author: Mb. Justice Fbiend

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Complainant, v. Chicago Bank of Commerce, Defendant. William L. O’Connell, Receiver of Chicago Bank of Commerce, Plaintiff in Error, v. Josephine Glynn, Defendant in Error.
    Gen. No. 37,918.
    Opinion filed November 5, 1935.
    Schuyler, Weinfeld & Hennessy, of Chicago, for plaintiff in error; C. Ernest Heaton and Herbert M. Johnson, both of Chicago, of counsel.

      Habbington & McDonnell, of Chicago, for defendant in error; Joseph T. Habbington, of counsel.
   Mb. Justice Fbiend

delivered the opinion of the court.

William L. O’Connell, receiver of the Chicago Bank of Commerce in a dissolution proceeding pending in the circuit court, sued out a writ of error to review a decree entered July 12, 1933, finding the deposit liability of said bank to Josephine Glynn, petitioner, amounting to $15,035, to be a prior and preferred claim, and directing* said sum to be paid out of the receivership estate in the due course of administration.

From the undisputed facts it appears that on June 24,1932, Josephine Glynn was a depositor in the Union Bank of Chicago, which had in 1931 issued to her its passbook No. 31457. In October of that year all deposit liabilities of said bank, including petitioner’s, were transferred to the Chicago Bank of Commerce. Petitioner’s total savings deposit amounted to $15,035. J une 24,1932, at about one o ’clock in the afternoon she entered the bank and made out a withdrawal receipt against the entire balance in her account and presented same to the teller of the bank, who referred her to John G. Nichols, assistant cashier in charge of savings, for his approval. Nichols marked the withdrawal receipt “O. K. J. G. N.,” and handed it back to her, saying that because of the unusual request for withdrawal of such a large amount the savings department did not then have sufficient currency of large denominations, and he requested her to be seated and wait until a messenger, who he said had been dispatched to the Continental Illinois Bank & Trust Co. for larger currency, should return. Petitioner took a seat and waited for about half an hour. Growing* impatient, she went over to see Nichols, who told her the messenger had not yet returned and that she should await his arrival a little while longer. She again waited a considerable time and then returned to Nichols, who said that in the excitement and rush of business he had forgotten all about her; that the bank had that day paid many heavy withdrawals; that the tellers had closed their books and turned their keys over to the auditing department of the bank; that the money was locked up in the vault; and he suggested that if she would come back the next morning the bank would take care of her. When she returned the next morning the bank was closed and in charge of the auditor of public accounts, and she was unable to gain entrance or see Nichols. It is conceded that at the closing of the bank, June 24, 1932, there was cash on hand in the sum of $27,443.10.

After overruling exceptions to the report of the master to whom the case had been referred for hearing, the court entered a decree finding, inter alia, “that upon presentation of the withdrawal receipt in question, the funds immediately became and were trust funds, rightfully belonging to petitioner, and that neither the bank nor the receiver therefor had any title to such funds; that said funds never, promptly after the presentation of the said withdrawal receipt, became either the property of the bank or of the receiver therein,” and decreed that the sum of $15,035 be allowed petitioner as a preferred claim to be paid to her out of the funds in the hands of the receiver in due course of administration.

It is conceded that when petitioner entered the bank June 24,1932, she was merely a general creditor of the bank. Title to the money which she had theretofore deposited passed from her to the bank and the relationship of debtor and creditor was created. Her deposits constituted a part of the bank’s assets and under ordinary circumstances she would have had no right to a preference when the bank became insolvent, but would have shared pro rata with the bank’s general creditors. To this general rule there are several exceptions, stated in People v. Stony Island State Savings Bank, 358 Ill. 118, as follows:

“First, where money or other thing is deposited with the understanding that the particular money or thing is to be returned to the depositor; second, where the money or thing deposited is to be used or applied for a specifically designated' purpose; and third, where the deposit is wrongful or unlawful. To make a deposit a special one the bank must be made an agent or trustee rather than a debtor, and its agency or trusteeship cannot be created out of the mere external relation of debtor and creditor unless the deposit is wrongful or the law forbids the bank becoming a debtor.”

Petitioner first seeks to bring herself within these exceptions by advancing the theory that when Nichols approved the ivithdrawal slip presented by her, a new agreement or contract was entered into with the bank which changed her status as a depositor and constituted the bank as her agent for the safekeeping of the funds. This theory appears to be an afterthought, however, for the intervening petition is predicated upon “the wrongful and willful, fraudulent and negligent act of said officers ... in refusing to make payment, ’ ’ when sufficient funds were on hand to meet her demand, and the augmentation of the bank’s assets ‘ ‘ assumed and taken over by the receiver. ’ ’ The petition does not allege a new agreement nor does it charge that an agency was created by reason of the circumstances. It is averred that Nichols “advised” her at the time that the tellers had closed their reports, balanced their books, and that “all cash had been transferred to the vaults” in accordance with the usual practice of that department, and “advised” her that if she would return the following day the sum demanded by her would be paid. The master’s report finds that Nichols “suggested” that she come back the following morning, and the decree finds that “he suggested that she come hack the following morning.” Nichols testified that the cash, which by stipulation of the parties amounted to $27,443.10, had been put in the vault and that there was sufficient currency on hand to meet petitioner’s demand. There is nothing in the record, however, to sustain the claim that the particular amount of $15,035 had been segregated and placed in the vault by the bank as her agent, or that any new agreement was made by the parties to change the relationship of creditor and debtor.

Petitioner’s major contention, and the theory upon which the matter was tried before the court and master, is that the conduct of the assistant cashier was so tainted with fraud as to constitute the bank a trustee, ex maleficio, and impressed the general funds of the bank with a trust in her favor for the sum of $15,035. The receiver contends that petitioner acquiesced in the course of conduct pursued by the bank, and that the bank at no time on June 24, 1932, refused to pay her the sum on deposit. A considerable portion of both briefs is devoted to arguments pro and con upon this question. Manifestly the assistant cashier was seeking delay. All the events disclosed by the evidence transpired between one and two o’clock. Petitioner demanded her money, her withdrawal slip had been approved by Mr. Nichols, and we think the bank’s conduct amounted to a refusal to pay petitioner the funds demanded. Therefore, the question presented is whether the demand and refusal operated to create a trust in favor of petitioner. It has been so held in some jurisdictions (Bryan v. Coconut Grove Bank & Trust Co., 101 Fla. 947; Johnson v. Farmers’ Bank of Clarksdale, 223 Mo. App. 513, 11 S. W. (2d) 1090; Claxton v. Cantley (Mo. App.), 297 S. W. 975), but the weight of authority is decidedly to the effect that no trust can arise in favor of a depositor under the circumstances of this case. This court has considered and passed upon the principles involved in cases presenting similar facts.

In People v. First Italian State Bank, 281 Ill. App. 1, the petitioners, Matteo Pennisi and Angela Pennisi, had on deposit in their savings accounts with the First Italian State Bank the respective sums of $500 and $1,522.50. Various demands for payment had been made by claimants and by their bank for them on defendant bank, and all requirements as conditions precedent to the right of payment had been fully complied with. It was not disputed that a customer’s demand draft had been signed by petitioners for $1,522.50, which was drawn and forwarded to defendant bank by Harris Trust & Savings Bank for collection. It was there contended that when the Harris Trust & Savings Bank presented to defendant bank the demand draft signed by petitioners it became the duty of the bank to pay the draft by collecting the amount thereof from the savings accounts of petitioners in defendant bank. Relative to this situation the court said:

“We are of the opinion that neither by the presentation of a check in person by the depositor, nor by a demand made through the presentation of a draft by a drawee bank upon a depositary bank and refusal to pay, is the amount segregated from the general fund or the deposited money made a trust fund separate and apart from the general assets; that such act of the debtor in refusing to pay would justify the creditor in maintaining an action to recover the amount due and to participate as a general creditor in the funds of the bank.

“In the instant case, the acts of the parties do not indicate that it was the intention to create a fund separate and apart from the general assets of the defendant bank, and the evidence does not disclose anything but that the defendant’s refusal to pay the draft was its inability to meet the demand. There is no evidence that the bank collected the amount of the depositors’ accounts with the defendant, or that such collection was deposited by such bank to its account.

