author: Mr. Justice Matchett

text:
    Carmine Roberts, Appellee, v. Village of Lyons et al. Village of Lyons, Appellant.
    Gen. No. 41,197.
    Opinion filed November 4, 1940.
    Rehearing denied November 18, 1940.
    Jesmer and Jesmer, of Chicago, for appellant; Julius Jesmer and Chester L. Harris, of Chicago, of counsel.
    Markman, Donovan & Sullivan, of Chicago, for appellee; John A. O’Neil, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

May 18, 1926, the Village of Lyons passed an ordinance for the construction of water mains and June 1, another ordinance requiring the construction of sewers in certain streets of the village. The village then began proceedings by filing in the county court petitions for special assessments to be levied to provide for the payment of the cost of these improvements, as provided by the Local Improvements Act (Laws of 1897, p. 102, Ill. Rev. Stat. 1939, ch. 24, §§ 698-808, pp. 547-577 [Jones Ill. Stats. Ann. 76.003-76.122]). he first proceeding was designated No. 66 and the second No. 67. The assessments were confirmed.

Afterward, on August 31, 1926, the village entered into contracts with plaintiff for the construction of these improvements. Under the terms of the contracts plaintiff was to be paid in special assessment bonds payable out of special assessments levied. The work under both contracts was completed and December 5,1930, respondent filed final certificates as required by section 84 of the Local Improvements Act. In proceeding No. 66, the certificate showed a deficiency of $27,757.60; in No. 67, a deficiency of $10,175.26. The certificates also showed each deficiency arose because the total cost of the improvement exceeded the amount of the assessments assessed and confirmed for that purpose. Notice was given and a hearing was held in' the county court on these certificates, January 30,1931. In each proceeding the facts stated in the certificate were found to be true. In each case the total cost of the improvement was determined and it was directed by order that no part of the assessment should be rebated and the original assessment “as confirmed stand adjudicated.” In each case it was also “ordered and adjudged” that the village levy a supplemental assessment to pay the deficiency as provided by section 59 of the Local Improvements Act. On December 5, 1938, plaintiff, the contractor, filed a petition for mandamus against the village in the superior court. The petition alleges repeated demands on the village and the Board of Local Improvements to levy these assessments; that they refused so to do. The matter was heard on the petition as amended and the answer, and judgment was granted as prayed. The village appeals.

It is argued the county court had exclusive jurisdiction to enforce its own orders and that plaintiff’s remedy, if any, was by application to that court for this purpose. 15 C. J., p. 1140, § 591; Weiland v. Reorganized Catlin Consol. Canal Co., 61 Colo. 125, and cases from jurisdictions other than Illinois are cited. Section 9 of the Mandamus statute (Ill. Rev. Stat. 1939, ch. 87 [Jones Ill. Stats. Ann. 109.433]) provides in substance that proceedings for mandamus shall not be dismissed nor the writ denied because the petitioner may have another specific remedy. This section has been construed in People ex rel. Baird & Warner v. Lindheimer, 370 Ill. 424, which holds that the fact a plaintiff has another remedy does not bar mandamus.

It is next contended that the county court was without jurisdiction to enter the orders of January 30,1931, and that these orders are therefore void. It is true, as pointed out, that the county court is of limited jurisdiction. (Constitution of Illinois, 1870, Art. 6, § 18; Ill. Rev. Stat. 1939, ch. 27, § 175 [Jones Ill. Stats. Ann. 36.161]; Newcomb v. County of Champaign, 145 Ill. App. 561.) However, sections 59 and 84 of the Local Improvements statute confer power and jurisdiction on the county court to conduct proceedings and to enter orders such as those upon which the petition was based, and these sections have been held to be constitutional in People v. Martin, 243 Ill. 284; White v. City of Ottawa, 318 Ill. 463; Material Service Co. v. Village of Elmwood Park, 355 Ill. 558, 189 N. E. 872. It is said ■ there is no provision in the Local Improvements Act giving the county court jurisdiction to compel the levy of supplemental assessments; that the provisions of the act should he strictly construed and Monahan v. City of Wilmington, 328 Ill. 242, is relied on. Whether the statute grants to the county court specific power to compel a village to levy such assessments we need not decide. Section 59 of the Local Improvements Act authorizes proceedings such as were here taken and the entry of the orders of the kind that were entered in this matter. The contention that the petition is based on the order of the county court which purported to direct the levy of a supplemental assessment is untenable. The petition is based on section 59 of the Local Improvements Act and not on the order of the county court. The courts have repeatedly approved the protection of such rights by mandamus. People ex rel. Talbot Paving Co. v. City of Pontiac, 185 Ill. 437, 444 and Farrell v. City of Chicago, 198 Ill. 558, 560.

It is next urged that the suit is one to enforce a private right and the action is therefore barred by section 15 of the Limitations Act (Ill. Rev. Stat. 1939, ch. 83, par. 16, p. 1995 [Jones Ill. Stats. Ann. 107.275]). In support of this contention defendant cites First Trust & Savings Bank v. City of Park Ridge, 242 Ill. App. 574 and Murphy v. City of Park Ridge, 298 Ill. 66. The opinions referred to consider the same ease. There Murphy, the owner of special assessment bonds, asked a mandamus against the city and its officials to compel the collection of unpaid instalments and to levy and appropriate for sums which had been assessed against the city as public benefits. It was objected the petitioner could not recover because no demand was made and because the action was barred by the 10-year statute of limitations. The Supreme Court held a demand was necessary because the act sought to be coerced affected a private as distinguished from a public interest. The court said by way of dictum only:

“The only statute of limitations, if any was applicable, was the five-year limitation.”

The cause was remanded for retrial and plaintiff failed to show a demand was made on the city. Defendant also raised the defense of the 5-year statute of limitations. The Appellate Court upon review said the Supreme Court had not undertaken to decide the question, holding that it was not before it for review. However, on the authority of People v. Town of Oran, 121 Ill. 650, it was held the 5-year statute of limitations might properly be pleaded. The cases are clearly distinguishable from this in that the particular suit was not based on either sections 59 or 84 of the Local Improvements Act.

In Cody v. Town of Cicero, 203 Ill. 322, the Supreme Court had before it a proceeding* for a supplemental assessment based on section 59 of the Local Improvements Act of 1897 (Laws of 1897, p. 121), where it was sought to levy a supplemental assessment to pay a deficiency. Property owners filed objections and urged as a defense that more than six years had expired from the time the original assessment was confirmed. The Supreme Court held the statute was inapplicable, saying:

“No case holding that the general or any special statute of limitations applies to this class of levies is cited, and we think none can be found. ’ ’

The case differed from this only in that the town instituted the proceedings in the county court and the property owners objected, while here the objection is raised by the village.

We have examined the briefs in First Trust & Savings Bank v. City of Park Ridge, 242 Ill. App. 574, and find that Cody v. Town of Cicero, 203 Ill. 322, was not called to the attention of the court. If it had, we think the decision would have been different.

The judgment will be affirmed.

Judgment affirmed.

O’Connor, P. J., and MoSurely, J., concur.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    National Slovak Society of the United States of America, for use of American Surety Company of New York, Appellant, v. John Matlocha, Appellee.
    Gen. No. 41,379.
    Opinion filed November 12, 1940.
    Jones & Root, of Chicago, for appellant; Rupert D. Jones and Russell W. Root, of counsel.
    John A. Blako and Lloyd C. Moody, both of Chicago, for appellee; Edward Gr. Schultz, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from an order of the trial court granting a new trial where the verdict of the jury was for plaintiff.

Defendant was a trustee of the plaintiff Slovak society. The American Surety Company gave its bond to indemnify the society against any pecuniary loss “from acts of fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction, or wilful misapplication” by defendant; the bond expired August 1, 1935.

As part consideration for the execution of the bond defendant executed an agreement to indemnify the American Surety Company against any loss, damage and charges it might sustain in connection with the execution of its bond.

March 8, 1938, the surety company brought suit against defendant alleging that the Slovak society had brought suit against it on its bond in the court of common pleas in Allegheny county, Pennsylvania, for $5,000, alleging this amount had been lost to the society by reason of the fraudulent conduct of defendant; that the surety company compromised this suit by paying the society $700 in settlement of the claim; that payment has been requested of the defendant of this sum, which he refuses to pay. Defendant’s answer denied in general terms any indebtedness to plaintiff.

