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in general terms, and not in such form as to | ber term, 1875, namely, on the 6th day of be available as a ground for relief. It was December, 1875, in favor of the Merchants' not until the sufficiency of that portion of her National Bank of Chicago, and against Charles bill had been challenged by demurrer, and W. Colehour and William H. Colehour, for after the weakness of her bill had been devel- $4,000 damages. oped on her motion for an allowance of alimony pendente lite, that her bill was so amended as to charge cruelty in such form as to constitute a ground for a divorce. These circumstances furnish ground for a legitimate inference that the charge of cruelty is a mere afterthought, and that it was brought forward only after it had become apparent that the bill could not otherwise be maintained. We are of the opinion that the decree is in accordance with the evidence, and that no error was committed by the appellate court in affirming it. The judgment of the appellate court will be affirmed.

The sole question in the case is whether the superior court had such jurisdiction of the person of William H. Colehour as authorized it to render that judgment at that time; for both Francis R. Butters and the appellant, having been attorneys for the bank in that suit, occupy no different position, as respects that question, than that occupied by the bank. Bank v. Flagg, 31 Ill. 290. William H. Colehour presented his petition to the superior court of Cook county on the 16th day of April, 1884, wherein he alleged, among other things, as follows: "That he (said petitioner) is one of the defendants in the above-entitled cause, in which cause judgment was entered against both defendants on the 6th day of December, A. D. 1875: that part of the record in said cause had been lost or destroyed, that is to say, the summons in said cause, served on your petitioner and on 1. Where a judgment creditor buys the judg- Charles W. Colehour, his co-defendant, toment debtor's land at execution sale, and after-gether with the return of the sheriff of Cook wards conveys the same to the attorney who brought the suit, the latter obtains no better title than that of the judgment creditor.

(130 I11. 217)

CULVER V. PHELPS.1

(Supreme Court of Illinois. Nov. 26, 1889.) EXECUTION-SALE-SUMMONS-RESTORATION OF RECORD.

2. A summons issued October 6, 1875, returnable on the first Monday of October "next," and served October 16, 1875, gives no jurisdiction to render judgment by default at a term held in November, 1875.

3. A sale of land under execution issued upon such a judgment creates a cloud upon title which

will be removed by a court of equity.

4. Where a summons which has been lost after service is restored upon petition of the defendant, in which he alleges that the summons sought to be restored is the only one that was served upon him, which allegation is denied by the plaintiff, the decision of the court restoring the summons is, in another suit, conclusive of the fact that the summons as restored was the only one that was served.

Appeal from superior court of Cook county: Culver & Madden, for appellant. Edward Roby, for appellee.

county thereon indorsed; and the indorsements of filing thereof have been lost or destroyed, upon which summons and return of service, the order entering the default of the defendants, and the judgment in the said cause were based; that a certified copy of said summons and return, and the indorsements of filing thereof, cannot be obtained by your petitioner, nor any certified copy of any part of said summons, return, or indorsement. Your petitioner further states that *** the following is a true copy of said summons, and the return of the sheriff thereon indorsed: Summons. Superior court, state of Illinois, Cook county-ss. The people of the state of Illinois to the sheriff of said county, greeting: We again command you that you summon Charles W. Colehour and William H. Colehour, if they shall be found in your counsuperior court of Cook county on the first day ty, personally to be and appear before the of the term thereof, to be holden at the courthouse in the city of Chicago, in said Cook

SCHOLFIELD, J. This was a bill in equity, by appellee against appellant, in the superior court of Cook county, to set aside certain deeds as clouds upon appellee's title. The deeds sought to be set aside are a sheriff's county, on the first Monday of October next, deeds sought to be set aside are a sheriff's to answer unto the Merchants' National Bank deed to the Merchants' National Bank of of Chicago, in a plea of trespass on the case,