“. . . In this case there was no understanding by the parties that the particular money deposited ivas to be returned, or that the money deposited was to be used for a specific purpose. The money so deposited was not wrongfully received by the bank. The claimants, by the deposit of the funds in defendant’s bank, and from the facts as they appear in evidence, can only be regarded as general creditors, and the fact of the demand did not establish their claim as a preferred claim to be paid prior to the claims of the general creditors. The court, therefore, in allowing their claim as a claim to be paid together with the claims of all general creditors, did not err. For the reasons indicated, the decree of the chancellor is affirmed.”

In People ex rel. Nelson v. Bryn Mawr State Bank, 273 Ill. App. 415, a depositor in a state bank inquired of the teller therein the amount of his account and thereupon wrote a check for the balance, presented same and demanded its payment. At the direction of the teller the check was taken to an officer of the bank, whose approval was indorsed thereon. When the check was again presented the teller began to count out the money. He was called to the telephone and upon his return he told the depositor that the bank was in the hands" of the state auditor, and refused to pay the check. The court held that the depositor was not entitled to have his check paid by the bank’s receiver as a preferred claim on the theory of a trust fund. One of the justices dissented, holding that since the bank was open and doing business when the check was presented for payment, it became the legal obligation of the bank to pay upon demand and that when the bank refused to honor the check it held the amount on deposit as a trust fund subject to any future contingencies that might arise, citing the Florida and Missouri cases hereinbefore cited.

It is urged by the receiver that for the creation of a trust there must be a segregation of funds or an augmentation of the assets of the bank. This doctrine is clearly stated in Leach v. Sanborn State Bank, 203 Iowa 401, as follows:

‘ ‘ The right to reclaim a trust fund is predicated on a right in property, and not on the theory of compensation for its loss; although it is not material whether the subject of the trust was in the form of money or other property. It must appear, at least by presumption, that it reached the receiver, so as to increase, in some form, the assets in his possession from which it may be taken without infringing the rights of creditors. . . .

“To enforce a preferential claim on the theory of a trust, and to establish the claim against the assets in the hands of a receiver of a bank, the trust funds must be traceable to or serve to augment the assets of the bank to the extent thereof. ’ ’

This doctrine has been approved by our courts in Howland v. People, 229 Ill. App. 23, and In re National Bank of Ottawa, 273 Ill. App. 545. In Blakey v. Brinson, 286 U. S. 254, a savings depositor in a national bank, pursuant to conversations with the bank’s officers, increased his account by deposit in the usual way to an amount sufficient to pay for some bonds which the bank .had undertaken to purchase for him. Later the officer told him that he had obtained the bonds, and handed him a charge slip showing the cost, including principal, accrued interest, and commission. The total was charged against the depositor’s account and credited on the bank’s books as a deposit in a bond account. Soon afterward the bank closed its doors, and it was discovered that no bonds had in fact been purchased, ordered or received for the depositor. The court disregarded the debit entry and held that no trust had been created, and that the depositor continued to be a general creditor. Mr. Justice Stone, speaking for the court, said:

“The court below thought that the legal consequence to be attributed to the debiting of the account'with the supposed purchase price of the bonds was the same as if the respondent had cashed a check for the amount and had then proceeded to hand the money back to the bank under a specific agreement between him, and the bank that the money was to be held as a special fund, for the sole purpose of completing the purchase. This view is not without support. (See Davis v. McNair, 48 F. (2d) 494; State v. Grills, 35 R. I. 70, 75, 85 Atl. 281; Northwest Lumber Co. v. Scandinavian American Bank, 130 Wash. 33, 225 Pac. 825; State v. American Exchange Bank, 112 Neb. 834, 201 N. W. 895. See, contra, Beard v. Independent District of Pella City, 88 Fed. 375, 381; Mark v. Westlin, 48 F. (2d) 609; First National Bank v. Williams, 15 F. (2d) 585; Howland v. People, 229 Ill. App. 23; Miller v. Viola State Bank, 121 Kan. 193, 246 Pac. 517; People v. Merchants & Mechanics’ Bank of Troy, 78 N. Y. 269; Hecker-Jones-Jewell Milling Co. v. Cosmopolitan Trust Co., 242 Mass. 181, 136 N. E. 333.) Such a procedure, if actually carried out, might afford a basis, which is lacking here, for the inference that respondent, no longer content with the role of creditor, had sought to establish a trust fund. But the mere debiting of his account, without more, for the reimbursement of the bank for the obligation which it was supposed to have incurred or paid, lends no support to such an inference. The cancellation of the credit balance by the debit neither suggests any intention to establish a trust nor points to any identifiable thing which could be the subject of it.”

In Clark v. Chicago Title & Trust Co., 186 Ill. 440, Clark had over $3;000 on deposit in the Globe Savings Bank of Chicago. On Saturday, April 3, 1897, shortly before 12 o’clock of that day he obtained a cashier’s check for $3,000 payable to his order, which was deposited in another bank. Monday morning the check was thrown out by the clearing house, the Globe Savings Bank having meanwhile passed into the hands of a receiver. Thereafter Clark filed an intervening petition in the receivership proceedings alleging that by virtue of the cashier’s check the bank had assigned to him $3,000 in cash and credited itself with that sum, leaving petitioner with a deposit of $60.30, and that appropriate entries were made in his passbook, as shown by the evidence. The receiver’s answer averred that no money was in fact set apart by the bank when the check was drawn, but that a credit merely was changed from the passbook to a cashier’s check, and that the relationship of creditor and debtor between the bank and depositor was in nowise changed, and that no separate fund came into the hands of the receiver. In commenting on this branch of the case, the court said:

‘‘ The check was not drawn by a depositor against a deposit, but was simply an acknowledgment of an indebtedness on the part of the bank to the payee of the order. As between the bank and appellant it was, in legal effect, the same as a certificate of deposit or a certified check.”

Upon the authority of the foregoing decisions, we hold that there was no segregation of petitioner’s deposit, no augmentation of the assets of the bank to the extent thereof, and that the relation between petitioner and the bank continued to be that of debtor and creditor.

It is with some reluctance that we reach this conclusion, because the circumstances of the case indicate that the assistant cashier must have known the bank’s condition when petitioner demanded her money and pursued a course of conduct which was evidently calculated to delay payment until the bank had closed its doors at two o’clock. However, the authorities in this State and the decisions of this court have consistently followed the conclusion here reached under similar circumstances, and with the exception of a few jurisdictions which hold otherwise, the rule laid down is generally followed. Undoubtedly one of the considerations leading to this conclusion is that an individual depositor should not be preferred as against the great body of depositors of defunct banks unless it can be clearly shown that the relationship of debtor and creditor has been changed or that his fund became impressed "with a trust by reason of a segregation of the funds claimed or an augmentation of the assets assumed by the receiver. The facts in this case do not lead to that conclusion. Therefore, the decree of the circuit court will be reversed and the cause remanded with directions that the court below enter a decree ordering the claim of Josephine Grlynn to be allowed as a general claim, payable in due course of liquidation of the Chicago Bank of Commerce pro rata with the bank’s general creditors.

Reversed and remanded with directions.

Scanlan, P. J., and Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    George W. Blomgren, Appellee, v. Fred Cowley, Appellant.
    Gen. No. 37,994.
    Opinion filed November 5, 1935.
    Kenneth B. Kirk, of Chicago, for appellant.
    Merle E. Finch, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Defendant seeks to reverse a municipal court judgment rendered in favor of plaintiff for $500 which was founded on an Unpaid subscription by defendant for five shares of the capital stock of Casa Del Mar Investment Trust, a common law trust.

