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(148 N.E.)

claims, or willfully and deliberately swin- Vannier, wife of plaintiff in error (hereinafter dles another, or converts to his own use funds intrusted to him for safe-keeping or for deposit in bank, is unworthy of having his name upon the roll of attorneys and counselors of this court.

The findings and recommendations of the commissioner will be sustained as to the original counts. The objections of the relator to the findings and recommendations of the commissioner as to the first and second additional counts will be sustained.

called defendant), defendant was tried before the court, a jury having been waived, found guilty, and sentenced to pay the sum of $25 weekly to the clerk of the court for the use of defendant's children, upon the second count of the information, which charged that defendant, "on the 26th day of February, A. D. 1924, at the city of Chicago, being then and there the father of Raoul, Jr., Marguerite, and Lois Vannier, then and there minor children under the age of 18

We find from the evidence that respond-years, did then and there, without lawful exent is guilty as charged in the first and second additional counts, and that the rule should be made absolute, and the name of respondent stricken from the rolls. Rule made absolute.

(317 111. 521)

(No. 16626.) June 18, 1925.)

PEOPLE v. VANNIER. (Supreme Court of Illinois. I. Indictment and information 39-Information in municipal court may be filed by per son other than state's attorney after examlnation by judge.

Information charging neglect and refusal to maintain and provide for minor children in

necessitous circumstances could be filed in municipal court by person other than state's attorney, after examination of information by one of judges, under Municipal Court Act, § 27 (Smith-Hurd Rev. St. 1923, c. 37, § 382).

2. Criminal law 1044-Defects not raised. by written motion to quash not considered. Alleged defects in information, which were not raised by written motion to quash in municipal court, could not be considered on appeal. 3. Parent and child 17(6)-Evidence insufficient to show beyond reasonable doubt that accused refused to provide for minor children in necessitous circumstances.

In prosecution of father for neglect and

refusal to maintain and provide for minor children in necessitous circumstances, evidence held insufficient to show guilt beyond reasonable doubt.

Error to Appellate Court, First District, on Error to Municipal Court of Chicago; Joseph Burke, Judge.

Raoul Vannier was convicted of neglect and refusal to provide for three minor children in necessitous circumstances, and he appeals. Reversed and remanded.

Raoul Vannier, in pro. per.

Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., and James B. Searcy, of Springfield (Edward E. Wilson and Clarence E. Nelson, both of Chicago, of counsel), for the People.

HEARD, J. In the municipal court of Chicago, upon an information filed by Fay

cuse, neglect and refuse to maintain and provide for said children, said children then and there being in necessitous circumstances." The judgment of the municipal court having been affirmed upon writ of error by the Appellate Court for the First District, the record is now before this court for review upon writ of error.

[1] It is contended by defendant that the court erred in not quashing the information, because it was filed by a person other than the state's attorney. Section 27 of the act creating the municipal court (Smith-Hurd Rev. St. 1923, c. 37, § 382) provides that all criminal cases in which the punishment is by fine or imprisonment other than in the penitentiary may be prosecuted by information of the Attorney General, or state's attorney, or some other person, but, before an information, is filed by any person other than the Attorney General or state's attorney. one of the judges shall examine the information, and may examine the person presenting the same, and require other evidence and satisfy himself that there is probable cause for filing the same, and so indorse the same. This statutory method of procedure was followed in the present case, and the court did not err in refusing to quash the information on that ground. People v. Horan, 293 Ill.

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[3] It is contended by defendant that the evidence fails to show defendant's guilt beyond a reasonable doubt. The information specifically charged the defendant with the abandonment of Raoul, Jr., Marguerite, and Lois Vannier. The evidence entirely fails to show that defendant ever had a child called by any one of those three names; none of these names being mentioned by any witness. The municipal court of Chicago has jurisdiction only over those criminal offenses which occur within the city of Chicago. There is no proof in the record that within 18 months prior to the filing of the information any one of the three named children

