author: JUSTICE EOYALDI

text:
    Samuel C. Lurie, Plaintiff-Appellant, v. Peter Dombroski, Defendant, and Julia Dombroski, Defendant-Appellee.
    Gen. No. 11,031.
    Second District.
    April 1, 1957.
    Released for publication April 18, 1957.

      Buskin & Rosenbaum, of Chicago, for appellant.
    Ellis, Hamilton & Geister, of Elgin, for appellee.
   JUSTICE EOYALDI

delivered the opinion of the court.

This cause arises in part out of certain transactions referred to in the case of Dombroski v. Dombroski, passed on by this court and reported in 345 Ill. App. 460; and the case of Lurie v. Dombroski, 7 Ill.App.2d 543, wherein the appeal was dismissed for want of a final appealable order.

The complaint filed herein on July 8, 1954 against Peter Dombroski and Julia Dombroski alleges:

That on July 8, 1932, a judgment was recovered in the Municipal Court of Chicago by the Receiver of Lincoln Trust & Savings Bank against Peter Dombroski for $15,897.63, and costs, and execution was issued thereon, and was personally served on Peter Dombroski, and returned unsatisfied; that on December 20, 1945 said judgment was assigned to plaintiff; that on January 3, 1952 said assignment was filed with the clerk of the Municipal Court; that thereafter plaintiff brought suit on said judgment in the McHenry County Circuit Court against Peter Dombroski, and on March 19, 1954, a judgment was rendered thereon against Peter Dombroski for $20,928.12 and costs of suit; that an execution was issued on said last mentioned judgment and returned July 1,1954 unsatisfied.

That Julia Dombroski was at all times therein mentioned, and now is the wife of Peter Dombroski, and Marie Dee is the daughter of said Peter and Julia Dombroski.

Plaintiff states on information and belief that on and prior to September 30,1936 one Henry Francis Yallely was an attorney at law, admitted to practice in Hlinois and was an agent and attorney of Peter Dombroski and as such agent and attorney had in his possession and under his control large sums of money, the property of Peter Dombroski; and that on or about said date the said Henry Francis Yallely, with the funds and money of said Peter Dombroski, purchased certain real estate described in the complaint, in McHenry County, from Theodore Hamer, as trustee, and took title thereto in his own name, without the notice, knowledge or consent of Peter Dombroski; and that by reason thereof a trust in said real estate resulted in favor of Peter Dombroski.

That in July, 1937 the said Henry Francis Yallely caused the title to said real estate to be conveyed to Julia Dombroski. That on July 15, 1940, Julia Dombroski conveyed said real estate to Marie Dee and that on May 1, 1946 Marie Dee reconveyed said real estate to Julia Dombroski; that no consideration was paid for any of said conveyances, but the same were taken by said grantees with knowledge of the rights and interest of Peter Dombroski, and that said real estate was so taken and held in trust for Peter Dombroski by said Henry Francis Yallely; that said conveyances were so taken and title held with intent to hinder, delay and defraud the creditors of Peter Dombroski; that Julia Dombroski now is, and has been, residing on said premises and may claim a homestead therein.

The prayer for relief was that said real estate be declared to be the property of Peter Dombroski, and that the same be sold by an order of court and the proceeds applied to the payment of the judgment of plaintiff, subject to the right of redemption; that the court order such conveyances by the defendants or any one or more of them as may be required to vest the title of record in the said Peter Dombroski and in the purchaser at such sale, and in the event of their failure to convey, the master in chancery make such conveyances; and for general relief.

The appellee, Julia Dombroski, filed a motion to dismiss the complaint, supported by her affidavit as to the truth of the statements contained therein. The matters principally relied on in said motion were that the action of the plaintiff, appellant, was barred by the Statute of Limitations and by laches. On February 21, 1955 an order was entered by the circuit court sustaining the motion of appellee and dismissing the complaint as to appellee.

Later plaintiff, appellant, filed a motion supported by affidavit of Joseph Rosenbaum, his attorney, on March 18,1955, asking the court to vacate and expunge the order entered on February 21, 1955, to grant a rehearing on the complaint and the motion of Julia Dombroski to strike said complaint, and on such rehearing to grant the plaintiff leave to file instanter his first amendment to his complaint, and for a rule on the defendants to plead to the complaint as so amended. The affidavit filed in support of said motion sets forth that the proposed first amendment to the complaint was presented with said motion. The affidavit of counsel states, and the proposed first amendment showed, that a suit of Peter Dombroski to declare a trust for him in the real estate described in the complaint, and to have said lands conveyed to him, was instituted in March, 1941, within five years of the conveyance of said lands to Henry Francis Vallely, and of the original conveyance to the defendant Julia Dombroski, and is still pending, so that the equitable interest of Peter Dombroski is a subsisting one and not barred by either the Statute of Limitations or laches. Said affidavit also states that the affiant called the clerk of the McHenry County Circuit Court and was informed by the clerk that the case wherein Peter Dombroski is plaintiff and Henry Francis Vallely, Julia Dombroski and others are defendants, was still pending; “that the averments in said amendment relating to the contents of the complaint of the plaintiff Peter Dombroski in said suit, the issuance of summons, appearances and answer of said Julia Dombroski are as set forth in an abstract of record prepared and filed February 10, 1951 by her attorneys in tbe Appellate Court of Illinois, Second District, in the appeal therein docketed as No. 31894.”

The above mentioned case was transferred from tbe Supreme Court to tbis court, and tbe decision of tbis court therein is reported in 345 Ill. App. 460.

Tbe proposed first amendment to tbe complaint copied tbe allegations of tbe complaint in tbe primary suit, and attempted to appropriate tbe claim of Peter Dombroski on behalf of plaintiff, appellant, in tbis cause, and compel tbe appellee to litigate those questions in tbis cause while tbe primary suit involving tbe same identical questions is pending and undetermined. On a rehearing of said motion filed by appellee to dismiss tbe complaint, and on tbe bearing of tbe motion of plaintiff above mentioned for leave to file tbe first amendment to tbe complaint, tbe order was entered March 18, 1955, from which tbe former appeal was taken. Tbe memorandum of tbe trial court in determining tbe issues on the motion to strike tbe complaint appears in tbe abstract and tbe views of tbe trial court on tbe rehearing of said motion were tbe same as expressed in tbe original memorandum.

After tbe mandate of tbis court dismissing tbe former appeal was filed in tbe trial court, an order was entered on August 23, 1956, dismissing tbe complaint and suit against both defendants for want of equity, from which later decree plaintiff has taken tbis appeal.

Tbe record in tbis case consists entirely of tbe pleadings and orders of court, and there was no evidence taken at tbe bearing.

Tbe plaintiff’s theory is that Peter Dombroski was tbe beneficiary of a resulting trust in tbe real estate in question; that a suit by him to establish a resulting trust is an action for the recovery of lands and, 20 years not having elapsed, would not be barred by section 1 of tbe Statute of Limitations; that bis equitable estate was subject to the payment of the judgment against him; that this suit is an equitable levy; that plaintiff, as the assignee of the judgment, has the same rights as his assignor (who was a judgment creditor with execution returned nulla bona at the time of the acquisition of the real estate in question) notwithstanding that the assignment may have been made after the acquisition of the real estate and its subsequent conveyances; and that the various grantees having taken without consideration and with notice of Peter’s rights acquired the real estate subject to the trust interest of the judgment debtor; and the amendment proposed would have shown that Peter Dombroski had a suit pending which had been instituted within five years of the acquisition of the real estate, so that his equitable estate was an existing estate not barred even under the five year statute, and should have been allowed.

The defendant contends among other things that the five year Statute of Limitations barred the plaintiff’s suit, as to the real estate and as to her; that plaintiff was guilty of laches; and that the pendency of a former action for the same relief asked for in this second suit, is ground for the abatement of the second suit.

This proceeding is not an action for the recovery of lands, and section 1 of the Statute of Limitations does not apply. This is not a suit by Dombroski to recover lands, nor does the plaintiff seek to make such a recovery. No question of the ownership of lands is involved. Plaintiff’s action is only to subject an alleged beneficial interest in certain lands to the lien of a judgment.

