author: Mr. Presiding Justice Friend

text:
    Rose C. Trupp et al., Appellants, v. First Englewood State Bank of Chicago et al., Defendants Below. Katherine Achenbach et al., Appellees.
    Gen. No. 40,545.

      Opinion filed November 26, 1940.
    John C. De Wolfe, Robert E. Dowling and Arthur J. Murphy, all of Chicago, for appellants.
    Edward J. Warren and Joseph L. Mack, both of Chicago, for certain appellees.
    Bullinger & Michels, John W. Jedlan, George E. Billett, John Taylor Booz, Castle, Williams & McCarthy, Gann, Secord, Stead & McIntosh, Hopkins, Sutter, Halls & DeWolfe, Marshall & Marshall, Mayer, Meyer, Austrian & Platt, McNab, Holmes & Long, Harold L. Reeve, John Mann, Sidley, McPherson, Austin & Burgess, Frederick W. Snider and John F. Voigt, all of Chicago, for certain other appellees; Frank Michels, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Plaintiffs filed a creditors’ representative suit in equity to settle and determine in one action the constitutional liability of all stockholders to all creditors of the First Englewood State Bank of Chicago, which had been closed by the auditor of public accounts in June, 1932. The National Republic Bancorporation was named defendant along with numerous individual shareholders. The cause was put at issue and referred to a master. Pursuant to hearings had from time to time the liability of various defendants was fixed or compromised on recommendation of the master and decrees were entered accordingly. One of these decrees entered December 28, 1934, fixed the liability of Ban-corporation as holder of 1890 shares at $189,000, and that of the several individuals who joined herein as appellees at the sums specified in the decree. 1

The first seven amendments to the complaint were necessitated by the death of certain defendants whose personal representatives were thereafter made parties -to the proceeding. Under the eighth amendment, filed April 23, 1937, more than two years after the decree was entered, plaintiffs for the first time sought to have a further and additional liability decreed against some 1.250 parties who were stockholders of Bancorporation, on the ground that their stock holdings in that corporation warranted a finding that they were the real owners of shares in First Englewood State Bank. Both the eighth amendment and the subsequent amendment thereto were duly verified, setting forth that their contents were true in substance and in fact, and that the amendments were “necessitated by facts coming to the knowledge of plaintiffs and their attorneys and events transpiring subsequent to the filing of the amended and supplemental bill of complaint. ’ ’ Of the 1.250 persons who were made parties to this amendment, 51 were originally shareholders of the Englewood Bank who acquired their Bancorporation stock through exchange of their original ownership of stock in the Englewood Bank and their liability was adjudicated by one of the decrees entered in the stockholders’ liability proceeding, and they were ordered to pay an assessment for the period during which they held Englewood Bank stock. The remaining defendants, about 1,200 in number, were not originally shareholders of the Englewood Bank, and were not made parties until more than two years after the entry of the decree December 28, 1934. With reference to these new defendants, the eighth amended complaint does not state when they acquired stock of Bancorporation, nor does it make any specific charges upon which their proposed liability is predicated; it merely alleges that “the said shareholders of said Bancorporation became such in a very large measure by exchanging their stock in the banks hereinbefore named for shares of stock in said Bancorporation. ’ ’

The theory upon which it is sought to impose liability against these 1,250 shareholders is that by reason of their ownership of stock in Bancorporation they are imputed to have had knowledge that this company was organized and. operated, as alleged in the eighth amended complaint, for the fraudulent and illegal purposes of operating a general banking system in violation of the Illinois statute; that all the acts and doings of Bancorporation were ultra vires, by reason whereof its shareholders were and are and should be regarded as partners; that the owners and holders of shares of capital stock of Bancorporation were the actual and beneficial holders and owners of 1,890 shares of the capital stock of the Englewood Bank standing of record in the name of Bancorporation, which was intended to be and was a mere means, agency or instrumentality of enabling the shareholders to operate, dominate and control the Englewood Bank and each of the other unit banks, the capital stock of which was nominally held by Bancorporation; that the shareholders received dividends derived mainly from dividends paid to Bancorporation by the Englewood Bank and the other unit or member banks, and in other respects received and possessed all the advantages conferred upon the holders of stock of banking institutions.

Defendants filed numerous motions to dismiss plaintiffs’ eighth amendment, as amended, under the provisions of section 45 of the Civil Practice Act, based on some ground common to all the defendants and certain special ground applicable only to certain individuals. The motion filed by the Bancorporation specified the following grounds: (1) That the eighth amendment as amended is based upon facts existing at the time of the filing of the original complaint and at the time of the entry of the decree, and was, therefore, improperly filed; (2) that the final decree having been entered on December 28, 1934, the court is without jurisdiction to hear and determine the matters set forth in said amendment; and (3) that the final decree still remains in full force and effect and adjudicates the fact that Bancorporation was the owner of said stock, and that the court is without jurisdiction to subsequently enter a decree inconsistent with said finding. The motions to dismiss the eighth amendment, as amended, were allowed by the chancellor, and an order of dismissal was entered accordingly. Plaintiffs have prosecuted this appeal to reverse the orders thus entered.

It appears from the eighth amended complaint that more than 18 months prior to the entry of the decree in question an involuntary petition in bankruptcy was. filed against Bancorporation in the District Court of the United States for the Northern District of Illinois, and that May 16, 1933, Bancorporation was adjudicated bankrupt; that on the date of its adjudication Bancorporation was “hopelessly insolvent, and unable to pay any amount whatsoever on account of its liability herein as the holder of 1,890 shares of the capital stock of the First Englewood State Bank of Chicago, or upon the decree heretofore, on December 28, 1934, entered against it. ’ ’ Obviously, the proceeding against the individual shareholders of Bancorporation, instituted long after the entry of the decree adjudicating Bancorporation to be the holder of 1,890 shares of capital stock of the Englewood Bank, was designed to hold the individual shareholders of Bancorporation liable for this indebtedness because the insolvency of Bancorporation indicated that no part of the $189,000 judgment could be recovered from the corporation. It is noteworthy, however, that the pendency of the bankruptcy proceeding against Bancorporation was known to plaintiffs before the entry of the decree and the record of the bankruptcy court, including the books and accounts of Bancorporation, were open to inspection of plaintiffs and other creditors and afforded them the right of examination of all facts concerning its affairs.

It must be conceded, of course, that all the events set forth in the amended eighth complaint transpired before the closing of the Englewood State Bank and prior to the filing of the original complaint. The amended complaint itself does not make any showing to the contrary. The verification merely sets forth that the filing of the complaint “is necessitated by facts coming to the knowledge of the complainants and their solicitors . . . subsequent” to the filing thereof. By this vague statement plaintiffs seek to bring themselves within the rule that before a final decree can be set aside, a showing must be made that new and pertinent facts, not theretofore known or available, were brought to the attention of the complaining party which would justify the vacation or modification of the decree. What the “facts” are that came to plaintiffs’ knowledge are not set forth, nor is any showing made that the specific facts set forth in the amendment were unknown or could not, by the exercise of ordinary diligence, have been ascertained by plaintiffs prior to the entry of the decree; and, indeed, no such showing could fairly be made because it clearly appears that all the facts alleged with reference to illegality of the structure of Bancorporation, as well as the pendency of the bankruptcy proceeding, which constitutes the principal reason for seeking to make the individual shareholders liable in lieu of Bancorporation, were either known to plaintiffs or could as readily have been discovered from the accessible records before the entry of the decree, as after the lapse of many months preceding the filing of the eighth amendment.

Plaintiffs rely on section 46 of the Civil Practice Act (ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.046]) which provides for amendments at any time before or after judgment to conform the pleadings to the proof and the addition of new parties at any stage of the cause before or after judgment is entered. They apparently claim that the Civil Practice Act enlarged the jurisdiction of courts so as to permit the proceeding here contemplated after the entry of a final decree. An analysis of section 46 of the Civil Practice Act indicates this contention is untenable. Subdivision 1 provides for amendments introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and amendments in any matter, either of form or substance, in any process, pleading or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand at “any time before final judgment.” It is significant, however, that the words “after judgment” appearing in subdivision 3 of section 46 are not made to appear in subdivision 1 of the same section. We think it is apparent from the Civil Practice Act that it does not purport to enlarge the jurisdiction of courts to reopen a case after final decree. The inability of the court so to do after a final decree has been entered and the term at which the decree was entered had expired, rested upon a want of jurisdiction. The question is not one of practice or procedure, but of power. (In re Metropolitan Trust Co., 218 U. S. 312; Bronson v. Schulten, 104 U. S. 410.) It would therefore appear that the matter is not controlled by the Civil Practice Act, which by its title relates only “to practice and procedure,” but by the separate statutes entitled “Judgments, Decrees and Executions,” which became effective on the same day that the Civil Practice Act went into effect. (Ill. Rev. Stat. 1939, ch. 77, secs. 1 to 4, pars. 82 to 85 [Jones Ill. Stats. Ann. 104.099-104.102].) It is by virtue of this latter statute, relating to judgments and decrees, that the expiration of 30 days after the rendition of the judgment or decree, instead of the expiration of the term, now marks the limit of the court’s jurisdiction to reopen the matters determined by final decree. (Davis v. East St. Louis & Suburban Ry. Co., 290 Ill. App. 540; Seither & Cherry Co. v. Board of Education, 283 Ill. App. 392.) Therefore, it seems fairly clear that plaintiffs’ attempt to justify their right to amend after decree cannot be predicated upon the provisions of the Civil Practice Act; it must be determined by the long line of decisions in this State applicable to the finality of decrees.

