author: Mr. Justice Wolfe

text:
    Louis Meppen, Individually, and Louis Meppen, Executor of Last Will and Testament of Wilhelmina Meppen, Deceased, Appellant, v. Arthur Meppen et al., Appellees.
    Gen. No. 9,932.
    Heard in this court at the October term, 1943.
    Opinion filed February 16, 1944.
    Rehearing denied March 10, 1944.
    Leave to appeal and cer- . tificate of importance granted March 10," 1944.
    Clyde Smith, of Dixon, for appellant.
    Warner & Warner, of Dixon, for appellees; Henry C. Warner, of Dixon, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

Louis Meppen, in his own right, and Louis Meppen as executor of the last will and testament of Wilhelmina Meppen, deceased, filed a complaint in the circuit court of Lee county, Illinois, for partition of certain lands in said county. Arthur Meppen, William Meppen, Lucy Wadsworth, H. L. Wadsworth, Olive Meppen, Jessie Meppen, Olive Hart Meppen, Alice Meppen and Martha Meppen, as heirs of Wilhelmina Meppen, were made parties defendant to the suit. Louis Pitcher, Dement Schuler and Leonard G-. Borer, trustees of the City National Bank of Dixon, Illinois, were also made parties defendant to the suit.

The complaint alleges that Louis Meppen is entitled to one undivided one fourth of the premises; that Arthur Meppen is entitled to one undivided one fourth thereof; that Lucy Wadsworth is entitled to one undivided one fourth thereof, subject to the claim of Louis Meppen as executor of the last will and testament of Wilhelmina Meppen, deceased, on her note for the sum of $3,900 (secured by trust deed); that William Meppen is entitled to one undivided one fourth thereof, subject to the balance due on his note of $1,200 and subject to a certain mortgage dated January 17, 1928, given to secure Alice Meppen against loss because of having signed a note of said William Meppen to the City National Bank of Dixon, Illinois, as surety for the sum of $1,475 and subject also to the lien of a judgment entered in the circuit court of Lee county, Illinois, on September 10, .1938, in favor of Louis Pitcher, Dement Schuler and Leonard G-. Borer, trustees of the City National Bank of Dixon, Illinois, a corporation, against W. H. Meppen and Alice Meppen for the sum of $1,175.06.

The complaint further alleges that said William Meppen is insolvent and said- indebtedness to the estate secured by his note was an advancement, and the county court had so decided; that the share of Lncy Wadsworth in the assets of the estate of Wilhelmina Meppen is insufficient to offset her liability on her said note and the share of William Meppen in said assets is insufficient to offset his said indebtedness to said estate.

The plaintiffs pray for the partition of said real estate and that the indebtedness of William Meppen be declared to be a first lien upon his one-fourth interest, and prior and superior to, the lien of the judgment in favor of said Louis Pitcher et al., trustees, etc., and that upon a sale of' said property the share of William Meppen shall be paid to Louis Meppen, as executor, to be administered in the county court, etc., and for general relief.

Louis Pitcher, Dement Schuler and Leonard G-. Borer, trustees, as aforesaid, appeared and moved, that the complaint of Louis Meppen, as executor of the last will and testament of Wilhelmina Meppen, de-. ceased, be stricken and that he be dismissed as a party to this suit.

The court on July 17, 1943, ordered that the complaint of Louis Meppen, as executor of the last will and testament of Wilhelmina Meppen, deceased, be stricken and that he be dismissed as a party to this suit. This case is an appeal from that order.

The only question for our consideration is whether the trustees of the City National Bank of Dixon, Illinois, because of the judgment which they had procured against William Meppen in .1938, have a prior claim on William Meppen’s interest in the estate of his deceased mother, or whether the executor of the estate of Wilhelmina Meppen should first be paid the indebtedness which is owed by William Meppen to the estate, or should be deducted or charged against William Meppen’s share in his mother’s estate. It is insisted by the appellant that the executor has an equitable lien on the real estate devised to one who is indebted to an estate, and such lien is prior and superior to a lien of a judgment in favor of a creditor of such devisee, irrespective of the date of the judgment.

The second clause of said will is as follows: “I give, devise and bequeath unto my children, Lucy Wadsworth, Alice Meppen, William Meppen and Arthur Meppen, my residence in the City of Dixon, Illinois,” then (follows a description of the property), together with the furnishings thereof, as an absolute estate in equal shares. The third paragraph is, “all the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath unto my children, Martha Meppen, Louis Meppen, Lucy Wadsworth, Alice Meppen, William Meppen and Arthur Meppen in equal parts as an absolute estate.” The property involved in this litigation is conveyed to the heirs through the residuary clause of the will.

The appellant has filed a brief, which contains citations of many courts which support his contention that the executor’s lien on William Meppen’s interest in this estate, is superior to that of the appellees. The appellees have been diligent in citing many cases from various States which support their contention that their lien is superior to that of the executor. In the present case it is admitted that William Meppen is insolvent. It is difficult to find two cases where the facts are identical, but the facts in this appeal are very' similar to those in the case of Keever v. Hunter, 62 Ohio St. 616, 57 N. E. 454. It is there stated: “It is not important whether, to secure equality in cases of this character, we adopt the doctrine of equitable set-off, as has been done by some courts, or, for that purpose, regard the debt as an advancement, as has been done by others. The ground of decision is that it is inequitable, and at variance with the policy defined in our statutes, to permit one to share in an estate which is diminished by his default and to the prejudice of those whose rights are equal to his. A consideration of the provisions of our statutes adds force to the conclusion which Judge Woerner has drawn from an analysis of the cases: ‘The distinction between debts owing by an heir, and advancements made to him by the intestate, is sharply drawn. In some states debts so owing cannot be deducted from the share of the heir in the real estate, and from the personal estate only by way of set-off; but the true principle seems to be that a debt owing by an heir constitutes part of the assets of the estate, as much as that of any other debtor, for which he should account before he can be allowed to receive anything out of the other assets, and it is so held in the United States.’ Woerner, Adm’r., par. 71.”

In the case of Schultz v. Locke, 204 Ia. 1127, 216 N. W. 617, the editor’s notes as to the facts of the case are as follows: “Where devisee was indebted to deceased, executor’s right to offset debt against devisee’s share in realty held superior to bank’s lien rights against the realty, resulting from judgment obtained against devisee after testator’s death. Action for partition of lands devised to children of testator. One of said devisees owed the estate. He was also indebted to a bank. The contest is between the executor and the bank. The court established the claim of the executor as a lien upon the share of said devisee, and the bank appeals.” After a lengthy statement of the facts the court’s opinion is as follows: “In the instant case the question of an advancement to the devisee is not involved, and the debt cannot be treated as such. Neither is the right of retainer to be denied under the facts of this case, by reason of the fact that no mention was made of the indebtedness of the devisee in the will of the testator. The indebtedness had been created but shortly before the will was made and only a few months before testator’s death. The debt was well secured. It could not have been fairly anticipated by the testator that the debt would not be fully paid without any resort to the share of the devisee in the real estate of testator, and hence the failure to mention the debt in the will, under all the facts, is not controlling or vitally significant.

“The devisee is, however, insolvent, and the estate of decedent is unsettled. We think insolvency of the devisee, where the estate is open and there is no personal estate for distribution, is a recognized exception to the general rule, and one which, under our prior cases, we are disposed to follow. The case is pending in a court of equity, with all the parties in interest before it, and with issues calling for a determination of the rights of all parties. We have previously indicated our disposition to recognize an exception to the general rule in cases where the devisee was insolvent and was owing the estate, and to allow retainer against the share of the devisee in the real estate of decedent. We now definitely align ourselves with the authorities so holding and allow the retainer in the instant case.

“There is an extensive and valuable note on the interesting question involved in this case in the note to Senneff v. Brackey, as reported in 1 A. L. R. 978, and in a like note to Woods v. Knotts, in 30 A. L. R. 768. We hold that under the facts of this case the right of the executor to retainer or offset of the amount of the insolvent devisee’s share in the real estate of the testator was superior to appellant’s lien on said share.” We have examined the cases referred to reported in A. L. R. and there find cases from many jurisdictions that support the rulings and opinon of the Iowa Supreme Court.

In the case of Oxsheer v. Nave, 90 Tex. 568, 40 S. W. 7, the facts in this case are very similar to the Meppen case. The Supreme Court of Texas reviewed many cases from other jurisdictions and at the close of their opinion they use this language: “The debt due by an heir to the estate is a part of the estate and like other assets, is subject to partition and distribution. The heir owing the debt must either pay it or take his share in the debt, or the debt, as a part of his share, as the case may be. All the courts, except those which adhere to the theory that it is a race of diligence between the administrator and other creditors of the heir who is indebted to the estate, hold that a creditor of such heir can acquire no better right in the estate than held by the heir himself. Since when the heir owes the estate more than the value of his share, and does not pay his debt, he has no interest in the other property of the estate, it necessarily follows, as we think that a creditor, by sale and purchase under judicial process of his nominal interest, can acquire no right in the property.”