This is a proceeding by a creditor of Peter Dombroski in which it is sought to establish a constructive trust under which Dombroski would be a beneficiary. The deed to the property in question by which a resulting trust is alleged to have arisen was dated September 30, 1936 and the property was conveyed to the appellee Julia Dombroski in July, 1937, and these were matters of record of which appellant had notice as shown by the public records of McHenry County, Illinois. Since the complaint shows upon its face that no express trust was ever granted there would seem to be no question but that the Statute of Limitations has run. An action to establish a resulting or a constructive trust is subject to the five year Statute of Limitations. Lancaster v. Springer, 239 Ill. 472, 481; Schreiner v. City of Chicago, 406 Ill. 75; Dean v. Kellogg, 394 Ill. 495.

In the case of Lancaster v. Springer, supra, a suit was filed by the heirs of Lancaster to establish a resulting or constructive trust in real estate conveyed by Lancaster to Springer, while the latter was acting as the agent of Lancaster in the management of his business affairs. This relation existed over a long period and continued until the death of Lancaster. A demurrer was sustained to the amended bill, and the same was dismissed for want of equity. The Supreme Court in its opinion, on page 479 said:

“So far as the real estate is concerned, there is no theory on which the bill can be sustained. Lancaster conveyed the premises to Springer by deeds absolute in terms, without condition or reservation. Under such circumstances there can be no resulting or constructive trust in favor of the grantor. (Mayfield v. Forsyth, 164 Ill. 32; Biggins v. Biggins, 133 id. 211; Stevenson v. Crapnell, 114 id. 19.) If there was any agreement to hold in trust it was an express trust, and was invalid because not manifested by writing. (Monson v. Hutchin, 194 Ill. 431; Benson v. Dempster, 183 id. 297.) If the deed had been voidable by Lancaster because of the relations between himself and the grantee, his acquiescence in the transaction and in the grantee’s possession and use of the property for twenty-four years was sufficient to bar him from maintaining a bill to avoid the deed on that ground. (Herr v. Payson, 157 Ill. 244; Benson v. Dempster, supra; Brown v. Brown, 154 Ill. 35.) There is no express trust, there is no implied or constructive trust. The only right, if any, which Lancaster ever could have had, was a right to have the deed set aside on account of the relation existing between himself and Springer. The bill contains no allegation of actual fraud in procuring the conveyances. So far as its allegations go, the first deed was a gift and the second a sale for $53,707.50. To a bill seeking relief against conveyances made under such circumstances, laches of the complainant presents a complete defense.”

Again on page 481, the court said:

“If any liability was incurred by Springer to Lancaster on account of the transaction concerning the three long-term leases, it was for misconduct as his agent or fraud in procuring the execution of the leases and mortgages. All the claims accrued out of Lancaster’s business transacted by Springer as his agent, and they were therefore subject to the operation of the Statute of Limitations. To exempt a trust from the operation of the statute it must be a direct trust, belonging exclusively to the jurisdiction of a court of equity. Constructive trusts, arising from partnerships, agencies and the like, are subject to the statute. Albretch v. Wolf, 58 Ill. 186; Quayle v. Guild, 91 id. 378; Hayward v. Gunn, 82 id. 385.

“Lancaster’s death terminated the agency, and unless suit was begun within five years after that time the bar of the statute presented a complete defense. The failure of the complainants to learn of the existence of their cause of action does not prevent the operation of the Statute of Limitations. (Conner v. Goodman, 104 Ill. 365; Parmelee v. Price, 208 id. 544.)”

The Supreme Court re-affirmed the principles announced in the Lancaster-Springer case, in the case of Schreiner v. City of Chicago, supra. In the opinion, on page 90 the court said: “This transaction occurred in 1929, and the suit was commenced in 1946, after seventeen years had elapsed. It is only express trusts that are exempt from the Statute of Limitations or laches. (Lancaster v. Springer, 239 Ill. 472.) There is no express trust in this case. . . .” At page 91, the court said: “In the present case, under the allegations of the alternative cause of action, the most that could be charged against the city was that it became a constructive trustee, and constructive trusts are subject to limitation or laches after the lapse of five years without action.” To the same effect is Dean v. Kellogg, supra.

Appellant then contends that his suit is properly a Creditor’s Bill in Equity. The complaint does not appear to be a Creditor’s Bill, for no fraud is alleged on the part of Peter Dombroski. Be that as it may, the right of a creditor to enforce his judgment by a Creditor’s Bill is also barred by the five year Statute of Limitations. In the case of Parmelee v. Price, 208 Ill. 544, a Creditors’ Bill was filed by judgment creditors of a corporation to enforce the liability of stockholders for the unpaid portion of their subscriptions to the capital stock of the corporation. The court held, page 559-560:

“We hold that a right of action accrues to a creditor against a stockholder whose stock, as between the shareholder and the corporation, has been paid for by property taken at a fraudulent over-valuation, whenever the corporation ceases doing business, leaving debts unpaid, and that the creditor may proceed immediately to enforce this right of action in equity, under section 25, supra, without first reducing his claim against the corporation to judgment at law.

“The liability of the stockholder resides in the fact that he has subscribed for and taken stock, for which the law requires he should pay, in money or property, the full amount of his subscription. His liability to the creditor is not a liability upon his contract of subscription and is not dependent upon any call being made upon him by the corporation, as in case where the corporation seeks to collect the same, but is a liability resulting from the statute, consequent upon the fact that he is a shareholder, and the action of the creditor against him is a ‘civil action not otherwise provided for,’ within the meaning of section 15 of chapter 83 of Hurd’s Revised Statutes of 1901, and is therefore governed by the five year Statute of Limitations.

“It is suggested, however, that the creditor has the right to elect whether he will proceed under section 25, supra, or section 49, supra; that if he proceeds under the latter he cannot bring a suit against the stockholder until he has had an execution returned ‘no property found,’ and that the statute therefore would not begin to run against him until the execution was so returned, so far as his remedy under the latter section is concerned. This would place the power in the hands of the creditor to extend the Statute of Limitations far beyond any period of time contemplated by the legislature. If his debt against the corporation was evidenced by writing, he has ten years in which to bring his suit at law against the debtor, and after the recovery of a judgment he may take out an execution at any time within seven years, and if he may institute a proceeding against the stockholder at any time within five years thereafter, it makes a period of twenty-two years after the maturity of the debt against the corporation within which the creditor may proceed against the stockholder. It is manifest that such a holding would be against that public policy which has led to the enactment of statutes of limitation. That act ‘was intended as a statute of repose, to prevent fraud and to afford security against stale demands which might be made after the true state of the transaction may have been forgotten or be incapable of explanation by reason of the death or removal of witnesses,’ and this purpose should be kept in view in construing that statute.”

The remaining contention of appellant requiring consideration is that the lower court erred in not permitting him to amend his complaint to show that another action was pending wherein Peter Dombroski had instituted proceedings in the same court against appellee, Julia Dombroski, seeking to establish his ownership of certain real estate. By his proposed amendment appellant seeks to litigate the claim of Peter Dombroski to a resulting trust in the lands involved in this suit. He is attempting to adopt and appropriate the claim of Peter Dombroski as set forth in Peter’s suit which he states is pending and undetermined in the same court, as a basis for his right to recover in this suit. Courts know their own records. People v. Bernovich, 403 Ill. 480, 483; People v. Powers, 283 Ill. 438; Newberry v. Blatchford, 106 Ill. 584; C. & A. R. R. Co., v. Kelly, 182 Ill. 267; Jackson v. Glos, 249 Ill. 388; Smyth v. Neff, 123 Ill. 310; In Re Petition of Village of Hickory Park, 10 Ill.App.2d 146. There is no showing in appellant’s motion, affidavit, or in the proposed amendment, that he had secured any permission or authority from Peter Dombroski to take over or litigate his claim in this suit. There are no motions seeking, or orders of court permitting, appellant’s intervention in the 1941 suit. In the absence of appropriate motions, petitions and orders, the lower court properly refused to allow the proposed amendment in this proceeding.

We conclude that the circuit court was correct in the order entered in this cause.

Order and decree affirmed.

DOVE, P. J. and CBOW, J., concur.


source: Caselaw Access Project

author: JUSTICE CROW.

license: Public Domain

text:
    David J. Reinert, a minor, by Clifford W. Reinert, his father and next friend, Appellee, v. Roger W. Willing, Appellant.
    Gen. No. 10,974.
    Second District.
    March 26, 1957.
    Rehearing denied April 22, 1957.
    Released for publication April 22, 1957.
    Allen, Matthews, Jordan & Dean, for appellant; Kramer & Kramer, for appellee.
   Opinion by

JUSTICE CROW.

