gard are sustained by the decisions of this her and through his direct representations court. Du Bois v. People, supra; People v. to the prosecuting witness obtained the conWeil, supra; Id., 244 Ill. 176, 91 N. E. 112. fidence of her father, and having their con[13] Plaintiff in error's final contention is fidence he succeeded in obtaining from them that the verdict is not supported by the evi- more than $75,000 in cash for mining stocks dence, and that the court erred in refusing in different companies, most of which are to direct a verdict of not guilty. The trans-entirely worthless, and that in the consumaction upon which the indictment is based mation of these sales plaintiff in error rewas a sale of mining stocks by plaintiff in sorted to false representations and fraud of error to J. H. Downs, for which Downs paid the grossest character. We have carefully $10,000 by a draft on a bank. This particu-examined the evidence in the case and fully lar transaction was one of a series of sales agree with the jury and the trial court that of stock made by the plaintiff in error to J. plaintiff in error is guilty of the offense H. Downs and his daughter, Mrs. Ora B. charged. Ridgely. Plaintiff in error was a married man, residing in St. Louis, whose business is that of a stock broker. The prosecuting witness, Downs, and his daughter, resided in Assumption, Ill. Plaintiff in error first met Mrs. Ridgely in St. Louis through some friends of hers. She was a widow possessed of some means. Her father was quite wealthy. Plaintiff in error first interested Mrs. Ridgely in some mining properties in Southeast Missouri. She went to see the mines; but, having no knowledge of such properties, she knew nothing of their value except what she was told. She purchased stock to the amount of $2,000 in April, and later plaintiff in error visited her at her home in Assumption and she put in $1,620 more. At this time plaintiff in error asked her if her father had any money, and she told him that he had. He did not meet her father on that visit, but subsequently did meet him. He became a regular visitor at the Downs home. He wrote many letters to Mrs. Ridgely, from which it is apparent that a love affair was mixed up with the mining transaction. Mrs. Ridgely testifies that an engagement to marry had been entered into between her and the plaintiff in error. Mrs. Ridgely received several dividends on her stock of 2 per cent. a month. Where the dividends came from does not appear, but it is very clear that they were not legitimate profits from the mines. The inference is quite reasonable that the payment of these fictitious dividends was merely for the purpose of inducing Mrs. Ridgely and her father to make further investments at the solicitation of plaintiff in error. In August the prosecuting witness, Downs, made his first investment in stocks at the solicitation of plaintiff in error. He put in $9,000. Afterwards he put in $35,000 more, and finally put in $18,000 at another time, $10,000 of which is the basis of the present prosecution. Fictitious dividends were paid to Downs, also, on his first purchase. The details of all these various transactions are in the record. To rehearse them in a chronological order would unnecessarily extend this opinion. The sum of the whole matter is that plaintiff in error made love to Mrs. Ridgely, secured her confidence, and through The judgment is affirmed. (255 Ill. 34) MORGAN CREEK DRAINAGE DIST. v. (Supreme Court of Illinois. June 21, 1912.) 1. DRAINS (§ 82*)-ASSESSMENTS-REVIEWREVERSAL-REMAND WITHOUT DIRECTIONS— POWER OF TRIAL COURT. Where the Supreme Court, on writ of error to review a judgment of the county court confirming an assessment of benefits to land in a drainage district, reversed the judgment and remanded the cause by a general order, without directions, the county court must proceed in Court and the statute (Drainage Act [Hurd's accordance with the decision of the Supreme Rev. St. 1911, c. 42] §§ 60, 61), providing for a reassessment where an assessment is invalid, and where defects may be cured. Dig. 88 81, 83-87; Dec. Dig. § 82.*1 [Ed. Note. For other cases, see Drains, Cent. 2. DRAINS (§ 82*)-REASSESSMENT CONFIRMATION-REVIEW. The court reviewing a judgment confirming a reassessment of benefits to land in a drainage district, levied after reversal of a judgment confirming the original assessment, will only consider such errors as have arisen since the judgment of reversal, since a party bringing a writ of error to the Supreme Court must present all the existing grounds for reversal of the judgment complained of. [Ed. Note. For other cases, see Drains, Cent. Dig. §§ 81, 83-87; Dec. Dig. § 82.