Upon trial before the jury plaintiff introduced in evidence the bonds and evidence of the payment by the surety company to the Slovak society of $700 in compromising the suit against it. Plaintiff then read to the jury, over the objection of defendant, certain resolutions and minutes of the Slovak society which recited, among other things, that in April, 1936, a committee of three was appointed to make an investigation of defendant and one other trustee. The minutes recited that this committee was convinced defendant and the other trustee had “violated the rulings of the highest form of the organization when they did not use the means at their disposal by making investments for the National Slovak Society in so-called ‘ split-mortgages, ’ ’ ’ and that they also accepted commissions, prohibited by the by-laws, from the Papanek-Kovac State Bank for purchased mortgages. The committee reported a fine of $25 assessed against each of the trustees and each was ordered to return a sum of money which it was said had been illegally accepted from this Papanek-Kovac State Bank. Plaintiff also introduced evidence tending to show that July 18, 1935, the surety company mailed a letter to defendant Matlocha at his address in Blue Island, Illinois, notifying him of the, suit by the Slovak society on its bond and suggesting a conference regarding the matter. Defendant denied having received this letter.

The two trustees involved, including defendant, testified that they had always faithfully performed their duties as trustees and were not guilty of any misconduct; that they had voted against various transactions of the other officers of the Slovak society of which they did not approve; that April 15, 1933, they wrote a letter to the surety company asserting that the principal officers of the Slovak society had been guilty of illegalities with reference to the society’s funds.

No cause of action arises on an indemnifying bond until it has been definitely ascertained that loss or damage has been sustained. City of Chicago v. Siebert, 244 Ill. App. 83; Otter Creek Lumber Co. v. McElwee, 37 Ill. App. 285; Daugherty v. Alliance Casualty Co., 271 Ill. App. 71; Gould v. Tilton, 161 Ill. App. 142.

The resolutions and minutes of the society which were read to the jury were clearly incompetent as being merely hearsay. Moreover, it does not appear who kept these minutes, and the findings as to the alleged irregularities of the defendant are indefinite and uncertain. We think there is point in the suggestion by defendant’s counsel that the repeated use of the words in the resolutions and minutes, “Supreme Court of the National Slovak Society,” had a prejudicial effect against defendant. The court should have sustained the ‘objection to the reading of the resolutions and minutes.

Plaintiff argues that under the provisions of the indemnifying bond the surety company had the right to compromise any claim, and a voucher or other evidence of payment should be prima facie evidence of the liability of the defendant. Cases are cited holding that after judgment is rendered against the surety company the vouchers showing payment of the judgment are conclusive evidence against the principal of the extent of his liability. United States Fidelity & Guaranty Co. v. Connors, 222 Ill. App. 1. But in United States Fidelity & Guaranty Co. v. Dickason, 277 Ill. 77, the distinction is drawn between a judgment and a compromise of a claim of liability, and it was there said that if the surety company had settled before the validity of the claim had been adjudicated the burden would have been upon it in an action against its indemnitor to prove a valid and legal liability. In Fidelity & Casualty Co. v. Eickhoff, 63 Minn. 170, 65 N. W. 351, the effect of a provision in the bond that the indemnitor shall be liable for the amount of a compromise was considered and the court held such an agreement was against public policy, but that if the provision had been that the voucher or other evidence of payment shall be merely prima facie evidence of the extent of defendant’s liability the court did not think it would contravene public policy.

In the instant case we hold the most that could be said of plaintiff’s case is that its compromise with the Slovak society was prima facie evidence of the fact of defendant’s liability; that the testimony of defendant denying all charges of guilt or irregularity in the discharge of his duties stands uncontradicted. Under such circumstances the verdict of the jury cannot stand and the judgment of the trial court granting a new trial is affirmed.

Affirmed.

O ’Cohhor, P. J., and Hatchett, J., concur.


author: Mr. Presiding Justice Stone Mr. Justice Dady

text:
    London and Lancashire Indemnity Company of America for use of Henry E. File, Appellee, v. Harry D. Tindall, Administrator of Estate of Nathan C. File, Deceased, and Edith Angell, Appellants.

      Dady, J., dissenting.
    Opinion filed November 16, 1940.
    Rehearing denied November 28, 1940.
    Orwin H. Pugh, of Murphysbdro, for certain appellant.
    Glenn O. Brown, of Carbondale, and Barnard & Barnard, of Chicago, for certain other appellant; Morton John Barnard, of counsel.
    John G. Gilbert and Elmer J. Mbdlin, for appellee; Loyd M. Bradley, of Carbondale, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal by the defendants Harry D. Tindall, administrator of the estate of Nathan C. Pile, deceased, and Edith Angelí from a decree of the circuit court of Jackson county allowing the plaintiff, London & Lancashire Indemnity Company of America, to be subrogated to the rights of Henry E. Pile as distributee of the estate of Nathan C. Pile, deceased, superior to the rights of Edith Angelí, and ordering Tindall as administrator to pay plaintiff whatever sum shall be due Pile upon the order of final distribution of the estate.

The complaint alleges that plaintiff became surety on the bond of Henry E. Pile as administrator of the estate of Nathan C. Pile, deceased; that said administrator defaulted and that plaintiff was compelled to pay the amount of defalcation, by reason of being on said bond; that the successor administrator has served notice of the filing of his final report and distribution; that in the regular course the balance on hand for distribution would pass to Daisy Edith Casper, a daughter of Nathan C. File, and to the son Henry E. File, whose defalcation plaintiff made good. The complaint then prays to be subrogated to all the rights of Henry E. File as distributee of said estate by way of equitable assignment and to have the same enforced against File’s distributive share therein to be used to reimburse it as surety.

Defendant Tindall, administrator, moved to dismiss plaintiff’s complaint alleging numerous grounds, the one here of chief interest to us being that the probate court of Jackson county has complete jurisdiction of the subject matter; that the administration was still open, and that the trial court had no jurisdiction concerning the settlement of said estate of Nathan C. File, deceased. This motion was denied and the defendant administrator filed an answer admitting and denying such facts respectively as were alleged in plaintiff’s complaint.

Edith Angelí filed an answer and an intervening petition. Her answer to plaintiff’s complaint is not important, but in her intervening petition she sets up that she is the divorced wife of Henry E. File, and that she has a judgment against him .for unpaid alimony in the circuit court of Cook county in the sum of $731.15; that she took the necessary steps in order to start garnishment proceedings and did start garnishment proceedings against the administrator and obtained a conditional judgment in garnishment. A final judgment was impossible because no order of distribution in the estate had yet been filed. This conditional judgment was directed at the distributive share of Henry E. File and was against the garnishee administrator of the estate of Nathan C. File, deceased, in the sum of $731.15.

She alleges that said judgment is superior to the rights of plaintiff as to the fund in question, which claims by right of subrogation. Plaintiff answered said cross-complaint, but the issues there joined are not of consequence to us now.

A stipulation of fact was entered into by the parties and is substantially as follows:

Edith Angelí, intervening petitioner and appellant herein, had been married to Henry E. File. On October 21, 1932, a decree of divorce was entered in the circuit court of Cook county in a suit filed by Edith Angelí (File) against Henry E. File. The decree provided for the payment of alimony and support of the minor child of the parties.

On December 9, 1934, Nathan C. File, father of Henry E. File, died intestate. His sole heirs were Henry E. File, his son, and Daisy E. Casper, his daughter. Henry E. File was appointed administrator of the estate on December 11,1934, by the county court of Jackson county, Illinois, and filed his bond in the sum of $4,000 with London Lancashire Indemnity Company of America as surety.

Henry E. File having fallen in arrears in payment of alimony and support of his child under the order of the circuit court of Cook county, that court entered a judgment against him on December 11, 1935, in favor of Edith Angelí for $700 and costs. The judgment was never reversed or set aside nor was any appeal perfected therefrom and it is still in full force and effect. Thereafter execution issued on the judgment which was returned by the sheriff of Cook county, to whom it was issued, no property found and no part satisfied. Thereupon garnishment summons was issued out of the circuit court of Cook county on behalf of Henry E. File for the use of Edith Angelí and against Henry E. File as administrator of the estate of Nathan C. File, deceased. The garnishment summons was duly served on him and he filed an answer as administrator to the interrogatories propounded to him.

