author: Mr. Justice Burke

text:
    Robert J. Nikola, Minor by Joseph Nikola, His Next of Kin, Appellant, v. Campus Towers Apartment Building Corporation, Appellee.
    Gen. No. 40,595.

      Heard in the third division of this court for the first district at the February term, 1939.
    Opinion filed February 14, 1940.
    Rehearing denied March 12, 1940.
    J. S. Pressman, of Chicago, for appellant.
    Charles Danto and Kirkland, Fleming, Green, Martin & Ellis, all of Chicago, for appellee; Charles Danto, Walter E. Tinsley and John M. O’Connor, Jr., all of Chicago, of counsel.
   Mr. Justice Burke

delivered, the opinion of the court.

On February 10, 1938, Robert J. Nikola, a boy 13 years of age, by his next of kin, filed a complaint against the Campus Towers Apartment Building Corporation, in the circuit court of Cook county, and therein averred that defendant owned and operated a residential apartment building located at 1033 West Loyola avenue, Chicago, and in connection therewith, through its servants, operated a passenger elevator therein for the purpose of carrying persons from one floor to another; that on April 6, 1937, while the plaintiff was a passenger in the elevator, the defendant, by its servant, operated the elevator in such a negligent manner that the left foot of plaintiff was severely injured. Plaintiff asked damages in the sum of $5,000. He demanded a trial by jury. Summons was issued on February 10,1938. The sheriff certified that he served the summons by leaving a copy thereof with Jean Cook, an agent of defendant, on February 24, 1938. On May 6, 1938, the court entered an order reciting that summons had been duly served on defendant, that defendant had failed to answer or otherwise make appearance, that defendant be defaulted and ordered that the complaint be taken as confessed as against the defendant. On June 20,1938, plaintiff waived his right to a trial by jury. Thereupon the court assessed plaintiff’s damages at the sum of $3,000 and entered judgment against defendant. On July 25, 1938, execution was issued on the judgment and on August 18, 1938, a demand under the execution was made on defendant. On September 15, 1938, defendant’s attorneys served notice on counsel for plaintiff that on the day following they would appear before the motion judge in the circuit court and move that the judgment and default orders be vacated and that leave be granted to file defendant’s appearance and answer to the complaint. On September 16, 1938, defendant presented its verified petition, which set up that the first knowledge it had of the action was received on August 18, 1938, when the demand was made on the execution; that prior to August 18, 1938, defendant had no knowledge of the action or the judgment; that on acquiring such knowledge it conferred with its attorneys, who investigated and discovered the facts; that no summons was served on defendant through Jean Cook by the deputy sheriff named in the return, or by any deputy sheriff on February 24,1938, or on any other date whatsoever, nor did Jean Cook at any time receive a copy of any summons in the instant case; that defendant believed that plaintiff had withheld making demand on the execution until it was too late for defendant to move to vacate the judgment within 30 days from the entry thereof. The petition then sets out what it describes as a good defense to the merits of the action. The averments are sufficient in our opinion to join issue on the matters alleged in the complaint. Attached to the verified petition were affidavits by Jean Cook and eleven other persons. The affidavits purport to show that the corporation was not served through Jean Cook and that no other employee was served. On October 7, 1938, the court ordered plaintiff to file an answer to the petition within five days. On October 10, 1938, plaintiff filed a motion to dismiss the petition and therein set out that the petition was substantially insufficient in the following particulars:

“1. It appears that the Petition to Vacate Judgment entered June 20,1938, was filed on September 17, 1938, thus bringing the filing of the said petition beyond the term of Court in which the judgment was rendered.
“2. It appears on the face of the petition that the sheriff served a summons on the defendant by leaving a copy thereof with one Jean Cook, admittedly an agent of said corporation, on the 24th day of February, 1938.
“3. It appears on the face of the Petition and on the face of the record that the return of the sheriff of said summons was in harmony with the findings of the Court in its judgment that the defendant was duly served.
“4. It appears on the face of the Petition that the defendant is attempting to contradict the return of the sheriff on the summons after the term of Court had ended in which judgment was rendered.
“5. It does not appear in the Petition, nor does defendant contend that the alleged false return had been procured by the fraud of the plaintiff.
“6. This Court is without jurisdiction to vacate and set aside a judgment after the term of Court has ended in which the judgment was rendered, upon the grounds of the false return by the sheriff when that return is in harmony with the findings of the Court in its judgment that the defendant was duly served.” On October 20, 1938, the court, after argument and due deliberation, sustained the motion to vacate the judgment and gave defendant leave to file its appearance and answer within 10 days. Although the court did not expressly rule on plaintiff’s motion to dismiss the petition, the order allowing defendant’s motion to vacate the judgment was, in effect, a ruling on plaintiff’s motion. Plaintiff prosecutes this appeal from the order which vacated the judgment and gave defendant leave to answer.

The first point urged by plaintiff is that a judgment cannot be vacated in the same proceeding after 30 days from the entry thereof, except under the provisions of section 72 of the Civil Practice Act. Section 50 of the Civil Practice Act (sec. 174, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.050]) provides that the court may within 30 days after the entry thereof, set aside any judgment or decree upon good cause shown by affidavit, upon such terms and conditions as shall be reasonable. In the instant case, the motion was presented 80 days after the entry of judgment. Plaintiff insists that as defendant did not present his motion within 30 days following the judgment, he must seek relief, if at all, under section 72 of the Civil Practice Act (see. 196, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.072]), which provides that “the writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice. When the person entitled to make such motion shall be an infant, non compos mentis or under duress, at the time of passing judgment, the time of such disability shall be excluded from the computation of said five years.” Plaintiff then proceeds to argue that a motion to vacate a judgment on the ground that the sheriff made a false return, cannot be entertained under section 72 of the Civil Practice Act. He cites the case of Chapman v. North American Life Ins. Co., 292 Ill. 179. In that case the defendant filed a motion under section 89 of the Practice Act of 1907. By his motion, defendant in that case challenged the service of the summons. The return by the sheriff showed that service was had by delivering a copy of the summons to the vice president of the corporation, the president not being found in the county. At that time the law required that the sheriff first serve the president, if he could be found in the county. The defendant contended that the president could be found in the county. It will be seen, therefore, that the factual situation involved an attack on the validity of the service, whereas, in the case at bar the contention is that there was no service whatsoever. In the Chapman case the Supreme Court said, p. 187:

‘ ‘ The doctrine prevails in this State that the return of the sheriff on the summons, where that return is in harmony with the findings of the court in its judgment that the defendant was duly served, cannot be contradicted after the term of court has ended in which judgment was rendered, except in rare instances, as where the sheriff is sued for making a false return, which is one of his remedies where the defendant is damaged by a false return. (Hunter v. Stoneburner, 92 Ill. 75; Lancaster v. Snow, 184 id. 534.) In this State, before judgment is taken the sheriff’s return can be contradicted when a false return is taken advantage of by a plea in abatement, or, more properly speaking, by a plea to the jurisdiction of the court of the person of the defendant. (Sibert v. Thorp, 77 Ill. 43.) All the cases will be readily distinguished that have been cited to us on the question of a sheriff’s return, by noting that after judgment has been rendered, and after the term has ended in which judgment was rendered, the sheriff’s return is conclusive as between the parties and cannot be taken advantage of by error coram nobis unless such false return has been procured by the fraud of the plaintiff. No such charge is made in this case. So far as the record shows, the plaintiff in this suit knew as little about the whereabouts of the president of defendant as did the court when this judgment was rendered. We are not without authority in our own State upon this question. In Owens v. Ranstead, 22 Ill. 161, in referring to a false return of a sheriff, this court said: ‘No relief can be had by writ of error, for the record on its face shows no error,— none by audita querela,— for if in use it would be inapplicable. That remedy proceeds upon the ground of the validity of the judgment and gives relief upon some matter of discharge subsequent to its rendition, as a release or payment. Nor is there any efficacy in the writ of error co-ram nobis, because at law no averment can be made in the same action against the officer’s return.’
“A court of chancery has jurisdiction, under a proper showing, to set aside a judgment at law or a decree in chancery after the term of court is ended, where there has been no valid service on the defendants. But that is not a question for decision in this case, and cases so holding are not applicable. It is quite clear that appellant cannot have relief against the judgment under this motion by reason of the first alleged error of fact. The sheriff’s return, if true, showed good service on appellant, and that is not denied. Since the truth of it cannot be controverted under this motion, the judgment must stand.”