The facts, so far as they are essential to a consideration of the issues involved, disclose that in 1931, and prior thereto, defendant held a life membership in Club Casa Del Mar, a golf and country club, entitling him to certain privileges without payment of dues or assessments. The club had been organized on a rather extensive scale and many life memberships had been sold at substantial prices. During the early years of the depression there were not sufficient due-paying members to carry the club, and in 1930 it found itself in serious financial straits. Various methods were resorted to for raising revenue, without avail, and in the forepart of 1931 Howard D. Moses, a lawyer and president of the club, called a meeting of members and urged them to subscribe $50,000 to meet certain mortgage debts then due which could not be extended. As a means of protecting those who contributed to the fund, Moses proposed the formation of a common law trust and the issuance of certificates to the contributing members, which would become a lien on the club’s property so that if the club did not eventually pay the mortgage indebtedness the trust could foreclose the mortgages and become owner of the property. A sum greatly in excess of the amount due on the mortgages had been invested in the club, and this method of saving its property to the use of the members as a club seemed both safe and expedient. The proposed plan was adopted, a syndicate or common law trust (hereinafter referred to as the trust) was formed and members subscribed for stock therein to the extent of approximately $52,000. Defendant subscribed for five shares at $100 each.

The trust took over the first mortgage on the property, and the club was given considerable further time within which to meet its indebtedness. Eventually, however, the club failed to take care of the indebtedness and it became necessary for the trust to take over the property and operate the club until a sale could be made to other parties. In all these transactions those in charge of the syndicate exercised the utmost good faith and integrity.

In June, 1931, a new club, known as Casa Del Mar Country Club, was incorporated, all properties of Club Casa Del Mar were turned over to it and it continued to operate until 1934, when, following foreclosure by the trust, the Longwood Country Club was organized. In the several reorganizations that took place, when it became necessary to form new corporations, provisions were made whereby all old club members could join the new organization on reasonable terms.

It is first urged as ground for reversal that the shares of Casa Del Mar Investment .Trust were class “D” securities within the meaning of the Blue Sky Law, and that noncompliance with the act constitutes a defense to an action against defendant on the subscription agreement. Class “D” securities are by section 8 of the Securities Act (ch. 32, ¶ 261, Ill. State Bar Stats. 1935), defined as follows:

“All securities other than those falling within class ‘A,’ ‘B,’ ‘C’ and securities of organizations described as ‘investment trusts, ’ and ‘investment contracts, ’ respectively, shall be known as securities in class ‘D.’

Obviously, if the securities in question can be included in the definitions of class “A,” “B,” or “C” securities, they could not be classified or considered as securities in class “D. ” Section 5 of the act (par. 258) provides:

Securities in class ‘B,’ being exempted sales, shall include: . . .

“(2) Securities of a corporation when sold or distributed by it among its stockholders without the payment of any commission or expenses to agents, solicitors or brokers, and without incurring any liability for any expenses whatsoever, in connection with the distribution thereof.”

We think this description is applicable to the securities in the instant case. The shares in the trust were not sold to the public generally but were “sold or distributed by it among its stockholders.” This is true whether the word “it” be construed to relate to Club Casa Del Mar or the syndicate subsequently organized. Moreover, it appears that the shares were sold “without the payment of any commission or expenses to agents, solicitors or brokers, and without incurring any liability for any expenses whatsoever, in connection with the distribution thereof.” Plaintiff relies on Wilder National Tavern System v. Jillson, 256 Mich. 479, to support its contention that these, securities fall within class “B.” That was an action by plaintiff, an Illinois corporation, organized February 23, 1926, to recover a stock subscription. Defendant, who was interested in its formation and organization, subscribed to its capital stock: The offer to subscribe was not effective because of a change in the proposed capitalization. Thereafter, on April 3, 1926, the defendant in Michigan signed a subscription for stock to the amount of $1,050, and mailed it with his check for $100 to an officer of the company at St. Louis, Mo. The check was taken to Columbia, Illinois, the home office of plaintiff and there cashed and stock certificates executed in favor of defendant and kept by the company under the terms of the subscription. Suit was brought to recover the balance due on the subscription, and the appeal was prosecuted from a judgment in plaintiff’s favor. In its opinion the court said that the decisive question presented was whether the subscription violated the Blue Sky Law of Illinois, where it was accepted and the shares of stock executed. In a rather short opinion, from which we quote at length, the Michigan court said:

“If defendant was interested in promoting the organization of the corporation and agreed to subscribe for shares of stock therein when it was organized, then there was no violation of the blue sky law of Illinois.

“At the date of organization of the corporation defendant was in Germany and sent a radiogram, asking reservation of stock for him in the new company. The later subscription is explained by change in the capitalization.

“The case does not present an instance of sale of corporate stock to a purchaser, upon solicitation after incorporation, but a subscription by one interested in the creation of the corporation, and defendant’s subscription falls within the issue of stock to organizers of the corporation.

“The Illinois blue sky law exempts from its provisions distribution of capital stock to stockholders without incurring any expenses or liability therefor, such as commission. (Cahill Rev. Stat. Illinois, chap. 32, par. 258, subd. (2); Smith-Hurd Rev. Stat. Illinois, chap. 121½, sec. 100 (2).

‘‘ The judgment is affirmed, with costs to plaintiff. ’’

The transaction disclosed by the record in this case indicates that this was not a sale of stock within the meaning of the act. The members of Club Casa Del Mar, in order to save their own property, agreed among themselves to buy certain mortgages with which their property was incumbered. They knew precisely what they were buying, and needed no protection from the State. The only question confronting* each member was how large a share of these mortgages he was Avilling to buy, and that question he Avas perfectly able to determine for himself. It Avas not the purpose of the Blue Sky Law to interfere in such matters.

Defendant’s main brief proceeds upon the assumption that these securities Avere of class “D,” and cites cases holding that noncompliance Avith the Blue Sky Law constitutes a defense to an action on the subscription. In his reply brief he seeks to limit the exemption afforded by paragraph (2) of sec. 5 of the act to stock dividends or sales of treasury stock to those who were stockholders at the time of the sale and not to those who became stockholders by reason of the sale or distribution sought to be exempted. We do not believe that so narrow a construction can be placed upon the language employed, and regard the language of the act and the Jillson case hereinbefore discussed as controlling.

It is next urged that there was such a departure or deviation from the original purposes of the investment trust by those responsible for its creation as to constitute a complete failure of consideration for defendant’s agreement to pay, and that the subscription was unenforceable under general principles governing the law of contracts. The subscription agreement signed by defendant and other members of the club contained only one condition, namely, that the total subscriptions must aggregate not less than $50,000 and not more than $75,000. There is no contention that this condition was violated, and it would seem therefore that defendant’s agreement became absolute. The purpose of the subscriptions to the fund in question was that the contributors should purchase and take over the mortgages on the premises and give the club a reasonable time in which to pay, and in default of such payment the purchasers of the mortgage should have the same right to foreclose as the original holders thereof. In that event, defendant’s life membership in the club would of course have become worthless, and the only rights he would have in the property would be as a member of the syndicate which took over the property. In order to share in these rights, however, it would of course be necessary for him to fulfill his subscription contract. This theory is supported by the evidence of Daniel M. Flick, one of defendant’s witnesses.

Defendant takes the position that he subscribed for five shares of the capital stock of “Casa Del Mar Investment Co.,” and not the “Casa Del Mar Investment Trust.” When the subscription was made the trust which the contract contemplated had not yet been organized, and when it was afterward formed it adopted the name “Casa Del Mar Investment Trust,” instead of “Casa Del Mar Investment Trust Co.” This point is not raised by defendant’s pleadings, and there is no question as to the identity of the two trusts, as the affidavit of merits plainly shows. It has been held that a misnomer of plaintiff can be pleaded only in abatement, and is no ground for setting aside the proceedings. (Springfield Consolidated Ry. Co. v. Hoeffner, 175 Ill. 634; Moss v. Flint, 13 Ill. 570.) Since plaintiff’s statement of claim alleged that the subscription contract was a promise to pay to Casa Del Mar Investment Trust, and defendant did not deny that allegation in his affidavit of merits and permitted the contract to be introduced in evidence upon trial without objection, he cannot now, for the first time, raise the objection of a variance between allegation and proof. (Richelieu Hotel Co. v. International Military Encampment Co., 140 Ill. 248.)

Lastly, it is urged that the trial court erred in' refusing to reopen the case after all proofs had been made and the court had the case under advisement, for the purpose of permitting defendant to show that since the hearing Casa Del Mar Investment Trust had sold the property in question to the Longwood Country Club. From a legal point of view, it was utterly immaterial what Casa Del Mar Investment Trust did with the property after the foreclosure, because the members of the syndicate who had organized themselves as Casa Del Mar Investment Trust had the right to either foreclose their mortgage or otherwise acquire the property from the original club when the latter found itself unable to take care of the mortgage. Therefore, any evidence which defendant proffered as to the subsequent sale of the property in question became immaterial, and we think the offer was properly refused.

