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(146 N.E.) studio and attempted the photographic busi O'Donnell & Toolen, of Chicago (Joseph R. ness, but Ayers was unable to do the work Roach, of Chicago, of counsel), for defendant and abandoned it. He bought a restaurant in error. outfit, which his wife ran. He made nothing in his photographic business, and it does THOMPSON, J. This writ of error is not appear whether his restaurant venture prosecuted to review the decree of the cirwas profitable; but that is immaterial. He cuit court of Cook county dismissing for was secretary for his local union and was want of equity a bill for partition filed by paid $30 per month, but his wife helped him plaintiffs in error. and did much of the work. He was elected The real estate in question is property fortax collector-a position which paid 2 per merly owned by defendant in error, Peter cent. on the amount of taxes collected. He Miller, and his brother, Michael Miller, as hired others to do most of the work of collect- tenants in common. They came to this couning the tax. Plaintiff in error contends these try from Greece more than 20 years ago, and things show Ayers was not wholly and per- engaged in business as partners. In 1910 manently incapable of work and the award they owned the property in question and anwas not justified. The amount and char- other property in Chicago. About that time acter of the work Ayers has been able to Michael married Cecelia Spizzirri. Shortly do, as shown by the testimony, does not after this marriage the partnership was distend to show that he is not "permanently in- solved, and each of the partners thereafter capable of work." Plaintiff in error's medical conducted his separate business. About witnesses so testified.

three years after this settlement Michael reThe testimony abundantly sustains the turned to his native country, and there died. award, and there is no error of law in the Defendant in error contends that Michael record which would justify reversing the and his wife, Cecelia, executed and delivered judgment of the circuit court confirming it. to him a warranty deed conveying to him all Judgment affirmed.

of their interest in the property at the time of the dissolution of the partnership. Plaintiffs in error deny that the deed to the prop

erty in question was executed as claimed, (315 Ill. 600)

and allege that the signatures "Mike Miller" MILLER et al. v. MILLER. (No. 16175.)

and "Celia Miller" appearing on the deed

are forgeries. L. Papadimitris, who has (Supreme Court of Illinois. Feb. 17, 1925.)

been connected with the office of the Greek 1. Equity 392–Denial of rehearing for mere- consul at Chicago for 24 years, testified that

ly cumulative evidence of experts, whose tes. he prepared the deed in question; that it timony on original hearing petitioner showed was signed by Michael Miller and his wife, no attempt to secure, not abuse of discretion. Cecelia, in his presence; and that he took

Denial of rehearing for merely cumulative their acknowledgment as a notary public. evidence of handwriting experts, whose testi- Two other witnesses, who were present at mony on original hearing petitioner showed no the time the deed was executed, corroborated attempt to secure, held not abuse of discretion. his statement. Cecelia is the only witness 2. Deeds em 207-Decree dismissing bill held who directly contradicts this testimony. She

not manifestly against weight of evidence, and denies that she signed the deed, and expresshence affirmed.

es the opinion that the signature “Mike MilDecree dismissing bill for want of equity ler” is not that of her deceased husband. held not manifestly against weight of evidence Two other witnesses express the opinion on issue whether purported signatures of plain that the signature “Celia Miller" is forged. tiff and her deceased husband to deed to defend- The chancellor, who saw these witnesses and ant were genuine.

heard them testify, held that the signatures

were genuine. 3. Appeal and error m1078(1)-Questions of procedure, not raised and argued, not dis

[1] During the term a petition for rehearcussed.

ing was filed by plaintiffs in error, and on Questions of procedure, not raised and ar

the hearing on this petition two expert witgued, need not be discussed, though apparent

nesses testified that the signatures to the on face of record.

deed were not made by the same persons as

other signatures proven to be the genuine Error to Circuit Court, Cook County: This evidence was merely cumulative, and it

signatures of Michael and Cecelia Miller. Thomas G. Windes, Judge.

was not shown that plaintiffs in error made Suit by Cecelia Miller and others against any attempt to secure the testimony of these Peter Miller. Bill dismissed, and plaintiffs experts on the original hearing. The chanbring error. Decree affirmed.

cellor did not abuse his discretion in deny. Forrest Garfield Smith, of Chicago (O'Bri- ing the rehearing. en, Prystalski & Owen, of Chicago, of coun [2] This court cannot say, from a full exsel), for plaintiffs in error.

amination of the record, that the decree of

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the chancellor is manifestly against the R. W. Olmsted, of Rock Island, Carl V. weight of the evidence. That being the state Nyman, of Rockford, and Frank L. Flood, of the record, the decree must be affirmed. of Morris, for appellants.

