text:
    Katie Usalatz (Katie Pleshe), Appellant, v. Estate of John Pleshe, Deceased, Appellee.

      Opinion filed November 8, 1939.
    Rehearing denied and opinion modified December 13, 1939.
    Paul A. Jones and Eovaldi & Eovaldi, all of Benton, for appellant.
    Hickman & Hickman, of Benton, Frank E. Trobaugh, of West Frankfort, for appellee; Stephen E. Brondos, of West Frankfort, of counsel.
   Mr. Justice Dady

delivered the opinion of the court.

The appellant, Katie Usalatz, herein referred to as the “claimant,” filed in the county court of Franklin county her claim for services in the sum of $2,100 against the estate of John Pleshe, deceased. The county court allowed her claim in the sum of $468. On appeal to the circuit court a jury returned a verdict for the defendant estate. A motion by claimant for a new trial was overruled and judgment was entered on the verdict against the claimant, to review which judgment claimant brings this appeal.

John Pleshe died testate on October 13, 1937. During the times in question he ran a small general store, and lived with two of his daughters in the rear of the store building. The ages of the daughters is not clearly shown but they were young women. In October or November, 1934, John Pleshe took the claimant, from where she was then living a few miles distant, to his home, and thereafter she lived in his home until his death. At the time of moving to his home her name was Katie Usalatz; after that she was known as Katie Pleshe. She had three children who were also grown up but did not live with her at the time decedent took her to his home or thereafter. Counsel for both parties say there is no evidence showing they were ever married to each other. The case is argued on the theory and we will assume that they were not married to each other. The record does not show the facts but the case was tried in the trial court and is presented in this court on the apparent assumption, and we will so assume, that at the time he so took her to his home the decedent was a widower or divorced, and the claimant was a widow or divorced. From the time of coming to his home in 1934 until his death she lived with him as a member of his household, occupied the same bed with him, ate at the same table with him and his two daughters, and helped the daughters in performing the household duties. To all outward appearances, during all the time the claimant lived at the home of decedent, she was his lawful wife. The two daughters, as witnesses for the defense, on cross-examination testified they did not know until the death of their father that he and the claimant were not married, but they were not asked and did not testify as to any declaration or admission by either the decedent or the claimant. Turkalay, a witness for the claimant, testified that in September or October, 1934, at the home of the claimant and before she moved to the home of the decedent, the claimant introduced the decedent to the witness as her “boy friend” and that thereupon the decedent said “I got all fixed up to be married, ” and that on the next day he was going to move the claimant to his home. About 10 days later, but in the absence of the claimant, the decedent told the same witness everything was “oke-doke,” and the witness then asked the decedent “where he was married and he said at Pinckneyville.” James Brown, chief of police of the town where the decedent lived, a witness for the claimant, testified that after claimant moved into the home of the decedent the decedent introduced her to Brown as his wife. One Pytlak, a witness for the claimant, testified that on one occasion he came to the store to get some peppers and that the decedent told him to go in the kitchen and see his wife and have her get some from the garden, and that thereupon the witness went into the kitchen and there saw the claimant and the claimant then got the witness such peppers. Five other witnesses for the claimant testified that after the time the claimant moved into the home of the decedent the decedent told each of such witnesses that he had married the claimant, but the record does not show that any of these statements were made in the presence of the claimant. Claimant, as a witness in her own behalf, testified that when decedent’s will was opened after his death was when she first found out or knew that she and the decedent had not been married. The record shows that if she is entitled to recover, her services were worth from $2.50 to $3.00 per week.

By the will of the decedent he first provided that all his just debts be fully paid and that, after the payment of his just debts . . . and after the making of other bequests out of a certain fund “Mrs. Katie Pleshe is to be paid the sum of five hundred dollars ($500.00). I give this amount of five hundred dollars ($500.00) to Mrs. Katie Pleshe on account of the fact that she has lived in our family and has administered to my comfort for many years/.’ This was the only reference to the claimant made in the will of the decedent.

The foregoing was all of the evidence material to the issues in this case.

Claimant contends the court erred in not permitting one witness to testify that the general understanding in the community was that the claimant was the wife of decedent. Such testimony would have been a mere expression of opinion or a conclusion. The court did not err in such ruling. Other than this, no complaint is made of the admission or rejection of evidence or of the conduct of the trial proceedings.

Claimant’s principal contention is that the evidence shows that she “rendered services to the deceased at his request, under the mistaken belief that she was his wife, he knowing that she was not, and voluntarily accepting such services,” and that “in equity and good conscience the plaintiff is entitled to recover from his estate for the reasonable value of these services, the obligation to pay therefor resting not on contract but on broader considerations of justice and equity.” Claimant cites as authority in support of such theory the ease of In re Fox’s Estate, 178 Wis. 369,190 N. W. 90. Briefly, the holding in the Fox case, so far as applicable to this case, is well set forth in a note on said case as it is reported in 31 A. L. R. 424, which note says: “A majority of the cases and the modern trend of the decisions seem to be in accordance with the rule in the reported case, that a woman, who, in good faith, lives with a man under the mistaken belief caused by his fraud, that they are lawfully married, may recover as upon implied contract the value of the services rendered him. ” It is interesting to note that in a note in 29 L. R. A. (N. S.) 788 it is said: “A majority of the cases hold that a woman deceived into the belief that she is married cannot sustain an action for services rendered by her as housekeeper for her supposed husband while she was living with him as his wife.” No Illinois case on this question has been called to our attention. Assuming, but not holding, that the law in this State is as laid down in the Fox case, the question, tersely stated, is, do the proofs in this case tend to show that the claimant is entitled to recover under such rule of law? Under the holding in the Fox case one of the elements necessary to such recovery under such rule of law is fraud.

The fact that decedent told Turkalay that he had married claimant at Pinckneyville, and told five other witnesses that he had married her, and told the witness Pytlak that she was his wife, do not tend to prove any fraud upon her for the reason that the record does not show these misrepresentations were made to her or at a time when she was present, or that such misrepresentations were ever brought to- her knowledge. The only other facts presented that might be claimed to be material on the question of fraud are that decedent told the witness Turkalay that claimant and he were going to be married and he was going to move her to his home the next day; that the next day or a few days thereafter he did move her to his home; that thereafter until his death she lived in his home and acted as a member of his household, occupied the same bed with him, ate at the same table with him and the rest of the family, and apparently, from all outward appearances, was his lawful wife; that the two daughters of the decedent did not know until the decedent’s death that the decedent and the claimant were not married; the fact that claimant testified that the time when she first found out or knew that they had not been married was when the will was opened; and the fact that he introduced her as his wife to the witness Brown.

This conduct of the decedent was a deception upon the public. Claimant by her conduct, both active and passive, joined in such deception, but in our opinion this evidence does not make a prima facie case of her being deceived by any fraud of the decedent. She was an adult; there is no proof she was illiterate or in any way subnormal; she had been previously married, we assume, and therefore it is fair to infer she knew something of the requirements or formalities of a marriage ceremony; there is no proof of the existence of any license, real or pretended, and no proof of any marriage ceremony whatever, real or pretended, which might lead her to believe they were married. Obviously, at least as far as this record shows, whether they were or were not or ever had been married to each other, was a matter as much within her knowledge as his.

It is only in cases where the parties do not have equal knowledge or means of knowledge of the facts represented that equity will afford relief on the ground of fraud and misrepresentation. (Bundesen v. Lewis, 368 Ill. 623; Morel v. Masalski, 333 Ill. 41.) We hold that the evidence, taken with all reasonable inferences in its aspect most favorable to the claimant, does not sustain a cause of action under the foregoing theory.

There is no evidence tending to prove, and it is not claimed, there was any express contract that decedent would pay claimant for the services rendered.

The next question that presents itself is, can claimant recover on an implied contract? From what has already been said, it follows that claimant must have known and actually knew she was living in illicit relations with the decedent. There can be no other reasonable conclusion.

In Stewart v. Waterman, 97 Vt. 408, 123 Atl. 524, 526, the court said, “It is a well-settled rule that a woman who knowingly and voluntarily lives in illicit relations with a man cannot recover on an implied contract for services rendered him during such relationship. Not only does the relationship as of husband and wife negative that of master and servant, but, such cohabitation being in violation of principles of morality and chastity, and so against public policy, the law will not imply a promise to pay for services rendered under such circumstances. ’ ’ (Lytle v. Newell, 24 Ky. L. Rep. 188, 68 S. W. 118; Willis v. Willis, 48 Wyo. 403, 49 Pac. 670.) The quotation from the Vermont case states a self-evident and wholesome rule of law.