Under the circumstances of this case we think the judgment of the municipal court was properly rendered in favor of plaintiff, and it is therefore affirmed.

Affirmed.

Scahlah, P. J., and Sullivast, J., concur.


text:
    Chicago Title and Trust Company, Appellee, v. Jessie Provol et al., Appellants.
    Gen. No. 38,428.

      Opinion filed November 5, 1935.
    Irving N. Stenn and Aaron Soble, both of Chicago, for appellants.
    Stearns & Jones, of Chicago, for appellee; Lloyd M. McBride, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

In a foreclosure proceeding instituted by Chicago Title & Trust Co., plaintiff herein, versus Jessie Provol et al., defendants, a deficiency judgment ivas entered by the circuit court September 28,1934, against W. Lee Provol and Jessie Provol for $6,433.14. Execution issued thereon and was delivered to the sheriff April 23, 1935, April 29, 1935, before the sheriff had made his return, complainant filed a creditors’ bill seeking to subject a fund then on deposit in the First National Bank of Chicago, of which defendants were alleged to' be beneficial owners, to the payment of the deficiency judgment, and also a temporary injunction to restrain the bank from paying out the money on deposit or any part thereof pending the final determination of the cause. . The injunction issued May 2, 1935, but was subsequently dissolved May 29, 1935, on motion of defendants, and the complaint was dismissed for want of equity on the ground that the essential jurisdictional allegations of demand by the sheriff and return of the execution unsatisfied were lacking.

On the same day that the execution was returned by the sheriff showing the judgment unsatisfied in whole or in part, plaintiff filed a second creditors’ bill alleging substantially the same facts but including the additional averment with reference to the return of the execution by the sheriff. Upon notice duly served, the court issued an injunction June 7, 1935, temporarily restraining First National Bank from paying out any of the fund then on deposit belonging to defendants. Defendants subsequently moved to dissolve the injunction, and in support of their motion filed a lengthy verified statement setting forth in substance the allegations of the first complaint, the court’s dismissal thereof, the sheriff’s return of the execution May 29, 1935, the temporary restraining order, and urging particularly that the injunction be dissolved on the ground that there was an identity of parties and subject matter in both complaints and that the dismissal of the first complaint was a final adjudication of the rights of the parties. The court denied the motion, and this interlocutory appeal to reverse the order followed.

If the verified statement, filed by defendants to support their motion to dissolve the injunction and dismiss the complaint, be considered in the nature of a plea of res adjudicatei, the principal question for determination is whether the order or decree of May 29, 1935, was a final adjudication of the rights of the parties. It is conceded that the first complaint, which was dismissed, differed from the second, on which the injunction is predicated, only in that it failed to allege a demand by the sheriff and the return of the execution unsatisfied. The rule is well settled that where a judgment creditor seeks to satisfy a judgment out of equitable assets belonging to a judgment debtor an execution must have been issued and returned unsatisfied in whole or in part. The purpose of the proper return of the execution is to show that the judgment creditor has exhausted all his legal remedies before he applies to a court of equity for relief. Such allegations constitute the ground upon which equity will entertain jurisdiction. (Newman v. Willetts, 52 Ill. 98; Detroit Copper & Brass Rolling Mills v. Ledwidge, 162 Ill. 305; Scheubert v. Honel, 152 Ill. 313.)

When the first complaint was filed the sheriff had not yet made his return on the execution delivered to him April 23,1935, and it was therefore manifestly impossible for plaintiff to make any allegation with reference to the sheriff’s return. We think this amounted to nothing more than a premature filing of the complaint, because plaintiff’s legal remedy had not then been exhausted, and upon this theory the court properly dismissed the complaint. It did not, however, preclude plaintiff from filing another bill after the execution had been returned containing the necessary jurisdictional allegations, and that is precisely what occurred in these proceedings.

In Kenealy v. Glos, 241 Ill. 15, plaintiff filed a bill to quiet title. He was then neither in possession of the lot nor was it vacant and unoccupied. He was interested therein only as a holder of a master’s certificate under a foreclosure. The bill was dismissed for want of equity. Subsequently he filed a second bill and alleged that he was then the owner by virtue of a master’s deed, and was in possession. A plea of res ad judicata was interposed, but overruled by the court. The Supreme Court, in reviewing the proceeding, said:

“The effect of that decree was an adjudication that appellee was not then entitled to maintain his bill. . . . The present suit is based upon rights acquired by appellee since the former proceeding was disposed of.”

In Brackett v. People, 115 Ill. 29, the collector of Peoria county filed an application for judgment for a special assessment against appellant’s lot. Objections were filed on the ground that the collector had previously applied for the same judgment. The objection was sustained on the ground that it constituted a prior adjudication. The ground for the first objection was that the warrant issued by the city clerk was void because the assessment roll had never been certified by the commissioners to the clerk. Between the first and second applications for judgment the assessment roll was certified, as required. The Supreme Court held that the defect had been cured, and the judgment on the second application was affirmed, the court saying:

“A judgment against a party because the action was prematurely brought (and that, in effect, was the objection . . .) is no bar to a suit subsequently brought after the cause of action properly accrued. ’ ’

In Gage v. Ewing, 114 Ill. 15, and Peek v. Woman’s Home Missionary Society of M. E. Church, 293 Ill. 337, the original complaints were bills to quiet title. Both complaints omitted allegations necessary to equity jurisdiction, namely, that plaintiff was either in possession or that the land was unoccupied, and both bills were dismissed for want of equity. Second complaints were filed containing the necessary allegations. The Supreme Court in each instance held that the prior decrees of dismissal were not res adjudicata of the subsequent suits. In the Gage case the court set forth the rule as follows (p. 18):

“When the suit set up in the second plea was before us ... we held that, because the bill failed to show that the complainant was in possession, or that the premises were unimproved and unoccupied, the decree of the circuit court, granting the relief prayed for, was erroneous; that one or the other of these allegations was essential to give the court jurisdiction. That bill not having been subsequently amended, but dismissed in conformity with our ruling, the decree therein cannot be urged in bar of the relief sought by this bill. It contains the precise allegation because of the absence of which that bill was held to be defective. The dismissal of a bill because of some defect precluding relief is no bar to a second bill, in which such defect is cured, notwithstanding in other respects the material allegations are the same. ...”

In People v. Illinois Gent. R. Co., 307 Ill. 265, the court sustained a special demurrer to a complaint seeking to alter a decision of the tax commission because “the bill was lacking in averments of fact calling for the relief prayed for. ’ ’ It was held, however, that the decree did not preclude raising the question in a subsequent action because “the dismissal of a bill on demurrer because of some defect precluding relief is not an adjudication in a subsequent proceeding in which the defect is cured.!’ We regard these cases as controlling, and hold that the dismissal of the first complaint was not an adjudication of the rights of the parties, but was merely an adjudication that plaintiff was not then entitled to maintain his bill.

It is urged by defendants, however, that plaintiff could have alleged the insolvency of defendants as a jurisdictional ground for entertaining the first complaint, without alleging that the execution had been returned unsatisfied, and they cite Wojtas v. Rachel, 267 Ill. App. 148, to sustain their position. In that case, however, the insolvency of defendants was admitted, and no point was raised in the trial court as to the lack of necessary allegations to vest the court with jurisdiction. It may well be that plaintiff in this proceeding could not truthfully have alleged the insolvency of defendants, and therefore we cannot hold that such allegation should have been made in lieu of one relating to the return of the execution.

On the question of res adjudicata defendants rely on several Illinois decisions wherein the parties sought to relitigate questions of title on which there had been decisions adverse to their, interests in prior litigation. (Godschalck v. Weber, 247 Ill. 269; Klus v. Ruszel, 353 Ill. 179; Rubin v. Kohn, 344 Ill. 166.) The question of premature actions or pleadings, defective only as to requisite jurisdictional facts, was not involved. In the Godschalch case the court, recognizing the distinction between an adjudication of the rights of the parties on the merits of the litigation and defective pleadings or jurisdictional ground, said (p. 276):

“The dismissal of a bill for a defect going to the jurisdiction of a court of equity does not constitute a bar to another bill or action at law. (Gage v. Ewing, 114 Ill. 15; Lundy v. Mason, 174 Ill. 505.) But this rule does not apply here, for the case presented was within the jurisdiction of equity and it was decided on its merits.”