Thereafter, on March 9,1936, a conditional judgment was entered in the garnishment proceeding, No. B251844, in favor of Henry E. File for the use of Edith Angelí and against Henry E. File as administrator of the estate of Nathan C. File, deceased, in the sum of $731.15, plus any further costs which might be taxed in the proceedings. The judgment was not a final judgment for the reason that no final order of distribution had been entered in the estate of Nathan C. File, deceased. The conditional judgment is still in full force and effect, never having been vacated or set aside. On March 17,1936, a certified copy of the conditional judgment was filed in the office of the clerk of the county court of Jackson county wherein the estate is pending. No part of the conditional judgment in the sum of $731.15 has been paid.

On May 10,1937, File was removed as administrator of the estate of Nathan C. File, deceased, by order of the county court of Jackson county, and Tindall was appointed and qualified as administrator of the estate in his stead.

On May 17, 1937, an order settling and allowing a final accounting of File as administrator of the estate of Nathan O. File, deceased, was allowed by the county court of Jackson county covering the period from December 11, 1934, to May 10, 1937, and showed a shortage in the amount of $1,716.18. Thereupon File as administrator was ordered to pay and deliver to Tindall, as successor administrator of that estate, all money, property, and cash owing to the successor administrator. File, as administrator, having failed to pay the same, plaintiff as surety on his bond, paid to Tindall, successor administrator, the sum of $1,716.18 in full payment and satisfaction of the amount due.

On June 13, 1938, Tindall, as administrator of the estate of Nathan O. File, deceased, filed a final report in the county court of Jackson county showing* that there is in the estate $1,241.28 available for distribution to be distributed to File, $620.64 and to Daisy E. Casper $620.64. Her share is not involved in this proceeding. No final order of distribution has been entered in the estate.

The decree found the equities in favor of the plaintiff ; that it was entitled and subrogated to all the rights of Henry E. File, as distributee. Defendants bring the case here and assign numerous errors most of which, if not all, were urged on the motion to dismiss the complaint in the trial court. We are concerned chiefly with the question of jurisdiction raised by this appeal.

Section 20 of Article VI of our State Constitution provides in part as follows:

“Said courts (Probate Courts), when established, shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conservators, and the settlement of their accounts; in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons, for the payment of debts.” Under section 18 county courts are given the same jurisdiction in those counties in which probate courts have not been established.

Our courts have universally held that for the purpose of efficiently carrying out the powers so vested by the Constitution, said courts have all necessary equitable powers, with authority to exercise them where required. Thus in Trego v. Estate of Cunningham, 267 Ill. 367, our Supreme Court said, “To avoid the delay, expense and embarrassment in the settlement of estates by requiring a resort, in the first place, to a court of equity, it will proceed in a ease of an equitable character as though a bill in chancery has been filed, and will hear the evidence, investigate the claim and apply equitable rules in determining the judgment. ... In such a case the court will act substantially as a court of equity, disregarding mere matters of form and looking to the substance to determine the equities of the parties.”

Shepard v. Speer, 140 Ill. 238, is a case in which an administration became so complicated that the administrator himself filed suit in equity to determine what disposition he should make of the funds in his hands, several creditors having laid claim thereto. The court upheld this principle of equity in the probate court for the purpose of administration, and held that it was exclusive, using the following language: “The probate court is clothed with jurisdiction in all matters of probate settlement of estates of deceased persons, appointment of guardians and conservators, and settlements of their accounts. If the jurisdiction of the probate court is broad enough to embrace the matter involved in the bill, then it is plain a court of equity will not assume jurisdiction. The fact that the matters alleged are such as are usually cognizable in a court of equity, does not affect the question, as in the settlement of estates the probate court is not confined to the exercise of legal powers, but may also exercise equitable powers in the adjudication of all matters pertaining to the settlement of estates. . . .

“. . . the probate court has ample power to make final settlement of the estate, order a distribution of the fund in the hands of the administrator, and after a distribution, discharge the appellant (administrator) from further duties.”

In re Estate of Bennett, 168 Ill. App. 658, the Appellate Court of the Third District held that the probate court has jurisdiction to determine to whom a fund in the hands of the administrator shall be paid, if all the parties to the controversy over the funds are before the court.

In People v. Rigdon, 204 Ill. App. 309, that court upheld a judgment for defendants based upon sustaining a demurrer to a declaration filed in the superior court of Cook county seeking to recover the amount of the distributive share of an heir alleged to have been assigned to plaintiff’s intestate by the heir, on the ground that the probate court, incidental to its jurisdiction to settle and distribute the assets of a decedent, has power to determine the rights and interests of an assignee of the distributive share of an heir in the estate.

In re Estate of Kinsey, 261 Ill. App. 481, the Appellate Court held that the probate court under its equitable jurisdiction had power to settle a controversy involving the rights of an assignee to a legatee’s share of an estate and to set aside the assignment as having been procured by fraud.

These and other cases hold that complete power is vested in the probate courts to settle and adjust all matters pertaining to the administration of estates.

A court of equity will not, except in extraordinary cases, supersede the probate court in the administration of an estate. (Freeland v. Dazey, 25 Ill. 294; Harding v. Shepard, 107 Ill. 264; Duval v. Duval, 153 Ill. 49.)

By virtue of these decisions the line of demarkation seems to be between all ordinary matters of administration and those extraordinary matters of administration which are of such character as to require and demand the intervention of a court of equity. It seems to us it must necessarily be so; otherwise persons having claims against estates might without stint or limit resort to courts of equity for the purpose of proving claims against estates. This, of course, would be an extreme violation of the spirit and letter of the probate court’s powers and of the Constitution which prescribes the powers and duties of probate courts.

This brings naturally the question as to whether the matters here before the court, as they were presented to the trial court, are of such an extraordinary character as that the plaintiff could ignore the probate court and rightfully resort to a court of chancery, as it did. We see no such extraordinary thing. Were it not for the claim of the plaintiff that it is rightfully subrogated to the distributive share of the heir, the issue would not be different from filing an ordinary claim by plaintiff before the probate court, based upon the law of subrogation and the facts in the particular case. Can anybody deny that the court would have jurisdiction to pass upon that question? We think not. In this case the administrator was confronted with the duty of making distribution under the law, of the assets of this estate among the claimants rightfully entitled thereto. It was purely a function of administration. The administrator must always in the last analysis have the final say, under direction of the probate court, as to whom he shall pay the moneys of the estate that are to be paid, and must so show in his final report how he has paid that money and ask the approval of the court thereon. There is nothing of an unusual character about this. The probate court, in virtue of the authorities above cited has plenary power to decide the questions which were decided by the court of chancery in this case. Therefore, we think in the end, it would have to do so. In other words, so plainly in our judgment, were the issues involved here cognizable before the probate court, that a court of equity could not under these circumstances reach down and take from the probate court, created by the Constitution, its powers to do what the Constitution gives it the sole jurisdiction to do.

Argument is made and cases cited to the claimed effect that there are extraordinary conditions here which demand the intervention of a court of chancery. The cases cited do not convince us. Most of them have to do with the setting aside of contracts, determining questions of trust and so forth, and so throw no light on the immediate question here involved.

It is also argued that the probate court was without jurisdiction because all proper parties were not before the court. This does not weigh heavily with us. The only reason that this party plaintiff was not before the probate court is because it did not elect to go before the probate court. It sought a remedy elsewhere, — a remedy which in our judgment was not open to it. Whether the person who claimed the fund by virtue of her judgment in garnishment was before the court is not a matter about which the plaintiff can complain.

We are of the opinion that on the facts involved and the issues here, the probate court had full jurisdiction to hear and determine the matters in controversy. That being the case, it follows that in our judgment the circuit court did not have jurisdiction to hear and determine said issues, and that the trial court erred in not allowing the motion of defendants to dismiss the complaint, and in not dismissing the same.

Having arrived at this conclusion, it is unnecessary and we do not express any opinion as to the other issues here involved.

The cause is reversed and remanded to the circuit court of Jackson county with instructions to that court to allow the motion to dismiss and to dismiss the complaint for want of jurisdiction.

Reversed and remanded with directions.

Mr. Justice Dady

dissenting: I disagree with the foregoing decision, and with its language stating that the trial court “could not . . . take from the probate court ... its powers to do what the constitution gives it the sole jurisdiction to do, . . . and . . . did not have jurisdiction to hear and determine said issues.”

