ther positive testimony or circumstantial evidence vacant lot for $1,800; that witness had $1,cannot be disregarded by either court or jury, the 400 in cash, and Mrs. Peeler said she would jury is not bound to accept the uncontradicted testimony on a particular issue, given by a wit- give him time on the balance; that one day ness who was contradicted on a vital point in Stephens asked him if he had saved any the case by other witnesses, and whose testimony money, and he replied that he had saved a was of such a nature that the jury would be jus- little, and was going to buy the Peeler proptified in disregarding it. erty, and then Stephens asked him to see Mrs. Peeler and see if she would take Gillespie's note, with Stephens' name on it al

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2431; Dec. Dig. 594.]

Samuel C. Dooley and Jesse E. Hoffman, both of Bloomington, for appellants. Charles M. Peirce, of Bloomington, for appellees.

CARTER, J. This is an ejectment suit brought by appellees against appellants in the circuit court of McLean county. The case has been brought twice to this court before. 263 Ill. 197, 104 N. E. 1090; 269 Ill. 376, 109 N. E. 994. There have been at least four trials between the parties, the verdict and judgment in the trial court in each instance being in favor of appellees. The evidence in this record is substantially the same as it was on the first appeal, except that the testimony of Frank Gillespie, the refusal to admit which was the principal reason for reversing the first time the case was here, was admitted in full on this trial.

Appeal from Circuit Court, McLean Coun- so, for the whole property; that witness ty; Sain Welty, Judge. found that Mrs. Peeler would take such a Ejectment by E. W. Stephens and others note for $1,600 if Stephens would take the against Jesse E. Hoffman and others. Judg-vacant lot for $200 cash; that this arrangement for the plaintiffs, and defendants ap- ment was carried out, and witness gave peal. Affirmed. Stephens $1,400, and the latter signed a note with Gillespie for $1,600; that the deed from the Peelers to Gillespie was executed, and witness and Stephens took this deed to William Mason to have a mortgage drawn covering the property, in order to secure Stephens for signing the $1,600 note; that Stephens was to give Gillespie a note for $1,400; that when the note to the Peelers was paid these two notes were to be exchanged; that while they were at Mason's office Mason was called out, and at about the same time Gillespie left, and when they came back Stephens was gone and the deed also; that he found out later that Stephens had gone to Alex. Keady's office, and that the deed had been changed so that Stephens was grantee, and recorded; that he met Stephens coming out of Keady's office, and charged him with doing wrong in having the deed changed, and Stephens agreed to give him a note for his (Gillespie's) $1,400, and Cynthia Peeler and her son, William Peel- later on did give him the note; that afterer, and his wife executed a deed to the prop- wards Gillespie gave up the $1,400 note to erty here in question, the consideration be- Stephens, apparently without consideration. ing $2,000. The chief point in dispute is Gillespie further testified, on cross-examinawhether, when the deed was executed and tion, that the $1,400 he gave to Stephens delivered, the grantee was Frank Gillespie was all in currency, and had been in his or William Stephens, the deed having been house in a baking powder can; that he had originally written with Gillespie as grantee, a row with Keady about changing the grantee and that name thereafter marked out with in the deed after it was executed, and Keared ink and Stephens' name inserted. Ap- dy pushed him out of his office. Keady pellees argue, and offer evidence to show, swore in this case, as he did in the former that Stephens' name was inserted as grantee case, that Peeler and Gillespie brought the at the request of both Peeler and Gillespie, deed to him with Gillespie's name as granbecause Gillespie could not carry out his tee, and told him Gillespie couldn't carry part of the contract. Stephens died before through the trade, but that Stephens had the beginning of this litigation, and his tes- taken it off his hands, and they asked him timony was never taken on the questions to change the grantee; that he told them here involved. The details of the transac- it was best to draw a new deed, but they tion are set out fully in the opinion given by this court on the first appeal, and we shall not attempt to set out again what was there stated, but will give the substance of Gillespie's testimony on this last trial. Gillespie was an employé of the street railway company in Bloomington at the time of the transaction, and at the time of the trial was living in Peoria. He testified that he knew the Peelers and Stephens; that Peeler told him the family were going to move to California, and wanted to sell the property, and offered him the house and lot and a

did not wish to pay for one, and suggested that he erase Gillespie's name with red ink lines and insert Stephens' name; that he did so, and then took the acknowledgment of the Peelers, who were the grantors in the deed. Keady also testified that after Stephens' death Gillespie came to him and asked him if he did not want to make some money, and said the Stephens estate was worth from $75,000 to $100,000, and if he would come into court and swear that Gillespie's name was not erased from the deed before Keady took the acknowledgment, he

