author: Mr. Justice Stone

text:
    Sam Goldstein, Administrator of Estate of Rose Schuman, Deceased, Plaintiff, v. Metropolitan Life Insurance Company, Defendant.

      Opinion filed October 27, 1944.
    Released for publication November 27, 1944.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellee; Lloyd Middleton, of St. Louis, Missouri, of counsel.
   Mr. Justice Stone

delivered the opinion of the court.

This is an action instituted by Sam Goldstein, administrator of the estate of Rose' Schuman, deceased, plaintiff appellee (hereinafter for convenience called plaintiff) against Metropolitan Life Insurance Company, a corporation, defendant appellant (hereinafter for convenience called defendant) in the city court of the City of East St. Louis, to recover upon a life insurance policy and an accidental death benefit issued by defendant to one Abe Schuman who died from gunshot wounds on July 10, 1938. A short time after Schuman’s death his wife, Eose Schuman died and plaintiff was appointed administrator of her estate. He made proof of the death of Schuman. Defendant refused payment, but tendered the amount of premiums paid on the policy. The tender was refused and, afterwards, on August 27, 1942, this suit was commenced.

The complaint consisted of two counts, count one, being based upon part of the provisions of the policy as to ordinary death, demanding the sum of $5,000 in accordance with the terms of the policy, and count two declared upon the accidental death benefit, which was to the effect that an additional $5,000 would be due the beneficiary, upon proof of the death of the insured, as the result, directly and independently of all other causes, of bodily injuries sustained solely through external, violent and accidental means, provided death should not have occurred as the result of self-destruction while sane or insane, or as the result or by the contribution, directly or indirectly, of disease or of bodily or mental infirmity. It was further averred that Abe Schuman died from a gunshot wound sustained solely through external, violent and accidental means, to which there was a denial of those allegations by defendant, and an allegation that Abe Schuman died by his own hand or act.

The cause was first tried March 18, 1943, and resulted in a verdict by the jury in favor of plaintiff, on each count, which verdicts were afterward set aside and a new trial granted. The cause was next tried November 16,1943, before a jury and a different judge, the judge submitting to the jury a separate verdict as to each count. A verdict was returned in favor of plaintiff in the sum of $6,313.33, which was the amount of the policy and 5 per cent interest from July 10,1938, on the first count and the same amount on the second count. Motion for new trial was duly filed, argued and overruled and judgments entered in these amounts, from which judgments defendant prosecutes his appeal to this court.

Errors relied upon for reversal are in substance, that the court erred in refusing the motion offered at the close of all of the evidence, both on counts one and two, to find the issues for defendant; that the court erred in giving plaintiff’s Instruction No. 1; that the verdict of the jury on both counts is contrary to a clear preponderance o.f the evidence, and that the court erred in overruling defendant’s motion for new trial.

There is but little dispute about the facts. It appears from the record that Abe Schuman, the insured, aged 37 years, lived with his wife and one boy, Marvin, in East St. Louis. He was the owner of a newspaper route, delivering the East St. Louis Journal, from which he derived a substantial income. He and his family seem to have, lived happily and comfortably. His friends, neighbors and business associates testified that he was happy in his family life, devoted to his wife and boy, a man of good habits, good health and cheerful disposition, was not in debt and that they observed no change in his disposition up to and including the day of his death. It had been his custom to take his son and his son’s playmates to the theatre every Saturday afternoon and then make collections on his route and call for the boys about 4 p. m. On Saturday, July 9, 1938, Schuman drove the boys to the theatre and left at 12:30 p. m. to collect on his route, telling the son that he would call for him at 4 p. m. Before leaving he gave the boys the price of admission tó the theatre from'a little purse in which he carried change. He did not return for his son and later in the evening, the family became alarmed and notified the police of Schuman’s failure to return.

In the early part of the week of his death, Schuman purchased a cheap revolver from an East St. Louis pawnbroker. The pawnbroker, who was very well acquainted with him, testified he appeared in a fine mood and when asked what he wanted with the revolver, Schuman replied that he was going to raise some chickens 'and wanted a little protection.

A week or so before his death, wheii asked by the circulation manager of the paper, about his mode of keeping his records, and how would they know, if anything happened to him, where his customers were located, Schuman replied in a jovial mood that nothing was going to happen to him. Three weeks before his death, he purchased a family car, and seemed gratified by the pleasure the family derived from it. He had an appointment with his helper on the route, for the day of his death.

Early Sunday morning, July 10,1938, at about 3:00 a. m. Schuman was found dead, lying on the rear seat of his car, parked about a mile from his home. The police made an examination of the body by means of a flashlight and found a bullet wound near the right temple. One cartridge in the revolver, purchased by deceased earlier in the week, had been discharged, and the gun was in his hand. The bullet seems never to have been removed from the body, and hence there is no identification of it, as being the same fired from the revolver in the hand of deceased.

The two policemen who found the body, testifying for defendant, both testified that the edges of the wound were powder burned, indicative of the close proximity of the gun to the head, when the fatal shot was fired. An undertaker testifying on behalf of plaintiff, testified that he did not notice any powder burns about the wound, and the embalmer testified there was no such burns. The back seat of the car, in which deceased was found seems to have been somewhat disarranged. No pnrse or money was found upon deceased.

It is contended by defendant that the verdict of the jury on the second count of the complaint is against the manifest weight of the evidence in the case. On the first count the burden was upon defendant to show that the insured committed suicide. On the second count, the burden rested upon plaintiff to show that Schuman came to his death by accidental means. The evidence that deceased had recently purchased the gun that was discovered in his hand, at the time the body was found; an absence of evidence of cleaning the weapon; the powder burns testified to by the two police officers who found the body, were all matters based upon which it might be argued the jury might have inferred self-destruction.

On the other hand, the fact that two other witnesses testified in substance to the absence of such powder marks; the fact that the examination of the body by the police, disclosing the alleged powder marks, seems to have been rather perfunctory and in the dark, with the aid of a flashlight; the complete absence of any motive for suicide; the condition of the back seat of the car in which deceased was found, which might have been indicative of a struggle; the absence of any purse or money on, the person of deceased which might be indicative of murder with robbery as a motive; the apparent mental condition of deceased up to within a few hours of his death; the absence of any note of any kind to the family to whom, it is not denied that he was most devoted, all of these were facts from which the jury might well have inferred that death was caused by external, violent and accidental means. We regard the fact that there was no identification of the bullet from the gun in the hand of deceased, as the one that caused his death as most significant. However, it was the function of the jury to determine from the evidence and the proper inferences to be drawn therefrom whether the injury was accidental or self-inflicted. Anderson v. Inter-State Business Men’s Accident Ass’n of Des Moines, Iowa, 354 Ill. 538, 548; Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205, 214; Rosenfield v. Industrial Commission, 374 Ill. 176, 184; Sweney v. Northwestern Mut. Life Ins. Co., 251 Ill. App. 1, 31; Downing v. Metropolitan Life Ins. Co., 314 Ill. App. 222, 225; Anders v. Metropolitan Life Ins. Co., 314 Ill. App. 196, leave to appeal denied 316 Ill. App. xiv; Finley v. Federal Life Ins. Co., 211 Ill. App. 66, 67; Diets v. Metropolitan Life Ins. Co., 305 Ill. App. 507, 514; Star Accident Co. v. Sibley, 57 Ill. App. 315, 321.

