text:
    Charles Gardner, Appellee, v. A. R. Shekleton et al., Appellants.
    Gen. No. 33,311.

      Opinion filed May 29, 1929.
    Joseph W. Cox, for appellants.
    Ossian " Cameron and Edward H. S. Martin, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action of assumpsit for money had and received by the defendants to the plaintiff’s use.

In the first instance plaintiff filed a declaration of three counts, the first a special count, secondly the consolidated counts, and thirdly on an account stated. Thereafter by leave of court plaintiff filed an additional count. Defendants filed a demurrer to the special count. Plaintiff also filed a bill of- particulars, and defendants filed a demurrer to the additional count of the declaration, and also made a motion to strike the bill of particulars from the files'. The order to strike was withdrawn and the demurrers to the special count and additional count were sustained. Defendants filed no other pleadings. Neither did they file any affidavit of meritorious defense. In this condition of the pleadings the cause proceeded to trial by agreement before the trial judge, trial by jury being waived. After hearing the proofs the court found the issues in favor of the plaintiff and allowed his damages at the sum of $1,357.65. After overruling motions for a new trial and in arrest of judgment, a judgment on the finding was entered for the amount thereof, $1,357.65, and defendants bring the record here by appeal.

The abstract .does not conform to Bule 18 of this court which provides that the party bringing the cause to this court shall furnish a complete abstract or abridgment of the record, therein referring to the pages of the record on the margin.

In the special count there is set forth in haec verba the contract declared upon. This is not abstracted, but is set out in full with attestation clause and signatures of the parties with the indorsements found upon the back of the contract. We would be justified in striking this abstract from the record on our own motion for such noncompliance with Bule 18.

It appears from plaintiff’s evidence that about March 1, 1927, he had some dealings with defendants through their representative, a Mr. Vinson; that at that time he turned over to Vinson two real estate contracts of Frank CL Croissant Company and one from Frank A. Riley Company; that the equity of plaintiff in the contracts was agreed to be the sum of $1,250, which was received as a part payment and consideration for. the contract for the purchase of Lot 16, Block 8 of Shekleton Brothers Third Addition, etc., and for which the contract, offered in evidence, reciting the terms of the sale of said lot, was given by defendants to plaintiff. This agreement in its preamble recites: “This agreement made this 22nd day of November, 1927, between Shekleton Brothers Realty Trust, dated November 7,1926, and known as Trust No. 2556, of which The Foreman Trust and Savings Bank, a corporation, is Trustee, as party of the first part . . . and Charles Gardner, 558 Fullerton Parkway of Chicago, Illinois, as party of the second part,” and was executed in accord with such recitation.

Plaintiff contends that such written contract was wholly null and void for the reason that the same did not purport to be a contract between the plaintiff and any living or artificial person, but purported to be a contract between the plaintiff and a written document or chose in action, to wit: Shekleton Brothers Realty Trust 2556, dated November 7, 1926, and known as document number 2556, and therefore the $1,250 so received by defendants from plaintiff is money had and received for and to his use; that by reason thereof defendants became and were indebted to plaintiff in the sum of $1,250, which they thereupon promised to pay.

Plaintiff- urges many errors of a technical character in regard to procedure and as to the condition of the abstract, and that such errors are sufficient, regardless of any others, for this court to affirm the judgment without reference to the merits. However, be that as it may, we prefer to decide this case upon the merits and the matters in controversy within which the rights of the parties rest, as disclosed by the record.

The real point at issue springs from the contention that the contract is null and void as the vendor in the contract is neither an individual, a partnership, nor a corporation, and that therefore as defendants received plaintiff’s money under the pretense that said contract was valid, they are liable to pay the same back to plaintiff, as money had and received for his benefit. We think the point is well taken. If the vendor in the contract is not a partnership, an individual or a corporation, then no action would lie against it, and we find no evidence in the record which would warrant any other conclusion. This being so,, plaintiff has a right to recover his damages as for money had and received by defendants to plaintiff’s'use.

In Weber v. Hulbert, 225 Ill. App. 321, it was held that the contract, if it was such, was unilateral, lacking in mutuality and void, citing Vogel v. Pekoc, 157 Ill. 339; Joliet Bottling Co. v. Joliet Citizens’ Brewing Co., 254 Ill. 215; Kingsbury v. Cornelison, 122 Ill. App. 495, and that there was no consideration for plaintiff’s payment of the $1,250 and for her promise to make further payments, and that she was entitled to recover back the $1,250 in an action for money had and received. (Smith v. Weaver, 90 Ill. 392; Bradford v. City of Chicago, 25 Ill. 411; Laflin v. Howe, 112 Ill. 253; Drennan v. Bunn, 124 Ill. 175.)

That is the situation in the instant case. The contract lacks mutuality because there is no one against whom plaintiff could proceed as vendor to compel a conveyance. The so-called contract in question is under seal and cannot be varied by parol, and the authorities are to the effect that in a contract under seal a person not named in the contract as a party thereto cannot be held liable, or have the advantage of a contract made in some other name on the theory that it was made for his benefit as an undisclosed principal or otherwise.

In Walsh v. Murphy, 167 Ill. 228, it was held that the rule in regard to instruments under seal made by an agent, as in the case at bar, is that in order to bind the principal and make it his contract, it must purport on its face to be his contract and the seal must purport to be his. An agent cannot ordinarily bind the principal by a sealed contract executed in his own name nor can the principal ordinarily avail himself of such a contract and sue the other party in contract thereon. An undisclosed principal whose authorized agent has made such a contract in his behalf can neither sue nor be sued on it. This rule was laid down in Mears v. Morrison, Breese 223. In that case William Morrison was sued on an instrument under seal signed ‘1 Guy Morrison, agent,” and dated June 17,1818, by which he sold to William Mears, plaintiff, the time that a negro girl and her children had to serve defendant, William Morrison,. she being a daughter of a servant of said Morrison, indentured under the laws of the territory of Illinois concerning the indenturing of slaves. The trial court arrested the judgment upon the ground that the instrument declared on created no liability on the defendant,'William Morrison, because the covenant was that of Gruy Morrison, agent, and the seal was not the seál of William Morrison, the principal. This rule has since been applied in Moore v. House, 64 Ill. 162; Gautzert v. Hoge, 73 Ill. 30, and Harms v. McCormick, 132 Ill. 104; and in the last case it was said that the rule was not abrogated by section 19 of the Practice Act (now Cahill’s St. ch. 110, ¶ 33), which provides additional forms of action upon sealed instruments. A different rule prevails as to contracts not under seal, and as to such contracts, if the nature and circumstances of the transaction show an intention to bind the principal and not the agent, effect will be given to such intention.

There is no issue joined for trial in this case, as defendants failed to plead. In this condition of the record they were not entitled to put in any defense except in mitigation of damages. Binz v. Tyler, 79 Ill. 248. Plaintiff was entitled, if the court saw fit to accord him that privilege, if he had asked it, of having a judgment as in the case of default on his affidavit of claim. However, the evidence of plaintiff established his claim, and from it the court was warranted in finding the-issues in his favor and assessing his damages in the amount which the court did.

Finding no reversible error in the record, the judgment of the superior court is affirmed.

Affirmed.

Wilson and Byner, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Ryner

license: Public Domain

text:
    Rudolph A. Gran (Plaintiff), Appellee, v. Vincent M. Patano and Vincent D. Berberet (Defendants), Appellants.
    Gen. No. 33,184.
    Opinion filed May 29, 1929.
    Baker, Holder & Schmidt, for appellants; William F. Schmidt and Clarence Kammeemann, of counsel.

      Challenger & Shapiro, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

Peter Vincent and his wife executed three promissory notes, all dated February 4,1927, and each for the principal sum of $500, due three years after date with interest at the rate of 6 per cent per annum and payable semiannually on August 4 and February 4 of each year. Bach of the notes contained an acceleration provision as follows:

“It is further expressely agreed, that, if default be made in the payment of any one of the installments of interest aforesaid, at the time and place aforesaid, when and where the same becomes due and payable, and such default shall continue for ten days after such installment becomes due and payable, as aforesaid, then, and in that event, the said principal sum of Five Hundred Dollars shall, at the election of the legal holder hereof, at once become and be due and payable, anything hereinbefore contained to the contrary notwithstanding; such election to be made at any time after the expiration of said ten days, without notice.
‘ ‘ The payment of this Note is secured by Trust Deed on real estate in Cook County, Illinois.
No. A Peter Vincent
Mary Vincent.”

In June, 1927, the plaintiff became the holder of the notes. Bach of the notes then bore the indorsements of the defendants, Vincent M. Patano and Vincent D. Berberet. The interest falling due August 4,1927, was not paid. Before giving notice of the default or making demand upon the indorsers for payment of the interest, the plaintiff, on February 2, 1928, elected to declare the principal of each note due. On the same day he evidenced his election to declare the principal sums due by serving notice thereof upon the indorser, Patano, at whose office the notes were made payable. The notice contained a demand for payment. Payment was not made and the plaintiff immediately served notice on the makers and the indorser, Patano, that he would hold them liable.