(Gillespie) would give him $200, and that, sion, unless such presumption had been overwas the reason he put Gillespie out of his come by evidence in the case. They concede office. Testimony was also offered on this that this instruction states correctly an abtrial on behalf of appellees by several wit-stract principle of law, but insist that it was nesses that Gillespie's reputation for truth not applicable to the facts in this case, as and veracity was bad. Several witnesses they had contradicted, by direct testimony, testified on behalf of appellants that Gilles- the delivery of the deed to Stephens. "Le pie's reputation for truth and veracity was gal presumptions do not shift the burden of good. proof. Their only effect is to create the ne[1] Appellants insist that they were inno- cessity of evidence to meet the prima facie cent purchasers of this property from Gilles-case created thereby, and which, if no proof pie, and had a right to rely upon the fact to the contrary is offered, will prevail." Helthat an ejectment suit with reference to the big v. Citizens' Ins. Co., 234 Ill. 251, 84 N. E. same property had been decided in favor of 897; Graves v. Colwell, 90 Ill. 612. The eviGillespie and appealed to this court, which dence as to the delivery of the deed clearly appeal, after they had purchased the prop-did not rest, alone, on the testimony of Gilerty, was dismissed. The court refused to lespie. Keady's testimony that he had chang allow the proceedings in this former suit to ed the grantee in the deed at the request of be introduced in evidence, as we understand Peeler and Gillespie and afterward took the the record, for the reason that the complete acknowledgment of the grantors, and that record was not offered. On the record be- the deed had come back from the recorder's fore us this question cannot be raised. office to him for a certificate; the testimony, There is no evidence here that appellants also, that the deed was found among Stepurchased this property from Gillespie or phens' papers at his death; that the insurance paid him anything for it, although we have policy on the house had been assigned by assumed from the records in the other cases Mrs. Peeler direct to Stephens; that Stephens that they took this property for attorney's had possession of the property and collected fees growing out of this litigation. We think the rents and paid the taxes from the time the conclusion is necessarily drawn from the the deed was recorded until his death; and records in all the litigation over this matter other circumstances in the record-tended that appellants knew all about the condition strongly to corroborate the claim of the apof the title and the contest over it between pellees that the deed was delivered to SteGillespie and the heirs of Stephens at the phens. Taking all the instructions together, time they purchased the property. Manifest- the jury could not have been misled by this ly they cannot be held to be innocent pur-instruction. chasers. They took the title subject to all the equities that could be urged by Stephens or his heirs with reference to Gillespie's claim of title.

[4] Counsel for appellants argue that Gillespie's testimony as to how the name of the grantee in the deed in question was changed is not contradicted by any other testimony in [2] Appellants further argue that the trial the record, and that his testimony stands uncourt erred in refusing to admit the testimo-impeached, and therefore the verdict cannot ny of Charles A. Marshall given on a former be upheld. The rule undoubtedly is that the trial, that witness being outside the jurisdic-positive testimony of a witness, uncontration of the court at the time of this trial. The only difference between the record in this case and in Hoffman v. Stephens, 269 Ill. 376, 109 N. E. 994, was that in that case it was not shown that he was outside of the jurisdiction of the court, while in this trial a witness testified that he was in Oklahoma, having left Illinois several years ago. The witness knew this only from correspondence with his mother. No reason is shown why his evidence might not have been taken by deposition if appellants had exercised due diligence. Under the reasoning of the court in 269 Ill. 376, 109 N. E. 994, when the case was last here, the trial court properly refused to admit Marshall's testimony given at a former trial. See, also, Cassady v. Trustees of Schools, 105 Ill. 560; Bergen v. People, 17 Ill. 426, 65 Am. Dec. 672; 16 Cyc. 1098.

[3] Appellants further argue that the court erred in giving an instruction on behalf of appellees with reference to the presumption of delivery that would arise from the deed

dicted and unimpeached, either by positive testimony or by circumstantial evidence, cannot be disregarded by either court or jury; but there may be such an inherent improbability in the statement or testimony of a witness that the court may disregard it, even in the absence of any direct conflicting testimony. He may be contradicted by the facts he states as completely as by direct adverse testimony, and there may be so many omissions or discrepancies in his testimony as to discredit him. Quock Ting v. United States, 140 U. S. 417, 11 Sup. Ct. 733, 851, 35 L. Ed. 501; Podolski v. Stone, 186 Ill. 540, 58 N. E. 340; People v. Davis, 269 Ill. 256, 110 N. E. 9. Gillespie's testimony was contradicted by the testimony of Keady on the vital point in this case concerning the change of the name of the grantee, and also as to several other important features by other witnesses in the case. Furthermore, his own testimony is of such a nature that the jury would be justified in disbelieving his story as to the trans

We find no error in the record, and the ev- was ordered that the child be committed to idence, in our judgment, sustains the verdict. The judgment of the circuit court will therefore be affirmed. Judgment affirmed.