The writ of error coram nobis was an original writ issued out of chancery to the judges of the court of King’s Bench, commanding them to examine the record in a particular case. The earliest known use of the writ was to disclose misprision of the clerk, infancy, coverture, or the death of a party. The writ was often used as a procedural device to prevent a failure of justice, since the House .of Lords and Exchequer Chamber would review only errors of law. The judges of the King’s Bench could relieve against a miscarriage of justice by recognizing the writ to correct errors of fact only. In 1831 in the case of Kerr & Bell v. Whiteside, 1 Ill. (Breese) 390, our Supreme Court was equally divided on the proposition as to whether a motion in the nature of a writ of error coram nobis should be recognized. In the case of Beaubien v. Hamilton, 3 Ill. (Scammon) 213, decided in 1841, the court said: ‘1 The law is well settled, that where an error in fact is committed in legal proceedings, the court in which the error is committed may correct it by a writ of error co-ram nobis, or on motion.” In 1867 in the case of McKindley v. Buck, 43 Ill. 488, the court said that the writ of error coram nobis “has never been in use in this State, and it has fallen into desuetude even in England.” In the Practice Act of 1871, the legislature, apparently following the views stated in the latter case, declared that the writ of error coram nobis was abolished and substituted a motion in its place. The section was re-enacted in virtually the same language in the Acts of 1907 and 1933. It is now well settled that a motion in the nature of a writ of error co-ram nobis cannot be used to controvert the sheriff’s return. After judgment, the return is presumed to be correct since it is a part of the record upon which an adjudication has been made, and the familiar principle that the motion does not lie to contradict a finding of the court applies. • Before judgment, the false return may be taken advantage of by a plea to the jurisdiction of the court over the person of the defendant. The language in the Chapman case that ‘ ‘ after the term has ended in which judgment was rendered, the sheriff’s return is conclusive as between the parties and cannot be taken advantage of by error coram nobis unless such false return has been procured by the fraud of plaintiff,” indicates that a motion under section 72 may be employed to challenge a false return procured by the fraud of plaintiff. Beginning as a writ issued out of chancery and applying only to a restricted group of situations, error coram nobis has become a necessary device. The courts of Illinois, although they refused to recognize the writ itself, have encouraged the development of its statutory equivalent and permitted its use in new situations wherever such was consonant with the history of its common law antecedent. The expansion of the use of the equivalent of the writ can be traced to the tendency of the courts of law to apply equitable principles wherever necessary to prevent injustice. Prior to the adoption of the Civil Practice Act, the Supreme Court held that “the statutory motion does not apply in cases of chancery.” In the recent case of Frank v. Newburger, 298 Ill. App. 548, this court was asked to decide whether a motion under section 72 of the Civil Practice Act would be proper in a chancery case. This court, speaking through Mr. Justice O’Connor, said:

“We are of the opinion that the holding in the Kab-ler case, that the statutory remedy provided by section 89 of the old Practice Act did not apply to cases in chancery, is not controlling now for the reason that the practice and procedure in common law and suits in equity have been in part amalgamated by the Civil Practice Act, and therefore section 72 of the Civil Practice Act is applicable to the case at bar.” Therein this court recognized that the Civil Practice Act has expanded the scope of section 72, formerly section 89, of the Act of 1907.

Defendant states that it has not sought and does not now seek to invoke the provisions of section 72 of the Civil Practice Act. While a defendant cannot attack the return of the sheriff under section 72 of the Civil Practice Act, the law is well settled that in equity a person may have relief against a false return occasioned by mistake. Under section 72 the defendant is not permitted to make any averment against the truth of the sheriff’s return. It is a universal principle that there is no wrong without an adequate remedy, and that if a court of law cannot supply a remedy, a court of equity has the power to do so. (Owens v. Ranstead, 22 Ill. 161.) In Kochman v. O’Neill, 202 Ill. 110, a chancery case, the Supreme Court said:

“Service of summons or an appearance is necessary to enable a court to render a personal judgment against a defendant, and the attack upon the judgment in this case was on the ground that there was a want of jurisdiction over the person of Mrs. O’Neill for want of such service or appearance. A judgment may be set aside where a court has failed to acquire jurisdiction of the person of the defendant. (Owens v.,Ranstead, 22 Ill. 161; Grand Tower Mining, Manf. and Trans. Co. v. Schirmer, 64 id. 106.) Where the want of jurisdiction does not appear on the face of the record it may be shown by evidence outside of the record, provided the evidence is clear and satisfactory and the rights of third parties have not intervened. A sound public policy, the security of litigants and'the stability of legal proceedings demand that the return of the sworn officer shall not be set aside or impeached except upon satisfactory evidence. Every presumption in favor of the return is indulged, and it will not be set aside upon the uncorroborated testimony of the party upon whom service purports to have been made. (Davis v. Dresback, 81 Ill. 393.) Justice, however, requires tha,t the rules should not be so strict as to prevent all relief against a return which is untrue through fraud, accident or mistake, and if it is clear from the evidence that the defendant has not been served the judgment should be set aside.” It is clear, therefore, that where the sheriff, through mistake, has made a false return, that the defendant therein may obtain relief by filing a complaint in chancery. The burden then rests on the plaintiff in the chancery case to establish the allegations of his complaint. Every presumption in favor of the return is indulged, and it will not be set aside upon the uncorroborated testimony .of the party upon whom service purports to have been made. If it be clear from the evidence that the plaintiff in the chancery case has not been served, the judgment should be set aside. In the instant case, the plaintiff elected to file a motion to dismiss. He could have joined issue on the ultimate facts as to whether the defendant was actually served. A motion to dismiss serves the same office as a demurrer and admits all allegations that are well pleaded. For the purpose of the motion, therefore, plaintiff admitted that the defendant was not served. Defendant, not having been served, the court did not have jurisdiction over the defendant. It is not contended that the rights of any third party are affected. It is clear, therefore, that if defendant had filed a complaint in chancery and the plaintiff herein had moved to dismiss the complaint, thereby admitting the facts well pleaded, it would have been the duty of the chancellor to overrule the motion to dismiss and to enter a decree allowing the relief prayed. Reduced to its essential facts, we are called upon to decide whether the court erred because it granted relief by a motion in the same case instead of telling the defendant to file a complaint in equity and to come back a few days later, when the relief would be granted. The final result achieved would be the same. In considering this phase of the case, it is interesting to observe the language of the court in Marabia v. Mary Thompson Hospital of Chicago for Women & Children, 309 Ill. 147 (opinion filed June 20, 1923):

“In Bronson v. Schulten, 104 U. S. 410, Mr. Justice Miller delivering the opinion of the court, referring to the English practice of allowing a writ of error to bring before the same court in which the error was committed some matter of fact which had escaped attention and was material in the proceeding, said: ‘These were limited generally to the facts that one of the parties to the judgment had died before it was rendered, or was an infant and no guardian had appeared or been appointed, or was a feme covert, and the like, or error in the process through default of the clerk. ’ It was further said that there had grown up in the courts of law a tendency to apply to their control over their own judgments some of the principles of courts of equity which go further in administering summary relief than the old-fashioned writ of coram nobis did. ‘ This practice has been founded in the courts of many of the States on statutes which conferred a prescribed and limited control over the judgment of a court after the expiration of the term at which it was rendered. In other cases the summary remedy by motion has been granted as founded in the inherent power of the court over its own judgments and to avoid the expense and delay of a formal suit in chancery. It can easily be seen how this practice is justified in courts of the States where a system has been adopted which amalgamates the equitable and common law jurisdiction in one form of action, as most of the rules of procedure do. ’ In many States the difference in forms of action and methods of procedure in law and equity has been abolished, and the decisions in such States with reference to the relief which may be obtained on motion and the method of procedure throw no light on the practice at common law. No cases have been cited to us which carry the right to relief upon a writ of error coram no-bis at common law beyond the cases specified by Tidd and the other writers which have been cited.” As pointed out in Frank v. Newburger, supra, the practice and procedure in common law and in suits in equity have been, in part, amalgamated by the Civil Practice Act. That act should be given a broad and liberal construction. Plaintiff argues that there is no authority for filing a motion such as is presented here, otherwise than under section 72. The petition did not purport to be presented under the authority of section 72.