Where a fair question of fact is raised by the proof, an appellate court will not set aside the jury’s finding as being against the manifest weight of the evidence. Armster v. American Steel Foundries, 313 Ill. App. 378, 385; Summers v. Hendricks, 300 Ill. App. 498, 500; Jones v. Esenberg, 299 Ill. App. 551, 555; Gregory v. Merriam, 294 Ill. App. 483, 489. Inasmuch as two juries have found the issues the same way and upon the record we do not feel inclined to disturb the verdicts as being against the weight of the evidence. Greer v. Shell Petroleum Corp., 281 Ill. App. 238, 245; Doerr v. City of Freeport, 239 Ill. App. 560, 567; Jenisek v. Riggs, 320 Ill. App. 158, 163.

We are of the opinion that the trial court did not err in refusing the motion of defendant offered at the close of all the evidence to find the issues for defendant, on either count one or two, nor did the court err in overruling defendant’s motion for new trial.

Complaint is made of Instruction No. 1, requested by plaintiff and given by the court, which was as follows ; ‘ The Court instructs you that where a man suffers injuries which might have been caused by accident, or might have been intentionally inflicted upon himself, and there is no preponderating evidence as to the cause of such injuries, the presumption is that they occurred by accident.” It is argued by counsel for defendant that if the presumption is not evidence, if it vanishes when evidence to the contrary is introduced, then the jury should not be told that they can consider the presumption in a case where there is evidence to the contrary. This instruction was approved in' the cases of Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205; Sweney v. Northwestern Mut. Life Ins. Co., 251 Ill. App. 1; and Anders v. Metropolitan Life Ins. Co., 314 Ill. App. 196. At the request of defendant, the court gave the jury the following instruction: ‘ ‘ The Court instructs the jury that the insurance policy sued on in this case does not cover suicide while sane or insane, and if you find from all of the evidence in this case that the insured, Abe Schuman, came to his death as a result of suicide, while he was sane or insane, then the plaintiff cannot recover on either count of the complaint and your verdict should be for the defendant.”

By this instruction the jury was plainly told that if it was shown that the death was the result of suicide, there could be no recovery. In considering plaintiff’s Instruction No. 1, this instruction of defendant must be read in connection therewith. Reivits v. Chicago Rapid Transit Co., 327 Ill. 207. In Fidelity & Casualty Co. v. Weise, 182 Ill. 496, 499, the court said: “The plaintiff was entitled to the benefit of the presumption the assured did.not take his own life. The presumption was not conclusive but rebuttable. The question to be determined by the jury, from the consideration of all the evidence (the plaintiff being given the benefit of the presumption referred to) was, at the close of the testimony as it was at the beginning, did the assured come to his death through accidental means?”

Considering the instructions, as a series the jury was told just this, and we do not find the instruction complained of, erroneous.

Finding no reversible error in the- record, for the reasons above stated, the judgments of the trial court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Fay Riddlesbarger, Appellant, v. Rufus Riddlesbarger et al., Appellees.
    Gen. Ho. 42,885.
    Opinion filed November 6, 1944.
    Behearing denied November 21, 1944. Beleased for publication November 24, 1944.

      Arthur Abraham and Ralph J. Gutgsell, both of Chicago, for appellant.
    Eckert & Peterson, of Chicago, for appellees; Tom Leeming, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the- opinion of the court.

Fay Riddlesbarger, appellant (hereinafter called plaintiff), filed a complaint for divorce, upon the grounds of desertion and adultery, against Rufus Riddlesbarger, appellee (hereinafter called defendant, unless designated as Riddlesbarger). The other defendants were alleged to have assets belonging to Riddlesbarger. At the close of plaintiff’s evidence defendants’ motion for a finding in their favor was allowed and the complaint was dismissed for want of equity. Plaintiff appeals.

The complaint alleges, inter alia, that defendant obtained a decree of divorce against plaintiff in the City Court of Aurora, on February 5, 1932, upon the grounds of desertion; that said decree was void, as that court did not have jurisdiction of the subject matter of the divorce proceeding; that defendant and plaintiff were residents of Chicago and had never been residents of the city of Aurora; that the matrimonial domicile of plaintiff and defendant had never been in that city; “that in any event, no such desertion could have occurred or did occur" within the territorial limits of the City of Aurora;” that “said decree for divorce did not purport to find that desertion occurred within the territorial limits of the City of Aurora;” that plaintiff had never deserted defendant, and that said decree was obtained upon the false and fraudulent testimony of defendant and one other witness. Attached to the instant complaint and made a part thereof is the record of proceedings in the City Court of Aurora. The complaint therein, verified by Riddlesbarger, alleges that he “is an actual resident of the said County of Kane, and is now, and has been for ten years last past, a resident of the State of Illinois that “Fay Riddlesbarger, wholly regardless of her marriage covenants and duty, afterward, on February 28,1930, wilfully deserted and absented herself from your Orator, without any reasonable cause, for the space of one year and upwards; and has persisted in such desertion, and yet continues to absent herself from your Orator.” The decree found, inter aim, that Fay Riddlesbarger had submitted herself to the jurisdiction of the court and filed her answer to the bill; that the complainant had filed a proper affidavit of emergency and that Fay Riddlesbarger had expressly consented to an Immediate hearing of the bill; “that said complainant, Rufus Riddlesbarger, is now an actual resident of the City of Aurora, County of Kane, and State of Illinois;” that “the defendant herein without reasonable cause on February 28, 1930 wilfully deserted and absented herself from the complainant, Rufus Riddlesbarger, and has from said date persisted in said desertion.”

