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and as one of the executors of the will of | personal representatives of the deceased, but Alanson D. Smith, and filed a plea alleging that such personal representatives may be that she was a resident of Grundy county summoned and the cause proceed as if it had and was served with process there and not been originally commenced against him. This in Cook county; that her coexecutor, Edward section does not apply to the present case R. Smith, was a resident of Will county; where there were several defendants, but that Alanson D. Smith died more than a year this case is within the terms of section 12, after the cause of action accrued; that he which provides that where there are several lived in Grundy county at the time of his defendants in an action the cause of which death, and that his death was brought to the survives, and any of them died before final attention of the court before the plaintiff judgment, the action shall not abate, but dismissed his suit as to the People's Gaslight upon the suggestion of such death the cause & Coke Company. The plea concluded with may proceed against the surviving defenda prayer for judgment if the court would ants as if they had been originally the only take cognizance of the action. A demurrer defendants. to the pleas was overruled and the plaintiff elected to abide by his demurrer. The court dismissed his suit and the plaintiff appealed. The Appellate Court affirmed the judgment and granted a certificate of importance and appeal.

[1] We have held that a suit for negligence in causing death may be sustained by an administrator against the personal representa tive of the person whose negligence caused the death. Devine v. Healy, 241 Ill. 34, 89 N. E. 251. The cause of action does not abate by the death of the defendant. If Alanson D. Smith was liable, in his lifetime, for negligently causing the intestate's death, a suit could be maintained against his executors if brought within the time limited by the law.

[2] The question is not, however, whether the appellant could maintain maintain an action against the appellee, but is whether the particular action pending against the testator at his death could be revived. That the action was originally properly brought and a joint judgment could be recovered against both defendants if both were guilty of the wrong is admitted; and it is equally clear that after Smith's death no joint judgment could be rendered against his personal representatives and the other defendant. Tandrup v. Sampsell, 234 Ill. 526, 85 N. E. 331, 17 L. R. A. (N. S.) 852.

The death of one of several defendants, at common law, abates the suit as to him. The statute provides that the action shall not abate but may proceed against the surviving defendants. It does not provide that it may proceed against the executors. The joint liability is severed by the death of one of those jointly liable; but the statute preserves the action upon the joint liability against those who survive. The separate liability of the deceased person may be enforced in a separate action against his representatives. The same principle prevails in section 13, which provides that in case of the death of all the joint defendants the cause may proceed against the representatives of the last surviving defendant. By the death of Smith his liability was severed and his representatives might be proceeded against in a separate action, but the statute preserved the pending action against the surviving defendant. The matter is wholly statutory. If the statute saved the pending action it was saved, otherwise not; and as to the administrator or executor of a deceased codefendant the statute does not save the action.

found.

[4] Various formal objections are made to the plea, but in its commencement, conclusion, and substance it is substantially the same as the plea in the case of Scott v. Waller, 65 Ill. 181, which was held to be a good plea. It is a plea in abatement claiming the [3] At common law a cause of action for defendant's privilege not to be sued out of an injury to the person did not survive to the county where she resides or may be the plaintiff or against the defendant. If the action survives in this case it must therefore be by reason of some statute. Even if the cause of action survives, the method of its enforcement is subject to control by legislative enactments, and sections 11, 12, and 13 of the Abatement Act provide the manner in which an action may be prosecuted where one or more of the parties have died but the cause of action survives. Section 11 deals with the case where there is but one defendant to the action, and provides that in case of his death the suit shall not abate if it might have been prosecuted against the

[5] It was not subject to the charge of duplicity in alleging the facts which show that the action did not survive against her as executor, because those facts were necessary to make the plea good. If the action survived, section 25 of the Abatement Act authorized the issue of summons to any county in the state, and it was essential to a good plea that it should negative such authority.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

(273 Ill. 519)

GLOS v. MILLER et al. (No. 10733.) (Supreme Court of Illinois. June 22, 1916.) 1. EQUITY 450-BILLS OF REVIEW-PAR

TIES.

An unnecessary defendant to a partition suit who was dismissed by complainant, and is in privity with no party affected by the decree therein, and whose interest cannot be affected thereby, cannot maintain a bill of review.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 1095; Dec. Dig. 450.]

2. EQUITY 450-BILL OF REVIEW-FORMER REVIEW.

One cannot maintain a bill of review, where the record sought to be reviewed was considered by the Supreme Court on writ of error sued out by him, which after due consideration was dismissed, especially in case of an error apparent on the record.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 1095; Dec. Dig. 450.]