The law of this State is uniformly to the effect that a supplemental bill cannot be filed after decree based upon facts existing at the time of the filing of the original bill of complaint. In the early case of Hood, Bonbright & Co. v. Green, 42 Ill. App. 664, a demurrer was sustained to a supplemental bill filed by plaintiffs. In sustaining the order, the court pointed out that no reason was given in the supplemental bill “why the facts relied upon to sustain it were not put in the original bill by amendment, . . and the court, quoting from Story’s Equity Pleading, section 423, said: “ ‘If, therefore, the party proceeds to a decree, after a discovery of .the facts upon which the new claim is founded, he will not be permitted afterward to file a supplemental bill, in the nature of a bill of review founded on these facts; for it was his own laches not to have brought them forward at an earlier stage of the cause.’” Later, in Aldrich v. Maher, 153 Ill. App. 413, the court went a step further and said (p. 419) : “The supplemental bill was improperly allowed to be filed. No new matter occurring since the filing of the original bill and not within the knowledge of the parties or accessible to them at the time of its filing was alleged in the supplemental bill. ... If complainants were entitled to the additional relief sought by the supplemental bill at the time these proceedings were commenced, then they lost that right by not claiming it before taking the decree originally entered adjudicating their rights. . . . The affirmed decree settled the rights of the parties, and that decree cannot be enlarged by adding thereto any additional right existing at the entry of the former decree. Neither can a decree be amended after the term at which it was entered. (Adams v. Gill, 158 Ill. 190.)”

Plaintiffs’ counsel argue that they were entitled to proceed under the eighth amended complaint by reason of the showing made in their verification to the complaint that the amendments were “necessitated by facts coming to the knowledge of plaintiffs and their attorneys and events transpiring subsequent to the filing of the amended and supplemental bill of complaint.” As hereinbefore pointed out, however, this is not sufficient. It appears from the record that the facts upon which the eighth amended complaint are predicated existed long prior to the filing of the original bill, and before- the decree was entered, and by the exercise of diligence could easily have been ascertained. The avenues of information which led to the discovery of these facts after the entry of the decree were open to plaintiffs during the entire pendency of the cause, and no showing is made as to when these facts were discovered by them or why they could not have been discovered at a much earlier date.

The decree of December 28, 1934, adjudicates the fact that Bancorporation was the owner of the stock in question, and orders it and other defendants named therein to pay to the receiver within 10 days from the date of the entry of the decree, the sums specified, “in satisfaction of their respective constitutional super-added liabilities, as stockholders of said First Englewood State Bank of Chicago, upon those shares of stock held by them as hereinbefore and hereinafter set forth.” That adjudication had all the characteristics of a final decree, and it would manifestly be inconsistent for the court, more than two years later in the same proceeding, to adjudge that the individual shareholders of Bancorporation are the “true owners of the stock.” In City of Detroit v. Highland Park, 186 Mich. 166, 152 N. W. 1002, the court, in referring to decrees entered in an analogous proceeding, said (p. 175): “Those decrees were in no sense interlocutory or merely incidental to the progress of the suit, but upon the questions raised, facts found and points decided were a full and final disposition of the case upon its merits, as matters then stood, were appeal-able, and ended litigation as to those issues unless reversed on appeal, and no appeal was taken. They cannot therefore be again called in question by the parties who litigated them, or those in privity with them, no matter in what form the question be presented.” It was suggested by counsel for plaintiffs, upon oral argument in the present case, that decrees in this kind of proceeding were in some sense different from ordinary final decrees, but we think the law is as stated by the Michigan court in the foregoing quotation.

It must be conceded without the citation of authority ■ that the long line of decisions in this State are uniformly to the effect that final decrees may be impeached, vacated or set aside only by one of the well-recognized methods of procedure, known as bills of review or bills in the nature of bills of review, unless jurisdiction is specifically reserved within the decree to modify its provisions. Such proceedings fall within three general classifications: (1) newly discovered evidence; (2) fraud in procuring the decree; and (3) errors apparent upon the face of the record. Plaintiffs do not rely upon any of these grounds, and indeed they do not even seek to set aside the decree, but rather, by injecting a new theory of law, they seek to impose liability upon the individual shareholders on the theory that they were the real owners of Ban-corporation stock. We do not pass upon the question whether such relief could have been obtained against the individual shareholders if the complaint had originally been brought upon that theory or amended before decree; nor do we consider it necessary to determine that question, because in the view we have taken it is too late to raise it.

The law which fixes a definite time limit when jurisdiction once acquired in a cause comes to an end is well grounded in public policy. In United States v. Mayer, 235 U. S. 55, 70, Mr. Justice Hughes pointed out that such a rule “embodies the policy of the law that litigation be' finally terminated,” and unless sufficient grounds exist and a proper showing is made, a final decree should not lightly be disturbed.

The only remaining ground upon which the court could have entertained the eighth amended complaint is the contention that by the decree the court retained jurisdiction to proceed against the individual shareholders. An examination of the decree discloses that the only jurisdiction reserved was as follows: Under par. XI the court retained jurisdiction of the cause for the purpose of causing distribution to be made to the persons thereto entitled of the sums collected thereunder, and for the purpose of passing on questions arising with respect to the enforcement of the decree and the compromise and settlement of liabilities in accordance with the statute. Par. XII provided that the decree should “be without prejudice to-the rights of the complainants herein to proceed at a future hearing in this cause or by other proceedings against the defendants not heretofore served with process herein,” specifically naming them, “and the existence and extent of whose liabilities are not determined by this decree, and for which purpose this cause be and the same is hereby retained by the Court for future hearing and determination.” Under par. XIII the court retained jurisdiction to hear exceptions to the master’s report and enter orders or decrees in respect to the liabilities of three other specifically named defendants, none of whom is involved in this litigation. Except as set forth, the decree contained no provisions with reference to the retention of any jurisdiction in the cause, and we think the foregoing jurisdictional reservations do not cover and were never contemplated to permit proceedings to bring in a large group of new parties against whom no relief was originally sought.

Plaintiffs and defendants devote considerable space in their briefs to the question whether both the record owner and the real owners of stock are liable to assessment and whether Bancorporation was engaged in branch banking contrary to public policy, thus making its stockholders personally liable to its creditors. However, in view of our conclusions as to the jurisdictional question herein discussed, we think it unnecessary to consider these questions.

The decree adjudicating Bancorporation to be the owner of 1,890 shares of stock of the Englewood Bank was procured by plaintiffs in a cause instituted by them. It was the decree they sought and obtained and we see no valid reason why they should be permitted, after the lapse of more than two years, to have it changed or supplemented so as to create a new liability against numerous individuals which would be inconsistent with the findings of the decree. The decree of the court allowing the various motions to dismiss the eighth amended complaint, as amended, and dismissing the same, should be affirmed. It is so ordered.

Rothbart v. Metropolitan Trust Co., 307 Ill. App. 271.

Decree affirmed.

Scanlahr and Johkt J. Sullivakt, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Frieub

license: Public Domain

text:
    Edward Rothbart and J. M. Rosenfield, Trading as Rothbart and Rosenfield et al., Appellees, v. Metropolitan Trust Company, Trustee, under Trust Nos. 1126 and 1127 et al. Harry Gold, Appellant.
    Gen. No. 41,096.

      Opinion filed November 26, 1940.
    Defress, Buckingham, Jones & Hoffman, of Chicago, for appellant; Vincent O’Brien and John Merrill Baker, both of Chicago, of counsel.
    Edward Rothbart, J. M. Rosenfield, James J. Kelly and J. R. Cohler, pro se.