Tri the Shepard case the Supreme Court held that the circuit court properly refused to assume jurisdiction under the facts in that case but I find nothing in such decision or in any other decision stating or holding that the jurisdiction of the probate court in such matters was or is exclusive.

In Chapman v. American Surety Co., 261 Ill. 594, the court points out that courts of equity have paramount jurisdiction in matters of administration and settlement of estates and that this jurisdiction has not been changed by the Probate Court Act or the Constitution, saying on page 604: “It is argued, however, that the settlement of accounts having been placed by statute in the probate court, it was the intention to take such jurisdiction from the court of chancery. Wherever that court has, as a part of its inherent powers, jurisdiction in certain matters, such jurisdiction is not, in general, lost or abridged where other courts have acquired jurisdiction to grant the same or different relief. . . . This court, in Howell v. Moores, 127 Ill. 67, in discussing the jurisdiction of probate courts, held that under the constitution circuit courts had original jurisdiction in all cases at law and in equity, therefore the jurisdiction conferred upon the county or probate courts was concurrent only with that previously existing in the circuit courts in matters of trust; that under the constitution this equity jurisdiction could not be taken from the courts of equity by the legislature. This court has more than once stated that courts of equity have a paramount jurisdiction in matters of administration and settlement of estates and may control courts of law in their action thereon, .... The rule now appears to be that courts of equity will not exercise jurisdiction over the administration of estates in ordinary cases. ’ ’ See also Elting v. First Nat. Bank of Biggsville, 173 Ill. 368.

From the foregoing it would seem that courts of equity recognize that they have the inherent power and jurisdiction over matters of administration and settlement of estates, but for reasons of expediency have adopted the policy of refusing to exercise or assume such jurisdiction in ordinary cases of administration where it clearly appears that the probateo court, under its powers, could easily grant the relief sought. In other words, the authorities bear out the principle that although equity has jurisdiction over such matters, it will not assume or exercise such jurisdiction in ordinary cases and will only exercise it under extraordinary circumstances or for special reasons.

In most of the cases called to our attention, including the cases cited in the majority opinion, the question of jurisdiction arose on a motion or on a demurrer to the bill or complaint, which motion or demurrer was sustained by the trial court, and such decision of the trial court was thereafter affirmed by a court of review on the ground that the proper forum was the probate court. In none of such cases did the court of review go so far as to hold that the reason why such a complaint should be dismissed is because the probate court has exclusive jurisdiction and that there is no jurisdiction in the circuit court in such matters.

This case is presented in a little different light, in that the circuit court refused to hold that it did not have jurisdiction but heard and decided the case on its merits, and in our court the case on its merits has been well and thoroughly presented in the briefs of the respective parties. No case has been called to our attention in which it was held error for the trial court to assume and retain such jurisdiction. Assuming, but not conceding, that there are no extraordinary circumstances or facts in the instant case (which point I consider debatable), it seems harsh and inequitable to now refuse to decide this case on its merits when the trial court had inherent jurisdiction to hear it, — the result of the majority decision being that the case on its merits will hereafter have to be relitigated in the probate court with consequent expense and delay,— and without the benefit of a decision of a court of review unless the litigants incur further expense and delay in going to a court of review.


author: Mr. Presiding Justice Hebed

text:
    E. Schmalfeld, Complainant, v. Gertrude Cassady et al., Defendants. Annie Durkin, Cross-Complainant, Appellee, v. Daniel Hickey, Cross-Defendant, Appellant.
    Gen. No. 41,176.
    Opinion filed November 20, 1940.
    Kennedy, Grider & Moberley, of Chicago, for appellant.
    Ringer, Reinwald & Sostrin and Aaron Homed, both of Chicago, for appellee; Stanton Schuman, of Chicago, and Aaron Homed, of counsel.
   Mr. Presiding Justice Hebed

delivered the opinion of the court.

This is an appeal by one of the defendants, Daniel Hickey, from an order entered by the court on November 3,1939, directing that Daniel Hickey and Catherine Hickey show cause why they should not be attached for contempt of court for failure to comply with the decree entered by the court on the 3rd day of July, 1935, and as we have indicated the appeal is from the order which is as follows:

“And the cause coining on to be heard on the verified petition of Annie Durkin and Answer of Daniel' Hickey thereto, and the argument of counsel being heard in open court, and the Court having jurisdiction of the parties and the cause herein;

“The Court hereby finds and holds that the order of discharge in bankruptcy proceedings of Daniel Hickey, Case No. 54597, in the District Court of the United States of America Northern District of Illinois, Eastern Division, did not discharge the said Daniel Hickey from the sum of Seventeen Hundred Dollars due to Annie Durkin set forth by the decree in this matter entered on the 3rd day of July, 1935.”

The petition of Annie Durkin was based upon a decree entered in a foreclosure proceeding by the court on the 3rd day of July, 1935. In and by this petition, petitioner asked that a rule be entered against Daniel ■ Hickey and Catherine Hickey requiring them to show cause why they should not be attached for contempt of court for failure to comply with the decree of the court entered on July 3, 1935.

The facts as they appear from the decree that was entered by the court on July 3, 1935, are that Annie Durkin had been on intimate and close friendly relations with the defendants, Daniel Hickey and Catherine Hickey, his wife, for many years previous to 1931; . . . ; that she had frequently loaned the Hickeys money which had been repaid to her; that on or about May 25,1931, Daniel Hickey entered in negotiation to buy certain real estate involved herein upon which there was a $2,500 mortgage (which mortgage was afterwards foreclosed by said decree) subject to the said first mortgage and for the extension of said mortgage ... a certain amount of money was loaned by the petitioner from time to time for this purpose; that the respondents Daniel Hickey and Catherine Hickey, his wife, obtained a loan of $500 for making certain improvements on the premises involved in the foreclosure proceeding, and received said loan on or about January 1, 1932, for which a note was issued by Daniel Hickey for $500 to the petitioner; that certain other improvements were required on said premises and that on March 1, 1932, petitioner made an additional loan of $500 to the Hickeys and received a note for said loan and that all of said moneys was received by Daniel Hickey and Catherine Hickey for the purpose they represented to the petitioner, namely, to purchase the premises herein foreclosed and to make certain improvements thereon. That the $1,700 mentioned in plaintiff’s petition and borrowed by Daniel Hickey and Catherine Hickey, his wife, was borrowed at the request of the respondent, Daniel Hickey and his wife, and applied for and used in the purchase and improvements of the real estate foreclosed; that after-wards on the 9th day of January, 1933, respondent, Daniel Hickey and Catherine Hickey executed and delivered a certain trust deed conveying the premises involved in the foreclosure proceeding to Edward Voelcker, as trustee, together with a trust deed note for the sum of $4,260, which includes other and different moneys than the $1,700. herein involved, which deed was duly acknowledged and recorded in the recorder’s office of Cook county, Illinois, on the 19th day of January, 1933, and which trust deed was stamped: This trust deed is a junior mortgage.

The petitioner submits additional facts that it is suggested were omitted from the facts of defendant, and suggest that on July 3, 1935, a decree was entered in the matter of E. Schmalfeld v. Gertrude Cassady, et al., upon the cross complaint of Annie Durkin, appellee herein, against Daniel Hickey, appellant in this appeal, and that this decree found that Annie Durkin was at that time an elderly woman, about the age of 70 and that she had been for many years past on intimate and close friendly relations with Daniel Hickey and his wife, Catherine Hickey, and that Daniel Hickey and Catherine Hickey had, by their conduct and dealings, gained the trust and confidence of said cross complainant and that Annie Durkin, the said cross complainant had relied upon the cross defendant herein, especially in view of the suggestion of Hickey and his wife, that she make her home with the Hickeys for and during her old age; that the decree further found that the said Daniel Hickey and Catherine Hickey have fraudulently, and by means of . undue influence, and in violation of their fiduciary relationship with said Annie Durkin, received and obtained the sum of $2,300 with knowledge of the fact that same did not belong to her, but was the property of her niece and nephew and held by her for safekeeping; and additional sums aggregating $1,700 belonging to Annie Durkin.

The answer that was filed by the defendant shows that on the 14th day of December, 1936, the plaintiff herein presented her petition before the Honorable Joseph Burke of this court in which similar allegations were made, and that upon a hearing thereof before Judge Burke, and the court being apprised of the facts that Daniel Hickey was discharged in bankruptcy, the petition was dismissed. In the consideration of this appeal now before the court, Justice Joseph Burke took no part.