Appeal from Superior Court, Cook County; Denis E. Sullivan, Judge.

Bill of review by Jacob Glos against E. M. Miller and others. From an adverse decree striking the bill from the files, complainant appeals. Affirmed.

Jacob Glos, pro se. Robert Zaleski, of Chicago, for appellees.

DUNCAN, J. Jacob Glos, appellant, filed a bill of review in the superior court of Cook county against appellees to review the record in the case of O. C. Miller v. E. M. Miller et al.—a partition proceeding in which a decree had been entered in said superior court on January 4, 1913. Jacob Glos had been made a defendant in the partition suit at his own instance, but the bill was dismissed as to him. The bill in this case recites the

former proceeding for partition, sets out the bill, the several answers filed, the orders entered by the court, and the process and final decree. In addition to setting out the record the bill in this case alleged that appellant had an interest in the premises sought to be partitioned by the former bill by reason of certain tax deeds held by him, and that said interest was well known to the complainant in the former bill at the time said partition suit was filed and also to his solicitor. It is also charged in the bill that the said O. C. Miller and others obtained said decree in partition fraudulently and for the purpose of concealing the fact of the entry thereof from the appellant, and with a fraudulent purpose and intention of securing an adjudication of the rights of appellant in said premises. All the parties to the bill for partition were made parties to this bill of review. Summons was issued and returned served on O. C. Miller and it was returned "not found" as to the other defendants. O. C. Miller filed his special appearance, and moved the court to strike the bill of review from the files. The bill was then dismissed as to O. C. Miller for the alleged reason that Miller had conveyed his title to the premises to L. S. Plane

and C. F. Belyea, two of the appellees in this case. Plane and Belyea then filed their special appearance and also filed a motion to strike the bill from the files, and subsequently filed a demurrer to the bill. An affidavit was filed in support of the motion to strike the bill from the files, in which it was averred that the proceedings here sought to be reviewed had already been reviewed by the Supreme Court on a writ of error sued out by Jacob Glos, and that said writ of error had been dismissed in the Supreme Court. The court sustained the demurrer and granted the motion to strike the bill from the files, and appellant brings the record here for review.

It appears from the record that when the case of O. C. Miller against E. M. Miller was filed, as aforesaid, for partition appellant was not made a party to that proceeding. He entered his appearance therein as a defendant under the designation of one of the unknown owners mentioned in said bill; and the complainant, over appellant's objection, dismissed the bill as to him, and a decree for partition was rendered according to the prayer of the bill. The appellant brought the case to this court on a writ of error, contending that he was a necessary party to the partition proceeding, and urged a reversal of the decree. In dismissing his writ of error this court held that he was a proper party but not a necessary party to the proceeding for partition, and, inasmuch as he had not filed a cross-bill, that the complainant had a right to dismiss as to him, and that since he was not a party to the proceeding the decree in that case was in no way binding on him and did not affect his interest, and that

therefore he was not entitled to review the

record by writ of error. Ill. 18, 104 N. E. 1078.

Miller v. Miller, 263

[1] Appellant is not in privity with any party affected by said decree in partition. The condition of the record in that suit is such as to preclude any party therein from insisting that appellant was a party to that suit under the designation of an unknown owner, and it is alleged in appellant's bill of review that he was a known claimant of an interest in said premises. His interest, therefore, can in no way be affected by the decree in the partition suit. The appellant does not allege in his bill any newly discovered evidence, and insists in his argument that his bill is not founded on newly discovered evidence. The general rule is that no person, except the parties and their privies in representation, such as heirs, executors, and administrators, can have a bill of review, strictly so called. Other persons in interest and in privity of title or estate who are aggrieved by the decree, such as devisees and remaindermen, are entitled to maintain an original bill in the nature of a bill of review so far as their own interests are con

cerned. Even persons having an interest in the cause, if not aggrieved by the particular errors assigned in the decree, cannot maintain a bill of review, however injuriously the decree may affect the rights of third persons. Story's Eq. Pl. (Sth Ed.) § 409; 16 Cyc. 521; Goodrich v. Thompson, 88 Ill. 206; Glos v. People, 259 Ill. 332, 102 N. E. 763, Ann. Cas.

1914C, 119.