The record does not show that claimant is entitled to recover on any theory. Therefore there is no occasion for us to discuss the question of whether or not the trial court erred in the giving or refusing of instructions.

Complaint is made that the court erred in denying the claimant’s motion to make the defendant pay expenses for failure to admit facts, as requested in their notice served on the defendant under Rule 18 of the Supreme Court. An examination of the notice and the request for admission of facts shows that the defendant could not have fairly admitted such facts without qualification or explanation and that the defendant’s refusal to admit such facts was not based upon caprice or unreasonable grounds. A substantial portion of the facts sought to be admitted were of controvertible character and not within the purpose of the rule, and the court did not err in its ruling. (Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95.)

The judgment of the circuit court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dady

license: Public Domain

text:
    Richard Lambert, Appellant, v. E. A. Dabbs, Agent for Cora Lewis and Edgar F. Gallagher, Appellees.
    Opinion filed November 8, 1939.
    J. E. Carr, of West Frankfort, for appellant.
    D. L. Duty, of Marion, for appellees.
   Mr. Justice Dady

delivered the opinion of the court.

This is an appeal by Richard Lambert, the claimant, from a judgment of the county court of Williamson county in favor of the defendants (appellees herein) in a trial of right of property.

Under an execution issued on a judgment in justice court in favor of the defendants and against William Lambert, a constable levied on certain personal property in the possession of William Lambert. Notice was duly given such constable by the claimant, that he claimed to be the owner of the property levied on. After due notice by the constable, the trial of right of property case was tried before the justice and judgment was entered for the claimant by the justice of the peace on January 27, 1939. On the third day after the entry of such judgment defendants filed an appeal bond with the justice, who approved such bond on the same day, and thereupon a transcript and said appeal bond were filed in the county court. Thereafter the claimant entered his special appearance in the county court for the purpose of entering a motion to dismiss the appeal, and moved to dismiss such appeal on the ground that the appeal was not prayed on the day the judgment was entered. The transcript of the justice was silent as to whether or not an appeal was prayed by the defendants bn the day the judgment was entered. The county court denied such motion, whereupon the cause was tried on its merits, and the county court on March 28, 1939, entered a judgment finding that the property in question belonged.to the claimant, but that because of his failure to make known his claim to the ownership of said property, and on account of his allowing William Lambert, doing business as Lambert Furniture Company, to hold himself out as the owner of said property, he, the claimant, is now estopped from claiming said property as against the creditors of William Lambert, doing business as Lambert Furniture Company. Said judgment; ordered that the defendants herein have judgment for possession of said property under and by virtue of the execution, and that the claimant pay the costs of the proceeding. :

No report of proceedings, consisting of the testimony at the trial on the merits and the ruling of the court on the motion to dismiss and all matters upon which such ruling was made, has been incorporated in the record.

The first contention of the claimant is that the appeal from the justice court to the county court was not prayed on the same day the judgment was entered and that for this reason the trial court erred in denying the motion to dismiss the appeal. The statute on trial of right of property in justice court, under which this case was tried, par. 142, ch. 79, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 71.138], provides that “an appeal may be taken as in other cases provided the same is prayed on the day the .judgment is entered and the bond shall be given within five days from the time of entering the judgment.” The bond was filed as required. In Rosier v. Williams, 92 Ill. 187, the court held that the provision of the statute that the appeal bond “shall be given within five days from the time of entering the judgment” is mandatory, and that where the bond was not given within such time the court on appeal acquired no jurisdiction. Hughes v. Glover, 53 Ill. App. 141, and Pettit v. Burke, 139 Ill. App. 419, which cases are cited by both parties to this proceeding, in effect state that the prayer for an appeal within the time provided is also mandatory and hold or assume that in passing on such motion it is proper for the circuit court to hear evidence as to whether the appeal was prayed or the bond given within the required time. The fact that an appeal was or was not prayed on a certain day may be shown by evidence other than the entry on the docket of the justice of the peace. (See Goehren v. Sweigle, 213 Ill. App. 594.) No authority is cited herein to the contrary, and this right of the court to hear such evidence is not questioned'by counsel for the claimant. The record is silent as to whether any evidence was introduced on such motion. It was incumbent on the claimant, in order to present for review the ruling of the court on this motion, to furnish a report of the proceedings (which is in lieu of and a substitution for the bill of exceptions provided for in the former Practice Act, Suttles v. Zimmerman, 287 Ill. App. 316) to show the grounds upon which the trial court acted. In the absence of a report of proceedings showing the contrary, we will presume that evidence was heard in support of the order of the county court denying the motion to dismiss and that grounds in fact existed for the denial of such motion. (See Blair v. Ray, 103 Ill. 615; Malott v. Hood, 201 Ill. 202; Mullen v. People ex rel. Wyatt, 138 Ill. 606.)

Claimant next contends that the county court having found that the property in question belonged to the claimant, such court could not then find that the claimant was estopped from claiming such property as against the defendants, but cites no authority. There is no force to this contention. It is well settled that there may be circumstances where an estoppel may operate against the person claiming what would otherwise be the better title to the property in question, and this rule is based upon conduct of the true owner by which he allows another to appear as the owner of or having full power of disposition over property in such a manner that an innocent third person is led into dealing with an apparent owner. The estoppel in such case does not depend upon where the actual title is, but rests upon the act of the real owner which precludes him from disputing the existence of a title which he has caused or allowed to appear to be vested in another. (Drain v. LaGrange State Bank, 303 Ill. 330.) Since no report of proceedings has been furnished by the claimant to show on what evidence, if any, the findings and the judgment of the court are based, this contention of the claimant, on the record before us, presents no question of fact which we can consider.

For the reasons indicated, the judgment of the county court is affirmed.

Affirmed.


author: Mr. Presiding Justice Matchett

text:
    Joseph Zamis, Appellant, v. Charles Hanson et al., Appellees.
    Gen. No. 40,632.

      Opinion filed November 27, 1939.
    Supplemental opinion filed and rehearing denied December 14, 1939.
    Alois Mavric, of Chicago, for appellant.
    Harold V. Snyder, of Chicago, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Zamis, plaintiff in the trial court, filed a bill to foreclose a trust deed and a decree was entered in his favor on November 21,1938. He appeals, however, from certain parts of the decree. The trust deed was executed on September 10,1928, by Charles Hanson, a widower. The conveyance was to secure an indebtedness of $3,000 represented by two notes of the same date, number one for $500 and number two for $2,500. The Chicago Title & Trust Company was named trustee.

Hanson was a contractor, and the notes and mortgage were in the first instance negotiated by the A. T. Boner Investment Company, who sold the note for $2,500 to the plaintiff on January 2,1929, and delivered it with the trust deed, guaranty and insurance policies to plaintiff. A. T. Boner was the president of the investment company. He had been in the mortgage business for 42 years. Plaintiff had often dealt with A. T. Boner and had much confidence in him.

On September 6, 1929, Hanson by warranty deed conveyed the mortgaged premises to Christine H. Boner, the wife of A. T. Boner. Beuben G. Carlson, who was the nephew of Mrs. Boner and secretary of the investment company, took Hanson’s acknowledgment to the deed. The deed was recorded by the investment company and came back from the recorder’s office with the blue label of that company attached to it. Prior to this conveyance to Mrs. Boner, Hanson entered into a contract with Henry Bepple and Ivon Bepple, his wife, agreeing to convey the premises to them upon the payment of $5,800. On September 5> 1929, one day prior to making the deed to Mrs. Boner, Hanson assigned this contract to the A. T. Boner Investment Company. On August 10, 1932, at the request of the A. T. Boner Investment Company plaintiff delivered his note for $2,500 and other papers to A. T. Boner at the office of the investment company. The delivery was for the purpose of making an agreement with the Bepples, as owners, and the owners of the trust deed, extending the time of payment. On September 10, 1932, the time of payment was extended for three years and the extension indorsed on the notes. Extension coupons dated September 10, 1932, representing the interest which would accrue upon the indebtedness until the end of the extended period, were executed and delivered by Bepple and his wife. The notes and the interest were both payable as due at the office of the A. T. Boner Investment Company.