Not to be published in full.


author: PRESIDING JUSTICE NIEMEYER

text:
    People of the State of Illinois, ex rel. William Franklin Mullin, Owbridge Faye Gall and Lucius McCray, Appellants, v. Theodore Williams, Charles Merriweather and Carl Schneider, Appellees.
    Gen. No. 47,014.
    First District, First Division.
    March 12, 1957.
    Released for publication May 2, 1957.

      Sidney J. and Arthur "Wolf, of Chicago, for appellants.
    Segal & Segal, of Chicago, for appellees; Edward Atlas, of Chicago, of counsel.
   PRESIDING JUSTICE NIEMEYER

delivered the opinion of the court.

Appellants, herein called relators, appeal from a judgment for defendants entered in a quo warranto proceeding attacking the right of three of the defendants to the office of trustee and of the fourth defendant to the office of trustee and secretary of the Grace Gospel Hall, a member church of the Plymouth Brethren.

The complaint alleges that the relators, Mullin, Gall and McCray, were elected trustees of the church on or about January 15,1951; that the church has no by-laws or rules; that no meetings of the members of the church or of the trustees were held at any time and no trustees or other officers were elected after January 15, 1951.

Although served with summons, defendant Merriweather did not appear or answer. He was not defaulted, because he was in the military service. The case proceeded as to the remaining defendants. Theodore Williams, Jr., and Hiram Williams filed a joint answer under oath. Schneider filed a verified answer identical with the Williams’ answer. In these answers defendants asserted title to their respective offices by election at a duly held meeting of the members of Grace Gospel Hall. In joint answers to interrogatories filed by relators these defendants stated that Theodore Williams, Jr. was elected trustee and secretary on September 28, 1947, and Hiram Williams and Carl Schneider were elected trustees on June 24, 1952, and gave the names of persons present at the respective meetings. In testimony given on pretrial depositions each defendant stated that he was appointed to his respective office by Elder Theodore Williams, Sr. On commencement of the trial and before selection of the jury the defendants by leave of court filed their joint verified second amended and supplemental answer in which they deny the election of the relators as trustees, allege that relators were appointed trustees by the Elders of Grace Gospel Hall on or about June 15, 1951 and announcement of the appointment made to the congregation, who made no objection thereto, and that defendants were likewise appointed to their respective offices by the Elders and announcement thereof made to the congregation, who made no objection thereto; admit that the church has no by-laws and allege that according to the doctrine, faith and religious belief of the Plymouth Brethren and the congregation of Grace Gospel Hall, all rules necessary for the government and regulation of the church are found in the Holy Scriptures; deny that Grace Gospel Hall has members and allege that the individuals of the congregation are in fellowship with each other, and that according to the doctrine, faith and religious belief of the congregation and the usages and customs of the church, trustees and other officers are not elected by the “members” but are appointed by tbe Elders, and announcement of tbe action of the Elders made at the following Sunday meeting of the congregation; that each defendant was appointed to the respective office held by him by the Elders of the Grace Gospel Hall and announcement thereof made to the congregation at the following Sunday meeting in accordance with the doctrine, faith, religious belief, customs and usages of the Grace Gospel Hall; that relators vacated their respective offices by failure to act as such trustees, and that the vacancies thus created were filled on or about June 23, 1952.

Defendants allege as a further defense that it is a cardinal article of the religious faith of the brethren that none go to law against other brethren; that by going to law and refusing an offer of defendants to submit all matters in dispute to the judgment or arbitration of Elders of other Plymouth Brethren churches, to be designated by the court, relators have abandoned the faith of the Plymouth Brethren and are no longer brethren and saints of Grace Gospel Hall and are not entitled to hold office in the church or to maintain this action.

On instructions tendered by relators the issues of the abandonment or resignation of the office of.trustee by relators and their proper removal therefrom, as well as the issue of the proper election or appointment of defendants as trustees, were submitted to the jury. A verdict finding the issues for defendants was returned and judgment entered thereon. Relators moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion was denied and relators appealed.

Relators’ principal contention on appeal is that the trial court should have directed a verdict for relators dr entered judgment for them notwithstanding the verdict because the above-mentioned statements in the original answer, the answers to the interrogatories and the testimony on pretrial depositions as to the election and appointment of defendants to their respective offices are judicial admissions, conclusive as to each defendant and precluding them from showing appointment to such offices in the manner alleged in the second supplemental answer. The conclusiveness against the pleader of allegations of fact in pleadings on which the case is tried may be conceded. However, in the instant case the trial court, after a hearing in which relator’s counsel stated their objections, permitted the filing of the second amended and supplemental answer. No error in granting this permission is urged on appeal. Although the original answer remained in the case and could be used in impeaching the testimony of the defendants, it no longer had the effect of a judicial admission. 1 Green-leaf on Evidence (15th ed.) sec. 206.

As stated by this court in Tennes v. Tennes, 320 Ill. App. 19, cited by relators, the strict rule of conclusiveness of judicial admissions does not cover all statements made by a litigant when testifying in a case. In the Tennes case plaintiff brought suit against the driver of the automobile in which she was traveling for injuries sustained when the car went off the road and turned over several times. Defendant testified that he went to sleep while driving. The Appellate Court said (p. 33):

“The parties are in agreement that it is only where a party testifies clearly and unequivocably to a fact which is peculiarly within his own knowledge that such testimony may be considered as a judicial admission. (Harlow v. Leclair, 82 N. H. 506, 136 Atl. 128; King v. Spencer, 115 Conn. 201, 161 Atl. 103; Kanopka v. Kanopha, 113 Conn. 30, 154 Atl. 144.) It is apparent that Joe Tennes, in testifying that he went to sleep at the wheel, testified to a fact peculiarly within his knowledge.”

See 20 Am. Jur., Evidence, sec. 1181. Judged by this standard the answers by defendants to interrogatories filed by relators and their testimony on the pretrial depositions are not judicial admissions. The steps taken in selecting defendants as trustees, whether by election or appointment, the authority of the persons acting and the effect of the action taken under the customs and usages of the church, are not peculiarly or exclusively within the knowledge of defendants. The trial court properly allowed the statements of the defendants to be used for impeaching purposes. It did not err in refusing to direct a verdict for relators or enter judgment for them notwithstanding the verdict.

As alleged in the complaint and testified to by witnesses, including defendants on the trial, Grace Gospel Hall does not have written by-laws or rules. There is ample testimony that according to the usages and customs of the church the trustees are appointed by the Elders. Although the testimony is not altogether clear as to who were Elders, there is testimony that Theodore "Williams, Sr. and Patton were Elders at the times involved herein. Williams, Sr. was impeached by prior statements, but defendants’ right to office does not depend entirely on his testimony. Minutes of meetings corroborating defendants’ claims were received in evidence. There is testimony that relators did not attend to the duties of a trustee and that their offices were declared vacated. Relators do not argue in the alternative that the verdict is against the manifest weight of the evidence if their contention as to judicial admissions is not sustained.

No objections to the giving or refusing of instructions are argued on appeal. Relators state in their brief that the court erred in refusing to permit the jury to take with them the complaint, the original answer of the defendants and their answers to the relators’ interrogatories, received in evidence as relators’ exhibits, bnt do not point ont wherein this was error. In like manner relators call onr attention to certain incidents occurring on the trial, but do not show wherein relators were harmed as a result of such incidents. We find no reversible error in the record.

The judgment is affirmed.

Affirmed.

BURKE and FRIEND, JJ., concur.


author: JUDGE FBIEND

text:
    Laetitia K. Coolidge, Appellee, v. Winthrop K. Coolidge, Appellant.
    Gen. No. 46,990.
    First District, First Division.
    March 12, 1957.
    Released for publication May 2, 1957.

      William C. Wines, of Chicago, for appellant.
    James A. Sprowl, John D. Knodell, of Chicago, for appellee; Johnston, Thompson, Baymond, and Mayer & Jenner, all of Chicago, of counsel.
   JUDGE FBIEND

delivered the opinion of the court.