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

was at any time in the city of Chicago, or | municipal corporation. Judgment for plainthat defendant in said city ever refused or tiff was affirmed by the Appellate Court, neglected to maintain and provide for them. which granted certificate of importance, and The evidence shows that defendant and Fay defendant appeals. Reversed. Vannier were married in 1917, and that as See, also, 229 Ill. App. 354. a result of such, marriage three children were born. The undisputed evidence shows that on the 4th day of June, 1923, defendant's wife left his home in Oak Park, taking with

her their three children, and that thereafter, although defendant requested at different times to see the children, he was not allowed to do so. He testified that at all times since his marriage he has been ready, able, and willing to support his family in his own home. There is no proof in the record that at any time the children were in destitute or necessitous circumstances, the only evidence upon that subject being a statement in a letter written by defendant's attorney to defendant's wife containing the following state

ment:

"Mr. Vannier says the two eldest children are apparently in need of winter clothing, and he is disposed to supply them as far as his means will permit at this time. Kindly make out a list of their most urgent needs and let us have it, and the articles will be purchased and delivered to you. It may be necessary to let him have the children for a few hours in order to get them."

Mrs. Vannier admitted the receipt of the letter, but made no reply thereto, for the reason, as she stated, that most of their needs had been supplied. The evidence in this case falls far short of showing defendant's guilt, beyond a reasonable doubt, of the crime charged in the information. People v. Honaker, 281 Ill. 295, 117 N. E. 997.

The judgment is reversed, and the cause remanded to the municipal court of Chicago.

Reversed and remanded.

(317 IlI. 529)

Hector A. Brouillet, of Chicago (Le Roy Millner, Francis L. Brinkman, and Morton S. Cressy, all of Chicago, of counsel), for appel

lant.

John G. Riordan, of Chicago, for appellee.

THOMPSON, J. The Appellate Court for the First District having granted a certificate of importance, this appeal is prosecuted to review its judgment, affirming a judgment of the superior court in favor of August Mindeman, administrator of the estate of Roy Mindeman, deceased, in his action against the Sanitary District of Chicago, arising out of the accidental drowning of Roy Mindeman, a child 5 years and 10 months old, in the canal of appellant.

The Sanitary District of Chicago is a municipal corporation organized under the laws of this state. In order to take care of the sewage of that part of the city of Chicago south of Eighty-Seventh street, and to provide a navigable waterway from the Calumet river to the main channel in the Sag, appellee had excavated and constructed a canal 60

feet wide and 25 feet deep from the main

channel eastward to the western limits of the
On each side of the

city of Blue Island.
channel, extending 5 or 6 feet above the
water, is a perpendicular concrete wall with
a flat top 4 feet wide. On both sides of the
canal the banks rise with a gradual incline
from the top of the concrete wall 10 or 12
feet to the level of the surrounding territory.
Beyond the top of this incline is the spoil
bank. From the photographs in the record
it appears that there is a strip of level
ground, several feet in width, between the
foot of the spoil bank and the top of the
canal bank. The right of way of the sani-

MINDEMAN v. SANITARY DIST. OF CHI- tary district is several hundred feet wide at

CAGO. (No. 16606.)

(Supreme Court of Illinois. June 18, 1925.) Negligence 39-Canal of sanitary district

held not attractive nuisance.

Where water in canal of sanitary district, in which boy was drowned, was not visible from street, and did not attract him onto premises of district, defendant cannot be held liable as for maintaining attractive nuisance, where spoil bank along canal was what first attracted boy to premises.

the, point in question, and is used principally for agricultural purposes. The nearest public highway to the point in question is the junction of John street, which runs parallel with the right of way, and Ogden avenue, which runs south from the right of way to Broadway. It is 300 feet from this corner to the canal bank.

For the convenience of the contractor constructing the canal, a roadway was opened across the right of way north from the termination of Ogden avenue. No work had been done at this particular point for about 2 years, and the unfinished banks had caved in, so that there was an incline from the private roadway down to the water's edge. Action by August Mindeman, administra- In the excavation beyond the end of the tor of the estate of Roy Mindeman, deceased, finished canal walls there is a pool of water, against the Sanitary District of Chicago, alin which considerable rubbish was floating.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; John W. Priehs, Judge.

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

(148 N.E.)