[3] Plaintiffs in error have filed in return Frank H. Hayes, of Morris, for appellee. to the writ of error the transcript of the record of the original decree and of the record PER CURIAM. Appellee, Margaret Wiof the order denying the rehearing, and have liams, filed her bill in the circuit court of incorporated what purports to be a certifi- Grundy county, alleging that she was mar. cate of evidence in each record, and counsel ried in 1906, and with her husband estabfor both parties have argued the case as a lished a home in the city of Chicago; that consolidated cause, and we have so consid- prior to that time she had lived with her faered it. There are several questions of pro- ther, Isaac Hoge, on a farm in Grundy councedure apparent on the face of the record ty; that her father urged her and her huswhich, if decided, would defeat plaintiffs in band to leave Chicago, and return to Grundy error, but, inasmuch as these questions are county, and take charge of one of his farms; not raised and argued, we do not discuss that he told her, if she would lease the them. The only questions considered are Foley place, consisting of 300 acres, and imthose specifically discussed and decided. prove it and make it her home, he would

The decree of the circuit court is affirmed. give it to her at his death; that she ac Decree affirmed.

cepted his offer, and moved to the Foley place, and made valuable improvements

thereon, to the extent of more than $7,000; (316 Ill. 23)

that her father died in August, 1922, seized WILLIAMS v. DE ROO et al. (No. 15632.) of 1,150 acres of land in Grundy county, Ill.,

3,040 acres of land in Pawnee county, Kan., (Supreme Court of Illinois. Feb. 17, 1925.) and 926 acres of land in Brazoria county, 1. Appeal and error Om515(2)-Certificate of Tex.; that her father valued his Kansas evidence not part of record, where not filed lands at one-third the value of the Illinois with clerk of court.

lands; that he left surviving him his widow Certificate of evidence, though signed and and seven children; that he divided his Illisealed by chancellor, held not part of record, nois and Kansas lands among his seven chilunless filed with clerk of court within time dren; that he intended to make an equal allowed by order for appeal.

division of said lands; that he gave to the

brother and each of the five sisters of ap2. Appeal and error en 520(3)–Affidavit sup

porting motion for change of venue, not pre- pellee lands approximately equal in value to served by certificate of evidence, held 'not 300 acres of the Illinois land owned by him; part of record for review.

that he intended by his will to give her the Affidavit supporting motion for change of Foley place; that in writing the will the venue, although copied into record, helă not. scrivener erred in describing the lands depart of it for purpose of review, unless pré-vised to her, and included in the devise to served by certificate of evidence.

her the northeast quarter of section 21,

which her father did not own, and omitted 3. Wills On 58 (2)-Findings held to justify order that oral contract of father with the southeast quarter of the same section, daughter for grant of land be performed.

which he did own, and which was a part of Findings that father offered daughter farm the Foley place; that her father disposed of if she and husband would live on it, that daugh- all of his lands under his will, excepting ter accepted offer and made valuable improve- said southeast quarter of section 21, which ients, that under father's will part of farm is the larger and most valuable part of the was omitted from description and not devised, Foley place; that the omission of this quarby mistake of scrivener, and that each of chil- ter section of land leaves the lands conveyed dren received fair share of father's estate, to her lying in two separate tracts, one a held to sustain order that heirs comply with 60-acre timber tract, lying east of the quarfather's contract and deed part of farm, omit- ter section, and the other an 80-acre tract, ted from will, to daughter.

lying south of the quarter section; that her 4. Appeal and error w907(3)-Evidence pre- three full sisters and her half-brother, Isaac

sumed to support findings, where certificate Hoge, Jr., have recognized her claim to this was not incorporated in record.

quarter section of land and have quitclaimed Where certificate of evidence is not prop-.to her their interest in the same; that aperly incorporated in record, evidence is pre-pellants, her half-sisters, Mina L. De Roo sumed to sustain findings.

and Mildred Nyman, and her stepmother, Appeal from Circuit Court, Grundy Coun- her claim to the land. She prays that the

Laura Hoge, have refused to acknowledge ty; Samuel C. Stough, Judge.

oral agreement made and entered into with Suit by Margaret Williams against Mina her father be enforced, and that a deed be L. De Roo and others. Judgment for plain- delivered to her conveying title to the southtiff, and defendants appeal. Affirmed. east quarter of section 21, township 34 north,

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(146 N.E.) range 6 east of the third principal meridian, our consideration. Du Quoin Waterworks in Grundy county. Appellants answered the Co. v. Parks, 207 Ill. 46, 69 N. E. 587; Lange bill, and there was a hearing before the v. Heyer, 195 Ill. 420, 63 N. E. 173. The chancellor. At the conclusion of the hearing question is not presented for review. a decree was entered in accordance with [3] The chancellor in his decree found the prayer of the bill, and this appeal fol- from the evidence that Isaac Hoge, the falowed.