The defendant’s theory of the case as suggested in his brief is that the order and decree herein appealed from does not conform to the prayer of plaintiff’s petition upon which the same was entered, and that therefore the court erred in entering the order because it does not conform to the prayer of the petition. Defendant calls this court’s attention to the petition of the plaintiff in the action, upon which the court’s order and finding was based, and the subject of the appeal of the defendant and cites the prayer of the petition “that a Rule may be entered in said cause, requiring the Defendants to show cause within a reasonable time to be fixed by the Court, why an attachment should not be issued against them, and they be punished for contempt of this Court for their neglect and refusal to comply with the aforesaid order or Decree therein.” Defendant contends that Annie Durkin, the plaintiff, was entitled to only such relief as prayed for in her said petition and therefore the order should conform to and be limited by the prayer for relief in her petition, and cite the case of Warner v. Mettler, 260 Ill. 416, and also, Architectural Decorating Co. v. Shaw, 274 Ill. App. 260, and that the order should be reversed.

Upon examination of the order entered by the court, we find that the court holds that the “order of discharge in bankruptcy proceedings of Daniel Hickey, Case No. 54597, in the District Court of the United States of America Northern District of Illinois, Eastern Division, did not discharge the said Daniel Hickey from the sum of Seventeen Hundred Dollars due to Annie Durkin set forth by the decree in this matter entered on the 3rd day of July, 1935,” and there is no order that a rule be entered in the cause requiring the defendants to show cause within a reasonable time to be fixed by the court why they should not be punished for contempt of court for their neglect and refusal to comply with the said decree.

It does not appear from this order that a final order has been entered. On the contrary, while the court passed upon the question as to whether the discharge in bankruptcy relieves the defendant, Daniel Hickey, from the amount the court found due under the said decree, there is no such finding or order of the court that the final issue that was called for by plaintiff was passed upon, so that the plaintiff may enforce the order by proper proceeding.

The general rule upon the question that we have before us has been passed upon by our courts in cases where the question before the court was as to whether the order that was entered was a final one. In the case of Chechik v. Koletsky, 305 Ill. 518, the court held that the decree that was entered was not final “where it is impossible for the party in whose favor the decision is made to obtain any benefit therefrom without again setting the cause down for hearing before the court upon the part reserved upon the coining in and confirmation of the report of the master to whom it is referred to ascertain certain facts which are absolutely necessary to be ascertained before the case- is finally determined by the court or which the chancellor thinks proper to have ascertained before he grants relief to the complainant.” In that case, the court held that the appeal of the defendant be dismissed. In the case of Peabody Coal Co. v. Industrial Commission, 287 Ill. 407, the court held that a judgment or decree is final and appealable only when it terminates the litigation between the parties on the merits of the case, so that when affirmed the court below has only to proceed with the execution of the judgment or decree. In one of the early cases of this court, Sercomb v. Catlin, 25 Ill. App. 194, this court on a like question, which action was a contempt proceeding, found that there was no final judgment, and said: “ . . . There is no final judgment on this finding. He is directed to dismiss the suit of the company or show cause why he should not be punished for failing to do so. He may show ample cause, but if he shall not do so, yet it can not be said that there is any final judgment against him. There is no fine imposed, no imprisonment ordered. The judgment of the court on this contempt is as yet unspoken. The order is purely interlocutory and determines nothing finally as against the plaintiff in error. It is not, therefore, subject to review on error or appeal, and it follows that the writ of error must be dismissed.”

Upon a like question, this court in the case of McEwen v. McEwen, 55 Ill. App. 340, calls attention to the order of commitment which was as follows:

“ ‘It appearing to the court that the defendant is guilty of a contempt of this court for willfully refusing to pay the sum of $120 temporary alimony now due to complainant, Mary McEwen, in the case of Mary McEwen v. John McEwen, now pending in this court, and known as Gen. No. 136,310, under order of January 19, A. D. 1892, it is therefore ordered that an attachment issue against the said John McEwen returnable forthwith. ’ ’ ’ The court further said:

“Such is no final order or judgment of commitment. It is entirely lacking in the element of directing punishment either by fine or imprisonment. The whole force of it is to direct an attachment of the body of the plaintiff in error and bring him into court, there to answer unto and abide by such further order as might be entered by the court for an enforcement of the alimony order. Ex parte Henry Petrie, 38 Ill. 498; . . .

“The order is purely interlocutory and not reviewable.” The court further said that there being no final order before the court “that can either be affirmed or reversed, and the writ will, therefore, be dismissed. ’ ’

While in this instant case, the court found that the discharge in bankruptcy does not apply to relieve the defendant, Daniel Hickey, from payment of the amount as fixed by the decree entered on July 3, 1935, that was the extent of the order appealed from; and, therefore, while the purpose of the proceeding was a contempt proceeding, the court failed to enter an order, as we have already indicated, that the defendant, Daniel Hickey, show cause within a reasonable time to be fixed by the court, why an attachment should not be issued against him and be punished for contempt for his failure to comply with said order. The court is therefore not in a position to proceed with the execution of the order.

While there are other questions involved in this litigation on the conclusions of the court in finding that the discharge in bankruptcy did not relieve the defendant, Daniel Hickey, it is not necessary to pass upon these questions as we have indicated that the appeal by the defendant, Daniel Hickey, is not from a final order but is from an interlocutory one, and, therefore, those questions are not to be considered by the court upon this appeal.

For the reasons stated the appeal of this defendant will be dismissed.

Appeal dismissed.

Denis E. Sullivan, J., concurs.

Burke, J., not participating.


author: Mr. Presiding Justice Hebel

text:
    A-1 Cleaners and Dyers for use of Robert Sheldon, Appellee, v. American Mutual Liability Insurance Company, of Boston, Appellant.
    Gen. No. 41,196.
    Opinion filed November 20, 1940.

      Angerstein & Angerstein, of Chicago, for appellant ; Thomas C. Angerstein, George W. Angersteih, Charles Wolee and Marion J. Hannigan, all of Chicago, of counsel.
    Francis J. Gariepy and Charles E. Mallon, both of Chicago, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal from a judgment entered against the American Mutual Liability Insurance Company, garnishee, in the amount of $1,059.20, in a garnishment action instituted to recover the amount of a default judgment obtained by Robert Sheldon against A-l Cleaners & Dyers, a corporation, defendant’s insured. Plaintiff’s garnishment interrogatories were based upon this default judgment, against A-l Cleaners & Dyers, a corporation, in favor of plaintiff, based upon alleged personal injuries arising out of an automobile accident. The answer of the defendant to plaintiff’s sixth interrogatory and plaintiff’s replication thereto present the issues involved in this case. In defendant’s answer to plaintiff’s sixth interrogatory defendant stated that it issued a policy of insurance numbered AL 230883, dated the first day of February, 1937, which policy of insurance insured the said A-l Cleaners & Dyers Company from any liability accruing as a result of the operation of its trucks; that the said A-l Cleaners & Dyers Company breached the terms of the aforesaid policy of insurance in that said policy of insurance provided that if claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons, or other process received by it or its representative; that said A-l Cleaners & Dyers Company failed to forward to the American Mutual Liability Insurance Company, of Boston, any demand, notice or summons or other process issued in the cause of Bobert Sheldon v. A-l Cleaners & Dyers Company, case number 38C-10698.

In plaintiff’s replication to the defendant’s answer it is stated: “that such garnishee defendant has not truly disclosed all moneys, rights, credits or effects owned or due to A-1 Cleaners & Dyers Co. by virtue of its policy of insurance numbered AL 230883, dated the first day of February, 1937 and that if the defendant, A-l Cleaners & Dyers Co. failed to forward to the American Mutual Liability Insurance Company of Boston, any demand, notice or summons issued in the cause of Robert Sheldon v. A-1 Cleaners & Dyers Co., case number 38-C-10698, said garnishee defendant, American Mutual Liability Insurance Company, has waived said condition.”

From the statement of facts it appears that on December 29, 1937, Bobert Sheldon was driving north on Broadway near Ainslie street and was struck by a truck of the A-l Cleaners & Dyers Company, being operated on the wrong side of the street. Notice of the accident was given the defendant herein, • the American Mutual Liability Insurance Company, which carried the liability insurance for the A-l Cleaners & Dyers, and it fully investigated the accident. Thereafter on July 14, 1938, suit was filed by Bobert Sheldon against the A-l Cleaners & Dyers, and summons was served on its agent, Bose Cohen, on the same day, returnable to the third Monday of August, 1938. On the return day, the A-l Cleaners & Dyers failed to file its appearance or answer in court, and the cause was allowed to remain pending without any default action being taken thereon until the 10th day of March, 1939, when it was defaulted and evidence was submitted to the court and at the conclusion of this hearing a judgment for $1,000 was entered.