This appeal, Laetitia K. Coolidge’s (plaintiff’s) suit for separate maintenance against her husband, Winthrop K. Coolidge (defendant), is a sequel to the decision in Coolidge v. Coolidge, 4 Ill.App.2d 205, hereinafter referred to as the first Coolidge case. The pleadings and essential facts in that proceeding are set forth in considerable detail and need not here be restated in full. Plaintiff had on March 11, 1952 filed her complaint against defendant for separate maintenance, charging that he, “disregarding his duties to plaintiff and without just provocation, endangered her health and rendered her life miserable and unendurable.” About a year later she filed an amended and a supplemental complaint reiterating these allegations and, in addition, charging defendant with three acts of cruelty and constructive desertion, and praying divorce, alimony, a division of property and an award of the custody of all five of the Coolidge children; in the alternative, she repeated her prayer for separate maintenance. The chancellor awarded plaintiff a decree of divorce, from which defendant appealed. While the appeal was pending the chancellor, having heard evidence as to the family life and financial circumstances of the Coolidge family, entered a supplemental decree awarding plaintiff alimony, $8,000 by way of property division, and custody of the three younger children, Olga, Dexter and Carol, together with child support; defendant was awarded the custody of the two older girls, Laetitia and Deborah. The wedding presents were divided between the parties. Plaintiff appealed from the supplemental decree, and defendant filed a cross-appeal.

"We reversed the original decree of divorce which plaintiff had obtained from defendant. Although the complaint as then standing prayed separate maintenance, we did not remand the cause with respect to that prayer, nor did either of the parties request that we do so. We held that since “the decree for divorce was erroneously entered, questions of child custody, child support, alimony, property division and attorney’s fees need not be decided.” Neither party filed a petition for rehearing nor sought leave of the Supreme Court to file an appeal from the judgment which, by lapse of the statutory limitation (Ill. Rev. Stat. 1955, ch. 110, par. 74, sub. par. (3)), became final fifty-five days after January 31, 1955, or on March 27, 1955. Since the parties separated on March 11, 1952, Laetitia, Deborah and Dexter have lived with defendant at 219 Lake Shore Drive, Chicago, in the family dwelling that plaintiff left, and the two younger girls have lived with plaintiff in Winnetka, first in a rented house and subsequently in a house that plaintiff purchased in the same suburb.

Plaintiff’s complaint in the present case, praying for separate maintenance, parallels in substance the same charges of misconduct that were embodied in her original and amended complaint in the first suit; charges of cruelty were omitted in the present proceeding. One count of the complaint, which is at law, seeks a judgment of $25,000.

■ On September 15, 1955, during the pendency of the present proceeding, plaintiff filed a petition for temporary custody of all the children, for temporary support for them as well as for herself, and for attorney’s fees. On October 17, 1955 temporary support money and attorney’s fees were allowed; the residence of the children was not disturbed.

In the interim, on September 27, 1955, defendant filed his motion to dismiss the complaint, with accompanying exhibits setting forth the full text of plaintiff’s amended and supplemental complaint for divorce or, in the alternative, separate maintenance, in the first Coolidge case, as well as defendant’s answer to that amended complaint and the full text of our opinion in the first appeal. The motion pleads our judgment as res judicata or, in the alternative, as estoppel “by judgment and record of all matters actually litigated in the cause in which that judgment was entered . . .” The chancellor overruled this motion, and also defendant’s motion to strike count II of the complaint seeking judgment at law for $25,000. On December 29, 1955 defendant filed an answer, again asserting that the matters put at issue in the first Coolidge case and here reasserted “have been conclusively settled and adjudicated by the opinion and judgment of the Appellate Court”; he denied that he was guilty of misconduct, as charged by plaintiff; he further denied that plaintiff’s two returns to his home were in good faith; and he put in issue the other allegations of the complaint. At the same time defendant also filed a counterclaim for declaratory judgment, alleging that plaintiff deserted him, that the desertion has continued for upwards of one year, and that he was not bound to resume marital relations with her. He admitted his responsibility and averred his willingness to support all the children so long as they lived with him, but sought declaratory adjudication that he was not bound to support any of the children who were living with plaintiff as long as she has the means to support them while they are living with her. He also sought injunctive relief. Pursuant to hearing,, the chancellor, on April 6, 1956, entered a decree on plaintiff’s complaint, finding the issues in her favor, and specifically finding “that the plaintiff at all times conducted herself as a dutiful wife and faithfully performed all her duties and obligations; . . . that plaintiff is now living separate and apart from defendant without fault on her part; [and] that plaintiff is entitled to separate maintenance from defendant as is by statute provided.” She was awarded $200 a month for her separate maintenance, and the custody of the two younger girls, together with an award of $150 per month for each child. Defendant was given the custody of Laetitia, Deborah and Dexter. Mutual rights of visitation were incorporated in the decree. The decree dismissed plaintiff’s count II for money claimed to have been spent by her between the commencement of the separation and the institution of the present suit, and provided that each party should bear his own attorney’s fees.

The chancellor, on April 9, 1956, entered an order denying defendant’s amended counterclaim for declaratory judgment that plaintiff was not living separate and apart from him “without fault on her part,” and his prayer for an injunction restraining plaintiff from “bringing any action against the defendant in assertion of any claim that she has been living separate and apart without fault on her part at any time prior to April 6, 1956.”

Defendant seeks review on this appeal of the final decree for separate maintenance, of the order overruling his motion to dismiss count I of the complaint on the ground of res judicata or estopped by record, of the order awarding temporary custody of the two younger girls to plaintiff and temporary alimony, and of the order denying his prayer for declaratory judgment and injunctional relief.

As the principal ground for reversal it is urged that our opinion and judgment in the first Coolidge case is conclusive on all matters that were or could have been adjudicated in that case. The gravamen of defendant’s contention is that the opinion in the first Coolidge case adjudicated that plaintiff was not living separate and apart without fault on her part. Our former decision held that plaintiff had no right to divorce. Although the prayer of the amended and supplemental complaint prayed for divorce, or in the alternative for separate maintenance, the chancellor decided only that plaintiff was entitled to a divorce on the ground of cruelty; he made no finding as to the alternative prayer for separate maintenance. The question of separate maintenance was an entirely different question from that of divorce; the measure of proof and grounds of relief are not the same in cases for separate maintenance as they are in cases of divorce. Abraham v. Abraham, 403 Ill. 312. Under the Illinois Constitution the jurisdiction of the Illinois Appellate Court is exclusively appellate, and the court has jurisdiction to review only the issues decided by the trial court. (Goodrich v. Sprague, 376 Ill. 80.) The first Coolidge case, for purposes of review, involved solely a decree of divorce; we could not, in reviewing that case, have granted or denied separate maintenance for plaintiff. In the Goodrich opinion the court pertinently held: “The office of Appellate Court is to review rulings, orders, or judgments of the court below, contained in the record, and matters not ruled upon by the inferior court are not subject to the consideration of the Appellate Court unless the lower court’s failure to rule is made the subject of an assignment of error, in which case the propriety of such failure is the question presented to the Appellate Court and not the merits of the matter upon which the trial court refuses to act. In other words, the Appellate Court’s jurisdiction is appellate, and extends only to those matters in controversy which have been ruled upon by the trial court.”