On December 20, 1932, Christine H. Boner and her husband by deed conveyed these and other premises to Beuben G. Carlson, as trustee, under a written declaration of trust known as No. 32. No consideration was paid for this conveyance. The declaration of trust, however, bears date December 1, 1932, and trustee’s certificates were issued to A. T. Boner, 200 shares; Christine H. Boner, 90 shares; Beuben G. Carlson, 110 shares; and Anna C. Carlson, 100 shares. The declaration of trust and the trustee’s certificates were signed by Reuben Gr. Carlson, as trustee, and by Reuben Gr. Carlson, Arno T. Roner and Christine H. Roner, as owners of the shares.

The amended bill to foreclose was put at issue, referred to a master, and the decree entered was upon the master’s recommendation, the chancellor overruling exceptions of the plaintiff thereto.

Pending this suit Christine H. Roner, on November 2,1938, died. Her executors have been substituted as parties defendant. It is argued in their behalf that the action as against her abated, citing Morse v. Gillette, 93 Ill. App. 23, 26. However, under section 54 of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, § 178; Jones Ill. Stats. Ann. 104.054] this right of action survives against her personal representatives. (Smith-Hurd’s Ann. Stats., ch. 110, sec. 54, par. 178, p. 479 [Jones Ill. Stats. Ann. 104.054].)

Plaintiff contends the decree is erroneous in two respects. First, he says, it should have provided in case of deficiency for judgment against Mrs. Roner, Arno T. Roner and the A. T. Roner Investment Company. Secondly, he contends that the lien of the $500 note should have been subordinated to his lien under the $2,500 note.

The deed of September 6, 1929, from Hanson to Christine H. Roner conveys and warrants the premises subject to tax assessments, etc., specifically describes the trust deed of September 10, 1928, and the notes of even date secured thereby, and expressly states: “which grantee assumes and agrees to pay.” Upon the hearing before the master, Mrs. Roner testified: “I did not know anything about the existence of this deed, I never knew anything about it. Nobody ever asked me for my consent to convey this property to me. I did not receive any money in consideration. I don’t know about it at all. I never received any thing. I have never seen it before. The first time I knew that this property was in my name was just now, when you are talking. I don’t know that I signed a deed at the request of someone to convey various properties that they had conveyed to me.” On cross-examination she said that she knew Carlson; that he was secretary of the company and her nephew; that A. T. Boner was her husband; that she was not an officer of the A. T. Boner Investment Company; that she did not sign the document, exhibit 15, which is the instrument of conveyance from Christine H. Boner and A. T. Boner to Beuben Gr. Carlson, as trustee of Trust No. 32.

The master found that the title to this and other property was at the request of her husband, A. T. Boner, taken in the name of his wife, Christine H. Boner, and that on December 20, 1932, she joined in conveying all these properties to Beuben Gr. Carlson, as trustee of Trust No. 32. Plaintiff has not objected to these findings. The master also found, as a matter of law, that neither Christine H. Boner nor the A. T. Boner Investment Company were personally liable. The plaintiff objected to these findings and also objected that A. T. Boner was not also held to be personally liable. Plaintiff argues that Mrs. Boner’s denial of knowledge cannot prevail in the face of circumstances which raise a presumption that she knew. The undisputed facts that she was the wife of A. T. Boner, who was the president of the investment company; that she was a shareholder in that company; that she was a beneficiary of the assets of the company and of the Trust No. 32, to which she conveyed the premises; that the deed was written on a form used by the A. T. Boner Investment Company, was returned to that company by the recorder’s office, all, it is said, indicate actual knowledge by Mrs. Boner and show that she took title for and on behalf of the investment company. The finding of the master who saw and heard the witness has beén approved by the chancellor. In this court the finding is entitled to the same weight as a verdict of a jury. Stasch v. Stasch, 355 Ill. 581; Pasedach v. Auw, 364 Ill. 491. We think, as to the issue of fact of lack of actual knowledge on the part of Mrs. Boner, we cannot say that the finding of the decree is clearly and manifestly against the weight of the evidence. Nevertheless, on the uncontradicted facts, we think Christine H. Boner is liable on the covenant to assume and pay. In her answer she said that she conveyed the title to these premises as soon as she was informed of the deed containing the assumption clause. In her testimony she said she did not know of the deed putting title to the premises in her name until the particular moment at which she was testifying. She did not, however, amend her answer. She did not deny the authority of her husband or Carlson or the investment company to act in her behalf. She did not repudiate any transaction made by them or either of them for her. She holds 90 shares in the trust to which, by deed in which her husband joined, she conveyed these premises. Under such circumstances she cannot now be heard to say she did not know of the assumption covenant. As a matter of law, she is estopped to deny knowledge of it and must be held to have ratified the acts of her agents. Swisher v. Palmer, 106 Ill. App. 432. It was for her to disaffirm at the earliest practicable moment after knowledge. Sutter v. Rose, 169 Ill. 66. Merriman v. Schmitt, 211 Ill. 263, upon which defendant relies is not applicable for the reason that there the supposed deed was in fact only a mortgage.

The leading case on the liability of a grantee who in the deed assumes and agrees to pay a mortgage encumbrance is Dean v. Walker, 107 Ill. 540. In that and subsequent cases, the Supreme Court places liability on the theory that when one person makes a promise to another for the benefit of a third person, the latter may maintain an action on it and holds that it is not necessary that there should be further consideration passing from the third person.

For the reason we have pointed out, we hold the personal representative of Christine H. Boner is hound by the covenant in her deed assuming and agreeing to pay this mortgage.

The liability is contractual in its nature, and we are not aware of any theory upon which A. T. Boner or the A. T. Boner Investment Company can be held to be bound by this covenant to pay. It is suggested that Mrs. Boner was the agent and trustee of the A. T. Boner Investment Company and that the company is liable on that theory. However, the covenant of a trustee is not ordinarily binding on a cestui que trust. Plaintiff cites Bride v. Stormer, 368 Ill. 524; Gage v. Cameron, 212 Ill. 146; Libby v. Union Nat. Bank, 99 Ill. 622. All of these cases are distinguishable in that the agent who assumed was wholly without real interest in the premises. Here Mrs. Boner reconveyed to Trust No. 32 and holds certificates for her interest. The evidence here will not sustain the theory on which those cases were decided.

Plaintiff next contends the investment company is estopped to assert that its $500 note is on a parity with the note of plaintiff. The amended complaint, filed April 10, 1936, alleged that at the time plaintiff purchased the $2,500 note, A. T. Boner told him that the entire amount of the mortgage was represented by the $2,500 note. Plaintiff says that was untrue; that he relied upon the representation in the purchase of the security and was thus defrauded. The same averment appears in the third amended complaint. Upon the hearing before the master, plaintiff at first testified that when he purchased the $2,500 note Mr. Boner, with whom he was dealing, said nothing about any other note; that the trust deed was delivered to him but he never examined it; that he did not know that he was not the exclusive owner of this trust deed until afterward. At later hearings, plaintiff changed his testimony and said Mr. Boner told him about the $500 note but said it had been paid in full. Mrs. Zamis also testified. She said she was present when the note was purchased and, contradicting her husband, said that the trust deed was brought from the vault and that plaintiff inquired about the $500 note. She says, however, Boner said everything was paid and that it was all clear. Plaintiff explains that his knowledge of the English language is somewhat deficient. A. T. Boner testified in detail to the transaction and to the effect that he first tried to sell the $3,000 mortgage to plaintiff and explained fully to him, about the $500 note outstanding.

The issue here is clearly one of fact. The testimony of Boner and the documents themselves are against the somewhat conflicting testimony of Mr. and Mrs. Zamis. The master found against the plaintiff on this issue of fact. His finding has been approved by the chancellor. Upon appeal to this court this finding is entitled to the same weight as the verdict of the jury. Stasch v. Stasch, 355 Ill. 581; Pasedach v. Auw, 364 Ill. 491. The question before us is whether the finding is clearly and manifestly against the weight of the evidence. We cannot say that it is. The decree will be affirmed in all respects except as to the finding that the personal representatives of Christine H. Boner are not to be held liable for any deficiency. For the error in that respect the decree will be reversed and the cause remanded with directions to enter a decree in conformity with the views expressed in this opinion.

Reversed and remanded with directions.

O’Connor and McSurely, JJ., concur.

Supplemental Opinion Upon Behearing.

