complain that he was required to meet the proof offered on that issue, whether the examination of witnesses was by the attorney of the railway company or of the city. It was on the motion of the attorney for appellee that the attorney for the railway company was allowed to appear, in order that the court might have all the facts in determining the issue, and we see no error in what was done. The evidence showed quite clearly that lot B would not be benefited by the improvement. Lot A, the property of appellant, extends from North avenue to Blanche street, where the Chicago & Northwestern Railway, running in a northwesterly and southeasterly direction, intersects Noble street, giving the lot a triangular shape. The right of way is elevated, and the roadways of Noble and Blanche streets pass under the tracks. Lot B, owned by the railway company, does not abut on Noble street, but is on the other side of the railway, fronting on Holt street, and is used for a freight teamyard. The entrance to it is from Holt street, and it is practically shut off from the improvement. The court overruled the objection, and the evidence sustains the ruling.

The question of benefits was submitted to the court for trial, without the intervention of a jury, and the court found in favor of appellee, and confirmed the assessment. On that question appellant contends that the finding and judgment are against the weight of the evidence. Lot A is used for manufacturing purposes, and is occupied by the W. A. Jones Foundry & Machine Company. The evidence for the appellant was that it was worth about $25,000, and the evidence for the appellee was that it was worth $40,000. It had been the custom, in teaming to and from the property, to go out on North avenue to Elston avenue, and along that avenue to Milwaukee avenue, but Noble street, when paved, apparently would be a natural and convenient course to Milwaukee avenue, and one which would be valuable for use in connection with the property. There was testimony on the part of appellant that the lot would not be benefited to the amount of the assessment, or to any considerable amount, by the improvement. On the other hand, witnesses on behalf of appellee testified that the property would be enhanced in value by the improvement to the amount of the assessment. Aside from the facts stated, the question rested wholly in the opinions of different witnesses, and we think it will be seen that there is no controlling fact or circumstance from which we could say that the finding of the court was wrong and the property would not be benefited to the amount of the assessment. Considering the value of the property, its frontage of 530 feet on the street, and the probable usefulness of the street, when paved, in connection with the property, we are not able to say that the finding and judgment are wrong.

A witness for appellant testified on the 69 N.E.-5

question at issue that there would be very little benefit to the property, but the court refused to permit him to give his opinion as to what the benefit would be to the business of the manufacturing company occupying the lot. The basis for the assessment was the enhanced market value of the property, and the benefit to the occupant of the shop would not determine that question. It might be a proper subject of inquiry in testing the value of an opinion, but it was not error to exclude the evidence when offered as it was in this case.

A witness for the appellant, who had testified to the physical situation and uses of the property, but had not given anv opinion on the subject of benefits, was asked, on cross-examination, whether he recalled any instance when property was worth more after a street was paved than before. The court overruled an objection of appellant to the question, and required the witness to answer. The question was of an impertinent nature, and was not cross-examination. ruling was erroneous, but is not of such importance as would justify a reversal of the judgment.

The

1. An ordinance adopted by a city under a grant of power from the General Assembly to legislate generally on a given subject, if unreasonable, unjust, and oppressive, will be held invalid by the courts.

2. Whether such an ordinance is so unreasonable and unjust is a question for the decision of the court, in view of the existing circumstances and contemporaneous conditions.

3. Where a macadam pavement had been in place less than four years, was in good condition, and no reason for removing it appeared, a city ordinance requiring it to be torn up and replaced by an asphalt pavement was void, as unreasonable and oppressive.

Error to Cook County Court; O. N. Carter, Judge.

Petition by the city of Chicago for confirmation of a special assessment for street paving against Thomas R. Brown and others, objectors. Judgment for objectors, refusing to enter judgment of confirmation, and petitioner brings error. Affirmed.

Robert Redfield (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellant. Frank E. Hayner, for appellee Brown.

BOGGS, J. The county court of Cook county entered judgment refusing to confirm a special assessment levied to pay the cost of grading, paving with asphalt, and curbing Calumet avenue from the south line of Thirty-First street to the north line of ThirtyThird street, in the city of Chicago, and the city has appealed.