On turning to the six points assigned by plaintiff in his written motion, we observe that point 1 calls attention to the fact that the petition to vacate was presented after the 30-day period from the entry of the judgment; that point 2 calls attention to the fact that on the face of the petition it appears from the sheriff’s return that he served a summons on the defendant by leaving a copy thereof with one admittedly an agent of defendant; that point 3 states that the record shows that the return of the sheriff is in harmony with the findings of the court in its judgment; that point 4 states that the defendant is attempting to contradict the return of the sheriff on the summons after the 30-day period had passed. The first three points merely call attention to facts in the record. As to point 4, we observe that the court in a separate chancery proceeding has the right to find from evidence dehors the record that the return is erroneous. Point 5 states that the petition does not show that the alleged false return was procured by fraud of the plaintiff. It is true that no fraud is claimed. We have heretofore pointed out that in equity the court may grant relief against a false return even where there is no claim of fraud. The 6th and last point states that the trial court was without jurisdiction to vacate and set aside the judgment after the 30-day period following the judgment because of the false return by the sheriff when that return is in harmony with the findings of the court in its judgment that the defendant was duly served. Section 45 of the Civil Practice Act (sec. 169, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.045]) requires that a motion serving the office of a demurrer shall point out specifically the defects complained of. None of the six points raises a question as to the right of the court to treat the petition in the same way as a complaint in chancery. Under section 12, article 6 of the constitution of this State, the circuit court has original jurisdiction of all causes in law and equity. Hence, the circuit court had jurisdiction of the subject matter. It also had jurisdiction of both parties at the time the motion was made. We are of the opinion that the action of the court in taking jurisdiction of the petition is in harmony with the spirit of the Civil Practice Act.

Plaintiff also argues that the defendant’s petition does not set out a meritorious defense to plaintiff’s action. We have carefully examined the part of the petition that purports to set up the defense and are of the opinion that it is adequate. The petition avers that at the time of the accident the defendant was in the exercise of the highest degree of diligence in the operation and management of the elevator, that the operator was not guilty of any carelessness or negligence, that the elevator was in good mechanical condition, that the defendant was not guilty of any wilful or wanton act, and that plaintiff was guilty of contributory negligence. Plaintiff also insists that the affidavits in support of defendant’s petition aré insufficient. This point is without merit.

Before its briefs were filed, defendant moved to dismiss the appeal, and ruling on the motion was reserved to hearing. Defendant urges that the order vacating the judgment is neither a final or appealable order and cites the case of Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, in support of its argument, that if'a court sets aside or vacates a judgment otherwise than under the motion substituted’for the writ of error co-ram nobis, the order is interlocutory and the parties must await a final judgment after the case has been tried on the merits before an appeal will lie. That is undoubtedly the rule where the court vacates a judgment within the 30-day period. In the case at bar, however, defendant filed a petition which is the equivalent of a complaint in equity. It cannot be doubted that had the defendant filed a complaint in equity and procured the entry of a decree in its favor, the plaintiff herein would have a clear right to appeal from the decree. We are of the opinion that under the circumstances disclosed by the record the plaintiff herein had a right to appeal from the order vacating the judg-meat. Therefore, the motion to dismiss the appeal is denied.

For the reasons stated, the order of the trial court, which vacated the default judgment, should be and it is affirmed.

Order affirmed.

Hebel, J., concurs.

Denis E. Sullivan, P. J., dissents.


source: Caselaw Access Project

license: Public Domain

text:
    Trust Company of Chicago, Successor Trustee, Ap-pellee, v. Robert Cordeau, Appellant, and William R. Henriksen, Appellee. Appeal of Robert Cordeau, Appellant.
    Gen. No. 40,684.

      Heard in the third division of this court for the first district at the April term, 1939.
    Opinion filed February 14, 1940.
    Rehearing denied March 12, 1940.
    Frederick J. Bertram and Paul A. F. Warnholtz, both of Chicago, for appellant.
    L. A. Sherwin, of Chicago, for appellees; W. Sher-win, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On January 1,1926, the Jackson Park Building Corporation executed and delivered 197 bonds for the aggregate principal sum of $100,000, payable on various dates up to and including January 1, 1934, and as security, executed a trust deed embracing the real estate and improvements known as 1540-44 East 65th Place, Chicago. A bill to foreclose the lien of the trust deed was filed in the superior court of Cook county by the Central Eepublic Bank and Trust Company against the Jackson Park Building Corporation, et al. On October 20, 1931, the court entered a decree finding that under the terms of the trust deed there was due plaintiff the sum of $8,000 for solicitors’ fees, an additional sum of $694 for expenses necessarily incurred, and the sum of $104,058.44 on the principal and interest of the indebtedness, or a total amount of $112,752.44. The decree directed that the amount be paid, and in default thereof that the real estate be sold by a master in chancery. After a long delay, a master in chancery offered the real estate for sale. He reported that the only bidder at the sale was the Trust Company of Chicago, which had succeeded the original complainant as successor trustee. The latter bid the property in for the benefit of all the bondholders. On July 14,1937, a decree was entered approving the master’s report of sale and distribution. The decree entered a deficiency judgment against the Jackson Park Building Corporation, mortgagor. The decree approving the sale contained the following reservation of jurisdiction: “It is further ordered that the court retain jurisdiction of the trustee, for the purpose of supervising all acts and doings of the trustee subsequent to the period of redemption and issuance of a Master’s deed; and in the event no redemption is had until the final sale and disposition of the premises described in said decree, at a sale by the Trustee to a corporation now in existence or to be organized at a later date, or to any individual, and the court orders that any sale so had shall be subject to the order of the court, and the proceeds likewise shall be subject to the order of court, it being the intention of this court to retain jurisdiction until the bondholders receive their pro-rata share in cash or other security to be approved by this court. ’ ’ On August 1, 1937, the trustee, as lessor, made a lease with the Jackson Park Manor, Inc., wherein the premises were leased for a period from August 1, 1937, to and including July 31, 1944. The 22nd paragraph of the lease provides that if the lessor at any time during the existence of the lease receives a bona fide offer from any third party for the purchase of the premises, which the lessor deemed acceptable, the lessor would give the lessee notice in writing of such offer, with the terms thereof, and that in the event the lessee did not within 60 days after such notice, present to the lessor the offer of the lessee to purchase the premises upon the same or better terms, the lessor could convey the property to such third person and cancel the lease, upon giving* the lessee at least 30 days’ previous notice in writing of its intention so to cancel. The clause also obligated the lessor to sell to the lessee, if the lessee within 60 days elected to purchase, with the proviso, however, that the proposal should be submitted to the superior court of Cook county, and that if that court rejected the proposal to purchase, the lease nevertheless would continue to remain in force. The building is about 47 years old and is improved with a six-story brick and stone apartment hotel containing 90 light housekeeping* units, two stores and a two-story building in the rear containing* single hotel rooms. It was remodeled from a 12-flat building into an apartment hotel, with one bath for each 8 apartments. The building on the rear of the lot, which was formerly a stable, contains 20 rooms and 4 baths. The original decree of sale found that a bondholders’ protective agreement dated August 25, 1930, was signed, and that a bondholders ’ protective committee was organized, with "William. R. Henriksen as chairman, and Roland P. Williams and Harold Gr. Stallwood as additional members. There was no redemption from the sale, and on March 29, 1938, a master’s deed was issued conveying the real estate to Mabel C. Kennicott, assignee and nominee of the Trust Company of Chicago, trustee for the use and benefit of the holders of all unpaid bonds and interest coupons. On April 20, 1938, a liquidation trust was formed between the bondholders ’ protective committee, consisting of William R. Henriksen, Roland P. Williams and Harold Gr. Stall-wood and the Trust Company of Chicago, as trustee. A deed in trust dated May 2, 1938, was executed by Mabel C. Kennicott, conveying the property to the Trust Company of Chicago, as trustee, under the liquidation trust agreement of April 20, 1938. Certificates of beneficial interest were issued to the holders of the bonds and interest coupons. These provided that the interest of the holders should be personal property and not real estate.