A. T. Boner, administrator of the estate of Mrs. Boner, has filed a petition for rehearing complaining in substance that the opinion ignores his position that there must have been an “initial consideration” for the assumption of the mortgage indebtedness by Mrs. Boner. The administrator calls attention to Sebolt v. Verderevski, 279 Ill. App. 30; Thompson v. Dearborn, 107 Ill. 87. In these cases the question was considered from the standpoint of whether the allegations of the bill were sufficient to show an agreement to assume and pay the mortgage indebtedness. Here the issue is of fact. Thompson v. Dearborn was by a much divided court. The law applicable is more fully stated in the later case of Dean v. Walker, reported in 107 Ill. 540. The administrator calls our attention to language in the opinion of the Supreme Court in Ludlum v. Pinckard, 304 Ill. 449. It should be noted, however, the Supreme Court there (reversing this court) held the grantee liable on grounds similar to those in this case found persuasive. Mrs. Boner testified. She did not deny either the authority of her husband or the Investment Company to act in her behalf.


author: Presiding Justice John J. Sullivan.

text:
    I. Allison et al., Appellants, v. R. J. Beatty and John T. Beatty, Appellees.
    Gen. No. 39,443.
    opinion filed December 5, 1939.
    Slottow & Leviton and Castle, Osborn & Hallett, for appellants; Charles Leviton, Harper E. Osborn and Albert E. Hallett, Jr., of counsel; Zane, Morse, Zimmerman & Norman and Edward G. Woods, for appellees; Edward A. Zimmerman and Edward G. Woods, of counsel.
   Opinion by

Presiding Justice John J. Sullivan.

“Not to be published in full.”


author: Mr. Presiding Justice John J. Sullivan

text:
    Matilda Yoelin, Administratrix with the Will Annexed of the Estate of Michael Gorski, Deceased, et al., Appellees, v. John Kudla et al., Defendants. On Appeal of Walter Waishwell, Intervening Petitioner, Appellant.
    Gen. No. 40,484.

      Opinion filed December 5, 1939.
    Rehearing denied December 26, 1939.
    Alex Janoski, of Chicago, for appellant.
    Estelle M. Wells, of Chicago, for appellees.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This proceeding, instituted by the filing of a complaint in the nature of a creditor’s bill, resulted in the entry of a decree and the appointment of a receiver, who took possession of the premises at 3856-58 South Kedzie avenue.

For a clearer understanding of the issues it is necessary to state the facts somewhat fully. Michael Gorski sustained injuries while working as an employee of John Kudla on a building at 2459 South Whipple street, Chicago, which property is not involved in this proceeding. On May 16, 1924, the industrial commission made an award in favor of Gorski against John Kudla. After somewhat protracted litigation the award was affirmed by the Supreme Court.

On November 23, 1925, Walter Waishwell sold the premises here involved to one Rozalia Kudla, wife of the aforesaid John Kudla, for $14,000, of which $5,000 was paid in cash and the balance of $9,000 by a purchase money mortgage in that amount secured by a trust deed to Helen Doberstein, trustee.

On December 16, 1930, Michael Gorski filed the complaint in this cause in the nature of a creditor’s bill to enforce payment of his award against John Kudla out of the property at 3856-58 South Kedzie avenue, 3848-50 South Kedzie avenue and other property, all of which he asserted belonged to John Kudla, although legal title to said property was in Rozalia Kudla. Plaintiffs named Helen Doberstein, the trustee in the trust deed securing the Waishwell mortgage a party defendant, and attempted to establish in this proceeding that the mortgage to Waishwell was not a purchase money mortgage and to have it canceled and removed as a cloud upon the title to the property at 3856-58 South Kedzie avenue. Subsequent to the commencement of this suit Gorski died and Matilda Yoelin, his administratrix with the will annexed (hereinafter for convenience referred to as Matilda Yoelin), was substituted as a plaintiff in his stead. Kudla died March 13, 1934. On July 9, 1935, a decree was entered herein which ordered the cancellation of the Doberstein trust deed and the removal of same as a cloud on the title to the property at 3856-58 South Kedzie avenue, and further ordered a sale of such property, as well as the property at 3848-50 South Kedzie avenue and other property to satisfy the G-orski award. An appeal was taken to this court from said decree, which decree was affirmed in so far as it ordered the sale of the properties but reversed as to that portion thereof which ordered the cancellation of the Waishwell mortgage. [Yoelin v. Kudla, 287 Ill. App. 618 (Abst).] Relative to the Waishwell mortgage and the Doberstein trust deed securing same, we held on that appeal as follows:

“As to the finding of the decree that the trust deed from John Kudla and his wife, Rozalia Kudla, to Helen Doberstein, as trustee, was executed without consideration and as part of the scheme of the Kudlas ‘to avoid paying compensation to Michael Gorski,’ we think that the chancellor was clearly in error. When the property at 3856-58 Kedzie was purchased from Waishwell in the name of Rozalia, Kudla on November 23, 1925, for $14,000, $5,000 was paid in cash and the balance of $9,000 by the execution of a purchase money mortgage in that amount secured by the trust deed to Helen Doberstein. There is not a scintilla of evidence in the record that Helen Doberstein ever had any interest in this $9,000 mortgage indebtedness except as trustee, but the record does show that Waishwell, from whom this property was purchased, took back this mortgage as part payment of the purchase price and later sold it to one Rybinski [Lapinski] for $9,000. The trust deed to Helen Doberstein securing the $9,000 indebtedness against the property is a valid lien upon same and John Kudla and Rozalia Kudla never at any time had any right, title or interest in or to the said trust deed or the principal note secured thereby. That portion of the decree setting aside and cancelling this trust deed and removing it ‘as a cloud from the title’ to the property in question must, therefore, be reversed. ’ ’

The mandate of the Appellate Court issued pursuant to its judgment, which became a final determination that the mortgage given by the Kudlas to Waishwell was a purchase money mortgage and that the Doberstein trust deed given to secure same constituted a valid lien against the property in question.

On November 20, 1936, after the judgment of this court was entered on the appeal from the decree entered in this cause on July 9,1935, and pursuant to said decree, James Gr. Barsaloux was appointed receiver of the property located at 3856-58 South Kedzie avenue, “to take charge and possession of the . . . described premises, collect the rents, issues and profits therefrom, manage and operate the same, keep the buildings insured against fire hazard, and apply the net sums after paying all necessary expenses and repairs, from the said rentals and income, to the sums due under the decree herein, upon the order of Court, and present his reports to this Court for approval at regular intervals of each three months . . . and said Receiver shall hold the surplus of the income, issues and profits over and above the expenses and necessary disbursements for repairs, insurance premiums, and other necessary expenses, for payment to the complainants, or their attorneys for them upon order of Court herein to apply on the sums found due to the complainants by the decree hereinbefore entered. ’ ’

On May 21,1937, Walter Waishwell filed a complaint in the circuit court in cause No. 37C 6151 to foreclose his trust deed on the property at 3856-58 South Kedzie avenue, and named Matilda Yoelin, and the receiver, James G-. Barsaloux, parties defendant thereto. On May 25, 1937, Waishwell filed his intervening petition in this creditor’s suit, alleging that he had filed a complaint in the circuit court in cause No. 37C 6151 for the foreclosure of the trust deed indebtedness, which said trust deed indebtedness was secured by a first lien upon the property at 3856-58 South Kedzie avenue; that said trust deed, dated December 1,1925, which was duly recorded February 2,1926, was executed by Bozalia Kudla and John Kudla, her husband, to Helen Doberstein, to secure their note for $9,000, payable to the order of themselves on or before five years after date; that the trust deed was extended by two certain extension agreements and the principal amount of the indebtedness secured thereby was reduced from $9,000 to $5,000, which is the present unpaid balance due thereon; that no interest has been paid upon the unpaid balance due on the principal indebtedness since December 1, 1935, and that various taxes were past due and delinquent upon the premises in question; and that the trust deed, to foreclose which Waishwell filed his complaint in circuit court case No. 37C 6151, contained the following provision:

“The grantors waive all right to the possession of, and income from, said premises pending a foreclosure thereof, and until the period of redemption from any sale thereunder expires, and agree that a Beceiver shall be appointed to take possession of and charge of said premises, and collect such income, —.”