Defendants’ motion for a finding in their favor admits the following facts: Plaintiff and defendant were married in Chicago in 1919 and two children, both daughters, were born of the marriage'. Defendant owns substantially all of the stock in two corporations that are engaged in the manufacture and distribution of contraceptive devices, and his income is about $90,000 per annum. He is a lawyer but does not practice his profession. Plaintiff and defendant took up their residence in Chicago about November, 1922, and they lived together as husband and wife until February 28, 1930. In 1925 they moved to 3974 Lake Park avenue and were residing there on February 28, 1930, at which time defendant compelled plaintiff to go to New York, where she lived until Christmas of 1930, when she returned to her home. During her absence one Yerma Hansen moved into the family domicile and resided there with defendant and the two young daughters. She lived there openly as the mistress of defendant. After plaintiff returned home defendant and Yerma Hansen removed from the family home, but ten days later defendant again forced plaintiff to go to New York and he and Yerma Hansen returned to the family home, where they lived in a state of adultery until about March 1, 1931, when plaintiff again returned to the family home. Defendant and Yerma Hansen then removed from the home and plaintiff lived there with her two daughters. Plaintiff was inexperienced in business matters. To quote from Judge LaBuy’s opinion: “The plaintiff herein was trusting and confiding, while the defendant was masterful and compelling'.” In October, 1931, defendant caused to be prepared a property settlement agreement, by the terms of which plaintiff and defendant waived any rights in each other’s property and defendant agreed to pay plaintiff the sum of $100 a month for her own support and $50 a month for the support of each of the daughters. In January, 1932, defendant, through a former classmate, a lawyer engaged in the practice of his’ profession in the city of Aurora, caused to be filed in the City Court of Aurora a complaint for divorce in which defendant charged plaintiff with desertion. Before that proceeding was started defendant tried to make plaintiff institute divorce proceedings against him in some place other than Chicago, but she refused to do so. He told her that he could not afford the publicity of divorce proceedings in Chicago, that he had arrangements made for a divorce in Aurora, and that he had chosen an attorney for her. On January 29, 1932, defendant took plaintiff and one Meryl Foley in an automobile to Aurora. Neither plaintiff nor defendant had ever resided in that city. Defendant, through his former classmate, employed a lawyer practicing in Aurora to act as an attorney for plaintiff in the said proceedings, and he was paid for his services by defendant. Plaintiff had never met that lawyer before that day. Before leaving Chicago defendant told plaintiff that if she did not accompany him to Aurora, or if she made a defense to the said divorce proceedings, he would take the two daughters and go to South America, and that she would be left penniless and destitute. As the result of the threats, plaintiff accompanied defendant to Aurora. Upon arriving there she attempted to consult with the lawyer that defendant hired to represent her, but defendant and his former classmate prevented her from doing so. She told them that she wanted to employ independent counsel of her own choice, but defendant again threatened that if she interposed any defense to the divorce proceeding or employed independent counsel he would carry out the threats that he had made to her. No process was served upon her. From the time of their arrival in Aurora until the hearing of the cause but a very brief period of time elapsed. Because of the threats made by defendant she signed an answer to the complaint, which answer had been prepared without consultation with her. Defendant and his former classmate sought to prevent her from going into the courtroom on January 29, 1932, but they finally permitted her to sit in the back room, where she was able to see the proceedings but unable to hear what took place. She did not participate in the court proceedings. Defendant filed an affidavit that the matter was an emergency one, and the trial court immediately heard evidence. Defendant testified that he was a resident of the city of Aurora and that plaintiff had deserted him, and Meryl Foley testified that plaintiff and defendant were living separate and apart. Defendant took plaintiff back to Chicago the same day. That defendant’s testimony was perjury and was made for the sole purpose of inducing the judge presiding in the City Court of Aurora to believe that the cause of action, the alleged desertion of defendant by plaintiff, had occurred within the territorial limits of that city, stands admitted. In June, 1932, defendant married Verma Hansen and sometime in 1937, while defendant was still married to her, one Roberta Fames became the mistress of defendant; and in September, 1937, she and defendant resided together at the Broadmoor hotel in Colorado Springs, Colorado, where they held themselves out as man and wife. The evidence tends to show that sometime in the fall of 1937 defendant obtained a divorce from Verma Hansen in the State of Wyoming. He lived for a time with Roberta Fames in Chicago, in New Orleans, and in Colorado, but there is no evidence in the record that they were ever married.

At the conclusion of the evidence in the instant case, Judge LaBuy, when he sustained the motion of defendants for a finding in their favor, delivered an opinion, in which he states:

“The evidence offered herein discloses that at the time of the filing of said bill of divorce in said city court, the defendant, Biddlesbarger, was not a resident of the City of Aurora nor of the County of Kane in which said City of Aurora is situated. The evidence herein further shows that Fay Biddlesbarger, the plaintiff herein, was induced by threats of the said defendant not to interpose any defense to feaid bill for divorce; that said defendant employed an attorney for the plaintiff herein, and that said attorney, who pretended to represent plaintiff in said former proceeding, was in reality the agent of the defendant with reference to said proceedings; that there never was any service of process upon the plaintiff herein but that said attorney employed by the defendant entered the appearance of plaintiff herein and appeared in court and represented to the court that the plaintiff herein did not desire to contest said proceedings.
“The institution of the divorce proceedings in said city court and the actions of the defendant with reference to the fraudulent prevention of the plaintiff herein from contesting the said bill for divorce, were the acts of said Rufus Riddlesbarger and the plaintiff in no way participated or joined in the fraudulent representations to the said court in order to lead that court to assume jurisdiction of the defendant’s bill for divorce. The defendant herein so played upon the' credulity of the plaintiff that she was led to believe the fraudulent statements made by the defendant, and thus did not oppose the supposed breaking of the marriage ties between the plaintiff and defendant. The plaintiff herein was trusting and confiding, while the defendant was masterful and compelling, and thus the defendant was enabled to obtain a decree of divorce based upon a supposed residence in the City of Aurora when in fact the defendant was not such a resident, and based upon a supposed desertion of the defendant by plaintiff when in truth and in fact there was no basis for such charge of desertion against the plaintiff herein. The defendant was resolved in some manner to rid himself of his lawful wife, and in so doing acted in the perfidious manner disclosed by the record herein.
“This case presents a situation where said Rufus Riddlesbarger in making a false representation in his complaint and in his sworn testimony that he was a resident of Aurora practiced a flagrant fraud upon the said city court of Aurora. By virtue of that fraud that court took unto itself jurisdiction of the person of said Rufus Riddlesbarger, which jurisdiction that court could not have exercised if said Riddlesbarger had truthfully informed that court of the fact with reference to his residence. If those facts had been divulged to the court, it would have immediately held as a matter of law that the court did not have jurisdiction of the person of said Rufus Riddlesbarger, and consequently would have promptly dismissed said action for want of jurisdiction.” (Italics ours.)

After reviewing certain cases, Judge LaBuy further states: “Defendant claims that the plaintiff is es-topped to question said decree of divorce because of her laches and participation in the said decree of divorce after its entry.” The court after citing certain acts of plaintiff after the entry of the decree of divorce, concludes: ‘ ‘ The court holds that plaintiff is estopped by her conduct in pais from asserting any rights she may have had because of the claimed invalidity of the 1932 divorce decree.”

Defendants state, in their brief: * ‘ The only question for decision is whether the chancellor . . . erred or abused his discretion in concluding that an estoppel in pais existed.”

Plaintiff contends that “the divorce decree of the City Court of Aurora ... is void.” That court “had no power to enter judgments or decrees in civil cases where the alleged cause of action did not arise within the territorial limits of the City of Aurora. . . . The alleged cause of action for divorce was the desertion of Rufus Riddlesbarger by Fay Riddlesbarger. That cause of action did not arise within the territorial limits of the City of Aurora. Neither of the parties had ever resided in the City of Aurora, either together or separately.”

In Werner v. I. C. R. R. Co., 379 Ill. 559, the Supreme court states (pp. 560, 561):

“The Appellate Court affirmed a judgment of the city court of East St. Louis (309 Ill. App. 292) and leave to appeal was granted by this court. After the appeal was granted the appellant obtained leave of court to file a motion which for the first time raised a question of the jurisdiction of the city court. The motion was taken with the case and each of the parties filed supplemental briefs on the jurisdictional issues.
“The facts necessary to a consideration of the motion are, that in 1936 plaintiff Paul W. Werner resided in De Witt county and was in the employ of the defendant Hlinois Central Railroad Company as a brakeman. While so engaged in defendant’s railroad yards in Pana, Christian county, he received injuries. He instituted this suit in the city court of East St. Louis against the defendant claiming there was liability under the Federal Employer’s Liability act. Defendant maintained an office in East St. Louis and service was had upon it within the territorial limits of the city.
"Defendant’s motion to dismiss raises a question as to the territorial jurisdiction of the city court. It is contended that under the constitution and statute, city courts have no jurisdiction over a case where the cause of action declared upon arose without the territorial limits of the city. ” (Italics ours.) The court, ' after reviewing the constitutional provisions, the statutes, and the decisions bearing upon the question before it, concludes (p. 566):
“The city court of East St. Louis being without jurisdiction of the subject matter, the judgment is void and of no effect. Jurisdiction could not be conferred by the consent of the parties and was not waived by defendant’s appearance and participation in the trial. It is a question that may be raised at any time, even on appeal. Town of Audubon v. Hand, 223 Ill. 367; Town of Kingston v. Anderson, 300 id. 577. ’ ’ The judgments of the city court and the Appellate court were reversed. In Smith v. L. & N. R. R. Co., 381 Ill. 55, the Supreme court followed the Werner case, and held that where a city court was without jurisdiction because the cause of action arose outside the territorial limits of the city, it was without jurisdiction to consider a petition filed in such suit to enforce an attorney’s lien.