*] 3. DRAINS (§ 82*)-ASSESSMENTS CONFIRMATION-JUDGMENTS OF REVERSAL-EFFECT. A judgment of the county court confirming an assessment of benefits to land in a drainage district is a judgment in rem against the tracts severally, and a writ of error by an owner of one tract brings up for review only the judg ment against such tract; and, where the assessment as to such tract is set aside, the county court, on reassessing the tract, must observe the rule that an assessment cannot exceed the timated cost of the work, including the expensbenefits nor the proportionate share of the eses of the proceeding. [Ed. Note. For other cases, see Drains, Cent. Dig. §§ 81, 83-87; Dec. Dig. § 82.*] 4. DRAINS ($ 83*)-REASSESSMENT DAMAGES. been constructed on a right of way released to Where ditches of a drainage district have the district by an owner of land, who succeeds in reversing the confirmation of the original assessment of benefits, a reassessment may be made without any further proceeding to obtain a right of way; but, where other land has been taken for ditches, the district may not levy an *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes assessment until the amount of damages has been determined. [Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 322-328; Dec. Dig. § 83.*] three reasons: (1) The oath taken by the commissioners was not sufficient in law; (2) the assessment was levied on lands taken for the use of the district, and included benefits 5. JUDGMENT (§ 725*)-CONCLUSIVENESS-Es- to such lands; (3) the assessment was for a TABLISHMENT OF DRAINAGE DISTRICTS. A judgment allowing damages for a right of way for ditches of a drainage district is conclusive against a subsequent proceeding to assess the land for benefits, since, where there åre benefits and damages, the benefits must be considered in determining whether there is a balance of damages to be paid. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1255-1257; Dec. Dig. § 725.*] 6 DRAINS (8 83*)-REASSESSMENTS-VALID ITY. Where an owner of land, who had released to a drainage district a right of way for ditches, obtained, on writ of error, a judgment reversing the confirmation of the original assessment, and the ditches constructed after the original judgment of confirmation were not confined to the right of way, but extended over other land of the owner, a reassessment, excepting the right of way for ditches, could not be sustained, because land cannot be assessed until the amount of damages has been determined. [Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 76-81; Dec. Dig. § 83.*] greater sum than the estimated cost of the work, which was the limit of any assessment that could be legally levied. [1] The cause was remanded to the county court by a general order, without any directions; and under that order the county court was bound to proceed in accordance with the statute and the law as declared in the opinion filed in the cause. Morgan Creek Drainage District v. Hawley, 240 Ill. 123, 88 N. E. 465. After the original assessment was confirmed, Frank O. Hawley conveyed the lands, in separate tracts, to the other plaintiffs in error, C. W. Rolfe, William E. Coplin, and Samuel Herron, and the ditches of the district were also constructed across the lands after such confirmation. The remanding order was filed in the county court on November 10, 1909, and notice was served on the attorney for Hawley that on Novem 7. DRAINS (§ 57*)—ESTABLISHMENT-ESTOP-ber 29, 1909, a motion would be made to re PEL. Where an owner of land released to a drainage district a right of way for ditches, but the district drove rows of stakes on the land in different lines, the owner, though seeing the stakes, was not estopped from asserting that the right of way on the line of the stakes had not been obtained; and he did not forfeit his right to compensation. [Ed. Note. For other cases, see Drains, Cent. Dig. §§ 67, 69; Dec. Dig. § 57.*] 8. DRAINS (§ 57*)-COMPENSATION-RELEASE OF RIGHT OF WAY. docket and reinstate in the county court the cause, and leave would be asked to file a petition for a reassessment. Pursuant to the notice, the cause was reinstated in the county court, and by leave of court a petition was filed, which recited the original assessment, the conveyance of a portion of the land to C. W. Rolfe, and the reversal of the judgment and remandment of the cause, and praying for an order directing the commissioners to reassess the property. An assessment roll was made by the commissioners, and, the county judge being a property owner in the district, a change of venue was taken, by consent, to the circuit court. Objections to confirmation were filed, and after the court had discharged two commissioners and appointed others in their places, and one of the new commissioners had resigned and another had been appointed in his place, Error to Circuit Court, Kendall County; a final assessment roll was filed, upon which Mazzini Slusser, Judge. Where an owner releases to a drainage district a right of way for ditches, compensation cannot be allowed him, or any of his grantees, without reference to the time of the actual taking of the land and the digging of the ditches, though the right to compensation and damages for the taking of land for ditches accrues at the time of the digging of the ditches. [Ed. Note.