The intervening petition concluded with the prayer that an order be entered in this cause extending the receivership herein of James Gr. Barsaloux to the Waishwell foreclosure proceeding. To this intervening petition Matilda Yoelin filed an answer in which she attacked the validity of the mortgage sought to be foreclosed by Waishwell and alleged that if the Doberstein trust deed constituted any lien on the premises in question, such lien was subordinate and subsequent to the lien of the Gorski award of May 16,1924, and could not be effective to interfere with the receivership in this cause. After a hearing upon the Waishwell intervening petition and the answer filed thereto by Matilda Toelin, the trial court on May 25,1937, entered an order directing that all moneys collected by James Gr. Barsaloux, receiver, from the property be held by him until a final adjudication was had in the cause entitled Waishwell v. Doberstein, circuit court case No. 37C 6151, at which time the disposition of the funds held by said receiver “will be adjudicated by this court, except upon order of court . . . that no extension of the Receivership be allowed at this time. ’ ’

On June 17, 1938, Waishwell filed another intervening petition in this cause, which alleged that the issues in the cause entitled Waishwell v. Doberstein, had been found in favor of the petitioner by the master to whom the foreclosure proceeding was referred and that subsequently a decree of sale was entered in said cause directing that the property at 3856-58 South Kedzie avenue be sold to satisfy the amount found due by said decree. It was further alleged that the issues in the foreclosure proceeding having been finally adjudicated in favor of the petitioner, the receivership should be extended to the said cause entitled Waishwell v. Boberstein.

After a hearing on this last mentioned petition, the following order was entered July 12,1938:

“This cause having this day come on to be again heard on the petition of Walter Waishwell filed by leave of Court on May 25th, 1937, for an extension of the receivership from this case to cause entitled ‘Walter Waishwell v. Helen Doberstein, et al. 37C 6151’ and for an order on the Receiver, James Gr. Barsaloux, to turn over all monies collected since May 25th, 1937 to the Receivership in cause No. 37C 6151, and it appearing to the Court that on May 25th, 1937, this Court entered an order in this cause ordering in part as follows:

“ ‘that all monies collected by James Gr. Barsaloux, Receiver, from property at 3856-58 South Kedzie Avenue, Chicago, from this day on be held by him until final adjudication in the cause entitled Walter Waishwell v. Helen Doberstein, Circuit Court Case No. 37C 6151, at which time the disposition of the funds collected by said Receiver will be adjudicated by this Court, ’

“It further appearing to the Court that on June 17th, 1938, a further petition was filed by said Walter Waishwell for the extension of the receivership, and that all monies collected by the receiver, James C. Barsaloux, be turned over to the receivership in cause entitled Walter Waishwell v. Helen Doberstein, etc., et al., 37C 6151, in which petition it was alleged that a decree of sale in cause entitled Walter Waishwell v. Helen Doberstein, etc., et al., 37C 6151, was entered on May 20th, 1938, and it being further represented unto the Court that pursuant to said decree a sale was had in said cause on June 21st, 1938, which sale was approved by the Court on June 27th, 1938, at which time a deficiency in the sum of Eleven Hundred Eighteen and 12/100ths ($1,118.12) Dollars was entered in favor of Walter Waishwell the plaintiff in said cause; and

“It further appearing to the Court that Matilda Yoelin, Administratrix of the Estate of Michael Cor ski, deceased and James C. Barsaloux, Receiver have taken an appeal to the Supreme Court from the decree en-. tered on May 20th, 1938 in cause entitled Walter Waishwell v. Helen Doberstein, Trustee et al., 37C 6151 and that on July 5th, 1938 an order was entered making the appeal from the decree entered on May 20th, 1938, a supersedeas upon the filing of a bond for Two Hundred Fifty ($250) Dollars; and

“It further appearing to the Court that said bond has been filed and approved by a Justice of the Supreme Court and a supersedeas having issued ;

‘ ‘ It Is, Therefore, Ordered that the motion and petitions for the extension of the Receivership from this cause to cause entitled Walter Waishwell v. Helen Doberstein, Trustee, etc., et al., 37C 6151, and the motion for order on Deceiver to turn over all monies collected since May 25th, 1937, to cause entitled 37C 6151, be entered and continued pending the outcome of the appeal from decree entered May 20th, 1938, in cause No. 37C 6151.”

On July 14, 1938, Matilda Yoelin filed a petition herein alleging that she was impleaded as one of the many parties defendant in the cause of Bednarczyk v. Kudla, No. 36C 12305 in the circuit court (a proceeding brought to foreclose a first mortgage, not on the premises here involved but on the property at 3848-50 South Kedzie avenue); that she interposed her defense therein and introduced many exhibits in support of same, but that, notwithstanding her said defense, a decree of foreclosure and sale was entered in said cause on June 27, 1938, from which “she is appealing to the Supreme Court”; that “it was necessary to advance the costs of said appeal and to pay the expenses of defending said cause in the Circuit court, all of which costs aggregated $156.20”; and that in addition to such costs and expenses “there will be other costs involved in having abstract of record and brief printed, ’ ’ payment for which must be made before September 14, 1938. Her petition concluded with the prayer that the receiver of the property at 3856-58 South Kedzie avenue, be ordered to pay her the sum of $156.20 theretofore expended by her in said Bednarczyk case and to pay the bills for printing the brief and abstract of record of petitioner as said bills are rendered.

Matilda Yoelin also filed another petition July 14, 1938, which alleged in substance that she and the receiver appointed herein, James G-. Barsaloux, were made parties defendant in the foreclosure suit filed by Walter Waishwell, the intervening petitioner here; that a decree of sale was entered on May 20,1938, in the case of Waishwell v. Doberstein; that “if said decree of May 20,1938, should be allowed to stand it would tend to destroy the receivership estate herein, and also to destroy a very material part of the decree of July 9, 1935, in this cause, which provided for the sale of said filling station property and garage property next to it”; that petitioner and the receiver “defended in said foreclosure suit of Waishwell v. Doberstein, circuit court No. 37C 6151 and have perfected their appeal from the decree of May 20, 1938, to the Supreme Court”; that “petitioner truly believes the appeal will be successful in reversing said decree”; that Estelle M. Wells, as attorney for petitioner and for James 0. Barsaloux, receiver, “has advanced costs in the Circuit court in defending said case in the sum of $115.20 which were necessary, including court reporter before the Master, and has advanced in the appeal so far the sum of $27.62, and will necessarily have to pay the Clerk of this Court for the balance of the record for filing in the Supreme Court his charges, which he has informed the petitioner’s attorney are $53.00.” This petition concluded with the prayer “that said receiver, James Gr. Barsaloux, may be authorized to reimburse Estelle M. Wells for the costs by her advanced, in case 37C 6151 in the sum of $115.20, and pay the $27.62 advanced on said appeal, and the $53.00 charge of the Clerk of this court for balance of record on appeal, and that he be required by order herein to pay other charges and costs of said appeal including necessary printing of abstract of record and brief as soon as said bills are due, which will all be before September 14, 1938.”

In response to the foregoing petitions of plaintiffs the following order was entered on July 14, 1938:

“On motion of Estelle M. Wells, solicitor for Plaintiffs, for order requiring the receiver, James Gr. Barsaloux, to pay from the fund in his possession costs incurred by plaintiff, Matilda Yoelin, Administratrix of Estate of Michael Gforski in defending in the Circuit Court cases 37C 6151, Waishwell v. Doberstein, Trustee, etc., et al., and 36C 12305, Andrew Bednarczyk v. Rosalia Kudla, et al., and in the two appeals which she is prosecuting from said Decrees of Sale in each case, and jointly with the receiver herein in case 37C 6151, in which he was also impleaded as party defendant; said decrees of sale involving the filling station property and the garage property, part of the subject matter of the Decree entered herein on July 9, 1935;

“It Is Ordered, that James G. Barsaloux pay to plaintiffs’ attorney, Estelle M. Wells, the sum of $195.82 advanced in trial and appeal to this date in Case 37C 6151, Waishwell v. Doberstein; and the sum of $156.20 advanced in trial and for filing appeal from Bednarczyk v. Kudla, 36C 12305, Circuit Court, and pay necessary printing costs of abstracts of record and briefs in both cases as they accrue from rents collected by him. ’ ’

It is from this order that Waishwell, the intervening petitioner, prosecutes this appeal, as well as from the following order entered July 5, 1938:

“On Motion of Estelle M. Wells, solicitor for Plaintiff and for Receiver, James G. Barsaloux, for leave to said Receiver to sign a supersedeas bond for $250 in the Supreme Court today;

“It is ordered that James G. Barsaloux, Receiver, may sign said appeal supersedeas bond jointly with Matilda Toelin, Administratrix, for approval of the Supreme Court in the sum of Two Hundred Fifty ($250) Dollars.”