In the instant case it stands admitted that the alleged desertion did not arise within the territorial limits of the city of Aurora. Therefore the judgment entered by the City Court of Aurora was void and without any force whatsoever. Plaintiff and defendant were still husband and wife after the entry of that decree, and she had the right to file her complaint in the instant cause. Judge LaBuy states, in his opinion, that the trial judge of the City Court of Aurora would not have taken jurisdiction of the person of Riddlesbarger if the latter had told the truth as to his residence; that if Riddlesbarger had told the truth in that regard the trial court would have held, as a matter of law, that it had not jurisdiction of the person of Riddlesbarger and would have dismissed the cause. Undoubtedly, the City Court of Aurora had jurisdiction of the person of Riddlesbarger, and if he had told the truth the trial court would have dismissed the cause, not because it lacked jurisdiction of the person of Riddlesbarger, but because it lacked jurisdiction of the subject matter, vis., the charge of desertion.

In their brief defendants contend that the instant proceeding is a collateral attack upon the judgment of the City Court of Aurora upon the ground of want of jurisdiction in that court of the subject matter, and that, under the law, the want of jurisdiction must appear from an inspection of the judgment roll itself and no evidence dehors the record is admissible upon the point. We will consider this contention, although it is not consistent with another contention several times stated in their brief, that the only question for this court to decide is whether the chancellor erred or abused his discretion in concluding that an estoppel in pais existed; nor is it consistent with the admission made by the able counsel for defendants upon the oral argument, that plaintiff had the right to file her complaint and if she proved the fraud alleged therein she would prevail, provided that she were" not estopped by her conduct after the entry of the decree of divorce. Plaintiff contends that the law is settled that where a trial court is induced to enter a decree by fraud or misrepresentation of fact, which, if true, would give the court jurisdiction of the subject matter, the decree may be collaterally attacked at any time and in any proceeding.

In People v. Sterling, 357 Ill. 354, 364, 365, the court states:

“Notwithstanding these authorities and this well established principle, the appellant contends that because the decree in the Sangamon county circuit court was procured by fraud it must be treated as a nullity. In considering this point it must be borne in mind that there are two classes of frauds drawn in question in cases of this kind: First, there is that kind of fraud which prevents the court from acquiring jurisdiction or merely gives it colorable jurisdiction; and second, that kind of fraud which occurred in the proceedings of the court after jurisdiction had been obtained, such as perjury, concealment, and other chicanery. The first variety of fraud will invalidate the decree, rendering it an entire nullity. On the other hand, it is well established that the second class has no such legal effect. One of the earlier cases in this State on the point is Caswell v. Caswell, 120 Ill. 377, which cites the case of Greene v. Greene, 2 Gray, 361, hereinabove quoted from, and also the case of Edson v. Edson, 108 Mass. 590. The rule is laid down as herein stated. In the case of Burton v. Perry, 146 Ill. 71, the following statement is found: ‘ Counsel for appellees charge that the proceeding of 1869 was a fraud perpetrated upon the courts by Cook and that no such contract of sale as is therein set up ever existed. . . . But if it were true that Cook was guilty of the fraud charged against him, it was not such a fraud as goes to the jurisdiction of the court rendering the decree of 1870 and therefore is unavailable in a collateral attack upon the proceedings of 1869.’ In Evans v. Woodstvorth, 213 Ill. 404, we said: ‘ Courts of equity will not, however, set aside a decree upon the ground that it was obtained by false evidence but only for fraud which gives a court color-able jurisdiction over the defense presented.’ In Beck v. Lash, 303 Ill. 549, this court said: ‘There are two kinds of fraud as applied to judicial proceedings: Fraud in obtaining an order or decree by false testimony, and fraud which gives the court only colorable jurisdiction. It is only the latter that renders collateral attacks effective or renders a decree void as to all parties affected. ’ The same rule is again stated in Foutch v. Zempel, 332 Ill. 192.”

In the late case of Herb v. Pitcairn, 384 Ill. 237, 241, the court states that where there is a want of authority over the subject matter the judgment is open to successful impeachment, if such fact is made to appear from the face of the record or by matters dehorp.

The case of In re Estate of Goldberg, 288 Ill. App. 203, is directly in point, and the judgment of the Appellate court is strengthened by the fact that our Supreme court denied an appeal therefrom (288 Ill. App. xv), and a petition for certiorari was denied by the Supreme Court of the United States (302 U. S. 693). In that case, Philip Goldberg was a resident of Highland Park, Lake county, Hlinois. His wife, Minnie Libby Goldberg, was adjudged insane on August 22, 1906. On June 28,1909, Goldberg filed his bill for divorce in the Circuit court of Cook county, in which he alleged that his wife was guilty of extreme and repeated cruelty prior to the time that she became insane, and he further alleged that he was a bona fide resident of Cook county. Upon the hearing he testified falsely that he was an actual resident of Cook county' and thereby obtained a decree for divorce. The wife was represented by a guardian ad litem appointed by the court. Shortly after Goldberg obtained that decree he married Goldie F. Davidson, in Kenosha, Wisconsin,' and they lived together as husband and wife until the death of Goldberg. Letters of administration were then taken out on his estate in the Probate court of Lake county. Minnie Libby Goldberg, through her attorney, asked the Probate court to declare that the divorce proceedings in Cook county were null and void for the reason that Goldberg and his attorney had perpetrated a fraud upon the Circuit court of Cook county in that at the time of said divorce proceedings Goldberg was not a resident of Cook county but was a resident of Lake county, and the Circuit court of Cook county did not have jurisdiction of the case. After a hearing the Probate court found against Minnie Libby Goldberg. The case was appealed to the Circuit court of that county and after a hearing that court entered an order finding that at the time of the divorce proceeding Goldberg was not a resident of Cook county but a resident of Lake county; that Goldberg and the attorney and guardian ad litem of Minnie Libby Goldberg in the divorce proceeding had perpetrated a fraud upon the court and induced the court to take jurisdiction in the case and grant the divorce; that the court was without jurisdiction to hear said case; that the decree entered was null and void, and that Minnie Libby Goldberg is the lawful widow and an heir at law of Philip Goldberg, deceased. Goldie Goldberg appealed from that decree. The Appellate court concluded that the evidence clearly showed that at the time Goldberg filed his suit for divorce in Cook county and at the time of the hearing of the cause in that court he was not a resident of Cook county but was a tona fide resident of Lake county. In its opinion the court states (pp. 207, 208) :

“The question then arises in what court can the validity of this divorce proceeding be questioned. Is it necessary to file a bill of review, or some other appropriate action in Cook county to question the validity of this divorce, or can it be raised, as it is done, in this case by a collateral attack? It is insisted by the appellant that a divorce decree procured by fraud cannot be collaterally attacked and the recitals in the decree are conclusive in our courts. There are many cases that hold that this is the correct rule, but there are exceptions to this rule and the main one is that where the fraud which gives the court, only colorable jurisdiction, renders the decree void and subject to collateral attack. From the evidence in this case, it is our opinion that Philip Goldberg perpetrated a fraud upon the circuit court of Cook county, and gave it only color-able jurisdiction to hear his case, and that the decree rendered by the said court was void and subject to collateral attack. Our courts have frequently held that a decree will not be set aside upon the ground that it was obtained by false evidence, but only for fraud that gives the court colorable jurisdiction. Evans v. Woodsworth, 213 Ill. 404; Caswell v. Caswell, 120 Ill. 377.”