The proposed improvement covered but a distance of two blocks and one street intersection, viz., the intersection of Thirty-Second street and Calumet avenue. Thirty-Second street, including the intersection aforesaid, had within less than four years before been paved by the city with macadam, and the evidence, practically without contradiction, showed that the pavement at the street intersection was still in good condition. The view of the county court was that the requirement of the ordinance that the macadam pavement laid in the intersection of Thirty-Second street and Calumet avenue, which had been in place less than four years and was in good, serviceable condition, should, at the expense of the property owners, be torn up and replaced by a pavement of asphalt, was so unreasonable and oppressive as to justify the court to declare the ordinance to be void.

An ordinance adopted by a city under a grant of power from the General Assembly to legislate generally on a given subject, as was the ordinance here under consideration, if unreasonable, unjust, and oppressive, will be held invalid by the courts; and whether it is so unreasonable and unjust is a question for the decision of the court, in view of the existing circumstances and contemporaneous conditions. This rule has been frequently declared, and it is not questioned by counsel for the city. The power with which the court is vested to annul the action of the lawmaking body of a municipal corporation should, as is suggested by counsel for the city, be exercised only in clear and strong cases; but when such a case is presented it becomes the duty of the court to act, and protect the citizen against arbitrary and oppressive ordinances. We agree with the county court that the ordinance here under consideration should be regarded as inoperative. The macadam pavement of the intersection had been in place less than four years. It was in good condition, and no reason for removing it appeared. To impose upon the owners of the property in these two blocks affected by the ordinance the burden of defraying the expense of tearing up and removing the macadam and of repaving the intersection with asphalt cannot be defended against the insistence that it arbitrarily and unreasonably cast upon them unnecessary expense and operated unjustly upon them. The judgment is affirmed.

owner's damages is the fair cash market value of the land proposed to be actually taken, having proper regard to the location and advantages as to situation and the purposes for which it was designed and used, together with the amount, if any, which lands not taken would be depreciated in their fair cash market value by the construction and operation of the proposed road.

2. In a proceeding to condemn land for a railroad right of way, damages resulting from danger to the person of the owner of the land from the construction and operation of the road are too remote, uncertain, and speculative to be considered.

3. An erroneous instruction on the measure of damages, in a proceeding to condemn land for a railroad right of way, was not cured by the giving of another instruction stating the correct measure of damages.

4. Where, in a suit to condemn land for a railroad right of way, a witness had made no investigation and possessed no knowledge qualifying him to testify as to whether the sewer system of an incorporated town was low enough and large enough to accommodate the sewage from the subdivision through which the right of way was sought to be obtained, it was error to permit him to testify that the sewer system of the town was available therefor.

Appeal from Lake County Court; D. L. Jones, Judge.

Action by the Chicago & Milwaukee Electric Railroad Company against Margaret A. Mawman and others to condemn a right of way. From a judgment awarding defendants' damages, complainant appeals. Reversed.

Charles Whitney and William C. Upton, for appellant. J. K. Orvis, for appellees.

SCOTT, J. Rockland is a subdivision within the corporate limits of Lake Bluff, in Lake county. It consists, as platted, of eight blocks of ground with intervening streets, but the streets have never been opened or graded. This was a petition filed by appellant in the county court of that county to condemn a right of way across certain lots and parts of lots in this subdivision. The total area of such lots and parts of lots is 364/100 acres. The area of the right of way across those tracts is 142/100 acres. These tracts are the property of a number of persons who are related to each other, and who are referred to in the litigation as the "Mawman Family." On the trial the jury heard the evidence introduced in open court, and viewed the premises, and by their verdict found the land taken for the right of way to be of the value of $4,894.01, and the damages to land not taken to be $1,229.22. Judgment was entered on the verdict, and the railroad company appeals to this court, and complains of the admission of improper evidence, of the giving of one instruction requested by respondents, and that the verdict is contrary to the evidence. The basis of the complaint, so far as the verdict is concerned, is that the compensation allowed is excessive in amount.

295.