Defendant argues that even if there had been no prior litigation between the parties the record shows that plaintiff was not living separate and apart from her husband without fault on her part; that even under her version of the facts she was not justified in leaving defendant and living separate and apart from him up to the time of the first decree; and that, her version of the causes for separation is not supported by the manifest weight of the evidence. We indicated in our prior opinion that neither of the parties was without fault, but, whatever the cause of the original separation, if plaintiff made bona fide offers to return in 1955 which were refused by defendant she would nevertheless be entitled to separate maintenance. Garvy v. Garvy, 310 Ill. App. 169. Defendant argues that plaintiff’s efforts to return to the family home were not made in good faith, and that the chancellor’s holding that they were is contrary to the manifest weight of the evidence. After learning some time in January 1955 that the divorce decree had been reversed by the Appellate Court plaintiff discussed her problem with her pastor, her family and her friends, and decided to go back to defendant. Following a spring vacation with the children, she returned, the day before Easter, to the family home at 219 Lake Shore Drive in the city, bringing her clothing with her. She testifed that she expected the entire family to stay at the 219 Lake Shore Drive address, and she had leased her Winnetka house in the belief that she would no longer need it. She had brought an Easter boutonniere for defendant, but, for him, flowers were evidently not the language of reconciliation, and he refused to take plaintiff back. About the middle of May 1955 she made a second attempt to return to defendant. After gaining entrance to the Lake Shore Drive apartment she refused to leave, whereupon defendant locked her in a bedroom; she was not permitted access to any other area of the apartment. Her meals were brought to her — on an irregular schedule. Her attorneys, being resourceful and agile individuals, succeeded in conferring with her — on an outdoor basis; Mr. Knodell scaled iron fences and climbed up to the balcony off her bedroom. She was thus constrained— almost imprisoned, one might say — -until she agreed to leave the premises. Defendant argues that her offers to return should have been preceded by a discussion between the two of them, or accompanied by an apology on her part. Her failure to take any preliminary steps or to make an apology before returning indicated, in defendant’s view, a lack of good faith. While it might have been more tactful, and possibly more rewarding, if plaintiff had negotiated her attempted returns in the manner suggested by defendant, she cannot be held remiss legally for her direct method of approach; so far as we know, there are no cases which hold that the returning spouse must first discuss the contemplated return or tender an apology for having left. In the Garvy case (Garvy v. Garvy, 310 Ill. App. 169), the court adopted the following language from Haley v. Haley, 209 Ill. App. 153: “ ‘It is the law in this State that under such circumstances it is the duty of the husband to receive the wife and properly provide for her, and that should he refuse to perform this duty it cannot then be said that she is living apart from her husband through her fault. The language of the Supreme Court in Thomas v. Thomas, 152 Ill. 577, 579, is directly applicable: “Even though the original separation was without any fault of the husband, still if she afterwards, in good faith, offered to return and live with him, it was his duty to receive her hack and there properly provide for her.” ’ ” Here, plaintiff told defendant, upon her first attempted return, that she had come hack “to make a happy home.” The chancellor who heard the evidence pertaining to these two offers to return was evidently convinced that they were made in good faith and that she meant to stay and be a good wife. This was enough, and we would not be warranted in finding that his holdings were contrary to the manifest weight of the evidence.

In count II of the complaint plaintiff asked an allowance for support money that she had been compelled to provide for herself and the children from March 11,1952 until commencement of the instant proceeding, giving defendant credit for amounts paid by him under the prior litigation under alimony and support orders which were subsequently reversed in the first Coolidge case. The court dismissed count II on the ground that it did not state a cause of action upon which relief could be predicated, and plaintiff filed a cross-appeal. She takes the position that at common law, as under the present statute, the husband was and is under an absolute duty to support his children, and that under the Husband and Wife statute, enacted in 1874 (Ill. Rev. Stat. 1955, ch. 68, par. 1) the common-law disability which prevented suit by a wife against her husband was removed. Johnson v. Johnson, 239 Ill. App. 417, is primarily relied on for these contentions. In that case plaintiff, whose husband, an Illinois resident, refused to allow her to return to him after a vacation, obtained a divorce in Minnesota. Since he did not appear and contest the proceedings, the Minnesota court could not award either alimony or child support. Plaintiff subsequently sued in Illinois, where the court held in effect that a woman who obtained a divorce in a foreign court that has no jurisdiction to award support for child custody may be reimbursed for money expended by her in support of the child. In the instant case the parties are not divorced. Plaintiff had her day in court as to her rights for support of herself and two of the children, at least until her offers to return in good faith were made to defendant. Moreover, defendant has always admitted his responsibility and averred his willingness and ability to support all the children so long as they lived with him. Upon leaving, plaintiff sought to take all the children with her, but the two older girls refused to go, and Dexter left her home in Winnetka and returned to live with his father. The case of Harding v. Harding, 144 Ill. 588, is extensively cited in reference works considering the question of alimony and child-support. That case holds it to be error for the court to make an order for an allowance to a wife for the support of her minor children, in the absence of a court order giving her their custody, although her income was insufficient for their adequate maintenance according to their station in life, the father being guilty of no neglect of them, and being amply able and willing to support them in his own home. It is plaintiff’s contention here that a wife, estranged and separated from her husband, may recover retrospectively for monies expended for her support during the period of separation. Of course plaintiff received temporary alimony and support money for the two children in her custody up to the time of our decision in the first Coolidge case, and the only possible claim for support that she could assert would date from the time of reversal of the decree for divorce up to the date of the award of temporary support in this, the separate maintenance proceeding. Neither of the parties cites cases in point on this question, but we think the reasoning of the Harding case as applicable to child support would likewise apply to the support of plaintiff during the interim period. In the circumstances we think the chancellor properly dismissed count II for the reason that it did not state a cause upon which relief could be granted. Upon the filing of the instant proceeding for separate maintenance plaintiff would of course be entitled to apply for temporary separate maintenance and support for the children in her custody, and such provision was made on her behalf and later on a permanent basis by the decree from which this appeal was taken. Without going into detail as to the respective incomes of the parties, we think the amount awarded to plaintiff, $6,000 per year, for support of herself and the two children in her custody, is not unreasonable.

As to the question of custody, the chancellor found both parties fit to be awarded custody of the children, and ruled that the two older girls and the boy (Laetitia, Deborah and Dexter, at the time of this filing aged eighteen, seventeen and thirteen, respectively) remain with defendant, while the two younger girls (Olga and Carol, at the time of this filing aged fourteen and twelve, respectively) were to remain with plaintiff, thus leaving undisturbed the children’s residence. This arrangement appears to be preferred by the children and would seem to be the most satisfactory solution; the award should be affirmed.

For the reasons indicated, that portion of the decree awarding separate maintenance and fixing the amount of the allowances should be affirmed; that portion of the decree awarding custody of the two older girls and the boy to defendant and that of the two younger girls to plaintiff is likewise affirmed; that portion of the decree dismissing count II of the complaint is affirmed; as is the ruling on defendant’s motion for declaratory judgment and injunctional relief.

Decree affirmed in all respects.

NIEMEYER, P. J. and BURKE, J., concur.


author: JUDGE FRIEND

text:
    Village of Niles, a Municipal Corporation, Appellant, v. Joseph Szczesny, Appellee.
    Gen. No. 47,043.
    First District, First Division.
    March 12, 1957.
    Released for publication May 2, 1957.
    Bryant, Colwell & Wells, of Chicago, for appellant.
    Wachowsld & Wachowsld, of Chicago, for appellee; Casimir R. Wachowski, and Joseph L. Cwik, Jr., both of Chicago, of counsel.
   JUDGE FRIEND

delivered the opinion of the court. Defendant was found guilty by a police magistrate of the Village of Niles for violation of a fire ordinance (section 1.05, chapter f of the village code) and fined $500 and costs. He appealed to the Superior Court of Cook county, filed bond with the clerk of said court and had summons issued and served on the village pursuant to the provisions of the Justices and Constables Act (Ill. Rev. Stat. 1955, ch. 79, sec. 116). The village filed its appearance and moved to dismiss the appeal. On hearing of the motion, the Superior Court held that it had no jurisdiction to hear an appeal from a police magistrate for violation of a village ordinance which provides a penalty for its violation, but, on motion of the attorneys for defendant, ordered the clerk of the Superior Court to transfer all the files, documents and records in the case to the Criminal Court of Cook county. The village appeals from that portion of the order of the Superior Court ordering the transfer to the Criminal Court, contending that the transfer order was void and of no effect.

A suit to recover a penalty for the violation of a city ordinance is a quasi-criminal procedure (Naylor v. City of Galesburg, 56 Ill. 285; Wiggins v. City of Chicago, 68 Ill. 372); accordingly the appeal should have been taken to the Criminal Court of Cook County rather than to the Superior Court.