Chicago, a deed of the Merchants' National

Bank of Chicago to Francis R. Butters, and upon premises, to the damage of said plaina deed of Francis R. Butters to appellant, Mr. tiff, as it is said, in the sum of four thousand Irving Culver; each purporting to convey writ, with an indorsement thereon in what dollars. And have you then and there this title to lot 10, in block 10, in "The Iron-writ, Workers' Addition to South Chicago." manner you shall have executed the same. Appellee claims title to the lot under a deed from exander F. Stevenson, clerk of said court, and [Seal of the Superior Court.] Witness AlWilliam H. Colehour, who is conceded to the seal thereof, at Chicago aforesaid, this have been the original owner of the lot. The 6th day of October, A. D. 1875. A. F. STEsheriff's deed to the Merchants' National Bank of Chicago was executed by virtue of VENSON, Clerk.' Return of the officer, as a sheriff's sale, under an execution issued shown on the bank of the summons: Served this writ on the within-named defendants, upon a purported judgment of the superior court of Cook county, rendered at its Novem- by reading the same to each of them, the 16th day of October, 1875. FRANCIS AGNEW, Sheriff. By T. H. SMITH, Deputy.' Your petitioner further states that at the time your

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Reported by Louis Boisot, Jr., of the Chicago

The

petitioner made such copies said summons | 105 Ill. 336. It has been seen that the dewas among the papers and files of said cause, cree supra restores the summons which was in the custody of the clerk of this court, and served upon the defendants in the case before your petitioner made a copy of said summons judgment was rendered, and not merely a and return in the office of the clerk of this summons that was served in that case. court as aforesaid; and that said summons issue was made by the answer that the sumso copied, and of which the above and fore-mons set out in the petition was not the sumgoing is a true copy, is the only summons in mons served upon the defendants pursuant said cause ever served on this petitioner." to which judgment was rendered, but the Appellant and the bank were made defend- court found against the answer; and so we ants to this petition. Its prayer was that must now accept it as a fact that the only the court make an order "reciting what was summons served upon the defendants before the substance and effect of said summons, judgment was rendered was this summons. and return of service and filing of the same, The case is therefore within the rule laid according to the provisions of the statute in down in Osgood v. Blackmore, 59 Ill. 265, such case made and provided. Rev. St. c. and Barnett v. Wolf, 70 Ill. 76. The record 116, § 2. The bank and appellant separately contradicts the recitals in the judgment "that answered the petition, putting in issue its due personal service of process of summons material allegations. Appellant, in his an- issued in said cause has been had on the deswer, admitted that "upon examination of fendants for more than ten days before this the papers in said cause made by him, that term," (the November term, 1875,) and shows the writ of summons issued in said cause that that the only summons served in the case was was served on said petitioners is not to be one issued on the 6th of October, 1875, refound therein." And he alleged, among other turnable to the twelfth term of the court things: "That there was more than one sum-thereafter to be held, namely, to the October mons issued in said cause; and that, as he is term, 1876, of the court. The summons, beadvised and believes, the said petition does ing returnable at a term other than the first not show, nor give a copy of, the summons term, and to be held more than three months duly issued in said cause, upon which serv-after its date, was void. Section 1, c. 110, ice was had upon said petitioner, and judgment rendered against him. And upon like information and belief he denies that the writing set out in said petition, purporting to be a copy of the summons in said cause served on said petitioner, is a true and correct copy of the summons served on him." Replications were filed to the answers, and the cause was heard, and decree rendered therein, at the June term, 1884, of the court. The court found and decreed in accordance with the prayer of the petition, and restored the summons, and service thereof; upon which judgment was rendered literally as before herein set out as being recited in the petition. The case was then taken, by the appeal of the present appellant, to the appellate court of the first district; and that court by its judgment affirmed the decree of the superior court; and from the last-named judgment the same party brought the case by appeal to this court, and the judgment of the appellate court was here affirmed, pursuant to opinion filed on the 25th of January, 1886, and that judg-judgment. Plaintiff brings error. ment has never been set aside. Culver v. Colehour, 115 Ill. 558, 5. N. E. Rep. 89.

Rev. St. 1874; Hildreth v. Hough, 20 I11. 331. And in no view can it be held to confer jurisdiction of the persons to render judgment at the November term, 1875. We think the court below, therefore, properly decreed that the deeds be set aside as clouds upon complainant's title. The decree is affirmed.