2. See Eminent Domain, vol. 18, Cent. Dig. §§ 294,

The instruction in question is as follows: "You are instructed that it is competent in this case to take into consideration the value of the land taken in the construction and use of the railroad, as well as damages on account of unfavorable division of the lands not taken by the construction and use of the railroad, thereby causing inconvenience and danger to the person and property of the defendant, if shown, in the use and occupancy of the balance of the land." Appellant's position is that the instruction should not have included danger to the persons of the respondents. The measure of respondents' compensation is the fair cash market value of the land proposed to be actually taken, having proper regard to the location and advantages as to situation and the purposes for which it was designed and used, and the amount, if any, which their lands not taken would be depreciated in their fair cash market value by the construction and operation of the proposed road. Chicago, Burlington & Northern Railroad Co. v. Bowman, 122 Ill. 595, 13 N. E. 814; Chicago, Milwaukee & St. Paul Railroad Co. v. Hall, 90 Ill. 42; Dupuis v. Chicago & North Wisconsin Railway Co., 115 Ill. 97, 3 N. E. 720; Wabash, St. Louis & Pacific Railway Co. v. McDougall, 126 Ill. 111, 18 N. E. 291, 1 L. R. A. 207, 9 Am. St. Rep. 539; Illinois Central Railroad Co. v. Turner, 194 Ill. 575, 62 N. E. 798. Damages resulting from danger to the person of the owner of the land from the construction and operation of the road are too remote, uncertain, and speculative to be considered by the jury in fixing the amount of the owner's compensation for lands taken and for the depreciation in the value of lands which will be damaged, but not actually taken, by the construction and operation of the proposed road. McReynolds v. Burlington & Ohio River Railway Co., 106 Ill. 152; Conness v. Indiana, Illinois & Iowa Railroad Co., 193 III. 464, 62 N. E. 221.

Another instruction was given which correctly stated the measure of compensation, and it is urged by counsel for appellees that the defect in the foregoing instruction, if any, is thereby cured. This is not an instance where an element omitted from one instruction is supplied by another, so that the two, taken together, state the law correctly. Here one instruction states the correct measure, and the other states an incorrect measure. The jury could not determine which they should apply.

Rockland subdivision is not touched by a sewer. There is a sewer system in the village of Lake Bluff. Edward Mawman, one of the respondents, was a witness, and, without showing that he had made any investigation or possessed any knowledge which would qualify him to speak on the subject, he was permitted, over the objection of appellant, to testify, in substance, that the sewer system of Lake Bluff was low enough and large enough so that sewage from Rockland sub

division could be drained into it and carried away by it. This was error; whether of so grave a character as to require a reversal we do not determine, but point it out that it may be avoided on another trial of the cause.

As the case must be reversed, we do not deem it advisable to discuss the amount of the verdict, except to say that it leads us to conclude that the jury may have been misled by the erroneous instruction.

For the error in giving the instruction above set out, the judgment of the county court is reversed, and the cause remanded to that court for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.

PISA v. REZEK et al.

(Supreme Court of Illinois. Dec. 16, 1903.)

APPEAL-DISMISSAL-MOTION TO SET ASIDE.

1. A motion to vacate an order dismissing an appeal on the ground that by a proper construction of the rules of practice movant was entitled to one day's notice of the motion to dismiss must be made during the term at which the appeal was dismissed, and cannot be allowed when made at the next term.

Appeal from Appellate Term, First District.

Claim by Matej Pisa against Anton Rezek, as administrator of the estate of Marie Rezek, deceased, and others. From an order of the probate court disallowing the claim, the claimant appealed to the circuit court, where the appeal was dismissed on motion, and from an order denying a motion to vacate the order dismissing the appeal claimant appealed to the Appellate Court. From a judgment of that court (108 Ill. App. 198) affirming the order, claimant appeals. Affirmed.

Jones & Lusk, for appellant. Kraus, Alschuler & Holden, for appellees.

BOGGS, J. From an order entered in the probate court of Cook county disallowing the claim of the appellant in the sum of $1,700, filed against the administrator of the estate of Marie Rezek, the appellant perfected an appeal to the circuit court of Cook county by filing an appeal bond in the said probate court. The appeal bond and the transcript were filed in the circuit court on the 16th day of December, 1901. On the 3d day of April, 1902, certain of the heirs of the said deceased were permitted to become parties defendant, and they entered their appearance. On the 19th day of April, 1902, being the last day of the March term, 1902, of said court, an order was entered dismissing the appeal and adjudging that the costs should be paid by the appellant claimant. On the 7th day of June, 1902, being one of the days of the subsequent May term of the said court, the appellant entered a motion to set aside and vacate the order dismissing the appeal and adjudging that the appellant pay

¶ 1. See Appeal and Error, vol. 3, Cent. Dig. § 3183.

the costs; but the court overruled the motion. The appellant perfected an appeal to the Appellate Court for the First District, and, the judgment being affirmed, has prosecuted this, his further appeal, to this court.