As ground for reversal, plaintiff invokes the provisions of section 26 of article VI of the Constitution of the State of Illinois wherein the various subjects of which the Criminal Court has jurisdiction are set forth in detail; the section provides that “all recognizances and appeals taken in said [Cook] county, in criminal and quasi criminal cases, shall be returnable and taken to said court.” Plaintiff relies on People v. Feinberg, 348 Ill. 549, and Rabbitt v. Weber & Co., 297 Ill. 491. In the Feinberg case the court held that, under the provisions of section 26 of article VI of the Constitution, judges of the Circuit and Superior Courts of Cook county who are assigned to act as judges of the Criminal Court have exclusive jurisdiction of criminal and quasi-criminal cases, and that where a judge of the Circuit Court, sitting in chancery and not assigned to the Criminal Court, attempts to call a special grand jury and assume jurisdiction of its proceedings, his orders in connection therewith are void and may be wholly disregarded; but that mandamus will not lie to compel such judge to expunge his orders since he has no more jurisdiction to expunge the orders than he has to make them. The Babbitt case, an appeal from a decree of the Circuit Court, involved as well a consideration of a Municipal Court judgment. The reviewing court stated that “if the municipal court had no jurisdiction to render the judgment, it and all proceedings under it are utterly void 11

Defendant, on the other hand, seeks to avail himself of the transfer provisions of section 10 (2) of the Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110 [§ 10, subd. (2)]) which reads as follows: “Whenever it appears that an action has been commenced in a court which does not have jurisdiction to determine the action, the court shall, at any time, upon its own motion or upon the motion of any party, order the cause transferred to a court of competent jurisdiction in a proper venue.” Prior to the enactment of the Civil Practice Act, section 36 of the Venue statute was similar (Smith-Hurd Ill. Rev. Stat. 1931, ch. 146). Defendant argues that the requirement contained in section 26 of article VI of the Illinois Constitution to the effect that appeals taken in the County of Cook in quasi-criminal cases shall be returnable and taken to the Criminal Court of Cook county do not preclude the court to which an appeal is erroneously taken from transferring it to the Criminal Court, pursuant to section 10 (2) of the Practice Act; also, that an action to recover a fine for the violation of a municipal ordinance, when filed in the Superior Court on appeal from a police magistrate, is to be considered as the commencement of an action in that court, and that it is a civil proceeding within the purview of section 1 of the Civil Practice Act. Central Illinois Public Service Co. v. Industrial Commission, 293 Ill. 62, Herb v. Pitcairn, 392 Ill. 138, and other cases cited in defendant’s brief are urged as supporting these contentions. These cases, however, involve a consideration of change of venue rather than of jurisdiction, which is the pertinent issue here. Defendant seeks to minimize the constitutional provision that appeals in quasi-criminal cases in Cook county shall be taken to the Criminal Court by arguing that the provision is not self-executing and depends upon the legislature to provide the method and manner of appeal which, he says, has been accomplished by the appeals provision of the Justices and Constables Act; that the contingency of an appeal to a wrong court is not provided for in that act; and that the act does not provide that if such an appeal is taken to a wrong court it must be dismissed; and it is urged that the effect of section 10 (2) of the Civil Practice- Act is to give force to the constitutional provision by transferring the appeal to the Criminal Court in accordance with the constitutional requirement. In Bratsch v. People, 195 Ill. 165, the contention was made that the Circuit and Criminal Courts of Cook County have concurrent jurisdiction of appeals from judgments of justices of the peace in criminal and quasi-criminal cases; that under section 29 of article VI of the Constitution jurisdiction of all courts of the same class or grade must be uniform; and it was urged that as the Supreme Court held in Berkowitz v. Lester, 121 Ill. 99, that the original jurisdiction of the Circuit and Criminal Courts of Cook county in criminal and quasi-criminal cases was concurrent, it logically followed that their appellate jurisdiction must be concurrent in such cases. But the court in the Bratsch opinion rejected this view and held that “appeals can only be taken when and in the manner provided by law, (In the matter of Storey, 120 Ill. 244; Ellison v. Hammond, 189 Ill. 470;) and it having been expressly provided that all appeals in Cook county in criminal and quasi criminal cases shall be taken to the criminal court, appeals to the circuit court of said county in that class of cases are thereby prohibited. Furthermore, the provision of the constitution providing for appeals in criminal and quasi criminal cases in Cook county to the Criminal Court of said county is special, while the provision providing that the jurisdiction of all courts of the same class and grade shall be uniform is general, and the law is well settled that where there is a general and special provision of the constitution which include a particular subject, the special provision will control. People v. Rose, 166 Ill. 422; People v. Hutchinson, 172 Ill. 486.” See also Wadhams v. Hotchkiss, 80 Ill. 437, and Natenberg v. Solak, 174 Ill. App. 443.

Pennsylvania Co. v. City of Chicago, 113 Ill. App. 638, presents a situation parallel to the instant proceeding. It arose on an appeal from a judgment of a justice of the peace who found the corporation guilty of violating the “smoke ordinance” of the City of Chicago. The appeal was taken to the County Court of Cook county where, upon the city’s motion, it was dismissed for the reason that that court had no jurisdiction of the appeal. There, too, it was admitted that the County Court had no jurisdiction, but it was urged, as in the present proceeding, that the court erred in refusing the change of venue asked for. The corporation contended that section 36 of the Yenue Act then in force (Hurd’s 1903 edition of the Eevised Statutes, ch. 146) applied not only to suits originally commenced in courts of record but also to suits brought there upon appeal from justices. The court rejected this interpretation of the section, saying that “the difficulty is that the legislature in passing it seems to have contemplated and had in mind suits originally brought in courts of record and none others,” and affirmed the trial court’s denial of a change of venue to the Criminal Court and the dismissal of the suit. So far as we are able to ascertain, the Pennsylvania Company case has never been reversed.

Accordingly, we have reached the conclusion that the judgment of the Superior Court, so far as it directs the transfer of the case to the Criminal Court of Cook county, should be reversed, and the cause remanded to the Superior Court, with directions to dismiss the appeal from the police magistrate of the Village of Niles; it is so ordered.

Judgment reversed and cause remanded with instructions.

NIEMEYER, P. J. and BURKE, J., concur.


author: JUDGrE KILEY

text:
    Continental-Midwest Corporation, Plaintiff-Appellee, v. Hotel Sherman, Inc., Frank W. Bering, James A. Hart, Patrick H. Hoy, L. Julian Harris, W. P. Bradtmiller, David Levinson, Roger S. Bloch, and Ambassador East, Inc., Defendants-Appellants.
    Gen. No. 47,061.
    First District, Third Division.
    March 20, 1957.
    Released for publication April 24, 1957.

      Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago, and D’Ancona, Pflaum, Wyatt & Riskind, of Chicago for defendants-appellants; David Levinson, John J. Faissler, Frank C. Bernard, L. Julian Harris, and C. Harker Rhodes, Jr., of Chicago, of counsel.

      Albert E. Jenner, Jr., Edward H. Hatton, and Thomas P. Sullivan, for plaintiff-appellee; Johnston, Thompson, Raymond, Mayer & Jenner, of Chicago, of counsel.
   JUDGrE KILEY

delivered the opinion of the court.

This is an appeal by defendants from an order for a temporary injunction (Sec. 78, CPA) [Ill. Rev. Stats. 1955, ch. 110, § 78] in favor of plaintiff, a minority stockholder in Hotel Sherman, Inc., referred to herein as Sherman. The order restrains defendants (a) from voting Sherman stock held by its subsidiary, Ambassador East, Inc., referred to herein as Ambassador; (b) from purchasing, acquiring or exchanging any of the stock of Sherman; (c) from declaring or paying dividends by Sherman until its current assets exceed its current liabilities; and (d) from voting upon or effecting mergers if the same requires voting the stock of Sherman held by Ambassador.

The order was entered August 10, 1956, upon pleadings and argument of counsel, and most of the relevant facts are admitted. The order was intended to preserve the status quo until final disposition of the issues. The question on appeal is whether the chancellor abused his discretion in granting the injunction.

Sherman and Ambassador are Delaware corporations with offices and principal business in Chicago. They are owners respectively of the Hotel Sherman and Ambassador East Hotel. There are about 101,000 shares of Sherman stock outstanding, of which plaintiff holds more than twenty per cent, Ambassador about twenty-five per cent, and a voting trust holds about thirty-nine per cent. Sherman owns about seventy-five per cent of Ambassador stock, and several directors and officers are common to both corporations and are also trustees of the voting trust.