On April 8, 1938, the trustee employed Robert Cor-deau, a licensed real estate broker, to sell the real estate involved herein, and promised to pay him the usual commission. Cordeau devoted his services for the purpose of procuring a purchaser. He interested Sam Lanski, and he also endeavored to interest other prospective purchasers, all of whom he submitted to the trustee. Lanski offered to purchase the property for $27,500, payable $6,000 at the time of entering* into an agreement for a warranty deed, plus $4,000 payable in quarterly installments of $500 each, and the balance considered as being paid by the purchaser by assuming the unpaid taxes and penalties to the amount of $17,500, to and including June 30,1938. Later, the offer of Lanski provided that if the taxes and penalties aggregate less than $17,500, he would pay to the trustee the difference between the lesser amount and $17,500. On April 28,1938, the trustee notified Cordeau that under its lease, Jackson Park Manor, Inc., had an option to meet the terms of any offer submitted. From April 28,1938, to May 20,1938, Cordeau continued his efforts to sell the real estate, and on May 20,1938, he presented to the trustee a contract signed by Sam Lanski. On May 24, 1938, the trustee wrote to Cordeau that it was necessary to submit the Lanski contract to the eertifi-cate holders under the terms of the liquidation trust agreement. The letter of the trustee also stated that “It is our understanding that the Trust will pay you a brokerage commission in accordance with the Chicago Beal Estate Board rates. ’ ’ On June 6,1938, the trustee submitted the Lanski contract to the certificate holders, and on June 29,1938, advised Cordeau and Lanski that the contract of purchase had been accepted by the certificate holders, and that Lanski should make a deposit of $1,000 to apply on the purchase price. Cordeau and Lanski went to the office of the trustee for the purpose of making the deposit, but were informed by the trustee that it would have to obtain from Jackson Park Manor, Inc., a waiver of its option to purchase before it could accept the $1,000 from Lanski. On July 5, 1938, Jackson Park Manor, Inc., notified the trustee of its desire to purchase the real estate upon the same terms as those submitted by Lanski. The trustee then notified Lanski that it was returning his offer to purchase for the reason that the lessee had met the offer theretofore made by him. The trustee then entered into a written contract with Jackson Park Manor, Inc., to sell the property to it for $27,500. $6,000 earnest money was deposited by Jackson Park Manor, Inc. The $27,500 was to be paid by the purchaser by payments in cash amounting to $11,000, and by the assumption by the purchaser of unpaid taxes, interest and penalties amounting then to $16,500. On July 1, 1938, the unpaid taxes, interest and penalties were estimated at $17,500. The offer of Jackson Park Manor, Inc., by agreement with the trustee, was afterwards supplemented to the effect that if the unpaid taxes at the date of the closing of the sale were less than $17,500, the difference between the amount of such taxes found to be due and $17,500 would be paid in cash to the trustee by Jackson Park Manor, Inc. The trustee then agreed to pay Cordeau a commission of 5 per cent, based upon the price of $27,500, and on July 12, 1938, wrote to Cordeau that “We shall reserve for your account the regular real estate board commission based upon the price of $27,500.00.” On August 4, 1938, the trustee filed its petition in the superior court of Cook county, asking leave to sell the property to Jackson Park Manor, Inc., for $27,500, less the taxes and penalties as heretofore related. The order entered by the superior court on August 4, 1938, recites that on the motion of the attorneys for the trustee for the approval of the offer of sale from Jackson Park Manor, Inc., and upon the representation of “Mr. Breckinridge and Mr. Henriksen” that a higher offer can be obtained, it was ordered that the motion for the approval of the sale be continued to September 7,1938, without further notice, for the purpose of presenting the increased offer, if any there be, subject to the right of the Jackson Park Manor, Inc., to meet the terms of the offer, if any. On August 5, 1938, Henriksen procured Max S. Zernes and William Sherwin to offer $30,000 in cash, less an allowance of $14,000 for unpaid taxes. A signed contract and a deposit as earnest money was delivered by Henriksen to the trustee for submission to the court. The offer was rejected by the trustee. Later, Max Zernes and William Sherwin increased their offer to $31,000, less an allowance of $14,000 for outstanding unpaid taxes. This offer was likewise rejected. On August 22, 1938, on written stipulation signed by the attorneys for the trustee and L. A. Sherwin (an attorney who represented some of the certificate holders), an order was entered in the superior court that the hearing on the trustee’s petition (which the order recited was set for August 22, 1938), be continued to October 20, 1938, without further notice, and that respondents’ time to answer the petition be extended to the same time; also that the trustee’s petition theretofore set for hearing on September 7, 1938, be continued to October 20, 1938. On the same date (August 22,1938), an order was entered in the superior court, which recited that the-matter came on to be heard on the petition of the Trust Company of Chicago for instructions. The order also recited much of the preceding history of the litigation. -It then decreed that the trustee sell the premises to Jackson Park Manor, Inc., for $27,500, payable $7,000 in cash, $4,000 in quarterly installments of $500 each, and the balance of $16,500 to be paid by the purchaser assuming unpaid taxes, penalties and interest amounting to $16,500. The decree further directed that the order of August 4,1938, be vacated. From the decree approving the sale to Jackson Park Manor, Inc., William R. Henriksen appealed to this court.