   Mr. Presiding Justice Frieub

delivered the opinion of the court.

The law firms of Rothbart .& Rosenfield and Kelly & Cohler brought suit against Metropolitan Trust Company, as trustee under two separate liquidation trusts, to recover attorneys’ fees from the respective trust estates for defending the trustee and trust managers in a prior suit, charging them with fraud, breaches of trust and seeking their removal. Harry Cold, who was one of the complainants in the prior proceeding, filed an intervening petition herein, alleging that he was the owner of certain units of beneficial interest in the two liquidation trusts, that he did not believe the complaints to be well founded in law, that the court was without jurisdiction to grant the relief prayed, and he asked for leave to intervene as a party defendant and file his motion to dismiss the complaints. Having been granted leave to intervene, he filed his motion to dismiss, on the ground that no basis for equitable relief was set forth in the complaints, that no allegation of demand on the trustee for payment of fees had been made, that the court had no jurisdiction to determine what the fees should be, nor to impress the trust properties with liens for fees in any amounts, and that the beneficiaries were necessary parties in any event. The chancellor having overruled his motion to dismiss, Cold has prosecuted this appeal from the order thus entered and also from the decree of the court.

For a clearer understanding of the litigation upon which the claims for attorneys’ fees are predicated, a summary of the original litigation will be helpful. Two separate trusts are involved, one known as the Ada Rose Liquidation Trust, and the other Alane Liquidation Trust, the principal assets of each of which consist of separate apartment buildings in Chicago. These trusts were created pursuant to foreclosure and proposals for the reorganization of first mortgage bond issues in the sum of $200,000 on each building, submitted to a bondholders’ protective committee in 1935 by the owners of the equity. These proposals provided that the properties be reorganized under liquidation trust agreements, by which the trustee was to acquire title to the properties by redemption from foreclosure sale and to issue new securities in the nature of certificates of beneficial interest to the former holders of bonds, and that the owners of the equity of redemption should receive, in exchange for the conveyance of their equities, a percentage of the number of units represented by the certificates issued to bondholders. The proposals for reorganization further provided that contracts of management of five years ’ duration be entered into with Gold, whereunder he should manage the properties, secure tenants, collect the rents and receive compensation equivalent to 5 per cent of the gross receipts. The proposals were accepted by the committee, and notice of the adoption of the plan was given to all bondholders. Subsequently, the equity of redemption was conveyed .to the committee, the plan was consummated and the trust agreements were formally executed.

In accordance with the requirements of the plans and the provisions of the trust agreements, Leo L. Ginsburg, Barnet L. Rosset, Charles Cohler and Robert Schiller were appointed as trust managers in each trust by designation respectively of the owners of the equity, the bondholders’ committee, and the original purchasers of bonds of the respective issues. Toward the end of 1936 the trust managers, after making investigation and holding various meetings, be- ' came dissatisfied with the operation of the properties by Gold, charging that he had failed to increase the net income of the building, that the operating expenses were excessive, and that the revenue derived from the • management of the property was insufficient to pay the taxes, interest and principal on a mortgage, placed on the properties as part of the reorganization plan. Subsequently, the annual audits reflecting the operations of the year ending December 31,1936, showed deficiencies in income which the trust managers charged to improper management, with the result that the trustee, upon recommendation of the trust managers, on April 30, 1937, served notice upon Gold that his contracts had been terminated.

Shortly after this notice was served upon Gold, he and one L. I. Schurman filed a complaint in equity against the trustee and trust managers in the nature of a so-called representative or class suit, wherein all the owners and holders of the beneficial certificates of both trusts were invited to join, praying for an injunction restraining the termination of Gold’s management contracts, for the removal of the trustee and trust managers for various alleged breaches of trust and duty, for an accounting from the trustee and the trust managers because of various alleged improper expenditures and conversions of the property of the trusts, and for a construction of the trust agreements. This complaint when brought to issue was referred to a master in chancery, who conducted hearings for a period of 26 days, some of which lasted as late as eleven and twelve o’clock in the evening, resulting in findings by the master that all the charges of fraud and dishonesty leveled at the trustee and trust managers were unfounded, and that they had in all respects conducted themselves in accordance with the principles applicable to the conduct of trustees. The voluminous record of proceedings before the master was subsequently reviewed by the chancellor, who, after hearing-arguments for four days on exceptions to the master’s report, dismissed for want of - equity the complaint of Gold and Schurman, as well as their counterclaim which had been filed in the proceeding-. On appeals prosecuted to the Appellate Court the decree of the circuit court was affirmed (Gold v. Metropolitan Trust Co., 297 Ill. App. 632, 633 (Abst.)), and subsequently petitions for leave to appeal to the Supreme Court, filed by Gold and Schurman, were denied (Gold v. Metropolitan Trust Co., 301 Ill. App. XXIII (Abst.)). The fees claimed by and allowed to plaintiffs herein are predicated upon services rendered by the two law firm plaintiffs respectively in defending the trustee and trust managers in the foregoing litigation.

It is first urged as ground for reversal that plaintiffs had no cause of action on which to predicate an independent suit at law or in equity until there had been a demand on and refusal by the trustee to pay plaintiffs such fees as they claimed for the services rendered. This contention is untenable for the following reasons. Robert Cohler, one of the trust managers, testified that a demand for fees had been made on the trustee or trust managers, who took the position that since there had been so many charges and counter-charges made in the case, the question of fees ought to be submitted to a court, “rather than open up the way for any further attack by Mr. Gold. ’ ’ Moreover, it has frequently been held that the filing of a suit in itself constitutes a sufficient demand. (McConnaughy v. Gage, 252 Ill. App. 17, 21; Albert Pick & Co. v. Spoor, 212 Ill. App. 612.) The primary object of a demand is to afford the defendant an opportunity to perform his obligations without being subjected to the inconvenience and expense of litigation. Therefore, where it appears that a defendant could not or would not avail himself of the opportunity offered, a demand is unnecessary. (1 Corpus Juris Secundum, sec. 27 (d), p. 1070, 1071.) Gold’s counsel argue that the pleadings do not disclose that there was any refusal on the part of the trustee to pay plaintiffs’ claim. However, the answer filed by the trustee called for strict proof as to substantially all the allegations in plaintiffs’ complaint, and expressly denied that the sums claimed were due and unpaid, and that any amounts allowed should be impressed as a charge and lien upon or allowed and be paid out of the assets of the respective trusts. In view of the position thus taken by the trustees, it would be idle to contend that a demand upon them would have been availing to plaintiffs.

It is next urged that even if a demand had been made on the trustee and refused, plaintiffs’ remedy would be by suit at law against the trustee individually rather than a proceeding in equity seeking recovery from the trust estates. Defendants’ counsel, conceding that under certain circumstances the trust estate may become liable directly to third persons on contracts made with the trustee, argue that there is little tendency in modern law to relieve the trustee of personal liability on contracts made by him in the administration of the trust unless, in contracting with third persons, he stipulates in the contract that he shall not be personally liable, and they say that even a provision in the trust indenture which provides that the trustee shall not be personally liable on contracts made by him in the administration of the trust, and that persons entering into such contracts shall look solely to the trust estate, does not of itself preclude the trustee from being personally liable if he does not contract in such a way as to exclude personal liability, even though the provision is known to the other party of the contract, citing Review Printing & Stationery Co. v. McCoy, 291 Ill. App. 524; Allegheny Tank Car Co. v. Culbertson, 288 Fed. 406. In the case at bar each complaint sets forth Article Y of the trust agreements, which provides that the trustee shall not be personally liable on contracts made by it, and that every contract entered into by the trustee shall expressly stipulate against personal liability of the trustee. Defendants’ counsel take the position, however, that plaintiffs did not sufficiently rely on this provision of the trust instrument in their complaint, that in reference to the nature of the agreement between the trustee and the attorneys, the complaint merely alleges that “plaintiffs further alleged that they accepted the employment referred to above with full knowledge of and subject to the provisions of Article V of each of said trust agreements, and therefore agreed to look solely to the trust estates for payment of all sums due them thereunder,” and that this allegation amounts to a mere conclusion of the pleader that knowledge of the provisions of the trust instrument had the effect of making the agreement between the trustee and plaintiffs an agreement to look solely to the trust estate, there being no express averment that the contract so provided or that the contracting parties agreed to look solely to the trust estate. However, the record does not bear out this contention. The evidence shows that plaintiffs in fact had waived the personal liability of the trustee and trust managers, and one of them, J. R. Cohler, testified that he knew that the trustee and the trust managers were not personally liable for the payment of plaintiffs’ charges. Moreover, the facts and circumstances disclosed by the complaint and of the entire proceeding indicate that plaintiffs were thoroughly familiar with the provisions of the trust agreements, and the nature of the services rendered by them, coupled with the allegations of the complaint and the fact that they filed this suit in equity against the trust estates, clearly indicates that they accepted their employment in recognition of and subject to the provisions of the trust instrument. Courts have gone so far as to hold that the agreement of a creditor to look solely to the trust estate rather than to a trustee personally may be implied from the facts and circumstances of a particular transaction. (O'Connell v. Horwich, 284 Ill. App. 554, 560.) This doctrine is set forth in 2 Scott on Trusts, sec. 263.2, p. 1481, as follows: “Where, however, the other party to the contract has notice of the provision, it may be considered with other facts in determining whether it was the understanding of the parties to the contract that the trustee should not be personally liable.” And in Empire Fire Proofing Co. v. Comstock, 121 Ill. App. 518, where, although a contract was signed by the trustees, no express waiver of personal liability was contained therein, the court said that the waiver of personal liability “appears from the situation of the parties and the surrounding circumstances appearing from the averments of the declaration as well as from the contract itself.” There was also in this trust agreement an express provision that creditors are entitled to have their claims paid out of the trust estate, and the courts have generally held that persons to whom a trustee has incurred liability in the administration of the trust can by a proceeding in equity reach trust property and apply it to the satisfaction of their claims. (2 Restatement of Trusts, sec. 270, p. 833; 2 Scott on Trusts, sec. 267, p. 1504, and numerous cases there cited by the author.)