We think the case at bar falls squarely within the decisions holding that dismissal of a suit for lack of allegations in the complaint affording equity jurisdiction is no bar to a subsequent action where the necessary allegations are made.

During the pendency of this cause in the Appellate Court plaintiff filed a motion to dismiss the appeal because the record was not filed within 30 days after the injunctional order was entered. It was filed, however, within 30 days after the motion to dismiss was denied. Sec. 78 of the Civil Practice Act (Illinois State Bar Stats. 1935, ch. 110, ¶ 206) reads as follows:

“Whenever an interlocutory order or decree is entered granting an injunction, or overruling a motion to dissolve the same, ... an appeal may be taken therefrom to the Appellate Court; Provided, that such appeal is taken and the record is filed in said Appellate Court within thirty days from the entry of such interlocutory order or decree, . . . ”

Rule 21 of this court provides that:

“Where an interlocutory order or decree is entered on an ex parte application, the party proposing to take an appeal therefrom shall first present, on notice, a motion to vacate the order or decree to the trial court entering such order or decree. Appeal may be taken if the motion is denied, or if the court does not act thereon within seven days after its presentation. In such cases the thirty days allowed for taking appeal and filing the record in this court shall begin to run from the day the motion is denied or from the last day for action thereon.”

Rule 21 explicitly provides that “the thirty days allowed for taking* appeal and filing the record in this court shall begin to run from the date the motion is denied or from the last day for action thereon.”

Chap. 69, sec. 15 on Injunctions (Illinois State Bar Stats. 1935) provides that “a motion to dissolve an injunction may be made at any time upon answer or for want of equity on the face of the complaint,” and sec. 17 provides that “the defendant may support his answer by affidavits filed with the same, which may be read in evidence on the hearing of the motion to dissolve the injunction.”

If we were to adopt the construction sought to be placed upon the statute and rule by plaintiff, situations might arise where a defendant would lose his statutory right to appeal because in some instances it would necessarily require 30 days or more to prepare an answer and procure the requisite affidavits to support a motion to dissolve. We think that the statute and rule are both clear on this point, and that the 30-day period provided for taking appeal and filing the record begins to run from the date the motion is denied or from the last day for action thereon.

Accordingly the motion to dismiss the appeal will be denied, and the order of the circuit court granting a temporary injunction will be affirmed.

Affirmed.

Sqanlan, P. J., and Sullivan, J., concur.


author: Mr. Justice Sullivan

text:
    Russel E. Lanquist, Appellant, v. George Grossman and William Grossman, Appellees.
    Gen. No. 37,902.
    Opinion filed November 5, 1935.
    David K. Tone, of Chicago, for appellant.
    H. P. Grossman, of Chicago, for appellees; J. Herzl Segal, of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

Plaintiff, Russel E. Lanquist, sued defendants on their alleged contract of guaranty in a first class action in the municipal court to recover $5,220, principal and interest claimed to be due on a promissory note. The cause was tried by the court without a jury and finding and judgment rendered against plaintiff.

December 4, 1934, we denied defendants’ motion theretofore made to dismiss plaintiff’s appeal. We arc asked now to reconsider our ruling on their motion to dismiss this appeal, to vacate our order denying said motion and to allow their motion to dismiss the appeal at this time.

The judgment was rendered against plaintiff by the trial court June 13,1934. He filed his notice of appeal June 15, 1934. Proof of service on defendants of the filing of the notice of appeal was filed June 15, 1934. Defendants’ appearance in the appeal was filed June 23, 1934. Plaintiff did not within 10 days after filing his notice of appeal June 15,1934, file a praecipe designating the parts of the trial court record he desired incorporated in the record on appeal as provided in par. a, sec. 1 of rule 1 of the Rules of Practice of this court, and par. a, sec. 1 of rule 36 of the Rules of Practice and Procedure of the Supreme Court. Thereafter, July 17, 1934, plaintiff filed a second notice of appeal and proof of service of notice to defendants of the filing of same. Defendants’ motion of July 19, 1934, to dismiss the appeal perfected by the filing of plaintiff’s notice.of appeal June 15, 1934, and to strike from the files the documents filed July 17, 1934, “purporting to be a ‘notice of appeal,’ ” and “a notice of filing ‘notice of appeal,’ ” was denied by the trial court. Pursuant to his notice of appeal of July 17, 1934, plaintiff filed a praecipe for record July 26, 1934, and his notice to defendants on the .same day of the filing of same. He filed a report of proceedings at the trial in the trial court September 4, 1934, and the record including same was transmitted to and filed in this court October 3,1934.

Defendants insist that, inasmuch as there is no provision in the Civil Practice Act (ch. 110, Ill. State Bar Stats. 1935) or in the rules of practice of the Supreme Court for a second notice of appeal, such notice is a nullity, and since the first notice of appeal has admittedly been abandoned because of noncompliance with the rules of court, this proceeding should be dismissed.

Plaintiff contends that where an appellant has omitted some essential step in prosecuting his appeal (such as his failure to file his praecipe for record within 10 days after his notice of appeal was filed), so as to render the appeal ineffective or so as to cast doubt upon its validity,- if the time for taking an appeal as specified in the statute has not expired, three courses are open to him: (1) He may dismiss his appeal and sue out a second appeal; (2) he may abandon his appeal and, without dismissing same, proceed with a second appeal ; or (3) he may sue out a second appeal without dismissing his first and bring before the reviewing court the record with reference to both appeals and let the reviewing court determine which appeal should be prosecuted and which should be dismissed.

Respectable, authority has been cited by plaintiff in support of each of these propositions, but none of the cases cited was decided in the light of requirements governing appeals such as are contained in our Civil Practiée Act and the rules of our Supreme Court. In his suggestions filed in this court opposing defendants ’ motion to dismiss this proceeding, plaintiff states that he “neglected to file a praecipe for record within ten days after the date of his notice of appeal, and fearing that a motion might be made to dismiss his appeal for that reason, plaintiff elected to abandon the first appeal and prosecute a second appeal as he believed he had a right to.”

The question presented is one of first impression under the Civil Practice Act and the rules of court adopted supplementary thereto. Sec. 4 of art. 1 of the act declares that it “shall be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, ’ ’ and sec. 2 of art. 1 reposes in the Supreme Court the power to make rules of pleading, practice and procedure for the city, county, circuit, Appellate and Supreme Courts, supplementary to but not inconsistent with the provisions of the act “for the purpose of making this act effective for the convenient administration of justice and otherwise simplifying judicial procedure.”

When the motion to dismiss was originally presented to us, actuated in some measure, at least, by a desire to consider the appeal on its merits, we thought, when we denied defendants ’ motion to dismiss, that a liberal construction of the act and the rules of court might permit the procedure followed by plaintiff; but, after due and careful consideration of the matter, and having in mind its importance, we are impelled to the conclusion that our order disallowing defendants’ motion to dismiss should be reconsidered. It is apparent that the provision of the act declaring that it should be liberally construed did not contemplate a total or even partial disregard of the rules established by the Supreme Court for orderly and convenient procedure to the end that the rights of the parties might be speedily and finally determined on appeal.

Subdivision 1, sec. 74, of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, If 202, provides:

“Every order, determination, decision, judgment or decree, rendered in any civil proceeding, if reviewable by the Supreme or Appellate Court of this State by writ of error, appeal or otherwise, shall hereafter be subject to review by notice of appeal, and such review shall be designated an appeal and shall constitute a continuation of the proceeding in the court below. ”

Subdivision 1, sec. 76, provides:

“No appeal shall be taken to the Supreme or Appellate Court after the expiration of ninety days from the entry of the order, decree, judgment or other determination complained of; . . . ”

Subdivision 2, sec. 76, provides:

“An appeal shall he deemed perfected when the notice of appeal shall he filed in the lower court. After being duly perfected no appeal shall be dismissed without notice, and no step other than that by which the appeal is perfected shall be deemed jurisdictional.” (Italics ours.)