The appellees in their brief have attempted to show that the cases cited by the appellant do not apply to this case, as the facts are different. It must be conceded that in each case the facts are different, but they are very similar and the law, as stated by the various courts is applicable to the facts in this case. We are aware that courts of other States have announced a different rule, but it seems to us the better rule is the one that is announced in the cases from which we have quoted.

It is our conclusion that the interest that William Meppen takes in his mother’s estate is subject to the lien, of the debt he owed the estate, and the estate had a prior claim for the payment of that debt before a judgment creditor could have any claim against his share in the estate.

The judgment of the trial court is reversed and the cause remanded to that court.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    William H. Tegtmeyer et al., Appellees, v. Daisy C. Tegtmeyer, Appellant.
    Gen. No. 42,841.
    Heard in the first division of this court for the first district at the October term, 1943.
    Opinion filed February 28, 1944.
    Rehearing denied March 14, 1944.
    Charles S. Harvey, of Chicago, for appellant.
    Lord, Bissell & Kadyk, of Chicago, for appellee; L. Duncan Lloyd, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal defendant Daisy C. Tegtmeyer seeks to reverse two orders entered by the circuit court of Cook county striking her two petitions except as to paragraph 4 of the first one and dismissing the petitions except as to that paragraph.

Different phases of this case have been before this court and the Supreme Court several times, the first of which is reported in 259 Ill. App. 661 and the last in 314 Ill. App. 16. During the litigation which began in 1925 defendant was taken under a writ of ne exeat and for failure to give bail she was committed to the common jail of Cook county. Afterward she was held to be in contempt of court for failure to turn over certain moneys involved in the litigation to the receiver appointed by the court and for failure to answer questions put to her on the hearing before the master in chancery to whom the cause was referred. After our opinion was handed down, which is reported in 306 Ill. App. 169, a final decree was entered March 13, 1941, based on the report which Mrs. Tegtmeyer had theretofore filed.

No further attempt was made to require her to answer the questions which she had theretofore refused to answer and for which she had been held in contempt of court. By the decree Mrs. Tegtmeyer was held liable to plaintiffs for $24,654.26. She appealed to this court where the decree was modified in part, affirmed and reversed in part. Tegtmeyer v. Tegtmeyer, 314 Ill. App. 16. Leave to appeal was denied by our Supreme Court. In that opinion in speaking of the writ of ne exeat under which she had at one time been held we said that the writ: “is not intended to be used as a substitute for punishment or as a means of life imprisonment. Mrs. Tegtmeyer has remained in the jurisdiction until the entry of the final decree. She answered the petition for the writ and denied the material averments of the petition. We hold she is entitled to be discharged from detention under that writ on her motion, as it has served its purpose.” In the last paragraph of the opinion we said: “The decree entered on the accounting will be modified by reducing the whole amount found due from Mrs. Tegtmeyer to be $22,312.92, and the sums found due from her to the respective plaintiffs will be proportionately reduced as above set forth. So modified, that part of the decree will be affirmed. Those parts of the decree which direct the continuance in force of the writ of ne exeat and that Mrs. Tegtmeyer stand committed until this decree, or any decree that may be subsequently entered, shall have been fully satisfied, will be reversed.”

Defendant filed her first petition which is involved on this appeal May 19,1943, in which she set up many of the proceedings which had theretofore taken place in the suit among them being the matter of the contempt of court above referred to and the final decree entered March 13, 1941; that after the decision of this court reported in 306 Ill. App. 169, nothing further was done in the trial court for more than two and one-half years during all of which time she remained continuously in the jurisdiction of the court; that by virtue of the opinion and judgment of this court reported in 314 Ill. App. 16, the order holding her to be in contempt of court entered January 5, 1934, was superseded. and in effect quashed and also all writs which had been issued against her. She further alleged in paragraph 4 of her petition that regardless of what construction was placed upon the opinion last mentioned she was unable to comply with the contempt order because she was destitute and her health was impaired.

In paragraph 5 she further alleged that on March 9, 1928, during the pendency of the litigation, counsel for plaintiffs obtained an injunction against her and the Chicago Title & Trust Co. enjoining the selling of certain shares of stock which were involved in the litigation which were worth $30,000 and that afterward the stock depreciated until it was worth but little more than $6,300 for which it was sold by order of the court thereby causing her to lose more than $23,000. And that this loss should be applied in the satisfaction of the amount of $22,312.92 which she was decreed to pay plaintiffs. The prayer of her petition was that she be decreed to be purged of the contempt of court and that the amount she was decreed to pay plaintiffs be satisfied of record.

The second petition contained the same allegations except it omitted paragraph 5 above mentioned.

Since the decree entered March 13, 1941, which was before us in 314 Ill. App. 16, and which was subsequently amended October 7th, 1942 pursuant to the mandate of this court, the case was finally disposed of, and the order of January 5,1934, by which she was adjudged to be in contempt of court for failure to answer questions and to turn over property to the receiver, is no longer to be considered in effect and therefore the court erred in failing to hold that that order was then of no further effect.

That part of the order appealed from by which the court refused to allow Mrs. Tegtmeyer credit for the claimed loss of the stock on account of the delay in disposing of it must be affirmed. The decree adjudicated the amount she was required to pay plaintiffs. It was not appealed from and is in full force and effect.

The orders appealed from are reversed in part and affirmed in part in accordance with the views herein expressed. The costs in this court will be divided equally between plaintiffs and defendant.

Orders affirmed in part and reversed in part.

Fiemeyer and Matchett, JJ., concur.


author: Mr. Justice Matchett

text:
    Harry L. Drake, Appellant, v. Grace Townsend and D. Sullivan, Appellees.
    Gen. No. 42,839.
    Heard in the first division of this court for the first district at the October term, 1943.
    Opinion filed February 28, 1944.
    Rehearing denied March 14, 1944.
    John W. Golosinec and Irving Goodman, both of Chicago, for appellant.
    James H. Christensen, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

This was a suit in forcible entry and detainer by Drake against Townsend and Sullivan to recover possession of a basement apartment in a building known as 1223 East 57th street in the city of Chicago. The lease was in writing, dated March 20, 1942; was for a term to begin May 1, 1942, and end April 30, 1943. Drake was the lessor, Miss Townsend the lessee. The property was managed by the Mayfair Management Company of which Mr. Buggies was manager. The lease was a lengthy written document, and contained the usual clauses to be found in Chicago leases which provide that the lessee may not assign the lease or sublet the premises without the written consent of the lessor indorsed thereon in writing.

Miss Townsend was a student at the University of Chicago. The rental was $32.50 per month. Miss Townsend has been married since she took the lease and is now Mrs. Bronis Grzybowski. Contrary to the express provisions of the lease she sublet the premises to Sullivan and let him with his family into possession. The suit was begun against Townsend and Sullivan. Sullivan was in possession and served with summons. May 17, 1943, the trial judge found him guilty of withholding the premises unlawfully, entered judgment on the finding and ordered a writ of restitution to be stayed for five days. An alias summons was issued for defendant Townsend.

May 26,1943, Townsend filed a petition praying that the judgment might be set aside. She averred in the petition that summons had been served only on her subtenant, Sullivan, and that he had vacated the premises on May 24,1943, pursuant to the order of the municipal court. She said she had been a tenant in this apartment for seven and a half years; that she had paid the rent according to the terms of the lease and asked for renewal of the lease as of May 1, 1943, at the same terms and rental of $27.50 per month, according to the rent provisions of the O. P. A. and had tendered the price of the first month’s rent, which had been refused. She said that since September 1937, she had sublet a portion of the premises to Sullivan, who had since been in possession thereof; that since May 1938, up to date plaintiff and the landlord had been advised of this sublease and consented and acquiesced therein; that she had been in continuous possession of the premises during her tenancy; that when suit was instituted she was in Cincinnati and did not know of it until her husband telephoned the information to her on Saturday, May 15, 1943; that she was ill in bed and had been so from April 13, 1943; that she thereupon returned to Chicago' on May 24, 1943, when, after consultation with her attorney, she filed this petition. She prayed the order might be set aside and she recognized and retained as a tenant of said premises under the rules and regulations of the 0. P. A.

On May 26, 1943, the judgment was vacated and the cause set for trial. On June 3, 1943, the cause was tried before Judge Heller. A finding of not guilty was entered as to Sullivan and Townsend; motion of plaintiff for a new trial denied; judgment in favor of defendants entered on the finding; and plaintiff brings this appeal.

Plaintiff’s theory of the case is that defendant Townsend does not come within the scope of the provisions of the 0. P. A. rent regulations because “No part of the apartment leased to her was used by her as her own dwelling.” The plaintiff also argues that the defendant by subletting without the landlord’s consent “violated a substantial obligation of her tenancy,” and therefore was subject to have her tenancy terminated and be evicted.

It developed upon the trial that Sullivan was not the only subtenant that Townsend, the tenant, had permitted to take possession of the apartment. As a matter of fact, she sublet to two tenants, the Sullivans and the Gibsons, and their respective families found room to occupy this one flat/while her testimony is that she herself retained one little room as a storeroom for her own use.