After reviewing further authorities the court states (p.213):

“It is our conclusion that the circuit court of Lake county properly found that Philip Goldberg, at the time he filed his suit for a divorce and the hearing of the same was not a resident of Cook county, Illinois, but was a resident of Lake county, Illinois, and that he perpetrated a fraud upon said court in procuring said divorce, and that said court did not have jurisdiction of the parties and the subject matter of the suit, and that the same was null and void.”

The decree of the Circuit court was affirmed save as to that part which found that the attorney who appeared as guardian ad litem for Minnie Libby Goldberg was also guilty of perpetrating the fraud on the court at the time of the divorce proceeding, the Appellate court holding that that part of the decree was not sustained by the proof.

If we are right in holding, as we do, that the decree of the City Court of Aurora is void, it is unnecessary for us to consider the court’s holding, .upon which he based his ruling, that “plaintiff is estopped by her conduct in pais from asserting any rights she may have had because of the claimed invalidity of the 1932 divorce decree.” However, in view of the undisputed fact that defendant and his coconspirators perpetrated a brazen fraud upon the City Court of Aurora and thereby induced the judge of that court to enter the divorce decree, we feel impelled to state that, even if it could be held that the decree of that court is not absolutely void, nevertheless, equity should not lend its aid to the wrong’doer, who seeks, in effect, to have the decree held valid. It has been often stated that the doctrine of estoppel is called into being for the prevention of fraud, and that it should never be exercised in aid of fraud. As bearing upon the conduct of plaintiff after the entry of the divorce decree, it must be noted that she supposed that the divorce decree was valid, until August, 1942, when she was informed by her attorney that in his opinion the decree was void.

The judgment order of the Circuit court of Cook county is reversed, and the cause is remanded with directions to overrule defendants ’ motion for a finding in their favor and for further proceedings not inconsistent with this opinion.

Judgment order reversed, and cause remanded with directions.

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


text:
    Frank P. Burnett et al., Appellees, v. Garfield State Bank et al., Defendants. Howard R. Baldwin et al., Appellants.
    Gen. No. 42,904.

      Opinion filed (November 6, 1944.
    Released for publication November 24, 1944.
    Campbell, Clithero & Fischer, of Chicago, for appellants.
    John C. DeWolfe and McInerney & Power, all of Chicago, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

A proceeding to enforce the superadded liability of stockholders of the Garfield State Bank, a corporation whose existence was terminated on November 12,1929. The'decree, entered upon a master’s report, directs the defendants who prosecute this appeal to pay to the receiver the respective amounts for which they were found to be liable. The said defendants, the amount entered in the decree as to each, and the number of shares that each was liable on, appear from the following table:

Name of Defendant Amount of Number of Shares

Decree Liable on

Howard R. Baldwin $ 500 5

Delbert A. Clithero» 2,700 79

Charles.E. Erich 100 1

John H. Kenna 2,000 23

T. A. Jackson 8,300 108

A. A. Marquart 5,500 115

Frank P. Doss 700 7

Wirt Wright 1,000 10

The decree did not exact full liability on the shares held by defendants Clithero, Kenna, Jackson and Mar-quart, because credit was given on the liabilities which accrued during the period the said defendants held their stock, on account of payments made by the receiver from dividends (44%) in the dissolution suit and by payments made by contemporaneous stockholders.

The Garfield State Bank was organized on June 6, 1913, under the name of Garfield Park State Savings Bank, with a capital of $200,000, which was increased from time to time to a capital of $600,000, divided into 6,000 shares of stock of $100 each. The name of the bank was changed to Garfield State Bank, which is frequently referred to in the record as the old Garfield State Bank. It continued to do business as a bank until November 12,1929, when it was consolidated with the West Madison State Bank under the name of Garfield State Bank (hereinafter sometimes called the consolidated Garfield State Bank). On that date the auditor of public accounts issued a new charter to the consolidated Garfield State Bank, which had a capital of $800,000. This bank continued to do business until June 11, 1931, when it was closed by the auditor of public accounts, who appointed a receiver of the bank on August 12, 1931. On August 19, 1931, the auditor filed a bill for its dissolution in the Circuit court of Cook county. Defendant Clithero was president, defendant Marquart was vice president, and defendant Kenna was cashier of both the old Garfield State Bank and the consolidated Garfield State Bank. Defendants Ross and Jackson were directors in both banks, and Ross was chairman of the board of directors of the consolidated Garfield State Bank.

In their brief the defendants (appellants) state: ‘ ‘ The only question we urge in this appeal is whether the case of Madigan Bros., Inc. v. Garfield State Bank constitutes a former adjudication in bar of the present suit,” and they contend: “The proceedings and decrees in Madigan, et al. v. Garfield State Bank, et al., Superior Court Number 542554 as to the defendants appealing are res adjudicata of every issue involved in the instant case, as every one of these defendants was a party to the Madigan suit, and if there is any issue herein not decided in the Madigan case, it was clearly within the issues and could have been decided in that case. A. The liability of a bank shareholder in a state bank in Illinois to the creditors of the bank is a single liability to all the creditors as a class limited by (1) the par value of his stock; and (2) the unsatisfied liabilities of the bank that accrued while he was a shareholder. B. The doctrine of res adjudicata extends not only to the questions which were actually decided in the former case but to the whole controversy; to all matters properly involved which might have been raised and determined, and to all grounds of recovery or defense that the parties might have presented, whether they did or not. C. It is not material whether the former decree was erroneous or correct. It stands until reversed or modified in a direct proceeding and may not be collaterally attacked. D. The rule of res adjudicata applies with equal force to representative suits when the remedy is pursued by a plaintiff who had the right to represent the class to which he belonged, and all other members of the class are bound by the judgment in the case until it is reversed or set aside in direct proceedings for that purpose. E. Counsel for plaintiffs in a representative suit, after adjudication of the rights of the class, may not procure the vacation of the judgment or decree, select another member of the class with a different name as a representative plaintiff and prosecute another representative suit.”

Plaintiffs’ answer to defendants’ contention is: “Plaintiffs’ theory of the case is that there was no former adjudication in the Madigan case of the liabilities of the defendants in the present case. Two of the present defendants, Baldwin and Wright were voluntarily dismissed, in accordance with law, from the Madigan case on March 24, 1934. As to the other defendants herein on the same date, a second amended and supplemental bill of complaint was filed in the Madigan case limiting the scope of that suit to their stock-holdings in the consolidated Garfield State Bank. The decrees and orders in the Madigan case fixing and determining the liabilities of the defendants herein, other than Baldwin and Wright, were clearly confined to their stock in the consolidated bank. The consolidated Garfield State Bank and the old Garfield State Bank were two separate and distinct banking corporations; their creditors and liabilities were separate and distinct. There is no precedent in the reviewing court of this state for a single stockholders’ liability suit to enforce the liability of the stockholders of two distinct banking corporations. The liability of the defendants herein was not a single liability to the creditors of either the old Garfield State or the consolidated Garfield State Bank, as a class, but to the creditors of each bank, whose claims accrued during the time the respective defendants held their stock. Plaintiffs did not split their cause of action against defendants or either or any of them, but pursued two distinct causes of action, as they had a perfect right to do. Defendants in the Madigan case strenuously objected to a single suit to enforce the liabilities of the stockholders of both the old Garfield State Bank and the consolidated Garfield State Bank. They are now es-topped from questioning in the present case, the procedure in the Madigan case.”

