(146 N.E.)

defendants. The contention of the relator is that none of these matters constitute a defense to the petition, and for that reason his demurrer to the answer should be sustained and the writ awarded to him.

reversed or set aside. City of Cairo v. Campbell, 116 Ill. 305, 5 N. E. 114, 8 N. E. 688. Egan was in no sense a proper party to the certiorari proceedings. The record of the proceedings quashed in that case was simply a record made by the civil service commission concerning the charges against the relator, and Egan was not a party to those proceed

Since the submission of this cause to the court the parties thereto have filed a stipulation to the effect that the relator has been restored and assigned to duty as second as-ings, and there was no reason for making sistant fire marshal, and that the parties have agreed that the question of the right of the relator to reinstatement, as prayed in the petition, may be dismissed and the cause retained only for the purpose of determining the question of the relator's right to compensation for the period during which he was deprived of and excluded from his office or position. We are in doubt as to whether or nor the defendants by this stipulation mean to confess that the first four defenses set up matters that constitute no defense to the facts set up in the petition, and that they thereby admit that the relator was wrongfully removed from office and was entitled to be restored, under the facts admitted or set out in the petition, to his office or position. As the right of the relator to his salary depends upon the sufficiency of the allegations in the petition, and as to whether or not the demurrer to the defendants' answer should be sustained or overruled, we consider it necessary to pass upon these questions.

No one of the first four special points set up any matters that can be considered as proper defenses to the petition, and the same is true as to the matters relied on in the fifth point. The demurrer to the answer will therefore be sustained for the reasons now briefly stated.

[1] The claim that the appeal from the judgment in the certiorari proceedings operated as a supersedeas cannot be sustained. The judgment of the circuit court in the certiorari proceedings is self-executing, and requires no process of any kind to enforce it. The law is, in the absence of a special statute to the contrary, that an appeal or supersedeas bond or writ of error will not operate to suspend such a judgment. 20 Ency. of Pl. & Pr. 1244; People v. Reinberg, 263 Ill. 536, 105 N. E. 715, L. R. A. 1915E, 401, Ann. Cas. 1915C, 343; Barnes v. Typographical Union, 232 Ill. 402, 83 N. E. 932, 111 L. R. A. (N. S.) 1150, 122 Am. St. Rep. 129.

him a party thereto, as he had nothing to do with the removal. He is a party to this suit, which is the only one that could affect him in the sense that he should be made a party, and even in this suit there is no contest between Egan and the relator as to which one is entitled to the office. This is a mandamus proceeding, in which it is contended that the relator was wrongfully removed from his office, and that he be restored to such office and to the pay roll. Mandamus is unquestionably a proper remedy to restore a party to the possession of an office from which he has been illegally removed. People v. Dreher, 302 Ill. 50, 134 N. E. 22; State v. Miles, 210 Mo. 127, 109 S. W. 595. The foregoing were the only defenses attempted to be set up in the defendants' answer, and for the foregoing reasons the demurrer to the answer is sustained. People v. Powell, 274 Ill. 222, 113 N. E. 614.

[5, 6] The defendants by their answer admitted all the essential averments of the petition, including the averments that the relator had been wrongfully removed from his office and that the circuit court had judicially determined that fact by declaring in the judgment in the certiorari proceedings that all of the proceedings before the civil service commission were void and of no effect. A judgment awarding the writ of mandamus to compel reinstatement in office may include a command to pay salary. People v. Coffin, 279 Ill. 401, 117 N. E. 85; 18 R. C. L. 260; State ex rel. Rundberg v. Kansas City, 206 Mo. App. 17, 226 S. W. 986. The rule in this state is that the payment in good faith of the salary of an officer to a de facto officer constitutes a bar to an action by the de jure officer for the salary paid to the de facto officer. People v. Schmidt, 281 Ill. 211, 117 N. E. 1037, L. R. A. 1918C, 370. The well-defined exception to the above rule is that, where the relator is illegally removed from his office, and the salary has been paid to another per[2-4] The judgment in the certiorari pro- son illegally appointed in his stead, a writ of ceedings cannot be collaterally attacked in mandamus will be awarded, requiring the rethis suit by the defendants. The judgment instatement of the relator in office and the was in legal effect a judicial determination payment of his salary during his illegal rethat the order of the civil service commission moval. People v. Brady, 262 Ill. 578, 105 N. sustaining the charges against relator and removing him from office was null and void, which is a legal determination, in substance, that he was entitled to be restored to his office. It cannot, therefore, be attacked collaterally in any proceeding, as the court had jurisdiction of the subject-matter, etc., until

E. 1; People v. Stevenson, 270 Ill. 569, 110 N. E. 814; People v. Coffin, supra. The relator in this case was clearly entitled to be paid his salary from December 18, 1922, the date of the judgment of the circuit court in the certiorari proceedings, and is entitled to the writ to compel the payment of the same.

(Supreme Court of Illinois. Feb. 17, 1925.) that the contract was void because it was

(146 N.E.)

tween the parties; that they had separated, I that it was entered into at her instance, and with intent to live apart during the remain- was just what she demanded. der of their lives; that the husband had Considerable evidence is offered on behalf paid to the wife the sum of $3,000 in govern- of appellant to show that for some time aftment bonds, and conveyed to her the home er Kohler had sold his farm, in 1909, he was in the city of Anna, Ill.; that, in considera- unbalanced; also, that during the month of tion of the premises, each should release all September, prior to making the contract, apinterest in and to the property of all kind pellant had suffered from sciatic rheumatism, and character of the other, and that the had been in a sanitarium, and was sick and wife could not incur or contract any debts nervous, and the argument is made that neion the husband's credit; "and that, in case ther was competent to contract at the time an action for divorce shall be instigated by of the making of the contract. Appellant and for either of the parties hereto, said could not hope to gain any benefit from the wife will not ask for alimony or counsel fact that Kohler was not competent at the fees." time of the making of the contract, if such were true, as equity would not at her instance relieve her from the contract simply because she had contracted with one who was not mentally competent. The argument of her counsel that both parties to the contract were incompetent and, therefore, she ought to be relieved is more novel than tenable under the record in this case, as the great preponderance of the evidence shows that both parties were capable of contracting. This is shown, not only by the evidence of lay witnesses, some of whom were called by appellant, but by the testimony of two physicians who had treated both parties.

[1] There is no contention that appellees, heirs at law of Kohler, had anything whatever to do with making the contract, but appellant urges that it was brought about by the influence of outsiders who were not parties to it. This contention is not borne out by the record. The evidence shows that the husband's estate amounted to $17,499; that by the contract appellant received the sum of $3,000 and real estate of the value of $3,000; the latter she resold to Kohler for that amount in cash, receiving a total of $6,000 of his estate. It is also shown by her witness John H. Ligon that early in the summer of 1923, before the contract in question was executed or considered by Kohler, she stated that she wanted a settlement with her husband; that it was impossible to live with him; that she had tried for 20 years to get along with him, and was not going to try any longer; that, if her husband would give her one-third of all he had, she would settle; that she told Ligon at that time what his estate amounted to. The evidence also shows that she told others that she was going to leave her husband; that they could not get along together. The evidence also is that, when she first made demand on her husband that he give her one-third of all he had, he thought it was too much and offered her $2,000. It cannot be said that the contract is unconscionable or inequitable under such circumstances. While at his death she, as his widow, would but for this contract have been entitled, under the statute of descent (Smith-Hurd Rev. St. 1923, c. 39) to one-half of the real estate and all of the personal property, the contract was not made in contemplation of Kohler's death. As far as she knew or had reason to believe he would continue to live for some years, and the fact that he died by his own hand a few days thereafter, under which circumstance she would have come in for a larger estate in the absence of the contract, does not show the contract to have been unconscionable or inequitable. Had he continued to live the contract would have been considered fair, and might have proved of more than equitable value to her. The fact of his death does not render unfair a contract that was fair when made. Moreover, the evidence shows

The evidence shows that, on the morning in which Kohler took his life, appellant had started to move her belongings into the home of a neighbor; that, subsequent to the making of the contract and prior to the day of the death of Kohler, these parties had lived in the same house, though occupying different rooms. On this day, while appellant was absent moving some bedding to the home of the neighbor, an alarm came that her husband had committed suicide. Upon returning to their home she found that he had tak en carbolic acid. He died a short time thereafter.

[2, 3] The principal argument of counsel for appellant is that the contract was entered into for the purpose of stimulating or inducing one party to institute divorce proceedings and amounts to collusion between the parties to secure a decree of divorce, and that such a contract is against public policy and void. We have quoted herein the only language in the contract touching the question of divorce, and it amounts to an agreement that, in case either of the parties should institute divorce proceedings, the wife will not ask for alimony and solicitors' fees. This is not an agreement to secure a divorce. The contract, also recites that the parties have separated, with intent to live apart. There is nothing in the contract to indicate that such separation was induced by the consideration in the contract, or that the separation was itself a consideration for the contract. The contract was evidently one dividing up the property between them, owing to unfortunate differences that had arisen. A husband and wife may, by writ

CRONK et al. v. GIESEKE. (No. 15497.) Feb. 17, 1925.) (Supreme Court of Illinois. 1. Intoxicating liquors 320-Wife and minor children having joint right of action against seller of liquor to husband and father, evi

dence supporting verdict of loss to one held proof of loss of support to all.

Suit under Dramshop Act, § 9 (Smith-Hurd Rev. St. 1923, c. 43, § 82), being joint suit by wife and minor children against seller of liquor to husband and father, evidence supporting judgment as to wife or any one of plaintiffs would necessarily sustain it as to all of them,

and judgment therein for plaintiff may, in view of pleadings and evidence, be read or considered as referring to all plaintiffs; use of “her” therein being surplusage.

2. Intoxicating liquors 321-Wife and minor children not guilty of laches in suit against property owner.

As suit against property owner under Dramshop Act, § 10 (Smith-Hurd Rev. St. 1923, c. 43, § 83) cannot be commenced until after judgment against liquor seller under section 9 (section 82), plaintiffs cannot be guilty of laches in suit on judgment because first action was pending about seven years before judgment was obtained.

3. Intoxicating liquors 321 - Bill against property owner not bad because it failed to show that judgment was in full force.

Bill against property owner under Dramshop Act, § 10 (Smith-Hurd Rev. St. 1923, c.

43, § 83), was not bad because it failed to show that judgment at law against liquor seller under section 9 (section 82) was not appealed from or reversed, or that it was in full force.

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in error knowingly permitted the building to be occupied and used for such purposes at that time.

The court thereupon entered judgment on the verdict against Rickert and in favor of the plaintiffs.

The

From the bill it appears that the suit was The judgment as written up by the clerk commenced by plaintiffs in error against of the court described the parties to the suit Louis Rickert and the United States Brewing as Jane Cronk, David Cronk, George Cronk, Company as defendants on April 4, 1913. and Edwin Cronk, by Jane Cronk, their The case was dismissed as to the brewing next friend, against Louis Rickert. company. In the præcipe filed in that case judgment then follows in this language: the cause is entitled, "Jane Cronk, and Dayid Cronk, George Cronk and Edwin Cronk, Minors, who Sue by Their Mother and Next Friend, Jane Cronk, Plaintiffs, v. Louis Rickert and United States Brewing Company, defendants," and it was filed on the date aforesaid. Summons was duly issued, and it was served upon Rickert by reading the same to him, and at the same time delivering to him a copy thereof, on April 22, 1913, by the sheriff of said county.

"This cause being called for trial ex parte, comes the plaintiff to this suit by her attorney, and issue being joined herein, it is ordered that the jury come; whereupon come the jurors of a jury of good and lawful men, to wit (names of jurors follow), who being duly selected, tried and sworn well and truly to try the issues joined herein and a true verdict render according to the evidence, after hearing all the evidence adduced, say: 'We, the jury, find the defendant guilty and assess the plaintiff's damages at the sum of five thousand Therefore it is considered ($5,000) dollars.'

by the court that the plaintiff do have and recover of and from the defendant her said damages of five thousand ($5,000) dollars in form as aforesaid by the jury assessed, together with her costs and charges in this behalf expended, and have execution therefor."

The declaration was filed May 12, 1913, and the parties, plaintiffs and defendants, named in the declaration are the same as named in the præcipe. It is alleged in the declaration that Rickert on April 4, 1913, and for a period of one year preceding said date, in Cook county, conducted a dramshop In addition to the foregoing facts, the in the property and building commonly known at 1528 North Paulina street, in Chi- bill alleges that on April 4, 1913, and at all cago (the property owned by Gieseke and times prior thereto mentioned in the declasought to be impressed with a lien as afore- ration, Henry C. Gieseke was, and is now, said), and that the property was then and the owner of the premises aforesaid, and there leased and rented for a period of one that during all the time while they were ocyear by the brewing company, who then and cupied by Rickert for a saloon and dramthere knowingly permitted the dramshop to shop they were knowingly leased by him be conducted in the building; that on said and knowingly permitted by him to be used date, and for several years prior thereto, and conducted as a saloon and dramshop; Jane Cronk was the wife of William Cronk, that the judgment in the suit at law has and David, George, and Edwin Cronk were not been paid or any part of the same; and minor children of William and Jane Cronk; that the premises are liable, under the statthat prior to said date William Cronk prop- ute, to be sold by order and direction of the erly supported and maintained the plain-chancellor for the payment of the judgment tiffs; that on April 4, 1913, and on divers and costs in this suit. times prior thereto, Rickert at said dramshop sold and gave intoxicating liquors to Cronk, which in whole or in part caused him, during the period aforesaid, to be and become habitually intoxicated, and in consequence of such habitual intoxication he willfully squandered his money and failed and neglected to support plaintiffs, and that by reason of these facts plaintiffs have sustained damages to their means of support in the sum of $10,000, etc.

Rickert filed a plea of not guilty, and in that plea described the plaintiffs as Jane Cronk, and David, George, and Edward Cronk, minors, by Jane Cronk, their next friend, and the defendants as Louis Rickert and the brewing company. The lawsuit was tried March 8, 1920, on the issues formed by the declaration and the plea. The jury signed and returned the following verdict:

"We, the jury, find the issues for the plaintiff and assess the plaintiff's damages at the sum of five thousand ($5,000) dollars."

There was a demurrer filed by the defendant to the bill, which the court sustained and entered a decree dismissing the bill for On appeal to the Appellate want of equity. Court for the First District the decree of the This court alcircuit court was affirmed. lowed a writ of certiorari. [1] The principal question in the case is whether or not the judgment in the law case is so vague and indefinite as to the parties in favor of whom it is entered as to render In determining this it a void judgment. question we will be permitted to follow the well-established rule laid down in Freeman on Judgments, vol. 1 (4th Ed.) § 45, which is as follows:

"If the entry of the judgment is so obscure as not to express the final determination with sufficient accuracy, reference may be had to the pleadings and to the entire record. If, with the light thrown upon it by them, its obscurity is dispelled and its intended significance made apparent, it will be upheld and carried into effect."