The plaintiff says that the tenant, Miss Townsend (now Mrs. Grzybowski), is a rather thrifty person. It was stated on the trial that she sublet this apartment and received from the two parties to whom she sublet it $65 per month. This was not denied but the court excluded evidence on that point. Mrs. Grzybowski’s husband lives at 1223 East 57th street. She said on examination that she could not really say whether prior to May 1st her husband had ever occupied the premises at 1223 East 57th street but she had given him a key on April 4th. She lived at the Good Samaritan Hospital in Cincinnati. She said the apartment at 1223 East 57th street is divided into two apartments, and there was the usual apartment wall between them. The front portion had two rooms, a kitchen and a 15 by 30 foot living room. She admitted that the Gibsons paid her rent and that they were not related to her by blood or otherwise. There were five persons in all in the Sullivan family, and they were not related to her by blood or otherwise. She said she had her library in the storeroom. In response to a question as to whether she slept there or lived there she said “It was not necessary because I always was at home in my own flat.” From January to the middle of April of the year 1943 she continuously lived in Cincinnati, Ohio.

The rent regulations of the O. P. A. in force at the termination of this tenancy, in so far as here applicable, were as follows:

“Section 6. Restrictions on removal of tenant.— (a) So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations, by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any person attempt such removal or exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, and regardless of any contract, lease, agreement or obligation heretofore or hereafter entered into which provides for entry of judgment upon the tenant’s confession for breach of the covenants thereof or which otherwise provides contrary hereto, unless: . . .

“(4) The tenant’s lease or other rental agreement has expired or otherwise terminated, and at the time of termination the occupants of the housing accommodations are subtenants or other person who occupied under a rental agreement with the tenant, and no part of the accommodations is used by the tenant as his own dwelling.”

We hold, as a matter of law, upon defendant Townsend’s own testimony that within the meaning of this statute the premises here in question were not used by her as a dwelling at the termination of her lease. She admits having received notice of the landlord’s intention to terminate the tenancy while she was in Cincinnati. Other questions are argued but were not raised in the trial court. The judgment of the trial court will therefore be reversed.

Reversed.

0 ’Cornsror, P. J., and Niemeyer, J., concur.


text:
    Albert J. Horan, Bailiff, for use of Brady Transfer and Storage Company, Appellee, v. Henry Ruter et al., Appellants.
    Gen. No. 42,849.
    Heard in the first division of this court for the first district at the October term, 1943.
    Opinion filed February 28, 1944.
    Rehearing denied March 15, 1944.

      David I. Lipman, of Chicago, for appellants; Clyde C. Fisher, of Chicago, of counsel.
    Wetten, Pegler & Dale, of Chicago, for appellee; Milton Gerwin, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action filed in the municipal court, June 27, 1941, wherein Horan, as bailiff for the use of the Brady Transfer & Storage Company, sought to recover from the four defendants on a forthcoming bond executed June 22, 1940, for the sum of $1,000, upon trial by jury there was a verdict for plaintiff in the sum of $750. The defendants made motions for a new trial in arrest of judgment and for judgment notwithstanding the verdict. Plaintiff remitted $224 from the verdict, whereupon the court denied these motions and ordered judgment on the verdict in favor of plaintiff and against defendants in the sum of $526, from which the defendants have appealed.

A copy of the bond sued on is attached to the statement of claim. From this and other evidence it appears that Everett Dumm sometime prior to May 15, 1940, purchased from the Brady Transfer & Storage Company, under a conditional contract of sale, a secondhand Fruehauf trailer, Model No. 623, Reefer body, Serial No. G3997; that he defaulted in making payment and that the Brady company, about April 24, 1940, sued out a writ of replevin in the municipal court to recover the trailer with damages for its detention; that the writ was returned, served personally on Everett Dumm, with statement that he refused to. turn over the property.

The cause was tried by a jury with a verdict that the right of property and possession of the trailer was in the plaintiff and judgment was entered on the verdict with one cent for damages.

An order of retorno habendo was then entered by the municipal court and a writ to that effect directed to be issued to the bailiff to cause the trailer to be taken from the possession of defendant and delivered to the plaintiff. The writ issued to the plaintiff and was returned by him “No property found and no part satisfied.” The return was made August 11, 1941. The Brady company then filed a petition in the municipal court of Chicago on April 4, 1941, in which it recited the prior proceedings, including the fact that the plaintiff had filed his bond at the beginning of the suit for $2,000, as required by statute, the service of the writ of replevin on Everett Dumm by the bailiff on April 30, 1940, the refusal by him to surrender the property, the filing of appearance by the defendants on May 6,1940, the filing on May 27,1940, of a petition for a rule on defendants to turn over the property to the bailiff or post a forthcoming bond with him, the filing of an answer by defendants, a hearing on the same before the court on June 13, 1940, and an order entered thereon, granting the prayer of the petitioner, as follows:

“This cause coming on to be heard on the petition of the plaintiff for a rule on the defendant, Everett Dumm, to show cause and on the answer of the said defendant heretofore filed herein and the" Court having heard the arguments of counsel and being sufficiently advised in the premises;

“It Is Hereby Ordered that the defendant Everett Dumm deliver to the plaintiff herein or to the bailiff of the Municipal Court of Chicago, One certain Fruehauf trailer, Model 623, Reefer Body, Serial No. Gr-39997, or post with the bailiff a forthcoming bond in twice the amount of the bond heretofore filed by plaintiff herein within 10 days from the date hereof.

“Enter: This 13 day of June, 1940.

Sullivan, Judge.”

Thereafter defendants filed the bond sued on in this case, which is attached to plaintiff’s ■ statement of claim and is as follows:

“Know all men by these presents:

“That I, Everett Dumm as Principal, Alma Dumm, Henry Enter and Dora Enter, as Surety are held and firmly bound unto Albert J. Horan, Bailiff of the Municipal Court of Chicago, in the State of Illinois, and to his successors in office, executors, administrator and assigns, in the penal sum of One Thousand Dollars, lawful money of the United States, for the payment of which sum we do hereby jointly, and severally bind ourselves, our heirs, executors, administrators, successors and assigns.

“The condition of this obligation is such, That whereas, on the 24th day of April, A. D. Nineteen Hundred and Forty, Brady Transfer & Storage Co., a corporation, is Plaintiff, sued out of the Municipal Court of Chicago, a Writ of Eeplevin against Everett Dumm, Defendant, for the recovery of the following goods and chattels, property, to-wit:

“One Fruehauf trailer, Model 623, Eeefer Body, Serial No. Gr-3997.

“And whereas, the said Everett Dnmm Defendant is desirous of retaining the said property in his possession according to the provisions of the Statute in such case made and provided.

“Now, if the said Everett Dumm, Defendant, will appear in and defend the said action, and will deliver such property in accordance with the order of the Court in as good condition as it was when the said action was commenced and if the said Defendant will pay all costs and damages that may be adjudged against him in such action, then this obligation to be void, otherwise to remain in full force and effect.

“Witness our hands and seals this 22nd day of June, A. D. 1940.

Everett Dunam (Seal) E. D.

Alma Durum (Seal)

H. R. Henry Ruter (Seal)

D. R. Dora Ruter (Seal)

Attorney for Defendants.”

This bond was given pursuant to Rule 238H, since known as Rule 71, of the municipal court of Chicago, which provided as follows:

“Whenever the property described in a writ of replevin, or any part of such property, is so concealed that it cannot be found by the bailiff or other officer, the bailiff shall, if the plaintiff so requires, make demand upon the defendant for the delivery of the property not so found and, upon such demand being made, it shall be the duty of the defendant, if such property is in his possession or under his control, to comply with such demand and deliver the same to the officer.

“A failure of the defendant so to do shall be deemed a contempt of Court and may be punished as such accordingly, and the Court may enter and enforce all orders necessary to compel the delivery of such property to the officer; Provided, however, that the defendant in any such case may, in the discretion of the Court, be permitted to secure redelivery of the property by the giving of a forthcoming bond, or the eourt may order the property placed in the custody of a custodian or receiver to be disposed of in accordance with the rights of the parties as determined by the •final judgment in the action, or the Court may make such other order as the Court may deem necessary or proper for the protection of the rights of the parties.” The statement of claim alleged and evidence which the jury believed justified the finding of the jury that Everett Dumm did not return the trailer to the plaintiff without delay. On the contrary he either removed or permitted it to be removed from Chicago, Illinois, in the jurisdiction of the municipal court, to St. Louis, Missouri, outside of the jurisdiction of the court. There was also evidence tending to show that the goods and chattels were not in good condition when same was returned, which, as the evidence indicated, was on June 7, 1941, when an unknown person, who had received possession of the trailer in St. Louis, delivered the same to the Brady Transfer & Storage Company in Chicago, demanding and receiving $85 as the expense for taking it from St. Louis to Chicago. The plaintiff also gave evidence tending to show that as a matter of fact, there was a total expense in repairing the trailer of $526.25.

