S. W. 39. Some other complaints are made on the court's rulings in admitting and refusing evidence and in giving certain instructions for the people. These objections are more critical than meritorious and do not require discussion in detail. Our attention has not been called to any error that would require or justify a reversal of the judgment, and it is affirmed. A suit to remove the lien of a judgment as a cloud on plaintiff's title in which defendant filed a cross-bill asking that plaintiff be decreed to hold the title in trust for both of them J. M. Manley and R. H. Kramer, both of Elgin, for appellant. Charles B. Hazelhurst and George D. Carbary, both of Elgin, for appellees. DUNN, J. The appellee filed in the city court of Elgin a bill to remove a cloud on his title to lot 4 in block 56 of W. C. Kimball's Second addition to Elgin, alleging that James Sullivan, who was the owner of the lot subject to a trust deed for $750, dated October 23, 1911, and due one year after date, on December 15, 1911, was living with Ella Sullivan, his wife, on the premises, and on that day left his home and deserted his wife, who continued to live on the premises until January 4, 1912; that on December 16, 1911, she filed a bill for divorce, which was granted on January 4, 1912, and in the decree it was provided that she take as permanent alimony the fee-simple title to said lot 4 in full of solicitor's fees and costs as well as of alimony, and the decree purported to vest her with the full, complete, absolute and indefeasible title, free from all claims, debts, and liabilities of her husband, except such as appeared of record in the recorder's office of Kane county, as completely as though the premises had been conveyed to her by a deed, and directed that a copy of the decree be filed with the recorder of Kane county, and when so filed constitute a link in the chain of title to said premises. After the rendition of this decree, on the same day the divorced wife conveyed the premises by a warranty deed to the appellee, who thereby became the owner of said premises in fee simple, subject to the $750 trust deed aforesaid. The bill alleged that on December 15, 1911, James Sullivan confessed a judgment in the city court of Elgin in favor of J. M. Manley and R. H. Kramer in the sum of $420, upon which an execution was issued and was returned not satisfied, but that the said judgment was not a lien on the premises, because they were never worth to exceed $1,700, and, being subject to the trust 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. [Ed. Note.-For other cases, see Courts, Cent. said judgment was in most part fictitious Dig. 540; Dec. Dig. 219(2).] 2. APPEAL AND ERROR 173(5)-ADMISSIONS -CONCLUSIVENESS. A defendant whose pleadings admitted that complainant took title to the premises cannot on appeal contend that complainant's title was not valid. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1087, 1110, 1111, 1113; Dec. Dig. 173(5).] judgment lien could attach, and that the and void and rendered by collusion between said Manley and Kramer and Sullivan; that the appellee, upon obtaining title to the premises, entered into possession of them, and has continued in such possession to the time of filing the bill, and on March 22, 1912. entered into a contract to sell the said premises to Emma Petterson and Harry Petter son for the sum of $1,700, free and clear of all incumbrances, and they moved into the premises under the contract of sale and have continued to reside there since; that the appellee desires to comply with the contract of sale, but the judgment of Manley and Kramer against Sullivan is a cloud on his title, which he asks to have removed. bill, and the cross-bill was dismissed upon motion of the cross-complainants. This appeal is prosecuted by defendants to the original bill, J. M. Manley and R. H. Kramer. [1] Briefs have been filed by both parties in which several questions have been discussed, but the first point presented on behalf of the appellee is that this court has no jurisdiction of the appeal because no treehold is involved. No other ground of jurisdiction exists, and it is apparent that a freehold is not in issue under the pleadings and will not be affected by the decree. The sole object of the bill is to procure the removal of the judgment as a lien on the lot, and if the judgment were held to be a valid lien, the loss of the freehold could be avoided by the payment of the judgment. Such a controversy does not involve a freehold. Helton v. Elledge, 199 Ill. 95, 64 N. E. 1091. In cases where the complainant alleges that he holds the title in fee, and the defendant denies such allegation, and this question is contested on the trial, the title is put directly in issue in the pleading and a freehold is involved (Hibernian Banking Ass'n v. Commercial Nat. Bank, 157 Ill. 576, 41 N. E. 918), but there is no such issue in the pleadings in this case. The complainant alleges that he took the title in fee, and the defendants expressly admit it. J. M. Manley and R. H. Kramer were made defendants to the bill, and their answer admitted James Sullivan's ownership of lot 4, the giving of the trust deed, the filing of the bill for divorce, the entry of the judgment, the deed of Ella Sullivan to the appellee, and the appellee's contract of sale. It alleges that the judgment was rendered upon a promissory note of James Sullivan to the defendants for services rendered and to be rendered; that about December 30, 1911, certain other judgments were about to be taken by other creditors against the said James Sullivan which would be liens upon the lot in question; that the defendants were solicitors for James Sullivan in the divorce suit, and communicated their information that such judgments were about to be entered to the appellee, who was the solicitor for Ella Sullivan, and thereupon an agreement was made that the divorce suit be tried immediately, that the title to said lot 4 be vested in said Ella Sullivan, and after the payment 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 pay-ed the title to lot 4 to Ella Sullivan, and ing the solicitors' fees of the defendants and the appellee, and it was then and there agreed by the appellee that he would take and hold the title to said lot as trustee for the defendants and himself for such purpose; that, pursuant to such agreement, the defendants entered the appearance of Sullivan in the divorce suit, filed his answer, and consented to an immediate hearing; that said divorce suit was heard on January 4, 1912, and the appellee on the same day obtained title to said lot as trustee for the benefit of himself and the answering defendants pursuant to such agreement, and is now holding the title to said premises as such trustee. The defendants Manley and Kramer also Dec. 21, 1916.) filed a cross-bill representing that the ap-(Supreme Court of Illinois. pellee took and holds the title to the lot in 1. EVIDENCE 441(5)-ORAL CONTRACTMERGER WITH WRITTEN AGREEMENT. controversy as trustee for the benefit of Manley and Kramer and himself and to pay was executed at the same time as two written Where a deed conveying land 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. An answer was filed by the appellee to the cross-bill, among other things denying that he took the title to the lot as trustee and averring that he purchased it in good faith. Upon a hearing the court entered a decree granting the relief prayed in the original whether her deed conveyed it to appellee. These questions cannot be considered on this record in view of the position of the appellants taken in the pleadings, which admit that the appellee took the title to the premises and insist that he took it as trustee and should account to them as such trustee. The appeal was improperly brought to this court, and the cause will be transferred to the Appellate Court for the Second District. Cause transferred. (276 III. 11) WOLF et al. v. LAWRENCE et al. (No. 11064.) Cent. Dig. $8 1746-1755, 2039, 2040; Dec. Dig. [Ed. Note.-For other cases, see Evidence, 441(5).] 2. SPECIFIC PERFORMANCE 121(2)-Oral CONTRACT-PROOF. An oral contract for the conveyance of real it is clear, certain, and unequivocal in its terms. estate will not be specifically enforced, unless and is convincingly established beyond a rea For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |