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DEVOTED TO GENERAL NEWS, LAW, COMMERCE AND FINANCE
Volume 134. Number I. CHICAGO, DECEMBER 21, 1956 Subscription $2 a Year. Ten Cents a Copy
EDWIN HALL COOKE, OFFICIAL
REPORTER.
(Volume 9, Second Series.)
(Illinois Advance Sheets.)
Mercer et al., appellees, vs.
Wayman et al., appellants.
(Davis, J.) Vol. 9 (2nd), p.
441. (No. 33959.-Decree re-
versed.) Limitations-posses-
sion by one cotenant may
,become adverse. Mere posses-
sion by one tenant in common
ho receives all rents and pays
the taxes, no matter for how
long a period, cannot be set
up as a bar against the coten-
ants, as the possession of one
tenant in common is in law
the possession of all; but this
does not preclude application
of the Statute of Limitations
in all cases, and such posses-
sion may become adverse if
the tenant in common by his
acts and conduct disseizes his
cotenants by repudiating their
title and claiming adversely
to them.
Same-what necessary to
render possession of cotenant
adverse. Before the posses-
sion of one tenant in common
can be adverse to his coten-
ants there must be a disseizin
or ouster by some outward act
of ownership of an unequivo-
cal character, overt and no-
torious, and of such nature
as to give information and
notice that an adverse posses-
sion and disseizin are asserted
by the party in possession;
but such notice need not be
formal in its nature, and if
one tenant in common holds
exclusive possession, claiming
the land as his, and his conduct
and possession are of such
character as to give notice to
'his cotenants that his posses-
sion is adverse, the Statute of
Limitations will run.
Same-one claiming title by
adverse possession claims in
derogation of right of real
owner. A party claiming title
by adverse possession always
claims in derogation of the
right of the real owner, and
admitting that the legal title
is in another he rests his
claim not upon a title in him-
self, as the true owner, but
Pon holding adversely to the
rue owner for the period pre-
cribed by the Statute of Lim-
Fitations, and claiming a bene-
fit from his oAzn wrongs, his
acts will be strictly construed.
Same-proof of adverse
possession must be clear and
positive-presumptions. Ad-
verse possession cannot be
made out by inference or im-
plication, for the presump-
tions are all in favor of the
true owner, and the proof to
establish it must be strict,
clear, positive and unequivo-
cal, and mere knowledge of
the obvious fact of possession
cannot be converted into proof
of knowledge that those in
possession were claiming ad-
versely.
Same-when possession of
cotenant is not adverse or un-
der color of title. Where one
of several cotenants of certain
premises dies leaving three
minor children, and her sur-
viving husband, as father and
natural guardian of the
minors, joins in a quitclaim
deed to one cotenant with the
others, such a deed is not ef-
fective to convey the interests
of the minors to the grantee-
cotenant, and does not confer
upon the latter color of title
under the 7-year Statute of
Limitations, and, although the
grantee took possession for
34 years, where he at no time
did anything affirmatively
that would serve as notice
that he was claiming ad-
versely to his cotenants, the
20-year Statute of Limita-
tions is also inapplicable.
Reitman et al., appellees,
vs. The Village of River For-
est et al., appellants. (Kling-
biel, C. J.) Vol. 9 (2nd), p.
448. (No. 34046.-Reversed
and remanded.) Municipal
corporations-rules for con-
struing ordinances are same
as those applied to statutes.
The primary object in con-
struing ordinances is to as-
certain and give effect to the
intention of the law-making
body as disclosed by the lan-
guage used, the applicable
rules of construction 'being
the same as those which apply
in construing statutes.
Zoning-construction of
ordinance prescribing mini-
mum area for single-family
residences on any plot of-
ground. Where a village
zoning ordinance, after limit-
ing each acre of land in a
residential area to five family
dwellings, prohibits any more
than a proportional number
of dwellings on a fractional
part of any acre, and further
provides that The maximum
number of families which may
hereafter be housed on any
plot of ground shall not ex-
ceed the integral number ob-
tained by multiplying the
acreage of such plot * * * by
five, the ordinance is prop-
erly construed as requiring
(Continued on page 9)
RECENT ILLINOIS SUPREME
COURT DECISIONS
RECENT ILLINOIS
APPELLATE COURT
DECISIONS
FIRST DISTRICT
First Division
Presiding Justice Grover C. Nie-
meyer, Justice Joseph Burke, Justice
Hugo M. Friend.
Second Division
Presiding Justice Edwin A. Rob-
son, Justice Ulysses S. Schwartz,
Justice John V. McCormick.
Third Division
Presiding Justice Michael Fein-
berg, Justice Roger J. Kiley, Justice
John Charles Lewe.
Clerk, Leslie V. Beck.
Digested for The NATIONAL COR-
PORATION REPORTER by Frederick A.
Rowe, Jr.
46871. November 27, 1956.
People of the State of Illinois
ex rel. Rusch, appellee, vs.
Maner etc., et al., appellants.
Appeal from County Court of
Cook County. Judgment af-
firmed. (McCormick, J.) Con-
tempt-Election officials held
in contempt of court. A con-
tempt proceeding was filed by
the Board of Election Com-
missioners of the City of Chi-
cago seeking to have the re-
spondents adjudged guilty of
contempt of court for alleged
misbehavior in the perform-
ance of their duties as judges
and clerks of election. The
respondents neither took the
stand nor put in any evidence.
The trial court found the re-
spondents guilty of contempt
and sentenced each to serve
nine months in the county jail
and to pay a fine. In the judg-
ment order the trial court
made several findings. The
court held that the evidence
adduced in the hearing fur-
nished a sufficient basis for
the trial court's findings. It
cannot arbitrarily be said that
the sentences imposed were
excessive.