In the open field around the unfinished end of this canal the children of the neighborhood play. There are no houses on the west side of Ogden avenue, between the right of way of the canal and Broadway, which is two blocks south. East of Ogden avenue, on John street, there are several houses facing north, and there are houses on both sides of Broadway. Roy Mindeman lived with his parents and three brothers on Broadway, at Vine avenue, one block east of Ogden avenue. After lunch on the day of the accident, he went to the home of a playmate, Irving Rothenberger, a boy 11 years old, who lived about a half block west of him. After playing at the house a while, they got some bottles from the alley south of Broadway and took them to the spoil bank on the south side of the canal. Irving had played around the unfinished end of the canal before, but Roy had never been there. After playing with the bottles on the spoil bank, they went down to the canal wall, threw the bottles in the canal, and began throwing rocks at them. Irving walked up the bank to get some more rocks, and as he turned around he saw Roy disappear over the edge of the wall. He ran down to the canal and saw him struggling in the water about 15 or 20 feet west of the finished end of the wall. Irving called for help and ran home to tell his mother. Roy's father, who was working a few blocks away, was notified, and he ran to the canal. When he arrived there he saw Roy's hat floating on the water, about 25 feet west of the finished end, but did not see Roy. The next day the canal was dragged, and the body was recovered from the channel.

want of a better term, an attractive nuisance.

In dealing with a case in which the facts were almost identical with those of the case at bar, the Supreme Court of Kansas in Somerfield v. Land & Power Co., 93 Kan. 762, 145 P. 893, said:

characteristics of a natural stream, and can "The canal, as will be observed, has the no more be regarded as an attractive nuisance than would a river flowing through the city, or a pond or lake therein. It has been held that an unprotected pool in a natural water course, to which boys resorted to wade and swim, could not be regarded as an attractive nuisance within the meaning of the 'turntable' cases. Tavis v. Kansas City, 89 Kan. 547, 132 Pac. 185. In Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018, it was ruled that a pond in a city park, which was substantially a reproduction of a natural pond, although attractive to children, did not come within the rule of attractive nuisances. There is no greater necessity to build a fence or put a cover over the canal than there would be to fence or cover a natural stream, and there can be little distinction made between them, so far as the turntable' doctrine is concerned. There might be ground for the contention of appellees, if the appellant had unnecessarily placed or permitted some attractive or dangerous structure to be placed on or over the canal, that would imperil the lives of children attracted there to play upon it."

In Barnhart v. Chicago, M. & St. P. R. Co., 89 Wash. 304, 154 P. 441, L. R. A. 1916D, 443, a boy 8 years old was drowned in a

pond upon the railroad right of way, and the court, in holding the company free from liability, said:

"The question here presented is not whether reason of a trap or pitfall upon his property, the owner of property may be liable (a) by which may produce the death or injury; (b) a hidden or concealed danger; or (c) a danger

The water in the canal is not visible from the public street, and it cannot be reached without crossing 300 feet of private property of the Sanitary District. It is the contention of appellee that appellant permitted children to go upon its property over an open road-ous agency in close proximity or so near a way, and to play in and about the pool at the unfinished end of the canal, and that this pool, with boards and bottles floating uopn it, was attractive to children, and that appellant is liable for the death of the little boy in question, under the doctrine established in City of Pekin v. McMahon, 154 Ill. 141, 39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114. Whether appellant would be liable for the drowning of a child in the unfinished end of the canal need not be decided, for the reason that there is no evidence in this record showing that Roy Mindeman was attracted to the canal by the pool, wherein were floating the bottles and boards, or that he was drowned in this pool. The evidence is undisputed that he went from the home of his playmate to the spoil bank south of the canal, and that he went from there to the wall of the finished canal. The question, therefore, for decision, is whether the canal of the Sanitary District is what has been called, for 148 N.E.-20

highway that in the use of the highway an accident may occur-but is whether a pond of water is a dangerous agency, such as will subject the owner of the property to liability for damages for the death of a child of tender years, attracted to the pond for the purpose of play. The turntable doctrine makes the owner liable because the dangerous agency was attractive to children of tender years, and in playing about or with such agency accident or injury would probably result. That a pond of water swimming, and fishing, no one will deny. But is attractive to boys, for the purposes of play, its being an attractive agency is not sufficient to subject the owner to liability. It must be an agency such as is likely to, or will probably, result in injury to those attracted to it. That many boys every year lose their lives by drowning is a matter of common knowledge. But the number of deaths, in comparison to the total streams for purposes of play, swimming, and number of boys that visit ponds, lakes, or fishing, is comparatively small. It would be extending the doctrine too far to hold that a pond of water is an attractive nuisance."

is, there is no evidence in this record showing or tending to show that appellant is guilty of any wrongful act which caused the death of appellee's intestate, and the court should have directed a verdict of not guilty. Austin v. Public Service Co., 299 Ill. 112, 132 N. E. 458, 17 A. L. R. 795; Heimann v. Kinnare, 190 Ill. 156, 60 N. E. 215, 52 L. R. A. 652, 83 Am. St. Rep. 123.