Subdivision 1, sec. 77, provides:

“Appeals shall lie to the Appellate or Supreme Court, . . . under such limitations and conditions as may be imposed by law and subject to such rules of court as- may "be established and promulgated under this chapter. ’ ’

Rule 33 of the Supreme Court prescribes in detail the contents and form of the notice of appeal, and Rule 34 provides inter alia:

“(1) A copy of the notice by which the appeal is perfected shall be served upon each appellee and upon any co-party who does not appear as appellant, and upon any other person or officer entitled by law to a notice of appeal, within five days after said notice of appeal is filed in the lower court.
“(a) Where the appeal is taken as of right, such service shall be made within ninety days from the entry of the order, decree, judgment or other determination from which the appeal is taken. ’ ’

Buie 36 of the Supreme Court provides, in part, as follows:

“(1) (a) In appeals taken directly to the Appellate or Supreme Court, the appellant shall within 10 days after the notice of appeal has been filed, prepare and file a praecipe with the-clerk of the trial court, with proof of service, and serve a copy thereof on the appellee or his attorney, in which appellant shall designate what parts of the trial court record are to be incorporated in the record on appeal. . . .
‘ ‘ (c) The report of the proceedings at the trial consisting of the testimony and the 'rulings of the trial judge and- all matters upon which such rulings were made, and other proceedings which the appellant desires to incorporate in the record on appeal, shall be procured by the appellant and submitted to the trial judge or his successor in office for his certificate of correctness, or where this is impossible because of the absence from the district, sickness or other disability of such judge, then to any other judge of said court, and filed in the trial court within 60 days after the appeal has been perfected. Í C
“Any judge of said court may on good cause shown make an order or orders extending the time allowed for filing such report of the proceedings, but the application for any such order must be made before the expiration of the original or extended period allowed for such filing. ( (
“(e) Failure by the appellant to file a report of the proceedings or an agreed statement of facts within the time originally allowed or extended, where the praecipe filed by such appellant has specified any of the proceedings at the trial, shall authorize a dismissal of the appellant’s appeal, and an order may be made by the trial court, on the application of the appellee, dismissing the same. . . .
“Where the praecipe filed by the appellant does not specify any of the proceedings at the trial, and appellant fails to file the record on appeal in proper time, the trial court, on application of appellee, may dismiss the appeal. ...”
“(2) . . . The record on appeal shall be transmitted to the reviewing court ... as follows:
“(a) When the praecipes do not specify any proceedings at the trial, the record on appeal shall be transmitted to the reviewing court not more than 30 days after notice of appeal has been filed.
“(b) When the praecipes specify any proceedings at the trial, the record on appeal shall be transmitted to the reviewing court not more than 30 days after the report of the proceedings or agreed statement of facts has been filed.
“(c) Further time within which to file the record on appeal may be granted by the reviewing court, or by any justice thereof in vacation upon motion and affidavit showing good cause, and due diligence. Such motion and affidavit must be accompanied by enough of the record on appeal to show a final judgment or decree, a notice of appeal filed within the time limited by the Civil Practice Act, and proof of service of the notice of appeal, and the filing and serving of appellant’s praecipe for record, all within the time limited by the Civil Practice Act, and by these rules.
“Such motion shall be made before the expiration of the time fixed in this rule for filing the record on appeal.
“Where the report of the proceedings at the trial . . . is filed in the trial court within proper time but the record is not transmitted to the reviewing court before the expiration of the time fixed in this rule, the trial court or the reviewing court on application of the appellee and upon proper showing, may dismiss the appeal; but where the record shall have been filed in the reviewing court after the expiration of the time fixed by this rule but before such application is made by the appellee, the reviewing court shall dismiss the appeal. ’ ’

The rules of this court follow the rules of the Supreme Court as enumerated except that our Rule 10 allows five days for the filing of the record on appeal in the office of the clerk of the Appellate Court after the time specified in Buie 1 of this court and Buie 36 of the Supreme Court for its transmittal by the clerk of the trial court.

All the material provisions of the Civil Practice Act and the rules of the Supreme Court applicable to an appeal as a matter of right, where a supersedeas is not sought or desired, are as heretofore set forth. A careful examination of these provisions and rules demonstrates that they are in nowise ambiguous and that compliance with them imposes no hardship on lawyer or litigant. The rules prescribe the necessary steps in order that must be taken to bring the appeal to this court after it has been perfected. The act specifies that plaintiff’s method of review of the trial court’s-judgment against him was by notice of appeal and that the appeal so taken constituted a continuation of the proceeding in the-court below. He was entitled as a matter of right to such appeal, if he filed his notice of appeal in the trial court and served notice on the appellees that he had done so within 90 days after the- entry of the judgment. Thus he had 90 days within which to decide if he desired to appeal and to contemplate the various steps necessary to properly present his appeal. It was entirely within his own control during that period as to when he should file his notice of appeal, but, once having filed it, under subdiv. 2, sec. 76, of the act, it was jurisdictional and his appeal was perfected. The filing of the notice of appeal June 15,1934, was jurisdictional and constituted a pending perfected appeal which was-a continuance of the proceeding in the court below, and we are at a loss to understand how, under the terms of the act, when the jurisdiction of the court had attached by an appeal already perfected and pending, a subsequent notice of appeal could have any force or effect.

Plaintiff insists, however, that he has the right to disregard snbdiv. 2 of sec. 76 of the act, which declares the filing of the notice of appeal to be jurisdictional, and to treat the notice of appeal filed by him June 15, 1934, as merely a gesture or as not having been filed at all. The difficulty with this position is that the act contains no provision for the filing of a second notice of appeal as a blatter of right when an appeal is already pending, but stamps the one appeal provided for as jurisdictional. If plaintiff is entitled to file a second notice of appeal under the circumstances that exist here, it would logically follow that he could file a succession of notices of appeal as a matter of right so long as he did so within the 90-day limitation. We are satisfied that no such result was anticipated within the purview of either the act or the rules of the Supreme Court. Such a practice could result only in confusion and uncertainty and not in the orderly, convenient and expeditious procedure contemplated by the act and the rules of court.

The original appeal having been perfected, the trial court was without jurisdiction to dismiss it for any reason except as expressly authorized by the rules of the Supreme Court. The only authority conferred by those rules upon the trial court to dismiss an appeal is for the failure by appellant to file a report of proceedings or agreed statement of facts within the time originally allowed or extended where the praecipe filed by such appellant specified any of the proceedings at the trial, or where the praecipe filed by appellant does not specify any of the proceedings at the trial and appellant fails to file the record on appeal in proper time (in this court within 35 days after notice of appeal), or where the report of proceedings at the trial is filed in the trial court within proper time, but the record is not transmitted to the reviewing court before the expiration of the time fixed by the rules of court (30 days from the date of filing the report of proceedings or agreed statement of facts in the trial court). In these three instances only may the trial court dismiss an appeal upon proper showing.

Plaintiff states that the reason that he did not proceed under his original notice of appeal was that he was apprehensive that it would be dismissed on defendants’ motion because of his failure to file a praecipe for record within 10 days after he had filed his notice of appeal as prescribed in subdiv. 1 (a) of Rule 36 of the Supreme Court. The trial court had no authority to dismiss his perfected appeal because of his failure to file a praecipe. However, whether he filed his praecipe within apt time or later, he was bound under the rules to file his record for appeal in this court within 35 days (no extension having been allowed) after his notice of appeal of June 15, 1934, was filed, if no report of the proceedings at the trial was specified or necessary for a review of the judgment, and if such a report of the proceedings at the trial was specified or deemed necessary for his appeal, he was bound to file that report in the trial court within 60 days after his notice of appeal of June 15, 1934, was filed (no extension having been allowed), and his record of appeal, including the report of proceedings in this court not later than 35 days (no extension having been allowed) after the report of proceedings was filed in the trial court. If plaintiff had proceeded with his original perfected appeal and filed his record on appeal in this court within apt time, even though his praecipe for record did not comply with the rules as to the time of its filing, a different question would have been presented.