(130 III. 238)

CULVER v. CITY OF STREATOR.1 (Supreme Court of Illinois. Nov. 26, 1889.) MUNICIPAL CORPORATIONS-TORTS OF AGENTS.

A municipal ordinance forbidding dogs to run at large being a police regulation, the municipality is not responsible for the negligent acts of one employed by it to enforce such ordinance.

Error to appellate court, second district.

Action by Carrie Culver against the city of Streator for personal injuries caused by the negligent acts of a person employed by defendant to kill unmuzzled dogs. The circuit court sustained a demurrer to the declaration, and the appellate court afirmed the

Joel T. Buckley and McDougall & Chapman, for plaintiff in error. Walter Reeces and Wm. H. Boys, for defendant in error.

It is not pertinent to the question now under consideration to determine what power is BAILEY, J. We are of the opinion that the vested in the superior court by chapter 116, Rev. St. 1874, in relation to burnt records, several counts of the amended declaration, nor what evidence is admissible upon the though differing somewhat in the character hearing of a petition filed pursuant to the pro- tion of the same principles. The fourth of their averments, all call for the applicavisions of that chapter. It is only important count, which is fullest in its allegations, to know what was decreed in the case supra, shows that the injury complained of was for that decree is res judicata in the present caused by the negligent act of a party emcase, no matter whether it was authorized caused by the negligent act of a party emby the law and the evidence or not. Bradish ployed by the city of Streator to enforce a v. Grant, 119 Ill. 606, 9 N. E. Rep. 332; At- municipal ordinance forbidding the running torney General v. Railroad Co., 112 Ill. 538; Hanna v. Read, 102 Ill. 596; Tilley v. Bridges,