The judgments of the Appellate Court and superior court are reversed. Judgment reversed.

Without extending this opinion further, by quoting from the many authorities on the subject, it is sufficient to say that the courts seem to be of one mind in holding that a canal, a pond, or other open body of water on private property, is not of itself an attractive nuisance, as that term is used in describing an instrumentality which will render the owner liable for injuries to a child attracted to and injured by it. United Zinc & Chemical Co. v. Britt, 258 U. S. 268, 42 S. Ct. 299, 66 L. Ed. 615; Thompson v. Illinois Central Railroad Co., 105 Miss. 636, 63 So. 185, 47 L. R. A. (N. S.) 1101; Emond v. Kimberly-Clark Co., 159 Wis. 83, 149 N. W. 760; Stendal v. Boyd, 73 Minn. 53, 75 N. W. PEOPLE ex rel. NAFTZGER v, ARNETT 735, 42 L. R. A. 288, 72 Am. St. Rep. 597; Wheeling & L. E. R. Co. v. Harvey, 77 Ohio St. 235, 83 N. E. 66, 19 L. R. A. (N. S.) 1136, 122 Am. St. Rep. 503, 11 Ann. Cas. 981; Peters v. Bowman, 115 Cal. 345, 47 P. 113, 598, 56 Am. St. Rep. 106.

The case of City of Pekin v McMahon, supra, is not in conflict with these authorities. In that case this court did not hold that a pond of water was an attractive nuisance, but it held that a pond of water, in which floating logs on which children were in the habit of playing were permitted to remain, when maintained near a driveway in a populous city, was under the circumstances such a dangerous instrumentality, attractive to children, as to render the owner liable for the drowning of a child playing there. In McDermott v. Burke, 256 Ill. 401, 100 N. E. 168, a boy went upon private property to play in a sand pile, and after playing there a while walked over to a place where some workmen were hoisting materials from the first to the second floor of a building under construction. He placed his hand upon the hoisting cable running over a sheave, and it was crushed between the cable and the sheave. After discussing at considerable length the liability of one for maintaining an attractive nuisance, the court held that it

was a necessary element of the liability that

et al.

(No. 16681.)

(Supreme Court of Illinois.

(317 III. 425)

June 18, 1925.)

1. Appeal and error 520 (1)—Motion to set aside order, granting leave to file information in quo warranto, must be preserved by bill of exceptions.

Motion to set aside order, granting leave to thereon, are not parts of common-law record, file information in quo warranto and rulings but must be preserved by bill of exceptions. 2. Appeal and error 544(1)-Order, setting aside leave to file information and dismissing petition, not reviewable, in absence of bill of exceptions or stenographic report signed by judge.

Assignments of error on rulings of court on motion to set aside order, granting leave to file information in quo warranto and to dismiss petition, are not reviewable, where not preserved by bill of exceptions or stenographic report signed by judge.

3. Quo warranto 43-Leave to file information granted, without notice or hearing, may be vacated and set aside during term.

Court, granting leave to file information in quo warranto, without notice or hearing during term, may vacate and set aside such order, when shown to have been inadvertently or improperly granted under misapprehension of law or facts.

4. Quo warranto 6, 29-Writ is not writ of

right; delay or acquiescence may justify refusal of leave to file information.

Writ of quo warranto is not writ of right, and delay or acquiescence on part of public in bringing action for such writ will justify refusal of leave to file information.

5. Appeal and error 948-Court held pre

sumed to have acted within its discretion in absence of bill of exceptions showing rulings on motions.

the thing which attracted the child was the thing which caused the injury or brought the child into the situation where it was injured. In this case the spoil bank, which was the thing visible from the public street and the place where the child first came to play, was not dangerous, and did not contribute to the injury of the child. The water in the canal, in which the child was drowned, was not visible from the public street, and did not attract the boy onto the premises of appellant. As we have said, there is no evidence whatever in the record that this boy was attracted to the canal by the rubbish floating in the pool at the unfinished end of the canal, or that this pool, with its attractive floating objects, contributed in any way to the drown- | Appeal from Circuit Court, Whiteside ing of the boy. Regrettable as this accident | County; Charles J. Searle, Judge.