From the record in this case, it appears that there was an interim of about six months from the return date of the summons and the date when the default was taken and judgment entered, during which time plaintiff’s attorney conferred and corresponded with defendant concerning the default of the A-l Cleaners & Dyers and discussing settlement of the case. On November 15, 1938, plaintiff’s attorney talked to Mr. Johnson of the American Mutual Liability Insurance Company, advising him of its insured’s default, and gave him the title and number of the pending case and offered to stipulate to allow it to come in and defend. This, however, is controverted by the evidence of witnesses offered by defendant. Mr. Johnson, for the defendant, asked why the case could not be settled and requested copies of plaintiff’s bills and medical reports. In response to this request, plaintiff’s attorney sent defendant a letter dated November 21, 1938, again giving the court number and title of the pending case, together with copies of the medical reports concerning plaintiff’s injuries, and asked to be advised of defendant’s position in the matter. Following a number of telephone conversations concerning the extent of plaintiff’s injuries, the amount asked in settlement, a request for a medical examination was made and an agreement to execute a stipulation concerning such examination. Upon failure to receive this stipulation plaintiff’s attorney again wrote and asked defendant to take some action. Defendant immediately replied by letter on January 4, 1939, enclosing the stipulation, but again making no disclaimer of its liability under its policy. The medical examination was had shortly thereafter on a Saturday at defendant’s doctor’s office, and Dr. Test was present with plaintiff at' plaintiff’s expense. On February 16, 1939, defendant forwarded a copy of its medical report to plaintiff’s attorney, and thereupon followed a number of telephone conversations between plaintiff’s attorney and defendant’s adjuster.

After nearly 4 months of correspondence and negotiations, default was taken, evidence heard in the circuit court and judgment entered against the A-l Cleaners & Dyers Company for $1,000 and costs of suit. An execution was issued and returned no property found. Thereafter, on June 23, 1939, this garnishment suit was filed. Defendant’s answer denied liability under its policy by reason of its insured’s failure to comply with the condition of the policy requiring its insured to forward the summons. Thereupon, plaintiff’s replication was filed alleging a waiver of such condition. Upon a full and complete hearing, the trial court held as a finding of fact that the breach of such condition of defendant’s policy had been waived by defendant’s subsequent course of conduct and entered judgment for $1,059.20.

The plaintiff in this action contends that a condition in a liability policy of insurance, requiring the insured to immediately forward the summons served upon it to the company, is a condition inserted by the company for its own benefit, and, as such, can be waived by it. Plaintiff further suggests that while the word “waiver” has been variously defined, and has sometimes been used interchangeably with the word “estoppel,” it has a definite and distinct meaning of its own. Waiver is the intentional relinquishment of a known right or such conduct as warrants an inference of such relinquishment. It is not the same as estoppel in that in a waiver it is not necessary that the party claiming the waiver should have been misled to his injury by the acts or conduct of the insurer, or that prejudice result to the party in whose favor the waiver operates. Plaintiff quotes courts of last resort on questions of waiver of like character to that suggested by plaintiff in the instant case. From the briefs and record, it appears that this garnishment action was tried and should be considered on the issue of waiver by the garnishee defendant of the provisions of the policy, and that therefore, the only issue to decide is whether the trial court erred in holding that there was a waiver.

The defense that was offered by defendant on this question of waiver is that, while defendant admits that an insurer may by its actions or course of conduct create a situation where the insurer can be said to ■ have waived its rights under a policy contract or to have forfeited such rights, yet, in the instant case, all of the combined acts of defendant which plaintiff contends constituted a waiver, all of the correspondence and conversation, arose out of intercourse solely between plaintiff’s attorney and the defendant. Defendant suggests that there is not one word in the record of any acts, words or conversation between defendant and its assured, A-l Cleaners & Dyers, upon which plaintiff seeks to predicate his theory of waiver, and that each and every one of the acts of the defendant which plaintiff contends constitute a waiver, arose solely between the defendant and plaintiff’s attorney ; and further suggests that the theory of waiver cannot be extended to cover negotiations pertaining to a possible settlement of a demand made by a third party asking damages for alleged personal injuries.

In discussing this question, we must have in mind the facts as they appear in this record. We find that from November 15,1938, when defendant was advised of the pending lawsuit against its insured and ascertained that the insured had not forwarded the summons to it in accordance with the terms of its policy, the defendant’s conduct negatived any intention on its part to disclaim any liability on its policy because of the breach of the condition in the policy regarding the forwarding of summons by insured to the defendant. The condition relied upon is in the following words:

“5 — Notice of Accident — Claim or Suit

“Upon the occurrence of an accident written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the name and address of the injured and of any available witnesses. If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.” It further appears from the facts as we have them that on November 15, 1938, upon being advised that it was in default and being given the title, number and court in which the .case was pending, and being told by plaintiff’s attorney that he would stipulate to allow it to file its appearance and answer, the defendant requested that it be mailed copies of the bills and medical reports. The medical reports were inclosed by the attorney for the plaintiff in a communication dated November 21, 1938, and this communication gave the court number and name of the case, which communication closed with “Please let me hear from you as to what your position in the matter is.” A number of telephone conversations were thereupon had between plaintiff’s attorney and defendant’s adjuster concerning the extent of the injuries, the amount asked in settlement, and also a request for a medical exami-. nation and an agreement to execute a stipulation concerning such examination, which stipulation as executed bore the following caption:

This stipulation, as we have indicated, is a stipulation for medical examination from which it appears:

■ “That D. E. C. Holmblad, a physician and surgeon, duly licensed and authorized to practice medicine in the State of Illinois, may examine R. W. Sheldon, plaintiff and claimant herein, at the office of the physician, at 28 E. Jackson Blvd., in the City of Chicago and State of Illinois, or any other place, at the convenience of such parties.” Examination of plaintiff was had in compliance with this stipulation, and thereafter a copy of the medical examination was received by plaintiff’s attorney. This stipulation further provided that a copy of the examination mailed to the attorney for the plaintiff within a reasonable time after the making of such examination.

It would, therefore, seem from the acts" of the parties that the defendant insurance company had notice of the pendency of the action, the names of the parties thereto and the number thereof. This appears clearly from the stipulation for medical examination itself. It would appear from this record that the insurance company was notified of the pendency of the suit and given the opportunity to enter its appearance even though the time had long since expired for filing an appearance. This is evidenced by plaintiff’s exhibit 3, being a letter dated January 3, 1939, addressed to defendant, wherein the following caption appears “In re: Sheldon v. A-1 Cleaners & Dyers, Inc. Case No. 38C-10698,” which letter stated:

“Unless I receive some action on this case before the end of this week, I am hereby serving you with notice that I am going to go in and prove up the matter as a default.

“I had wished to extend to you the courtesy of notifying you of your default so that you would not be taken advantage of. . . . ” It is to be noticed too that the plaintiff did not enter a default against defendant’s insured until March 10, 1939, although he could have done so at any time after the return day of summons, which return day was the third Monday of August, 1938. Evidence was submitted to the court at the time default was taken and judgment entered for $1,000. As it appears from this record, it was during the period of approximately 6 months from the return day of the summons and until default was taken that plaintiff’s attorney and the defendant were corresponding, during which time the defendant was advised of the pendency of the personal injury action. It appears further that during this time defendant did not disclaim liability under the policy, although it knew of the breach of condition regarding delivery of summons to it, and that the first time defendant disclaimed liability was in its answer to the garnishment interrogatories.