A third contention made by defendants’ counsel is that the holders of certificates of beneficial interest in the trust are necessary parties to the proceedings, because of the adverse interests of the trustee and the beneficiaries. Plaintiffs call our attention at the outset to Article XIY of the trust agreements, which contain the following provisions: “In all actions, suits and proceedings at law or in equity in any way affecting or relating to the Trust Property or any part thereof or the title thereto, the Trustee shall be deemed the representative of the beneficiaries hereunder and in no case shall it be necessary to notify any Holder of a Certificate or Certificates of Interest of, or make any such Holder a party to, any such action, suit or proceeding, for the purpose of binding or concluding such certificate holder.” We find from the authorities that even in the absence of such an express provision, the determination of the question whether beneficiaries should be made parties to a suit affecting the trust rests in the sound discretion of the court, and depends upon the facts and circumstances of each case. (Suburban R. Co. v. City of Chicago, 204 Ill. 306, 319; Chicago B. & O. R. Co. v. Commerce Commission, 364 Ill. 213, 223.)

It appears from the additional abstract filed by plaintiffs that after the complaints had been lodged herein and prior to any hearings thereon letters were sent by the trustee to all the beneficiaries of the trust, advising’ them of the filing of the complaints, the amount claimed by plaintiffs, and details with respect to the services, and these letters specified that the matter had been set for hearing, giving the date and hour of the hearing, the name of the judge and the number of the courtroom in which the hearing was to be had. Moreover,. Gold, who actually did intervene by leave of court, is not in a position to be heard to complain of the nonjoinder of other beneficiaries who were notified of the hearing but did not intervene. Although he came into the proceeding and filed a motion to dismiss the complaints, he never raised the question of nonjoinder, nor did he ask to bring in additional parties. Therefore, we think that under the express provisions of Article XIV of the trust deed and for the other reasons stated, the holders of certificates of beneficial interest were not necessary parties, and Gold is not now in a position to urge the contention made.

The remaining point urged is that even if the court had jurisdiction to determine proper allowances to counsel, the fees allowed as liens against the trust estates are grossly excessive. Rothbart and Rosenfield, attorneys for Metropolitan Trust Co., the trustee, requested fees of $15,000, and were allowed $9,000. Kelly and Cohler, attorneys for two of the trust managers, requested $7,500 in fees, and were allowed $4,500. Both Rosenfield and Cohler testified in detail as to the services rendered, and produced service sheets containing time entries and service items. . These documents and Rosenfield’s testimony indicate that Rothbart and Rosenfield had devoted 1,361 hours in connection with the litigation, upon which the claim for services is predicated. Cohler detailed the services of his firm, and estimated that they had spent in excess of 1,000 hours, not counting duplication of services by two members of the firm, and that the total time spent by both the members of the firm would probably exceed 1,500 hours. The chancellor was not convinced that this amount of time had been required, and therefore cut the respective claims for services to the amounts stated, and the question presented for determination is whether the allowances are fair and reasonable. Gold’s counsel concede that it is patent from an examination of the record that valuable services were rendered by plaintiffs. Although present at all the hearings in this proceeding, Gold’s counsel did not cross-examine any of plaintiffs’ witnesses. In fact, the chancellor extended them an opportunity to offer evidence, but it was declined. The charges made against the trustee and comanagers in the original litigation predicated upon fraud and misconduct were of a serious nature, and it became necessary by reason of the circumstances that the trustee and trust managers be represented by separate counsel. The propriety of this procedure was conceded by Henry P. Chandler, who was called as a witness for defendants. The litigation in which the services were rendered was extremely complicated and covered a period of approximately two years in all. During the 26 days of trial before the master counsel were required to be present throughout the day and part of numerous evenings to participate in the hearings, and in addition thereto they had to prepare the case from day to day, take part in interviewing and consulting witnesses, examining the law and the records of the trusts and other documents bearing upon the issues involved. Thereafter they were required to examine the findings of fact, the proposed findings submitted by Gold, and to submit their objections to the master and their exceptions to the chancellor. The argument on the exceptions consumed four days, and considerable time and effort was spent in preparing a decree and appearing in court in connection with Gold’s endeavor to have the decree modified. They also appeared in the Appellate Court in connection with the application of Gold and his associates for a writ of mandamus and prohibition against Judge Niemeyer, which was denied, and after the appeal had been perfected they were required to prepare an additional abstract, briefs, and to argue the case orally. Mr. Chandler testified on behalf of defendants that notwithstanding the extensive services rendered by plaintiffs, a reasonable fee would be $7,000. He based his conclusion largely on what he considered an amount commensurate with the value of the trust estates, and admitted that if the trust managers or trustee had agreed to pay the plaintiffs personally and had authorized them in effect to “go into this case now, and don’t leave any stone unturned to vindicate me, and whatever the charge is, I will be responsible for it,” the sum claimed would not be unreasonable. He added, however, that because there are many trustees in Chicago who are capable of acting efficiently as trust managers, there is a very definite limit related to the income from the property and the value thereof “upon what can fairly be paid to the attorneys for the trustee and trust managers in carrying that litigation to keep them in office.” After carefully reviewing all the testimony on the subject of fees, and bearing in mind that plaintiffs succeeded in defending the trustee and trust managers from serious charges of fraud and misconduct, we do not regard the fees as excessive. The evidence discloses that as a result of the original litigation and the successful termination thereof substantial improvement was effected in the trusts from a monetary standpoint, and plaintiffs are entitled to be reimbursed for what we consider reasonable charges made in the successful termination of that litigation.

We find no reason for reversing the decree of the circuit court or modifying the amount allowed. The decree is affirmed.

. Decree affirmed.

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


author: Mr. Justice Soanlan

text:
    People of the State of Illinois ex rel. Helen B. Witton, Appellant, v. George M. Harriss and Dorothy A. Harriss, Appellees.
    Gen. No. 41,172.

      Opinion filed November 26, 1940.
    Nicholas A. Socrates, of Chicago, for appellant.
    Latimer, Donovan & Brown, of Chicago, for appellees; Daniel L. Donovan, of Chicago, of counsel.
   Mr. Justice Soanlan

delivered the opinion of the court.

This is an appeal from an order quashing a writ of habeas corpus wherein the relatrix sought the" custody of “Baby Boy Breton,” also called John Arnold Harriss, a child of six years of age.

The petitioner alleges that she was once described as Helen Breton and is the natural mother of the child in question, who is detained and unlawfully restrained of his liberty by respondents without any authority of law; that petitioner is advised that respondents detain the child by reason of a pretended decree of adoption of the county court of Cook county, Illinois. The petition then incorporates a certified copy of the following order of the county court of Cook county entered June 16,1933:

“State oe Illinois) In the County Court z ss County oe Cook . / oe Cook County.

“In the Matter oe the Petition of\ . n -T./T tt t. a / Decree for AdopGeorge M. Harriss and Dorothy AA Harriss to Adopt Baby Boy Breton) t

“On this day came the petitioners, by Balph E. Batten, their attorney, and this cause coming on to be heard upon the petition herein, and evidence adduced by the petitioners, and the Court having heard the testimony in open court, and the arguments of counsel, and now being fully advised in the premises,

“The Court Finds that it has jurisdiction of the parties hereto and of the subject matter hereof; that the allegations in said petition are fully proven; that Baby Boy Breton was born in Chicago, Illinois, on the 30th day of September, A. D. 1932, to Helen Breton, an unmarried girl of legal age, the only legal parent. Said child was found in Cook County, Illinois.

“The Court Finds that the mother of said child, has abandoned said child, and consented in writing to the adoption of said child, by the petitioners, George M. Harriss and Dorothy A. Harriss, and has filed her appearance.

“The Court Finds that Elizabeth A. Bettridge has been duly appointed Guardian ad Litem, by the Court, for and on behalf of said minor child, Baby Boy Breton.

“The Court Further Finds that the consent of the Department of Public Welfare, of the State of Illinois, has been obtained and produced herewith.

“The Court Further Finds that said child is a male child, of the age of two weeks; that its present name is Baby Boy Breton; that the petitioners are of sufficient ability to bring up the said child, and furnish suitable nurture and education therefor; and that it is fit and proper that such adoption should be made, and for the best interest of said child.

“It Is Therefore Ordered, Adjudged and decreed, in accordance with the Statute in such cases made and provided; that from this date said child, Baby Boy Breton shall, to all legal intents and purposes, be the child of the petitioners, George M. Harriss and Dorothy A. Harriss, and for the purpose of inheritance and all other legal incidents and consequences, shall be the same as if he had been born to them in lawful wedlock.

“It Is Further Ordered, Adjudged and decreed, that the name of said child be changed to John Arnold Harriss, according to the prayer of the petitioners herein.”

The petition then incorporates the verified petition for adoption filed by respondents in the adoption proceeding, which reads as follows :

"State of Illinois County of Cook

“In the County Court of Said County

“In re Petition of George M. \ Harriss and Dorothy A. Harriss > No. 67290 to Adopt Baby Boy Breton )

“Petition for Adoption

“Tour petitioners, George M. Harriss and Dorothy A. Harriss, husband and wife, respectfully show that they reside in Chicago, in the State of Illinois.

“Your petitioners further show that they desire to adopt Baby Boy Breton, a male child, according to the Statute in such case made and provided; that said child is about the age of Two Weeks. Said child was found in Cook County, Illinois.

“Your petitioners further show that the cause for adoption of said child is that the mother, Helen Breton, an unmarried girl of legal age, the only legal parent, cannot furnish suitable nurture, maintenance and education for said child, and has abandoned said child, has filed her appearance, and has consented in writing to said adoption.

“Your petitioners further show that the last known residence of the mother of said child, so far as is known to your petitioners, is Chicago, Illinois.

“Your petitioners further show that the names of the persons having the custody of said child are George M. Harriss and Dorothy A. Harriss, residence — 5555 Everett Avenue, Chicago, Illinois.

“Your petitioners request that Elizabeth A. Bettridge be appointed Guardian ad Litem to appear for and in behalf of said minor child, Baby Boy Breton.

“Your petitioners further show that they are of sufficient ability to bring up the said child, and furnish suitable nurture and education therefor.

“Wherefore, your petitioners pray that the mother, Helen Breton, be made a party defendant and be required to answer this petition, according to the statute in such case made and provided and that in default of such answer, the petition herein may be taken as confessed by the said mother.

“Wherefore, your petitioners pray this Honorable Court for leave to adopt as their own child, the said Baby Boy Breton, and that the name of said child be changed to that of John Arnold Harriss.

“And that such other order or orders may be made, as to law and justice may appertain.

‘ ‘ George M. Harriss

“Dorothy A. Harriss”

The petition then alleges that the allegations in the petition for adoption that the relatrix could not furnish suitable nurture, maintenance and education for the child, and that she had abandoned the child, were untrue. The petition then incorporates a certified copy of a written consent to the adoption, which was signed by her and filed in the adoption proceedings, which reads as follows:

“In the Matter oe the Adoption 1 oe Baby Boy Breton, j

“I, Helen Breton, unmarried, of Chicago, Illinois being of legal age, and the mother of a male child, who was born on the 30th day of September, 1932, in Chicago, Cook County, Illinois, do hereby relinquish all the right, and interest, of every kind, nature and description, which I now have, or may have, in and to said minor child, and I do hereby enter my appearance in said adoption case, and waive issuance and service of summons on me and consent to an immediate hearing, and to the entry of the decree for adoption, as prayed for in the petition for adoption, and waive all my right to appeal, or writ of error. I do hereby consent to the adoption of the said child, by the petitioners, George M. Harriss and Dorothy A. Harriss, his wife.

“I hereby consent to the appointment of the Guardian ad Litem for said Baby Boy Breton, and hereby confirm all acts, as Guardian ad Litem for the purpose of adoption.

“Helen Breton

“Witnesses :

“Robt. A. Black

“Lucille Lansen

‘ ‘ State of Illinois ) County oe Coók j SS"

“On this 14 day of October, 1932, personally appeared before me, Helen Breton, the person who signed the foregoing instrument, and acknowledged that the said instrument was her free and voluntary act, and was executed and delivered for the use and purpose therein set forth.

“Fern Hunt (Notarial)

“(Seal)”

The petition then alleges:

“VII

“That the said decree for adoption was rendered only upon the ground of the aforesaid alleged consent on behalf of your petitioner; that such alleged consent was not given freely, voluntarily and understandingly by your petitioner; that said alleged consent was obtained from your petitioner by undue influence, and that your petitioner was misled, deceived and overreached in the execution of the alleged consent; that your petitioner was taken to the hospital a few hours prior to the birth of said child by the nurse of one of the physicians, and there registered by said nurse as ‘Mrs. Helen Breton’ without petitioner’s knowledge or consent; that the said child was born on September 30, 1932, and was not named or christened, though the said child is described as ‘Baby Boy Breton’ in the adoption proceedings; that your petitioner paid the said hospital for nursery for said child fifteen dollars, being one dollar per day from September 30, 1932, to October 14, 1932; that, three days after the birth of said child, her said physician advised your petitioner that, owing to her weakened condition, some suitable home be found for the said child where it would have proper care until she was able to give it her personal care; that the said physician informed her that he would make an inquiry as to some suitable home; that, on October 12, 1932, she wrote and requested information from her said physician as to the names, occupation, religion and ability of the persons who would care for said child, until she was able to give it her personal care; that, when her said physician received her request, he called on your petitioner and informed her for the first time that there was only one thing to do for the said child and that it was imperative that it be placed for adoption; that she absolutely refused to permit the adoption of her child and so informed her said physician; that on October 14,1932, when the petition for adoption was signed and acknowledged, she was called by said physician to his office and he insisted and demanded that she immediately sign a paper placing the child in a home for adoption; that she refused to do so and began to cry; that the said physician placed a folded paper before her and told her she must sign it; that she was ill and in tears and it was necessary to guide her hand; that she did not know the contents of the paper as it Was folded and only the bottom part bearing her signature was exposed; that she was improperly induced to refrain from reading said paper; that she did not, at any time, consent to the adoption of her said child by the respondents, and upon information and belief states the fact to be that the names of the respondents were inserted after her alleged signature on said paper; that she requested the said physician not to use the paper until she could give the matter serious consideration, but the said physician disregarded her instructions and immediately delivered the consent to the respondents or their agents.

“VIII

“That she is informed and believes, and upon such information and belief so states the fact to be, that the respondents herein were desirous of adopting a child for themselves for some time; that they had directed the physicians in the hospital to find a healthy child which might be adopted; that the physicians in her case, immediately after the birth of her child, evidently communicated with the respondents, without the knowledge or consent of your petitioner, and arranged for the adoption; that she did not, at any time, intend to parcel her child for adoption to any one; that she was able to rear, maintain, nurture and educate her own child and was financially able to do so.

“IX

“That the said adoption proceedings were held simultaneously with the filing of the alleged consent; that she did not know that the paper she signed, under the circumstances hereinbefore described, was in fact a consent for adoption; that, when she discovered that the said child was taken from the hospital and adopted by the respondents, she immediately made efforts to regain her child; that, about three weeks after said adoption, she wrote to her said physician informing him that she was in a position to care for her child; that the said physician sent his nurse to your petitioner and she was told by the nurse to struggle along for a while and they would see what could be done ; that, during the year 1933, she had frequent talks with said physician, in which she insisted upon the return of her child; that the said physician informed her that he would take the matter up with the respondents and report to her; and that he then told your petitioner that he had taken the matter up with the respondents and that both of the respondents refused to return the said child; that the said respondents and the physicians failed and neglected to register the birth of said child, and that she registered the birth on June 28, 1938, with the Board of Health; that, in August, 1934, she consulted attorneys who made a motion to vacate the decree for adoption in the County Court, and, upon the hearing of the said petition, the motion to vacate was denied; that, in October, 1934, she consulted other attorneys for the purpose of filing proceedings to regain her said child, but said attorneys, without fault on the part of your petitioner, did not proceed with the matter.