(275 II. 453)

PEOPLE v. PICCOLO et al. (No. 10810.) (Supreme Court of Illinois. Oct. 24, 1916. hearing Denied Dec. 8, 1916.)

Re

1. INFANTS 16 PROCEEDINGS UNDER JU-
VENILE COURT ACT-COMPLAINANT.
Under the Juvenile Court Act (Hurd's Rev.
St. 1915-16, §§ 169-190d), the people, and not
the person filing the petition charging delinquen-
cy, neglect, or dependency, are the parties com-
plainant.

[Ed. Note.-For other cases, see Infants, Cent. Dig. § 16; Dec. Dig. 16.]

2. INFANTS 16-JUVENILE COURT PROCEEDING MODE OF REVIEW-SUIT OR PROCEEDING AT LAW OR IN CHANCERY."

Proceedings under the Juvenile Court Act are purely statutory and not proceedings either at law or in chancery, and therefore cannot be reviewed by appeal, under Practice Act (Hurd's Rev. St. 1915-1916, c. 110) § 91, providing for an appeal or writ of error in any suit or proceeding at law or in chancery, especially since the last section of the Juvenile Court Act provides for review by writ of error only.

[Ed. Note.-For other cases, see Infants, Cent. Dig. § 16; Dec. Dig. 16.]

the house of correction in the city of Chicago -an institution suitable for the care of delinquent girls-and that the Mother Superior, the superintendent of that institution, be appointed the guardian of her person and be directed to place the child in said institution, and to hold her there and care for, train, and educate her until she arrives at the age of 21 years. From this order Marie Piccolo and her parents prayed and were allowed an appeal to this court. The appeal was perfected, and the appellants have filed the record of the trial court, abstracts, and briefs.

In the brief for appellants Bertha B. Howell is treated as appellee. Neither Bertha B. Howell nor the people have entered an appearance in this court, joined in error or filed briefs.

It is urged that the order of the trial court should be reversed for the reason that the

Juvenile Court Act is unconstitutional and the order is contrary to the great preponderance of the evidence.

[1] The Juvenile Court Act provides that any reputable person who is a resident of the county may file, with the clerk of the court having jurisdiction of the matter, a petition setting forth that a certain child is either dependent, neglected, or delinquent, as defined

Appeal from Circuit Court, Cook County; in the act, and that it is for the interest of Victor P. Arnold, Judge.

the child and the state that it be taken from its parents, custodian, or guardian and placed under the guardianship of some suitable person, and that the parents, guardian, or custodian are unfit or improper guardians or are unable or unwilling to care for, protect, train, educate, control, or discipline such

Proceedings by the People against Marie Piccolo and others under the Juvenile Court Act. From an order finding the named defendant a delinquent child and committing her to the house of correction, the defendants appeal. Appeal dismissed. Joseph D. Irose, of Chicago, for appel- child, or that such parents, guardian, or lants.

custodian consent that such child be taken from them. The filing of such petition does not make the petitioner a party to the suit. This is simply a method provided whereby the people and the court may be informed of the situation which the petitioner alleges exists.

Upon the filing of the petition the people become the real party complainant and must prosecute the proceeding. The Juvenile Court Act is based upon the right inherent in the state to take over the custody of a child when circumstances make it necessary for the welfare of the child and of the state to do so, and upon the institution of any proceeding under the act the people become the real party to the controversy. Bertha B. Howell was in no sense a party to the proceeding in the trial court and could not become a party in this court.

COOKE, J. Bertha B. Howell filed a petition in the juvenile branch of the circuit court of Cook county under what is commonly known as the Juvenile Court Act (Hurd's Stat. 1916, p. 242), charging that Marie Piccolo was a delinquent child and that her parents were unequal to the task and responsibility of controlling and correcting her and preventing her from committing repetitions of delinquency. Summons was issued and served upon the parents of the child, who was then 17 years of age, and on the return day, the child not being in court, a warrant was issued under the provisions of the act for her arrest. She was arrested, brought into court, and a trial was had, which resulted in an order finding that Marie Piccolo was a delinquent child, that her parents [2] The people not having followed up this were unequal to the task and responsibility appeal and having made no attempt to join of controlling and correcting her and pre-in error, the question presents itself whether venting her from repetitions of delinquency, appellants are entitled to this method of reand that it was for the best interests of the view. The provisions of the Juvenile Court child and the people of the state that she be Act are purely statutory. The proceedings taken from her parents and placed under the therein provided for are not such as are instiguardianship of some suitable person. tuted and carried on in substantial conform