[2] Another fatal objection to appellant's right to maintain his bill of review is that the record sought to be reviewed was considered by this court on a writ of error sued out by this appellant; and after due consideration thereof the writ was dismissed. This court has repeatedly held that where the record of a cause has been reviewed by it on appeal or writ of error, and found to be free from error, it will not be again reviewed on a bill of review where such bill of review is filed by the same party who was appellant or plaintiff in error in the former proceeding. Schaefer v. Wunderle, 154 Ill. 577, 39 N. E. 623; Hultberg v. Anderson, 252 Ill. 607, 97 N. E. 216; Harrigan v. County of Peoria, 262 Ill. 36, 104 N. E. 172. The rule is the same on a dismissal of a writ of error as it is on an affirmance of the original judgment or decree. Hall v. Huff, 76 Ga. 337. This rule is particularly applicable where the bill is founded on error apparent on the face of the record, and appellant insists in his argument that his is such a bill.

As appellant had no right to file his bill of review it is not necessary or proper to consider the other points argued in the briefs. The decree of the superior court is affirmed.

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[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. 250.] 2. HOMICIDE 309(2) - INSTRUCTIONS-NE

CESSITY OF MANSLAUGHTER INSTRUCTIONS.

An instruction that if the jury believed from the evidence, beyond reasonable doubt, that accused unlawfully, feloniously, and with malice aforethought caused the death, he was guilty of murder, was not erroneous as not leaving the jury free to return a verdict of manslaughter should the evidence disclose sufficient mitigating circumstances.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 650; Dec. Dig. 309(2).] 3. HOMICIDE 300(3)-INSTRUCTIONS-SELFDEFENSE.

that, in order to save his own life or to prevent receiving great bodily harm, the killing of deceased was absolutely or apparently necessary, and that it must appear that the deceased was the first assailant, or that accused had in good faith endeavored to decline further struggle before the mortal shot was fired.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 617; Dec. Dig. 300(3).]

Error to Circuit Court, Williamson County; D. T. Hartwell, Judge.

James Sinnot was convicted of murder, and brings error. Affirmed.

Fowler & Duty, of Marion, Ior plaintiff in error. P. J. Lucey, Atty. Gen., Ed M. Spiller, State's Atty., of Marion, and George P. Ramsey, of Springfield, for the People.

COOKE, J. James Sinnot was found guilty of murder, in the circuit court of Williamson county, and sentenced to serve a term of 14 years in the penitentiary. He has brought the record of the circuit court here for review by writ of error and urges that the verdict is contrary to the evidence and that the court erred in the giving and refusing of instructions.

On August 11, 1914, plaintiff in error shot and killed Mike Papandrea on a street in the village of Colp, in Williamson county. Plaintiff in error and the deceased were both natives of Italy and were employed as miners at the mine known as Madison No. 9, located at the village of Colp. Plaintiff in error did not deny the killing, but claimed it was done in self-defense. It is quite apparent from the evidence that ill feeling had existed between plaintiff in error and the deceased, and that deceased had made threats against the life of plaintiff in error; that plaintiff in error, knowing of these threats, not only did not seek to avoid the deceased, but sought him out, and on one occasion shortly before the homicide invited deceased to go out on the street with him, apparently to settle their difficulties, which the deceased refused to do. On the day of the homicide, the deceased made the statement that unless plaintiff in error paid him $2.20 that day, which he claimed plaintiff in error owed him, he intended to kill him. Plaintiff in error was informed of the making of this threat, and shortly after it was made, and while standing in the street, according to his own testimony, he was cautioned by a friend to be careful that the deceased was coming toward him

to which he responded, "Let him come." The deceased approached, and after a brief conversation with the plaintiff in error pistols were drawn; plaintiff in error firing three shots, and the deceased two. Papandrea fell where he stood and died within a few moments, and plaintiff in error ran away.

It was not error, as unduly limiting the right [1] The testimony of the eyewitnesses to of self-defense, to instruct that before accused the shooting is conflicting. Of the witnesses could avail himself of that right it must appear that at the time and immediately before the who testified on behalf of the people, two killing the danger was so urgent and pressing stood talking together about 100 feet away.

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

of the people told the jury, in substance, that if they believed from the evidence, beyond a reasonable doubt, that the plaintiff in error unlawfully, feloniously, and with malice aforethought caused the death of Papandrea, then he is guilty of murder, and the jury should so find. It is insisted that these instructions are erroneous, for the reason that they did not leave the jury free to return a verdict of manslaughter should the evidence disclose mitigating circumstances sufficient to reduce the killing to that crime. These instructions recited every essential element necessary to constitute the crime of murder and directed the jury to find the defendant guilty of murder if they believed the facts recited to have been proved beyond a reasonable doubt. It was not error to give them. Crowell v. People, 190 Ill. 508, 60 N. E. 872; Carle v. People, 200 Ill. 494, 66 N. E. 32, 93 Am. St. Rep. 208; Kyle v. People, 215 Ill. 250, 74 N. E. 146; Koser v. People, 224 Ill. 201, 79 N. E. 615; Bleich v. People, 227 Ill. 80, 81 N. E. 36; People v. Terrell, 262 Ill. 138, 104 N. E. 264.