1Reported by Louis Boisot, Jr., of the Chicago

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at large of dogs in said city without being | ville, 13 Bush. 221; Cook v. City of Macon, muzzled, and providing that all dogs run- 54 Ga. 468; Harris v. City of Atlanta, 62 Ga. ning at large contrary to said ordinance 290;) nor for their unlawful acts of violence, should be destroyed. This was clearly an whereby, in the exercise of their duty in supordinance passed by the city in the exercise pressing an unlawful assemblage, ar injury of its police powers, and the injury was is done to the property of an individual, caused by the party employed to enforce such (Stewart v. New Orleans, 9 La. Ann. 461; police regulations. The third count alleges Dargan v. Mayor, etc., of Mobile, 31 Ala. 469.) that the injury was caused by the negligent Upon the same principle, it has been held that and careless acts of the servants of the city a city having power to establish a fire dewhile destroying dogs running at large con- partment, to appoint and remove its officers, trary to a city ordinance; and the first and and to make regulations in respect to their second counts allege, in substance, that the government and the management of fires, is injury was caused by the negligent and care- not liable for the negligence of the firemen less acts of servants hired and employed by appointed and paid by it, who, when engaged the city to shoot and kill dogs at large in the in the line of their duty, upon an alarm of city, and which had not been by it duly fire, run over the plaintiff on their way to licensed. The matter of regulating and re- the fire, (Hafford v. New Bedford, 16 Gray, straining the running at large of dogs by a 297; Wilcox v. City of Chicago, 107 Ill. 334;) municipal corporation manifestly pertains to nor for injury to the plaintiff caused by the the police power. That power may be de- bursting of a hose of one of the engines of fined, in general terms, as comprehending the city, through the negligence of a member the making and enforcement of all such laws, of the fire department, (Fisher v. City of Bosordinances, and regulations as pertain to the ton, 104 Mass. 87 ;) nor for negligence whereby comfort, safety, health, convenience, good or sparks from the fire-engine of the city caused der, and welfare of the public, and all per- the plaintiff's property to be burned, (Hayes sons officially charged with the execution and v. City of Oshkosh, 33 Wis. 314.) In like enforcement of such police ordinances and manner it is held that where a city, under regulations are, quoad hoc, police officers. authority of law, establishes a hospital, it is The pleader, in drafting the declaration, seems not liable to persons injured by the misconto have endeavored to obviate the conclusions duct of its agents and employes therein. to be drawn from the character of the duties City of Richmond v. Long's Adm'rs, 17 Grat. which the officer in question was performing 375. See, also, 2 Dill. Mun. Corp. §§ 973– at the time the plaintiff was injured, by des- 975, and authorities cited in notes. ignating and describing him as a "servant" The ground upon which the foregoing or "employe" of the city, and alleging that cases, and many others of like nature, are he was hired and employed by the city to admitted as excéptions to the general rule of perform said duties. Merely denominating corporate liability, is that in those matters. him a "servant" or "employe" does not make the city acts only as the agent of the state, him such in a sense calling for an application in the discharge of duties imposed by law for of the maxim respondeat superior. Whether the promotion and preservation of the pubhe was a servant or employe in that sense de- lic and general welfare, as contradistinguished pends mainly upon whether he was employed from mere corporate acts, having relation to to perform acts which the corporation could the management of its corporate or private do in its private or corporate character, or concerns, and from which it derives some acts which the corporation was empowered special or immediate advantage or emoluto do in its public capacity as a governing ment in its corporate or private character. agency, and in discharge of duties imposed The police regulations of a city are not made for the public or general welfare. Acts per- or enforced in the interest of the city in its formed in the exercise of the police power corporate capacity, but in the interest of the plainly belong to the latter class. Police of- public. A city, therefore, is not liable for ficers appointed by the city are not its agents the acts of its officers in attempting to enor servants so as to render it responsible for force such regulations. Calwell v. Boone, their unlawful or negligent acts in the dis- 51 Iowa, 687, 2 N. W. Rep. 614; Prather v. charge of their duties. Accordingly it has Lexington, 13 B. Mon. 559; Elliott v. Philbeen held that a city is not liable for an as-adelphia, 75 Pa. St. 347; Board v. Schroeder, sault and battery committed by its police officers, though done in an attempt to enforce an ordinance of the city, (Buttrick v. City of Lowell, 1 Allen, 172;) nor for illegal and oppressive acts of officers committed in the administration of an ordinance, (Board v. Schroeder, 58 Ill. 353;) nor for an arrest made by them which is illegal for want of a warrant, (Pollock's Adm'r v. City of Louis-firmed.

supra. The injuries complained of in the declaration having been caused by the negligence of an officer or employe of the city while attempting to enforce a police regulation, the maxim respondeat superior does not apply, and the demurrer to the declaration, therefore, was properly sustained. The judgment of the appellate court will be af

(131 Ill. 61)
CHICAGO, B. & Q. R. Co. v. MEHLSACK.
(Supreme Court of Illinois. Nov. 26, 1889.)
CARRIERS-INJURIES TO PASSENGER.

In an action against a railroad company, as a common carrier, for personal injuries received by plaintiff while riding on defendant's train without a ticket, where the evidence as to whether plaintiff was a passenger or a trespasser is conflicting, it is reversible error to instruct the jury that if they believe from the evidence that the plaintiff, without negligence on his part, was injured by defendant's negligence, as alleged in the declaration, they should find the defendant guilty; thus taking from the jury the question whether plaintiff was a passenger.

Appeal from appellate court, first district. Geo. Willard, for appellant. Joseph S. Kennard, Jr., (Brandt & Hoffmann, of counsel,) for appellee.

car from the platform where he stood; and that by means of said default, and the careless management of said train, an obstruction on the railroad struck and carried away a part of said platform, whereby the plaintiff was thrown to the ground, and injured. The fifth count alleges that the defendant was a common carrier of passengers, and that it was its duty to remove from its track and right of way any and all obstructions which might or could endanger the safety of persons lawfully riding upon its trains, yet the defendant negligently allowed certain obstructions to accumulate upon its right of way, and in close proximity to its track, whereby said train came into collision with said obstructions, and thereby the part of the train upon which the plaintiff was standing the ground and injured. A trial was had on was broken off, and the plaintiff thrown to the plea of not guilty, and at said trial the