-For other cases, see Drains, Cent. Dig. §§ 67, 69; Dec. Dig. § 57.*] Proceedings by the Morgan Creek Drainage District for confirmation of reassessment of lands of Frank O. Hawley and others. There was a judgment of confirmation, and defendants bring error. Reversed and remanded. a hearing was had. The objections of plaintiffs in error were overruled, a judgment of confirmation was entered, and a writ of error was sued out to review the judgment. [2] The plaintiffs in error urge a reversal of the judgment of confirmation for alleged errors concerning matters contained in the A. H. Switzer, for plaintiffs in error. John record at the time it was reviewed on the K. Newhall, for defendant in error. CARTWRIGHT, J. The county court of Kendall county confirmed an assessment against a large body of land owned by Frank O. Hawley, one of the plaintiffs in error, levied by the Morgan Creek Drainage District, the defendant in error, and the record was brought to this court for review, pursuant to a writ of error sued out by him. The judgment of confirmation was reversed for former writ of error. That writ of error brought the case, as to Hawley, to this court in its entirety; and it was the duty of the plaintiff in error to present all the existing grounds for the reversal of the judgment. A party cannot, on a second writ of error, take advantage of any error which existed and might have been assigned on the former record. Dilworth v. Curts, 139 Ill. 508, 29 N. E. 861. No alleged errors will be considered, except those claimed to have arisen since For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the judgment was reversed, and the cause re- | Those portions of the lands, not embraced manded. [3] It is also contended by the plaintiffs in error that by the former judgment of this court the judgment of confirmation as to every tract of land in the district was reversed, and that their lands could not be reassessed without reassessing all other lands. The judgment of confirmation was a judgment in rem against the tracts of land severally; and the writ of errer brought up nothing, except the judgment against the lands of Frank O. Hawley. If there were errors which other owners might have taken advantage of, but they were satisfied with the assessment, it was not the privilege of Hawley to raise objections for them. It did not injure him if other owners saw fit to pay more than could have been legally charged against their lands; and, both by the law and a special provision of the Drainage Act, the judgment of this court did not affect the assessment against the lands of any one but Hawley. Vandalia Drainage District v. Hutchins, 252 Ill. 259, 96 N. E. 866. On the reassessment the rules of law were to be observed that the assessment should not exceed the benefits to the lands nor their proportionate share of the estimated cost of the work, including the expenses of the proceeding, but that was the only right or interest of the plaintiffs in error. [4] Before the original assessment, Frank O. Hawley, one of the plaintiffs in error, who then owned the land, released to the district the right of way over the same for the ditches, in accordance with the maps, plans, and profiles of the district, and additional lands upon which to deposit the earth excavated, far enough from the channel to leave a 6-foot berme on each side. The release had the same effect as though the plans, maps, and profiles, which were on file and had been approved by the court, had been copied in it. They called for a right of way for the main ditch of 70 feet in width and a right of way 50 feet in width for each of two branches. The ditches were constructed during the summer of 1908, and the plaintiffs in error introduced evidence that the ditches were only in part within the right of way released; that the center line of the main ditch at the north end was 14 feet west of the center line as shown by the maps and plans, and in its southerly course gradually diverged until, at the south end, the center line was 212 feet east of the center line as shown by the maps and plans; that in the