ther of appellee, about the 1st day of Au[1] The appeal was granted to this court gust, 1912, offered to give her the Foley on condition that a bond be filed within 30 place, which consisted of 300 acres of land days from the date of the decree and that a in Grundy county, including the southeast certificate of evidence be presented within quarter of section 21 here involved, if she 70 days from said date. The decree was en and her husband would leave Chicago, and tered July 6, 1923, and the bond was filed Au- move to the Foley place, and improve it, and gust 4 following. A certificate of evidence make it their home; that she accepted the was presented and signed by the chancellor offer, and moved to the farm March 1, 1913, September 11, but it does not appear from and continued to live on it until the death the record that it was ever filed with the of her father, and until the time of the declerk of the court.

cree; that from time to time she made val.
The question of what is the record may uable improvements on said land and fully
be tried by the record at any time. Field & performed her part of the contract; that
Co. v. Nyman, 285 Ill. 306, 120 N. E. 756; Hoge devised all of the lands owned by him,
Haines v. Danderine Co., 248 Ill. 259, 93 N. except the quarter section here involved, and
E. 743. A certificate of evidence, like a bill | because of a mistake by the scrivener in
of exceptions, is designed to preserve and writing his will be conveyed to appellee the
make a part of the record proceedings not northeast quarter of section 21, which he did
otherwise of record, and that which is prop- not own, instead of the southeast quarter
er matter for a certificate of evidence, which of said section, which he did own, and which
is not contained in it, is to be taken as not was the most fertile portion of the Foley
having occurred. Yott v. Yott, 257 Ill. 419, farm; that four of the children of Hoge
100 N. E. 902. A certificate of evidence does have quitclaimed their interest in said south-
not become a part of the record until it is east quarter of section 21, pursuant to the
placed on file. Hall v. Royal Neighbors, 231 agreement made by their father, in his life-
III. 185, 83 N. E. 145; Conductors' Benefit time, with appellee; that the other two heirs
Ass'n v. Leonard, 166 Ill. 154, 46 N. E. 756. have refused to convey their interest to ap
Though a certificate of evidence has been pellee in compliance with the contract of
signed and sealed by the chancellor within their father; and that complainant is en-
the time fixed by the order of the court for titled to a deed conveying the two-sevenths
filing a certificate, it does not become a part of said quarter section claimed by appel-
of the record unless it is filed with belants, Mina L. De Roo and Mildred Nyman.
clerk of the court in which the cause was The decree orders that the oral contract be
heard, within the time fixed by the order. performed and that proper deeds be executed
Hall v. Royal Neighbors, supra; Illinois Im- and delivered.
provement Co. v. Heinsen, 271 Ill. 23, 111 [4] Inasmuch as the record filed in this
N. E. 117; Holmes v, Parker, 1 Scam. 567. court does not contain the evidence heard

[2] The first error assigned and argued is by the chancellor, it will be assumed that the
that the chancellor erred in denying the evidence was sufficient to sustain the find-
application for a change of venue. While ings of fact recited in the decree, Notwith-
the motion for a change of venue becomes standing the failure to have the certificate of
a part of the record in a chancery case when evidence properly incorporated in the record,
it is filed, the affidavit supporting the mo- we have read what purports to be the cer-
tion, which the statute' requires shall be tificate of evidence attached to the record
attached to it, does not become a part of filed, and find that the evidence contained
the record, unless preserved by a certificate therein fully sustains the finding of the
of evidence. Bellinger v. Barnes, 223 111. 121, chancellor.
79 N. E. 11; Van Pelt v. Dunford, 58 I11. 145. Since we find no reversible error in the
The fact that the affidavit in support of the record, the decree of the circuit court is
motion has been copied into the record by affirmed.
the clerk does not bring it before us for Decree affirmed.