The complaint, filed July 31,1956, charged generally that the majority ownership by Sherman of Ambassador stock, and the common officers, trustees and interlocking directorates of the corporations resulted in the domination of Sherman affairs to the detriment of minority shareholders. Specifically, it charged that Sherman purchased, without the approval of stockholders, large amounts of outstanding.Sherman stock, using Sherman cash, thereby impairing Sherman capital and wasting its assets; the borrowing of $1,100,000 to purchase and retire 7,805 shares of Sherman; the declaring and paying of a $1 dividend in 1956 for no corporate purpose, but on the contrary, to permit the trustees of the voting trust to pay off a loan made to purchase, in 1955, 5000 additional shares of Sherman; and the calling of a meeting for August 2, 1956, without giving requisite notice under Delaware law, to eliminate from the Sherman charter the cumulative voting right, in fraud of the minority and to preclude minority representation. The chancellor found expressly there was no question of either fraud or insolvency.

Issues raised by the pleadings were (a) whether plaintiff’s suit is barred by res judicata or unclean hands; (b) whether the chancellor had jurisdiction to interfere with the administration of Delaware corporations respecting dividends, mergers, and acquisition of common stock; (e) whether the Ambassador had the right to vote Sherman stock; and (d) whether the Sherman stockholders had the right to eliminate the cumulative voting provision.

On August 2, 1956, the chancellor entered an order permitting defendants to proceed with the special meeting of August 2, on condition that any action taken was subject to final decision upon the main case. The issue with respect to cumulative voting was continued generally and therefore was removed from the scope of this proceeding and the parties agree that that issue is not before us.

This is a representative suit by a minority stockholder (Mayer v. Oxidation Products Co., Inc., 110 N. J. Eq. 141, 159 Atl. 377) and the first question is whether the exercise of jurisdiction by the chancellor is an exercise of visitorial power by Illinois over the internal affairs of these Delaware corporations so as to invalidate the injunctional order. The term visitorial power was described by Judge Story, in treating of charitable corporations, as “the controlling authority of its legal visitor who . . . may amend and repeal its statutes, remove its officers, correct abuses, and generally superintend the management . . . (Dartmouth College v. Woodward, 17 U.S. (4 Wheaton) 518, 675-676.) In Mayer v. Oxidation Products Co., Inc., 159 Atl. 377, it was said that the idea of visitorial power derived from canon law and was in the eighteenth century applied extensively as part of common law to charitable corporations, especially colleges, and as applied “may be defined as the exclusive right of the founder of a corporation ... to make by-laws for the corporation and to adjudge disputes arising thereunder .... The visitor was not the proper judge in all disputes among members of the corporation or relating to its internal affairs, but only in cases arising under its by-laws; controversies under the general law of the land were adjudicated in the public courts .... In our country it has been laid down that the legislature is the visitor of all corporations . . . .” The chancellor in that case said this had little meaning for him because he had found no case “of the exercise of visitorial power over a civil corporation.”

Defendants do not claim the Chancellor was without jurisdiction, and could not successfully make such a claim in the face of Babcock v. Farwell, 245 Ill. 14, Voorhees v. Mason, 245 Ill. 256, and Williamson v. Missouri-Kansas Pipe Line Co., 56 F.2d (7th Cir.) 503. The question is not whether the Chancellor had jurisdiction, but whether he exercised his jurisdiction properly. (Williamson v. Missouri-Kansas Pipe Line Co., 56 F.2d 503, 507.) In Sprague v. Universal Voting Machine Co., 134 Ill. App. 379, 383, cited by defendants, the court did not “determine whether or not an exception to the general rule exists where ... all the property of the corporation is within the state, its officers reside here, and the act sought to be restrained is claimed to be ultra vires.”

Under the facts in this case, where all the actions complained of took place in Illinois, all the corporate assets are located in Illinois, all corporate business is done in Illinois, and all officers and directors reside in Illinois, it would be unjust to remand plaintiff to the courts of Delaware. We think justice, expediency, and the policy of Illinois compel the conclusion that the Chancellor did not abuse his discretion through undue interference in the affairs of the Delaware corporations. (Voorhees v. Mason, 245 Ill. 256.)

We need not consider defendants’ contention that Rubin, who made the affidavit for the complaint, has “unclean hands” which preclude plaintiff’s suit. Under a contract of purchase, he is the “equitable and substantial” owner of the Sherman stock held by plaintiff (Stevenson v. Loehr, 57 Ill. 509), and did, as a Sherman director, vote for execution of an option to buy that stock and also voted for a $1,100,000 loan to buy Sherman stock held by him and the Morrison Hotel, of which he is president. If the unclean hands doctrine is applicable, it is limited to these transactions (Carpenters’ Union v. Citizens Committee, 333 Ill. 225, 250), and since we shall hereinafter find erroneous, on other grounds, the order restraining the purchase of stock, we do not reach the question of unclean hands. We do not decide whether Rubin’s participation in the two transactions precludes alleging those transactions as part of a pattern of Sherman stock purchases of which plaintiff complains.

There is no merit to the contention that the decree in the Circuit Court in Ross v. Hotel Sherman, Inc., Hart et al., No. 54 C 6151, is res judicata with respect to the instant suit for an injunction to restrain the voting by Ambassador of Sherman stock. The answer discloses that the Ross suit was “dismissed.” Nothing appears to disclose the substance of the motion to dismiss and we are not at liberty to make the necessary assumptions in favor of the motion or decree. We see no merit either in the similar contention made with respect to the case of Rubin and Morrison Hotel, Inc. v. Sherman et al., No. 56 C 5033, in the Circuit Court of Cook County. That suit made allegations of the interlocking officers and directors as in the instant suit, the domination of Ambassador by the defendants, and the plaintiffs’ fears that unless restrained, defendants, at the April, 1956, meeting, would vote the Sherman stock held by Ambassador in violation of Delaware law and with harm to the minority stockholders. Plaintiffs moved for a temporary injunction and the relief was denied. The instant complaint contains several allegations which were not made in the Rubin-Morrison Hotel suit. We hold that neither of the previous actions is res judicata of any issue in the present proceeding.

The pleadings, upon which the chancellor acted, raised issues of fact and law and no evidence was heard. The order was justified, if at all, therefore, upon the basis of preserving the status quo. (Gillam v. 661 Sheridan Apartments, Inc., 1 Ill.App.2d no

The parties agree that an essential element in applying this extraordinary remedy in this instance is the probability of plaintiff’s success in tbe main case. The prayer for relief at the final hearing is that the injunction sought, pendente lite, “be made permanent”; that plaintiff be permitted to inspect the Sherman books and minutes; and for “such other and further relief as may be appropriate.”

Defendants contend that the chancellor in enjoining Ambassador from voting its Sherman stock apparently misconceived that stock to be treasury stock; that there is no showing of harm to plaintiff should Ambassador vote that stock; that even if Ambassador did not vote the stock the trustees of the voting trust would still vote a majority of the stock and thus control the meetings; and that if the stock cannot be voted, a 20 per cent minority interest in Ambassador would be prevented from effective participation by Ambassador in Sherman.

The chancellor could reasonably have decided it was probable that under proper evidence Ambassador would eventually be restrained permanently from voting its Sherman stock. The parties agree that the substantive law of Delaware applies and Section 160 of the Delaware Corporation Law prevents a corporation from voting, directly or indirectly, its own capital stock. If the Sherman stock held by Ambassador is “indirectly” treasury stock, the voting of that stock is illegal and ought to be restrained in any event. The Chancery Court of Delaware in Italo Petroleum Corp. v. Producers’ Oil Corp., 20 Del. Ch. 283, 174 Atl. 276, adopted the rule that where a subsidiary owns stock in the parent, and the parent corporation completely dominates the subsidiary, the latter should not be allowed to vote the stock of the parent. The court added that if there are cases where the subsidiary should be allowed to vote its parent’s stock, “those cases should rest on an exceptional state of facts.” The decision of the Delaware Chancery Court in the Italo case was not appealed and, although decided in 1934, so far as we can determine it is the only decision in that state on the precise question involved here. The Chancery Court of Delaware is at least equal to the Superior Court of that state, and the federal courts have held themselves bound by the decisions of the Superior Court where there is no showing that the decision was manifestly in error. (Stinson v. Edgemoor Iron Works, 55 F. Supp. (D. Del.) 861.) Defendants have given us no convincing reason why the Italo case is not the law of Delaware, and in the absence of such a showing, we follow the example of the federal courts and accept the Chancery Court’s holding as a precedent for the instant decision. On this point, we are unable to anticipate from the pleadings that defendants will be able to show that this is an exceptional case to which the Italo rule is inapplicable, and we think the chancellor below could reasonably determine that the plaintiff would ultimately be successful. We are therefore impelled by the reasoning and ruling in the Italo case to conclude that the chancellor did not abuse his discretion in restraining, pendente lite, Ambassador from voting its Sherman stock.