On September 2, 1938, a stipulation between the Trust Company of Chicago and William R. Henriksen was filed. It stipulated that the appeal from the order approving the sale to the Jackson Park Manor, Inc., taken by Henriksen, be dismissed; that the order authorizing the sale of the premises to the Jackson Park Manor, Inc., be vacated and expunged from the records of the court; that the petition filed on August 11,1938, by the Trust Company of Chicago, be withdrawn; that the order entered on August 22, 1938, continuing the hearing of the cause to October 20, 1938, be vacated; that the order entered August 4, 1938, continuing the hearing of the cause to September 7, 1938, be vacated ; that the answers filed by William R. Henriksen, William M. Breckinridge, Max S. Zernes, William Sherwin and L. A. Sherwin be withdrawn and expung-ed from the records of the court; that the orders of August 30, 1938, fixing the appeal bond of Henriksen be vacated and that the sureties thereon be discharged; that leave be given to the trustee to file a petition, together with a current account and report covering its acts and doings up to and including August 1, 1938; that leave be given William R. Henriksen, et al., and Jackson Park Manor, Inc., to file their respective answers to the petition of the trustee for instructions within 10 days; that a hearing be had on the petition and the answers which may be filed thereto upon notice to all parties, after the filing of said answers; that if the court shall determine that the trustee is authorized to accept offers for the purchase of the property from any one other than the Jackson Park Manor, Inc., that such trustee shall, after the determination by the court, give notice to Jackson Park Manor, Inc., of the receipt by it of such offer, and thereupon Jackson Park Manor, Inc., shall have the right to meet the terms of such offer pursuant to the terms of the lease. On September 2, 1938, the court entered a decree, which substantially carried out the terms of the stipulation. On September 13,1938, pursuant to a notice served on certain persons, the trustee filed a petition, and therein inter alia told about the offer from Lanski and Jackson Park Manor, Inc. The petition then stated that on August 4, 1938, the petitioner received an offer to purchase the property from William Sherwin and Max S. Zernes for the sum of $31,000 in cash; that the proposed purchasers had deposited the sum of $10,000 as earnest money, and that under the proposal the unpaid real estate taxes due at the time of the closing of the deal, were to be deducted from the sum of $31,000. The petition further recited that there was some legal doubt as to whether under the terms of the trust agreement and lease, it was authorized to accept further offers for the purchase of the property, or whether it was legally bound to accept the offer of Jackson Park Manor, Inc.; that petitioner had requested Frank J. O’Brien, an officer of the real estate firm of McKey & Poague, to appraise the property; that O’Brien submitted an appraisal that in his (O’Brien’s) opinion the property, from the standpoint of utility and market value “might be sold for $25,000.00.” The trustee prayed that the court instruct it as to the manner in which to proceed and as to which of the offers it might legally accept. On September 19, 1938, the court ordered that the sale of the premises be set for Friday, September 23, 1938, at 2 p. m. in open court before Judge Charles A. Williams. On September 30, 1938, the court entered a decree, which recited that the matter came on to be heard on the petition of the successor .trustee for instructions and the answers filed thereto, and the court being fully advised in the premises found the facts to be substantially as set out in the petition. It also found that on September 19, 1938, “all parties hereto being present in court,” the court on its own motion directed that a sale of the premises be held in open court on September 23, 1938 at 2 p.m.; that pursuant to the order a sale was conducted before Judge Charles A. Williams of the superior court; that the highest and best bid received was from Max Zernes and William Sherwin of $33,000, to be paid by the delivery of $19,000 in cash and the assumption by the purchasers of all outstanding taxes, special assessments and penalties; that if such taxes, special assessments and penalties are less than $14,000, the purchaser shall pay to the trustee the difference between the actual amount as of the date of the conveyance by the successor trustee, and $14,000; that if the general taxes, special assessments and penalties are in excess of $14,000, the purchaser shall be allowed only $14,000, that the purchasers shall also pay the premium for the unexpired fire insurance. The decree also found that by virtue of the decree of July 14, 1937, the court had retained jurisdiction to pass upon the propositions presented. The decree rejected the offer of the Jackson Park Manor, Inc., and called upon that corporation to exercise its option, should it so desire, to meet the terms of the offer made by Max Zernes and William Sherwin within 60 days from the date of the entry of the decree. The decree then declared that if the lessee did not exercise its option within -60 days to purchase the property for $33,000 on the same or' better terms than were tendered by the proposed purchasers, the sale of the property to Zernes and Sher-win should stand affirmed, the purchase price to be $33,000, of which $10,000 as earnest money was then in possession of the trustee, $9,000 additional to be paid at the time of the delivery of the deed, and the balance of $14,000 to be absorbed by the assumption by the purchasers of all delinquent taxes, assessments and penalties. On November 7, 1938, William B. Hen-riks en filed his petition in the superior court, wherein he set up the services he claimed to have performed as a real estate broker in procuring Zernes and Sher-win as purchasers of the premises. In the petition he asserted that on August 4, 1938, he appeared before Judge Niemeyer in behalf of himself, his wife and other owners and holders of certificates of beneficial interest, and opposed the sale of the premises.to Jackson Park Manor, Inc.; that at such hearing he stated to the court that if he were given time he could, as a real estate broker, procure a better bid; that he inquired of the court whether he would be allowed a broker’s commission if he procured a better bid which would be acceptable to the court; that Judge Niemeyer refused to approve the sale and instructed him to obtain a better bid; that the order of August 4,1938, was then entered; that the matter of the approval of the proposed sale to Jackson Park Manor, Inc., was continued to September 7, 1938; that after the entry of the order he contacted prospective buyers and obtained a bid for $30,000 with the provision that the taxes would be deducted only to the extent shown by the records of the county treasurer; that the bid of $30,000 was not accepted by the trustee; that he thereupon worked further on the matter and succeeded in having the bid raised to $31,000, with a provision that not exceeding $14,000 would be deducted on account of taxes-; that the latter bid was submitted to the trustee and accepted by it, subject to the approval of the court; that through petitioner’s efforts the proposed purchasers, Zernes and Sherwin, appeared in open court on September 19, 1938, and increased their bid to $33,000 in cash, less an allowance of $14,000 for all unpaid taxes to and including the time of the conveyance; that the proposed contract between the trustee and the purchasers was presented to the court; that such contract contained a clause providing for a brokerage fee according to the rate provided by the Chicago Real Estate Board, to be paid to petitioner; that the trustee has held up paying the claim because it represented to him that a claim for commission for the sale of the property was presented by another broker. He concluded by stating* that no other broker was the procuring cause of the deal which was approved by the court, and prayed that an order be entered directing the trustee to pay over to him the sum of $1,495 as a broker’s commission. On November 14, 1938, the trustee filed a petition in which it recounted the respective claims of Henriksen and Cordeau. Paragraph 3 of the petition stated that petitioner “is unable to determine which of said brokers is entitled to a commission, and it cannot pay a commission to one of said brokers without taking upon itself the responsibility of determining the doubtful questions of law and fact arising out of said transaction, and without incurring the risk of being subjected to defending itself in a multiplicity of suits and to a possible double payment of the amount due.” He asked that the court grant leave “to file its answer in the nature of an intervening petition to the petition of William R. Henriksen,” and that the court issue a writ of summons, directing the sheriff to summon Robert C. Cordeau to appear and answer the petition, and that William R. Henriksen be required to answer the petition. On November 14, 1938, the court entered an order granting leave to the trustee to file its answer in the nature of an intervening petition, and directing the clerk to issue a writ of summons to Cordeau and that Henriksen answer the petition. On November 18, 1938, Henriksen did answer. He repeated what he had theretofore set forth in his petition. In addition, he stated that the sale to Max S. Zernes and William Sherwin had been completed and that the purchase price had been paid to the trustee. He maintained that he was the broker who had procured the purchaser, that the sale was authorized by the court and that he was entitled to the commission. On December 19,1938, Robert Cordeau appeared in the case for the first time. On that date he filed his appearance and an answer. The answer detailed the arrangement that he had with the trustee, and the work that he had performed in procuring Sam Lanski and then Jackson Park Manor, Inc., as a purchaser. Much of the matters set out in the answer has been thoroughly covered in out statement of the facts. The answer also stated that at the time the real estate was offered for sale by Judge Williams and at the time of the successful bid, there was no statement made by the court that a real estate commission would be paid to the broker, William R. Hen-riksen; that no one informed the court at the time of the making of the bid that a real estate commission would be claimed; that Henriksen was not employed by the trustee as a broker to sell the property; that the sale was a sale in open court upon a bid made in open court; that Henriksen was not entitled to receive any real estate brokerage commission; that Henriksen, at the time of the sale and also at the time of filing the answer, was the chairman of the protective committee, consisting of Roland P. Williams, Harold Gf. Stallwood and himself (William R. Henriksen); that by reason of the fact that he was a member of the bondholders’ protective committee, he was a fiduciary; that because of his status, the securing of a purchaser for the real estate was necessarily in the performance of his duty; that therefore, Henriksen was disqualified from acting as a broker in the transaction; that he, Cordeau, was the only real estate broker lawfully employed to secure a purchaser; that he did secure a purchaser who agreed to purchase the property at a price of $27,500, less a $14,000 allowance to the proposed purchaser covering taxes; that the court did not have or retain any jurisdiction after the issuance of certificates of beneficial interest under the liquidation trust agreement, and that the court did not have jurisdiction to approve or disapprove any subsequent sale of the property. The answer admitted the allegation of paragraphs 1, 4, 5, 6 and 7 of the “answer in the nature of an intervening petition of the Trust Company of Chicago.” Paragraph 1 of the petition asserted that the Trust Company of Chicago, prior to September 26,1938, held title to the premises by virtue of a trust agreement dated April 20, 1938. Paragraph 4 briefly set up the claims that were being asserted against it by Cordeau and Henriksen, each claiming a commission. Paragraph 5 alleged that the trustee was then and had at all times been willing to pay the person legally entitled to receive such brokerage commission; that there were conflicting claims to “said commission”; that it was a mere stakeholder and had no interest in the controversy and was ignorant of the respective rights of Henriksen and Cordeau, and cannot determine, without hazard to itself, which one of said parties is legally entitled to receive said commission; that it cannot páy over the money due to any of the aforesaid parties without taking upon itself the responsibility of determining the doubtful questions of law and fact arising out of said transaction and without incurring the risk of being subject to great cost and expense in defending itself in a multiplicity of suits and to a possible double payment of said commission if it should finally appear that it wrongfully determined in favor of one of the parties at the expense of the other. Paragraph 6 declared that the trustee did not collude with either of the brokers and did not ask relief at the request of either party, but solely of its own free will to avoid being molested and injured. Paragraph 7 stated that the trustee was ready, willing and able to deposit the sum of $1,490 with the clerk of the court to abide the judgment of the court. The answer concluded by stating that Cordeau was entitled to the sum of $1,375 for the services he rendered as a broker. On December 20, 1938, William it. Henriksen, Aleth J. Henriksen, William M. Breckinridge and Leon M. Chamison, bondholders, filed a petition wherein they set up that on September 15, 1938, they filed a petition praying (a) that the court prevent a sale of the premises at the price of $27,500; (b) that the fees awarded in the original decree to the attorneys for the trustee be reduced; (c) that the trustee be required to account, and (d) that the lease to Jackson Park Manor, Inc., be canceled; that since filing the petition, the premises had been sold for $33,000, less $14,000 allowed for taxes; that the petition filed on September 15, 1938, was referred to a master in chancery; that after hearings had commenced before the master, negotiations were conducted, which resulted in the cancellation of the lease and the reduction of the fees allowed to attorneys for the complainant in the original decree from $8,000 to $5,000; that an agreement had been reached between petitioners for the benefit of all the bondholders and the trustee, whereby the trustee had reduced its fees; that all the matters referred to the master had been adjusted; that the master had agreed to accept $75 in full for the services he had rendered; that the petitioners had retained attorney L. A. Sherwin subsequent to August 4,1938, to appear in behalf of themselves and all other bondholders in order to bring all matters to the attention of the court; that the petitioners and other bondholders agreed to pay Sherwin one-third of all sums which he, Sherwin, succeeded in obtaining for the bondholders in excess of $7.78 per $100 bond, which is the sum the bondholders would have received as their dividend from the proceeds of the sale of the premises and from all other sources if there had been no intervention by the petitioners; that Sherwin appeared in court on numerous occasions, prepared and filed numerous petitions on which there were hearings before the court, and appeared before the master on the hearings being conducted, secured necessary documents and attended to all that was necessary to do in bringing about a settlement of the controverted questions. The petition then set out in detail the services claimed to have been rendered by Sherwin, and asserted that because of his activities the bondholders were enriched (a) in the sum of $9,000, being the difference between the offer of $27,500, less $17,500 allowance for taxes, and $33,000, the price at which the property was sold, less an allowance of $14,000 for taxes; (b) the saving for the bondholders of the payment of the 1938 taxes, which the purchaser assumed (amount not stated); (c) the sum in excess of $200 for premiums on unexpired insurance; (d) a reduction of $3,000 in attorneys’ fees; (e) a saving of between $400 and $500 in fees claimed by the trustee, and (f) a saving to the bondholders by defeating the claim of the Reconstruction Finance Corporation on three $1,000 bonds. The petition stated that L. A. Sherwin had been retained by them and that he had agreed to reduce his fee to the sum of $1,750; that Sherwin had spent in excess of 350 hours; that by virtue of the services of Sherwin the bondholders will greatly benefit, and asked the court to direct that the trustee pay Sherwin the sum of $1,750, that the trustee submit a final report and account, and that on the coming in of the account the trustee be required to distribute the funds in its possession pro rata to the certificate holders. On December 20, 1938, the court found that L. A. Sherwin had “rendered valuable services and saved a large sum of money for bondholders, all parties hereto have submitted the amount which shall be allowed him as fees, in lieu of the contracts for fees he now has. This court hereby allows said L. A. Sherwin $1500.00 as fees in full for all of his past services, and any services he shall render hereafter, and his contracts for fees with bondholders is hereby cancelled. The Trustee is hereby directed to pay this sum out of the estate prior to distribution.” On December 21, 1938, William E. Henriksen filed a written motion to strike the answer of Cordeau and for the entry of an order that the amount he earned as commissions, be paid to him. On December 23, 1938, the attorneys for the Trust Company of Chicago, complainant, filed a petition wherein they stated that they consented to the reduction of the fees allowed to them in the original decree to the extent of $3,000; that L. A. Sherwin had been allowed $1,500 for his services and that they had sufficient funds on hand to pay the fees and asked for an order authorizing the trustee to make payment of $1,500 to Sherwin and $2,500 to the attorneys for the complainant, which was the balance due after deducting $3,000 which they had allowed. On December 23, 1938, the court entered an order directing the trustee to pay Sherwin $1,500, and the attorneys for the trustee the sum of $2,500, being the balance due them, and the same attorneys the sum of $375.42, advanced and expended by them in the foreclosure proceeding and in the administration of the trust estate. On December 27, 1938, the court entered an order which recited that the cause came on to be heard on the petition of Henriksen and the answers of the Trust Company and Eobert Cordeau, and that the court being fully advised in the premises found that the court on August 4,1938, refused to approve the sale of the premises to Jackson Park Manor, Inc., and directed Henriksen, a licensed real estate broker, to procure a higher bid, and if successful and approved by the court, that Henriksen would receive his regular real estate broker’s commission ; that Henriksen did procure a purchaser who paid a price of $33,000; that the purchase was approved by the court, and that Cordeau had nothing to do with the sale of the premises to the purchasers. The order also found that Cordeau did not produce a purchaser who was ready, able and willing to buy the premises at a price which would be approved by the court; that the order entered August 22, 1938, before Judge Stanton which approved the sale of the property to Jackson Park Manor, Inc., was entered in error; that on September 2, 1938, the order was vacated; that Cordeau did not procure Zernes and Sherwin to purchase the property; that Henriksen procured these persons as purchasers, and that he, Henriksen, should receive the broker’s commission of $1,490. The decree concluded by directing the clerk of the court to deliver the sum of $1,490 to William B. Henriksen. On December 27, 1938, the court also entered a separate order sustaining the motion of Henriksen to strike the answer of Cordeau and granting leave to Cordeau to file an amended answer within 5 days. On that date the court also entered a separate order authorizing the clerk of the court to receive the sum of $1,490 from the trustee. Cordeau elected to stand by his answer. He thereupon prosecuted an appeal from the order of December 20, 1938, allowing L. A. Sherwin the sum of $1,500 as fees, the order of December 27, 1938, wherein the court sustained the motion to strike his (Cordeau’s) answer, and the decree entered on December 27, 1938, finding that Henriksen was entitled to the payment of a commission and directing the clerk of the court to pay the commission to Henriksen.