There was no response to the demand for payment and the plaintiff instituted suit in the municipal court of Chicago, where, upon a trial without a jury, he recovered a judgment for $1,417.49, against the two indorsers. Summons was not served upon the makers and they did not appear.

The statement of claim contained no averment that the notes had been presented for payment or that notice of dishonor had been given the indorsers. The defendant Patano executed an affidavit of merits on behalf of himself and his coindorser, Berberet, reading as follows:

“Affiant says that the said promissory notes sued upon by the plaintiff herein and each of them were not duly presented for payment of interest thereon, on, to-wit: the fourth day of August, 1927, in accordance with the tenor of said writings and each of them and that the legal holder thereof did not, to-wit: then give due notice of dishonor to said Vincent M. Patano and Vincent D. Berberet or either of them, and further affiant saith not.”

Counsel for the defendants call our attention to the fact that, upon the trial of the case and before the introduction of any evidence, the objection was made that the statement of claim did not state a cause of action. The point, however, is not urged in the points and authorities, or in the argument, as a ground for reversal. Even if it were, the contention should not prevail because the defendants, in their affidavit of merits, supplied the issue which they claim should have been presented by the statement of claim, i. e., whether the notes were presented for payment of interest and notice of dishonor given to the indorsers.

The pleadings in cases of the first class in the municipal court of Chicago are, now, informal and so far as the issues involved in this appeal are concerned, the same as in cases of the fourth class. The Supreme Court of this State has held that it will not reverse a judgment, entered in a fourth-class case, solely for the purpose of permitting the parties to present in a formal way an issue which they have once tried in the trial court. Lyons v. Kanter, 285 Ill. 336.

The case cited involved the review of a judgment in a suit of the fourth class for damages for malicious prosecution. The statement of claim failed to allege lack of probable cause for the prosecution complained of. The defendant’s affidavit of merits set up as a defense the existence of probable cause. The Supreme Court held that the statement did not set out a cause of action but in refusing to reverse the judgment in favor of the plaintiff said:

“The defendants appeared and filed their affidavit of merits, basing their defense specifically upon the existence of the very element which the plaintiff had failed to deny, — probable cause, — and the case was tried upon that issue. It was not an immaterial issue, for, although it was not alleged, the plaintiff could not recover without proving it, and the record shows that evidence was introduced by each of the parties on that issue. The instructions are not abstracted, but it is to be presumed that the court instructed the jury on that issue. The issue was introduced by the defendants instead of the plaintiff, but we will not, with the whole record before us, reverse the judgment for the purpose of letting the parties raise in a more formal way an issue of which they have already had the benefit of a full trial.” The rule is productive of economy of time and expense and its application should be encouraged.

In the instant case if the defendants had permitted the plaintiff to obtain a judgment by default, they would be in a position, under the ruling in Lyons v. Kanter, supra, to urge here that the judgment should be reversed because the statement of claim was fatally defective. This course they did not pursue. Instead, they saw fit to make of record their contention as to why they should be exempt from liability on the notes. They stated, under oath, that they were not then obligated to pay the principal of the notes because there had been no demand made for the payment of interest when due, or notice of the default given to them. They should be held bound to abide by this position.

We have discussed the question of the sufficiency of the pleadings and the issues raised by them solely for the reason that in two instances in their brief counsel for the defendants refer to the fact that the defendant Berberet was never given notice of “any kind whatever.” If by this statement it was intended to raise the question that Berberet was not liable as an indorser because it was not alleged or proved that he was notified of dishonor for nonpayment of the principal of the notes as distinguished from interest, we are of the opinion that counsel should be precluded from so doing because Berberet joined with Pataño in making the specific and limited defense that the maturity of the principal of the notes was, without warrant of law, accelerated.

In connection with the contention óf the defendants that they were discharged from liability as indorsers because of the method pursued by the plaintiff in accelerating the maturity of the principal of the notes we are not confronted with any question of pleading. The plaintiff made no -pretense of alleging or proving that any notice of dishonor for failure to pay the interest at maturity was given to either of the defendants. Whether this was necessary, as a matter of law, is in fact the sole question presented for our consideration. It is the only point argued by counsel for the defendants.

Bach’ of the notes provided that in the event of a continuous default in the payment of any instalment of interest for a period of ten days the holder should have the right, at his election, to declare the principal immediately due and payable. It was expressly provided that the election could be made without notice. The latter provision is a valid one and binding upon indorsers as well as makers. . Its evident purpose is to avoid the necessity of giving notice of default of payment of interest before making the election to declare the principal due. This must be true unless an even broader import be given to the words, “without notice,” to the effect that the holder is excused from making demand for payment of the principal and, upon failure of payment, from giving the indorsers notice of dishonor.

The Negotiable Instrument statute of this State, Cahill’s St. ch. 98, ¶ 21 et seq., contains no express provision which sheds any light upon the subject of controversy. Neither is there any decision of the courts of this State directly in point. A number of cases from this jurisdiction have been cited which hold that interest is merely ,an incident to the debt and recoverable with it. Applying the same rule, courts in other jurisdictions have held that interest is not subject to protest and notice to indorsers according to the law merchant. In the case of National Bank of North America v. Kirby, 108 Mass. 497, the Supreme Court of Massachusetts said:

“Such a note (one payable in installments) is a single contract and the party to whom it is transferred must take it with notice that, as to the overdue installment, the maker may have a justifiable cause for withholding payment which may affect the whole contract. But in its effect upon the credit of a note, it is manifest that a failure to pay interest is not to be ranked with a failure to pay principal. Interest is an incident of the debt, and differs from it in many respects. It is not subject to protest and notice to indorsers, or days of grace according to the law merchant. Interest is not recovered on overdue interest; and the statute of limitations does not run against it until the principal is due. The holder of a note with interest payable annually loses no rights against the parties to it whether makers or indorsers, by neglecting to demand it; and he has the election to do so, or wait and collect it all with the principal. . . .” See also Howe v. Bradley, 19 Me. 31.

For the foregoing reasons the judgment of the municipal court of Chicago is affirmed.

Affirmed.

Holdom, P. J., and Wilson, J., concur.


text:
    R. H. Ehlert, Appellant, v. Haldane Cleminson, Appellee.
    Gen. No. 33,197.
    Opinion filed May 29, 1929.
    Adams & Adams, for appellant; Leland E. Faldee, of counsel.
    Altheimer & Mater, for appellee; A. B. Manion, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

On January 31,1927, the defendant, Haldane Cleminson, executed his judgment note for the principal sum of $15,000, payable three months after date, and delivered it to the payee, William F. Jasmund. The consideration was a check in like amount. Some time after maturity, the exact date not appearing from the evidence, Jasmund transferred the note to the plaintiff, R. H. Ehlert. On October 6, 1927, the plaintiff obtained a judgment by confession upon the note for the sum of $18,115 and costs. The judgment was opened and a jury trial had, resulting in a verdict in favor of the defendant. Judgment was entered on the verdict and the plaintiff took this appeal.

. Upon the trial of the cause, the note was admitted in evidence, without objection. The plaintiff then rested his case.

The defendant put in evidence four agreements in writing. Two of them bore Jasmund’s signature and the others were evidently executed with his knowledge and approval. The first of these documents, as appears from the abstract, was in substance as follows:

“Agreement dated January 20th, 1927, that a nonprofit Corporation is to be formed under the laws of the State of Michigan for the operation and conduct of the Great Northwoods Club for recreational purposes, and further agreed by the parties hereto that the land under contract of purchase to be exchanged for all of the stock in said corporation.
“It is further agreed that an issue of $300,000.00 worth of bonds be issued by the above said corporation against 10,000 acres of land.
“It is further agreed by the parties that ten per cent (10%) of all of the above stock in said corporation be delivered to William F. Jasmund for the loan of $15,000.00 with interest at the rate of six per cent (6%) per annum, which interest is to be paid when and as principal payments are made on said loan.
“It is further agreed that $280,000.00 of the aforesaid bond issue be placed with the Marquette Park State Bank as Trustee, and that said Trustee be instructed to deliver to said William F. Jasmund, twenty-five per cent (25%) of the proceeds of the sale of all bonds so placed in its hands until the principal sum of $15,000.00, together with all interest due thereon, is paid.
Haldane Cleminson
J. Dwight Funk
W. Callahan
William F. Jasmund.”

All of the instruments were signed by the defendant Cleminson, W. Callahan, J. Dwight Funk and two of them by the Marquette Park State Bank. In none of them was any mention made of the note. Each acknowledged an indebtedness on the part of Funk, Callahan and the defendant Cleminson to Jasmund in the sum of $15,000. Only the first acknowledged that 10 per cent of the stock of the proposed corporation was to be given to Jasmund. All of them provided that the indebtedness to Jasmund should be paid out of the proceeds of the sale of bonds.

The agreements following the first in point of time were executed, two of them on February 21, 1927, and the last on August 3, 1927, several months after the maturity of the note in question. So?far as the issue involved in this appeal is concerned their provisions are, in substance, identical.

The undisputed evidence is that the bonds in question were issued and deposited about February 21, 1927, with the Marquette Park State Bank. Up to the time of the trial, which began on July 19, 1928, none had been sold and nothing had been paid on account of the indebtedness to Jasmund.

In support of the defense interposed by him, .the defendant testified that he and his associates needed some more money to pay on account of the lands to be acquired, which were referred to in the contract of January 20, 1927, before they could issue and place with the escrow agent the bonds necessary to be sold for the purpose of paying for the lands; that he went to Jasmund and told him of the facts; ,that Jasmund asked for security for the $15,000 if he was to advance that amount and produced the note in question saying that he wanted it as security; that the defendant said that he would give a receipt for the money but Jasmund replied that he had the note all made out and if it was signed he would give it back to the defendant when the escrow agreement was signed. By “escrow agreement” he evidently had in mind the agreement subsequently made, and bearing date of February 21, 1927, in which it was recited that a deed of the lands to the Great Northwoods Club had been deposited with the escrow agent,and, according to the defendant’s testimony, the bonds intended to be issued, or temporary ones, had become available for sale. He further testified that on a number of occasions he demanded of Jasmund the return of his note but that in each instance he was met with a promise of future compliance which was never fulfilled.

This testimony was not .directly contradicted. The plaintiff did not testify. Jasmund took the witness stand as a witness for the defendant but was not interrogated about the matters testified to by the defendant. Although he was twice called to the stand he was not cross-examined by counsel for the plaintiff. Jasmund’s father testified that, after the maturity of the note, he asked the defendant a number of times when the note was going to be paid, and that the reply was always, in substance, that it was just a matter of time until payment would be made. On cross-examination he stated that the first request for payment of the note was made about three months after the note was given but when asked as to the month or season of the year 1927 when the other requests were made he repeatedly answered that he could not recall or did not know. His testimony is entitled to little weight.

The evidence is uncontradicted that the plaintiff, before acquiring the note, was notified by the defendant and his attorney of the claims of the defendant as to the facts and circumstances attending the execution of the instrument. One of the errors assigned is that the court improperly instructed the jury. The abstract shows that the jury were instructed orally and that after they had been instructed the' court inquired whether there was any objection but that there was no response to the inquiry.

It thus appears from the record that there are no questions of fact or rulings of the trial court for our consideration except the action of the court in admitting evidence of the facts as to the condition upon which the note in question was executed and delivered.

Outside of the question of error in the giving of one instruction, which we consider was waived in the trial court, the entire argument of counsel for the appellant is based upon the assumption that the testimony of the defendant was in contradiction of the express and unconditional terms of a written instrument. The assumption is unwarranted. The testimony received did not alter or vary the terms of the note in any respect. It simply showed that the instrument was delivered, not absolutely, but upon condition. The testimony of the defendant standing alone proves the condition. In addition to that there is corroborative documentary evidence. The promoters of the Club agreed, in writing, to repay to the defendant out of the proceeds of the sale of bonds the $15,000, and in addition to give him a 10 per cent interest in the corporation to be formed.

That parol evidence is admissible to show the conditional delivery of a note cannot be questioned. In the case of Bell v. McDonald, 308 Ill. 329, the Supreme Court of this State said:

“It is argued on behalf of the appellant that the statement in the pleas that the instruments were delivered only as collateral security for the stock powder to be sold and were to be held by the payee and surrendered when the amount for which the stock powder was sold was collected by the payee is only an attempt to change and qualify the unconditional written promises by a contemporaneous parol agreement, in violation of the general rule that an instrument absolute on its face cannot be shown by parol to be conditional. While this is a recognized rule of general application, yet evidence that the instrument was not intended to take effect as a valid obligation until the occurrence of some future contingency is usually held admissible between the original parties and between them and those taking with notice. Such evidence, it is held, does not contradict the terms of the writing or vary its legal import but tends to show that it was never delivered as a present contract. The possession of a contract unexplained may be presumptive evidence of its delivery, and under such circumstances no alteration of the terms of the contract could be shown, but until the delivery the writing is inoperative, and the delivery upon condition does not make it operative until the condition has been complied with. Evidence of such conditional delivery does not alter or vary the contract.”

The fact that in that case no consideration for the notes passed, that there was evidence of fraud, and that the trial court erred in its ruling on the admissibility of evidence cannot be given the effect of rendering the rule, there distinctly pronounced and supported by ample reason and authority, inapplicable to the facts in the instant case.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Holdom, P. J., and Wilsok, J., concur.


text:
    Caryl Frink MacArthur (Complainant), Appellant, v. Charles G. MacArthur (Defendant), Appellee.
    Gen. No. 33,221.

      Opinion filed May 29, 1929.

      Reid, O’Connor & Wiley, for appellant.
    Kirkland, Fleming, Green &• Martin, for appellee; Howard Ellis and Allan W. Cook, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

On December 8, 1927, the complainant filed her bill of complaint in the superior court of Cook county for the purpose of having corrected supposed errors apparent upon the face of the record in a divorce proceeding in the same court. A demurrer was interposed to the bill and sustained. Thereupon she filed an amended bill of complaint. A demurrer to this pleading was likewise sustained and the amended bill of complaint dismissed for want of equity. She was granted this appeal from the decree of dismissal.

The substance of the material allegations of the amended bill of review is as follows:

On September 10, 1923, the complainant filed her bill for divorce against the defendant charging him with extreme and repeated cruelty. On March 8,1926, the defendant answered and filed a cross-bill in which he charged the complainant with desertion. On May 10, 1926, an order was entered dismissing the defendant’s cross-bill and giving leave to the complainant to amend her bill. She forthwith amended her bill by adding a charge of desertion. An immediate hearing was had. On June 26,1926, a decree was entered granting a divorce to the complainant. It recited that the cause came on for hearing as a default matter and that the parties had made a property settlement in lieu of alimony. It provided that the defendant pay to the complainant the sum of $1,000 for her solicitor’s fees and expense money. On October 11, 1926, an order was entered satisfying the decree in respect to the payment of the solicitor’s fees. On July 9, 1927, the trial court entered an order as follows:

“This cause coming on this day to be heard upon the motion of the complainant, Caryl Frink MacArthur, by Frank R. Reid, her solicitor, praying the court to enter an order herein nunc pro tuno as of June 4, 1926, showing that the complainant herein moved the court on June 4, 1926, to dismiss her amended bill of complaint herein, which motion was then denied by the Court, and also comes the defendant, Charles Gr. MacArthur, by Kirkland, Patterson & Fleming, his solicitors, and the court having heard the arguments of counsel and being fully advised in the premises doth find as follows:
“First: That on the 4th day of June, 1926, certain proceedings were had in said cause before the Honorable Harry A. Lewis, Judge of the Superior Court of Cook County, Illinois, who presided at trial of this cause resulting in a certain entry, minute, memorandum and memorial being made in the minute book of Harry A. Lewis, said Judge of this Court, and in his handwriting, which is as follows:
“ ‘Motion of Sabath to dismiss, when fees were paid, denied and cause continued to June 15th.’
“Second: That this Court having personally inspected the record finds no draft or memorandum of any order Spread upon the records of this Court entered on said day as a result of the said proceedings.
“Third: The Court further finds that it appears from the said entry, minute, memorandum and memorial that the court did on June 4,1926, deny the motion of the solicitor for the complainant herein to dismiss her cause and that an order should be entered herein nunc pro tuno as of June 4, 1926, denying the said motion of the solicitor for the complainant to dismiss her cause herein.
“It.is therefore, ordered, adjudged and decreed that the records of this Court be amended to show the motion of the complainant herein to dismiss her cause, and that the motion was denied. It is further ordered, adjudged and decreed that this order be and the same is hereby entered nunc pro tunc as of June 4, 1926.”

The amended bill of review concludes with the representation that the complainant “never at any time received or accepted any benefit under the said decree; that the payment of the sum of $1,000 as and for her permanent solicitor’s fees was made directly to her solicitor and was accepted without her knowledge, authority or consent and in contravention of her express direction to her solicitor to dismiss her bill; that she had no knowledge that such payment had been made for the space of about a year after the entry of said decree. ’ ’

It contains no charge of fraud and there is no offer to present newly discovered evidence. This being true, the trial court was given jurisdiction only to examine the pleadings and the final decree for the purpose of correcting errors, if any, apparent upon the face of the record. A bill of review does not. empower the trial court to review its own proceedings had during the progress of the trial. The sole purpose of such a bill is to permit an examination of the pleadings and the final decree for the purpose of determining whether it is apparent that the law has been misapplied to the facts as found in the decree.

Under the decisions of the Supreme Court of Illinois only the pleadings and the final decree can be considered in determining whether or not errors apparent appear on the face of the record. Griggs v. Gear, 8 Ill. (3 Gilm.) 2. The court there said:

“In such a case no question is raised as to the propriety of the determination of the matters of fact, or the evidence upon which the decree is founded, but it is only upon matters of law as arising upon the facts, which are to be taken as absolutely true, as stated in the decree, that any question can be raised. By decree here, must be understood, not only the final judgment of the court, but the pleadings also, the substance of which, according to the English practice, is recited in the decree.”

In Turner v. Berry, 8 Ill. (3 Gilm.) 541, the Supreme Court of this State said:

“Upon a bill of review, the sufficiency of the evidence to establish the facts, as found, cannot be controverted. It is not a misjudging of the facts that a party can complain, but for an improper determination of the law. In the case of Whiting v. The Bank of the United States, 13 Peters 6, the court says: ‘In England, the decree always recites the substance of the bill, and answer, and pleadings, and also the facts on which the court founds its decree. But in America, the decree does not ordinarily recite either the bill, or answer, or pleadings, and, generally, not the facts on which the decree is founded. But, with us, the bill, answer, and other pleadings, together with the decree, constitute what is properly considered as the record. ’ ”

In Evans v. Clement, 14 Ill. 206, a part of the opinion is as follows:

“Upon such a bill questions of fact are not open for discussion. To adjudicate properly upon facts, as found, of course the pleadings are to be considered, but nothing further. Were the court to reconsider the evidence, it would in every respect perform the office of an appellate court, upon its own decisions. Such a course would be inconsistent with the well-settled practice of courts of equity. On this subject Lord Eldon said, in the case of Perry v. Phillips, 17 Ves. 178: ‘If I am to hear this case upon the ground that the judgment is wrong, though there is no error apparent, the consequence is, that in every instance a bill of review may be filed; and the question whether the case is well decided will be argued in that shape; not whether the decree is right or wrong on the face of it. The cases of error apparent, found in the books, are of this sort, an infant not having a day to show cause, etc., not merely an erroneous judgment. ’ ”

And quoting further from page 209:

“The law on this subject is very clearly stated by Mr. Justice Story. He says: ‘In regard to errors of law apparent on the face of the decree the established doctrine is, that you cannot look into the evidence in the case, in order to show the decree to be erroneous in its statement of the facts. That is the proper office of the court on an appeal. But taking the facts to be as they are stated to be on the face of the decree, you must show that the court have erred in point of law. If, therefore, the decree do not contain a statement of the material facts on which the decree proceeds, it is plain ‘there can be no relief by bill of review, but only by an appeal to some superior tribunal. ’ ”

In Regner v. Hoover, 318 Ill. 169, the court expressed itself as follows:

“Counsel contends that relief in this case should be granted because, it is argued, the pleadings do not justify the decree. It is evident that the court had jurisdiction of the parties and of the subject matter, and where this is so its decree will not be set aside in a proceeding of this character on the allegation that it is not sustained by the pleadings. That is a question which can be reviewed by appeal or writ of error. Errors which present questions of procedure and not jurisdiction, and do not reach the matter of the right of the court to hear and decide a cause, go only to the question of the correctness of the court’s decision and are not open on a bill of review. Vyverberg v. Vyverberg, supra [310 Ill. 599].”

Expressions have crept into the opinions of the Supreme Court in a few cases which might afford grounds for the contention that all of the proceedings in a case are subject to investigation on a bill of review. A brief survey of these cases, however, will disclose that these expressions are obiter dicta and contrary to the holding in all other cases in Illinois treating on the subject.

In Vyverberg v. Vyverberg, 310 Ill. 599, the court, in considering some of the authorities dealing with bills of review, said: “The questions open for examination are such questions as arise on the pleadings, proceedings and decree,” citing Palenske v. Palenske, 281 Ill. 574. In the Palenske case the court said: “A bill of review affords a means for the correction of error of law apparent on the face of a decree, and where a bill is filed for that purpose the questions open for examination are such questions of law as •arise on the pleadings, proceedings and decree,” citing Ebert v. Gerding, 116 Ill. 216, and Bruschke v. Der Nord Chicago Schuetzen Verein, 145 Ill. 433. The only reference in Ebert v. Gerding to proceedings is contained in the language, “Beading the pleadings and the decree together, in the proceedings here under review, it is evident that the discharge of the first mortgage by Gerding was not intended to be an absolute payment.” In Bruschke v. Der Nord Chicago Schuetzen Verein, the court held that, as a general rule, the question raised by a bill of review is whether the court rendering a decree has correctly applied the law to the facts as found by it. Story is also quoted from as follows: “In a bill of this nature, it is necessary to state the former bill, and the proceedings therein, the decree and the point in which the party exhibiting the bill of review conceives himself aggrieved by it.”

The origin of the error in the fine of cases above commented upon must be in the construction placed upon the quotation from Story. Clearly Story did not intend, by the expression “proceedings therein,” to include and make reviewable all proceedings in a cause. In fact he did not use the exact expression. Instead he used the words “proceedings thereon,” and by proceedings on the bill he, undoubtedly, referred to the subsequent pleadings and the final decree or the final decree alone. Certainly he did not intend to include interlocutory orders any more than he intended to include the evidence.

If, however, any doubt ever existed about the matters which the court may consider on a bill of review, it has been completely removed by the well-considered case of Regner v. Hoover, supra. Errors which present questions of procedure are not open to consideration on a bill of review. Even the sufficiency of the pleadings to sustain the decree will not. be inquired into.

In the instant case the final decree in the divorce proceedings shows no motion of the complainant to dismiss her suit. In fact the motion to dismiss and the rulings of the court thereon were not made a matter of record until over a year after the entry of the decree. The order of the court that its order denying the motion should be entered nunc pro tunc as of a date prior to the time of the entry of the .divorce decree does not render the decree subject to the objections or error apparent upon its face. If the decree had found that the complainant had moved to dismiss her bill with costs and without condition, she might be heard to say that the decree disclosed error upon its face. This did not occur and a bill of review cannot be used to serve the purpose of an appeal or a writ of error.

Even if the question sought to be determined on this appeal could be presented by a bill of review we are of the opinion that the trial court did not err in denying the motion to dismiss. Decisions of the courts of this State are uniform to the effect that, in the absence of a cross-bill on file, the complainant in a proceeding in equity may, at any time before the entry of a final decree, dismiss his suit at his own costs and without imposing any conditions. The order of July 9, 1927, shows that it was based solely upon a memorandum made by the trial judge as follows: ‘ ‘ Motion of Sabath to. dismiss, when fees were paid, denied and cause continued to June 15.” Despite the order entered by the court, the memorandum show's conclusively that the motion was made upon the condition that solicitor’s fees were first to be paid, before the suit should be dismissed. The complainant was without right to withdraw her suit upon condition that she first receive a substantial benefit from the proceeding. She did not even offer to pay the costs.

The only contention here presented by counsel for the complainant is that this court should reverse the decree of dismissal because the trial court erred in not granting complainant’s motion to dismiss her bill. The issue is not properly before us and, if it were, we would be obliged to hold that the trial court did not err in denying the motion.

The decree of the superior court of Cook county is accordingly affirmed.

Affirmed.

Holoom, P. J., and Wilson, J., concur.


author: Mr. Justice Wilson

text:
    Alwart Bros. Coal Co., Plaintiff—Appellee, v. Pittsburgh Fire Insurance Company of Pittsburgh, Pennsylvania, Defendant. Matthew H. Taggart, Insurance Commissioner, etc., Intervening Petitioner, Appellant.
    Gen. No. 33,123.

      Opinion filed May 29, 1929.
    Slaymaker, Turner, Merrell, Adams & Locke, for appellant; Louoks, Eckert & Peterson, of counsel.
    John A. McKeown, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

Matthew H. Taggart, Insurance Commissioner of Pennsylvania and Statutory Liquidator of the Pittsburgh Fire Insurance Company of Pittsburgh, Pennsylvania, as intervening petitioner, brings this appeal to reverse a finding and judgment of the municipal court of Chicago, in favor of Alwart Bros. Coal Co. and against Pittsburgh Fire Insurance Company of Pittsburgh, Pennsylvania.

The suit grows out of a loss by fire sustained by the plaintiff, a resident of Illinois, March 28, 1927, and as a result of which an action was brought to recover upon a policy of insurance issued by the defendant company covering the loss in question. A summons was returned not found as to the defendant company, but a garnishee summons was served upon Joseph C. Knight, trading as Joseph C. Knight & Company, and the garnishee answered, admitting funds in his hands belonging to the defendant, in excess of the amount of the claim.

The defendant was then served by publication.

"The intervening petitioner filed his special appearance stating that the Pittsburgh Insurance Company had been dissolved May 17,1927, by the Court of Common Pleas of Dauphin County, Pennsylvania; that he was the statutory liquidator of that State, under a statute creating that position, and as such vested with the title to all property, rights of action and contracts of the insurance company; that the suit was started subsequent to the dissolution of the defendant company and Ms appointment, and prayed that the writ, together with the return of the bailiff, be quashed.

Upon the hearing, petitioner introduced in evidence exemplified copies of an Act of the G-eneral Assembly of the Commonwealth of Pennsylvania entitled, “An Act relating to Insurance and establishing an Insurance Department, Approved May 17, 1921,” wMch provided that upon the dissolution of an insurance company by a decree of a court of PennsylvaMa, the Insurance Commissioner should carry on the liquidation of the company and be vested by operation of law “with the title to all of the property, contracts and rights of action of said company.” Proof was introduced showing that the report of loss was sent to the office of the defendant June 30,1927, and came into the hands of petitioner thereafter; that petitioner informed plaintiff that defendant company was dissolved and requested plaintiff to file its claim.

A default was taken as against the defendant insurance company and the cause tried on the issue raised by the intervemng petition. The court overruled the plea to the jurisdiction, but permitted the special appearance to stand as a general appearance and granted leave to petitioner to become a party claimant to the fund in the hands of the garmshee.

The court entered a finding in favor of the plaintiff for $817.58, together with costs and entered judgment on the finding.

On a motion for a new trial petitioner presented an affidavit in support of his motion setting up newly discovered evidence to the effect that the Pittsburgh Fire Insurance Company was licensed to do business in Ulinois and had appointed an attorney in fact for service in the State of Illinois, but as this evidence, if any such, was a matter of record, it was easily ascertainable before trial and therefore not error on the part of the trial court to refuse the motion for the reasons stated in the affidavit.

The question for consideration is whether or not the statute of the State of Pennsylvania, vesting the title to the property of the Pittsburgh Fire Insurance Company in the statutory liquidator of Pennsylvania, together with the order of the Court of Common Pleas of Dauphin County, Pennsylvania, dissolving the corporation, are binding upon creditors of that company, residents of the State of Illinois, or whether their effect is confined to the State of Pennsylvania.

It is unquestioned that by voluntary assignment a person or corporation can convey its title to its property, and it is unquestioned that by an involuntary assignment by operation of law, the title to property of an individual or a corporation may be committed to a trustee for the purpose of liquidating the assets of that person or corporation for the benefit of creditors. There is no question raised but that by either an involuntary or voluntary assignment for the benefit of creditors, a trustee appointed for the purpose of collecting the assets has a right to be heard in the State other than that in which the assignment is made. Where, however, a trustee or receiver of the assets of such an individual or such a corporation undertakes to represent his assignee in a State other than where the assignment was made, a different question has arisen where domestic creditors have obtained liens by reason of attachment, garnishment or otherwise on property located at the domicile of the creditor and outside of the State where the trustee or receiver was appointed and authorized to act.

It may be stated as a general rule that creditors have a preferential right in their own State as against trustees and receivers appointed in a foreign jurisdiction under an involuntary assignment. It is urged, however, that in view of the fact that the intervening petitioner in the case at bar was appointed by virtue of a statute of Pennsylvania that, therefore, the courts of this State, by virtue of the comity existing between the various States and the full faith and credit provision of the Federal Constitution, should give effect to that statute and recognize the right of the Pennsylvania liquidator to become possessed of all the right, title and interest of the Pittsburgh Fire Insurance Company in and to all property, contracts and choses in action wherever situate, as paramount to that of domestic creditors.

Counsel rely upon the case of Martyne v. American Union Fire Ins. Co., 216 N. Y. 183. The court in its opinion in that case says:

“The rule in this state seems to be so thoroughly established that the title of an assignee or receiver, under involuntary or bankruptcy proceedings in a foreign state will not be upheld as against an attachment obtained and served by a resident of this state, that perhaps it should not be changed except by an act of the legislature.
“To hold, however, in this case that the title which vested by the statutes of Pennsylvania in the insurance superintendent of that state as a statutory liquidator does not extend to property in this state as against an attaching creditor here, would be to extend the rule which permits a local creditor to ignore the laws of a foreign state. We are of the opinion that the plaintiff and those from whom he received assignments of claims against the dissolved corporation have no equity that should prevent enforcing the general rule of comity in this case.”

There is, however, a well-settled line of cases holding to the effect that the rights of a statutory liquidator, in and to property coming into his possession by reason of the dissolution of a corporation, does not extend beyond the confines of the State creating that statutory office and refusing to extend the rule as against domestic creditors. In this State the courts have refused to recognize the rule adopted in the case of Martyne v. American Union Fire Ins. Co., supra.

An early case in this State is Rhawn v. Pearce, 110 Ill. 350. The facts in that case are very similar to those involved in this proceeding. In that ease it appears that an action in attachment was brought against one John Landenberger, a resident of Pennsylvania. The garnishee in that proceeding admitted that it owed Landenberger and a judgment was rendered in that case in favor of Pearce. Subsequently a bill of interpleader was filed on behalf of certain trustees appointed in accordance with the statute of Pennsylvania, under which statute the trustees qualified and became vested with the title to all of the assets of Landenberger. The Supreme Court of this State in its opinion in the Rhawn case, supra, quotes from Story on Conflict of Laws, and' says:

‘ There is a marked distinction between a voluntary conveyance of property by the owner and a conveyance by mere operation of law in cases of bankruptcy in invitum. Laws can not force the will, or compel any man to make a conveyance. In place of a voluntary conveyance of the owner, all that the legislature of a country can do, when justice requires it, is to assume the disposition of his property in invitum. But a statutable conveyance, made under the authority of any legislature, can not operate upon any property except that which is within its own territory. ’ . . .
“Much has been said in the argument in reference to the situs of this debt, and it is contended that its situs was the residence of Landenberger in Philadelphia, to whom it was payable. Whether the debt was constructively within the State of Pennsylvania or not, at the time the insolvency proceedings were instituted, we do not regard of any particular moment. The parties owing the debt were residing in this State. The fund was here, and was liable, under the laws of this State, to the process of attachment, and the trustees in the State of Pennsylvania could only take, as declared by Story, subject to the remedies provided by the laws where the fund had an actual existence.”

This case has been approved and followed by the Supreme Court of this State in a very recent decision entitled, Illinois Trust & Savings Bank v. Northern Bank & Trust Co., 292 Ill. 11. The court in its opinion quotes in extenso from the case of Rhawn v. Pearce, cited, and says in its opinion, among other things:

‘The most convenient and practical rule is, that statutable assignments, as to creditors, shall operate intra-territorially, only. If our citizens conduct themselves according to our laws in regard to the property of their debtors found within our jurisdiction, it is reasonable that they should reap the fruits of their diligence and not be sent to a foreign country to secure such a dividend of their debtor’s effects as the foreign laws allow’; and the conclusion reached was: ‘The fund was here, and was liable, under the laws of this State, to the process of attachment, and the trustees in the State of Pennsylvania could only take, as declared by Story, subject to the remedies provided by the laws where the fund had an actual existence.’ ”

This rule has ample support in other jurisdictions. Schoenwald v. M’Donald, 5 Alaska 442; Security Trust Co. v. Dodd, Mead & Co., 173 U. S. 624; Catlin v. Wilcox Silver-Plate Co., 123 Ind. 477.

From a review of the decisions of this State, we are of the opinion that it is the settled policy to protect the rights of resident attaching creditors as against foreign receivers or trustees, even though appointed by statute of another State.

For the reasons stated in this opinion the judgment of the municipal court is affirmed.

Judgment afirmed.

Holdom, P. .T., and Byner, J, concur.


text:
    John Thomas Lewellyn, a minor, by his next friend, George W. Schaefer (Plaintiff), Appellee, v. Merrill L. Hawkins et al. (Defendants), Appellants.
    Gen. No. 33,227.
    Opinion filed May 29, 1929.
    Arthur H. Jones, for appellants.
    R. O. Butz, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

Plaintiff’s claim is brought to recover the sum of $787.69, together with interest at 8 per cent, deposited by him with the defendants and which they have refused to pay on demand. The original deposit of November 5, 1927, was for $672.59. Additional deposits were made from time to time in small amounts until the total amount claimed had been deposited and credited to the account. Defendants in their affidavit of merits defend upon the ground that Mrs. Ottilia Lewellyn Schaefer, the mother of John Thomas Lewellyn, the plaintiff, who was a minor at the time of the transaction in question, had agreed to purchase from the trustees of the Home Builders Investment Trust, junior mortgage bonds and that the sum of $672.59, which was the original deposit credited to the account of the plaintiff, was to be applied on said purchase; that she later agreed to have this money transferred and applied on the purchase of certain beneficial interests of the Home Builders Investment Trust and that these were procured by her from the defendants and the sum of $672.59, credited upon said transaction; that the $672.59 was, in fact, the money of Otillia Schaefer and not the money of plaintiff. The cause was tried before the court without a jury and a finding entered in favor of the plaintiff for the sum of $861.28, being the amount of the deposits, together with interest, and judgment entered upon the finding.

From the facts it appears that the mother of the plaintiff made the deposits in question and received a book labeled Home Builders Investment Trust, and the deposits appear in said book under the name of John Thomas Lewellyn. Certain subsequent agreements were introduced in evidence on behalf of the defendants for the purpose of showing that Mrs. Schaefer entered into certain subsequent undertakings with them in which she undertook to purchase $5,000 worth of bonds belonging to the trustee of the Home Builders Investment Trust. As part of her agreement with the defendants, after the payment for said bonds, they were to build for her a single dwelling or two-flat building, not to exceed a certain amount specified in the agreement and the value of which was to bear a certain proportion to the amount of the bonds so purchased.

It is urged as grounds for reversal that the evidence does not support the finding and judgment of the trial court; that there is no proof that the plaintiff was án infant at the time of the transaction in question and that the evidence shows that the money of the plaintiff was paid to the Guardian Finance Corporation.

As to the first of these propositions, we find that there is ample and sufficient evidence upon which the trial court could predicate its finding that the money had been paid to the defendants and credited to plaintiff upon their books and records. As to the proposition that there is no proof that the plaintiff is a minor, the defendants in their answer expressly state that the said plaintiff was a minor at the time that the mother, Mrs. Ottilia Lewellyn Schaefer, made and executed her contract for the beneficial interests of the Home Builders Investment Trust. Moreover, it appears from defendants’ exhibit 4, introduced in evidence by the defendants and procured from their own records, that such was the fact. This exhibit introduced by the defendants for the purpose of showing the agreement under which Ottilia Lewellyn Schaefer' undertook to procure the beneficial interest in the Home Builders Investment Trust contains the signature of “John Thomas Lewellyn (minor).” This instrument, bearing the signature of the plaintiff in question, is evidence from which the court could find that the said John Thomas Lewellyn was, on the date of said instrument, a minor.

There is no testimony of any kind in the record showing that such is not the fact/ A minor need not wait until his majority to disaffirm contracts concerning personal property, and executory agreements may be voided by an infant either during or after his minority. Wuller v. Chuse Grocery Co., 241 Ill. 398.

There is no fogce in the contention that the evidence shows that the money was paid to the Guardian Finance Corporation, as it appears from defendants’ exhibit 3, that the Guardian Finance Corporation is the agent of the Home Builders Investment Trust.

The witness Hegar, called by the defendants for the purpose of identifying the various instruments, upon which the defendants relied as a defense and which were offered by them in evidence, stated that he was employed by the Home Builders Investment Trust and had been for seven years and had charge of the various contracts and agreements. This witness further testified that he made the original entry upon the books of the defendants, crediting this account with the initial payment of $672.59, under the name of John Thomas Lewellyn.

The plaintiff, a minor, had a right to disaffirm the agreement, if any made, by which the mother agreed that this deposit was to be applied on the purchase of bonds and to recover back the money so deposited in his name. The mother testified it was the money of the boy. The records of the defendants so des-' ignated it.

For the reasons stated in this opinion, the judgment of the municipal court is affirmed.

Judgment affirmed.

Holdom, P. J., and Ether, J., concur.


text:
    The People of the State of Illinois ex rel. Herman A. Baumgarten, Plaintiff in Error, v. Louis Krueger and Amanda Krueger, Defendants in Error.
    Gen. No. 33,247.

      Opinion filed May 29, 1929.
    Cohen, O’Connor & Shanok, for plaintiff in error; Seymour 1ST. Cohen, of counsel.
    Winston, Strawn & Shaw, for defendants in error; John C. Slade, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

Writ of error to review an order of the circuit court of January 24, 1928, dismissing a petition for a writ of habeas corpus instituted for the purpose of obtaining the custody of a minor child.

Petitioner, Herman A. Baumgarten, was the father of the child and the defendants, Louis Krueger and Amanda Krueger, defended on the ground that they were the adoptive parents under a decree entered in the county court of Cook county.

From the record it appears that the petitioner and the mother of the child were married May 21, 1913, in Chicago, and, at the time war was declared, were residing in Mexico. Petitioner, being a Herman citizen, was not permitted to return to this country, but the wife returned to this State and took up her residence in Illinois. The child was born in Chicago, June 5, 1918. In the year 1919, the wife filed her bill for divorce in DuPage county and on October 23,1920, was granted a decree of divorce on the ground of cruelty and granted the custody and control of the minor child. The wife of petitioner died on or about January 26,1926, leaving a will appointing the defendants the child’s guardians. It appears from the record that the said defendants have cared for the child since the time of the mother’s death and for several years prior thereto. Petitioner at no time saw the child nor contributed to its support until on or about 1927, but states as his reason that, he was, during this time, a citizen of Germany and unable to ascertain the whereabouts of his child and, permitted to remain in this country for only a limited period of time on account of the existing laws in force in the United States.

A decree was entered in the county court of Cook county on or about March 3, 1926, creating the defendants the adoptive parents of the child. October 27, 1927, petitioner filed in the county court his motion to vacate the adoptive decree, and on November 15, 1927, the motion was sustained and the decree vacated and set aside and the petition filed therein dismissed. November 8, 1927, defendants filed a second petition in the county court of Cook county, praying that they be granted leave to adopt the child and stating, in said petition, as follows:

“That the cause for adoption of said child is abandonment of the child and desertion of the child for more than six months next preceding the filing of this petition.”

The petition contained a further allegation in regard to the father and mother as follows:

“Father, Herman August Baumgarten, Residence, Heisingen, Republic of Germany.
“Mother, Wanda Obertynska Baumgarten, Residence, Deceased.”

Process was served upon petitioner personally in Chicago. Thereupon a motion was made by him to quash the service and it was accordingly quashed. November 17, 1927, an order of court was entered granting leave to the defendants to amend their petition in the county court for the purpose of showing that the plaintiff in said proceedings was a resident of Heisingen, Republic of Germany, and for leave to publish for service. Petitioner thereupon filed a general appearance in said proceeding and an answer in which, among other things, he denied that he ever abandoned or deserted said child or its mother.

A full hearing was had in the county court upon this second petition, as amended, and the court found in its decree that it had jurisdiction of the parties and the subject matter and that the petitioner herein, de-, fendant in said proceeding in the county court, had been guilty of abandonment of said child and had deserted same for more than six months next preceding the filing of the petition in said cause and for said reason was unfit to have its possession. The decree further found that the child was represented in said proceeding by a duly appointed guardian ad litem who consented to the adoption of said child by the said Louis Krueger and Amanda Krueger, his wife; further that the said parties were able to furnish suitable surroundings for the minor child and that it was to its best interests that said adoption should be made.

One question, and but one question only, appears to be presented for our, consideration, namely, Did the county court of Cook county, at the time of the entry of its decree, entered December 23, 1927, awarding the child to the defendants, have jurisdiction of the subject matter of the action?

It is insisted that the cause of action was unknown to the common law and is a purely statutory proceeding and, therefore, the proceeding must be closely scanned and the petition for adoption must show all the facts necessary to authorize the court to act, citing: Hook v. Wright, 329 Ill. 299; Keal v. Rhydderck, 317 Ill. 231; Rabbitt v. Weber & Co., 297 Ill. 491, and other cases.

It is insisted among other things that the petition filed in said canse is faulty, in that it fails to charge the father with abandoning or deserting the child, but contains only a general allegation that the child was abandoned and deserted. In view of the fact that the father filed his answer in said cause, denying that he had abandoned or deserted the child, and the proceeding was tried on this issue, and the decree found that he had, in fact, deserted and abandoned said child for the statutory period of time, we do not believe that there is any good or valid reason for disturbing the decree on this ground. In re Bohn’s Estate, 308 Ill. 214.

It is also urged for our consideration that the petition was faulty in that it failed to state the address of the father and reliance is placed upon the case of Hook v. Wright, 329 Ill. 299. In that case the allegation in regard to the residence of the father was that he was a resident of the State of Michigan. The instant case, however, was decided under the Act of 1874, Cahill’s St. ch. 4, ¶ 2, which required the residence to be stated “so far as the same are known to such petitioner.” Moreover, it dties not appear that this argument should carry any considerable weight because of the fact that the father in the proceeding in the county court in the case at bar entered his appearance and defended. The proceeding in the case cited by petitioner was a collateral proceeding, wherein it was deemed important because of the fact that it did not appear from the petition that the father had had an opportunity to appear and defend by reason of defective service.