When on July 19, 1934, defendants presented their motion to the trial court for the dismissal of plaintiff’s appeal of June 15, 1934, on the ground (1) that plaintiff had failed to file a praecipe for record within 10 days after filing his notice of appeal June 15, 1934, as prescribed by the rule heretofore set forth and (2) that his record on appeal was not prepared and transmitted to this court within 30 days after his notice of appeal was filed, that court was clearly right in refusing to dismiss the appeal for either of the reasons urged. The trial court was not vested with authority under the rules of the Supreme Court to dismiss the appeal for either of the reasons urged. The circumstances under which the trial court may dismiss a perfected appeal have been heretofore set forth and they are exclusive of all others.

The trial court, however, should have sustained defendants’ motion to dismiss what purported to be a notice of appeal filed by plaintiff July 17,1934, because there was no legal sanction for filing same under the act or the rules of court.

While the question presented here was not before this court except incidentally in the case of Corrigan v. Von Schill College of Chiropody, 277 Ill. App. 350, wherein the appeal was dismissed for failure to file the record on appeal within apt time, Justice O’Connor in that case, commenting upon the filing of a second notice of appeal in the trial court, said at p. 352:

“There is no provision in the rules of court for allowing a second notice of appeal, so that the second notice of appeal filed by defendant was a nullity.”

It is conceded that as to the notice of appeal of June 15,1934, the record on appeal was not filed in this court within the time provided by the rules of court, and as the appeal perfected by that notice of appeal constitutes the only lawful appeal in this cause, the order of this court of December 4, 1934, denying defendants’ motion to dismiss plaintiff’s appeal is vacated and set aside and defendants ’ motion to dismiss this proceeding, purporting to be an appeal, is at this time allowed.

Proceeding dismissed.

Scant,an, P. J., and Friend, J., concur.


text:
    In re Estate of Mary Lewicki, Deceased. Joe Barjarinas, Appellant, v. Josephine Lewicki et al., Appellees.
    Gen. No. 37,930.

      Opinion filed November 5, 1935.
    Lindsay & Schachner, of Chicago, for appellant.
    Adams, Adams & White, of Chicago, for appellees; J. Thompson White, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

Mary Lewicki died April 16, 1932. March 3, 1933, a writing purporting to be her last will and testament, theretofore presented to the probate court, was refused probate. Upon appeal to the circuit court by the proponent, Joe Barjárinas, it was found that “at the time of the said writing read in evidence, purporting to be the last will and testament of the said Mary Lewieki, deceased, it was not and is npt her last will and testament,” and judgment was entered on such finding. This appeal seeks to reverse the judgment of the circuit court.

The probate of the alleged will is contested by the three children of deceased, one of whom was a minor at the time of the hearing in the circuit court. That portion of the instrument in controversy and the signed attestation clause are as follows:

“After the payment of such debts and funeral expenses, I give, devise and bequeath to Joseph Barjarinas, the sum of Nine Thousand ($9,000) Dollars, being his wage and earnings since March, 1925, while in my employ, for his faithful service to me in full, and remaining of my estate real and personal or mixed, which I may die seized or possessed of, or which may belong to me, I give, devise and bequeath to my three (3) children, namely, Josephine Lewieki, Anna Lewieki, and John Lewieki, to be divided equally, share and share alike.
“In Witness Whereof, I have hereunto set my hand and seal this 13tli day of April, 1932.
her
“(Signed) Mary X Lewieki Mark.
‘‘ This instrument was on the day of its date, signed, sealed,. published and declared by the said Mary Lewicki as and for her last Will and Testament, in the presence of the undersigned, who at her request and in her presence and in the presence of each other have hereunto subscribed our names as witnesses thereto.
John J. Zolp residing No. 6627 So. Richmond St.
Mary Klusas residing No. 4506 So. Albany Ave.
George Kveder residing No. 4506 So. Albany Ave.”

The only question presented for our determination is whether or not the requirements of section 2 of the statute on Wills (ch. 148, Ill. State Bar Stats. 1935) have been complied with.

To entitle a will to probate under that section (1) it must be in writing, signed by the testator or testatrix or in his or her presence by someone under his or her direction; (2) it must be attested by two or more credible witnesses; (3) two attesting witnesses must declare under oath in the county court (probate court) that they saw the testator or testatrix sign the will in their presence or that he or she acknowledged the same to be his or her act or deed; and (4) two attesting witnesses must also declare under oath that they believed that the testator or testatrix was of sound mind and memory at the time of signing or acknowledging the will.

All three attesting witnesses testified in this cause and identified their signatures. Zolp, who drew the instrument in question and was also an attesting witness, had been a friend of Barjarinas for a number of years, as well as of deceased, for whom he said he had previously closed some real estate deals. He was convicted in the criminal court of Cook county, March 15, 1933, on an indictment charging that he obtained money by means of the confidence game and sentenced to the penitentiary, from which he was returned to testify on proponent’s petition.

Zolp testified that after he had drawn the instrument he brought it into the bedroom where Mrs. Lewicki was lying ill and read its contents to her in English and then in Lithuanian; that she signed same by making her mark and that he then wrote in her name (Mary, before her mark, and Lewieki after it); that he then signed his name as a witness to the will; that the two other attesting witnesses, Mary Klusas and George Kveder, saw deceased sign the paper, and that they signed the same as witnesses in her presence and in his. After testifying that “I do not know whether Mrs. Lewieki understood what I said or not,” he went on to state, ‘ after I read this will I naturally asked her if she understood, but how this assent of hers to the signature was conveyed to me, I do not remember whether she nodded or whether she spoke.”

On cross-examination he testified that when he first entered the Lewieki home he was led into Mrs. Lewicki’s sick room and “in the course of our conversation that lasted say twenty minutes or more, it developed, or rather, it was conveyed to me that she desired to make a will. ’ ’ Then when asked what language, if any, she used in talking to him, he said, “I spoke to her first, I asked, I recall, about the will, that I understand the will is to be made or words to that effect, and I says, ‘Who are the heirs to be benefited in the will.’ I understood, either from her by a nod or occasionally here a word, here and there, that the estate was to be divided equally between the children, Josephine, the oldest daughter, and the youngest daughter, and the boy that was still a minor.”

He then testified that he left Mrs. Lewieki and went into the kitchen to prepare his pencil notes on the will and someone there said, “How about Joe (Barjarinas ’ ’; that after much discussion and wrangling among a group in the kitchen, including Barjarinas, as to what provision should be made for him in the will, Barjarinas “went in (Mrs. Lewieki’s bedroom) and they (Barjarinas and Mrs. Lewieki) were closeted in there, in the bedroom, for a portion of the day, I would not say how long, and then when he emerged from the bedroom, he said that . . . nine thousand dollars was a near figure at $25 a week for about seven years ’ ’; that the witness then prepared the will; that he read it to Mrs. Lewieki in English and then in Lithuanian and asked her if she understood it; that “how she made the assent, whether it was by nod or motion of the hand, I accepted it, I thought that she conveyed the idea it was all right”; that if anyone took her hand and assisted her to make the cross, “I would myself”; and that the oldest daughter of the deceased, Josephine, objected to the insertion in the will of the bequest to Barjarinas. The following is also a portion of Zolp’s cross-examination:

“Q. Do you know what was the trouble with her?
“A. No, no, in walking I noticed that the abdomen was very highly raised, she was in great pain as far as I could understand.
“Q. Was she unconscious ?
“A. I would not say that she was unconscious, I am not positive, I would not say; she was sort of in a comatose state. She. was a. very sick lady, that is one thing I know.
“Q. Do you still say that she was in a semi-comatose condition?
“A. I do not know what the word particularly means. In everyday meaning of this, the English acceptance of the word, common words, I would say that she was a very sick woman.
“Q. Do you know what coma means?
“A. I know that a person is actually suspended— well,; — he. is without ability to understand or make a motion.
“Q. Was she in that condition?
“A. T would not say because at times she would grunt and speak some intelligible words here and there, phrases.
“Q. What (would) she say?
“A. If I would make up any sentence now, that would be my pointed sentence, that would not be hers, I could not say what she said, but occasionally, here and there,, she would say something.
. “Q. Were her eyes opened or closed?
“A. At times they were closed and at times, open.
“Q. Would you say that she was of sound mind and disposing memory at the time you went there?
■ “A. That is a rather advanced thought, I would not say anything.”