The Madigan case, which is the sole basis for defendants’ appeal, was commenced in the Superior court of Cook county on September 3, 1931, and the original bill sought to enforce the liabilities of all of the stockholders of both the old Garfield State Bank and the consolidated Garfield State Bank from the organization of the bank in 1913 down to June 11, 1931, the date on which the bank ceased to do business. The first amended and supplemental bill filed in that case was not materially different from the original bill save that it purported to be a consolidation of various bills filed by other creditors for the purpose of enforcing liabilities of the stockholders of the Garfield State Bank. In demurrers and answers filed by certain defendants to the original and first amended and supplemental bill it was alleged, inter alia, that the consolidated bank was a separate and distinct corporation from the old Garfield State Bank and the West Madison State Bank and that its creditors were different, and that the complainants had no legal right to enforce the liabilities of the old Garfield State Bank in the Madigan proceeding. The demurrers were overruled and the defendants who filed them were ordered to answer the first amended and supplemental bill of complaint. A typical answer is that of James Stirling, Jr., et al., wherein they aver “that on November 12, 1929, there was a statutory consolidation of the West Madison State Bank with the Garfield State Bank and that all of these defendants have disposed of their stock in the said Garfield State Bank prior to its consolidation and by reason thereof are not liable as stockholders to the creditors of the consolidated Garfield State Bank.” After the case was at issue it was referred to a master, who began hearings on August 7, 1933. During the hearings counsel for certain of the defendants continued to raise the point made by Stirling, Jr., et al. in their answer. Defendants (appellants), in their brief, deny that any of them raised the point in the Madigan case that the liabilities of the old Garfield State Bank and the consolidated Garfield State Bank could not be adjudicated in the one suit. The record shows, however, that they did not in any apt way assert the position they now take, nor did they file any objections to the master’s report based upon their instant theory that the bill of complaint in the Madigan case split the canse of action against them, nor did they appeal from the decree of July 16,1936, that affirmed the master’s report, and plaintiffs call attention to the fact that defendants Jackson, Boss and Erich, before the decree was entered in the Madigan case; upon petitions filed by them, were allowed to settle their liabilities as stockholders in the consolidated Garfield State Bank for approximately 70 cents on the dollar; that as to the three defendants, Clithero, Marquart and Kenna, against whom decrees were entered in the Madigan case, Clithero settled for 25 cents on the dollar his liabilities to the consolidated Garfield State Bank; Mar-quart settled for 10 cents on the dollar, and Kenna paid nothing. As Baldwin and Wright had been voluntarily dismissed from that case, no decretal order was entered as to them. To follow up the history of the Madigan case: On March 24, 1934, the complainants, after due notice, filed their verified petition for leave to file instanter a second amended and supplemental bill of complaint, “and for the entry of an order dismissing out of the cause and proceedings, without prejudice, all defendants heretofore made parties to this cause, who held no stock in the Garfield State Bank . . . after the consolidation . . . with the West Madison State Bank. ’ ’ The petition alleges, inter alia, the reference to the master, that various hearings were held before him at which various parties produced evidence and introduced exhibits, and that proof before the master had been closed; that the contention has been advanced by defendants in the cause that the consolidated Garfield State Bank, existing after November 12,1929, was a separate and distinct corporation from the old Garfield State Bank, and that the liabilities of the stockholders in the two institutions cannot be enforced in a single action, nor can such stockholders be joined in a single suit; that complainants bring the proceedings in a representative capacity, on behalf of themselves and all other creditors of the Garfield State Bank, which closed its doors on or about June 11,1931, and therefore regardless of the correctness of the contention advanced, complainants consider it their duty to so conduct the suit that they will not in any way hazard the enforcement of the liabilities in behalf of creditors or'stockholders of the Garfield State Bank, which closed its doors on or about June 11, 1931, with liabilities aggregating a far greater total in amount than the aggregate of the liabilities of stockholders holding stock in the Garfield State Bank prior to November 12, 1929, and that in view of said contentions, complainants deem it to the best interest of the creditors, whom they represent, to confine the proceedings to the determination of liabilities of stockholders holding stock in the Garfield State Bank, on or subsequent to November 12, 1929, in accordance with the second amended and supplemental bill of complaint, “which complainants ask leave to file herein instanter and to dismiss out of these proceedings, without prejudice, all defendants named therein, who held no stock in the Garfield State Bank from and after November 12, 1929.” The petition avers that petitioners-were not fully apprised of all of the circumstances connected with the so-called consolidation at the time of the filing of the amended and supplemental bill of complaint and that they have taken advantage of the earliest opportunity since said matters and the said contention were brought to their notice, to direct the court’s attention thereto, and that it would be unjust and unfair to the complainants represented by the petitioners to require them to proceed to a decree without permitting them to file a second amended and supplemental bill of complaint to conform to the evidence produced before the master. The petition prays that petitioners be given leave to file their said complaint; that defendants be ordered to answer and that an order be entered dismissing out of the cause without prejudice certain parties named in the amended and supplemental bill of complaint, naming, among others, two of the present defendants, Howard R. Baldwin and Wirt Wright. The petition asked that the order closing proofs before the master be set aside, the case reopened, and that the filing of the second and amended supplemental bill be without prejudice to the reference. On the date that the petition was filed, March 24, 1934, an order was entered giving leave to complainants to file instanter their second amended and supplemental bill to conform to the evidence offered before the master and without prejudice to the reference; that defendants answer within twenty days, or allow their answers to the first amended and supplemental bill to stand; that the order closing proofs before the master be set aside and leave be given to the parties to introduce further evidence. The order provides that some 338 defendants, including Howard R. Baldwin and Wirt Wright, appellants, are dismissed out of the cause, “with prejudice in so far as these proceedings are concerned.” There is nothing in the record to show that the instant defendants objected to the granting of the prayer of the petition. The second amended and supplemental bill of complaint in the Madigan case alleges “that it is brought in lieu of the bills of complaint hereinbefore filed by the above complainants, and heretofore consolidated,” and that where the term “Garfield State Bank” is used in the complaint, it is intended to designate the bank formed by the consolidation on November 12, 1929. Paragraph 8 sets out the names of the defendants, the stock which they held, and the period of time it was held. Among the defendants named are Delbert A. Clithero 663 shares, Charles E. Erich 4 shares, T. A. Jackson 13 shares, J. H.. Kenna 22 shares, A. A. Marquart 100 shares, Frank P. Ross 1065 shares. All of these shares were held by said defendants at the closing of the bank on June 11, 1931, with the exception of ten shares that Marqnart disposed of on December 6, 1930. Howard E. Baldwin and Wirt Wright, appellants, do not appear in the list. The final decree in the Madigan case provides that wherever the name “Garfield State Bank is used it refers only to the banking corporation created on November 12,1929.” That decree ordered Clithero as the holder of 663 shares to pay $66,300, Henna as the holder of 22 shares to pay $2,200, and Marqnart as the holder of 100 shares to pay $10,000. On October 28, 1937, under court order, Marqnart settled the decree against him for $1,000 and the decree as to him was satisfied of record; on September 1, 1940, Clithero settled the decree against him for $66,300 for $15,500, and the decree as to him was satisfied of record; Henna paid nothing on the decree against him. Baldwin and Wright had been dismissed as defendants on March 24, 1934. They were, of course, not decreed to pay anything in that case. All of the defendants who parted with their stock prior to November 12, 1929, were dismissed from that case under a court order of March 24, 1934. It seems appropriate to state at this point that not one of the hundreds of defendants im- • pleaded in the Madigan case and who were adjudged to pay the amounts for which they were held liable, appealed from the decree entered in that case.