In a complaint instituted for the purpose of forcing rival claimants to interplead, the plaintiff should be in a position where he is merely a stakeholder. If his conduct has been such that he is obligated to pay each of the rival claimants, manifestly, he cannot relieve himself by filing an interpleader. In proceeding by way of interpleader, the proper practice is for the court to determine whether the interpleader proceeding has been properly brought. If it has, then an interlocutory decree is entered, requiring the plaintiff to deposit the fund with the clerk, dismissing him and requiring the parties to interplead in order to determine how the fund shall be disposed of. However, under the factual situation before us, the defendants have, by their pleadings and conduct, recognized the regularity of the procedure, and that the trustee was merely a stakeholder.

Cordeau urges that the court erred in striking his answer. On a motion to strike, all facts that are well pleaded, are admitted. Cordeau insists that his answer is legally sufficient to entitle him to recover compensation from the Trust Company of Chicago for the services rendered at its special instance and request. He reiterates the general rule that a broker earns his commission when he procures a purchaser acceptable to the seller, and a contract is signed or entered into between the purchaser and the seller. He also states that the liquidation trustee had authority to employ brokers to sell the property, and that the intervention of the court could not operate ex post facto to deprive him of a commission theretofore earned by him. It is obvious that if he had actually earned the commission, he could not be deprived of it. However, inseparably coupled to the question as to the right to a broker’s fee, is the clause in the decree of July 14,1937, reserving .jurisdiction. It will be noted that the clause retains jurisdiction over the trustee for the purpose of supervising all acts and doings of the trustee subsequent to the period of redemption and the issuance of a master’s deed. It also contemplates that if no redemption should be made, then until the final sale of the premises, any" such sale should be subject to the order of the court, and that the proceeds should also be subject to the order of the court. The clause concludes by reciting that it is “the intention of this court to retain jurisdiction until the bondholders receive their pro rata share in cash or security to be approved by the court.” We are satisfied that the court had the right to reserve jurisdiction to pass upon a future sale of the property and of the distribution of the proceeds of the sale. Appellant maintains that the jurisdiction of the court was exhausted by the rendition of the final decree, the sale of the premises and the approval of the master’s report of sale and distribution, the expiration of the period of redemption on March 17, 1938, and the conveyance of the property to the liquidation trustee on April 20, 1938. He argues that even if the reservation of jurisdiction effected a continuance of jurisdiction after the expiration of the period of redemption nevertheless such continued jurisdiction was terminated by the distribution of certificates of beneficial interest in the liquidation trust to the former bondholders, such distribution constituting “their pro rata share in cash or security” contemplated by the order of July 14, 1937. He also declares that if we consider that it was necessary to obtain the court’s approval of the sale, that such approval was in fact obtained in the order of August 22, 1938, and that the subsequent vacation of the order could not affect his rights. He was not a party to the stipulation by which the order of August 22, 1938, was vacated. Having decided that the court had the right to reserve jurisdiction to approve the sale and distribution of the proceeds, we turn to consider the contention that when the certificates of beneficial interest were distributed to the former bondholders, the intent of the reservation was substantially carried out. No cash was distributed. Cordeau asks us to consider the distribution of the certificates of interest as a receipt by the former bondholders of their respective shares of the “security.” Our view is that the language contemplated the distribution of cash or the equivalent of cash. If a sale were consummated, it would be likely that the purchaser would pay part in cash and part in a mortgage, securing the notes or bonds. These notes or bonds would then constitute securities. In the event of sale, in the distribution of part cash and part bonds securing a purchase money mortgage, it cannot be doubted that the intent of the clause would be carried out. However, the substitution of certificates of beneficial interest for the bonds does not in our opinion exhaust the power reserved in the court. The court, therefore, still retains jurisdiction to pass on any proposed sale of the property. Any broker dealing with the trustee, did so with knowledge of its limited powers. When the final proposal to purchase was made by the lessee, Jackson Park Manor, Inc., it was submitted to the court by the trustee. The record does not affirmatively show that Cordeau knew that the approval of the court was sought. His pleading is silent on whether or not he did know. However, it is common knowledge that a real estate broker keeps in close touch with a deal that he is attempting to negotiate. An order was entered by the court approving the sale to Jackson Park Manor, Inc. On the same day, a contradictory order was entered by the same judge. It is apparent that in the entry of these two conflicting* orders there was some misunderstanding. However, the order approving the sale was vacated by stipulation after Henriksen had appealed. It is true that Cordeau was not a party to the stipulation. Therefore, he would not be bound by the same; in fact, he did not come into the case until he was served with a summons, subsequent to the filing by the trustee of an answer in the nature of an inter-pleader. We are convinced that it was necessary to obtain the approval of the court before a sale could be made. The wisdom of that procedure is shown by the fact that, due to the necessity of obtaining the approval of the court, the purchase price was raised from $27,500 to $33,000. Being of the opinion that it was necessary to obtain the approval of the court, it follows that the trustee, in its capacity as such, would not be obligated to pay a commission until the terms and conditions of the sale were approved by the court. It was necessary for the broker not only to procure a buyer who was ready, able and willing to buy and to enter into a contract to buy, but also that the court approve the purchase before the broker would be' entitled to his commission. While the answer of Cordeau shows that he did procure purchasers who were ready, able and willing to buy on certain terms, and who entered into a contract to buy, nevertheless, it is undisputed that the court did not approve the transaction. The court, under the circumstances disclosed, had a clear right to vacate the order of August 22,1938, approving the sale, which it did. Cordeau does not claim that he had anything to do with procuring the purchaser to whom the property was actually sold.