On the trial Everett Dumm testified that the last time he saw the trailer was about the first of May 1940, and that it was then on the lot of the Nixon Oil Company.at 509 South Broadway, St. Louis. He said that he was using it at that time and was working for the Packers Transport Company, and this Nixon lot was the place where the trucks were kept; that he had parked it there where he could see it two or three times a week and take care of it.

There was quite conflicting evidence given on the trial as to the condition of the trailer, the necessity for repairing it, etc. It seems to have been taken from the Nixon lot on a replevin writ sued out in a justice court in St. Louis about May 15,1941, by the Fruehauf Trailer Company, who claimed to be the owner of it, and someone evidently representing the Fruehauf Trailer Company delivered the trailer to the plaintiff, Brady Transfer & Storage Company in Chicago.

However, the question as to who was responsible for the condition of the trailer and what its actual condition was, etc., is rendered, as we understand it, unimportant by a decision of the Supreme Court of Illinois, under which we must hold that the forthcoming bond given by these defendants was wholly void, since the municipal court was without jurisdiction to order it given and the bailiff or any other officer of the court without authority to take it. In the case of Universal Credit Co. v. Antonsen, 374 Ill. 194, in which the opinion was filed June 14, 1940, reversing the judgment of this court in the same case, 301 Ill. App. 334, the Supreme Court held this rule adopted by the municipal court of Chicago to be invalid and void as an invasion by the court of the powers of the legislature. In that particular case it appeared the appellant was found guilty of contempt and ■ committed to the county jail for failure to surrender possession of automobiles valued at $6,500 and described in a writ of replevin sued out of the municipal court. The Appellate Court affirmed the order. It had been held on a direct appeal to the Supreme Court that that court had no jurisdiction; that no constitutional question was involved, but that the question presented by the record was whether this rule was invalid as conflicting with the replevin statute. (Universal Credit Co. v. Antonsen, 370 Ill. 509.) The cause was transferred to the Appellate Court, which affirmed the order of the municipal court. That court then granted certiorari from the judgment of the Appellate Court, and in its opinion said:

“The sole question here presented is: Does rule 238h of the municipal court conflict with the Replevin statute?”

Then quoting the rule, as we have heretofore recited it, the court said in substance that the municipal court was without jurisdiction to make it and that the rule was invalid and void. 374 Ill. 194.

The brief of the plaintiff here goes on to argue at length with reference to the duty of the defendant with reference to the trailer. We do not question the propositions of law suggested by it in this respect. The defendant in the replevin suit is not the only litigant before this court. Three other persons signed this bond with him. They also are defendants. The Supreme Court has held that the municipal court was wholly without jurisdiction to compel this bond by proceedings of contempt. That it was obtained in this manner there can be no question on this record. The bond was therefore invalid, and there could be no recovery on it. This defense was set up in the trial, overruled, and must here be sustained in conformity with the law as adopted by the Supreme Court.

The judgment of the municipal court of Chicago is reversed.

Reversed.

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


text:
    Walter Joseph Stewart, Appellee, v. Guarantee Trust Life Insurance Company, Appellant.
    Gen. No. 42,868.

      Heard in the first division of this court for the first district at the October term, 1943.
    Opinion filed February 28, 1944.
    Fithian, Spengler & Finnegan, of Chicago, for appellant.
    J. W. Horwitz and Aaron R. Eppstein, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

In a suit brought June 12, 1942, on an insurance policy issued May 5,1941, and based on an injury sustained by the insured on June 3, 1941, upon trial by jury there was a verdict for plaintiff in the sum of $1,233.75. Defendant’s motion for a new trial was overruled and judgment entered on the verdict, from which the defendant appeals.

The policy was designated as a “Special Income Disability Policy.” The amended complaint under which the cause was tried alleged plaintiff paid the premiums and complied with all the terms and conditions of the policy; that on June 3, 1941, plaintiff sustained injuries as a result of an accident by which he became totally disabled, for which he was entitled to indemnity in the sum of $940 which the defendant company had refused to pay; also that under other terms of the policy and by reason of the injuries sustained by him he was entitled to benefits designated by the policy as “Financial Aid” to the amount of $200 more; that he further was entitled to interest at the rate of 5 per cent on the above two items, which became due to him when payment was demanded and refused.

By amendment plaintiff also claimed the right to recover the further sum of $250i as a reasonable attorney’s fee on the ground that the defense interposed by defendant was vexatious. Defendant moved to strike the complaint. The motion was denied. Leave was given plaintiff to amend, as was afterwards done.

It is urged for reversal that a motion of defendant for an instruction in its favor at the close of all the evidence should have been given; that the verdict is contrary to the law and the evidence; that the court erred in receiving evidence of plaintiff in the presence of the jury as to the reasonable value of plaintiff’s attorney’s fees; that the verdict is excessive, and that a new trial should have been granted.

There is practically no dispute as to the facts. Plaintiff was employed by Wendnagel & Company and had been working for that company about three weeks prior to the accident. He was a structural iron worker. His duties included the lifting of heavy objects. At about 10:30 a. m. on the morning of the accident he with others was at work fitting some heavy I-beams up under the ceiling of an old building which was in process of repair. The beam was carried from the adjoining yard into the room on a “dolly.” Plaintiff testified: “ ‘On this day we had the beam up to about our chests. I am 5 feet 9 inches tall. I got my shoulder under the beam and raised it up as far as it would go under the ceiling and onto another I-beam which was already up there.’ Mr. Eppstein: ‘Did anything happen then?’ The Witness: ‘Well, I felt something crack in my back, just like you would break a stick, and it was followed by severe pain. The beam was up on my shoulder at the time I felt the pain. After that we raised it up to where it belonged and put more blocks under it. The end I was carrying when I felt this pain was the end we were lifting up. I reported this to my foreman, Mr. Johnson, and he gave me some lighter work to do. I did this lighter work the balance of the day. I had severe pain in my back for the balance of the day. After I left the plant I went home. I was able to move around and walk but my neck and back were very painful. ’ ’ ’

Plaintiff reported to the foreman next morning that he was unable to work. He had pain in his back and a bump on it about the size of a walnut or onion. Mr. Johnson sent him to Dr. Valentine, who did not testify in this case. Plaintiff was given three heat treatments of about fifteen minutes each by Dr. Valentine. The accident occurred in Chicago. He went to his home in Crown Point, Indiana, coming to Chicago each day by bus for the treatments. Plaintiff moved to Crown Point on June 7th and before that time had been living in this city. After moving to Crown Point the Zurich Insurance Company sent plaintiff to Dr. Bills in G-ary. Dr. Bills did not testify. Dr. Bills sent plaintiff to the U. ¡3. Steel Company Hospital at Cary for treatments, then sent him to Dr. Ellis in Chicago. Medical testimony on both sides was submitted to the jury under instructions which stated with clearness the issues in the case.

The policy excluded from the losses for which the company would indemnify 1 sprains, strains, lame back, hernia, rheumatism, arthritis, neuritis, or heart, liver or kidney trouble,” and a long line of other maladies, conditions, symptoms, etc., to which most humans are unfortunately susceptible. Just why this instrument was designated an “insurance” policy we do not understand. We have searched the record without finding any offer to return the premium. The learned doctors who testified explained very clearly to the jury the difference between “pre-existing arthritis” due to infection and “post-operative arthritis” said to be due to and following surgical operations upon the human body. The policy does not distinguish between the particular kinds of arthritis. The jury evidently was able to do so. Plaintiff had the postoperative kind which had nothing to do with bringing on the injury but was caused by it. We refer defendant to the law regarding strict and liberal constructions of ambiguous written documents. Manifestly the policy was not intended to exclude post-operative arthritis. It is elementary that the language of an insurance contract when ambiguous is construed strictly against the company and liberally in favor of the insured. Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488, 493; Julius v. Metropolitan Life Ins. Co, 299 Ill. 343, 348. There are many cases on this point cited in plaintiff’s brief, to which defendant has filed no reply. There is no complaint'that the jury was not accurately instructed as to the law applicable.