BAILEY, J. This was an action on the case, brought by Frank Mehlsack against the Chicago, Burlington & Quincy Railroad Company, to recover damages for a personal injury found the defendant guilty, and assessed the plaintiff's damages at $6,000; and for jury. The injury complained of was sus- that sum and costs the plaintiff had judg tained by the plaintiff while riding on the ment. On appeal to the appellate court said platform steps of one of the cars belonging to judgment was affirmed, and the case is one of the defendant's passenger trains, which brought here on appeal from the judgment at the time was running from Meagher street of the appellate court. to the Union passenger depot, in the city of The main controversy at the trial was as Chicago. Said train was composed of a loco- to whether the plaintiff, at the time he was motive engine and eight cars, to-wit, a mail car, which was next to the engine, three bag- injured, was a passenger on said train, or a mere trespasser, seeking to obtain a ride gage cars, which came next, and four passen- without the knowledge or consent of the deger coaches, in the rear. Said train was a fendant, or its employes in charge of the through passenger train from the west, the train, and without paying the customary plaintiff having got aboard as the train stopped at Meagher street.. The evidence fare; and upon this question the evidence tends to show that the place on the train to the jury, at the instance of the plaintiff, was conflicting. The court thereupon gave where he was riding at the time he was in- the following instruction: "If the jury bejured was on the steps of the front platform lieve from the evidence that the plaintiff, of the forward baggage car; and that said while in the exercise of ordinary care, and steps, by coming in contact with some ob- without negligence on his part, was injured struction on the ground, near the track, were by negligence of the defendant, as alleged in broken off; and that the plaintiff was thereby the declaration, then the jury should find the thrown to the ground, and injured in such defendant guilty, and assess the plaintiff's manner as to necessitate the amputation of one of his legs about six inches below the damages." This instruction is clearly erroneous, for the reason that it wholly omits the knee. The evidence shows that he had pur- hypothesis that the plaintiff, at the time of chased no ticket, and that he paid no fare, al- his injury, was a passenger on the defendthough he claims to have had in his posses-ant's train. The plaintiff, in his declaration, sion sufficient money to pay the customary proceeds entirely upon the theory that the fare, if he had been called upon to do so, and legal relation of carrier and passenger had that he was ready and willing to make such been established between the defendant and payment. The declaration consists of five him. In three counts of the declaration that counts. The first, second, and fourth counts relation is expressly averred, and the negliallege, in terms, that the plaintiff became a passenger upon said train, and that the defend-gence charged is a failure to perform the duant negligently failed to carry him safely, whereby he was injured. The third count alleges that the defendant was a common carrier of passengers, and that it was its duty to furnish a sufficient number of cars for such persons as might lawfully desire to enter its trains, and to carry said persons therein with yet the duties which are alleged to have been safety, but that it did not furnish a sufficient neglected are those which a carrier owes to safety, but that it did not furnish a sufficient its passengers, and which it does not owe to number of cars, so that the plaintiff was un- a mere trespasser. A common carrier of pasable to obtain a seat therein, or to enter the sengers is not under the same obligation as 1Reported by Louis Boisot, Jr., of the Chicago to care and diligence in guarding against injuries to strangers, and especially to trespass.

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ties, and exercise the diligence, which that relation imposed. In each of the other counts the defendant is declared against as a common carrier of passengers; and, although in those counts there is no express averment that the plaintiff had become a passenger,