north branch the center line of the ditch, throughout its entire length, was 25 feet east of the center line shown by the maps and plans; that the right of way of the main ditch, including spoil banks, was 120 feet wide, on the south branch from 90 to 110 feet wide, and on the north branch from 90 to 100 feet wide; and that the dirt piled on the land was from 4 to 6 feet high, so as to prevent cultivation, unless leveled. within the maps, plans, and profiles on file and approved by the court, and which were not included in the release of Hawley, had never been acquired by the district. No compensation had been agreed upon, assessed, or paid for land so taken, and the question of damages that might result to the remainder of the lands had not been determined. If the ditches had been constructed upon the right of way released by Hawley, a reassessment could have been made without any further proceeding to obtain right of way; but, if other land was taken for ditches, the district could not levy an assessment on the lands through which the ditches ran until the question of compensation and damages had been determined. City of Chicago v. Mecartney, 216 Ill. 377, 75 N. E. 117; City of Joliet v. Spring Creek Drainage District, 222 Ill. 441, 78 N. E. 836. [5, 6] It is manifest that this could not be done, because if damages are allowed to a tract of land the judgment is conclusive against a subsequent proceeding to assess the same land for benefits. If there are benefits and damages, the benefits are necessarily taken into account in determining whether there is a balance of damages to be paid, and a judgment for damages is conclusive that they exceed all benefits to the land. The reassessment excepted, on the face of the roll, the right of way for the ditches; but that did not obviate the objection just stated. [7] It seems that rows of stakes were driven on the land in different lines from the maps and plans presented to and approved by the court and referred to in the release; but the fact that Hawley and his grantees could see the stakes raised no estoppel against him or them to claim that the right of way on the line of the stakes had not been obtained. If they could not object to the location of the ditches as actually constructed, because they saw the work done, they would not thereby forfeit the right to compensation. The defendant in error contends that the proceeding was free from error, because it was required that the reassessment should be under the remanding order. It is true that it was necessary to reinstate the cause in the county court and obey the remanding order; but that order gave no direction as to what should be done, and the statute controlled the further proceeding. The ditches were constructed after the original judgment of confirmation; and necessarily the fact that they were constructed, in part, on land not acquired by the district was not and could not have been considered. Counsel for defendant in error regards the decisions in Vandalia Drainage District v. Vandalia Railroad Co., 247 Ill. 114, 93 N. E. 53, and Vandalia Drainage District v. Hutchins, 252 Ill. 259, 96 N. E. 866, as holding that all that was necessary was to file the petition for reassessment. In the first of those cases, there had been an assess- mined in favor of those who owned the land ment, and the judgment was reversed by this at the time they were taken by the district. court on October 24, 1905, because the as- It was authorized to take private property sessment of benefits included lands taken by for public use for its ditches; and, as the the district for its levee. Hutchins v. Van- improvement was permanent, the right to dalia Drainage District, 217 Ill. 561, 75 N. compensation and damages accrued to the E. 354. No remanding order was ever filed owners at the time the ditches were dug. in the county court; and, the cause not hav- It does not appear from the record when the ing been reinstated therein, no further ac- conveyances were made by Hawley with reftion was taken under that order. Three erence to the time when the land was actuyears afterward, although the county court ally taken and the ditches dug; but, so far had not regained jurisdiction of the cause, as the right of way was released by him, no that court added the assessment which had compensation could be allowed to any of the been set aside to an additional assessment, plaintiffs in error. which also had been set aside in Vandalia Drainage District v. Hutchins, 234 Ill. 31, 84 N. E. 715, and a third assessment for benefits, and confirmed the whole. It was held that the court erred in combining the assessments; that the proceedings were separate and distinct, and must be