One of these testified that he heard three [2] Two of the instructions given on behalf shots, looked up, and saw plaintiff in error running away; that Papandrea fell, then took his pistol from his side, and fired two shots at plaintiff in error. The other testified that he was looking directly toward plaintiff in error and deceased when the shooting began; that plaintiff in error fired three shots, Papandrea fell, then pulled his pistol from his pocket, and fired two shots at the plaintiff in error. Two others were standing between 300 and 400 feet away. Each of them testified that he heard three shots, then looked up, saw plaintiff in error run away and Papandrea fall; that after he fell Papandrea raised up and fired two shots. One witness called on behalf of plaintiff in error testified that he was within 15 or 20 feet of the parties when the shooting occurred and that he saw all that happened; that plaintiff in error shot Papandrea; that Papandrea fell and then pulled his pistol from his pocket and fired two shots. On the other hand, plaintiff in error and two witnesses, who were within 15 feet when the shooting occurred, testified that Papandrea pulled his gun from his pocket; that it was set on safety, and he was unable to fire it, although he attempted to do so; that plaintiff in error then drew his pistol from his pocket, fired three shots at Papandrea, who fell, and who then fired two shots at plaintiff in error as he ran away. Another witness called on behalf of plaintiff in error testified that he also was about 10 or 15 feet away, and that, when plaintiff in error fired, Papandrea had his hand in his pocket, but later in his examination witness said that he did not see whether deceased pulled his pistol out before or after he was shot. Plaintiff in error ran from the scene, throwing his pistol away as he ran. When he had gone about a quarter of a mile, one of the officials of the village halted him and placed him under arrest. The officer asked him where his gun was, and he replied that he never had one.

The jury were fully and correctly instructed as to the law of self-defense and as to the right of plaintiff in error to protect himself and defend against any assault with which he was threatened. If plaintiff in error and the two witnesses who corroborated him were telling the truth, then the jury should have found that the killing was justified. On the other hand, if the witnesses on behalf of the people and the one witness called on behalf of plaintiff in error who stated that plaintiff in error fired before any assault was made or threatened against him testified to the truth, then the jury were justified in finding the plaintiff in error guilty of murder. This is a case where it was peculiarly the province of the jury to determine the weight and credibility to be given to the evidence of the various witnesses. We are unable to say from this record that the verdict of the jury finding the defendant guilty of murder was con

[3] The twenty-first instruction given on behalf of the people was as follows:

"The jury are instructed that before the defendant, James Sinnot, can avail himself of the right of self-defense, it must appear that at the time and immediately before the killing the danger was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm the killing of the deceased, Mike Papandrea, was absolutely necessary or apparently necessary, and it must also appear that the deceased, Mike Papandrea, was the first assailant, or that the defendant, James Sin. not, had in good faith endeavored to decline rther struggle before the mortal shot was fired."

It is insisted that this instruction in effect tells the jury that the danger must be actual, urgent, and pressing before one is warranted in acting in self-defense; whereas, under the law, there need not have been any real danger at all, but it is sufficient if plaintiff in error in good faith believed there was danger of losing his life or receiving great bodily harm. Instruction No. 22 contained the same language complained of in instruction No. 21. In Davison v. People, 90 Ill. 221, an instruction almost in the exact language of people's instruction No. 21 was ap、 proved. That case has been consistently followed, and under that holding these instructions were properly given.

Complaint is made that the court erred in refusing to give instructions numbered 1 and 3 offered on the part of plaintiff in error. These instructions were drawn to state the law of self-defense. The jury were instructed correctly and fully as to the law of selfdefense, and the portions of the refused instructions which were proper to be given were amply covered by the instructions given. They were therefore properly refused.

Complaint is made of the modification of

abstract does not disclose that the court made, was never filed for record. After the death any modification of this instruction, and it of Hannah Garrett, her husband and chilappears to have been given as asked. There being no error in the record, the judgment of the circuit court is affirmed. Judgment affirmed.

(274 Ill. 178)

BUTLER et al. v. GARRETT et al.
(No. 10698.)