Only one point made by defendant has given us concern. This is Point IX, in which he complains that over his objection plaintiff’s attorney was permitted to testify to the jury as to the reasonableness of his attorney’s fees, and, as a matter of fact, plaintiff concedes that the amount to which he testified (namely $250) is included in the verdict of the jury and in the judgment. The point involves a construction of sec. 155, par. 767 of ch. 73, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 66.830]. The section in substance provides that in any action by or against a company, wherein there is an issue, the liability of a company on a policy or policies of insurance, or the amount of the loss payable thereunder, if the company has brought suit to cancel the policy (which has not been done here) or refused upon demand prior to the commencement of the action to pay the amount of the loss (which is in substance true here) “and it appears to the court that such suit or refusal is vexatious and without reasonable cause, the court may allow to the party, who by the finding of the court or jury is entitled to prevail against the company, reasonable attorney’s fees as a part of the taxable costs in the action and in addition to all other costs, but such allowance shall not exceed any one of the following amounts . . . ,” stating the amounts which here the jury was instructed was 25 per cent of the amount recovered. So far as the briefs inform us this section of the Insurance Code has never been construed by any court of review of this State. Some authorities from other States are cited, but the statutes are not similar and we do not find the cases persuasive. We are disposed to hold that under this statute the matter of the determination of the reasonable attorney’s fees is for the court and not for the jury. It is to be noticed that the amount of attorney’s fees to be allowed is “as a part of the taxable costs in the action and in addition to all other costs.” Under our practice the matter of costs is for the court rather than the jury. This seems to be the legislative intention. See ‘ ‘ Some Aspects of the Illinois Insurance Code” by Professor Havighurst in Illinois Law Review, vol. 32, pp. 404, 405. He also points out that statutes of a similar kind have been held constitutional by the Supreme Court of the United States in Life & Casualty Ins. Co. v. McCray, 291 U. S. 566, and also cites Aetna Life Ins. Co. v. Dunken, 266 U. S. 389, and Fraternal Mystic Circle v. Snyder, 227 U. S. 497. We hold the court erred in admitting this evidence and in submitting it to the jury over the objection of the defendant. It is admitted that the sum of $250 to which Mr. Eppstein testified as his reasonable attorney’s fees is included in the verdict and in the judgment. There was no contradiction in the evidence on this point, and this error, it would seem, can be cured by a remittitur of that amount. We are not impressed with any other defense presented in this case. If, therefore, within 10 days, plaintiff will remit from the amount of the judgment of $1,233.75, the sum óf $250, it will be affirmed for the sum of $983.75, otherwise reversed and the cause remanded for another trial.

Affirmed upon remittitur; otherwise reversed and remanded.

O’CoiosroR, P. J., and Niemeyeb, J., concur.


author: Mr. Justice Niemeyer O’Connor, P. J.,

text:
    Noel State Bank, Trustee, Appellee, v. Blakely Real Estate Improvement Corporation et al., Defendants. Appeal of Scully Cuzzone et al., Appellants, v. Archie H. Cohen, Former Master in Chancery, Appellee, and Noel State Bank, Trustee, Appellee.
    Gen. No. 42,181.

      Heard in the first division of this court for the first district at the April term, 1942.
    Opinion filed February 28, 1944.
    Rehearing denied and supplemental opinion filed March 14, 1944.
    George J. Haddad and Joseph B. Santucci, both of Chicago, for appellants.
    Weissenbach, Hartman, Craig & Okin, of Chicago, for Appellee Noel State Bank and pro se; Harry Okin, of Chicago, of counsel.
    Maurice L. Davis, of Chicago, for Appellee Archie H. Cohen.
   Mr. Justice Niemeyer

delivered the opinion of the court.

On May 29, 1930 a foreclosure decree was entered finding $354,254.96 due the plaintiff Noel State Bank, trustee, for the use and benefit of the Noel Securities Corporation, the legal holder and owner of the bonds and interest coupons secured by the trust deed being foreclosed, and also finding a valid lien against the premises involved in favor of Dominic Cuzzone in the sum of $5,980, for labor and material for sewer work, but reserving the question of the priority of the Cuzzone lien as against the lien of the plaintiff for further hearing and until after the sale of the premises. The master filed his report of sale and distribution, reciting that on June 25, 1930 he sold the premises to the Noel Securities Corporation for the full amount under the decree and that out of the sum realized from the sale he had retained $5,980, “subject to the adjudication of the question of priority, if any, of the lien claim herein of Dominic Cuzzone, which question was reserved for further hearing,” and that he had disbursed and retained the expenses and fee of the sale and paid over the balance received to the solicitors for plaintiff. The report was approved by order entered July 11, 1930, in part, as follows: . . . and it further appearing to the Court and from the said Master’s Report, that the Master has retained in his hands the sum of $5,980.00, subject to the adjudication of the question of priority, if any, of the lien claim of Dominic Cuzzone herein, as against the Complainant (plaintiff) herein, and as to the application to be made as between the said parties of the sum of $5,980.00 retained by said Master as aforesaid, and that the said Master hold the said sum subject to the further Order of this Court.” A certificate of sale was issued to the purchaser; the master retired at the expiration of his term of office January 3, 1933; no redemption having been made, the successor to the master issued a deed in 1936; June 18, 1931 the plaintiff, Noel State Bank was closed by the State Auditor and a receiver appointed ; Cuzzone died May 10,1935.

Nothing was done in the cause until April 11, 1941 when, on notice to the master and the attorneys of record for the plaintiff and Cuzzone, petitioners, as the only heirs at law of Cuzzone and as assignees of the administrator of Cuzzone’s estate of the lien claim involved, filed their petition seeking to be .substituted as defendants in the place and stead of Cuzzone and praying that the master be ordered and directed to pay over to his successor or such officer as the court may designate, the sum of $5,980, to be held subject to the further order of the court, and that the question of priority of lien between petitioners and plaintiff be determined. Petitioners were substituted as defendants in the place of Cuzzone and upon hearing, after answer by the master and by the attorneys for plaintiff, who filed an answer as attorneys for the plaintiff “until the appointment of the receiver,” the petition was dismissed as to the master for want of equity, the court finding that the Cuzzone lien was wholly inferior to that of the plaintiff and that, contrary to the recitals of the master’s report of sale and distribution, the master had not been paid and did not receive or retain the $5,980 in controversy.

Petitioners appeal, contending that the court erred in receiving evidence contradictory of the master’s report and order of court approving the same, and in finding that the Cuzzone lien was inferior to that of plaintiff. Objection is also made to the participation of plaintiff’s attorneys in the proceedings in their own behalf and also on behalf of plaintiff.

The master in his answer asserted that no part' of the bid for the premises was ever paid, except $1,284.15 paid to him on account of fees, disbursements and commissions on the sale, totaling $3,284.15, leaving $2,000 thereof unpaid; that the attorneys for Cuzzone “knew at the time of the approval of the report of said sale, and knew at all times thereafter and during the lifetime of said Dominic Cuzzone, that nothing had been paid on account of the sum of $5,980, reported in the report herein of this respondent as having been retained by this respondent subject to the adjudication of the question of any priority arising under the mechanic’s lien claim of said Dominic Cuzzone”; that he, the master, delivered to counsel for plaintiff (such counsel representing the buyer at the master’s sale) a certificate of sale upon the understanding that same would be held and no disposition made thereof unless adequate provision were made for the payment of the fees, disbursements and commissions on sale of respondent, and for the payment of such sums as might be payable out of the proceeds of the sale to Cuzzone, the mechanic’s lien claimant; that it may be the sale should be set aside, but if not, he, the master is ready and willing to make such payment in respect to the sums as may be due petitioners as the court may direct. In this court the master takes the position that the trial court properly amended its record to speak the truth, contrary to the representations in his, the master’s report, and that the Cuzzone lien, being inferior to plaintiff’s lien, petitioners are not entitled to any relief.

The attorneys of record for the plantiff, .Noel State Bank, upon whom notice of the filing of the petition had been served, answered stating that they represented the plaintiff until June 18, 1931, when the bank was closed and the receiver appointed; that no notice had been served upon the bank receiver or other parties in interest, and that by reason thereof they, the attorneys, were answering the petition. In their answer the attorneys asserted that no cash at all was paid to the master on account of the bid at the sale, and that no actual cash was involved in the sale, and “whatever reports were filed in the said proceeding were filed with full knowledge of all the parties and attorneys representing the same in the said proceedings.” In this court the attorneys have presented a brief and argument for plaintiff and for themselves. In support of their right to represent plaintiff they assert that as attorneys for plaintiff at the time of the foreclosure decree they were obliged to render “such additional services as were necessary to complete the foreclosure proceedings, including attendance before the court upon the question concerning any priority of the lien claim in question.”

From the testimony of the master, called by the court as a witness, and the testimony of one of the attorneys for the plaintiff, both of whom testified over objection of petitioners, it appears that no> money was in fact paid to the master except the sum of $1,000 plus certain expenditures by and fees of the master, on the sale. The master also testified that prior to the filing of his report the attorney for Cuzzone knew that no cash had been received, and that several days after the sale he, the master, had told Cuzzone’s attorney that, the attorneys for the plaintiff had prospective purchasers for the property and that it. was represented to the master that if a sale was made the Cuzzone claim would be taken care of in some manner, and that Cuzzone’s attorney said he would go along. The attorney for Cuzzone was called by the court and testified over objection. This witness on examination by the court stated that he did not have any discussion with the master prior to the approval of the sale, and then, that he had no recollection of any discussion. On cross-examination of this witness by petitioners’ counsel the court interposed an objection and refused to permit counsel to make an offer of proof, so that we do not know what counsel proposed to show. There is no attempt to show that the client, Cuzzone, was informed that the report did not speak the truth or that Cuzzone ever consented to or acquiesced in the misrepresentation as to the money received and retained by the master, and the vague and meaningless arrangement of being taken care of in some manner in the event the property was resold. Neither was any attempt made to show any authority of the attorney to acquiesce in such uncertain arrangements and thereby waive Cuzzone’s right to have the premises sold for actual cash and his lien satisfied out of the proceeds. An attorney does not have implied authority to waive substantial rights of his client. 5 Am. Jur., Attorneys at Law, §§ 91, 92; Rubel v. Title Guarantee & Trust Co., 199 Ill. 110; Pomeroy v. Prescott, 106 Me. 401, 407.