“X

“That there is no appeal from the County Court and your petitioner is informed that the proper remedy is an application for a writ of Habeas Corpus.

“XI

“That your petitioner, being the natural mother of said child, is better suited to rear, maintain, nurture and educate her child; that it is to the best interests of said child to be with his natural mother; that she is a fit and proper person to have her child and well able financially and otherwise to rear, maintain, nurture and educate her said child.

“XII

“The petitioner further prays, in the alternative, that, should the court deny the relief hereinbefore asked, she be permitted to visit the said child; that, under the laws of the State of Illinois, the relation between the natural parent and the child is not totally destroyed by the adoption; that, she, being the natural parent, is primarily liable for the support, maintenance and education of the said child, and that, by reason thereof, she is vitally interested in the said child and its rearing. ’ ’

The return of the respondents to the writ denies that the child was detained and unlawfully restrained of his liberty by them without any authority of law; alleges that they are in lawful possession of and have all rights to said child by reason of the adoption proceedings had in the county court of Cook county, and also by reason of the subsequent proceedings had therein in the said court; that all of the requirements under the laws of the State in respect to adoption were complied with in the county court proceedings; that on May 2, 1934, the relatrix filed in the county court of Cook county, in the adoption proceedings, the following verified petition to vacate the decree of adoption:

“State of Illinois) v ^ ^ County of Cook )

“In the County Court of Cook County

“Petition of George M. Harriss \ and Dorothy A. Harriss, to > No. 67290 Adopt Baby Boy Breton )

“Petition

“To the Honorable Judges of the County Court:

“1. Your Petitioner, Helen Breton, respectfully represents unto this Honorable Court, that on or about the 30th day of September, A. D. 1932, she gave birth to a baby boy, at the Passavant Hospital, Chicago, Illinois.

“2. Your Petitioner further represents unto this Honorable Court, that she was at the time of the birth of this child, an unmarried woman.

“3. Your Petitioner further represents, that on or about the 16th day of June, A. D. 1933, a Decree of Adoption was entered.

“4. Your Petitioner further represents, that about a day or so after the birth of the child, she was visited by the physician who had charge of her case, and by the father of the child, who then and there had a conversation with your petitioner, despite the fact that your Petitioner was a very sick person.

“5. Your Petitioner further represents, that the sum total of this conversation was that your Petitioner was not fit to care for her child; that the child was branded for life, and that it would be to the best interest of all parties concerned, that certain friends of the attending physician be permitted to adopt this child.

“6. Your Petitioner further represents, that she refused to consider any such proposals, but that these parties persisted in the proposals, and your Petitioner was alone and friendless and almost penniless and insane with grief and ill from the effects of confinement.

“7. Your Petitioner further represents, that she was continuously called by the father of her baby boy over the telephone, and with personal conversation, threatened to have her name in headlines on the front page of newspapers unless she consented to said adoption.

“8. Tour Petitioner further represents, that even while she was confined in the hospital, she was threatened, coerced and coaxed into consenting to said adoption.

“9. Tour Petitioner further respectfully represents, that in her weakened and grief stricken condition, and not knowing what she was really doing, seeking to escape from the mental torment by the various people, consented to said adoption.

“10. Tour Petitioner further respectfully represents, that she never willingly consented to said adoption, and that said adoption proceedings were never sanctioned by said Petitioner, despite the fact that she signed the consent to said adoption.

“11. Tour Petitioner further respectfully represents, that she has not had one moment of mental or physical relief since said adoption, and feels that unless this Honorable Court grants her the custody, maintenance and care which she, as a mother, is rightfully entitled to, serious consequences will result as to her well being.

“12. Tour Petitioner further respectfully represents, that she is not interested in any money settlement or any other relief, except that of the custody of said child, and that your Petitioner prays that this Honorable Court, by virtue of the power and authority therein vested, will vacate the Order of Adoption entered on June 16th, A. D. 1933.

“And your Petitioner will ever pray.

“Helen Breton

Petitioner

“State of Illinois') County of Cook JSS'

“Helen Breton, being first duly sworn on oath, deposes and says that she has read the foregoing Petition by her subscribed; that she knows the contents thereof, and that the same are true in substance and in fact.

“Helen Breton”

(Here follows the jurat.)

The respondents then aver that they filed the following verified answer to the petition to vacate:

“State of Illinois) y gg County op Cook )

“In the County Court of Cook County.

“Petition op George M. Harriss) and Dorothy A. Harriss, to > No. 67290 Adopt Baby Boy Breton )

„ “Answer to Petition op Helen Breton to Vacate Decree op Adoption

“George M. Harriss and Dorothy A. Harriss, respondents, answering the petition of Helen Breton, in this action, say:

“I.

“That as to the allegations of Paragraph 1 of said petition, they admit that on or about the 30th day of September, A. D. 1932, the petitioner gave birth to a baby boy, at the Passavant Hospital, Chicago, Illinois.

“H.

“That as to allegations of Paragraph 2, they admit that the petitioner was, at the time of the birth of this child, an unmarried woman.

“HI.

“That as to the allegation of Paragraph 3, they admit that a decree of adoption was entered on to-wit: the 16th day of June, A. D. 1933.

“IV.

“That as to the allegations of Paragraphs 4 to 12, inclusive, of said petition, they have no knowledge sufficient to form a belief.

“V.

“And for a defense to this action, respondents allege:

“1. They affirm the truth of each and every allegation and representation contained in their petition to adopt baby boy Breton, heretofore filed herein, which petition is hereby, by reference, incorporated in this answer and made a part hereof.

“2. That said child is now approximately twenty-one months old; that when said child was approximately two weeks old, he was given into their care and custody, and that they have continued to care for and nurture said child, from that time until the present; that it is for the best interest of said child that he remain with these respondents, in the home which they have provided for him; that said, child is happy in his present surroundings and environment and is sustained by the love and affection of these respondents, who have nurtured and cared for him, in sickness and in health, since he was approximately two weeks old; that these respondents are of sufficient ability to continue to care for and nurture the said child and to provide him with a suitable education.

“VI.

“And for a further and separate defense to the petition, these respondents say that the decree of adoption heretofore entered herein on to-wit: June 16, 1933, was entered at a term of court long since expired; that said decree of adoption was entered in compliance with and in conformity with the statute in such case made and provided, as will more fully appear from the files herein; that this Court derives its power and authority in such matters by virtue of an act of the general assembly, entitled ‘An act to revise the law in relation to the adoption of children,’ approved February 27, 1874, and in force July 1, 1874, as amended May 25, 1907; that this court has no power, authority or jurisdiction, by virtue of said act, to vacate or modify the decree of adoption heretofore entered herein.

"George M. ilarriss

"Dorothy A. Harriss

"STATE OF ILLINOIS) OOTJNTY OF OooK 1SS.

"George M. Harriss and Dorothy A. Harriss, being duly sworn, depose and say that they have read the foregoing answer by them subscribed and that the same is true, to the best of their knowledge and belief.

"George M. Harriss

"Dorothy A. Harriss"

(Here follows the jurat.)

The respondents further allege:

"Thereafter in open court a hearing was had, testimony was taken and arguments of counsel were heard, and after a full and complete hearing the Honorable J. U. Van Kunen, acting judge of the County Court, on to-wit the 9th day of August, 1934, entered an order overruling and denying the petition and motion of Helen Breton, now Helen Witton, to vacate the said decree of adoption entered June 16, 1933, which order is in words and figures as follows:

" `This day, after a hearing, the motion of Defendant's mother to vacate Decree is filed and thereupon, after a hearing, said motion is hereby overruled and denied.'

"6. These respondents further answering state that by reason of said proceedings in the County Court as hereinbefore set forth, a court of competent jurisdiction has declared that said~ adoption proceedings were valid, that there was no fraud or duress in connection therewith and that the consent of Helen Breton, now Helen Witton, was freely and voluntarily given, and said court of competent jurisdiction has heretofore determined after a full and complete hearing all of the matters and things now contained in the petition for Writ of Habeas Corpus herein filed and that by reason therefor the matter is now res judicata and cannot be attacked in this proceeding herein filed. Wherefore, and by reason of which said Writ of Habeas Corpus should be quashed.