Sec. 6 of Art. XI of the Constitution [Jones Ill. Stats. Ann. vol. 1, p. 473] of this State provides: “Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder.” Defendants state that “The language of the constitution was specifically construed in Heine v. Degen, 362 Ill. 357, where the Supreme Court held that the liability of a stockholder created by the constitution was a liability to all of the creditors of the bank generally, the amount of which is limited first by the par value of his shares and, second, by the total amount of liabilities accruing while he or she remain such stockholder,” and they contend, “From the foregoing principles it is clear that the bank stockholders’ liability is not a liability upon certain specific shares of stock, nor is it a liability to specific individual creditors for individual deposits made in any given period. On the contrary, it is a direct liability to the creditors of the bank as a class and the number of shares held and the liabilities accruing during the period of ownership are but measures of or limitations upon the amount for which the stockholder can be held liable. Manifestly a liability of this character cannot properly be split up or divided either upon the basis of the shares represented by a particular certificate of stock nor the liability accruing in some particular period in the history of the bank. This proposition is also established by the decision in Heine v. Degen, 362 Ill. 357, where the court held (page 375) that the theory of certain stockholders that the bank should be separated into two distinct banks before and after reorganization was fallacious. This proposition alone should be conclusive of the case at bar.” The logical effect of defendants’ argument is that under the ruling in the Heine case it was the duty of complainants in the Madigan case to enforce in that proceeding the superadded liability of all of the stockholders from the organization of the bank ino1913 to its closing in 1931; that they failed in that regard, and therefore the doctrine of res judicata applies to the proceedings in the instant case. In Holderman v. Moore State Bank, 383 Ill. 534, the court distinctly states that it was not intended in Heine v. Degen to overrule its former rulings in the well known case of Golden v. Cervenka, 278 Ill. 409. In the opinion in the Holderman case the court states (pp. 539, 540, 541, 542):

“Probably the most exhaustive discussion of the question of when a stockholder is liable and for what he is liable is to be found in Golden v. Cervenka, 278 Ill. 409. In that case it is repeatedly pointed out that the stockholder of a bank is liable only for. the debts accruing during the time he is a stockholder, and is not liable for any debts accruing before he is a stockholder, or after he has ceased to be a stockholder. We said: ‘The constitutional liability of the stockholders to the bank’s creditors is “for all its liabilities accruing while he or she remains such stockholder.” . . . Under the constitution and the statute the stockholder is responsible to the amount of his stock for all the liabilities of the bank which are incurred during his ownership of stock and no more, and such responsibility continues until the liability is paid or otherwise discharged. ’ ((
“It is thus to be observed that in Golden v. Cervenka, 278 Ill. 409, the court not only held it was erroneous to hold stockholders for liabilities accruing prior to the time of becoming stockholders,' but also said the stockholder is liable for only such debts as accrued during his ownership of stock. In the Sanders case [Sanders v. Merchants State Bank, 349 Ill. 547] it limits the liability more precisely by saying the stockholder remains liable after the transfer of stock to the same extent as before, but not for any debt subsequently accruing, and repeatedly announces the stockholder is responsible to the amount of his. stock for all of the liabilities incurred during his ownership and no more.
“There is no indication Heine v. Degen, 362 Ill. 357, was intended to overrule this interpretation of the stockholder liability, because in Comstock v. Morgan Park Trust and Savings Bank, 363 Ill. 341, we said: ‘Nearly twenty years ago this court in unmistakable language in Golden v. Cervenka, 278 Ill. 409, interpreted section 6 of article XI of the State constitution, relating to stockholders’ liability. In at least three later cases we have announcéd our adherence to the views expressed in Golden v. Cervenka. Hundreds of eases involving that liability have been before the circuit, superior and Appellate Courts of this State. . . . Millions of dollars have been paid on the strength of them, and it would be destructive of the stability of the decisions of this court to further permit reiterations of the claim that the meaning of section 6 of article XI of the constitution is in doubt or is undetermined. ’ < £
“The holding in Heine v. Degen and Hillmer v. Chicago Bank of Commerce, [375 Ill. 266] so far as it affects the liability of a' contemporaneous group of stockholders, is confusing. The correct rule of liability is set out in Golden v. Cervenka, Sanders v. Merchants State Bank and Burket v. Reliance Bank and Trust Co. [366 Ill. 98]. With this measure of liability thoroughly established it would be inaccurate to say a stockholder is liable to any other creditor of the bank than one whose debt accrued while he is a stockholder, and to say that such stockholder is liable to all of the creditors of the bank would render him responsible to creditors who existed both before and after the time he was a stockholder, which is directly contrary to the established rule of a stockholder’s liability.
“To the extent that Heine v. Degen apparently makes a stockholder for a given period liable for debts which accrued before or after his period of' stock ownership it is inaccurate, and consequently is not adhered to.”

It follows, from the holding in the Holderman case, that the defendants in the instant case were not liable to the creditors of the old Garfield State Bank or the consolidated Garfield State Bank, as a class, but only to creditors of either bank whose claims accrued during the time that the respective defendant held his stock. Neither the Heine case nor the Holderman ease is an authority in support of defendants’ contention that the constitutional liabilities of the stockholders of the old Garfield State Bank and the stockholders of the consolidated Garfield State Bank must be determined in one suit. But defendants contend that the court in Heine v. Degen laid down the rule that the proper practice was for all creditors to join all of the stockholders in one suit to enforce their constitutional liability and that this holding was reaffirmed in Holderman v. Moore State Bank. What we have heretofore stated as to the effect of the holding in the Holderman case applies with equal .force to the instant contention. In support of their contention defendants rely upon the following language in the Heine case (p. 375):

“The theory as to withdrawals held by the appellants, under which they would separate the bank into two distinct banks, that before and that after the reorganization of February 15, 1929, is fallacious. It must be treated as one bank, and the rule that the first money deposited is the first withdrawn must be applied, as it was by the chancellor, from the founding of the bank.”

But the court also states (pp. 360, 361):

' The facts found by the decree were: The American State and Savings Bank was organized April 3, 1911. The name was changed January 11, 1921, to the Legris Trust and Savings Bank, and on February 20, 1929, to the American Trust and Savings Bank of Kankakee, Illinois. The- capital stock was increased on the last named date from $100,000 to $150,000. The stockholders of record received one share of stock in exchange for two shares previously held by them and the remaining $100,000 of stock was sold. On December 27,1929, the bank suspended business, and on January 23, 1930, because the bank’s capital was hopelessly impaired, the Auditor of Public Accounts appointed Fred G. Snow receiver.”