The effect of the decretal order appealed from is to vacate an order of equal solemnity entered more than 10 years before, and to make findings of fact directly contrary to those ’found in the prior order. This is not done upon any memorial or record of the court showing an accidental and excusable mistake, but upon the oral testimony of an officer of the court who, by his testimony, convicts himself of having knowingly submitted a false report, and the testimony of the lawyer who was undoubtedly a moving agent in the misrepresentation and whose client was apparently the only beneficiary. It does not appear that the master, in making the report, was actuated by any motive of advantage to himself or injury to others. He did not benefit and could not expect to benefit, except by the good will of the attorneys and client accommodated and possible future references upon the recommendation of the attorneys. He falsely represented to the court that he had received and retained money which might ultimately be found due a third person, fully expecting that on demand the money would be forthcoming and no loss be sustained by anyone. However strongly we may feel that those who induced the misrepresentation and benefited by it should have paid the money into court rather than suffer the master to be placed in his present unenviable position, we recognize that sound public policy forbids that he should be permitted to escape the consequences of his act by repudiating and contradicting his official report. City of Chicago v. Gage, 95 Ill. 593, 628-631.

The term of court at which the report was approved had passed and the court was without power to impeach its record on the showing made. People v. Lyle, 329 Ill. 418, was a mandamus proceeding brought to compel a trial judge to sign a bill of exceptions presented on June 21, 1927; the court record showed the entry of an order on May 23 extending the time to file a bill of exceptions 30 days from that date; on August 25 the trial court entered an order correcting the order of May 23 so that the time to file the bill of exceptions was extended 30 days from May 20. In holding the later order invalid for wafit of power in the court to make the change, the Supreme Court said: “The action of the court can be shown only by the record kept by the clerk. This record cannot be impeached by the clerk himself, by the recollection of the judge, or his want of recollection as alleged in this case, or by any other evidence. . . . after the term the power of amending is confined to clerical errors and matters of mere form, . . .” Madison & Kedzie State Bank v. Cicero-Chicago Corrugating Co., 351 Ill. 180, is in point. Under a foreclosure decree entered July 3, 1928 a sale of the premises involved was had and on August 13, 1928 the master’s report of sale and distribution approved and a deficiency entered in favor of plaintiff; no appeal was taken, and several months after the term had expired two junior claimants filed petitions charging, among other things, that the master had overpaid the plaintiff and seeking to have the deficiency decree vacated; in defense of the deficiency decree the plaintiff in its answer set up certain facts which it claimed showed an actual deficiency at the time of $908.81, the amount stated in the decree, one of the facts alleged being that the master sold the property for $42,000 and not for $44,500 as reported by him. The court said (190): “We have disregarded these statements, for the reason that under our holding both parties to this record . . . are bound by the record and cannot be heard to dispute the actual facts or showing that is made by the record of the decrees of .July 3 and August 13 as it is presented to this court.” After holding that the order approving the master’s report of sale and distribution was a final and appealable order, the court said further (191, 192): “After the term expired the court was without power to change or modify the orders except as to matters of form or mere clerical errors or misprisions of the clerk, and- the court was without power to set aside, vacate or annul the orders, as they were final and appealable orders. Belief against the decretal orders could only have been obtained by appeal or writ of error if the errors were apparent on the face of the record, and if not, by bill of review or bill to impeach the decree for fraud or other sufficient cause. Tosetti Brewing Co. v. Koehler, 200 Ill. 369. ’ ’ The evidence offered for the purpose of impeaching the decretal order approving the report of sale and distribution should have been excluded. The master is conclusively held to have received and to be retaining the money which he represented to the court as having been received and retained.

On the question of priority of the Cuzzone lien, petitioners were obliged to show that the sewers installed had enhanced the value of the mortgaged property. In opposition to this claim the attorneys for the plaintiff offered two witnesses as experts who testified that, because of conditions existing when the work was done, the location of the property, etc., the sewers had not added to the value of the property. Petitioners objected to the testimony of these witnesses on the ground that the attorneys no longer represented the plaintiff and were not themselves parties in interest. This objection in so far as it related to the attorneys’ right to appear for plaintiff, was properly overruled. The closing of the bank and the appointment of a receiver did not dissolve the bank or terminate the receivership. Dillon v. Elmore, 361 Ill. 356, 362-3-8; People v. West Side Trust & Savings Bank, 362 Ill. 607, 616; Epstein v. Choldenko, 272 Ill. App. 155, 159; Erickson v. Country Chub Bldg. Corp., 272 Ill. App. 341. The dissolution of a bank does not occur until its complete liquidation. 7 Am Jur., Banks, § 824. By section 11 of the general banking act (Ill. Rev. Stat. 1943, ch. 16½, par. 11 [Jones Ill. Stats. Ann. 10.11]), it became the duty of the receiver, as soon as could reasonably be done, to resign all trusteeships, but as shown by the cases cited, the bank remained as trustee until the receiver’s resignation. In the present case the property involved was vacant and unproductive; the trust deed had been foreclosed, the property sold and the period of redemption had almost expired; the only matter undisposed of was the determination of the question of priority between Cuzzone’s lien and the plaintiff’s lien; the record does not disclose whether the receiver had resigned or been called upon to resign, or whether the bank had been fully liquidated, and therefore dissolved. " It must be presumed that the bank is still in existence. No interested person is objecting to the failure of the receiver to resign or to the original attorneys of record continuing as attorneys for the plaintiff trustee. The question of priority should not be decided as an ex parte matter. The attorneys for plaintiff properly changed their position and continued to represent it. The objection to the attorneys appearing in their own behalf as appellees is sustained.

We are now brought to a consideration of the correctness of the finding that the Cuzzone lien was wholly inferior to that of plaintiff. Petitioners claim that this finding is contrary to the manifest weight of the evidence and due to the bias and prejudice of the trial court. The trial judge stated that he knew the master for a number of years and regarded him highly; that he felt the master had been “roughly handled,” taken advantage of; that someone should hold the master good if found in. default; that he, the judge, would begin by protecting his court, of which' the master is a part; that the master “is going to get everything I’ve got to protect him, and he will get it too”; and, “so far as I am concerned it would be a very simple matter to find the master is not himself personally liable. I would like to warn you in advance of that because that is not only my disposition but I shall try diligently to do it, and I think that I shall be able to do so because I think we will all agree that the circumstances under which this was. done had to do with a situation which to say the least was unusual . . .” Near the close of the hearing, after stating that he was put on notice that the parties intended to appeal and that they should be encouraged to do so if not satisfied with the court’s disposition of the case, he said: “However, I am very anxious that the reviewing court should have as much before it as I have before me, and while I cannot see they have all the information I have, because, some of it came to me in informal discussions outside — in my chambers and outside of open court . . . .” This unfortunate attitude of the trial court precluded a fair and impartial hearing of the matters in issue and disqualified him as a trial judge. This was particularly true in respect to the question of fact as to whether the sewer installed had enhanced the value of the property, a fact which, if found against petitioners, would completely absolve the master from responsibility in the present proceeding. Therefore we cannot give to the finding as to that fact the weight due to the finding of a trial judge when the witnesses testify in open court, as here, but are forced to examine and pass upon the evidence de novo, as evidence presented upon written depositions and without the benefit of the judgment of the trial court.

Two witnesses testified for petitioners. One was a valuation engineer and real estate appraiser in Chicago for 21 years, except for 2 years in New York City. The other had been in the real estate business about 30 years, particularly in the development of acreage in Cook county, and had installed about $20,000,000 worth of sewers in property in which he was interested. These witnesses testified that the sewers enhanced the value of the property, at least to the extent of the reasonable contract price in excess of $8,000. This testimony was opposed by that of the two witnesses called by the plaintiff. These men were local men, with less experience. They testified that the sewers added nothing to the value of the property. The premises involved are located at Sherwin avenue and Clark street, Rogers Park, Chicago, with frontage on both streets. With present day sanitary regulations and the requirement of permits from the City for all improvements, it is almost a matter of common knowledge that installation of sewers is an essential part of the development or improvement of any property within the city limits. As one witness testified, a truck garden is about the only use to which the property could be put without sewers. We find that the sewer work installed enhanced the value of the property to the extent of the contract price in excess of $8,000 and that the mechanic’s lien for $5,980 in favor of Cuzzone is superior and prior to that of plaintiff.

The order appealed 'from is reversed and the cause remanded with directions that a decree be entered directing the master to pay into court the sum of $5,980, finding and establishing the Cuzzone lien as superior and prior to that of plaintiff, and directing the payment of the $5,980 to petitioners in full satisfaction of the lien.