Anna Klusas, a sister of. deceased and one of the attesting witnesses,, testified that Zolp asked her to sign the instrument in the bedroom where Mrs. Lewicki “was laying sick”; that the only persons in the room at that time were the deceased, her two daughters and Zolp; that at the time she (Anna Klusas) signed the will, Mrs. Lewicki “was like dead, she was unconscious, I could not talk to her”; that deceased did not ask her to sign as a witness; that she did not see Mrs. Lewieki sign the “will”; that she did not hear the document read to Mrs. Lewieki; that she did not see Zolp sign; that, when asked whether at the time “you signed this will” Mary Lewieki was of sound mind and memory, she answered “no, she was unconscious”; that she (Anna Klusas) could not read English and that “this will” ivas not read to her; and that “Mr. Zolp asked me to sign as a witness to the will for the children.”

George Kveder testified that Zolp asked him to sign the document; that Mrs. Lewieki did not talk to him at the time he signed as a witness; that he did not see her make any mark on the will; that when he signed she was “very sick” and that “she was unconscious”; that he did not hear the “will” read to Mrs. Lewicki, either in English or Lithuanian; that he'does not read English and that it was not read to him in any language; and that Anna Klusas was not in the room when he signed and he did not see her sign.

Mrs. Lewieki was removed to the hospital shortly after the purported will ivas signed April 13, 1932.

Dr. John F. Kuzic testified that he examined and talked with the deceased at her home at about 9:30 or 10 a. m. April 13, 1932, and again shortly after noon of the same day at the hospital, and found her in a very serious condition suffering from kidney, bowel and pulmonary disorders of a malignant nature, which caused her death three days later; and that on the occasion of both examinations she was conscious and, in his opinion; “of sound and disposing mind.” Dr. James G. Gallagher, an interne, who saw the deceased for the first time when she was brought to the hospital about noon April 13, 1932, testified substantially to the same effect.

The only other witness ivas Ursula Lunekas, at whose home the proponent resides and whose testimony, in many respects, was in direct contradiction to that of Zolp heretofore set forth. She stated that Zolp first presented and read to Mrs. Lewicki a will that contained a bequest of $12,000 to Bar jarinas; that the deceased said that was too much; that he then brought in another will providing for the $9,000 bequest ; that the deceased called Bar jarinas into the bedroom and he said it was “all right”; that Josephine Lewicki, the oldest daughter of deceased, was satisfied with the will and made no protest; and that Zolp handed Josephine the paper and she propped her mother up in bed to sign it, which she did by making a cross.

It is not the duty of a proponent to show that the will is valid in all respects. It is his duty only to make proof of the essentials mentioned in the statute. When he has done this a prima facie case entitling the will to probate has been made out. Neither the probate court, nor the circuit court on appeal, has power to refuse a will to probate upon any ground whatsoever other than a failure of the proponent to make proper proof of the requirements mentioned in sec. 2, or because proof of fraud, forgery, compulsion or other improper conduct appears which is deemed sufficient to invalidate or destroy the will. (Hill v. Chicago Title & Trust Co., 322 Ill. 42; Shepherd v. Yokum, 323 Ill. 328.) However, sec. 2 of the Wills Act is mandatory and before a will can be admitted to probate it is imperative that two attesting witnesses declare on oath that they were present and saw the testator or testatrix sign the instrument or heard him or her acknowledge it as his or her act and deed and that they believed the testator or testatrix was of sound mind and memory at the time he or she signed or acknowledged same.

It has repeatedly been held that on the hearing in the circuit court on the due execution of the'instrument involved, the question of fact presented is determined by the same rules and presumptions which control the trial of other questions of fact, and that the instrument should be admitted to record if its genuineness and due execution are established by evidence competent to establish a will in chancery. (Kaul v. Lyman, 259 Ill. 30; In re Will of Simon, 266 Ill. 304; Hutchison v. Kelly, 276 Ill. 438; Beck v. Lash, 303 Ill. 549; In re Will of Porter, 309 Ill. 220.)

The only one of the attesting witnesses' who said that he saw the dec,eased make her cross was Zolp. The other two testified that they did not see her make the cross and that she did not acknowledge to them that she had made it or indicate in any manner that it was her last will and testament. It is true that Zolp’s testimony as to Mrs. Lewieki’s signature and the attestation of the instrument was corroborated by that-' of the witness Ursula Lunekas, and it has" been held that the proponent is not bound in the circuit court to rely solely upon the evidence of the witnesses who attested the will to meet the imperative requirement that there must be the concurring evidence of two witnesses to authorize probate of a will, but he may prove its execution and attestation by other competent witnesses. (Crowley v. Crowley, 80 Ill. 469; Hill v. Kehr, 228 Ill. 204; Schofield v. Thomas, 236 Ill. 417; Stone v. Stone, 281 Ill. 474; Hill v. Chicago Title & Trust Co., supra.) No other witness in this case mentioned Ursula Lunekas as even having been in the room when and where the document is claimed to have been signed and attested. Her evidence is in sharp conflict with that of Zolp as to what occurred there and a comparison of their testimony, as heretofore set forth, clearly indicates that either or both of them are unworthy of belief. If we assume that Zolp related truthfully what occurred on the occasion in question, her testimony is so fanciful that we must conclude that she was not even present. Subjecting the testimony of Zolp and Ursula Lunekas to the ordinary rules for testing the credibility of witnesses, the conclusion is inevitable that it has not been shown by credible evidence as required by the statute that two of the attesting witnesses were present and saw the deceased sign the instrument in question or heard her acknowledge it as her act and deed. In fact we entertain grave doubt, under all the facts and circumstances, as to whether she signed the instrument at all.

Has it been shown by credible evidence that Mrs. Lewieki was of sound mind and memory at the time she is alleged to have signed the purported will? The doctors were not present when the instrument was said to have been executed and attested and necessarily were unable to state the condition of deceased at that time. Zolp testified that prior to reading the document to deceased, his last direction from her was to draw a will making her children the beneficiaries of her entire estate. Notwithstanding this he states that the instrument he prepared and claims to have read to her contained a $9,000 bequest to Barjarinas, who had been employed in her butcher shop for a number of years. Referring to the time that he said he read the instrument to her he testified variously: “I do not remember whether Mrs. Lewieki understood what I said or not”; “I do not remember whether she nodded or whether she spoke (her assent) ”; “I thought that she conveyed the idea it was all right”; “I would not say; she was sort of in a comatose state”; “she was a very sick lady”; “is without ability to understand or make a motion”; “I could not say what she said, but occasionally here and there, she would say something”; and “I would not say anything” as to whether she was of “sound mind and disposing memory.” Of the two other attesting witnesses, Anna Klusas said that Mrs. Lewieki “was like dead, she was unconscious, I could not talk to her” and Kveder said that she was “very sick ... she was unconscious” when he signed the paper at Zolp’s solicitation. In spite of this and other testimony of the three attesting witnesses, and in spite of Mrs. Lewieki’s admitted desperate condition, Ursula Lunekas declared that she was “all right” and understood what was going on around her; that she heard her talk to Anna Klusas and George Kveder; that Mrs. Lewieki “then talked that $12,000 too much, then make another figure, make it $9,000, under will”; that Zolp “then brought another will up to the bed room”; and that “Mrs. Lewieki agreed with that and then called Joe Barjarinas' and asked if he is satisfied with that. ’ ’

It will be noted that the attestation clause contained no declaration that Mrs. Lewieki was of sound mind and memory and surely it cannot be gleaned from the testimony of any of the three attesting witnesses that they believed that the deceased was of sound mind and' memory at the time of the alleged signing of' the instrument. Even though credence was given to the . improbable story of Ursula Lunekas, still the proof would fall short of the imperative requirement of the statute that there must be the concurring evidence of two "witnesses that they believed deceased to have been of sound mind and memory at the time of the alleged signing of the purported will.

Although every reasonable presumption must be indulged in favor of the due execution and attestation of the instrument in question, nevertheless we think that it is still readily apparent from the evidence that the statutory requirements were not complied with and, therefore, the circuit court had power to refuse the will to probate.

For the reasons indicated herein the judgment of the circuit court is affirmed.

Affirmed.

Scanlan, P. J., and Friend, J., concur.