The decree of sale entered in the Waishwell foreclosure proceeding, as heretofore shown, was appealed to the Supreme Court. It was later transferred to this court. In an opinion filed May 2, 1939, in said appeal (Waishwell v. Doberstein, 300 Ill. App. 341), affirming the decree, we held that the lien of the Waishwell mortgage on the property at 3856-58 South Kedzie avenue was paramount and superior to the lien of the Gorski award. Petition for leave to appeal from the judgment of this court was denied by the Supreme Court.

The intervening petitioner contends that the trial court erred (1) “in entering the Order of July 5, 1938, granting leave to the Receiver, James Gr. Barsaloux, to sign a supersedeas bond in the Supreme Court in the appeal from the foreclosure decree”; and (2) “in entering the Order of July 14, 1938, giving leave to the Receiver, James Gr. Barsaloux, to pay to Estelle M. Wells, attorney for the plaintiffs in the creditor’s suit and also attorney for the Receiver, James Gr. Barsaloux, the costs incurred in defending the foreclosure suit filed by Waishwell in cause No. 37C 6151, involving property at 3856-58 South Kedzie avenue, and also the costs incurred in defending the suit entitled Bednarczyk v. Kudla, in cause No. 36C 12305, involving property at 3848-50 South Kedzie avenue, and all the costs for appealing from the decrees in the aforesaid proceedings.”

It will be noted that by the order of May 25,1937, the court directed that all moneys thereafter collected by the receiver from the property at 3856-58 South Kedzie avenue “be held by him” until a final adjudication was had in the foreclosure proceeding instituted by Waishwell, at which time the disposition of the funds so held by the receiver “will be adjudicated.” The fact that this order concluded with the apparently inconsistent expression “that no extension of the Receivership be allowed at this time” could not affect or change the substance of the order, the legal effect of which was to extend the receivership to the foreclosure proceeding.

It has been repeatedly held that where a receiver is appointed in one case and is in possession of the mortgaged premises, the court should upon a proper showing extend the receivership to cover the premises in a foreclosure suit instituted by a prior mortgagee. An order extending the receivership merely gives notice to all parties that the petitioner claims an interest in the funds being collected by the receiver which will later be given effect if the petitioner establishes his prior lien, and if it becomes necessary to resort to the rents, issues and profits of the premises involved. (Reeve Illinois Law of Mortgages and Foreclosures, vol. 2, sec. 548, p. 632; Seegren v. Decker, 263 Ill. App. 373.) The order of May 25, 1937, certainly gave notice to all parties concerned of the interest claimed by the intervening petitioner in the funds being collected by the receiver and the court recognized such interest by directing that the receiver hold the funds collected by him after the date of the entry of the order until a final adjudication was had in the foreclosure suit. Where a receiver is appointed in a creditor’s suit and subsequently a first mortgagee files a complaint in the same court to foreclose his mortgage and files a petition in the creditor’s suit to extend the receivership from such creditor’s suit to the foreclosure proceeding and such order is entered, the first mortgagee is entitled upon an adjudication that his first mortgage is a valid and paramount lien to have the rents and profits applied upon his mortgage. (Cross v. Will County Nat. Bank, 177 Ill. 33.)

In the case at bar not only was a decree entered in the foreclosure proceeding finding that the mortgage sought to be foreclosed by Waishwell was a first and prior lien against the premises but a sale was had therein which was approved and a deficiency decreed in the amount of $1,118. As hereinabove shown Waishwell’s decree of foreclosure and sale was affirmed by this court and leave to appeal denied by the Supreme Court so that no longer can either the finality of the adjudication in that case or the priority of Waishwell’s lien be questioned.

Just what is the situation presented ? Waishwell has a final adjudication that his mortgage is a valid first lien on the property involved. A sale was had of such property, which resulted in a deficiency of $1,118, for which a decree was entered in .his favor. The trust deed securing his first mortgage gave him the right to the rents, issues and profits of the property, if it became necessary to resort to same to satisfy his decree. His interest in the property in question and the proceeds accruing therefrom was recognized by the trial court in the order entered May 25, 1937, extending the receivership herein to the foreclosure proceeding instituted by him and directing the receiver to conserve the funds thereafter collected from the property until said foreclosure proceeding was finally adjudicated. The sole purpose of the extension.of the receivership was to protect Waishwell’s interest in the funds ordered conserved by the receiver. Yet in spite of all this, by the order of July 14, 1938, directing the receiver to make the payments enumerated in said order to Estelle M." Wells, as attorney for Matilda Yoelin, the court defeated the very purpose of the extension of the receivership by sanctioning the depletion and dissipation of the funds in the hands of the receiver which have since been finally determined to belong to Waishwell. By the order of May 25, 1937, the court recognized that the right to the money in the hands of the receiver was at that time undetermined and by its order of July 12, 1938, entered after the decree of foreclosure in Waishwell’s favor and the appeal taken therefrom had been called to its attention, the court recognized that the rights of the respective parties to the conserved funds were still undetermined.

Under the circumstances the court was precluded from disregarding the order of May 25,1937, and from directing payments to be made purely for the benefit of the plaintiffs in this cause out of funds that did not belong to them and in and to which it has since been finally determined that they had no right or interest. The order of July 14,1938, directing the receiver to pay out of the funds ordered conserved by him the costs and expenses of plaintiffs herein incident to their defense of Waishwell’s foreclosure suit and their costs and expenses incurred in appealing from the decree entered therein, as well as similar costs and expenses incident to the Bednarczyk foreclosure suit, was clearly erroneous.

Plaintiffs in their brief advance 13 reasons why the orders appealed from should be affirmed or the right of the intervening petitioner to appeal from same denied. Of these propositions or reasons only a few need be noticed since the others either are inapplicable or deal with questions which have been finally determined on other appeals.

It is urged that the orders appealed from are not final appealable orders. In answer to this contention it is only necessary to say that since the order of July 14, 1938, directed the receiver to make payments out of the funds in his hands in the amounts and for the purposes specified, an appeal lies from it upon behalf of any person interested in such funds. The order appropriated part of the assets of the receivership and directly affected the interests of the mortgagee intervening petitioner. (People v. Illinois State Bank of Crete, 312 Ill. 613.) Waishwell’s right to question the order is obvious since his petition alleged and it is not disputed that the trust deed securing his first mortgage gave him the right to the rents, issues and profits of the property involved. It was the fund resulting from the collection of such rents, issues and profits which was depleted and dissipated by the receiver as a result of the entry of the aforesaid order of July 14, 1938.

Plaintiffs insist that only parties to the main cause have the right to appeal. It is sufficient answer to this contention to say that “parties in interest may assert their rights by intervention, notwithstanding that they may be neither necessary nor proper parties complainant or defendant to the main cause in which the receiver has been appointed,” as was held in Goldberg v. Hoffman, 262 Ill. App. 112. Since Waishwell had the right to intervene, it follows that he had the right to appeal from final orders which affected his interests adversely.

Plaintiffs in the main cause, that is the creditor’s proceeding, claim that they had the exclusive right to the rents in the hands of the receiver. In Goldberg v. Hoffman, supra, in passing upon a like claim and other questions similar to those raised here involving Waishwell’s right to intervene and to the extension of the receivership, we said at pp. 115 and 116:

“It is also contended that the petitioner (appellee) was not entitled to the extension order because it was not a party and did not become a party to the instant cause. We think the contention is without merit. The lien of the complainant (appellant), second mortgagee, on the rents was always subject to the prior lien, pledge and conveyance thereof evidenced by the first mortgage. Any exclusive right that the appellant had to rents through the appointment of a receiver at his instance is predicated not on his second mortgage contract but on his superior diligence. Such exclusive right continues, of course, only so long as the prior mortgagee refrains from asserting his prior right. (Cross v. Will County Nat. Bank, 177 Ill. 33, 39.) The court appointing the receiver has the power to determine priority and to give each party protection. (Coleman v. Wrobel, 255 Ill. App. 622.)