prosecuted as such; that section 18 of the Drainage Act (Hurd's Rev. St. 1911, c. 42) only authorized prior assessments to be included with subseWhere the only question involved on appeal quent ones, when such prior assessments was the complainant's right to a lien for taxes were void and unpaid on account of some ir- paid by him on the defendant's interest in the regularity in the proceedings not affecting land partitioned, the appeal should have been the merits; that the first assessment was the Supreme Court, though a freehold was inprosecuted to the Appellate Court, and not to not unpaid because of a mere irregularity involved in the original suit. The judgment is reversed, and the cause remanded. Reversed and remanded. (255 III. 41) SCHNEIDER v. McDONALD et al. (Supreme Court of Illinois. June 21, 1912.) COURTS (§ 219*)-APPELLATE COURT-Juris DICTION. Appeal from Superior Court, Cook County; Richard E. Burke, Judge. Bill for partition by George H. Schneider, trustee, against Louis A. McDonald and others. From a decree establishing a lien upon their interest in the real estate, Jacob Glos and another appeal. Transferred to the Appellate Court, First District. John R. O'Connor, for appellants. A. W. Martin and Edward H. S. Martin, for appellee. the proceedings, but because the amount as- [Ed. Note.-For other cases, see Courts, Cent. sessed included an assessment of benefits Dig. §§ 539-574; Dec. Dig. § 219.*] against about 14 acres of land which the district had taken for a right of way; and that the only method by which the lands could be assessed for their just proportion of the first assessment was by proceeding under the mandate of this court. The assessments being separate and distinct, it is perfectly clear that no further proceeding could be had on the first assessment, except by filing the remanding order, having the cause reinstated in the county court, and proceeding under that order. The decision had no relation to the question of the form or method of procedure upon the reinstatement of the case in the county court. A judgment confirming one of those three assessments was reviewed in the second case relied upon by counsel; and the objection that the assessment was spread by a jury in accordance with the statute as amended in 1909, was overruled, and the judgment affirmed. It was held in that case that it was the duty of the county court to follow the opinion of this court and the statute in force at the time. Neither case sustains the claim of counsel. PER CURIAM. This was a bill in chancery, filed by the appellee against Louis A. McDonald and others, in the superior court of Cook county, for the partition of lots 18, 19, 20, and 21 of Bennett's subdivision of lot 7 in block 5, in Washington Heights, a subdivision of section 18, township 37 north, range 14 east of the third principal meridian, Cook county, Ill., and for other relief. An answer and replication were filed, and a decree was entered finding the complainant was the owner of the undivided one-half of said premises; that Jacob Glos was the owner of the undivided one-third and Emma [8] Sections 60 and 61 of the Drainage J. Glos was the owner of the undivided oneAct provide for a reassessment where an as- sixth of said premises; that the complainsessment is invalid as to one or more tracts ant had paid taxes upon the undivided inof land, and where defects or omissions may terests of Jacob Glos and Emma J. Glos in be cured. They point out the method to be said premises to the amount of $359.99, and pursued in this case after the district shall that he was entitled to a lien on the undihave acquired any right of way not released vided one-third of said premises owned by by Hawley, and had the compensation and Jacob Glos and on the undivided one-sixth the damages, if any, for such lands deter- of said premises owned by Emma J. Glos for For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes said amount, with interest thereon at 5 per cent. per annum from July 26, 1911, to reimburse him for the amount so paid out for taxes upon the undivided one-half of said premises, and that he was entitled to a decree of partition. Jacob Glos and Emma J. Glos have prosecuted an appeal to this court, and have assigned as error the action of the trial court in establishing a lien upon their interest in said real estate in favor of the complainant for the amount of taxes so found to have been paid by him upon said premises. The question whether the complainant was entitled to a lien upon the undivided onehalf of said premises owned by Jacob and Emma J. Glos for the amount of taxes so paid out by him and to be reimbursed therefor by Jacob and Emma J. Glos is the only question discussed in