The circuit court correctly refused to grant the motion, entered at its May term, to vacate the order and judgment of dismissal which had been entered at its March term. That motion was not filed at the March term of the court at which the judgment of dismissal was entered, but at one of the days of the second subsequent term of the court. Defects or imperfections in matters of form in the record, pleadings, process, entries, returns, or other proceedings may be rectified, on motion, at a subsequent term. But an alleged error at law cannot be examined, revised, or corrected by the court on a mere motion entered after the close of the term at which the alleged erroneous action was taken and final judgment entered. Tosetti Brewing Co. v. Koehler, 200 Ill. 369, 65 N. E. 636. The motion substituted by the statute for the writ of error coram nobis may be invoked to enable the court to correct an error of fact that came within the scope of the writ as it existed at the common law, that the judgment was entered against a deceased person, an infant without a guardian, a feme covert, a person insane at time of trial, or a valid defense existing in fact, but which, without negligence of defendant, was not made, either through duress, fraud, or excusable mistake, without negligence on the part of the party who, by the motion, complained of the action of the court. 5 Ency. of Pl. & Pr. p. 27. The motion herein entered by the appellant did not seek to bring to the attention of the court any error of fact which was within the scope of a writ of error coram nobis at the common law. The motion disclosed no ground of complaint, but it appeared from affidavits filed in support thereof that the vacation of the order of dismissal was asked upon the ground that under the proper construction of the rules of practice in said circuit court the appellant was entitled to one day's notice in writing that the motion of the appellees that the appeal from the probate court be dismissed would be taken up and considered, and that such notice in writing had not been given. The court had jurisdiction of the parties and of the subject-matter, and proceeded to final judgment, and the judgment entered in the cause could not be opened and reviewed at a subsequent term to correct an alleged error in the construction or application of the rules adopted by the court to regulate the practice in the court. It is only the correction of matters of form, clerical errors, or matters quite of course that may be had on mere motion, after the close of the term. Tosetti Brewing Co. v. Koehler, supra, and cases there cited.

The judgment must be and is affirmed. Judgment affirmed.

1. Questions as to the admission of evidence, which were not presented to the Appellate Court, and which do not appear, from the abstract prepared for the Appellate Court, to have been excepted to on the trial, cannot be considered on appeal from the Appellate to the Supreme Court.

2. An instruction which, as given by the court, is not abstracted, cannot be considered on appeal to the Supreme from the Appella te Court.

3. Under a benefit certificate payable in case insured should become "totally incapacitated to perform manual labor," total incapacity means inability to perform sustained manual labor, so as to enable one to earn or assist in earning a livelihood.

4. In an action on a benefit certificate an instruction defining "permanent" incapacity as such as would "exist through all time" could not be complained of by insurer.

5. Where a beneficiary in a fraternal insurance society presented his claims in a satisfactory manner to the subordinate lodge, which forwarded them according to custom to the grand lodge, which received and acted upon the claims as having been properly presented, the society could not urge complaints as to the manner of presentation of the claims.

6. Where a benefit certificate was for a specified sum, payable to the beneficiary if totally disabled, interest on such sum was properly allowed from the date of refusal to pay the claim on its presentation according to the by-laws of the society.

Appeal from Appellate Court, Fourth District.

Action by Charles Orrell against the Grand Lodge of Locomotive Firemen. From a judgment of the Appellate Court, affirming a judgment for plaintiff (for opinion, see 97 Ill. App. 246), defendant appeals. Affirmed.

John H. Murphy and Jack, Irwin, Jack & Danforth, for appellant. R. J. McElvain and R. J. Stephens, for appellee.

BOGGS, J. The circuit court of Jackson county. on a trial before the court and a jury, awarded the appellee a judgment in the sum of $2,152.50 against the appellant lodge on a beneficiary certificate, and on appeal to the Appellate Court for the Fourth District the judgment was affirmed. The case comes into this court on a further appeal of the appellant lodge.