“ ‘All the authorities sustain the proposition that, when a court of equity acquires jurisdiction of a cause, and appoints a receiver to take charge of the property involved, then no other court of co-ordinate jurisdiction has any power or authority to interfere or meddle with the property in the hands of the receiver, but must leave the court appointing the receiver untrammeled in its administration of the same, as the law directs, regardless of whether the original appointment was or was not erroneous. This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons, and has no reference to the supremacy of one tribunal over the other, nor to the superiority in rank of the respective claims, in behalf of which the conflicting jurisdictions are invoked. Nor is the rule restricted in its application to cases where property has been actually seized under judicial process before a second suit is instituted in another court . . . .’ (23 Ruling Case Law, sec. 71.)

“The appointment of the receiver in the instant cases deprived the appellee (petitioner) of the power which it would otherwise have possessed to choose a forum in which to assert its rights and compelled it to resort to the court in the instant case. Here the demand that the receivership be extended to protect its interests could be acted upon only by the court appointing the receiver. The appellee (petitioner), in pursuance of the only course open to it, filed in the instant case its petition setting forth the facts showing its right to the income and containing ample prayers to entitle its claim to recognition.”

In our opinion the contention of the intervening petitioner that a receiver cannot appeal from any order or decree which does not affect the settlement of his accounts is a meritorious one. It was so held in Haigh v. Carroll, 197 Ill. 193, where the court said at p. 196: “A receiver appointed in a foreclosure suit cannot appeal from or sue out a writ of error to review the decrees and orders entered in such cause, except in so far as they affect the settlement of his accounts.” It is obvious that the receiver was made a party defendant in the Waishwell foreclosure case merely because he was in possession of the mortgaged premises and no attempt was made to interfere with his possession of the property. Only one question was presented on the appeal from the decree in the foreclosure proceeding and that was the question of priority between the lien of the Waishwell trust deed and the G-orski award. Surely the receiver had no appealable interest in that question. In the foreclosure case there was not and there could not have been any question with respect to the accuracy of the receivership accounts, since such accounts remained in this creditor’s proceeding. We are impelled to hold that the trial court erred in entering the order of July 5, 1938, granting leave to the receiver to sign a supersedeas bond in the Supreme Court in the appeal from the Waishwell foreclosure decree.

For the reasons stated herein the orders of the circuit court of July 5, 1938, and July 14, 1938, are reversed.

Orders reversed.

Friend and Scanlan, JJ., concur.


text:
    Drexel Ice Cream Company, Appellee, v. Joseph Armenali and Julius Armenali, Appellants.
    Gen. No. 40,568.
    opinion filed December 5, 1939.
    Rudnick & Wolfe, for appellants; Seymour Stedman, for appellee.
   Opinion by

Presiding Justice John J. Sullivan.

“Not to be published, in full.”


author: Justice Friend.

text:
    Victor G. Nardi, Successor in Trust to Union Bank of Chicago, Appellant, v. Louis Schelfhout and Mary Schelfhout, Appellees.
    Gen. No. 39,722.
    opinion filed December 5, 1939;
    Victor G. Nardi, pro se; Crahen, Sullivan, O’Toole & Sullivan, for appellees; John E. Crahen, of counsel.
   Opinion by

Justice Friend.

“Not to be published, in full.”


text:
    Edwin B. Harts, Trustee under Last Will of P. W. Harts, Deceased, Appellant, v. William P. Cronin et al., Appellees.
    Gen. No. 40,590.
    opinion filed December 5, 1939.
    Edwin B. Harts, for appellant; Joseph B. Bergman, for appellee J. S. Cook; J. S. Cook, pro se, Harold L. Reeve and Charles F. Grimes, for appellee Mutual National Bank of Chicago.
   Opinion by

Justice Friend.

“Not to be pubUshed in full.”


text:
    Marie Ann Jellema, Appellant, v. Alfred R. Hulbert, Appellee.
    Gen. No. 40,598.
    opinion filed December 5, 1939.
    Klenk & Klein, for appellant; Raymond E. Ehrlich, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Mr. Justice Friend

text:
    Leo Brooks et al., Appellees, v. Ernest H. Snyder et al., Defendants. Ernest H. Snyder, Appellant.
    Gen. No. 40,637.

      Opinion filed December 5, 1939.
    John A. Bloomingston and Henry A. Blair, both of Chicago, for appellant.
    Tarnopol, Flamm & Sideman and Ben A. Stewart, all of Chicago, for appellees; Irving H. Flamm, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiffs were injured while riding in an automobile that collided with a car owned by defendant Ernest H. Snyder, who was riding in his car while it was being driven by Foster L. Duncan, another defendant. The cause was heard by the court without a jury, resulting in findings and judgment for plaintiffs and against Snyder and Duncan as follows: Leo Brooks, $1,200; Charles Flamm, $311.03; Albert Flamm, $300; Ben Kaye, $100; Gladys Winnick, $100; Sylvia Winnick, $100. There was a finding of malice against Duncan, but the count charging wilful and wanton misconduct against Snyder was withdrawn at the close of all the evidence at the suggestion of the court. Snyder appeals from the judgments entered.

There is substantially no dispute as to the facts. The accident occurred September 19, 1937, between four and five o’clock in the evening. Snyder’s car was in need of repairs and he procured Duncan, a mechanic, who worked in a nearby garage but was off duty that day to make the necessary adjustments. Snyder had never met Duncan before, but had learned of his whereabouts through information obtained at the garage where Duncan was employed. After repairing Snyder’s car on Irving Park avenue where it had been parked, Snyder, accompanied by Duncan, drove the car some 8 or 10 miles on a test run. The work was apparently found to be satisfactory and Duncan was paid for his services. After stopping at a gas station about seven p. m., Snyder then-picked up a girl whom Duncan knew, drove her to an address on Division street and returned to the north side, where Snyder and Duncan had dinner together in a restaurant. After dinner Duncan asked Snyder if they could go and get his girl and bring her back home. Snyder consented and said he would drive Duncan, but the latter volunteered to do the driving. Shortly after leaving the restaurant they met a man and woman who were friends of Duncan, and this couple were invited to go along for the ride. It was during the course of this trip with Duncan at the wheel and Snyder sitting beside him that the collision in question occurred. The evidence is clear that Duncan violated traffic signals, which resulted in the collision. No complaint is made as to the conduct of the trial and the only question presented is whether Snyder is liable as the owner of the automobile for Duncan’s negligent driving under the circumstances presented by the evidence.

As ground for reversal it is urged by Snyder that he was merely Duncan’s guest in Snyder’s automobile; that he neither directed nor supervised the driving of' Duncan; that the doctrine of respondeat superior did not apply so as to make Snyder liable for Duncan’s negligence; and that the court should therefore have found Snyder not guilty and entered judgment accordingly. Plaintiffs, on the other hand, contend that the use of the car at the time of the accident constituted a joint enterprise. The court so found in his, oral opinion rendered at the close of the case, and the evidence clearly sustains the finding. With reference to this phase of the case Snyder testified that it was agreeable to him to let Duncan drive, “as long as I was riding”; that “he [Duncan] was just riding with me for pleasure. I had paid him for the work he did”; that “at the end of the [test] ride we stopped at a filling station and Duncan left the car there. I waited for him; he came back, and we got in and came back to the north side. We took his girl friend to some relatives on Division street. He had no car of his own and I told him it was O. K. to take her there. After we left her we went back north and stopped and had something to eat.” (Italics ours.) The circumstances indicate that Snyder, apparently having nothing in particular to do after the car had been repaired, acceded to Duncan’s suggestions and called for Duncan’s girl, picked up the couple hereinbefore referred to, and that he and Duncan were driving around together with Snyder’s consent. Although Duncan was at the wheel, Snyder never relinquished the direction and supervision of the automobile.

After reviewing the authorities cited by counsel on both sides, we are impelled to hold that the court properly found Snyder liable for Duncan’s negligence. The general rule applied by the courts in the numerous cases cited by plaintiffs appears to be that where an owner occupies the car at the time of the accident he is liable for the negligence of the driver if (1) he has not abandoned his right to control the car, or (2) if he exercises or has a right to exercise any control over the driver or the operation of the car, or (3) if the ride is for his benefit or for the mutual benefit of himself and the driver. This rule is set forth in Blashfield’s Cyclopedia of Automobile Law and Practice (1935), vol. 5, pp. 66 to 70, as follows:

“By the weight of authority, the owner of a motor vehicle, present therein at the time of an accident caused by its negligent operation, is liable for injuries resulting though he is not personally at the wheel; the car being driven by one not his servant, but with his permission and in the business of the owner, or in a joint enterprise of the owner and the driver.