It appears, therefore, that there was no consolidation of banks involved in the Heine case, nor was there any consolidation of bank's in the Holderman case. The liability of the stockholders of the West Madison State Bank was determined in Burnett v. West Madison State Bank, 375 Ill. 402. The opinion in that case states the facts as to the consolidation of the West Madison State Bank and the Garfield State Bank on November 12, 1929, the closing of the Garfield State Bank by the auditor on June 11, 1931, without having paid all of the indebtedness of the West Madison State Bank; that in August, 1937, Frank P. Burnett, a depositor of the West Madison State Bank and a creditor of that bank at the time of the consolidation, filed a complaint to enforce the superadded liabilities of the stockholders of the West Madison State Bank, and that the suit was prosecuted as a representative action. The opinion then states (p. 404): “Appellee Novak, a stockholder of the bank, owning five shares from February 10, 1925, to February 9, 1928, moved to strike the amended complaint and dismiss the suit on the grounds (1) . . . and, (2) that by the consolidation proceeding the Garfield State Bank had assumed the liabilities of the West Madison State Bank and, by operation of law, the stockholders were thereby discharged from the constitutional liability.” The court states (pp. 410, 411): “The appellant [Burnett], as a depositor of the West Madison State Bank, was in no position to prevent the consolidation and it does not appear from the complaint that he consented to the release of the liability of that bank and the substitution of the Garfield State Bank as his debtor. The facts alleged are consistent with the idea that he might have intended to look to both banks for payment. In the absence of clear proof of novation, the fact of consolidation would make the Garfield State Bank an additional debtor and, by accepting part payment from the additional promisor, the claim would not be relinquished against the former bank or the liability of its stockholders thereby discharged. The fact that the creditor knew of the consolidation and received part payment from the consolidated bank would not constitute a novation as a matter of law. Walker v. Wood, supra [170 Ill. 463]; 87 A. L. R. 281.” See, also, Continental Casualty Co. v. Hein, 368 Ill. 289, 293; and the same case in 297 Ill. App. 643 (Abst. opinion), where the Appellate court said: “The obligation of the Milwaukee Bank was not wiped out by its consolidation with another corporation.” The court, after quoting from the Banking Act (chap. 16%, sec. 12, Ill. State Bar Stats., 1937, p. 195 [Jones Ill. Stats. Ann. 10.13]), continues: “On principle it would seem that as against plaintiff these eighteen stockholders of the Milwaukee-Western State Bank are liable if (as is alleged in plaintiff’s third amended complaint) the indebtedness of that bank to plaintiff accrued during a period of time in which these defendants were holders of stock in the Milwaukee State Bank. It may well be (as cases cited by defendants indicate) that after the consolidation the Armitage State Bank by reason thereof was liable to plaintiff for this indebtedness in case plaintiff elected to enforce the liability. It would by no means follow that these eighteen were released from their liability. ... If the suit should have been dismissed as to these two defendants, it nevertheless was- error to dismiss it for want of equity as to the other defendants who were stockholders of the Milwaukee-Western State Bank who never became stockholders of the consolidated bank and who were not defendants to the bill brought to enforce their liabilities as stockholders of that bank.” The contention of plaintiffs that “the consolidation of the West Madison State Bank and the old Garfield State Bank did not release their stockholders from liability, ’ ’ is sound; in fact, the defendants do not seem to contend otherwise, as their sole ground for the reversal of the instant decree is based upon the doctrine of res judicata. The statement of plaintiffs that “there is no precedent in the reviewing courts of this State for a single stockholders’ liability suit to enforce the liabilities of the stockholders of two distinct banking corporations,” seems to be warranted. In any event, defendants haye failed to cite a single case, akin to the instant one, that sustains their contention. As many of the defendants in the Madigan case insisted, the old Garfield State Bank and the consolidated Garfield State Bank were separate corporations, and the liability of the stockholders of the old Garfield State Bank and the liability of the stockholders of the consolidated Garfield State Bank involved two distinct causes of action. Why should the creditors of the old Garfield State Bank in a proceeding brought by them against the stockholders of that bank be compelled to assume the burden of litigating the rights of the creditors of the consolidated Garfield State Bank against the stockholders of that bank? As we have heretofore stated, defendants Clithero, Kenna and Marquart made no affirmative objection to the procedure finally followed in the Madigan case; indeed, their actions in that case indicated that they were satisfied with the procedure finally followed and with the decree so far as it affected them.

Other points in support of their sole contention are raised by defendants, but it would unduly extend this already lengthy opinion to answer all of them. Suffice it to say that we find no real merit in any of them.

Defendants in the instant case were not called upon to pay the same liabilities twice. Indeed, their sole defense is based upon the theory that the doctrine of res judicata applies because the plaintiffs should have enforced their claims in the instant suit in the Madigan case. The following table shows that the instant suit was brought to enforce payment only upon shares of stock that were eliminated by the second amended and supplemental bill in the Madigan case:

No. of Shares In-No. of Shares In-No. of volved in volved in Shares In-Name of First Second volved in Appellant Amended Amended Complaint in Bill in the Bill in the the Instant Madigan Madigan Suit Case Case
Howard R. Baldwin 5 0 5.
Delbert A. Clithero 742 663 79
Charles E. Erich 5 4 1
T. A. Jackson 131 23 108
John H. Henna 45 22 23
A. A. Marquart 205 100 115
Prank P. Ross 1,072 1,065 7
Wirt Wright 10 0 10

In the first amended and supplemental bill of complaint the number of shares held by Marquart in the old Garfield State Bank and in the consolidated Garfield State Bank was erroneously stated as 205, but the correct number was 215. A great many other defendants were impleaded with the appellants in both suit's. Plaintiffs state: “The numerous other defendants in both the Madigan case and this case were content to pay or to settle the decrees against them without appeal;” and “Defendants, who were, officers and directors of these banks [the old Garfield State Bank and the consolidated Garfield State Bank] were directly responsible for the enormous losses to the creditors of these banks. They have resisted attempts of creditors to enforce stock liability against them for more than twelve years. They have profited by payments made by contemporaneous stockholders and are now resisting upon an outworn theory that their liabilities were adjudicated in the Madigan case, or at least might have been adjudicated.” Defendant Delbert A. Clithero was president of the old Garfield State Bank and the consolidated Garfield State Bank. The creditors of the two banks suffered great losses. The decree in the Madigan case, entered April 6, 1936, ordered Clithero as the holder of 663 shares of stock to pay to the receiver $66,300. As he did not appeal from that order he, impliedly at least, admitted the justice of it. On September 1, 1940, he settled that decree against him for $15,500. In view of the leniency that was extended to him in the Madigan case, it would seem that he would have cheerfully paid the just judgment against him in this case, instead of presenting a defense that is lacking in equity. What we have just stated as to Clithero applies also to the other bank officers who have appealed. None of the numerous defendants in the Madigan case appealed from the decretal judgment entered against them. Of the many stockholders impleaded with the defendants in the instant case, only eight have appealed; five of these were officers in the old Garfield State Bank and the consolidated Garfield State Bank, and the total of the decretal judgments against the other three appellants is only $1,600. $1,500 of that amount is against two defendants, Baldwin and Wright, who were dismissed from the Madigan case, and the sole defense interposed for them, res judicata, hardly merits serious consideration.

After a careful consideration of this appeal we have reached the conclusion that there is no equitable reason why the decree of the Superior court of Cook county against the defendants (appellants) should be reversed as to them, and it is accordingly affirmed as to them.

Decree affirmed as to defendants (appellants).

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