а

(315 Ill. 437)

personal property tax; that Lew A. Hendee, MURRAY V. HAGMANN et al. (No. 16200.) | the county clerk, had issued a certificate of (Supreme Court of Illinois. Feb. 17, 1925.) the sale to Churchill, and that, as against the

lien of the trust deed, the county court's 1. Courts en 219(3)-Jurisdiction of appeals judgment and the tax sale to Churchill, as and writs of error in classes of cases which far as they include the personal property go direct to the Supreme Court cannot be taxes, are void. Pearsall, the county collectexercised by Appellate Courts.

or, Hendee, the county clerk, and Churchill Jurisdiction of appeals and writs of error in classes of cases which go directly to the were made additional parties defendant to Supreme Court, though not withheld from Ap- the bill

, and an order enjoining a sale upon pellate Court by Const. art. 6, § 11, providing the judgment and the issuance of a tax deed for creation of such courts, cannot be exercised upon the certificate of sale to the extent of by Appellate Courts, because not conferred on the delinquent personal property taxes was them by Appellate Court Act, § 8, as amended sought. A temporary injunction in accordby Laws 1887, p. 156, specifying jurisdiction of ance with the prayer of the bill was issued. such Appellate Courts.

Pearsall and Hendee moved to dissolve the 2. Appeal and error Om66—Final judgment es- | injunction; but the motion was denied, and

sontial to jurisdiction of Supreme Court on they appealed directly to this court. appeal.

The order from which this appeal is taken Under Practice Act, $ 118, the Supreme is interlocutory. To sustain their appeal apCourt has no jurisdiction on appeal, unless pellants contend (1) that the instant case rethere has been a final judgment settling the lates to the revenue; and (2) that section 11 rights of the parties in respect to the subject of article 6 of the Constitution, and sections matter, and concluding them until it is reversed

118 and 123 of the Practice act (Smith-Hurd or set aside.

Rev. St. 1923, c. 110), are in pari materia, and 3. Courts w219(1) - Jurisdiction of appeal construed together authorize an appeal di

from order denying motion to dissolve tem rectly to this court from an order denying porary injunction is in Appellate Court, and

a motion to dissolve a temporary injunction not Supreme Court.

in such a case. Under Practice Act, $ 118, providing for

[1] It is unnecessary to consider or deterappeals to Supreme Court from final judg

The sec ments, the Supreme Court has no jurisdiction mine appellants' first contention. on appeal from order denying motion to dis- tion of the Constitution invoked provides solve temporary injunction; jurisdiction that: thereof being in Appellate Court under section

"Appellate Courts, of uniform organization 123; such order not being a final judgment.

and jurisdiction, may be created in districts Appeal from Circuit Court, Lake County; formed for that purpose, to which such appeals Claire C. Edwards, Judge.

and writs of error as the General Assembly

may provide may be prosecuted from circuit Bill by Fred L. Murray against Henry C. ! and other courts, and from which appeals and Hagmann and others. From order denying writs of error shall lie to the Supreme Court. motion to dissolve temporary injunction, de- in all criminal cases, and cases in which a franfendants Ira E. Pearsall and Lew A. Hendee involved, and in such other cases as may be

chise or freehold or the validity of a statute is appeal. Transferred to Appellate Court.

provided by law.” Ashbel V. Smith, State's Atty., of Wauke. gan (Sidney H. Block, of Waukegan, of coun

Under this constitutional provision the sel), for appellants.

General Assembly has the power to prescribe Eugene M. Runyard, of Waukegan, for ap- the appeals which may be taken to and the pellee.

writs of error which may be prosecuted from

the Appellate Courts. The act which estabDE YOUNG, J. Fred L. Murray filed his lished the Appellate Courts became effective bill to foreclose a certain trust deed against on July 1, 1877. Laws 1877, p. 69. The eighth Henry C. Hagmann and others, in the circuit section of that act as amended (Laws 1887, court of Lake county. Later, pursuant to p. 156) provides that those courtsleave granted, he filed amendments to his bill “shall exercise appellate jurisdiction only, and which charged that Ira E. Pearsall, the have jurisdiction of all matters of appeal or county collector, had attached to the real writs of error from the final judgments, orders estate described in the bill $849.39, with in- or decrees of any of the circuit courts, terest, costs, and penalties, for a delinquent in any suit or proceeding at law, or in chancers personal property tax; that he had obtained other than criminal cases, not misdemeanors. a judgment in the county court therefor, and and cases involving a franchise or freehold or had advertised for sale and was about to sell the validity of a statute. Appeals and writs of the real estate to pay the tax; that in the

error shall lie from the final orders, judgments or decrees of the circuit

courts year 1922 the same real estate was sold to

directly to the Supreme Court, in all Fred W. Churchill for nonpayment of taxes, criminal cases and in cases involving a fradwhich sale included $770.96 for an unpaid chise or freehold or the validity of a statute."

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*

crees.