Reversed and remanded with directions.

Hatchett, J., concurs.

O’Connor, P. J.,

dissenting in part: I agree with the conclusion reached in the foregoing opinion, namely, that the. property was . enhanced in value $5,980 by the work Mr. Cuzzone did in installing water mains, etc., in the property. But I am unable to agree that the master in chancery should be held liable for this sum or for any other sum.

I think it is necessary to state a few facts which appear of record.. The trust deed which was given to secure the payment of $280,000, evidenced by 56 bonds of $5,000 each, was made June 16, 1926 by the Blakely Real Estate Improvement Corporation conveying the property to the Noel State Bank, as trustee. The bonds became due June 16, 1929, and bore interest at 6V2 per cent, payable semiannually. June 17,1926, the day after the trust deed was executed, the mortgagor, the Blakely Real Estate Improvement Corporation, conveyed the property to the Noel State Bank, as trustee under a trust agreement known as Trust No. 161. The bill of foreclosure was filed June 29,1929, and the decree of foreclosure entered May 29, 1930, in which it is found that the Noel Securities Corporation, an affiliate of the bank, is the legal holder and owner of all of the 56 bonds. That there is due and owing to the complainant, Noel State Bank, as trustee named in the trust deed “for the use and benefit of the legal holder and owner of the bonds” $354,254.96. The decree also finds four other mortgages on the property whose lien is subordinate to the lien of the bonds.- The amounts so found are: $7,905.09, $4,014.93, $41,927.61 and $6,928.12. The decree also finds that there is due to the lien claimant, Mr. Cuzzone, $5,980, and further, that April 4, 1928, the Blakely Real Estate Company was dissolved by a decree of the superior court of Cook county; that March 22, 1929, the Blakely Company entered into a contract with Mr. Cuzzone to install sewers and water mains in the property in question ; that Cuzzone began work and filed his claim for mechanic’s lien in the circuit court of Cook county and that no part of it had been paid; that while Blakely Company had been dissolved, as above stated, before .the making of the contract with Mr. Cuzzone, notice that the improvements were being made would be implied and it was decreed that Mr. Cuzzone was entitled to a lien for $5,980 and that the question of the priority of the lien as against the mortgage, which was being foreclosed, was reserved for further consideration. It was decreed that unless the indebtedness, as found due under the mortgage, including the master’s fees, was not paid within three days, the property to be sold for cash at public auction to the highest and best bidder after the master had advertised according to law, etc.

Following this, July 11,1930, after notice to the parties, the master’s report of sale and distribution was filed and approved and the question of priority between the mortgage indebtedness and Mr. Cuzzone’s claim was to be rereferred to a master. The master’s report of sale recites that he sold the property to the highest and best bidder for cash on June 25, 1930, to the Noel Securities Corporation for its bid of $358,865.58, which was the highest and best bid. The master’s report then continues and recites that he received the amount and itemized how he distributed the money. That he paid the complainant, the Securities Co. the amount found due by the decree including $25,000 solicitor’s fees, the $2,500 trustee’s fees and that the master retained his fees and court costs aggregating $3,001.20. The master then continues and recites that he retained the $5,980, the amount found to be due Mr. Cuzzone, the priority of which was later to be determined. And further that there was no deficiency due complainant.

The master attached vouchers to his report which were signed by himself which recite that he had retained the $5,980. There is also a voucher attached wherein the solicitors for complainant acknowledged receipt of $30,699.30, costs due complainant including the solicitor’s and master’s fees.

As stated, this decree approving the master’s report of sale and distribution was entered July 11, 1930. Nothing further appears until nearly 11 years thereafter when on April 11, 1941, attorneys representing the heirs of Mr. Cuzzone, who died May 10, 1935, but who were not the attorneys who represented him in the foreclosure suit, filed their petition in which they set up the probating of their father’s estate in the probate court of Cook county; that the father died intestate leaving no debts; that an inventory was filed in which the following item appeared: “Judgment entered in the Circuit court of Cook county in favor of Dominic Cnzzone and against the Blakely Beal Estate Improvement Corporation in the sum of $5,980.”

The master’s term had expired and his successor appointed and the prayer of the petition was that the master be required to turn over the $5,980 to his successor. The master in his answer, among other things, set up the sale by him of the property and that no part of the bid was ever paid with the following exception, $1,284.15 on account of the .master’s fees; leaving a balance due and unpaid. And further averred that Cuzzone was represented by a firm of attorneys in the foreclosure suit and that they were told, and knew before the master’s report of sale and distribution was approved, and at all times thereafter during Mr. Cuzzone’s lifetime, that nothing had been paid to the master when he sold the property except as above stated. That some time after the sale the master delivered to counsel for complainant a certificate issued by him upon the understanding that no disposition would be made of it unless adequate provision was made for the payment of fees, disbursements, commissions and Mr. Cuzzone’s claim. That after the master’s term had expired a master’s deed was issued January 3, 1933, by the master’s successor upon surrender to him of the master’s certificate; that in a case brought in the circuit court of Cook county entitled Faerstein v. Noel State Bank, a receiver was appointed “of the subject matter of said collateral trust indenture,” and that on August 28,1936, an order was entered in that suit that a lien be impressed upon the subject matter of the trust estate in favor of the master for $2,000, the amount remaining unpaid to him for his fees in the foreclosure suit, and that no transfer of title to the real estate or the master’s certificate of sale had yet been made because no money had been received when the property was struck off by the master.

On the hearing of the petition involved in the instant case, the master testified to the averments in his answer that no money had been paid to him when he sold the property and that a few days thereafter and before the report of sale and distribution was approved, the then attorney for the claimant was apprised of this fact and that he made no objection to it at any time. That at the same time the matter was explained also to the attorney for the complainant in the foreclosure suit and it was agreeable to all three parties. The attorney who had represented Mr. Cuzzone in the foreclosure suit was called and testified but his testimony is somewhat evasive, although I think it clearly appears from his testimony that the matter was explained to him, and to which he agreed; that he never did anything in the matter at any time for a period of probably 10 years, and the first action was taken by other counsel who are retained by the heirs of Mr. Cuzzone.

. Of course everyone knows that where the mortgagee at a foreclosure, buys the property he gives in payment the bonds or other evidence of indebtedness which is being foreclosed. In such case the cash is never paid, only sufficient to take care of some costs, etc. This is the universal practice and has been to my knowledge for more than 40 years. And this too, although the decree of foreclosure orders the master to sell the property for cash and he reports that he did sell it for cash and attaches receipts from the mortgagee — the purchaser — that the mortgagee had received cash. It would be absurd to say that where a master sells property at foreclosure to the mortgagee —which happens in almost every case — that the mortgagee be required to pay cash to the master and the next day for the master to turn the money back to the mortgagee. This is never done although the master reports that that is what, was done. In the instant matter the realities of the situation rather than technicalities are to be considered.

From the record it is clear that Mr. Cuzzone and his attorney each knew of the fact.that no money had been paid and this is shown not only by the testimony but by the actions of the attorney and his client. And that they acquiesced in what was done as the best way to handle the matter so that the property might be put on the market and he might thereby get his money. Mr. Cuzzone lived for more than five years after the report of sale and distribution was approved. Neither he nor his counsel made any complaint that they were not getting their money and it is not until 11 years after the decree and the report of the master’s sale and distribution that any complaint is made. There is no justice in this claim so far as the master is concerned. He acted honorably in every way and there is no contention to the contrary by anyone.

The record discloses that the property is still held by the successor of the purchaser at the foreclosure sale. No third party’s interests are involved; the bank (by a suit brought by the Auditor of Public Accounts), and its affiliate, the Securities Company, have long since gone out of business. In these circumstances I think the Cuzzone claim should attach as a lien to the property.

Supplemental Opinion on Petition fob Rehearing.

In its petition for rehearing the plaintiff trustee for the first time suggests that there is no basis in the record for determining the value of the property before and after the improvements for which the mechanic’s lien was allowed, and therefore no basis for determining the amount of the priority of the mechanic’s lien, citing Alexander Lumber Co. v. Kellerman, 271 Ill. App. 571.

The evidence shows and we found that the sewer work enhanced the value of the property to the extent of the contract price, which was in excess of $8,000; at the foreclosure sale the premises, with improvements, sold for approximately $359,000. This is presumed to be the fair cash value. Ogle v. Koerner, 140 Ill. 170; People v. Anderson, 380 Ill. 158; Chicago Title & Trust Co. v. City of Chicago, 321 Ill. App. 271.

As to the enhanced value of at least $8,000, without reference to the cost of the material and labor actually furnished, the mechanic’s lien had priority. Croskey v. Northwestern Mfg. Co., 48 Ill. 481, 483. Under authority of the Alexander Lumber Co. case, cited by plaintiff,- and the Croskey case, the mechanic’s lien claimants were entitled to 8/359 of the foreclosure sale price, and the mortgage lien claimants to the remainder. As to their respective proportions, each lien claimant had priority. Hence, the mechanic’s lien claimants were entitled to the $5,980 allowed them, notwithstanding plaintiff’s mortgage was not paid in full.