The defendant’s position seems to be that the proceeding by way of garnishment is purely statutory and is an action at law and not in equity and the trial in a garnishment proceeding should be conducted as in other civil cases and the rules of law applicable to procedure, burden of proof and evidence qre the same as in other civil cases. While, of course, that suggestion is the rule, the real point at issue is whether any acts of the defendant waived its right to insist on the terms of its policy of insurance and whether the breach of the condition prevented the court from granting the relief prayed for in this garnishment proceeding. The defendant, by its representative had notice of the filing of this lawsuit, which was given to the representative by the attorney for the plaintiff, and not alone the fact that defendant had knowledge but with that knowledge entered into a stipulation and in preparing this stipulation it appears that the plaintiff’s name, the title of the case, as well as the name of the A-l Cleaners and Dyers appeared in the caption at the head of the stipulation, and that the purpose of the stipulation was for the examination of the plaintiff for the purpose of determining his injuries and physical condition. It would be a harsh rule that would permit defendant to disclaim liability, after the plaintiff has apparently been fair in notifying defendant of the pendency of the suit, and in not entering default for more than 6 months while negotiations for settlement were under way.

There are several cases that have been called to our attention and while the facts may not be exactly such as we have before us, still in the case of Brogdon v. American Automobile Ins. Co., 290 Mich. 130, 287 N. W. 406, the court said regarding the question of waiver by an insurance company of performance of a condition, as follows:

“ ‘First, we must start upon the premises that the plaintiff stands in the same position as the defendant would stand who is suing the American Automobile Insurance Company, garnishee defendant, upon his policy. The next question involved is, was there' a waiver of the clause requiring a full and truthful account of the circumstances leading up to and attending the accident? If there was, the defendant in this case cannot defend under the terms of the policy. (See, on waiver or estoppel, Beals v. Central Mutual Auto Ins. Co., 269 Mich. 477, 257 N. W. 868; Peters v. Sturmer, 263 Mich. 494, 248 N. W. 875; Wolverine Mutual Motor Ins. Co. v. Clark, 277 Mich. 633, 270 N. W. 167; Kipkey v. Casualty Assn. of America, 255 Mich. 408, 414, 238 N. W. 239). These cases promulgate the rule that facts and circumstances may show a waiver, and anything done by an insurance company after they learn the true facts that may be considered as a waiver, as a rule will be considered a waiver, for “the rule of construction is that clauses favoring the insured shall dominate those for the benefit, of the insurer.” And if an insurance company has knowledge of facts, and acts with knowledge of those facts that showed an intention to waive the terms of the policy, the insured may recover.’ ”

This court in a somewhat similar action, Rowoldt for use of Flanagan v. Cook County Farmers Mut. Ins. Co., 305 Ill. App. 93, which was a garnishment proceeding against defendant, garnishee, insurance company, where the question of a policy provision as to notice was involved, said:

“Defendant asserts that the liability insurance policy issued to Eowoldt provided that within five days after the happening of any alleged automobile accident he should give notice in writing to the secretary of the insurance company and that no such notice was given; that he did not immediately forward to the garnishee defendant any summons served upon him in any suit instituted against him as a result of the automobile accident. To this the plaintiffs reply that the requirement of written notice within five days was waived and the defendant garnishee was fully informed of the facts and through its counsel assisted in the trial of the action against the insured, Eowoldt. . . .

“In August, 1937, Eowoldt received a summons in connection with the claims of plaintiffs and this was mailed to Mr. Walsh, who prepared and filed an answer on behalf of Eowoldt. Eowoldt testified to having various conversations with Walsh with reference to plaintiffs’ suit, Mr. Walsh advising how they might be able to get a cheaper settlement; Eowoldt testified that Walsh advised him to stick to his first story denying he was in the accident; this was denied by Walsh, but Mr. Walsh was present October 15, 1937, when Mr. Eowoldt in a deposition said he was not present at the time of the accident. There is further testimony as to conversations between Walsh and Eowoldt and Mrs. Eowoldt, who was riding with Eowoldt at the time of the accident. Subsequently, in February, 1938, Mr. Walsh withdrew his appearance in plaintiffs’ case and Eowoldt employed other counsel.” Then again, the court stated:

“Moreover, the rights of the insurance' company were not prejudiced by the failure of Eowoldt, the insured, to file the written notice or truthfully to inform the company of the facts in the first instance. Similar facts were under consideration in Pacific Indemnity Co. v. McDonald, 107 F. (2d) 446, 450, where the insurance company made the claim that the false statements of the insured ‘ipso facto breached the insurance policy.’ The court held that ‘The prompt withdrawal of the falsehood cured the default in the absence of some showing that the company was prejudiced by the delay in telling the truth. ’ To the same effect is Harrison v. United States Fidelity & Guaranty Co., 255 Ill. App. 263, and other cases.”

In the instant case there is no controversy but what the insurance company had knowledge of the proceeding and after having such knowledge entered into a stipulation with the plaintiff under which an examination was made of the plaintiff in regard to his physical condition as the result of the accident; and from the facts it seems that the defendant waived the provision in the policy regarding the forwarding of summons and notice of the lawsuit.

These being the facts as we have stated them, we are of the opinion that the defendant waived this provision; and for the reasons that we have stated and from the facts as they appear, the court was justified in entering a finding for the plaintiff upon the facts, and such finding is not against the manifest weight of the evidence, and in entering judgment on that finding in the garnishment proceeding for $1,059.20.

Accordingly the judgment of the court is affirmed.

Affirmed.

Denis E. Sullivan and Burke, JJ., concur.


author: Mr. Presiding Justice Hebel Mr. Justice Denis E. Sullivan,

text:
    Chicago Title and Trust Company, Trustee, Appellee, v. Jacob Tay et al., Defendants. Lois Levine, Appellant. Joseph Springer, Appellee.
    Gen. No. 41,240.
    Denis E. Sullivan, J., dissenting.
    Opinion filed November 20, 1940.
    Rubenstein & Rubenstein, of Chicago, for appellant.
    Maurice H. Kamm, of Chicago, for appellee; Harold J. Kamm, of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

The action in this case was instituted by the Chicago Title and Trust Company, a corporation, as trustee, against Jacob Tay, et al., defendants, to foreclose the lien of a first trust deed, wherein a decree of foreclosure was entered by the court and a sale of the premises in question was had, and the master’s report of sale was approved by the court. In this proceeding, the intervenor, Lois Levine, was the holder of a junior mortgage on the premises in question, and filed a petition praying that the order approving the master’s report of sale be vacated and set aside, for the reason that the master had failed to republish notice of the adjourned sale and otherwise to comply with the decree. Joseph Springer, as assignee of the certificate of sale in this matter, moved to strike the petition, and in support of said motion cited authorities holding that under the decree of foreclosure the master had a right to hold an adjourned sale without republishing and that a mere delay in presenting the master’s report of sale constituted no valid objection. The trial court entered an order sustaining the motion to strike and denying the relief prayed for in the petition, and as we have indicated it is from this order that Lois Levine appealed.

The facts, from the briefs of the parties in question, do not appear to be in dispute and from the facts as they are called to our attention, it appears that the Chicago Title and Trust Company instituted proceedings to foreclose the lien of a first'trust deed, and upon a hearing a decree of foreclosure and sale was had and the report of sale of the master in chancery was approved. The premises in question were sold by Gerald E. Gorman, the master in chancery, designated under the decree to execute same, to one, Herman Neer. The master filed a report of sale stating that he advertised the premises for sale on Monday, November 14, 1938, as required by the decree, that he attended the sale and there being no bid for the premises he adjourned the sale to November 23, 1938, at 1:00 o’clock p. m.; that on said last date he sold the premises to Herman Neerfor the sum of $2,000, said bid being the highest bid. The master’s report of sale was confirmed and he issued a certificate of sale to Herman Neer who thereafter assigned same to Joseph Springer. Thereafter, Lois Levine filed a petition stating that she was the holder of a junior mortgage on the premises and praying that the order approving the master report of sale be vacated and set aside, contending that the master had failed to republish notice of the adjourned sale, that therefore the sale was void, and asserting also that the delay in presenting the master’s report of sale had impaired her rights of redemption. Springer, as holder of the certificate filed a motion to strike the petition, and as we have indicated stated his grounds in support of said motion, and the court upon consideration of the subject matter presented entered an order sustaining the motion to strike and denying the relief prayed for in the petition of Lois Levine.

The following provision relative to the form of notice of sale appears in the decree of foreclosure and sale entered on March 23, 1936;

“Thirty-second: That Gerald E. Gorman, Master in Chancery execute this decree; that he give public notice of the time, place and terms of said sale by publishing the same at least once in each week for three (3) successive weeks in the Chicago Daily Law Bulletin, or in some other secular newspaper of general circulation, published in the County of Cook and State of Illinois (which newspaper shall have been regularly published for at least six (6) months prior to the first publication of said notice), the first publication of said notice to be at least twenty (20) days prior to the date of said sale; that the complainant or any of the parties to this cause or any bondholder or group of bondholders may become the purchaser or purchasers of said sale; that the said Master may in his discretion adjourn such sale so advertised without giving any further notice thereof other than oral proclamation of the time and place theretofore advertised at such sale”: . . .