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(146 N.E.) Jurisdiction of appeals and writs of error ( right of appeal to any court. Damon v. in the classes of cases which go directly to Barker, 239 Ill. 637, 88 N. E. 278. Moreover, the Supreme Court was not therefore with it is concerned with final, and not with interheld from the Appellate Courts by the Con- locutory orders, judgments, and decrees. stitution, but cannot be exercised by those There must be a final judgment or decree courts, because it was not conferred upon which settles the rights of the parties in rethem by the General Assembly.

spect to the subject-matter of the suit and Section 8 of the Appellate Court Act ap- concludes them until it is reversed or set plies only to final judgments, orders, or de- aside to authorize an appeal to this court.

Prior to July 1, 1887, no appeal could People v. Drainage Com’rs, 282 Ill. 514, 118 be taken in this state from any interlocutory N. E. 742; Mussey v. Shaw, 274 Ill. 351, 113 order or decree. On that day there came in. N. E. 605; Cunningham v. Loomis, 17 Ili. to effect an act to provide for appeals from 555; Keel v. Bently, 15 Ill. 228. The order interlocutory orders granting injunctions or of the circuit court overruling the motion of appointing receivers. Laws 1887, p. 250. the appellants to dissolve the temporary inOriginally an independent act, it is now sec junction did not determine the merits of the tion 123 of the Practice Act of 1907. That controversy nor adjudicate finally the rights section provides:

of the parties. From such an order, inter"Whenever an interlocutory order or decree locutory in character, no appeal lies to this is entered in any suit pending in any court in court. Bagdonas v. Liberty Land & Investthis state, granting an injunction, or overruling ment Co., 309 Ill. 103, 140 N. E. 49; Craig a motion to dissolve the same, or enlarging the v. Craig, 246 Ill. 449, 92 N. E. 925; Keel v. scope of an injunction order, or appointing a Bently, supra; Knapp v. Marshall, 26 Ill. receiver,

an appeal may be taken 63; Hawkins v. Burwell, 191 Ill. 389, 61 N. from such interlocutory order or, decree to the Appellate Court of the district wherein is E. 68; Pentecost v. Magahee, 4 Scam. 326. situated the court granting such interlocutory

The appeal should have been taken to the order or decree.

* No appeal shall lie Appellate Court for the Second District, and or writ of error be prosecuted from the order the case will be transferred to that court. entered by said Appellate Court on any such Cause transferred. appeal." Jurisdiction of appeals from interlocutory

(316 Ill. 11) orders or decrees of the classes specified is thus expressly conferred upon the appellate PEOPLE ex rel. McDONNELL V. THOMPS

SON, Mayor, et al. Courts, and the orders of those courts on such appeals are not subject to further re

PEOPLE ex rel. MCAULIFFE V. SAME. view. Section 123 of the Practice Act is the only statutory provision for appeals from

(Nos. 15289, 15290.) , interlocutory orders, and since the right to an appeal is strictly statutory (Drainage (Supreme Court of Illinois. Feb. 17, 1925.) Com'rs v. Harms, 238 Ill. 414, 87 N. E. 277; 1. Certiorariam 70(3)—Judgment of circuit Lower Salt Fork Drainage District v. Smith,

court in certiorari proceedings self-executing. 257 Ill. 52, 100 N. E. 179), no appeal from

Judgment of circuit court in certiorari, any interlocutory order or decree will lie, quashing record of civil service commission disunless taken in accordance with that section. charging second assistant fire marshal, is self

[2, 3] But it is argued that this appeal, un executing, and its operation, in absence of der section 118 of the Practice Act, should special statute to contrary, is not suspended by be taken directly to this court. That section | an appeal or supersedeas bond or writ of error. provides that appeals from and writs of er- 2. Judgment ex479—Judgment, quashing recror to circuit and certain other courts

ord of civil service commission discharging Sin all criminal cases below the grade of felony relator, cannot be collaterally attacked until shall be taken directly to the Appellate Court, set aside or reversed. and in all criminal cases above the grade of Judgment of the circuit court in certiorari misdemeanors and cases in which a franchise proceedings, quashing record of civil service or freehold or the validity of a statute or a commission discharging relator, was a legal deconstruction of the Constitution is involved; termination that relator was entitled to be and in cases in which the validity of a municipal restored to his office, and cannot be collaterally ordinance is involved and in which the trial attacked until reversed or set aside. judge shall certify that in his opinion the public interest so requires, and in all cases relat-3. Certiorari Ow37-Incumbent not proper ing to revenue, or in which the state is inter party in certiorari proceedings by ousted of. ested, as a party or otherwise, shall be taken ficial to quash record discharging him. directly to the Supreme Court."

In certiorari proceedings by second assist

ant fire marshal to quash record of civil service Section 118 of the Practice Act directs to commission discharging him from office, the what court an appeal which may be allowed present incumbent of such office was not a by law shall be taken ; but it confers no proper party to such proceedings.

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