“Where an owner is riding in an automobile which is being driven by another in an improper manner, and the evidence does not show a contractual surrender nor an abandonment of the owner’s right to control, the inference is warranted that the owner knew of and permitted the improper operation, and he is deemed to have consented to the negligent operation of the machine and the driver’s negligence is imputed to him; and if an owner permits some other person to operate his car in which he is riding, whether his wife, child, or a friend, retaining such control of the car as gives him unrestricted right of direction and control, he will be liable for the driver’s negligence.” This rule finds support in Illinois in Gates v. Mader, 316 Ill. 313. In that case the father was the owner of the car. His son was not living at home but visited his parents regularly. The son was driving his mother and some of her friends to a party when the accident occurred. The father was not in the car at the time. In affirming a judgment against the father, as owner of the car, the court said (p. 317): “If defendant had himself been driving, it could not be denied he would have been liable for negligent injury, and the decided weight of authority, we think, makes him liable, under the evidence in this case, for the negligence of the son. . . .

‘ ‘In our opinion liability in this case is based on reason and justice.”

In Rapers v. Holmes, 292 Ill. App. 116, Holmes was the owner of the car and at the time of the accident was sitting beside his wife, who was driving. The jury found against both husband and wife, and in sustaining the verdict against Mr. Holmes the court conceded that under the laws of Indiana, where the accident occurred, an owner is not liable merely by reason of Ms ownersMp or of Ms presence in the car, but that the jury might properly have inferred that Mr. Holmes had not parted with control of the car and that Ms wife was therefore driving for him as well as for herself.

In Wheeler v. Darmochwat, 280 Mass. 553,183 N. E. 55, the owner of a car, while riding therein, was held liable for the negligence of the driver, whom he had permitted to operate the car, the court announced the rule applicable, as follows (p. 557): “When it appears that an owner of an automobile is riding in it while it is being driven by another in an improper manner, and there is no evidence indicating a contractual sur-' render, nor evidence of an abandonment, of the owner’s right to control it, the inference is warranted that the owner knew of and permitted its improper operation and thus became responsible for the consequences. . . .

“There was no evidence here that there had been any contractual surrender by Darmochwat, the owner, to Wenta, the driver, of the right and power to control the operation of the automobile. We are of opinion that the evidence warranted the inference by the jury that the owner ‘had not abandoned the control wMch . . . prima facie belonged to him.’ ” The evidence in the case at bar clearly indicates that there was not a contractual surrender or abandonment of Snyder’s right to control the car, and the court was justified in finding that Snyder did not abandon the control which prima facie belonged to him.

In England the same rule was applied in Samson v. Aitchison, [1912] A. C. 844, by the House of Lords and Privy Council, where in affirming a judgment for plaintiff the court said:

“Where the owner of a veMcle, being himself in possession and occupation of it, requests or allows another person to drive, this will not of itself exclude his right and duty of control; and therefore, in the absence of further proof that he has abandoned that right by contract or otherwise, the owner is liable as principal for damages caused by the negligence of the person actually driving.”

The common enterprise theory was invoked by the court in Crawford v. McElhinney, 171 Iowa 606, 154 N. W. 310. In that case the wife was driving a car belonging to her husband, who was a passenger when the accident occurred. The court, in holding the husband liable, pointed out that he had the right to control the car, and said (p. 623, quoting from Carpenter v. Campbell Auto Co., 159 Iowa 52, 62): “ ‘In every case -in which it is held that the negligence of the driver cannot be imputed to the party riding with him, [in this case the owner], an exception is always made to the effect that where they are engaged in a common enterprise, or where the driver is in an enterprise of any kind for the use and benefit of the party charged, in his employ, or under his control, or where the instrumentality used is under the control and direction and owned by the party charged, and where he has a right to control and direct it, whether he exercises that right or not, he is held for the negligence of the driver.’ ” (Italics ours.)

In another case in Iowa, Daggy v. Miller, 180 Iowa 1146,162 N. W. 854, the court pointed out that the test in determining liability of an owner who was in the car at the time of the accident depends on whether he has the right to control the operation of the vehicle, and' that the owner cannot escape legal responsibility or the consequences of the collision “by proof that he was himself wholly passive, and took no part in the driving or management or control of the car. He was admittedly the owner of the car, clothed with the right and authority to control it. He was present where, had he so minded, he could have exercised such control.” Numerous other cases cited by plaintiffs, in Arizona, Arkansas, Washington, Mississippi and California, are to the same effect, and we think these decisions clearly represent the current weight of authority.

Defendant cites a number of cases where contrary conclusions were reached, but we think they can readily be distinguished. In Zeeb v. Bahnmaier, 103 Kan. 599, an adult son had been accustomed to borrowing his father’s car for his own business and pleasure. At the time of the accident he was driving the car to church, and had invited his parents as guests to accompany him. While taking them back home the accident occurred. In this case the jury made a special finding-that the father had nothing to do with the operation or control of the car at the time of the accident, and the court said that under the circumstances it would not be justified in finding that the father was liable because of the mere ownership of the car.

In Hartley v. Miller, 165 Mich. 115, 130 N. W. 336, one Lootens called on Miller the night before the accident and asked for the loan of his car for the next day, to which Miller consented. Lootens accordingly called for the car on the following day and invited Miller to ride along with him to Lootens ’ home. When they arrived there Lootens and his company insisted upon Miller accompanying them on a further journey to which Miller finally acceded. The court pointed out that Miller had lent the machine to Lootens, and held that under the great weight of the evidence the automobile had “passed into the possession and control of defendant Lootens for the day, and that Miller did not have the right or authority to dictate or direct the manner in which the automobile should be operated; that it was as much in the control of Lootens for that day as it would have been had he been the absolute owner thereof.”

In Virginia Ry. & P. Co. v. Gorsuch, 120 Va. 655, the wife was the owner of an automobile, and her husband who was employed in another city had borrowed the car from her. He had been in possession thereof in the city where he was employed for about a week, and when his wife visited him by train, and while she was riding with him in the car an accident occurred while he was operating the car. The court held that under the circumstances the husband was a bailee, and “until she resumed control of the property, the operation of the car was as completely within his control as if he had been the fee simple owner thereof.” In substantially all the other decisions cited by defendant, the court found some circumstances indicating that the owner had parted with control of the car, or the presumption that he had not done so was not rebutted by competent evidence.

The trial court in the case at bar had an opportunity to judge the character and credibility of the witnesses and understand the true factual situation presented, and we think the findings against Snyder and Duncan were amply warranted by the evidence and should accordingly be sustained, under the current decisions in this and other states. Judgment is affirmed.

Judgment affirmed.

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


text:
    Turner Type Founders Company, Appellant, v. Stephen Laub, Trading as Reliable Typesetting Company, and O. K. Typesetting Company, Appellees.
    Gen. No. 40,659.
    opinion filed December 5, 1939;

      rehearing denied December 26, 1939.
    Louis I. Lewis, for appellant; Cecil Emery, for certain appellee; George D. Le Brint, for certain other appellee.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Clara Dunn et al., Plaintiffs, v. Annie Dunn et al., Defendants. Henry W. Kenoe, Appellee, v. Alice Dunn, Appellant.
    Gen. No. 40,677.
    opinion filed December 5, 1939;
    rehearing denied December 26, 1939.
    H. M. Phipps, for appellant; Henry W. Kenoe, pro se.

   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Chicago Law Printing Company, Appellee, v. Village of Justice, Appellant.
    Gen. No. 40,776.
    opinion filed December 5, 1939.
    Joseph F. Elward, for appellant; Raymond F. McNally, Jr., of counsel; Thompson, Chambers & Thompson, for appellee; Lavern W. Thompson, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Justice Scanlan.

text:
    Vivian Irene Smetana, Minor, by the Live Stock National Bank of Chicago, Guardian, Appellee, v. David P. Brannin, Sr. and David P. Brannin ,Jr., Defendants. David P. Brannin, Jr., Minor, by David P. Brannin, Sr., Guardian Ad Litem, Appellant.
    Gen. No. 40,376.
    opinion filed December 5, 1939.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse and Clyde C. Fisher, for appellant; Henry L. Kohn, I. E. Ferguson and Clyde C. Fisher, of counsel; V. Russell Donaghy, for appellee; David A. Schallman, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”