ers, that it is in guarding against injuries to | Osborne Bros. & Burgett, for appellant. passengers. His duty to the latter involves | Osborn & Lynde, for appellee. the use of the utmost care and diligence CRAIG, J. On the 1st day of July, 1876, which can be bestowed by human skill and Kirk B. Newell, being indebted to H. G. Abforesight, and is enforced by the highest con- bott, the appellant, executed his promissory siderations of public policy. But as to the note as follows: "Chicago, Ills., July 1, former his duty rests merely upon grounds 1876. One day after date I promise to pay of general humanity and respect for the rights to the order of H. G. Abbott two thousand of others, and requires him to so perform the dollars, with interest at the rate of ten per transportation service as not wantonly or cent. per annum, at First National Bank of carelessly to be an aggressor towards third Chicago. Value received. [Signed] KIRK | persons, whether such persons are on or off B. NEWELL." Indorsed on the back of the the vehicle. Schouler, Bailm. § 620. In Rail-note was the following guaranty: "For road Co. v. Beggs, 85 Ill. 80, we held that a value received, I hereby guaranty the payperson fraudulently riding on a free pass, ment of the within note at maturity, or at issued to another, and not transferable, was any time thereafter, with interest at ten per not a passenger, and that the railroad com- cent. per annum until paid, and agree to pay pany would only be held liable for gross neg-all costs and expenses paid or incurred in ligence which would amount to willful in- coliecting the same, including attorney's jury. The above-mentioned instruction re- fees. [Signed] J. B. BROWN." This action quired a verdict of guilty upon mere proof was brought by H. G. Abbott against Brown that the injury complained of was caused by to recover certain costs and attorney's fees the negligence alleged in the declaration, ir- which he paid out and expended in the colrespective of whether the plaintiff was a pas-lection of the amount named in the note in senger or a mere trespasser, although the an action against Brown on his guaranty. negligence alleged was such as would render The costs and attorney's fees which the a carrier liable only in case of injury to a pas- plaintiff sought to recover in the action were senger. This, in effect, took from the jury not expended in attempting to collect the all consideration of the questions presented note which was executed by Kirk B. Newell. by the evidence, which tended to show that No suit was ever brought on the note against the plaintiff, at the time of his injury, was the maker, nor was any evidence offered to attempting to obtain a free ride without the prove that any costs or expenses were ever consent of the defendant, or its agents. If incurred in an attempt to collect the note. such was the fact, the defendant can be held But on the trial of the cause Abbott, who is liable only for the consequences of gross neg-appellant here, put in evidence showing that ligence amounting to willful or wanton mis- on July 3, 1882, he brought an action in asconduct; and such is not the negligence charged in the declaration.

A number of other instructions were given; but none of them, in our opinion, can have the effect of curing the error above pointed out. For said error the judgment of the appellate and superior courts must be reversed, and the cause will be remanded to the latter court for a new trial.

(131 Ill. 108)

ABBOTT v. BROWN.1 (Supreme Court of Illinois. Nov. 26, 1889.)

GUARANTY-RES ADJUDICATA.

1. One who guaranties payment of a note, and agrees to pay "all costs and expenses paid or incurred in collecting the same, including attorney's fees," is not liable for expenses and attorney's fees incurred by the payee in suing the guarantor himself upon the guaranty.

2. After judgment has been recovered on such guaranty, the payee cannot recover from the guarantor, in a second suit, attorney's fees for services against the maker of the note, rendered before the first suit against the guarantor was brought.

Appeal from appellate court, first district. Assumpsit by Henry G. Abbott against John B. Brown. The circuit court rendered

judgment for defendant, and the appellate court affirmed the judgment. Plaintiff appeals.

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sumpsit against Brown "on the guaranty signed by him, indorsed on the note, whereby he guarantied payment of the note," in which he recovered judginent for the amount due on the note, $3,338.34; that an appeal was taken by Brown to the appellate court, and to the supreme court from the judgment. of the appellate court affirming the judgment of the circuit court, and that upon the affirmance thereof by the supreme court Brown paid appellant the amount of the judgment; that the firm of which witness was a member was employed as attorneys to conduct this action, and rendered services therein of the value of $1,500, and they had been paid that sum by appellant for said services; and also, in the prosecution of this action, appellant expended for printing and other necessary expenses the sum of $26. On this evidence the circuit court held, as a matter of law, "that the guaranty on which this suit was brought is not an agreement to pay the costs or expenses or attorney's fees, paid or incurred in a suit against Brown upon said guaranty," and rendered judgment för the defendant.

There is no ambiguity in the contract of of the contract are plain and easily underThe terms guaranty executed by Brown. stood. By the contract Brown agreed that the note should be paid with interest at ten per cent., and he also agreed to pay all costs and expenses incurred or paid, including at

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