Having decided that Cordeau is not entitled to receive a commission, his interest in the litigation ceases. However, the court in sanctioning the sale to the ultimate purchasers, decided that Henriksen was entitled to a broker’s commission. Henriksen alleged that Judge Niemeyer stated that at the time he opposed the approval of the sale to Jackson Park Manor, Inc., if he procured a purchaser who would submit a higher bid and the bid were accepted, he would be paid a commission for his services. Cordeau in his answer states that no commission was promised at the time the bid was raised to the sum of $33,000 in the court room before Judge Williams. He does not deny that Judge Niemeyer made the statement which Henriksen asserts was made by Judge Niemeyer. The record shows that the chancellor was justified in decreeing that the clerk pay the commission of $1,490 to Henriksen. Cordeau also levels criticism at the allowance of a broker’s commission to Henriksen because Henriksen, being a member of the Bondholders’ Protective Committee, was a fiduciary, owing a duty in any event to devote his talents and energy for the benefit of the bondholders. However, the court, in deciding that Henriksen was entitled to the commission, knew of his position as a member of the Bondholders’ Protective Committee. There was no concealment of that fact. He was a licensed real estate broker, and if there was a full disclosure and an understanding that despite his position as a member of the committee, he would be allowed a commission if he were successful in procuring a purchaser whose bid was acceptable to the court, it would be proper to allow him a commission for his services. Furthermore, having reached the conclusion that Cordeau is not entitled to a commission, he, Cordeau, would not have any further interest in the litigation.

Cordeau also assails the order which allowed attorney L. A. Sherwin a fee of $1,500 for the services which he claimed he rendered. We cannot understand how Cordeau, who is not a holder of a certificate of beneficial interest, can object to the order whereby fees were paid to attorney Sherwin. He was brought into the case for the purpose of forcing Henriksen and himself to interplead. The record does not show that he had any interest other than to collect the brokerage fee which he claims he earned. It does not appear that any party to the foreclosure proceeding, or any bondholder, objected to the order directing the payment of the fee. Evidently, the chancellor who entered the order concluded that the services that were rendered by attorney Sherwin warranted the payment of $1,500 to him.

For the reasons stated the orders of the superior court of Cook county of December 20, 1938, December 23, 1938, and December 27, 1938, are affirmed.

Orders affirmed.

Hebel, J., and Denis E. Sullivan, P. J., concur.


text:
    S. S. Beman and Marion T. Beman, Appellees, v. Springfield Fire and Marine Insurance Company, Appellant.
    Gen. No. 40,818.
    Beard in the third division of this court for the first district at the October term, 1939.
    Opinion filed February 14, 1940.
    Schuyler & Hennessy, of Chicago, for appellant; Paul H. Heineke, of Chicago, of counsel.
    Boss & Berchem, of Chicago, for appellees.
   Mr. Justice Burke

delivered the opinion of the court.

The case was tried in the municipal court of Chicago on a stipulation of facts, which reads:

“Prior to 1934, plaintiffs were the owners of the premises at 147 Birch Street, Winnetka, Illinois, which premises were improved by a dwelling. Said premises were owned by plaintiffs, subject to a first mortgage owned by the Chicago Title & Trust Company, as Trustee for an Estate. In 1934 plaintiffs were in arrears in the payment of general taxes on said property and of interest on said first mortgage. To avoid foreclosure, plaintiffs conveyed said premises to the Chicago Title & Trust Company, as Trustee, in consideration of which conveyance the said mortgage was cancelled and plaintiffs were given an option to repurchase said premises from the mortgagee at a price of $20,300.00, plus charges from the date of the conveyance to the time the option to repurchase might be exercised by plaintiffs. Thereupon, plaintiffs vacated said premises and the mortgagee-grantee thereafter had management and control of the same.
• “On March 26th, 1936, and on April 9th, 1936, the plaintiffs’ option to repurchase the said premises was in full force and effect, and the plaintiffs’ interest in said premises, by way of said option to repurchase, had a value in excess of $2,500.00, the fair cash market value of said premises being more than $2,500.00 in excess of what the plaintiffs would have had to pay to repurchase same from the Chicago Title & Trust Company on said dates under their option agreement.
“On March 26th, 1936, the defendant’s policy of Insurance was issued to the plaintiffs, after complete disclosure to the defendant by plaintiffs of the latter’s option interest in said premises. Plaintiffs’ option to repurchase constituted an insurable interest in said premises.
“On April 9th, 1936, the dwelling on said premises was damaged by fire. The amount of said damage was in excess of $2,500.00.
“Plaintiffs gave prompt notice to defendant of said fire and fire damage, and, within sixty (60) days thereafter and on June 8, 1936, served upon defendant a Proof of Loss.
“The Chicago Title & Trust Company, former mortgagee and record owner of said premises at the time of the fire, had procured fire insurance covering only its interest, which insurance was in force on the date of said fire. Plaintiffs ’ interest under the option agreement was not covered by the insurance procured by the Chicago Title & Trust Company. The fire damage to said residence was repaired by the Chicago Title & Trust Company, which was reimbursed the cost of said repairs by the fire insurance companies which issued the insurance policies to the Chicago Title & Trust Company (not the defendant).
“About one month after said fire damage occurred, and after said repairs had been made, the plaintiffs procured a buyer for said premises and exercised their option to repurchase the same from the Chicago Title & Trust Company. Plaintiffs repurchased said premises under their option agreement in order to make the sale to the buyer they had procured, and plaintiffs ’ repurchase of the' premises and their sale to their buyer were almost simultaneous in time. At the time plaintiffs repurchased the property under their option, the repairs necessitated by the fire damage had been completed, without cost or expense to plaintiffs. The plaintiffs received from their buyer as much for their option interest as they would have received from their buyer had the fire never occurred. . . .
“Plaintiffs claim to be entitled to recover from defendant $2,500.00, the face amount of the defendant’s policy, because the amount of fire damage to said property exceeded that sum.
“Defendant denies liability for any payment whatsoever to plaintiffs under said policy, on the ground that plaintiffs suffered no financial loss by reason of said fire or fire damage.
“The sole issue is one of law.”

The portion of the policy which is important to the determination of the case reads:

“SPRINGFIELD FIRE & MARINE INSURANCE COMPANY OF SPRINGFIELD, MASS.
“In Consideration of the Stipulations herein named and of Four and 50/100 Dollars Premium, Does Insure Spencer S. Beman and Marion T. Beman for the term on One Year from the 26th day of March, 1936, at noon, to the 26th day of March, 1937, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding Twenty-Five Hundred and 00/100 Dollars.”

The case was tried before the court without a jury. On March 13, 1939, the court found the issues against the defendant and entered judgment for the sum of $2,500. This appeal followed.

Plaintiffs’ theory is that the policy provides for payment to them of a certain sum upon the occurrence of a certain event, namely, a fire, which damages the insured property; that once the property has been damaged by fire in an amount in excess of the policy limits, liability is fastened on the defendant under the policy; that liability is not extinguished by the repairing by a third person not in privity with either plaintiff or defendant ; that such repairs gratuitously made by them by and for a third person without plaintiffs’ approval or consent, cannot destroy their right to recover from defendant the amount of the insurer’s liability as established under the policy; that the good fortune of plaintiffs in obtaining a purchaser for a price equal to that obtainable before the fire does not abate defendant’s liability as established by the fire; that there is liability under the policy because by its terms it so provides, and that the policy is not one of indemnity, because not so written or intended.

Defendant’s theory is that an insurance contract is a contract of indemnity; that plaintiffs are not entitled to recover because the damage was repaired by the owners without any expense or loss to them; that after the repairs were made, plaintiffs’ exercised an option to repurchase and sold and received the same amount they would have received had there been no fire, and that plaintiffs have suffered no loss for which recovery may be had under the policy.