The petitions for rehearing are denied.

Rehearings denied.

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


author: Mr. Justice Niemeyer

text:
    John Knapczyk, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 42,865.

      Heard in the first division of this court for the first district at the October term, 1943.
    Opinion filed February 28, 1944.
    Hoyne, O’Connor, Rubinkam & Melaniphy, of Chicago, for appellant; Nathaniel Rubinkam, John C. Melaniphy and Melvin L. Gibbard, all of Chicago, of counsel.
    Harry S. Posner, of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Defendant appeals from a judgment of $1,112.50 entered against it on an insurance policy upon the life of Anthony Knapczyk, who died of a gunshot wound on December 5, 1940, within two years of the date of the issue of the policy. The sole defense is that the insured came to his death by suicide.

The policy contained the following provision: “Suicide : — If the Insured, within two years from the date of issue hereof, die by his own hand or act, whether sane or insane, the liability of the Company hereunder shall be limited to an amount equal to the premiums which have been received, without interest. ’ ’

The insured was about 22 years of age at the time of his death; for at least three years he had. been living in the home of Ed. Huber, a juvenile police officer, who suffered from diabetes and heart disease but who worked daily when his health permitted; the insured drove Huber’s car and did whatever errands were to be done; Huber bought his clothes and gave him money when he needed it. Huber’s housekeeper testified that on the morning of his death the insured got up about 6:30 in the morning, it being part of his duties to get Huber’s car at a public garage. The night man at the garage testified that the insured left the garage with the car. In the rear of the two-flat building in which. Huber and the insured lived was a private 4-car garage, with four large doors opening into the alley; there was a small service door in one of these larger doors and another service door opening into the yard; about 9 o’clock a tenant of the first floor flat in the Huber building was in the alley with his dog; Mr. Butz, deceased at the time of the trial, who kept his car in the garage, entered by the alley service door, but immediately called Madden, who on entering the garage saw the insured lying on the floor behind the service door affording entrance from the yard; there were four or five layers of fresh newspapers spread out underneath the body, extending from the head to the ankles; the head was higher and slumped over to the left side; he was apparently propped up against the wall or some stuff that was in the garage, and fell over to one side; the insured was fully dressed, had on a suede jacket and sweater; there was a grey fedora hat underneath the back of his head; an automatic revolver was found under his left arm pit, about an inch or so from the left hand and parallel to the left hip; the police were called and Madden stayed behind the officer who examined the body; Madden did not observe a hole in the jacket or any blood or bruises about the face of the insured. The first police officer to arrive at the garage testified that alongside the left elbow, on the garage floor, he found an ejected “32” shell and two unfired loaded shells in the chamber of the revolver; after a doctor had pronounced him dead and permission was obtained from the coroner’s office, the police lifted the body and found that the bullet entered right below the heart and left the body right near the spine; there were powder burns on the leather jacket and marks indicating holes in the clothing, and the jacket, which was closed; the officer did not observe anything that indicated bruises about the face, the newspapers were lying flat and appeared to be freshly laid papers, everything was- in shape in the garage and there was nothing about the clothing that indicated it had been messed up, outside the gunshot wound; the insured had on him $6 and some keys; the officer looked for the pellet, shaking the newspapers, but not making a thorough search through the whole garage. He did not find it. There is no evidence that it passed through the clothes at the back. The housekeeper testified that the day following the death of the insured she found in his dresser drawer a card on which was printed, “Forgive me. Tony K”; that insured always signed his name ‘‘ Tony K”; she gave the card to Huber. The police officer in charge of the investigation testified that he saw this note at the detective’s office at the 32nd district station in the regular file, but that it was missing at the time of the trial; that Huber brought it to the station. Huber died before the trial. Two young women who knew the family of the insured, and one of whom had gone out with him on occasions, testified that at the undertaking establishment they observed a bluish mark on the hand and on the face near the left ear of the insured; they designated these marks as bruises, but each stated that the undertaker had said that the marks were from the embalming. Several members of the family testified to having seen the marks. The undertaker, called as a witness by the defendant, testified there was nothing unusual about the body, except the gunshot wound, and he had no recollection of any other bruises or wounds. Neither party examined him as to the marks which, according to plaintiff’s witnesses., he had attributed to the embalming. There is no evidence of any motive for suicide except the statement of the housekeeper that the insured had been called for registration for the draft and thereafter appeared sullen and morose, stating on one occasion that ‘ ‘ They will never get me to go unless they drag me there.” Several witnesses, including members of the insured’s family, testified that he was unaffected by the draft and talked of voluntarily joining the Navy after Christmas. Upon this testimony the jury found for the plaintiff.

Defendant contends that the court should have directed a.verdict. The burden of proof rested upon the defendant to show suicide. In support'of its position that a verdict should have been directed defendant cites a number of cases, including Bernick v. Illinois Commercial Men’s Ass’n, 175 Ill. App. 511; Mason v. Supreme Court of Honor, 109 Ill. App. 10; Von Crome v. Travelers’ Ins. Co., 11 F. (2d) 350; Ætna Life Ins. Co. v. Tooley, 16 F. (2d) 243, and Burkett v. New York Life Ins. Co., 56 F. (2d) 105. Plaintiff cites, in support of the judgment, Anderson v. Inter-State Business Men’s Accident Ass’n, 354 Ill.538; Sweney v. Northwestern Mut. Life Ins. Co., 251 Ill. App. 1; Downing v. Metropolitan Life Ins. Co., 314 Ill. App. 222, and Smith v. Metropolitan Life Ins. Co., 317 Ill. App. 624.

Each of the cases cited was decided upon the particular facts disclosed by the evidence, and none may be said to be controlling in the present case. A general rule to be deduced from the decisions is that a verdict should not be directed for a defendant unless the only reasonable conclusion from the undisputed evidence is that the death resulted from suicide and not from accident or force or violence administered by a third person. As said in Sweney v. Northwestern Mut. Life Ins. Co., cited by plaintiff, “The presumption of law is against suicide. There is a presumption of law against death by suicide (or self destruction) where the circumstances are such that death might have resulted from negligence, accident or suicide.” In the same case it was also held that “Proof of a motive for suicide merely weakens the presumption against the act and is not in itself sufficient to establish suicide.” On the other hand, absence of an apparent motive to take one’s life does not preclude a finding of suicide. In Ætna Life Ins. Co. v. Tooley,, cited by defendant, the court said, “. . . it is not to be denied that successful business men, living in pleasant surroundings, do commit suicide.” In Burkett v. New York Life Ins. Co., also cited by defendant, the court directed a verdict for defendant and said, “The fact that the insured’s situation and surroundings were such as to make it seem to others unlikely that his worries about his physical condition would make him wish to take his own life was not inconsistent with the existence of the suicidal intent. ’ ’

Here the evidence of a motive for self-destruction is-conflicting, and in óur examination of the record for the purpose of determining whether or not a verdict for defendant should have been directed we will assume that there is no evidence of suicidal intent. The insured was not seen alive from the time he left the garage with Huber’s car; several hours later his body was found in the garage in the rear of the building in which he lived, lying upon newspapers appearing to have been freshly laid upon the concrete floor; all the doors of the garage were closed and the windows had been nailed down so they could not be opened; there was no evidence of any struggle or violence; the bullet which caused the death was fired from a revolver held so close to the body as to cause a powder burn on the leather jacket; an expelled cartridge was lying near the' revolver; the money in his clothes was not disturbed; his hat was partly on or under his head; no reason was shown why the insured should be in the garage — Huber’s car was not kept there; the position of the- body, the undisturbed newspapers and clothes preclude the possibility of an accidental shooting. The only other hypothesis inconsistent with suicide is that he may have been shot elsewhere and his body carried to the garage; this would have to be done after the insured had left the public garage with Huber’s car and at a time when people would-be up and around and the chances of detection great; if he was shot elsewhere and the body carried to the garage, robbery could not have been the motive; the presence of the money when the body was found would be a further bar to consideration of any theory of robbery. There is no evidence of any motive on the part of anyone to wilfully harm much less to kill, the insured, hence the theory of murder is-wholly speculative. The card which the housekeeper found and which Huber turned over to the police is some evidence corroborating the theory of suicide. Upon a careful consideration of all of the evidence, we are of the opinion that the only reasonable conclusion to be drawn from the facts before us is that the insured died from a wound self-inflicted and that a verdict for the defendant should have been directed.

Under the terms of the policy the liability of the defendant, in event of the death of the insured by suicide within two years from the issue of the policy, is limited to premiums paid on the policy, without interest. By its answer defendant admits its liability for $56.72, premiums paid, alleges that it has tendered this sum, which plaintiff refused to accept, and again tenders that amount.

The judgment of the circuit court is reversed and judgment is entered here for the plaintiff against the defendant for $56.72, without costs. The costs on the appeal are taxed against plaintiff.

Reversed and judgment here for plaintiff.'

O ’Corns'or, P. J., and Hatchett, J., concur.