the briefs filed in this court. The partition suit involved a freehold, but the question whether the complainant was entitled to be reimbursed for taxes paid out by him upon the property partitioned. as against the interests of Jacob and Emma J. Glos, and to have the amount so paid out by him established as a lien upon the interests of Jacob and Emma J. Glos in said premises, does not involve a freehold. No freehold being involved in this appeal, the same should have been prosecuted to the Appellate Court. The clerk of this court will transmit to the clerk of the Appellate Court for the First unless the time for completion was extended by the architect, who might determine what period thorizes the architect to determine the length of delay was chargeable to the contractor, auof the delay for which the contractor is liable to the penalty, and his certificate was conclusive in the absence of fraud or mistake. Cent. Dig. §§ 1292-1302, 1308-1310, 1312[Ed. Note.-For other cases, see Contracts, 1316, 1326-1338, 1340-1342, 1344-1346, 1350, 1351; Dec. Dig. § 284.*] 3. APPEAL AND ERROR (§ 846*)-QUESTIONS REVIEWABLE-PROPOSITIONS OF LAW. Where the only questions in the case are questions of law, and the decision of the trial court respecting them is shown by the record, the decision of the trial court is reviewable, though the defeated party does not submit propositions of law embodying his theory applicable to the facts. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3347-3362, 3366; Dec. Dig. § 846.*] Error to Branch Appellate Court, First District, on Appeal from Municipal Court of Chicago; Hosea W. Wells, Judge. Action by Roswell W. Weld against the First National Bank of Englewood. There was a judgment of the Appellate Court affirming a judgment for plaintiff, and defendant appeals. Reversed and remanded. William A. Doyle (Joseph J. Thompson, of counsel), for plaintiff in error. McEwen, Weissenbach, Shrimski & Meloan (Israel Shrimski, of counsel), for defendant in error. CARTWRIGHT, J. A branch of the Ap District all the files in this case, together pellate Court for the First District affirmed a with the order transferring the cause. Cause transferred. (255 Ill. 43) judgment recovered by defendant in error on a trial by the court without a jury in the municipal court of Chicago against plaintiff in error for $1,322.52, the balance claimed WELD v. FIRST NAT. BANK OF ENGLE- under a contract by which the defendant in WOOD. (Supreme Court of Illinois. June 21, 1912.) 1. CONTRACTS (§ 287*)-BUILDING CONTRACTS -CERTIFICATE OF ARCHITECT-CONSTRUC TION. A building contract provided for payments on certificates of the architect, his final certificate to be conclusive evidence of perform ance, and stipulated that the contractor should pay a specified sum per day for delay in the completion, unless allowance therefor was made by the architect. The architect gave a final certificate that the contractor was entitled to a final payment, disclosing the contract price, the amount of former certificates, and the amount of the final certificate, and declaring that the contractor was 48 days beyond the time specified for completion. Held, that the certificate showed that the owner was entitled to deduct from the amount of the certificate the penalty provided for delay in completing the work. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1308, 1309, 1312-1316, 1318-1338, 1340-1342, 1344-1346, 1348, 1350; Dec. Dig. § 287.*] 2. CONTRACTS (§ 284*)-BUILDING CONTRACTS -ARCHITECTS' CERTIFICATES-CONCLUSIVE error was to furnish the material and perform the granite work for a bank building for plaintiff in error. A petition for a writ of certiorari was presented to us and granted, and the record is in this court for review. The plaintiff offered in evidence the written contract upon which the suit was brought, which provided that the work should be done for a total contract price of $5,500, under the direction of the architect, upon whose certificates payments were to be made, and the final certificate of the architect was to be conclusive evidence of the performance of the contract. The work was to be wholly finished by December 1, 1906, and if not completed by that time the plaintiff was to pay to the defendant $25 per day for each and every day thereafter that the work remained unfinished, as and for liquidated damages. Following the agreement for damages for delay was this provision: "Art. VII.Should the contractor be delayed in the prosecution or completion of the work by the act, neglect or default of the owner, of the architect, or of any other contractor employed by the owner upon the work, or by any *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |