author: Mr. Justice O’Consroe

text:
    Louise Bergmann, Appellant, v. Foreman State Trust and Savings Bank et al., Appellees.
    Gen. Ho. 37,059.
    Opinion filed February 5, 1934.
    James Donahoe, for appellant.
    William H. A. Bust, George Allen McCorkle and H. J. Rosenberg, for appellees; H. J. Rosenberg, of counsel.
   Mr. Justice O’Consroe

delivered the opinion of the. court.

By this appeal the complainant, Louise Bergmann, seeks to reverse a decree entered by the circuit court of Cook county, dismissing her bill for want of equity.

Complainant’s position is that she is entitled to one-third interest in securities of the face value of $20,000 held by the Foreman Trust and Savings Bank as trustee under a trust agreement between it and Fred H. Bergmann, Sr.

The record discloses that on September 24, 1918, Fred H. Bergmann, a widower, and Louise Happ, a widow, contemplated marriage and on that date entered into an antenuptial agreement which recites that the parties were about to be married; that Louise Happ owned certain real estate in Chicago and personal property not to exceed $1,500; that Fred H. Bergmann owned his home in Chicago, certain lands in California, and had personal property not to exceed $20,000; that it was decided that after their marriage the property of each should remain the separate property and be subject to the control of its respective owner; and that any property each might acquire after the marriage would be beyond the control of the other, except as to one-third of the personal property of which Fred H. Bergmann died seized or possessed of and one-third of his home in Chicago, which he agreed to give to Louise Happ at the time of his death, and this was to be in lieu of dower, homestead, realty, and all other rights of Louise Happ. The next day, September 25, 1918, the parties married and lived amicably together as husband and wife until Fred H. Bergmann died in California March 6, 1928.

October 27, 1925, Fred H. Bergmann executed a trust agreement with the defendant, Foreman Trust and Savings Bank as trustee, whereby he sold and delivered to the bank, as trustee, the personal property involved in this suit, viz., 5 gold bonds of $1,000 each; 6 other gold bonds of $1,000 each, and a note for $9,000 secured by a mortgage. The income was to be collected by the trustee and paid over to Fred H. Bergmann during his natural life, and upon his death the trustee was to divide the property into two equal parts, one to be held by the trustee for the benefit of his grandson, Frederick H. Bergmann III, 13 years of age, and the other part to be held by the trustee-for the benefit of his grandson, Ernest F. Bergmann. The income was to be paid by the trustee to the fathers of the two boys, respectively, until the boys attained the age of 25 years, at which time the trustee was to turn the property over to the two grandsons respectively. Fred H. Bergmann reserved the right to revoke the agreement at any time upon giving 15 days ’ written notice in writing* to the trustee.

A few days after the execution of the trust agreement Fred H. Bergmann executed his will, in which he referred to the making of the antenuptial agreement and stated that they had subsequently married, and “as a result of said agreement no provision is made herein for my beloved wife, Louise Bergmann.” The will then made a bequest of $10,000 to his stepson and released another stepson from any indebtedness he might owe the testator. These two stepsons were the children of his first wife by a former marriage and were known as Frederick H. Bergmann, Jr., and William Bergmann. The residue of his estate was bequeathed to his son Ernest F. Bergmann.

Fred H. Bergmann died in California March 6,1928, and his will was probated there. Ernest F. Bergmann deceased’s son, was appointed executor by the court in California, and as such he on January 14, 1929, paid to the widow, Louise Bergmann, $16,500, and on May 13, 1930, $7,500 on account of her distributive share of the deceased’s estate under the antenuptial agreement.

The executor filed his final account in the California court; objections to it were filed by the widow, Louise Bergmann, and the court ordered the executor to charge himself with an additional $87,000 evidenced by securities. The court found that the deceased left personal property of the value of $215,150.74; that his widow, Louise Bergmann, under the antenuptial agreement was entitled to one-third of this, or $71,716.91.

An appeal was taken to the Supreme Court of California. Afterward the parties entered into an agreement whereby the judgment of the trial court was to be reversed, in consideration of which the widow accepted $60,000 worth of securities in addition to the partial distribution made to her, as above mentioned, in full of all claims she might have against the estate, and to all of her claims which she had under the antenuptial agreement, excepting therefrom the securities involved in the instant case.

It is conceded that the antenuptial agreement was in full force and effect on March 6, 1928, the date of the death of Fred H. Bergmann, and that the widow, Louise Bergmann, received all she was entitled to under that agreement except that she claimed she was entitled to receive one-third of the securities of the face value of $20,000.

The trust agreement entered into between Fred H. Bergmann and the Foreman Bank as trustee was valid and binding although Fred H. Bergmann reserved the income of the securities ini trust during his lifetime, and although he also reserved the right of revocation; Kelly v. Parker, 181 Ill. 49; People v. Northern Trust Co., 289 Ill. 475; Bear v. Millikin Trust Co., 336 Ill. 366; Gurnett v. Mutual Life Ins. Co. of New York, 268 Ill. App. 518, and this seems to be conceded. But counsel for complainant contends that “her deceased husband, by his antenuptial agreement, barred himself from making any gifts, trusts or grants of his personal property in any form whatsoever, during his lifetime, and whereby the wife, as widow, should be prevented from receiving the agreed share of one-third of the personal property of her husband.”. We think this contention cannot be sustained because it is clear that when Fred H. Bergmann delivered the securities to the Foreman Trust and Savings Bank as Trustee, he did not do so to defraud the complainant but was acting in entire good faith in making provision for his two grandchildren, and the securities were not unreasonable in amount.

It is undisputed that complainant and her deceased husband lived harmoniously as husband and wife until his death. In his will he expressly stated he made no provision for her because of the antenuptial agreement. She obtained in settlement of his estate $24,000 in money and securities of the face value of $60,000. Although at the time the antenuptial agreement was made, Fred H. Bergmann had personal property of but $20,000, it must be presumed, in the absence of any evidence to the contrary (and there is none in the record), that the antenuptial agreement spoke the truth and that he made most of his money after the marriage.

Where a man has entered into an antenuptial agreement with a woman who becomes his wife to give her a proportional part of his estate, he may make gifts during his life without breaking the agreement if the gifts are made in good faith and are reasonable in amount. Eaton v. Eaton, 233 Mass. 351; Dickinson v. Seaman, 193 N. Y. 18.

In the Eaton case the court in discussing this question said (p. 375): “The true rule, fairly to be deduced from the weight of authority and resting on sound reason, is that a man, who has entered into an antenuptial agreement with a woman, who becomes his wife, to give her by will a proportional part of his estate, may without breaking his agreement make gifts during Ms life in good faith and reasonable in amount having regard to all the circumstances, but he cannot make gifts either absolutely, conditionally, indirectly or otherwise for the main purpose of defeating his agreement and preventing it from operating for the benefit of his wife. The motive in such a case affects the validity of the transaction because it determines ‘the extent of a privilege to infringe upon the admitted right of another.’ ” In that case the court quoted with approval from the Dickinson case, supra.

In the Dickinson case, supra, it was contended that by reason of an antenuptial agreement made between plaintiff’s mother and the deceased, plaintiff became entitled to all of the deceased’s property at the time of his death without any reduction through gifts made during his lifetime. The court there said (p. 24): “It is asked, however, whether the decedent could give away all his property to his own relatives, and thus defeat the antenuptial contract altogether. And, assuming that he could not do this because it would be unreasonable, it is further asked where the line is to be drawn between the power to give away all and to give away nothing. That line is to be drawn where the courts always draw it when they can, along the boundary of good faith. If the decedent had given away property with furtive intent, for the purpose of defeating the antenuptial contract and of defrauding the plaintiff, the gift would have been void. No such fact is alleged in the complaint. No case of fraudulent intent or fraud, in fact, is presented by the plaintiff. Her theory is that any gift, or at least that any substantial gift by the decedent, even if made with the best of intentions, was unauthorized and void. We do not so read the contract. Any gift made with actual intent to defraud would be void, but none made without such intent, unless so out of proportion to the rest of his estate as to attack the integrity of the contract, when it would be fraudulent as matter of law. The gift might be so large that, independent of intent or motive, fraud upon the contract would be imputed. . . . Reasonable gifts were impliedly authorized. Unreasonable gifts were not, even if made without actual intent to defraud. In the absence of intentional fraud, the question is one of degree and depends upon' the proportion that the value of the gift bears to the amount of the donor’s estate. The plaintiff alleges that the decedent accumulated a large fortune and had it at the time of his death, and if so a gift of $10,000 made in his lifetime to his brothers and sisters would not be a fraud upon the contract as matter of law, for it would not be unusual or unreasonable for a man so situated to make a gift of that amount to near relatives. ’ ’

In the instant case there is entire absence of fraud, but on the contrary the trust agreement and all of the acts and doings of the deceased show the utmost good faith. And the provision made by him in the trust agreement for his two grandsons is not unreasonable in amount.

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Hatchett, P. J., and HcSurely, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Hall Wilson, J.,

license: Public Domain

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts, v. Bryn Mawr State Bank. In re Claim of Harry A. Walker, Appellee, v. Irwin T. Gilruth, Receiver of Bryn Mawr State Bank, Appellant.
    Gen. No. 36,360.
    Wilson, J., dissenting.
    Opinion filed February 7, 1934.
    Rehearing denied February 26, 1934.
    Kirkland, Fleming, Green & Martin, for appellant; Adrian L. Hoover, Dudley F. Jessopp and Joseph B. Duggan, of counsel.
    F. E. Brightman and Edward D. Feinberg, for appellee; Edward D. Feinberg, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal from an order of the superior court of Cook county entered June 28, 1932, directing Irwin T. Grilruth, receiver of the Bryn Mawr State Bank", to pay Harry A. Walker the sum of $2,235.01 as and for a preferred claim to be paid out of the receivership estate of said bank.

The claim of Walker was filed with the receiver on August 19, 1931, and recites in substance that on the morning of Tuesday, June 9, 1931, Walker made a deposit in the Bryn Mawr State Bank, which was received and accepted by one Schneider, a paying and receiving teller of this bank; that he, Walker, then asked Schneider what his, Walker’s, checking balance was with the bank; that after referring to the books, Schneider informed Walker that his balance was $2,255.54, and that thereupon Walker drew a check on the bank for that amount, presented it to Schneider and demanded its payment, and that Schneider then informed Walker that the check must be “O.K’d.” by an officer of the bank; that thereupon Walker presented the check to one Hennessy, the assistant cashier of the bank, and that “Hennessy endorsed his approval for payment thereon,” and that Walker again presented the check to Schneider and requested that it be paid; that Schneider took a package of bills and started counting them out to the undersigned in payment of said check”; that Schneider then stepped to a telephone to answer a call, then returned and told Walker that the check would not be paid; that after a conversation between Hennessy, the cashier, and Schneider, the teller, Walker was informed by the cashier that the check would not be paid, that the bank was going to close and “was in the hands of the State,” and that after some conversation about his deposit Walker was informed that the bank had closed and that he should leave, which he did shortly thereafter.

Walker testified at the hearing on the petition for the allowance of his claim against the bank. He stated that when he presented his check to the teller after it had been “O.K’d,” by the cashier, the teller took up a bunch of bills and that “I know he counted it all out there”; that Hennessy and Schneider then had a talk and that Schneider then informed the witness that the bank would pay back the deposit which the witness had just made amounting to $249.00, which was done. On cross-examination, the witness testified that the amount of his check had all been counted out by the teller at the time the witness was informed that the check would not be paid.

Schneider, the teller, testified that when the check was presented after it had been “O.K’d.,” he “had not counted out the full amount of the check,” and that the reason he had informed Walker that his check must be “O.K.’d” by an officer, was because the rule of the bank required such a procedure when a customer was drawing out his entire balance.

It was stipulated by the parties that at the time the bank closed, claimant’s balance on deposit was $2,235.01, which was less than the amount of claimant ’s check, and that the rights of the claimant should and would not be prejudiced by this difference, provided the claimant limited his claim to the amount of $2,235.01.

The receiver insists that the relationship between the claimant and the Bryn Mawr State Bank at the time the bank was closed was that of debtor and creditor, and that the circumstances in connection with the refusal of the bank to cash claimant’s check as shown by the evidence, gave the claimant no right to priority of payment over general creditors of the bank; that the demand for payment, and the “O.K’ing” of the check by the cashier did not chang-e the relationship and make the bank a trustee of claimant’s deposit so as to constitute it a trust fund. The claimant’s position is that in view of the fact that the bank was seemingly solvent and open and doing business when the check was presented, and its payment demanded and refused, that thereby his deposit became a trust fund; that the bank held it as trustee, and that such claimant is entitled to a priority over the general creditors of the bank.

In 7 Corpus Juris, sec. 326, page 641, it is said:

“The relations between a bank and a depositor may be dual in character, the.bank being the depositor’s debtor with respect to one thing and his agent with respect to another, or his debtor at one time and his agent at another; and while the relation between the bank and a depositor in respect to a general deposit is generally regarded as that of debtor and creditor, yet in another sense the depositor is the owner of the deposit, in that he can demand repayment at any time.”

The relationship between a bank of deposit and its depositors in this State is construed and defined in People v. Farmers State Bank, 338 Ill. 134, as follows:

“As to whether or not the account was a trust fund under the facts in this case depends primarily upon the kind of deposits made by plaintiff in error. There are but two kinds of deposits: special and general. The former include those where the bank becomes a trustee for a depositor by special agreement or under circumstances sufficient to create a trust, and general deposits are those Avhere the bank merely becomes the debtor of the depositor. As a rule, when money is deposited in a bank, title to such money passes to the bank. The bank becomes the debtor of the depositor to the extent of the deposit, and to that extent the depositor becomes the creditor of the bank. Such deposit then constitutes a part of the assets of the bank, and in case of insolvency of the bank that deposit belongs to the creditors of the bank in proportion to the amount of their respective claims. Well recognized exceptions to this rule are, first, where money or other thing is deposited with the understanding that that particular money or thing is to be returned to the depositor; second, where the money or thing deposited is to be used for a specifically designated purpose; and third, where the deposit itself was wrongful or unlawful. ’ ’

In this latter case, it was held that where the treasurer of a school district deposited school funds in the savings account of a bank with no direction that the funds should be kept separate and apart from other funds, that therefore such deposit was general and the depositor was not entitled to a priority of claim over the general creditors of the bank.

The rule as stated in this latter case seems not to be in issue here, and the only question to be determined is whether or not the claimant’s deposit acquired a different character because of his presentation of his check, under the circumstances in evidence, at a time when the bank was apparently doing business as usual. It seems not to be disputed that the Bryn Mawr State Bank was insolvent on the 9th day of June, 1931, the day upon which claimant presented his check. The bill filed in the superior court of Cook county ex rel. Oscar Nelson, auditor of public accounts, a part of the record in this court in the instant case, recites that on June 9th, 1931, the auditor had determined that the resources of said bank as set forth in the . . . bill, and as carried on the books of said corporation, were erroneous, and did not, correctly reflect the true value thereof and that the value of certain items of resources in said bank did not equal the amounts respectively for which such resources were carried on the books of the corporation. It is further recited in this bill that on the 9th day of June, 1931, the bank was indebted to depositors, and on account of bills payable and discounts in the sum of $690,997.84, and that as a result of said examination and investigation the auditor determined that the resources of the bank, as carried on the books of the corporation, were erroneous, and did not correctly reflect the true value thereof, and that the value of certain items of resources did not equal the amounts respectively for which said resources were carried on the hooks of the corporation. It is further alleged that the capital stock of the bank had become so impaired that the condition of the bank was such that the impairment of the stock could not be made good, and that the bank was being conducted in an unsafe manner, and that on account of and by reason of the condition of the bank, Oscar Nelson, auditor of public accounts of the State of Illinois, did on the 9th day of June, 1931, assume control of the bank. The morning of June 9th, 1931, was the time when the check was presented for payment.

Cahill’s Ill. Rev. Statutes, 1931, ch. 16a, ¶ 11, under which the examination of the bank in question, and the assumption of control of such bank as hereinbefore set forth were made, provides for the liquidation of the bank, and provides that the auditor shall appoint a receiver and “cause notice to be given by advertisement, . . . calling on all persons who may have claims against such bank to present the same to such receiver and to make legal proof thereof. From time to time the Auditor of Public Accounts shall make a ratable dividend of the moneys collected by such receiver on all such claims as may have been proven to his satisfaction or adjudicated in a court of competent jurisdiction, and as the proceeds of the assets of such bank are collected, shall make further dividends on all claims previously proved or adjudicated.” (Italics ours.)

From the record, it seems evident that the examination of the affairs of this bank by the auditor had been completed at about the time when the claimant presented his check for payment, and the statement by the cashier to the claimant that the bank “was in the hands of the state” at the time the payment of claimant’s check was refused, indicates that the auditor had then assumed control of the bank, under the authority provided by the statute. There is nothing in the record to the contrary.

In 7 Corpus Juris, see. 542, page 749, cited by appellee, it is said:

“The relation which the depositors of an insolvent bank bear to the funds which have been, or are to be, distributed by order of court is fixed as of the time when the superintendent of banks closed the bank and took possession of its assets.”

Under the circumstances, the officers of the bank had no discretion in the matter. It was their duty to refuse payment of the check. We are of the opinion that the court was in error in entering the order directing the receiver to pay the Walker check as a preferred claim.

The order of the superior court is reversed.

Reversed.

Hebel, J., concurs.

Wilson, J.,

dissenting: I am not in accord with the majority opinion. At the time Walker presented his check for payment, the bank was open and doing business. It is the legal obligation of the bank to pay upon demand and its refusal so to do is an adverse holding of the money as against the depositor. Whether the bank closed its doors under an order an hour later or a week later would in my opinion make no difference as to its legal liability. When the bank refused to honor the check, it held the money of Walker deposited with it as a trust fund subject to whatever future contingencies might arise. The fact that he was directed to go to the cashier to get an O.K. on the check did not relieve the bank of the liability after Walker’s original demand for the full amount of his deposit. Claxton v. Cantley (Mo. App.), 297 S. W. 975; Bryan v. Coconut Grove Bank & Trust Co., 101 Fla. 947, 132 So. 481, 134 So. 229; McQueen v. Randall, 353 Ill. 231; People v. Peoples Bank & Trust Co. of Rockford, 353 Ill. 479.


author: Mr. Presiding Justice Hall

text:
    The People of the State of Illinois, Defendant in Error, v. Alma Miller, Plaintiff in Error.
    Gen. No. 36,404.
    Opinion filed February 7, 1934.
    Samuel B. Rabinoff and Alfred G. Brile, for plaintiff in error; Elwyn E. Long, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Otho S. Fasig and Edward E. Wilson, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal from-a judgment of the criminal court of Cook county, finding the defendant guilty of the crime of assault, with a deadly weapon, and sentencing her to confinement in the common jail of Cook county for a term of 90 days and imposing upon her a fine of $1. The case was heard before the court and a jury, upon an indictment charging defendant with the crime of which she was found guilty.

The record discloses that two deputy sheriffs, Frank P. Bollins and Walter Blyth, on April 29, 1932, were attempting to serve a writ of replevin on defendant and her husband at 1238 West 74th Place in the City of Chicago, the home of defendant. The evidence is to the effect that these officers went to this place, one of them rang the door bell, and that they received no response from the occupants of the house. Bollins testified in substance that the husband of the defendant came out of the basement door and asked the bailiffs what they wanted, and that Bollins then said they were deputy sheriffs, gave Miller two copies of a writ of replevin, and that Miller directed his child who was with him to give these copies to the child’s mother, the defendant. Bollins further testified that defendant then opened a window, took the copies and there and then informed the deputy sheriffs that she, defendant, had been advised by her attorney not to allow the deputy sheriffs to enter the house. Bollins further stated that he had informed the Millers who he and the other officer were, and that it was the duty of a deputy sheriff to serve the writs and seize certain furniture, and that Miller then replied: “If anyone goes near the door, we will plug them”; that the police were then called by the deputy sheriffs; that thereafter he, the witness, tried the door of the house and asked defendant to open it, and called to her that they were officers, and in reply, a voice from the inside, which he afterwards identified as that of defendant, shouted: “I don’t care who you are, and I will blow your damn heads off if you come in. ’ ’ This witness further testified that Officer Blyth then informed the witness that the window of the house was open, and that at that time, he, the witness, was standing about two feet from this window, a bay window on the porch, and that at that moment he heard a shot which came through the window; that the shot struck his vest and his index finger, and that afterward his hand was bleeding, and that he saw the defendant at this window standing back of a curtain while the conversation was going on outside of the house.

Walter Blyth, the deputy sheriff who was with Rollins, testified in substance that after the police came he called out that they were officers and demanded admission to the house, and that defendant replied: “I don’t care who you are, you are not coming in here. If you come in, I am going to blow your damn heads off.” This witness further testified that the window from which the shot was fired was partly open; that it was open enough to enable him to put his fingers under it, and that he had placed his hands under it and had thrown it further up, and that just at that moment a shot was fired through the window from within, which struck and wounded Rollins. The testimony of these two officers is corroborated in most respects by three police officers who were' present.

Defendant testified in substance that on the morning of April 18, 1932, about 9:30, she and her husband were in bed sleeping, when she heard a knock at the door; that her husband put on his clothes, went out and did not return; that she called out “get away from that door and don’t try to break it down” and that someone from the outside stated that if the door was not opened, he would break it down. Defendant stated that she had a gun in her hand as she went to the front door? and that someone was trying to break open the window; that the window was almost closed and the shades were down; that she tried to push the window clear down and that at that moment, she had the gun in her hand, and that it exploded; that she never heard anyone say: ‘ ‘ Open the door, we are police officers or deputy sheriffs.” Defendant further testified that she was not aware of the fact, nor did she hear anyone state, that the persons who were seeking entrance to her dwelling were officers, armed with a writ of replevin; that all she heard was the statement made by someone that unless the door was opened, it would be broken in. She admits that she had the pistol and that a shot was fired, by which Eollins was wounded.

The writ of replevin upon which the officers were attempting to make a levy when the shooting occurred, was offered and received in evidence without objection. It is contended by the defendant that the affidavit upon which the writ issued should also have been before the court. The writ is in the ordinary form, and it will be presumed, until the contrary appears, that the statute requiring an affidavit showing certain facts had been complied with before the writ issued. Further, the law states:

“It is not essential that the writ should disclose the fact that the property to be replevied belonged to plaintiff or had been impounded or distrained; nor need the writ show that the affidavit required by the statute had been made by plaintiff. Mere irregularities or informalities will not ordinarily invalidate the writ, and if it is regular on its face, it will protect the officer who serves it because it is his duty to execute such process without investigating the cause of action.” (Italics ours.) 54 Corpus Juris, p. 488.

In Brother v. Cannon, 1 Scam. (Ill.) 200, the Supreme Court of Illinois said:

. “In an action against an officer for an escape on process sued out, and placed in the officer’s hands to execute, or in an action for a false return, or for a refusal to execute such process, it is no justification for suffering an escape, or for making* a false return, or for a refusal to execute such process, that the forms of law in suing out such process, have not all been observed. If the process be regular on its face, and it be not absolutely void, having been issued without the authority of law, the officer can never be made a trespasser, although it may have been erroneously issued; and he is bound to execute the process, although it may have been erroneously sued out. If the magistrate had jurisdiction of the subject matter, the officer was not bound to inquire further into the accuracy of his proceedings, but should have proceeded to obey the mandate of the warrant. In a case in England, (1) Kenyon, Chief Justice, says: ‘It is incomprehensible to say that a person shall be considered a trespasser who acts under the process of the court.’ ” (Italics ours.) See also People v. Mines, 164 Ill. App. 658.

The briefs here are of slight assistance.

The only question presented for review is, whether or not, under the evidence adduced, defendant was justified in shooting the officer, as he with another officer was attempting to enter her house in the manner described by the evidence for the purpose of serving a writ in a civil proceeding.

The evidence of moment is to the effect that the window through which an entrance was attempted was partly open, and that Deputy Blyth was in the act of pulling it further up when defendant shot through the window and struck and injured Deputy Rollins. The officers both testified that defendant was fully apprised of their purpose in seeking an entrance to her home, and of the fact that they were armed with a legal process, and appellant’s brief does not suggest that she was not so apprised.

Counsel for defendant cites Snydacker v. Brosse, 51 Ill. 357, where suit was brought against a constable who was attempting to serve an execution, in which it is charg-ed that a wrongful entry to her home was made by the constable, and that he, the constable, abused his power after entrance was made. In its opinion, the court states that the constable forced an entry through a door or window to obtain entrance, and said:

“It is a uniformly recognized rule of the common law, that no officer has the legal authority to break an outer door, or other outside protection to an individual’s house, for the purpose of executing civil process. Even to arrest a defendant on civil process; the officer must corporally seize or touch the defendant’s body, and thus render him a prisoner, before he can justify the breaking and entering the defendant’s house to retake him; otherwise, he has no such power, but must watch his opportunity to arrest him; for every man’s dwelling house is looked upon by the law as his castle of defense and asylum, wherein he should suffer no violence. 3 Black. Com. 288. And in the execution of civil process against the goods of a defendant, an officer is equally powerless to force an entrance into the house of the defendant for the purpose of seizing them. Blackstone says, a sheriff may not break open any outer doors to execute either a fieri facias or a capias ad satisfaciendum; but he must enter peaceably, and may then, after a request and refusal, break open any inner doors belonging to the defendant, in order to take the goods. 3 Bl. Com. 417. And what is said of these writs is believed to be true of all civil process; and it follows, that the writ of retorno habendo conferred no right on any constable to break an outer door or a window to effect an entrance into appellee’s house. On a warrant for the árrest of a person charged with a felony it is otherwise, as the officer may then break open doors, if necessary, to make the arrest. 4 Bl. Com, 292.”

Upon the authority of that ease, counsel for defendant urges that the court erred in giving the following instruction:

‘ ‘ The court instructs the jury that a duly-authorized process-server has a right to serve the process of the court peaceably and without use of force and without making a forcible entry. He has a right to demand admittance and to execute a replevin writ. He has a right to enter through a door that opens without force or through a window partly open without breaking or force.”

In Palmer v. King, L. R. A. 1916 D 278, 41 App. D. C. 419, suit was brought for alleged breach' of a covenant in a bond given by a surety company conditioned that the marshal of the District of Columbia and his deputies would faithfully perform all the duties of their respective offices. In that case, a deputy marshal, seeking to serve a writ of replevin, rang the bell of the basement of a house to which he sought admission. Plaintiff, a woman, appeared at an open window and suggested to the marshal that her husband was absent, and that he, the marshal, should deliver the papers to her. The marshal thereupon attempted forcibly to climb through the window. Plaintiff resisted such attempt, and it was claimed that in forcing his way through the window into the room, and after he had entered, the officer assaulted the plaintiff, and that she was thereby injured. On appeal from a judgment for plaintiff, the court said, among other things:

“The rule of the common law in respect to the execution of the writ of replevin, as disclosed in Semayire’s case, has been approved in many English cases. In Lee v. Gomel, Cowp. pt. 1, p. 1, Lord Mansfield, after holding- that the entrance of an officer through an open outer door or window to execute civil process must be quiet and peaceable, said: ‘The sound maxim of policy is this, “that a greater evil should be avoided for a less, and that a less good should give way to a greater.” The outer door, therefore, or window of a man’s house, says the law, shall not be broken open by process. This has been long and well understood. The ground of it is this: that otherwise the consequences would be fatal; for it would leave the family within naked and exposed to thieves and robbers. It is much better, therefore, says the law, that you should wait for another opportunity than do an act of violence which may probably be attended with such dangerous consequences.’

“The rule of the common law, as deduced from the cases, seems to be that an officer, in executing a writ of replevin, may not break an outer door or window of a dwelling to gain entrance to seize the property of the occupant or of a person rightfully domiciled therein. He may enter either an open outer door or window, provided it can be accomplished without committing a breach of the peace; he may then, after a request and refusal, break open any inner doors belonging to the defendant, in order to take the goods. 3 Bl. Com. 417; Semayne’s case, 5 Coke 91, 1 Smith, Lead. Cas. 238.” (Italics ours.) In that case, the judgment was affirmed upon the ground that the officer committed a breach of the peace.

There is no evidence of a breach of the peace by the officers here. Under the evidence adduced, the court was not in error in giving the instruction complained of.

Error is also assigned by defendant because of the refusal of the court to give the following instruction tendered by defendant:

“A person may repel force by force in defense of person, property, life or habitation against one who manifestly intends or endeavors by violence or surprise to commit a known misdemeanor or felony, or either, or to do great bodily injury to her person, or to enter her home by force or violence, and the danger which would justify the defendant, if the act is aimed against her, may be either real or apparent; and the jury are not to consider whether the defendant was in actual peril of her life or property, but only whether the indications were such as to induce a reasonable woman to believe that she was in such peril of person or property. And if she reasonably believed, and had sufficient cause to believe, and committed the act complained of under such belief, even though it should appear that the injured was not armed, you should acquit the defendant. ’ ’ This instruction is offered upon the theory that defendant had reason to believe that an unlawful assault was about to be committed upon her, and that she was, therefore, justified in shooting the officer. There is nothing in the evidence which indicates such an intent by the officers. It was not error to refuse it. The officer might have been killed by defendant, and defendant could then just as reasonably have pleaded justification, as she attempts to do under the circumstances here present, and the question as to whether or not she was justified in firing the shot which wounded him is the same whether he was killed or wounded, and her culpability, or lack of it, is the same in either case. In firing the shot which wounded Rollins, defendant’s intent was determined by her act. The statute (Cahill’s Rev. St. ch. 38, ¶ 345) defines justifiable homicide as follows:

“Justifiable homicide is the killing of a human being in necessary self-defense, or in the defense of habitation, property or person, against one who manifestly intends or endeavors by violence or surprise to commit a known felony, such as murder, rape, robbery, burglary and the like, upon either person or property, or against any person or persons who manifestly intend and endeavor, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein. A bare fear of any of these offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.”

Cahill’s Rev. St. 1933, ch. 38, ¶ 346, provides:

“If a person kill another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given.”

In People v. Mines, 164 Ill. App. 658, the defendant was indicted for an assault upon a constable, who was endeavoring to serve a writ of restitution upon the defendant. Trial was had and defendant was sentenced to imprisonment for six months in the county jail, and to pay a fine and costs of the suit. The facts in that case are substantially as follows: A judgment was obtained against defendant in a forcible detainer suit, a writ of possession was issued by the magistrate directed to the sheriff or any constable of Lake county, commanding them to dispossess the defendant. The writ was delivered to a constable to serve upon the defendant, together with a notice to vacate. Thereafter, the constable, with the writ, went to the house of the defendant with an assistant, knocked on the front door and demanded admission. Defendant appeared at an upstairs window and the constable told defendant he had a writ of possession, and requested him to come down and let the parties in, which request defendant refused to comply with, and thereupon the constable said to defendant, “If you don’t come down and open the place, I am coming in, ’ ’ to which defendant replied, “If you do, there will be a funeral,” and in reply to this statement the constable stated, “Well, if we have one funeral, we will have two. ’ ’ Thereafter, the constable went to a back door of the house and found the door fastened by a chair being placed against it on the inside. The constable pushed the door open until he reached the chair and removed it, then opened the door and entered the house. He started for a stairway leading upstairs, and defendant, who was about 16 feet away, discharged a shotgun and about 43 shots lodged in the constable’s leg. On appeal, error was assigned on the refusal of the trial court to give certain instructions offered by the defendant, and the court said:

“Plaintiff in error’s refused instructions 24 and 25 were offered on a theory that Peterson and his assistants were, while executing the writ of restitution, engaged in an unlawful assault upon the habitation of plaintiff in error. As the evidence clearly discloses that they were acting within the authority conferred upon them by the writ, and in discharge of a duty imposed upon them by law, the refusal of the instructions was not error. ’ ’ In that case, in commenting upon the question as to whether or not the defendant could have raised the question as to the sufficiency of the writ, when upon its face it indicated that it was properly issued and thereby justify his assault on the officer, the court said: “But again, even if the judgment was defective and that defect would give the defendant in the writ a right to resist, it would give him no right to kill the officer, where there has been no violence used against his person. Criminal Code, Sec. 148.” (Defining justifiable homicide.) In this case, the officer was attempting to serve a writ, which he was commanded to serve. The sheriff would have been civilly. liable if he had refused to make a legal levy, which in our opinion, he was attempting to do when defendant shot him, without any justification.

The cause was fairly submitted to the jury, and we see no reason to disturb the verdict and judgment.

Therefore, the judgment is affirmed.

Affirmed.

Wilson and Hebel, JJ., concur.


text:
    Central Republic Bank and Trust Company, Complainant-Appellant, and Lott Hotels, Inc., Defendant-Appellant, v. Joseph F. Connery, Receiver, Appellee.
    Gen. No. 36,506.
    Opinion filed February 7, 1934.
    Rehearing denied February 26, 1934.
    Poppenhusen, Johnston, Thompson & Cole and Harris F. Williams, for appellants; Edward R. Johnston, of counsel.
    Michael F. Ryan, for appellee; H. J. Rosenberg, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal from an order and decree of the circuit court of Cook county by which an allowance of fees was made to a receiver of certain properties for his own services, together with fees for his solicitor. The appointment of this receiver was made in a series of foreclosure proceedings instituted against various hotel properties, both real and personal, owned by Lott Hotels, Incorporated. Four foreclosure suits are involved, and in the trial court the four cases were heard together as one cause, and by order of this court, they have been consolidated for this hearing. The records in the four cases are identical. The order appealed from covers all four cases.

The services of the receiver and his solicitor are for a period beginning August 21, 1931, and ending August 31, 1932, or for a year and 10 days. During this period the receiver had already filed two current reports and accounts, and prior to the entry of the order appealed from, he had been allowed and paid the sum of $18,000 for his own fees, and $6,000 for his solicitor. The account and report involved here is the third presented by this receiver in and by which he asks for an additional allowance of fees for himself as receiver in the sum of $27,000, and an additional allowance for his solicitor of $8,500, which sums, if allowed and paid, would make a total for the receiver and his solicitor, of $59,500, for the period mentioned. It is insisted by the Central Republic Bank and Trust Company, the complainant in the various foreclosure proceedings, that the previous allowance of $18,000 for the receiver and $6,000 for the solicitor, are sufficient compensation for the period mentioned, to wit: one year and 10 days.

By the order appealed from, after a hearing, the court on November 12,1932, made an additional allowanee for the receiver in the sum of $18,000, and for his solicitor the sum of $6,000, which makes a total allowance for the receiver and his solicitor for the year and 10 days, $48,000, $36,000 for the receiver and $12,000 for his solicitor.

The order appealed from was entered on November 22, 1932, and recites among other things that Joseph F. Connery was appointed receiver for three hotel properties on August 21, 1931; that the receiver filed his current report and account covering the period from August 21, 1931, to and including January 31, 1932; that the same was approved by the court on April 13, 1932, and on that date the court allowed the receiver the sum of $12,000 on account of his services from August 21, 1931, to and including January 31, 1932, and in addition, the receiver was directed to pay his solicitor the sum of $6,000 to apply on account of legal services for the period mentioned; that said receiver filed his second current report and • account covering the period from February 1, 1932, to and including April 30, 1932; that the same was approved by order of the court on July 1, 1932, and an order was entered allowing the receiver the sum of $6,000 to apply on account of the receiver’s fees during the period covered by his second report and account, and that no allowance be made on account of the solicitor’s fees for the said period; that the third current report and account of receiver covers the period from May 1, 1932, to and including August 31, 1932. This last mentioned period is the one in dispute. The order further recites that the total cash receipts from operations of the three hotels by the receiver for the period beginning August 21,1931, and ending August 31,1932, were $890,174.82, and that the operating expense, exclusive of taxes, receivership expenses, and insurance premiums during the said period was $782,741.45. The order also recites that during the period beginning February 1, 1932, to and including April 30, 1932, the receiver made large conservations in cash outlays, due to a downward revision of wage scales, decrease in merchandise costs, reductions in the cost of printing, insurance premiums, pay rolls and other expenses, and has effected conservation and savings in operations in the amount of approximately $200,000 that will inure to the benefit of the receivership. The order also recites the alleged facts as to the service of the solicitor for the receiver.

Prior to the appointment of the present receiver, and since April, 1928, there have been five receivers of these properties, and these five receivers, in addition to the fees of the present receiver, have been paid $192,500'. This includes compensation for receiver’s solicitor, he being the same' solicitor who represents the present receiver.

The policy of these receivers, or some of them, seems best illustrated by what is said in the Gospel of St. Matthew, 25th Chapter, 29th Verse: “For unto everyone that hath, shall be given, and he shall have abundance ; but from him that hath not, shall be taken away even that which he hath.”

In this receiver’s first current report and account he reports that he made a complete and exhaustive survey of the financial operating aspects of these hotels, including an examination of the books of account; that he made a survey of trade conditions of the hotel industry in Chicago and in the neighborhood and district of the properties in question; that he consulted with various hotel operators in Chicago, all with a view of determining a safe, progressive and economical policy with reference to management; that as a result thereof the receiver decided upon a policy of conservation in the operation of the properties and the avoidance of experiments in regard to management and operation which might disturb labor conditions throughout the property, or create unrest and uncertainty among the patrons; that when the receiver took over the properties, there was a managing director at a salary of $12,000 a year, and that he remained in charge for several months; that the receiver, in the interest of economy, dispensed with the services of the managing director; that the receiver made drastic cuts in pay roll expenses and other items of expense, including coal, and by the strictest economy, has brought the expense of operation to a minimum; that while the receipts were 120,000 odd dollars less as compared with the corresponding months of the previous year, the operating expense, repairs, maintenance, etc., were 85,000 odd dollars less; that the receiver made drastic cuts in wages, and in the number of help employed, and took advantage of discounts that had heretofore not been taken advantage of; that he made an investigation with reference to reduction of fire insurance; that when he took charge of the hotels the average occupancy of all three hotels was 53.30 per cent; that during the period covered by his first current report and account, the average occupancy was 57.83 per cent; that he made a campaign to secure new business from the World’s Fair held in 1933, necessitating some promotional work by the receiver; that the receiver continuously and personally supervised the payment of all bills and all operations of the receiver, and held daily meetings with the managers of all three hotels, examined all vouchers and checked on vouchers drawn for payment of bills; that because of the drastic cuts in expense of operation, it has resulted in a great saving to the receivership; that he has dispensed with the necessity of applying to the court for the issuance of receivership certificates for the purpose of borrowing money during this unusual financial distress and depression; that the record óf the business of all three hotels will compare more than favorably with that of any hotels of like character in the city.

In his second current report and account, it is asserted that the receiver has given personal supervision to the operation of the three hotels, and has diligently devoted his time and given his continuous attention to the operation of these hotels, has made cuts in pay roll expense, maintenance and operation, and has attempted by the strictest economy to bring the expense of the operation to a minimum.

In the third current report and account covering the period from August 21, 1931, to and including August 31, 1932, the period in question here, the receiver reported that he made conservations and savings in cash outlay, drastic cuts in merchandise costs, pay roll and other expenses, notwithstanding the fact that there had been a decrease in the revenue in the operation of the hotels. He reports a summary of cash receipts and expenditures from August 21, 1931, to and including August 31, 1932, as follows:

“Net cash turned over by previous receivers less prior receiver’s obligations paid $ 32,630.58

“Total cash receipts from operations 890,174.82

$922,805.40

Disbursements — ■

“For operating purposes $782,741.45

“For taxes, receivership expense and life insurance premiums 62,809.77

$845,551.22.

“Cash balance, August 31,

1932 $ 77,254.18”

He also reports that he made an efficiency survey at a nominal cost, and that he obtained valuable data and information on this subject from surveys made by other large hotels in Chicago without expense to the receivership, and that owing to the downward revision in wage scales, decrease in merchandise, reduction in printing, insurance premiums, pay rolls and other expense, a saving will be made in September, 1932, of an average in excess of $30,000 per year. He also submits various tables showing savings in pay rolls. The legal services for this period, for which he asks additional allowance for his solicitor, are noted in this report as well as in the previous reports.

The statement was made and not disputed that the receiver had paid 60 per cent of the 1928 taxes, 40 per cent of the 1929 taxes and 25 per cent of the 1930 taxes, and that further payment of taxes had not been made because of lack of funds.

There is nothing in the record which suggests that either the receiver or his counsel have been anything but diligent and efficient in the work performed by* them. However, it does appear, and it was stated to this court on oral argument, that there is employed by the receiver a hotel manager for each of the hotels in question, which, of course, relieves the receiver of the day to day detail of their operation.

In the matter of the receivership of Insull Utility Investment, Inc., heard recently in the District Court of the United States for the Northern District of Illinois, there was no objection to fees, but the District Court, by Justice Evan A. Evans, made some observations with regard to receivers’ and masters’ fees, and in view of the character and standing’ of Justice Evans, we deem portions thereof worthy of citation and consideration. In this case, one Fentress was appointed receiver of the Insull Utility Investment Corporation in a suit filed in the District Court for the Northern District of Illinois against this company. After his appointment as receiver in the main suit, he was appointed ancillary receiver in New York, and later appointed receiver in the bankruptcy proceedings instituted. in the Northern District of Illinois against this same company. He asks for compensation in all three receivership matters. The Insull Utility Investment Corporation had assets of $1,500,000 with which to meet unsecured debenture obligations of $66,000,000, as well as other debts. In passing upon the question of the receiver’s and master’s fees, Judge Evans said, among other things:

“Approaching the receivership position as one of honor and trust, as an officer of the court and an arm of the judge who appoints him, he must recognize that a substantial part of his compensation must be found in the opportunity to serve. He has, in other words, joined the ranks of those who are public servants, whose compensation never has been and never will be as large as those engaged in private employment. His compensation must in some ways be compared to the salary of the judge who was sitting on the bench when the appointment was made. An inquiry into the compensation of the United States District Attorney and the Postmaster is appropriate. The salary of the Chief Justice of the United States Supreme Court may well be viewed as the maximum which should be allowed. These are not the sole tests, but it must be recognized that receivers in the Federal courts are in their nature public officers and their compensation must be determined in the light of such facts. Unless the courts can secure the services of such men and unless courts insist upon the selection of such receivers, the task of meeting a situation such as has confronted the courts from 1929 to the present time" may well be surrendered to other bodies.

“Notwithstanding protracted, painstaking and for the most part excellent services rendered by the master and the large amounts involved in these causes, after viewing the records and considering the circranstances disclosed, we cannot doubt that the allowances ' ' are much too large — certainly twice and three times what they should be. If the time devoted to the entire service — 282 days — be accepted as equivalent to one year, the total allowance is fifteen times the salary of the trial judge and eight times that received by justices in this court. It may be compared to the compensation of the Mayor of New York City — $15,000, the salaries of the Governor and members of the Court of Appeals of New York — $10,000, and the $17,500 paid to judges of the Supreme Court in the City of New York. Although none of these can be taken as a rigid standard, they are to be considered when it becomes necessary to determine what shall be paid to an attorney called to assist the court. His duties are not more onerous or responsible than those often performed by judges.

“Another important factor in the compensation of the receiver is the time devoted to the work and the character of the work performed. Does such appointment exclude the appointee from carrying on other work? Is the appointee thus named, a receiver in other suits? Are the appointees engaged in business, and does the appointment terminate such participation? Another matter — Does the performance of the receivership call for special knowledge and special training? If so, does the receiver who is appointed qualify? A single illustration will suffice.- A president of a railroad has reached his position after forty years of service. He has devoted his entire life and all his time to the transportation business. His road goes into receivership, and he is named receiver. He continues to devote Ms entire time, and his experience is as valuable as a receiver as it was as president of the railroad. Under such circumstances, the court must of course consider the compensation which the appointee received as president of the railroad.

“And finally, in determining compensation, it must be kept in mind that 1933 is not 1929. The wages and salaries of all kinds were lower in 1932 than in the twenties. The difference must be reflected in the compensation of receivers and their counsel, as well as it is in the other fields.

“Mr. Fentress has presented his service charges in three statements. As receiver in equity, he charged and received $12,500. As receiver in ancillary proceedings, his bill is $7,500. As receiver in bankruptcy, he asks $10,000. In all three proceedings he served for a period of eleven months.

“Mr. Fentress devoted eleven months to all three services. He has received $12,500. He has not severed his connection with the business house of which he has been an officer. Considering what has been said, I am of the opinion that Mr. Fentress has received all the compensation the court should allow him. In other words, I fix the value of his services $12,500 in this case. This sum he has received. No further allowance will be made. ’ ’

In the instant case, an examination of the record shows that the services of the solicitor were largely in connection with administrative details of the receiver.

We hold that there was not sufficient showing to justify the amount of fees allowed to the receiver, either for himself or for his solicitor.

It might not be inappropriate for the trial court in making its order for fees, in connection with other matters presented, to take into consideration the salaries fixed by statute for the circuit and superior court judges of Cook county, and other public officials. However, no fixed standard can be adopted, and the circumstances of each case must necessarily guide the court.

It is urged that the order appealed from is not a final order in so far as it directs the receiver to retain certain sums as and for receiver’s fees and as fees for his solicitor, and a motion was made to dismiss the appeal for that reason, which motion has been reserved to the hearing. The portion of the order appealed from, which is of moment in this inquiry, is as follows:

“It is Further Ordered, Adjudged and Decreed that Joseph F. Connery, receiver in said four causes, be and he is hereby authorized to retain the further sum of $18,000, as receiver’s fees, for services rendered by the said Joseph F. Connery, as receiver of the Belden-Stratford, Webster and Parkway Hotels, in the above entitled causes, from August 21, 1931, to August 31, 1932.

“It is Further Ordered, Adjudged and Decreed that the said Connery, receiver in said causes, be and he hereby is further authorized to pay Michael F. Ryan, solicitor for said receiver, for services rendered by said Michael F. Ryan to the said Joseph F. Connery, receiver aforesaid, for the period from August 21, 1931, to and including August 31, 1932, the further sum of $6,000.”

In People v. Illinois State Bank, 312 Ill. 613, the question presented for decision was whether or not in an action brought to dissolve a bank and to collect and distribute its assets, an order which directs distribution of a substantial portion of those assets to the receiver or his solicitors and thereby diminishes the assets distributable to the credit of the bank, is final and appealable. In commenting upon this question, the Supreme Court said:

“While this court has not decided the precise question presented, it has repeatedly held that a final decree is not necessarily the last order in a case, and that any order which finally fixes the rights of the parties is final and appealable. (Sebree v. Sebree, 293 Ill. 228; DeGrasse v. Gossard Co., 236 id. 73; Allison v. Drake, 145 id. 500.) . . . Where an order fixes the amount of a receiver’s compensation or the amount due him for expenses and directs such amounts to be paid out of the fund in the receiver’s hands, an appeal lies from su,ch an ord.er upon behalf of any person interested in the fund. (Grant v. Superior Court, 106 Cal. 324, 39 Pac. 604; State v. District Court, 28 Mont. 227, 72 Pac. 613; Ogden City v. Bear Lake and River Waterworks and Irrigation Co., 18 Utah, 279, 55 Pac. 385; Tompson v. Huron Lumber Co., 5 Wash. 527, 32 Pac. 536; Battery Park Bank v. Western Carolina Bank, 126 N. C. 531, 36 S. E. 39; Capital City Tobacco Co. v. Anderson, 138 Ga. 667, 75 S. E. 1040.) The order from which this appeal was prosecuted is not an order which merely fixes the amount of the fee due the solicitors for the receiver, but it is an order which directs the receiver to pay the amount out of the fund in the receiver’s hands. It appropriates a part of the assets of the bank and thereby directly affects the interests of the creditors and the stockholders.”

In that case, the Supreme Court in addition to the cases cited above also cites the case of Ruggles v. Patton, 143 Fed. 312, where the Federal Court of Appeals said:

“The test of the finality of a decree affecting either the conduct or the compensation of a receiver is not found in the mere fact as to whether the receivership was thereafter continued, but in the nature and character of the order itself. When Mr. Patton was ordered to pay to himself out of the funds in his hands as custodian for the court the sum of $20,000 for his services for 1904, that sum of money was just as absolutely withdrawn from the custody of the court as if he had been ordered to pay it to a third person. The fact that he was then the court’s receiver, and that he continued to be the court’s receiver, gave the court no more authority to call hack a fund which he was directed to pay to himself, in the absence of a reservation to that effect, than it could exercise over any other party obtaining funds through an order of the court.”

In the instant case, the court very definitely orders the receiver to retain the sums mentioned as receiver’s fees, and to pay certain amounts as fees for his solicitor, which, in our opinion, is a finality in so far as these items are concerned, and we hold that the appeal was properly taken from such order. The motion to dismiss the appeal is denied.

The order of this court is that the order appealed from is reversed and remanded with the direction that the court enter such order as is consistent with the views herein expressed.

Reversed and remanded with directions.

Wilson and Hebel, JJ., concur.


author: Mr. Justice Hebel

text:
    Victor Frank, Successor Assignee to Union Bank of Chicago, Assignee of Estelle Daniels, Also Known as Estella Daniels, for Use of Millie Frank, Appellee, v. Central Mutual Insurance Company, Appellant.
    Gen. No. 36,515.

      Opinion filed February 7, 1934.
    Rehearing denied February 26, 1934.
    William Levine, for appellant.
    Frankel & Bloom, for appellee; Barnie E. Frankel, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal hy the defendant from a judgment for the sum of $1,074.96 entered on the finding of the court on a trial without a jury in an action of as- < sumpsit on an automobile insurance policy insuring Estelle Daniels against loss occasioned by the negligent operation of an automobile.

The original plaintiff in the suit was the Union Bank of Chicago, assignee of Estelle Daniels, for use of Millie Frank, and the declaration consists of one count, which sets up the policy and alleges that the assured, Estelle Daniels, through her servant and agent, ran into Millie Frank by reason of the negligent operation of an automobile; Millie Frank instituted suit in the superior court of Cook county, case number 516664, for personal injuries sustained thereby; that following the accident due and immediate notice was given to the defendant insurance company, and that Estelle Daniels fully complied with the terms of the policy; that the defendant defended in behalf of the said Estelle Daniels; that the said Millie Frank recovered a judgment on April 18, 1931, for $1,000; that an execution was issued, which was returned, “No part satisfied ’ ’; that on May 19,1931, a capias ad satisfaciendum was issued and on May 22,1931, was served upon Estelle Daniels, who filed a petition in the county court of Cook county, claiming the benefits of the provisions of the Insolvent Debtors’ Act, Cahill’s St. 1931, ch. 72, j[ 4 et seq.; that on June 6,1931, the plaintiff, Union Bank of Chicago, was appointed assignee of said Estelle Daniels, pursuant to the provisions of the Insolvent Debtors’ Act; that it accepted the appointment, filed its bond and qualified as assignee, and that plaintiff was subrogated to all rights of Estelle Daniels under the policy, and notwithstanding the performance on the part of Estelle Daniels of all things by her to be performed, defendant refused to pay the judgment. An affidavit of claim was attached to this declaration.

The defendant filed a demurrer, which was overruled, and it was ruled to plead. Thereupon defend-

ant filed a plea of the general issue and notice of special defenses.

The defendant as a special defense denied the assignment of the policy to the plaintiff, and filed an affidavit of merits.

On November 15, 1932, on motion of the attorney for the plaintiff, and it appearing to the court that the Union Bank of Chicago, the plaintiff’s assignee, was in the hands of a receiver and incapable of proceeding in this cause as assignee, by order of the county court of Cook county, Victor Frank was appointed successor assignee to said Union Bank of Chicago and qualified as such, and the praecipe and summons and all documents and pleadings filed in the cause here on appeal were amended to read, "Victor Frank, successor assignee to Union Bank of Chicago, assignee of Estelle Daniels, for the use of Millie Frank.”

No testimony was offered other than the documentary evidence of the plaintiff, which consisted of the papers filed in the cause of Millie Frank v. Estelle Daniels, in the superior court of Cook county, case number 516664, namely, the summons and praecipe, appearance, declaration, plea, verdict for $1,000, notice, and affidavit to place cause on the trial calendar, given and refused instructions, cost bill and execution, objections to the motion to set cause for trial, debtor’s schedule, affidavit for garnishment that Central Mutual Insurance Company is indebted to or has effects of the defendant, Estelle Daniels, in its hands; interrogatories to garnishee defendant; writ of garnishment; answer of garnishee defendant; amended answer of garnishee defendant; traverse of answer, and the policy of insurance. This being all the evidence offered by the parties, the court, at the conclusion of the hearing, found for the plaintiff and entered the judgment appealed from.

The defendant as to its first point contends that the evidence is not sufficient to support the finding for the plaintiff, and suggests that there was no. evidence of the assignment of the policy of insurance to the Union Bank of Chicago, the original plaintiff, and none as to any assignment to Victor Frank, who was substituted as successor assignee to the plaintiff.

There is in evidence the answer of the defendant as garnishee, which was sworn to by an officer of the defendant, and which states, in substance, that the proceedings were. had in the county court of Cook county, Illinois, in which Estelle Daniels filed a petition for her release under the provisions of the Insolvent Debtors’ Act, from the custody of the sheriff of Cook county by virtue of a capias ad satisfaciendum; that she filed a schedule of her assets and liabilities, which schedule included the insurance policy in the present proceedings, and that she was then ordered discharged by the county court of Cook county, as provided by law, and thereupon' the Union Bank of Chicago, a corporation, was appointed assignee of Estelle Daniels, and qualified as such; that the policy of insurance was delivered to said assignee; and it further appears from the answer of the defendant that title to the policy in question is admitted to be in the assignee. This admission by the defendant is sufficient, and is all the more conclusive when the defendant in the instant case in its answer ih the garnishment proceedings stated that all rights of Estelle Daniels under said policy belonged to the named assignee, and not to Estelle Daniels. It is to be noted that the defendant in its brief does not question the admissibility of the answer, but does question its sufficiency. It is the general rule that the admissions in a pleading by a litigant are proper when they tend to establish material facts, and what better proof could be offered than the answer made by the defendant in the garnishment proceedings as to facts material to the issues in the instant case ? The trial court did not err in the admission of the sworn answer of the defendant in the garnishment proceedings, and, as contended by the defendant, did not violate the rule that such sworn answer was not evidence of a court record; that the best evidence of the county court record is a certified copy of the proceedings. The evidence produced and admitted, however, was the original answer of the defendant.

The defendant also contends that the declaration alleged that immediate notice of the accident was given to the defendant and that the insured complied with all the provisions of the policy. There being a plea of the general issue and the affidavit of merits, which denied the allegation of performance, it was necessary for the plaintiff to prove the allegation as made in the declaration. The defendant’s plea was supported by an affidavit of merits, as required by Cahill’s St. (1929) ch. 110, sec. 55 of the Practice Act. This provision is, in part, as follows: ‘ ‘. . . the defendant . . . shall file with his plea an affidavit stating that he verily believes the defendant has a good defense to said suit upon the merits to the whole or a portion of the plaintiff’s demands, and specifying the nature of such defense. . . .” The provision has been held to mean that the purpose of requiring the affidavit of merits to set out the nature of the defense relied on, was to give the plaintiff notice of The real defense to be presented and to limit the issues to be tried to the defense set up in the affidavit; all defenses the nature of which are not set up in the affidavit are considered waived and are unavailable on the trial. The purpose of the defendant in refusing payment of the policy is set forth in the affidavit of merits, which is, in substance, as follows: That the defendant did not defend the suit in the superior court of Cook county, case number 516664, entitled Millie Frank v. Estelle Daniels, under the said policy, but, on the contrary expressly stated to the said Estelle Daniels that there was no liability on the said policy, and that it would not defend the suit because of the fact that at the time of the alleged injury to the said Millie Frank the said automobile was not being driven either by the said assured or by any other member of her family, or any of her duly authorized employees; that the said. Estelle Daniels admitted the said fact to be true, but requested the defendant to engage a lawyer for her, and that the defendant agreed so to do upon consideration that said Estelle Daniels release the defendant from all liability, or alleged liability, on the policy, and that the said Estelle Daniels then and there agreed so to do, and that only in pursuance of said agreement did the defendant engage counsel to defend said action against said Estelle Daniels, and that in truth and in fact the said insurance policy was thereby canceled.

This being the issue in this action, and applying the rule above stated, the plaintiff met the defense set forth in the defendant’s affidavit of merits.

The action in the superior court filed by Millie Frank v. Estelle Daniels, the assured, was for injuries sustained by reason of the negligent operation of an automobile by Estelle Daniels, through her agent .or servant. In the defense of this action, the defendant, Estelle Daniels, filed a plea of the general issue and a special plea denying ownership, or operation or control of the automobile by the assured through any agent or servant at the time and place of the accident. The issues were found against the assured, and accordingly judgment was entered against her for the amount of $1,000, and it is further to be noted that the attorney for the defendant appeared for Estelle Daniels, the assured, in defense of the suit filed by Millie Frank.

The defendant did not abstract the provisions of the policy of insurance, the subject of this litigation, except that a policy was issued by the Central Mutual Insurance Company, A8369, “which is described in the declaration filed herein. ’ ’ This was not in compliance with the rule adopted and announced in the case of Grabill v. Ren, 110 Ill. App. 587. A party who brings a cause to the Appellate Court must furnish a complete abstract or abridgment of the record, and must show everything in the abstract upon which error is assigned. The abstract is a pleading of the parties in. a court of review and whatever is sought to be reviewed must be contained therein, McGovern v. City of Chicago, 202 Ill. App. 139. Where the provisions of the policy of insurance are not abstracted, this court will not examine the record to ascertain what provisions are contained in the policy, nor compare this document with the plaintiff’s declaration in order to determine whether the provisions requiring performance are contained in the declaration; and the court will not search the record for grounds to reverse for nonperformance.

The last contention of the defendant to be considered by this court is that the amended declaration stated no cause of action and the motion in arrest of judgment by the defendant should have been sustained.

The defendant admits that while an affidavit was attached to the declaration filed by the Union Bank of Chicago, as assignee, the failure of Victor Frank, successor assignee, as plaintiff, to file an affidavit as to how and when he acquired title to the insurance policy is fatal to his right to recover, and cites in support of this contention the case of Allis-Chalmers Mfg. Co. v. City of Chicago, 297 Ill. 444, in which the Supreme Court said:

“A declaration in a suit by an assignee of a chose in action does not state a cause of action in favor of the plaintiff unless it contains the allegations required by section 18, showing the assignment of the chose in action, the actual ownership thereof by him and setting forth how and when he acquired title. A declaration which fails to allege a fact without whose existence the plaintiff is not entitled to recover does not state a cause of action.”

It appears that the plaintiff as successor to the Union Bank of Chicago, assignee of Estelle Daniels, was substituted by an order of the trial court, which was not objected to by any of the parties to the litigation and by the order succeeded to the rights of the assignee. Under the facts and circumstances as they appear in this case, was it necessary for Victor Frank, as successor assignee, to attach an affidavit, as required by sec. 18 of ch. 110 of the Practice Act?

As we have already stated, it does not appear that the defendant voiced any objection to the entry of the order that the name of the plaintiff as successor assignee in this cause be substituted and the praecipe and summons, and all documents and pleadings be amended so as to read, “Victor Frank, successor assignee to Union Bank of Chicago, assignee of Estelle Daniels, for the use,” etc.

Was the legal effect of the order such as to make it necessary for the plaintiff, successor assignee, substituted for the original plaintiff, to file an amended declaration and affidavit as required by the statute? The Supreme Court in the case of Dickson v. Chicago, B. & Q. R. Co., 81 Ill. 215, upon an analogous question, held that the amendment was authorized by the statute to enable the plaintiff to sustain the action for which it was intended to be brought. No new cause of action was added, nor was there any occasion for refiling the declaration, or any further plea. The effect of what was done was to dismiss an improper party from the case — nothing more. The object of the suit is to recover the amount due under the policy from the defendant and to apply the amount in payment of the judgment, and any defense that might be interposed against the plaintiff, Union Bank of Chicago, assignee, may also be interposed against the substituted plaintiff, Victor Frank, as successor assignee of the Union Bank of Chicago. It would have been error to deny the order for substitution. Chandler v. Frost, 88 Ill. 559. See also National Benefit Ass’n v. Jackson, 114 Ill. 533; Oberman v. Camden Fire Ins. Ass’n, 314 Ill. 264.

The record sustains the judgment, and the court did not err in denying the defendant’s motion in arrest of judgment.

This court, having considered the questions raised by this appeal, will not consider the plaintiff’s motion to dismiss the defendant’s appeal upon the grounds suggested.

The judgment in the case before us is affirmed.

Judgment affirmed.

Hall, P. J., and Wilson, J., concur.


text:
    C. D. White, Individually and as Trustee, et al., Appellants, v. Winfield N. Macqueen, Individually and as Trustee, Appellee.
    Gen. No. 36,545.

      Opinion filed February 7, 1934.
    Cooke, Sullivan & Ricks, for appellants; Edwin Hedrick and W. H. Armstrong, of counsel.
    J. S. Dudley, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the complainants from a decree entered by the court sustaining the demurrer of the defendant to the amended bill of complaint, and dismissing the bill for want of equity.

The errors complained of in this bill are that the court erred in sustaining the defendant’s demurrer to the bill of complaint, as amended, for the reasons hereinafter appearing in this opinion and discussed by the court.

The complainant, C. D. White, the holder of the title to the real estate described in the bill of complaint, together with Peter J. Hamel, a bondholder, filed the bill of complaint for the purpose of removing Winfield N. Maequeen, who is named as trustee in a trust deed executed on May 22, 1925, by the White Building Corporation, an Illinois corporation, to secure an issue of its bonds.

It further appears from the bill that the defendant, shortly after the execution of the trust deed, by the use of his office as trustee, represented to the bondholders secured by the trust deed that the White Building Corporation had called all the bonds for redemption, when in fact no such call was made by the White Building Corporation for redemption of the bonds, and upon representation of the failure of the White Building Corporation to redeem the said bonds, the defendant persuaded the bondholders to take other securities of a far less value than the bonds secured by the trust deed, thereby making a personal profit out of the subject matter of the trust.

As a further charge in the bill, it appears that the White Building Corporation deposited with the defendant moneys with which to pay the accrued interest on the bonds and that said moneys were not used by the defendant to pay said interest; that from time to time the defendant used and misused funds deposited for the payment of interest for his own purposes, and caused a deposit agreement to be prepared and sent to the bondholders of bonds secured by the trust deed, and requested the bondholders to deposit their bonds with the defendant under the deposit agreement. This agreement is attached to and made a part of the bill of complaint.

It also appears from the bill of complaint that although as trustee the defendant is under the duty not to participate in a sale of the property for his own use or in recognition of one group of bondholders over another, he is soliciting the deposit of bonds secured by the trust deed in this case and has threatened and stated to the bondholders that if they do not deposit their bonds with him they will not receive any interest on their bonds, and that they will be frozen out in the foreclosure sale so that they will receive only a small percentage of the principal of their bonds; and that the defendant hopes and intends to use the said deposit agreement for his own benefit and in order to make a personal gain or profit therefrom.

The bill prayed for an injunction to restrain the defendant and his agents from acting under the trust deed during the pendency of the cause, and also that the defendant be removed as trustee under the trust. deed, and that the Northern Trust Company, of .Chicago, Illinois, be appointed as successor trustee, as provided for in the trust deed. The bill of complaint was amended to make C. D. White, as an individual bondholder, and the White Building Corporation, an Illinois corporation, parties complainant.

The complainants contend that a trustee under a trust deed in the nature of a mortgage is the trustee for all bondholders, and also for the owner of the equity of redemption and the mortgagor, and that a trustee cannot by misconduct deal with trust property for his own personal gain, or refuse to apply and pay moneys deposited with him toward the payment of accrued interest.

Whatever the duties of a trustee may be, they are imposed upon him by the trust deed, which is controlling. A trust deed such as in this record is executed by the mortgagor to secure the payment of a debt, and is considered a mortgage. Title is in the trustee subject to be conveyed upon payment of the debts secured, or upon redemption made within the time provided for by law where a foreclosure decree has been entered and a sale of the property has been made. Nevertheless, there are certain provisions requiring the trustee to act, and, if it is so provided, the trustee receiving money to be applied in payment of the matured bonds or interest must only use this money for the purpose for which it is received by the trustee, and the trustee appointed in a trust deed and assuming the duties provided for by the provisions of this deed, necessarily assumes certain responsibility toward the parties who executed the deed; as well as the bondholders who are the owners of bonds issued under the provisions of the trust. The law will not permit the trustee to take advantage of a condition to make a personal profit in the transaction, unless with the knowledge and consent of the interested parties.

In considering the question as to whether the defendant as trustee is prohibited by the terms of the trust deed from purchasing and acquiring- ownership, of bonds the payment of which is secured by the trust deed, it would seem that the provisions of the trust deed itself do not prohibit the defendant from acquiring ownership of the bonds by purchase, and unless so restricted, there is no legal reason why the defendant may not become a purchaser of the evidence of indebtedness secured by the deed, and thereby become the owner of the bonds issued by the White Building Corporation, even if secured at a discount. Reeve Ill. Law of Mortgages (1932), Vol. 1, p. 480, sec. 419; Rabbit v. First Nat. Bank of Rock Falls, 237 Ill. App. 289; Foster v. Latham, 21 Ill. App. 165.

The fact that the defendant is the holder of bonds secured by the trust deed does not disqualify him, for that reason, from acting as trustee. Black on Mortgages and Deeds of Trust (1903), p. 64, sec. 45; Reeve Ill. Law of Mortgages (1932), Vol. 1, p. 207, sec. 156; Darst v. Bates, 95 Ill. 493; Longwith v. Butler, 3 Gilm. (Ill.) 32, and Foster v. Latham, 21 Ill. App. 165. And the fact that the defendant may have purchased bonds at a satisfactory price and retained ownership of the bonds, even though he is the trustee, does not give the complainants the right to object upon that ground. The amount of the principal is evidenced by the bonds executed by the White Building Corporation, and the amount therein acknowledged makes the corporation liable, subject, however, to such credits upon the principal as may accrue by reason of the sale of the real estate under a decree by virtue of a foreclosure proceeding. The amount paid for the bonds by the defendant is of no concern of the complainants in this suit; but rather that of the sellers of the bonds to the defendant, and it does not appear that any former owner of the bonds who sold them to the defendant is complaining. In what way the complainants aré damaged in the transactions complained of, does not ap.pear.

Whatever is the amount of the principal of the bonds, that is the amount to be paid, and it necessarily follows that if there is a default in payment, a foreclosure proceeding will follow, and a decree undoubtedly will be entered for the amount due.

The pertinent question in this case is: Did the defendant by his solicitation of bondholders to deposit bonds with the defendant under the deposit agreement, do or act in any way inimicable to the interest of all bondholders, as well as to the owners and holders of the legal title to the property in question? It is to be noted that there is no objection to the plan by depositing bondholders. The deposit agreement is to the effect that depositing bondholders empower the trustee, in the event the real estate is sold pursuant to a decree of court in a foreclosure proceedings, to bid at the sale and apply the bonds and coupons towards the payment of the purchase price, and to receive and hold the certificate of sale and any deed that may be issued for the proportionate benefit of the bondholders.

The trustee is further empowered to sell the property for a price deemed by him to be proper, and to deduct from the moneys received, upon redemption or sale, certain outlays and expenses which he has incurred therein.

This agreement in and of itself does not militate against the parties complainants but applies only to depositing bondholders. It would seem proper for bondholders to empower an agent to act for them as expressed in the agreement. So far as the agreement itself is concerned, it does not appear to be for the purpose of talcing advantage of nondepositing bondholders, but for the purpose of protecting the bondholders who have joined therein.

The trust deed provides that a bondholder or trustee may bid for and purchase said premises, or any part thereof, and the purchaser at said sale shall be entitled, as a bondholder in making payment for the property purchased, to apply in lieu of cash any bonds and matured unpaid coupons secured by the trust deed toward the purchase price payable by the bidder.

The defendant is authorized as an owner of bonds to join with other bondholders for the purpose of bidding at a sale which has been directed by a decree of the court in a foreclosure proceeding. This may be done by the defendant as trustee. The amount bid at the sale is the amount which will inure to the benefit of all bondholders, and unless the bid is fair and equitable in amount, the sale will not be approved by the chancellor.

Complaint is made that the defendant received moneys deposited by the mortgagor from time to time to pay interest when due. From the bill of complaint, as amended, it appears that only five-sixths of the total amount of the interest to accrue was deposited with the trustee to be applied in payment of the interest when due, and it does not appear from the bill that the money has been converted by the trustee to his own use.

It will not be necessary to consider the other objections made by the complainants, for the reason that the bill, as amended, does not state a cause of action, and the chancellor did not err in sustaining the defendant’s demurrer and in dismissing the bill for want of equity and entering a decree to that effect. The decree is accordingly affirmed.

Decree affirmed.

Hall, P. J., and Wilson, J., concur.