The assignment as for error that the Appellate Court erred in not reversing the judgment of the circuit court because that court erroneously admitted testimony in behalf of the appellee cannot be considered, for the reason such complaints were not presented for decision to the Appellate Court. It appears from the opinion of the Appellate Court that the record, as abstracted, did not show that any objections were offered in the trial

16. See Insurance, vol. 28, Cent. Dig. § 1982.

court to the reception of this evidence, or that any ruling as to the admissibility of such evidence was asked of the trial judge or exception of any kind taken. The abstract, as prepared for the submission of the cause to this court, shows objections and exceptions to the introduction of the evidence; but counsel for the appellee, by leave of the court first had, filed a certified copy of the abstract on which the cause was submitted in the Appellate Court, and it fails to show that the appellant objected in the trial court to the evidence or that any exceptions were preserved. The transcript of the evidence found in the record is typewritten, and no objections or exceptions as to this evidence appear in typewriting. Objections and exceptions have been interlined with a lead pencil, but the abstract prepared for the submission of the case in the Appellate Court did not refer to any of the objections or exceptions now appearing in pencil writing. This appeal brings the action of the Appellate Court in review, and questions not presented to the Appellate Court are not before us for decision. Indiana Millers' Mutual Fire Ins. Co. v. People, 170 Ill. 474, 49 N. E. 364.

Many objections are urged against the instructions given to the jury. Those having reference to instruction No. 1, given at request of the appellee, in the greater degree arise from the effect of the word "not," which, as appears from the abstract, was used in a phrase of the instruction, "as is not here claimed." The instruction as abstracted appears in the record as originally certified, but counsel for the appellee procured an additional transcript to be filed in the Appellate Court, which additional transcript contains a corrected copy of the instruction, from which it appears the word actually used in the phrase of the instruction was "now," and that the word "not" did not appear in the instruction, leaving the phrase to read, "as is now here claimed." Instruction No. 1 as given by the court is not abstracted, and therefore is not before us for review.

The beneficiary certificate sued on provided for the payment to appellee of the sum of $1,500 "in the event of his total disability." His suit was to recover for that cause. The right of the appellee to recover depended, in part, upon the meaning to be given the phrase. "totally and permanently incapacitated from performing manual labor," as employed in the following by-law of the appellant lodge:

"Sec. 60. A beneficiary member in good standing who shall be totally and permanently incapacitated from performing manual labor shall be entitled to the full amount of his beneficiary certificate, provided that all claims arising under the provisions of this section shall be referred to the grand lodge officers, who shall make a personal investigation thereof, employing such physicians as in their judgment may be necessary to determine the validity of the same, all expense

so incurred to be paid by the claimant unless assumed by the lodge of which he is a member."

Instruction No. 9, given at the request of the appellee, was as follows: "The term 'manual labor,' in its ordinary and usual meaning and acceptation, means labor performed by and with the hands or hand, and it implies the ability for such sustained exercise and use of the hands or hand at labor as will enable a person thereby to earn or assist in earning a livelihood. Being able to temporarily use the hands or hand at and in some kind of labor, but without the ability to sustain such ordinary exercise and use of the hands at some useful labor whereby money may be earned to substantially assist in earning a livelihood at some kind of manual labor, does not constitute the ability to perform manual labor as it must be understood was contemplated by the parties to the indemnity contract sued upon and relied on in this action."

The purpose of this instruction was to define the meaning of the words "manual labor," and to advise the jury as to the physical condition which would constitute total incapacity to perform manual labor. Counsel for appellant lodge insist that the phrase "total incapacity" means absolute and complete inability to perform any labor whatever with the hand or hands, and the criticism upon the instruction is that it erroneously advised the jury that the appellee may be regarded as totally incapacitated though he be not absolutely incapacitated to use his hand or hands in some manner of useful labor. The construction given by the instruction is proper. A condition of absolute and complete incapacity to do any manual labor ought not to be regarded as the true construction of the language of the by-law. Total inability to perform manual labor to an extent necessary to entitle him to receive earnings is what is meant. One who has power to use his hand or hands at labor for a brief effort only, and who is lacking in power to sustain the effort for a sufficient length of time to make the result thereof of any benefit to him in the way of assisting in his support, is for all practical purposes and in every actual sense totally incapacitated from performing manual labor.

The meaning to be given the word "permanently," used in the by-law in connection with the condition of incapacity, was given in a number of instructions, among them instructions Nos. 5, 13, and 15, which, in substance, charged the jury that the disability or incapacity, to be deemed permanent, must be shown to be such that "it will exist throughout all time." It must not be understood we approve of this construction of the word "permanent," but the appellant company cannot complain that it is unjust to it.

Counsel for the appellant lodge insist that compliance with the requirements of sections 60 and 62 of the by-laws, that all claims for