The first point urged by defendant is that a contract of insurance is a contract of indemnity, and that plaintiffs are not entitled to recover where they have not suffered any loss. Plaintiffs answer that all policies of fire insurance are not contracts of indemnity; that the language of the policy determines its character, and that when the policy insures “against loss or damage to the property” the insurer is liable for the amount of damage to the property, regardless of the amount of loss suffered by the insured.

Defendant places great reliance on the case of Schultz for use of Whitlock v. Home Ins. Co. of New York, 205 Ill. App. 297 (Abst.). An examination of the opinion shows that Schultz made a contract with Stanley Anuczanskas, a contractor, for the construction of a building on a lot owned by Schultz. The owner was to pay the contractor the sum of $3,200. To protect himself against loss by fire during the construction, the contractor insured the building in his own name with the Glen Falls Insurance Company. The owner also took out fire insurance on the building with the same insurance company. "When nearly completed and prior to delivery to Schultz, the building was damaged by fire. The appraiser for the insurance company appraised the damage at $798.50. The contractor, agreeing to this, was paid this amount by the Glen Falls Company. At the same time the owner assigned to E. J. Whitlock, who was the agent of the insurer, any claim he might have against the insurer for loss by fire. The contractor proceeded to complete the building and repaired the damage occasioned by the fire, using therefor nearly all the money received from the insurer. When the building was completed, it was turned over to the owner and accepted by him and the full amount of the contract price of $3,200 was paid to the contractor. Schultz expressed himself as satisfied with the building and with the repair of the portions damaged by fire, and said that he had suffered no loss through the fire. Plaintiff sued on the policy and was successful in recovering a judgment in the sum of $798.50, which was the amount of the damage. The court, in an opinion by Mr. Presiding Justice Mc-Surely, said:

“By the terms of its policy the defendant contracted to compensate Schultz for any ‘loss or damage by fire.’ Is he entitled to compensation when he has suffered no loss or damage? We are of the opinion that he is not. The contract of insurance against loss by fire is a contract of indemnity; it is to make good for loss, to compensate for damages. This rule has been stated with great frequency in the text books and in the opinions.

“To allow this judgment to stand is to give plaintiff a clear profit to that amount; for $3,200 he would get not only an equivalent of this amount in the value of the building, but also $798.50. If this should be deducted from the contract price of $3,200, the plaintiff would get a $3,200 house for $2,401.50. The "insurance policy was not intended as a policy of profit to the insured ; this is contrary to its genius and purpose. . . .

“Plaintiff, having suffered no loss or damage, is not entitled to recover on the policy issued by the defendant ; hence the judgment is reversed and judgment of nil capiat will be entered in this court. ’ ’ The insurance policy in the Schultz case contains the identical language quoted from the insurance policy in the instant case. In support of its argument, defendant cites the case of Ramsdell v. Insurance Co. of North America, 197 Wis. 136, 221 N. W. 654; St. Clara Female Academy of Sinsinawa Mound v. Northwestern Nat. Ins. Co., 98 Wis. 257; Arnfeld v. Guardian Assur. Co., 172 Pa. St. 605, 34 Atl. 580; Palatine Ins. Co. v. O’Brien, 107 Md. 341, 68 Atl. 484, 16 L. R. A. (N. S.) 1055; 26 C. J. 17, see. 1; Joyce on Insurance, vol. 1 (2d ed.) pp. 73 and 79, and Cooley’s Briefs on Insurance (2d ed.) vol. 1, p. 6. Plaintiffs rely on Andes Ins. Co. v. Fish, 71 Ill. 620; Simmons v. Home Ins. Co., 235 Ill. App. 344; Merrett v. Farmers’ Ins. Co., 42 Iowa 11; Kludt v. German Mut. Fire Ins. Co., 152 Wis. 637; Wohlt v. Farmers’ Home Hail, Tornado & Cyclone Ins. Co. of Seymour, 206 Wis. 35, 238 N. W. 809; Trade Ins. Co. v. Barracliff, 45 N. J. Law 543; Commercial Union Assur. Co. v. Scammon, 126 Ill. 355; Niagara Fire Ins. Co. v. Scammon, 144 Ill. 490; Savarese v. Ohio Farmers’ Ins. Co. of Le Roy, Ohio, 260 N. Y. 45,182 N. E. 665; Ely v. Ely, 80 Ill. 532; Tiemann v. Citizens’ Ins. Co., 78 N. Y. Supp. 620; St. Clara Female Academy of Sinsinawa Mound v. Northwestern Nat. Ins. Co., 98 Wis. 257, and Ramsdell v. Insurcmce Co. of North America, 197 Wis. 136, 221 N. W. 654. The last two cases are also cited by defendant. We have carefully examined all of the , authorities cited and are convinced that the principles announced by this court in the Schultz case are applicable to the facts in the instant case. We are satisfied that the policy of insurance before us constitutes a contract of indemnity.

Plaintiffs insist that collection by the insured from other sources of the amount of his personal loss resulting from the fire does not relieve his insurer of liability occasioned by the fire, and that after liability has accrued because of a fire loss, that liability is not extinguished by repairs made by a third party, not in privity with the insured or insurer. Plaintiffs also declare that the liability of the insurer is fixed by the happening of the fire, and as of that time, and cite cases which they contend support their propositions.

The Bamsdell case is a well-considered opinion. Plaintiffs owned a building which they leased for a term of five years to Peterson’s Inc. Under the lease, the lessee was permitted to repair and remodel the building at his own expense, which he did at an expense of $7,800. It thereupon insured its interest in the building for $7,500. The plaintiffs, as owners of the building, also insured their interest in the building for $3,000. In case of fire neither the lessor nor the lessee was required to restore the building, although either might do so. The court said :

£ 1 There was one building insured; there was one fire; there was one loss. There were two separate insurable interests in the building, and all policies issued were valid policies. These facts are admitted. The policies were all standard policies under the Wisconsin statutes. Each contained the provision that the insurer might at its option rebuild or restore the property instead of paying the loss in cash. None of the companies exercised that right. The lessee also had the right under the lease to restore the building, which it did. It is conceded that the lessee has been paid in full for its loss, which exceeded the insurance carried by the lessors. The lessors, by reason of the restoration of the building by the lessee, have suffered no actual loss, and they recovered only for a theoretical or potential loss.

“The trial court arrived at its conclusion by fixing the loss as of the time of the fire, the admitted insurable interest of the lessors, and the valid policies thereon.

“We are cited to no case directly in point as to the situation here. We prefer to treat the case as one of first impression. There is no dispute that each policy was an indemnity contract providing for payment only in ease of loss and only to the extent of that loss. While at one time gambling contracts in insurance were permitted, the modern view is to the contrary. Now it is practically the uniform rule that one must have an insurable interest and a loss before one can collect on a policy of insurance. This rule is based on public policy. Did plaintiffs below bring themselves within this rule?

“We agree that the damage is to be determined as of the time of the fire. But recovery is contingent on the right of the insurer to restore the building to its former usefulness. When there are other related parties by contract, may not the building be restored by others who have the right to do so, and thus defeat the right of recovery by one who has no loss in fact? The court looks to the substance of the whole transaction rather than to seek a metaphysical hypothesis upon which to justify a loss that is no loss. . . . They did not do this, but the lessee did restore the building and he has been paid by the insurer the full cost thereof. In equity and good conscience the insurance companies may yet prorate the loss, but we cannot see how it can be held that plaintiffs below had any actual loss.

“This results in a reversal of the judgment, and the question of estoppel need not be considered. ’ ’ In the case at bar the Chicago Title & Trust Company was the owner of the property at the time of the fire. Plaintiffs had an option to repurchase. The trust company was not a stranger. It made the repairs because it was the owner. As in the Bams dell case, “This is not a case where a stranger to the transaction, out of charity, or for other reasons, might make good the loss of the lessors. The loss has been made good out of a related transaction where the insurance companies might lawfully pool their losses and restore the building at the cost of the damage to the building.” We agree with the reasoning of the Supreme Court of Wisconsin in the Bams dell case and are of the opinion that it is applicable to the instant case. Let us remember that the parties stipulated that at the time plaintiffs repurchased the property under their option, the repairs necessitated by the fire damage had been completed without cost or expense to plaintiffs, and that plaintiffs received from their buyer for their option interest as much as they would have received had the fire never occurred. Plaintiffs have been indemnified through the repair of the building by the owner and the sale by them at a figure which was “as much as they would have received from their buyer had the fire never occurred.” Hence, they have sustained no loss under the policy.

For the reasons stated, the judgment of the municipal court of Chicago is reversed and judgment is entered here for costs for the defendant and against plaintiffs.

Judgment reversed and judgment here for costs against plaintiffs.

Hebel, J., and Denis E. Sullivan, P. J., concur.