On appeal from order granting motion to set aside order, granting leave to file information in quo warranto and dismissing petition, in absence of bill of exceptions showing rulings of court on motions, it will be presumed court acted within its legal discretion in denying relief prayed.

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

(148 N.E.)

Petition by the People, on the relation of | ing relator the relief prayed; in entering I. G. Naftzger, for leave to file an informa- judgment for costs against the relator; in tion on quo warranto against Board of Ed- setting aside the order granting leave to file ucation of Community High School District the information in quo warranto; in disNo. 303, in Whiteside County, was granted, missing the petition for leave to file an inbut on motion of Edwin Arnett and others formation in quo warranto; and in allowvacated, and petition dismissed. Petitioner ing the motion of defendants to set aside appeals. Affirmed. the order granting leave.

Robert W Besse, State's Atty., of Sterling (A. M. Blodgett, of Fulton, of counsel), for appellant.

Earl L. Scott, of Rock Island, and Jacob Cantlin, of Rock Falls, for appellees.

STONE, J. On December 24, 1924, appellant, by Robert W. Besse, state's attorney, filed a petition in the circuit court of Whiteside county for leave to file an information in the nature of quo warranto against the board of education of community high school district No. 303 in that county, alleging that the district is irregular in shape, is not com

pact and contiguous, as required by law, and that the school is maintained at Erie, in said district, which is not the community center thereof; that the district was organized March 20, 1920, and from that time has conducted a high school and levied taxes,

but has not issued bonds. An order was entered allowing the filing of the information, and, on January 5, the appellees filed a motion to vacate that order, and to dismiss the petition. On a hearing this motion was granted, and the petition was dismissed. Appellant brings the cause here for review.

[1] Appellant has filed no bill of excep- | tions with the record. The common-law record, only, has been filed. An examination of the record discloses that the clerk of the trial court has copied into the common-law record the motion of appellees to set aside the order permitting the filing of the information, and to dismiss the petition therefor, together with the affidavits filed in support thereof. No certificate of the trial judge appears in connection therewith. It has been many times held by this court that motions of this character made by the parties in a proceeding at law, and the rulings of the court thereon, are not parts of the commonlaw record, but must be preserved by bill of exceptions. People v. Levin, 313 Ill. 588, 145 N. E. 75; People v. Glasgow, 301 Ill. 394, 134 N. E. 19; People v. Weston, 236 Ill. 104, 86 N. E. 188.

The errors assigned on the record are that the court erred in entering judgment deny

[2] Assignments of error on the rulings of the trial court on motions to set aside an order granting leave to file an information in quo warranto and to dismiss the petition cannot be considered by this court, where they are not preserved by a bill of exceptions or a stenographic report signed by the trial judge. People v. Fling, 303 Ill. 215, 135 N. E. 415; People v. Glasgow, supra; People v. Ritscher, 301 Ill. 40, 133 N. E. 666; People V. Cowen, 283 Ill. 308, 119 N. E. 335.

[3] Where leave has been granted to file an information in quo warranto without notice and hearing on the petition, the court is authorized, during the term in which the leave is granted, to vacate and set aside that order where the same is shown to have been inadvertently or improperly granted under a misapprehension of the law or of the facts. People v. City of Chicago, 270 Ill. 188, 110

N. E. 366.

[4] An examination of the petition and information filed in this case shows that the high school in this district had been conducted for a period of more than four years before an information in quo warranto was sought. A writ of quo warranto is not a writ of right, and delay or acquiescence, on the part of the public in bringing action for such writ, will justify a refusal of leave to file an information. People v. Burrell, 308 Ill. 600, 139 N. E. 865; People v. Jones, 308 Ill. 246, 139 N. E. 403; People v. Burson, 307 Ill. 533, 139 N. E. 139; People v. Stewart, 306 Ill. 470, 138 N. E. 180.

[5] The only error assigned on the common-law record is that the court erred in entering judgment denying the relief prayed. In the absence of a bill of exceptions showing the rulings of the court on motions, it will be presumed that the court was acting within its legal discretion in so doing. It is not apparent from an examination of the information and the petition therefor that the denial of the petition amounts to an abuse of discretion.

The judgment of the circuit court will be affirmed.

Judgment affirmed.

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