“7. These respondents, without waiving any rights obtained by reason of said proceeding in the County Court of Cook County, further answering specifically, the allegations contained in Paragraphs IV and subsequent paragraphs of the petition for Writ of Habeas Corpus, state with respect to the allegations in Paragraph IV that they deny that at the time of the adoption Helen Breton was of sufficient ability to furnish suitable nurture, maintenance and education for said child.

“8. These respondents answering the allegations contained in Paragraph V state that the petitioner had abandoned her child and these respondents are advised and informed and upon such information and belief state that any moneys paid for hospital care, being material, were paid by others for and on behalf of Helen Breton.

“9. These respondents further answering the allegations contained in Paragraph VII deny that the consent given by Helen Breton was not given freely, voluntarily and understandingly by said Helen Breton and state further that a court of competent jurisdiction, to-wit the County Court of Cook County in the proceedings resulting in the order of August 9, 1934, has conclusively determined that said consent was given freely, voluntarily and understandingly by said Helen Breton.

“10. These respondents further answering the allegations contained in Paragraph VII deny that said consent was obtained from Helen Breton, now Helen Witton, by undue influence, and deny that Helen Breton, now Helen Witton, was misled, deceived and overreached in the execution of said alleged consent, all of which allegations have been conclusively determined in proceedings in the County Court resulting in the order entered August 9, 1934.

“11. Respondents further answering have no information except as contained in the petition for writ of Habeas Corpus that Helen Breton, now Helen Wit-ton, was taken to the hospital a few hours prior to the birth of the child by the nurse of one of the physicians, and there registered by the nurse as Mrs. Helen Breton without petitioner’s knowledge or consent, and admit that said child was born on September 30, 1932, but have no information except as contained in said petition that the child was not named or christened.

“12. Further answering the allegations contained in Paragraph VII your respondents are informed and believe and from such information state it to be a fact that money paid for hospital was paid on behalf of said Helen Breton by the father of said child.

“13. Tour respondents further answering the other allegations contained in Paragraph VII deny said allegations as therein set forth and state that they are informed and believe and on such information and belief state it to be a fact that the physician attending said Helen Breton, now Helen Witton, from the time of the birth of the child until the signing of the consent on October 14, was repeatedly requested by Helen Breton to find a suitable home for the baby born to her with people who would adopt said child, and thereupon said physician agreed to assist and help said Helen Breton, now Helen Witton, with respect thereto; that on, to-wit, October 14, 1932, when said petition for adoption was signed and acknowledged the said consent was signed and acknowledged by Helen Breton, now Helen Witton, freely and voluntarily in the presence of the witnesses whose names appear upon said consent and in the presence of the Notary Public who had no connection with the witnesses, said Helen Breton or these respondents; that said physician nor anyone else ever placed a folded paper before Helen Breton, now Helen Witton, and told her she must sign it; deny that it was necessary to guide the hand of Helen Breton, now Helen Witton, or that anyone did guide her hand; deny that [she] did not know the contents of the paper; deny that she was improperly induced to refrain from reading said paper but on the contrary state that said Helen Breton, now Helen Wit-ton, for a long period of time after said consent was given to her and before she signed same in the presence of the witnesses and the Notary Public considered same and then voluntarily signed same.

“14. Tour respondents further answering the allegations contained in the last part of Paragraph VII deny that the names of the respondents were inserted after her signature was upon said paper, but on the contrary state the fact to be that at the time said consent was signed said names of respondents were on said paper; deny that the said physician was not to use said consent until said Helen Breton, now Helen Witton, should give the matter serious consideration or that said physician disregarded her instructions in any way.

“15. These respondents further answering state that all of the allegations herein in Paragraph VII contained were presented the County Court of Cook County in the hearing resulting in the order of August 9, 1934, and have conclusively determined by said court.

“16. These respondents further answering the material allegations contained in Paragraph VIII deny that the petitioner did not at any time intend to parcel her child for adoption to anyone and deny that she was able to rear, maintain, nurture and educate the child and was financially able to do so.

“17. These respondents further answering the allegations contained in Paragraph IX deny that said petitioner Helen Breton, now Helen Witton, did not know that the paper she signed was in fact a consent to adoption, but state the fact to be that she voluntarily and freely signed same knowing the contents thereof.

“18. These respondents further answering have no information as to the allegations contained in Paragraph IX with respect to the petitioner writing to her physician or that physician sent his nurse to Helen Breton, and if the same are material demand strict proof thereof.

“19. Your respondents have no information as to physicians failing and neglecting to register the birth of said child or that the said Helen Witton registered said birth on June 28, 1938 with the Board of Health, but the same is immaterial.

“20. These respondents further answering the allegations contained in Paragraph IX admit that a motion to vacate the decree for adoption in the County Court was made by said Helen Breton, now Helen Wit-ton ; that a hearing was had upon said petition and that said motion to vacate was denied, all of which matters and things were hereinbefore set forth in detail by your respondents and which your respondents state conclusively determine the proceedings herein.

“21. Your respondents further answering the allegations contained in Paragraph XI deny that said petitioner is entitled to rear, maintain, nurture and educate said child; that by reason of said adoption proceedings so properly had and concluded and by reason of the Statute of the State of Illinois in such case made and provided, all rights with respect to said child are vested in your respondents who are fit and proper persons to have custody of the child and are well able financially and otherwise to rear, nurture and educate said child.

“22. Your respondents further answering the allegations contained in Paragraph XII deny that said petitioner Helen Breton is entitled to the alternative relief therein pray [ed]; deny that under the laws of the State of Illinois where adoption proceedings have been held to be proper as in the case before this court she is entitled to any right of visitation or that she is primarily liable for the support, maintenance and education of said child.

“Wherefore, these respondents having made full and complete return to the writ herein pray that the same may be quashed and your respondents will ever pray.

“George M. Harriss

“Dorothy A. Harriss”

(Here follows the verification.)

Appellant contends: “The relator’s theory was that, there being ho appeal or writ of error in adoption proceedings, she was entitled to maintain a petition for a Writ of Habeas Corpus to determine the legality of the detention of her child by the respondents, despite the denial of the motion to vacate the decree of adoption in the County Court;” that “the relator was entitled to a hearing on her.petition for a Writ of Habeas Corpus and the trial Court erred in holding that the matters alleged in the petition were res judicata, by reason of her motion to vacate the decree of adoption in the County Court, and in quashing the Writ of Habeas Corpus upon the ground.” The respondents contend that the record shows that the trial court had jurisdiction of the subject matter and of the person of the relatrix in the adoption proceedings, and that therefore the decree entered in the proceedings cannot be collaterally attacked, as the relatrix attempts to do by the instant writ of habeas corpus. The respondents further contend that the question of the jurisdiction of the county court of the person of the relatrix at the time of the entry of the adoption order was submitted to the county court on May 2, 1934, when the relatrix filed her verified petition to vacate the adoption order on the sole ground that her consent to the adoption was not given freely, voluntarily and understandingly, but was obtained by fraud and duress, and therefore the county court lacked jurisdiction of the person of the relatrix at the time it entered the adoption order, and that the county court, when it entered the order of August 9, 1934, denying the verified petition of the relatrix to vacate the decree of adoption, had jurisdiction of the subject matter and the person of the relatrix; that said order cannot be collaterally attacked by the instant writ and that the judgment of the county court finding that the consent of . the relatrix was not obtained by fraud and duress is res judicata.

When the matter of the petition for a writ of habeas corpus came on for hearing there was an extended colloquy between the trial court and counsel for both parties. The trial court stated that the sole point made in the petition for a writ of habeas corpus was that the consent of the relatrix had been obtained by fraud and undue pressure, and that that point was also the sole point made in the petition of the relatrix filed in the county court to vacate the judgment of adoption, and that the county court, when it denied the petition to vacate, passed upon the sole point in question in the instant case, and therefore the point is res judicata. The trial court further stated that the judge of the county court saw the witnesses and heard the testimony upon the point in question, and passed upon the vital question of fact as to whether or not the consent was secured by fraud and misrepresentation, and that in the instant proceeding he had no right to sit as a reviewing court and pass upon the finding of the judge of the county court. Counsel for the relatrix conceded that the sole point raised in the petition for a writ of habeas corpus was passed upon by the judge of the county court when the motion to vacate was denied, but he argued in the trial court, as he argues here, that because the statute gives no appeal from an order entered in an adoption proceeding in the county court, the 1 ‘only remedy [of the relatrix] is by habeas corpus.”