(Supreme Court of Illinois. June 22, 1916.)
63(3) -OWNERSHIP EVI-

dren continued to reside upon the premises until the marriage of the daughters, who, as they were married, left the farm and lived in homes of their own. The three sons continued with their father to use and occupy the land until Harrison Garrett, the oldest son, was married. Soon after that event Bailey Garrett, during the years 1901 and 1902, conveyed to Harrison Garrett 45 acres of the

land, to Frank and George Garrett 65 acres, and to Sarah Butler and Mary Lovellette,

1. PARTITION DENCE-SUFFICIENCY. Testimony of G. that he had transferred two of the appellants, the remaining 10 lands to C., corroborated by a deed from C. to acres, reserving to himself a life estate in wife of G., held sufficient to support a finding forty acres. He continued to live with his that wife of G. at her death was the owner, and that subsequent deeds by G. to others were in- son Harrison and his wife for a short time, and then went to live with his youngest son, George, who was married and lived several miles from the farm. He lived with George

valid.

[Ed. Note.-For other cases, see Partition, Cent. Dig. § 185; Dec. Dig. 63(3).]

While declarations of a grantor in disparagement of title are incompetent against his grantee, his testimony as to facts material to the conveyance are admissible.

MON.

2. EVIDENCE 230(3)-CONVEYANCE-DECLA- about ten years, and in August, 1914, went RATIONS OF GRANTOR DISPARAGEMENT OF to live with his daughter Mary Lovellette, TITLE-TESTIMONY. with whom he remained until he died, on November 30, 1915, during the pendency of this suit. On November 5, 1915, he, together with his five daughters, filed the bill [Ed. Note.-For other cases, see Evidence, in this case, which alleged the execution of Cent. Dig. §§ 837, 838, 846; Dec. Dig. 230(3).] the deed from Bailey Garrett and his wife 3. TENANCY IN COMMON 15(1)-PRESCRIPTION-ACTIONS BETWEEN TENANTS IN COM-to Wilbur Compton and asked to have it restored and ordered recorded, and also prayed that the various deeds executed by Bailey Garrett should be set aside, that dower should be assigned to him, and that partition should be made of the premises. The defendants by their answer denied the execution and delivery of the deed to Wilbur Compton, and relied upon the deeds of Bailey Garrett and upon the statute of limita-. tions and their possession and payment of taxes. The death of Bailey Garrett having been suggested, the cause proceeded in the name of the survivors.

Statute of limitations is not available to a party against his tenants in common so as to divest them of their title to land.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 42, 48: Dec. Dig. 15(1).]

Appeal from Circuit Court, Wabash County; J. C. Eagleton, Judge.

Bill for partition by Sarah Butler and others against Harrison Garrett and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

P. J. Kolb and M. J. White, both of Mt. Carmel, for appellants. H. M. Phipps, of Mt. Carmel, for appellees.

DUNN, J. The complainants in a bill for partition in the circuit court of Wabash

The important question in the case is whether Bailey Garrett and his wife executed and delivered to Wilbur Compton a conveyance of the premises on March 8, 1878. the premises in question; if they did not, If they did, Hannah Garrett died seised of the title remained in her husband and would be conveyed by his deeds. Bailey Garrett's deposition was taken on November 12, 1915. He was then nearly 82 years old, in very feeble health, and almost blind. He testi

county have appealed from a decree dismissing their bill and finding the defendants to be the owners of the property involved. Hannah Garrett died in October, 1884, leaving Bailey Garrett, her husband, surviving her, and five daughters, who are the appellants, and three sons, who are the ap-fied that he deeded the land to Wilbur Comppellees, her heirs. For a number of years before her death the family lived upon a farm of 120 acres, which is the property involved in this suit. The title prior to March 8, 1878, was in Bailey Garrett. On that day a deed conveying the property to Hannah Garrett was executed by Wilbur Compton and was recorded. It is the claim of the complainants that on the same day a deed of the same premises was executed by Bailey Garrett and Hannah Garrett, his wife, to Wilbur Compton, which was delivered but

ton 36 or 37 years ago; that he and his wife both signed the deed; that Wilbur Compton made a deed back to his (Garrett's) wife, Hannah, of the same land that Garrett and his wife conveyed to him; that both deeds were made on the same day; and that his wife lived 5 or 6 years afterward. He said he could not tell whether Compton ever had the deed or not; that they all went together, and he did not know whether Compton had the deed or he had; that he did not know who took the deeds down. No one else who

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

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