On October 17,1939, about 11 months after said sale, plaintiff moved the court to approve the master’s report of sale and on the same day, an order was entered approving and confirming the same. Subsequently, on October 25, 1939, Lois Levine, intervenor herein, filed her petition, as we have stated, and in support of her petition at the hearing thereof on November 10, 1939, offered to prove that on November 14, 1938, the date originally advertised by the master for the sale of said real estate, no oral proclamation was made by the master adjourning said sale to November 23, 1938. This offer of proof was denied by the court and the final order was entered denying the prayer of the petition of intervenor.

The intervening petitioner contends that the foreclosure decree in the case at bar directed the master to sell the real estate at public vendue to the highest and best bidder for cash, by publishing notice of the sale for three (3) successive weeks in a secular newspaper of general circulation, and that the said decree further provides that the master might in his discretion, adjourn such sale so advertised without giving any ifurther notice thereof other than by oral proclamation of the time and place theretofore advertised at such sale. Intervening petitioner then points to the report of sale of the master in which he states that having received no bids for the premises, he thereupon adjourned said sale to Wednesday, November 23, 1938, and it is contended that he made no attempt to explain in said report when and how he adjourned said sale nor that said adjournment was pursuant to or in compliance with the provisions of the decree. The petitioner does hot question the power of the master to adjourn the sale, and as a matter of fact it is contended that he has that power without the express authority conferred upon him by the decree, but that when he does so he must give a new notice for the same length of time as required in the first instance.

However, when we consider the authorities given, it appears that the master in chancery, in making a sale pursuant to a decree of sale, need only follow the terms of the decree and give only such notice as is provided for by the decree.

The respondent, Joseph Springer, as assignee of Herman Neer, calls attention to the fact that the authorities distinguish between a sale made either pursuant to a power given under an instrument, a sale by virtue of the provisions of a statute, and a sale by a master in chancery made pursuant to the terms of a decree entered by a court of competent jurisdiction, and contends that sales pursuant to a power given in an instrument or provisions of a statute are strictly construed to require publication of notice preceding any sale or adjournment thereof, but a sale pursuant to a decree is construed to require that the master merely follow the terms of the decree relative to the manner and mode of holding the sale.

The intervening petitioner has cited in support of the position that the master did not comply with the provisions of the decree the case of Thornton v. Boyden, 31 Ill. 200, and it appears that the power of sale in the cited case was derived from the terms of the trust deed and since by the sale the equity owner and all other persons were deprived of redemption rights, the court strictly construed the trust deed to require a new notice for 30 days prior to any sale or an adjournment thereof. So it is to be observed that the power of sale there is granted by the trust deed itself, and is not a case wherein the decree of court provided the terms that the master in chancery was required to follow. . Petitioner also cites the case of Griffin v. Marine Co. of Chicago, 52 Ill. 130, and in that case, the sale was by the mortgagee pursuant to provisions of the trust deed giving him a right to bid in the property free and clear of redemption rights, and the court followed the rule laid down in the Thornton case (supra) and construed the trust deed to require a new notice for the same length as required in the first instance. Also cited for the consideration of the court was the case of Springer v. Law, 185 Ill. 542. This case is cited by the respondent as having a bearing upon the case of a sale by a master in chancery pursuant to the terms of a foreclosure decree, and the court in that opinion said;

“The decree required the notice of sale to be published in a newspaper for three successive weeks, once in each week, and it was so published, the first publication being more than three weeks prior to the day fixed for the sale, but the appellant objected to the sale as illegal because written or printed notices were not posted as provided for in section 14 of chapter 77 of the Revised Statutes, and also because the notice did not state the amount of indebtedness to be realized from the sale. In Crosby v. Kiest, 135 Ill. 458, it was decided that the statute referred to does not apply to a sale under a decree by a master. The practice of giving notice equal to what the legislature has deemed necessary in sales on execution was recommended, but the power of a court of chancery to prescribe notice without complying with such conditions was recognized, provided the notice is reasonable.”

As we have already indicated, the decree authorized the master to adjourn his sale from time to time after there had once been an advertisement for sale, “without giving any further notice thereof other than oral proclamation of the time and place theretofore advertised at such sale.” The master was required merely to follow this provision of the decree and did so. See, also, the case of Chicago Title & Trust Co. v. Braese, 297 Ill. App. 202.

The petitioner further contends that, granting that the master had the power under the decree to adjourn the sale without further notice, “It does not appear from the record that the master actually complied with the decree, because the master’s report in so many words does not state that he made oral proclamation of the adjournment.” The petitioner contends that an examination of the record fails to disclose that the master has complied with the decree with respect to making an oral proclamation of the time and place and hour to which the sale had been adjourned. From the master’s report of sale, the petitioner quotes as follows :

“At the time and place so designated for said sale, I attended to make the same and offered said premises for sale at public vendue for cash to the highest and best bidder. I first offered for sale in separate tracts, lots and parcels less than the whole, and received no bid for any tract, lot or parcel of combination of tracts, lots and parcels. I then offered the entire premises for sale, and there being no bid therefor, I thereupon adjourned said sale to Wednesday, November 23rd, A. D. 1938, at the hour of One o’clock in the afternoon (Central Standard Time), at said Room 337. . . .” The criticism made by the petitioner is that the master merely says “there being no bid therefor, I thereupon adjourned said sale to November 23, 1938,” and petitioner sought to offer proof that no oral proclamation was made by the master adjourning the sale, and that the master’s report on its face does not establish compliance with the decree.

It is to be noted that at the time when this report of sale was approved that the intervenor did not offer any objection, in fact filed no objections to the master’s report, and only for the first time raised any objections after the sale was confirmed. The petitioner now seeks to take advantage at a subsequent time by filing this petition on the grounds that the notice of adjournment of the sale was not a proper one, although it appears from the report of the master that was approved that because no bid was offered it was adjourned to the 23rd day of November, 1938, in the afternoon at 1 p. m. Having offered the premises for sale, there being-no bid, he, therefore, in the presence of those present adjourned the sale to the new date and it must have been made by his declaration that no bid being received, the sale under the decree must be adjourned. The record discloses that notice of the adjourned sale was sent to all attorneys of record, and finally, that a further written notice was served upon the parties that the master would present to the court for its approval the report of sale, and at that time, as we have indicated, no objection was made, nor until afterwards when this petition was filed on the ground that proper notice was not given after the sale was continued to a new date.

It seems to be reasonable in considering the questions that were called to the attention of this court, that the chancellor was vested with a broad discretion in passing upon the acts of the master in approving the sale and such discretion, unless abused, will not be interfered with by a court of review. After considering the facts as we have them before us, we are inclined to agree that the chancellor did not abuse his discretion in approving the sale, and for that reason we are inclined to agree with chancellor and that under the authorities cited, it was proper to affirm the sale.

There is still another question and that is the objection that was made by petitioner to the sale that the master accepted from the bidder $500 in cash to apply on account of the purchase price of $2,000, and made his report to that effect, adding that the purchaser “stands ready, willing and able to pay the balance upon confirmation of the sale,” the contention being that since the decree provided that the master sell the premises to the highest and best bidder for cash, the decree was not complied with. It is called to our attention that this objection of the petitioner was not raised in her petition before the lower court, and is here for the first time sought to be asserted. The petitioner cannot in this court for the first time raise this question, for it is the. settled rule that a party will not be permitted to ask this court to pass upon questions that were not called to the attention of the chancellor at the time the matter was before him. Not having raised the question, as suggested, before the lower court, this court will not consider the question.

For the reasons stated, the order of the chancellor in affirming the master’s report of sale was proper, and is, therefore, affirmed.

Affirmed. ■ ■

Burke, J., concurs.

Mr. Justice Denis E. Sullivan,

dissenting: I cannot agree with the majority opinion as I do not think this court should approve the action of the master in certifying that the purchaser “stands ready, willing and able to pay the balance upon confirmation of the sale.” In this case the financial standing of the purchaser was not a matter which should have been submitted to the master for decision.