“Jurisdiction of the subject matter and of the person is each a prerequisite to the validity of a decree of adoption. (Hook v. Wright, 329 Ill. 299.) . . . Where a court is exercising.a special statutory jurisdiction the record must show upon its face that the particular proceeding is one upon which the court has authority to act. Jurisdiction in such cases is never presumed, and if it does not appear by the record the judgment is void and subject to collateral attack. (Hook v. Wright, supra; Rice v. Travis, 216 Ill. 249; Payson v. People, 175 id. 267.)” (Ashlock v. Ashlock, 360 Ill. 115, 120, 121.)

The Ashlock case, following the ruling in a number of other cases, holds that an attack directed against the proceedings to adopt a child being collateral, the sole inquiry to be made is whether the county court had jurisdiction to render the order. In the instant case it is conceded that the record in the adoption proceedings shows that the court had jurisdiction of the subject matter and of the relatrix. We do not deem it necessary to pass upon the contention of respondents that as the record in the adoption proceedings shows that the court had jurisdiction of the subject matter and of the person, the decree of adoption cannot be collaterally attacked by habeas corpus proceedings. For the purposes of this appeal, solely, we may assume that if it had not been for the judgment of the county court denying the motion of the relatrix to vacate the decree of adoption, that the instant writ would be a proper proceeding in which to test the question as to whether or not the consent of the relatrix was obtained by fraud and duress. But here we have a case where the relatrix raised that question in the county court on her motion to vacate and the question was determined adversely to her. She selected the forum in which to have the question determined and she cannot now attack the decision of the county court by the instant writ. The trial court in the instant case was right in holding that the sole point raised in the petition for the writ is res judicata.

But the relatrix further contends that the instant petition prayed “in the alternative, that she be permitted to visit the child because, under the laws of the State of Illinois, the relation between the child and the natural parent is not destroyed by the adoption and that she is primarily liable for the support, maintenance and education of the child,” and that the trial court erred in quashing the writ of habeas corpus without passing upon her right to visit the child, even though the decree of adoption of the county court is a valid one. This point was not urged nor suggested before the trial court in the instant proceeding, and it is plainly an afterthought. Indeed, counsel for the relatrix agreed with the trial court that the sole question before the court related to the question of res judicata. Moreover, the court asked counsel for the relatrix if he had any other point besides the one that the consent was obtained by coercion and duress, and counsel failed to make any answer to the court’s question. But, in any event, there is no merit in the instant contention of relatrix. Section 3 of the Adoption Act (Ill. Rev. Stat. 1939, ch. 4, sec. 3 [Jones Ill. Stats. Ann. 19.003]) reads: “. . . from the date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner or petitioners.” Section 8 of the statute reads: “The natural parents of a child so adopted shall be deprived, by the decree, of all legal rights, as respects the child, and the child shall be freed from all obligations of maintenance and obedience as respects such parents.” The only case cited by the relatrix in support of the instant contention is Dwyer v. Dwyer, 366 Ill. 630. The superior court of Cook county held Thomas L. Dwyer to be in contempt for failure to comply with an order to pay Frances Dwyer ten dollars per week for the support of their minor child, Thomas E. Dwyer. The Appellate Court reversed the order of the trial court and discharged the rule. The Supreme Court reversed the judgment of the Appellate Court and affirmed the judgment of the superior court. To quote from the opinion of the Supreme Court (pp. 631-634):

“The facts are stipulated. In the year 1927, Frances Dwyer procured a divorce in the superior court from defendant on the grounds of desertion. Their minor child was then about three years of age. By the consent of both parents, the child was adopted in the county court of Cook county by the maternal grandparents on the day prior to the entry of the divorce decree, which recites the adoption. Plaintiff waived alimony and the decree made no provision therefor, or for the support of the child. The grandfather died in 1931, insolvent, and, in 1933, the grandmother remarried and moved to the State of Texas. The child was thereafter supported by plaintiff. In December, 1934, she adopted the child in the county court and later, in the same month, filed a petition in the superior court against defendant for an order of support for the child, and solicitor’s fees. His answer claimed non-liability because of the adoption proceedings. After a hearing, the court entered an order on January 28, 1935, requiring him to pay $10 a week for the support of the child, and $50 solicitor’s fees. Notice of appeal and praecipe for record were filed, but the appeal was later dismissed. Defendant’s petition to vacate the order was denied for want of equity. No appeal was taken from the latter order. In June, following, defendant made payment of the amount accrued, under a rule to show cause entered in May, and the rule was dismissed, with an order for $75 solicitor’s fees. In January, 1936, plaintiff filed another petition for a rule to show cause, alleging arrears of $80. Defendant’s answer admitted $40 arrearage in payments, but challenged the jurisdiction of the court to enter the order of January 28, 1935. Upon a hearing the order adjudging him guilty of contempt was entered, finding the arrearage to be $80, and committing him to jail for not to exceed six months, or until he pay the amount of the- arrearage. It is stipulated that defendant’s only objection was that the court was without jurisdiction to enter any order against him.

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“Section 3 of the Adoption Act (State Bar Stat. 1935, chap. 4, sec. 3; Smith-Hurd Stat. 1935, chap. 4, sec. 3;) provides that the decree shall order that, from its date, ‘the child shall, to all legal intents and purposes, be the child of the petitioner or petitioners.’ Section 5 provides: ‘A child so adopted shall be deemed, for the purposes of inheritance by such child, . . . and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking' property expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation.’ Section 8 provides : ‘ The natural parents of a child so adopted shall be deprived, by the decree, of all legal rights, as respects the child, and the child shall be freed from all obligations of maintenance and obedience as respects such parents.’

“In Ryan v. Foreman, 262 Ill. 175, relied upon by defendant, the issue was whether or not a minor adopted child was entitled to the pension of a deceased policeman, after the death of the widow. In the course of the opinion holding that he was so entitled, we said: ‘While the legislature has not the power to abrogate the laws of nature and say who shall be natural children or offspring, it has the right to say and designate a class of persons who shall have all the rights of children or shall stand in the relation of parents and children. ’ Quoting the above provisions of sections 3 and 5 we observed: ‘The legal consequences and incidents arising from the relation of parent and child are many, and change, as time goes on, with changes of society, and vary according to the circumstances and means of the parties. They include the right of support, education and care from the parent by adoption. All such legal consequences and incidents are known to the law and embraced within the statute.’ The question in that case was whether the legislature, in enacting the Police Pension Fund law, intended to include, within its provisions, adopted children as well as natural children, and we held it did.

“The statute does not provide that an adoption relieves the natural parents of their duty to support their offspring. The only express provision of the statute as to the respective rights and duties of natural parents and their children is found in section 8, which deprives the natural parents of all their legal rights in respect to the child, and frees the child from any obligation to maintain or obey the natural parents. An adoption of a child does not work a complete severance in the relationship between the child and its natural parents. The duty of a parent to support his. minor child arises out of the natural relationship, and while that duty may also be imposed upon the adoptive parents by statutory enactment, the natural parent may, if necessity arises, be required to perform that duty. The primary duty of the adoptive parents to support is in derogation of the general law, and it is for that reason that, as to the adopted child, the statute must be strictly construed. (Keegan v. Geraghty, 101 Ill. 26.) The statute is not to be construed as relieving the natural parents from all obligation to support their minor children.” (Italics ours.)

The Supreme Court, in that case, expressly states that section 8 of the Adoption Act deprives the natural parents of all their legal rights in respect to the child, but holds that while, under the statute, it is the primary duty of the adoptive parents to support the child, the natural parent may, “if necessity arisesbe required to perform the duty of a, parent to support his minor child. There is nothing in the opinion to sup- • port the contention that the relatrix, in the instant proceedings, might acquire the right of visitation. The Adoption Act states clearly the consequences that follow a legal adoption. It provides that from the date of the decree “the child shall, to all legal intents and purposes, be the child of the petitioner or petitioners' that “a child so adopted shall be deemed, for the purposes of inheritance by such child, . . . and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock ... .” Visits of the natural mother to the child might subject the adoptive parents to continual embarrassment and pain, and at the same time tend to make the child unhappy and dissatisfied. Respondents allege that they have for seven years cared for the child, through sickness and health, and that they dearly love the child; that the petitioner makes no allegations reflecting on respondents or the manner in which they have performed their duty to the child, and they insist that their legal rights in respect to the child be protected by this court. We hold that the instant contention of petitioner is without merit.

The judgment order of the superior court of Cook county is affirmed.

Judgment order affirmed.

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