, * * *
46876. November 27, 1956.
Fleming, appellee, vs. Jones
Jr., et al., appellants. Appeal
from Municipal Court of Chi-
cago. Order affirmed. (Rob-
son, P. J.) Forcible entry and
detainer-Plaintiff entitled to
judgment for costs in addition
to judgment for possession-
Taxing costs being a minis-
terial act-No notice of mo-
tion to tax costs necessary.
This is an appeal by the de-
fendants from an order en-
tered in favor of plaintiff in
a forcible entry and detainer
action. The trial court:N.txi
costs against defendaitA 'fo
the expense incurred by plain-
tiff in having the bailiff evict
defendants from the premises
involved. The court held that
in forcible entry and detainer,
the statute provides that in
addition to judgment for pos-
session, the plaintiff may have
a judgment for his costs. The
Municipal Court of Chicago is
authorized by statute to charge
the same costs as the Circuit
Court of Cook County for the
execution of writs of restitu-
tion and to tax the charges
against the unsuccessful party.
The statute is definite as to
the amount that may be
charged and is specific that
the unsuccessful litigant may
be taxed the costs of executing
the writ of restitution. It was
impossible on the day that
judgment for possession was
entered against defendants
because of their failure to pay
rent what the costs would be.
The costs of the eviction did
not become due and owing to
the plaintiff until the bailiff
made his return of the writ.
The subsequent taxing of
these costs was a mere min-
isterial act and required no
discretion on the part of the
trial court. In fact, it could
have been performed by the
clerk of the court. Therefore,
no notice of motion for taxing
costs was necessary and it did
not have to be entered within
thirty days from the date of
judgment.
* * *
46899. November 27, 1956.
Hirschmann, appellant, vs.
Berman et al., appellees. Ap-
peal from Superior Court of
Cook County. Decree affirmed.
(Robson, P. J.) Accounting-
Burden being on plaintiff-
Settlement and account stated
between parties- Plaintiff
failing to prove that he was
entitled to an accounting.
Plaintiff filed a complaint for
accounting against the de-
fendant. A master's report,
together with a supplemental
report, found in favor of de-
fendants, concluding that
plaintiff was not entitled to
an accounting and, further,
that there had been a settle-
ment and account stated be-
tween the parties. Exceptions
were filed to the report and
the chancellor, after hearing
and argument thereon, entered
a decree, ijursuant to the mas-
ter's report, in favor of de-
fendants. Plaintiff appeals.
The issue to be decided is
plaintiff's right to an account-
ing. The court held that this
is primarily a question of fact
and. po rden:ja upon plain-
.iff..iajiff.: '4s his only
Witniess...At tjm.es, his,.testi-
iibny 'Ai6. evsifv :a]i!. many
6flwiserstub tveMr incon-
sisttnt.*:'hg.rAnl#r who heard
ad: SAWJfi t t: Wtnesses con-
cluded that plaintiff failed to
prove he was entitled to an
accounting. He further found
that there was an account
stated between the parties. An
(Continued on page 9)
Digitized from Best Copy Available
Published at
1207, 8 S. Dearborn St.
Chicago, Ill.
Telephone
Randolph 6-0661
0
ESTABLISHED
June 23, 1890.
Entered as Second Class
Matter, October 18,
1890, at the Post Office
at Chicago, Ill., under
Act of March 3, 1879.
Financial-Commercial
***Dun & Bradstreet, Inc.,
in its weekly review of whole-
sale commodity prices, Decem-
ber 12, says: Following
rather sharp decline in the
early part of the week, the
Dun & Bradstreet Daily
Wholesale Commodity Price
Index resumed its upward
trend to close at 300.96 on
December 11. This contrasted
with 300.18 a week earlier,
and with 278.87 on the corre-
sponding date a year ago.
Grain price movements were
irregular with the trend gen-
erally lower as a result of the
easing in the international
situation. Demand for wheat
was less active. Influenced by
the recent higher level of
prices for wheat, producer
offerings of the bread cereal
increased substantially, and
receipts at primary markets
last week totalled 10,700,000
bushels, compared with 8,-
000,000 the previous week.
Cash corn markets finished
strong despite heavy stocks
and increased arrivals of CCC
corn at Chicago. Oats declined
with reported imports from
Canada causing some selling
of that grain. Heavy selling
and liquidation of long hold-
ings on the Chicago Board of
Trade resulted in a sharp in-
crease in activity last week.
Average daily purchases of
grain and soybean futures
totalled 80,400,000 bushels,
against 59,500,000 the previ-
ous week, and 41,100,000 in
the same week last year.
Flour prices held fairly steady
in slow trading. Domestic
bookings of all types of flour
remained small with most
buyers content to draw upon
balances. Export inquiries
continued small but scattered
sales were reported to Indo-
nesia and the Americas. There
was an improvement in de-
mand for rice as a result of
colder weather which has
stimulated consumer buying.
Export demand for rice broad-
ened also, due to the Suez
situation, affecting supplies
that formerly came from the
Far East. Green coffee prices
trended slightly easier at
roasters continued to buy
sparingly. Cocoa prices ended
moderately lower, reflecting
disappointing trade support
and an absence of important
manufacturing demand. Ware-
house stocks of cocoa con-
tinued to decline and totalled
292,897 bags, against 300,723
a week earlier, and 296,514 at
this time a year ago. Aggres-
sive demand coupled with
smaller receipts lifted hog
prices to the highest level in
several months. Lard and
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