It

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
114 N.E.-10

ity with the forms and modes prescribed by the common law or by the rules of chancery. The remedy provided by the act is one unknown to the common law or to chancery jurisdiction. It is purely statutory, and the proceedings provided by the act are special throughout. The act itself provides for no appeal from the order of the trial court, and the proceedings are not such as to entitle a party to an appeal under the general provisions of the Practice Act. The right of appeal or writ of error, in so far as the same is granted by the Practice Act (Hurd's Rev. St. 1915-16, c. 110), is conferred by section 91 of that act. That section provides for an appeal or writ of error "in any suit or proceeding at law or in chancery," and, as the term "suit or proceeding at law or in chancery" only includes suits instituted and carried on in substantial conformity with the forms and modes prescribed by the common law or by the rules of chancery, section 91 confers no right of appeal in any case which is instituted and carried on in conformity with forms and modes not according to or recognized by the common law or rules of chancery but solely in accordance with the statutory provisions. Myers v. Newcomb Drainage District, 245 Ill. 140, 91 N. E. 1070. The last section of the Juvenile Court Act provides that cases under the act may be reviewed by writ of error. This affords an additional reason why an appeal will not lie in this case, as where in a special statutory proceeding one form of review is specifically given all others are excluded. Allerton v. Hopkins, 160 Ill. 448, 43 N. E. 753.

Appeal from Cook County Court; John H. Williams, Judge.

Proceedings by the Village of Oak Park against D. H. Lane and others to collect a special assessment for improvements. Judgment for defendants, and plaintiff appeals. Affirmed.

F. W. Pringle, of Chicago, for appellant. George P. Foster, of Chicago, for appellees.

COOKE, J. This is an appeal from a judgment of the county court of Cook county, modifying and confirming a special assessment as to certain lots, in a proceeding instituted by the village of Oak Park, to pay the estimated cost of paving Harvard street from the east line of East avenue to the west line of Austin boulevard, and also the roadways of all intersecting alleys extended from the curb line to the street line.

Each

Harvard street is an east and west street, and the lots involved in this appeal are located and front on North and South streets, which cross Harvard street, and do not abut the line of the proposed improvement. These lots were assessed for what is generally termed indirect benefits, and in the county court appellees, the owners of the lots, objected that the lots were assessed more than they would be benefited. This objection was sustained, and the assessment on the lots objected for was reduced 20 per cent. of the lots objected for was assessed at the rate of $1.36 per front foot. Two witnesses testified for appellant, and two for appellees. These men were real estate experts. The two witnesses for appellees testified that each 25-foot lot would be benefited no more than $20 by the proposed improvement, and that all other lots objected for would be benefited in that proportion. The witnesses for appellant each testified that the lots objected for would be benefited $2 per front foot, or $50 for each 25-foot lot. Each of these witnesses gave at length the basis upon which he arrived at the conclusion reached, testifying that the elements which entered into the question of benefits were accessibility, fire protection, sanitary condition, and general appearance. The character of the territory along the line of the improvement was de(Supreme Court of Illinois. Oct. 24, 1916. Re- scribed, and the court had before it plats of

Had the people entered an appearance, joined in error, and filed briefs, we might, under our practice, have regarded the appeal as a writ of error and determined the questions presented. The people, however, were under no obligation to thus recognize and follow up the appeal, and, not having done so, the appeal is dismissed. Appeal dismissed.

(275 III. 420)

VILLAGE OF OAK PARK v. LANE et al. (No. 10820.)

hearing Denied Dec. 8, 1916.)

MUNICIPAL CORPORATIONS

PROVEMENTS-ASSESSMENTS.

508(7)

the territory which were introduced in eviIM- dence.

Appellant contends that there was no evidence whatever to sustain the finding of the court that the reduction of 20 per cent. was necessary to bring the assessment of appellees' property within the amount of benefits. This contention is based largely upon the fact

In a proceeding to confirm assessments for benefits from street improvements, where witnesses for both parties were equally well informed, but differed in their estimate as to benefits, the court was not bound to accept the exact estimate of either set of witnesses, but could consider all the testimony, including the facts upon which they based their conclusions, and, the that the court did not adopt the figures fixed amount of benefits found by the court being by either set of witnesses, but adopted a figwithin the range of the testimony of the witness-ure which was more than the benefits testies, it will not be disturbed. fied to by appellees' witnesses and less than

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1181; Dec. Dig. that testified to by appellant's witnesses. It 508(7).] is contended that there was nothing in the

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