It is also insisted that the court erred in permitting an amendment to be made to the petition for adoption in regard to the residence of the defendant for the purpose of curing the process, but we are of the opinion that this was an irregularity and that, in view of the fact that the defendant answered the petition, as amended, that it was waived.

The statute, Cahill’s St. ch. 4, ¶ 1 et seq., gives the right to the county court to hear petitions of adoption of children and, while it is true as a matter of law, that the statute should be strictly followed, nevertheless, in other cases, these irregularities may be waived by a general appearance and thereupon the only question for consideration is whether or not the county court in the present instance had jurisdiction of the subject matter.

The Supreme Court of this State in the case of People v. Ford, 289 Ill. 550, in speaking of a statute concerning the right to levy a tax for the purpose of enforcing a judgment of confirmation and collecting the tax which is also a right created by statute, in its opinion says:

“The levy of a tax is the means prescribed by the statute for enforcing a judgment of confirmation and collecting the tax, and the objection of the appellees was a collateral attack upon the judgment of confirmation. (Steenberg v. People, 164 Ill. 478; Gross v. People, 172 id. 571; Foster v. City of Alton, 173 id. 587; Glover v. People, 188 id. 576; Napieralski v. West Chicago Park Comrs., 260 id. 628.) The judgment of confirmation, therefore, could only be attacked on the ground that the county court was without jurisdiction, so that its judgment would be a nullity, conferring no rights and affording no protection. If the county court, upon the application for the confirmation of the special tax, was without jurisdiction to hear and determine whether a part of the costs of the improvement should be paid by the city, the judgment could be attacked at any time by anyone. (Haywood v. Collins, 60 Ill. 328; Miller v. Rowan, 251 id. 344.) If, however, the court had jurisdiction to act concerning the subject matter, the judgment could not be collaterally attacked no matter how erroneous it might he. (People v. Seelye, 146 Ill. 189; Leitch v. People, 183 id. 569; Perisho v. People, 185 id. 334; Martin v. McCall, 247 id. 484; Donner v. Highway Comrs., 278 id. 189.) The word ‘jurisdiction’ has frequently been used in a general sense, without regard to its exact meaning, and has been applied not only to courts but to modes of procedure and authority of boards, legislative bodies or other agents authorized to act upon a certain subject. (Sumner v. Village of Milford, 214 Ill; 388.) As applied to courts, jurisdiction is authority conferred by law to hear and determine controversies concerning certain subjects. Jurisdiction of the subject matter is the power to hear and determine causes of the general class to which the proceedings in question belong. (People v. Harper, 244 Ill. 121; Kuzak v. Anderson, 267 id. 609.) As applied to a particular controversy, jurisdiction is the power to hear and determine that controversy. (People v. Talmadge, 194 Ill. 67.) What shall be adjudged between the parties is the exercise of jurisdiction, and with respect to the confirmation of a special tax, jurisdiction is conferred by the statute, and jurisdiction of the particular case here involved was acquired by the filing of the petition by the city. A petition being filed, the county court had jurisdiction to determine every question relating to the special tax and who or what property should be charged with it.”'

In the case at bar, upon the filing of the petition, the court had jurisdiction of the subject matter and, after the entry of the general appearance by petitioner, also obtained jurisdiction of the person. Irregularities in such a proceeding may be waived and, when not insisted upon, cannot be urged for reversal by a party to that proceeding who entered a general appearance and participated in the trial. The irregularities were procedural and did not affect the question of jurisdiction of the subject matter. Smith v. Herdlicka, 323 Ill. 585.

The child in the case was born in Illinois and a ward of the State and, while courts should be careful in the awarding of the custody of an infant where rights of parents are involved, nevertheless, it is frequently necessary that it be done. A substantial compliance with the provisions of the statute, Cahill’s St., ch. 4, ¶ et seq., should be observed, rather than a narrow and technical construction followed, which in the end would defeat the intention of the statute.

The Supreme Court of this State in the case of Hopkins v. Gifford, 309 Ill. 363, in its opinion says:

“The adoption of friendless, dependent or orphan children tends to conserve the best interests of society and the State. All States of the Union now have adoption statutes. The right of adoption is not only beneficial to those immediately concerned, but likewise to the public. It is not the duty of courts to bring the judicial microscope to bear upon such a case in order that every slight defect may be magnified, so that a reason may be found for declaring invalid the proceedings under a beneficient statute of this character. Courts are more inclined to abandon the old rule of strict construction and to place a fair and reasonable construction on adoption statutes, to'the end that the adoption may be upheld and the assumed relationship sustained. There must be a substantial compliance with the provisions of statutes conferring jurisdiction, but the construction of such statutes is not to be so narrow or technical as to defeat the intention of the acts or the beneficial results where all material provisions of the statutes have been complied with. (Kennedy v. Borah, 226 Ill. 243; Flannigan v. Howard, 200 id. 396; 1 Corpus Juris, 1373.) ”

To the same effect was People v. Cole, 322 Ill. 95; People v. Fahey, 230 Ill. App. 143; In re Bohn’s Estate, 308 Ill. 214.

From our view of the record and the proceedings, we are of the opinion that the county court of Cook county had jurisdiction of the subject matter and of the person of the petitioner Baumgarten at the time of the entry of the decree on December 23, 1927, and that the order of the circuit court of Cook county, entered January 24, 1928, finding that the adoption proceedings were substantially in accordance with the statute and dismissing the writ of habeas corpus was correct,

For the reasons stated in this opinion the order of the circuit court of Cook county, dismissing the writ of habeas corpus, is affirmed.

Order affirmed.

Holdom, P. J., and Ryner, J., concur.


author: Mr. Presiding Justice Gridley

text:
    Hokan Christenson, Executor of the last Will of Nels Person, Deceased, Appellee, v. Board of Charities of Illinois Conference of Ev. Lutheran Augustana Synod, Appellant.
    Gen. No. 33,205.

      Opinion filed May 31, 1929.
    Anderson & Anderson, for appellant.
    Rathje, Wesemann, Hinckley & Barnard, for appellee; Francis E. Hinckley, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On January 11, 1926, in the superior court of Cool? county, plaintiff, as executor, etc., commenced an action in assumpsit against defendant, a charitable organization, to recover the sum of $2,200, which defendant had received from Neis Person during his lifetime, and which in equity and good conscience (as plaintiff claimed) belonged to Person’s estate. The declaration consisted of the common counts, to which defendant filed a plea of the general issue and also a plea (after-wards withdrawn) of the statute of limitations of five years. In September, 1928, there was a trial without a jury, resulting in the court finding the issues in plaintiff’s favor and assessing his damages at $1,800. Judgment was entered upon the finding against defendant and this appeal followed.

In September, 1921, defendant controlled the “Salem Home for the Aged,” located at Joliet, Illinois. J. M. Eydman, a clergyman, was and had been for several years the superintendent of the Home. Neis Person, a native of Sweden and for many years engaged as a general laborer in Chicago, was then living alone in a Chicago hotel. He was 76 years of age, was infirm and recently had become feeble-minded. He had never married and was without any relatives living in the United States. Hokan Christenson, also a native of Sweden .and living in Chicago, was a friend of his and they had been acquainted since 1880. In January, 1916, Person had executed a last will by which he devised and bequeathed all of his estate to Christenson and made the latter the executor of the will, In September,. 1921, Person’s property or estate, consisting of money, was not in excess of $2,500. Arrangements were made whereby Person should be taken to the Home at Joliet, and that he should pay an “admission fee” of $2,000. About September 19, 1921, he personally signed a partly printed and partly written application for admission to the Home, which he entered on September 21, 1921. When he entered he had paid the $2,000, and he also paid $200 as an advance for any money he might thereafter draw out, — a total of $2,200. He died at the Home on November 9, 1921, having been there for a period of only seven weeks. He had not drawn out any money and the $2,200 which he had paid came into the possession of defendant.

On the trial the application, on page 2 of which are certain “extracts from the rules and regulations” of the Home, was introduced in evidence. It discloses that such answers as were made to the numerous questions were written out by one other than Person. It bears the indorsement: “Approved by board Nov. 8, 1921.” This was the day before Person died. The application states that “the undersigned hereby applies for admission as an inmate into the Salem Home for the Aged, Joliet, Ill., and promises, if admitted, to observe and comply with all the laws, rules and regulations now in force, and all other laws, rules and regulations which the management thereof may hereafter adopt.” The answer to the question “State condition of your health,” is “Good for his age.” The answer to the question “Are you ready and willing to pay the required admission fee?”, is “$2,000.” Then follows the statement that “Rules 8, 9, 10 and 11 on page 2 of this instrument have been read and explained to me. ’ ’ No answers were made to the following: “In compliance therewith (said rules) I make the following-statement as to property or income of every description, either in my possession at present, or held by others for my benefit, or in which I have an expectant interest,” and “Are you willing to transfer to the Board of Charities of the Illinois Conference of the Ev. Lutheran Augustana Synod whatever property you have, at your decease, if not all, how much?” The rules- on page 2 of the application are as follows:

“(1) Before any person can be admitted as a permanent inmate of the Home for the Aged, satisfactory proof regarding such person’s morál character must accompany a written application for admission, recommended by the church board of a congregation within the Augustana Synod. . . .
“(3) Each applicant, when first admitted, shall be upon probation for a term of six months. At the expiration of said term the Board of Directors shall, as they deem expedient, dismiss or confirm the applicant as a regular inmate of the Home.
“(8) Should any of the inmates become dissatisfied, such inmates may be permitted to leave the Home, and to take along all articles which they may have brought with them. If this occurs within sics months from their admission as permanent inmates, their entrance fee will be refunded to them, after deducting a reasonable remuneration for their maintenance during their residence at the Home. The Board in such cases reserves a period of six months from the time such inmates leave the Home in which to refund the residue of the admission fee.
“(9.) Every applicant for admission to the Home shall truthfully answer all questions submitted in the regular application blank, and if after admission, it shall be found that deception has been practiced in the answers so given, such person shall be subject to immediate dismissal from the Home.
“(10) Applicants having money or other property shall be required to deliver or secure the same to the Home, or as much as the Board of Directors may deem just and fair, prior to their admission, and any other money or property they may acquire from any source, while inmates of the Home, shall become the property of the Home, unless exception from this rule has been made in the contract at the time of admission.
“(11) Applicants entitled to pensions or annuities, or who are members of any Endowment Society or Endowment Association, shall be required to assign to the Home, before admission, all benefits resulting from any and all such pensions, annuities and memberships of whatsoever nature or kind, except in special cases, where the Board of Directors may deem right to make exceptions. ’ ’

According to these rules it is apparent that, when Person entered the Home on September 21, 1921, he did not become a “permanent” inmate thereof, but only was admitted “upon probation for a term of six months”; that at the expiration of this probationary term the Home might either dismiss him or confirm him as a “regular” inmate; that, even after he had become a permanent or regular inmate, he, becoming dissatisfied, would be permitted to leave; and that in such case, if it occurred within six months after his admission as a permanent inmate, the entire fee which he had paid would be refunded to him “after deducting a reasonable remuneration” for his maintenance during his residence at the Home, and he would also be permitted to take away such articles as he had brought with him. He died within seven weeks after his admission upon probation. He never became a permanent or regular inmate. There was no contract made that in consideration of the payment of said admission fee he might remain as a regular or permanent inmate of the Home and be taken care of as long as he lived. And the testimony of Christenson disclosed that, after Person’s probationary admission and before his death, BycLman at the Home told Christenson that Person was in “awful bad shape,” was “out of his mind,” and had to be “locked up in a room,” and further said: “He is on trial. We cannot keep a man like that. ... If he don’t do better we will have to turn him over to some other place.” BycLman testified that he “could not recall” making these statements but that he “would not say” whether he did or not. Rydman further testified that the minutes of the executive committee of defendant, dated November 8, 1921 (the day before Person died), disclosed the following entry, written by its secretary: “Neis Person was admitted September 19, 1921. Committee approved the action by the Joliet members. Person paid $2000.” It further appeared that on the same day (November 8) Rydman wrote a letter to Christenson to the effect that Person was in a very serious condition, that he had some internal sickness, was very feeble, etc. Rydman further testified that Person’s funeral expenses amounted to “exactly $300,” which were paid by defendant. When asked by the trial court to express his opinion as to what would be a reasonable amount per week for taking care of Person while he was in the Home, he replied: “We assumed the responsibility of the care of this old gentleman. We did it with the understanding that this money was to carry him through, and we took a chance on it. In view of the developments, I do not wish to commit'myself as to what I think.” Being further asked by the court if he had had any experience where old people are in the Home for a few weeks and then leave, he replied that there had been such cases and that “we charge them from one dollar a day up.”

It further appeared from the evidence that shortly after Person’s death Christenson, by a firm of attorneys, applied to the probate court of Cook county for the probate of Person’s said will and the appointment of Christenson as executor, and that on November 21, 1921, said attorneys wrote the Salem Home, stating the fact of the application and requesting that it forward to them a statement “covering your expenses in the matter, what amount Mr. Person paid yon, and what amount of money he had in his possession when he entered the Home.” To this letter the Home, by Rydman, replied on November 25: “Mr. Neis Person was admitted to the Salem Home in the regular way upon turning over to the institution $2,000 for maintenance and $200 for benefit of himself as needed. The Salem Home has no money belonging to Neis Person.” On December 5, 1921, replying to said attorneys’ written request for a copy of the “conditions, rules and regulations which govern the admission of inmates,” Rydman wrote: “Am enclosing a brief extract of the conditions for admission. Persons not members of our or any church are admitted as well, —but not for less than $1,000. Persons of means are required to pay in the same manner as church members, rule 10 and 11. Most frequently we are offered a certain amount and after investigation either reject or accept the applicant. This was the case with Neis Person.” On January 23, 1922, Person’s will was admitted to probate and letters testamentary issued to Christenson, as executor.

The trial court, in making the finding in plaintiff’s favor of $1,800, stated in substance that the amount which Person had paid when he entered the Home was admitted to be $2,200; that, in view of the short period of time he had been there before his death, the rules and regulations of the Home in force at the time of his probationary admission, his written application, etc., defendant could not in equity and good conscience retain all of said sum; but that defendant should be allowed to retain the sum of $400, namely, the $300 which the evidence showed defendant had expended for Person’s funeral expenses and $100 for Person’s board and maintenance during his residence at the Home. This amount of $100 is at the rate of about two dollars per day, — it appearing that Person prior to his death had been in.the Home about seven weeks, or forty-nine days. We are of the opinion that the court’s finding, and the judgment thereon, are fully sustained by the evidence, the law and equitable principles, and that the judgment should be affirmed. In this connection the decision in Evangelical Lutheran Congregation v. Bishop, 213 Ill. App. 137, where the facts are somewhat similar, may be cited.

One of the contentions of counsel for defendant is that plaintiff’s declaration, containing only the common counts, is insufficient to sustain the judgment. We cannot agree with the contention. In Wilson v. Turner, 164 Ill. 398, 403, it is said: “An action for money had and received will lie whenever one person has received money which, in justice, belongs to another, and which, in justice and right, should be returned.” (See also, Allen v. Stenger, 74 Ill. 119, 121; Highway Com’rs v. City of Bloomington, 253 Ill. 164, 174; National Malleable Castings Co. v. Iroquois Steel & Iron Co., 333 Ill. 588, 595.) In the case last cited it is further said: “Although the action is in form ex contractu, the alleged contract is purely fictitious and the right of recovery is governed by principles of equity and no privity of contract is necessary. The action may be maintained in all cases where one person has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it and which ex aequo et bono belongs to another.”

And we do not think that under the evidence there is any merit in defendant’s counsels’ further contention that the right in Person (after he had signed said application and entered the Home) to renounce the contract and leave the Home and get back the money he had paid (less proper deductions), was his personal right, which he did not exercise before his death, and one which could not be exercised by the representative of his estate or a creditor or any other person. We think that counsel, in making the contention, lose sight of the facts that Person was only admitted to the Home on probation and that under the contract at the end of the probationary period he might have been dismissed from the Home by its action, in which event he would have been entitled to the return of the money which he had paid, less proper deductions.

Plaintiff has here assigned cross-errors. His counsel contend (1) that the court erred in allowing to defendant $300 which it disbursed for Person’s funeral expenses; (2) that the allowance to defendant of $100 for Person’s board and maintenance prior to his death is excessive; and (3) that interest should have been allowed on the $2,200 from November 21, 1921, because of a “vexatious delay in payment.” We do not think that there is any merit in these contentions. While it may be true, as argued, that defendant acted as a mere volunteer in paying the funeral expenses and that the amount paid therefor is large, still the uncontradicted testimony disclosed that defendant in good faith paid such amount for such expenses. And we do not think that an allowance of two dollars per day for Person’s board and maintenance while he was' living in the Home can be considered as excessive. And clearly this is not such a case as warrants the allowance of interest on the $1,800, because of it being “withheld by an unreasonable and vexatious delay of payment,” as mentioned in section 2 of the Interest Act, Cahill’s St. ch. 74, ¶ 2.

Our conclusion is that the judgment appealed from should be affirmed and it is so ordered.

Affirmed.

Scanlan and Barnes, JJ., concur.