This would not necessarily be true of “any of its present or future partially . . . owned” subsidiaries, or of “any companies, partnerships, or other entities with which it is or may become associated.” The extent of its ownership and character of its association would have an important bearing on this question. The preservation of the status quo was justified only in so far as it related to the legality of Ambassador voting Sherman stock.

It could not be seriously contended that the defendants should be permanently enjoined from purchasing or exchanging any Sherman stock; or from declaring or paying dividends unless the current assets exceed current liabilities by the aggregate amount of the dividends to be declared or paid. Delaware law does not prohibit the payment of dividends when the current liabilities of the corporation exceed the current assets (Section 170 (a), General Corporation Laws of Delaware), and we cannot anticipate the hearing on the merits and say it is likely the chancellor would decide that any future payment would be a fraud upon the minority interests or an impairment of capital such as to warrant the substituting of the chancellor’s judgment for that of the directors of the corporation. (Hofeller v. General Candy Corp., 275 Ill. App. 89, 96.) There is no allegation of any threatened future dividend action, no claim of fraud, oppression or insolvency, and no question that the payment of dividends should be left to the honest decision of the directors of the corporation.

The declaration and payment of dividends and the purchasing, acquiring or exchanging of Sherman stock are not related to the voting by Ambassador of Sherman stock. They would be related only if the voting by Ambassador of Sherman stock was required for carrying out those corporate activities. It is unfair to implicitly restrain the power of the majority stock held in the voting trust which is unaffected by the question of the legality of Ambassador voting Sherman stock. For this reason, we think the Chancellor abused his discretion in restraining the payment of dividends and that part of the order is invalid.

What we have said about the payment of dividends applies with equal force to the purchase of outstanding-stock of Sherman. In the absence of evidence, there is no reason for the Chancellor to substitute his judgment for that of the directors of Sherman with respect to stock purchases or exchanges, and that part of the order is also invalid. The same is true of that part of the order restraining mergers.

We conclude, therefore, that the in junctional order is valid so far as it restrains, pendente lite, Ambassador from voting its Sherman stock and to that extent the order is affirmed. In all other respects, the order is erroneous and in those respects it is reversed.

Affirmed in part.

Reversed in part.

FEINBERG-, P. J., concurs.

LEWE, J., took no part.


author: JUDGE KILEY

text:
    Mary Waggener Jones, Appellee, v. Henry Anderson Jones, Appellant.
    Gen. No. 46,777.
    First District, Third Division.
    March 20, 1957.
    Released for publication April 24, 1957.

      Moore, Ming & Leighton, of Chicago, for appellant; George N. Leighton, of Chicago, of counsel.
    Westbrooks, Holman & E. F. Johnson, of Chicago, for appellee; Claude W. B. Holman, Evelyn F. Johnson, and Russell R. DeBow, of Chicago, of counsel.
   JUDGE KILEY

delivered the opinion of the court.

This is a divorce proceeding with decree for the plaintiff on grounds of drunkenness and cruelty. The notice of appeal states that defendant appeals from an order of a chancellor, who had heard testimony, transferring the cause to the assignment judge for reassignment, and from the decree subsequently entered by another chancellor.

The parties were married in April, 1927, and had three children, none of whom were minors at the time of the trial. Suit was begun June 12, 1954, came on for trial January 14, 1955, and a hearing was had. On March 23,1955, the chancellor ordered the cause transferred to the assignment judge. May 2, 1955, after reassignment, the case was heard by a different chancellor, and subsequently the decree was entered granting the divorce and referring to a master the question of property rights.

The issues on appeal are whether the defendant was prejudiced hy rulings on the use of leading and suggestive questions, and whether the decree is supported hy the evidence. The order of transfer was not appealable, hut the appeal from the decree enables defendant to complain that the chancellor abused his discretion in transferring the cause for reassignment.

The transfer order was upon motion of plaintiff. Defendant answered the motion and in support of the answer attached a report of the proceedings of January 14, 1955. The report contained testimony of a property agreement of the parties to he reduced to writing and submitted with a form of decree for approval of the chancellor. It also contained testimony by plaintiff and two children of the marriage to acts of cruelty by defendant. There was virtually no cross-examination and no counter testimony was offered. The agreement and form of decree were not submitted for the chancellor’s approval and on March 23 he entered the order setting aside “all proceedings” and transferring the cause for placement on the contested trial calendar.

Defendant contends the transfer order was “irregular,” “basically unfair” and deprived defendant of the benefit of an agreement “solemnly entered into in open court and testified to under oath.” There is no merit in the contention.

The cases cited hy defendant are not authority for reversing the instant divorce decree and directing the chancellor to compel plaintiff to comply with the agreement testified to January 14th, 1955. The Illinois cases cited merely applied the rule that courts favor settlement of litigation. None of them was divorce. The New York cases cited are not divorce cases, though one involved separation. In each the agreement was found by the court to be fair, and the rules announced implied that unfair agreements and agreements not doing substantial justice should not be enforced. (Achtel v. Lieberman, 141 N.Y.S.2d 750; In re Gardiner’s Estate, 204 Misc. 884, 126 N.Y.S.2d 121.) The chancellor in the instant divorce proceeding was charged with protecting the parties in the state’s interest and he was clearly bound not to enforce a decree which for good cause ought not to be enforced. Also, he was in complete control of the proceedings at the time of the reassignment with power to alter, change or disregard. (Moore v. Shook, 276 Ill. 47, 52.) Finally, we presume, in the absence of a transcript of what transpired when the transfer order was entered and of a contrary showing, that the chancellor had good reason for doing, what he did, and we hold there was no abuse of discretion.

After the transfer of the cause on May 2, 1955, defendant filed an amended answer to the complaint raising issues upon plaintiff’s charges and alleging condonation, which plaintiff denied. The decree found plaintiff had been a good wife and that defendant was guilty of habitual drunkenness and of extreme and repeated cruelty.

Defendant argues that the evidence does not establish extreme and repeated cruelty. The chancellor asked whether there were any defense witnesses. None were offered. The decree finds defendant guilty of acts of cruelty July 10, 1948, April 17, 1954, and May 28, 1954. Even if the first act was condoned, the subsequent acts would revive the first, and in any event the latter two, if sufficiently serious, would suffice. We think the record justifies the findings and decree on grounds of cruelty.

We think the evidence is insufficient to support the charges of drunkenness, but the findings and evidence with respect to cruelty justify the decree. We need not consider contentions of error in rulings on objections to leading and suggestive questions since these questions referred to tbe charge of drunkenness.

Affirmed.

FEINBEB.G-, P. J., concurs.

LEWE, J., took no part.


author: JUDGE BURKE

text:
    Norval Landrey, Appellant-Counterdefendant, v. Patricia Landrey, Appellee-Counterplaintiff.
    Gen. No. 47,059.
    First District, First Division.
    April 1, 1957.
    Released for publication April 24, 1957.

      "William J. Sheridan, Jr., of Chicago, for appellant and counter-defendant.
    Carl B. Sussman and Leonard J. Braver, of Chicago, for appellee.
   JUDGE BURKE

delivered the opinion of the court.

Norval Landrey and Patricia Landrey were married at Chicago on July 3,1953. They cohabited as husband and wife until about August 1,1954. In January, 1955, subsequent to their separation, a child, christened Patrick John, was born. The child was taken by the parents to the home of Mrs. Landrey’s mother. On December 12,1955, the husband filed a complaint charging that about August 1, 1954, his wife wilfully deserted him without any reasonable cause, and that the desertion continued for more than one year. He prayed for a decree dissolving the bonds of matrimony and for the custody of Patrick. In an answer the defendant denied that she deserted him. She also filed a counterclaim charging that about August 1, 1954, her husband wilfully deserted her without any reasonable cause and that since then she “has been living separate and apart” from him without any fault on her part. She prayed for custody of their child and for maintenance, support and attorney’s fees for herself and the child. Plaintiff denied the allegations of the counterclaim.

The case was heard on June 5, 1956. On June 15, 1956, pursuant to leave of court, plaintiff filed an amended complaint to conform with the proofs. The amended complaint charges that from about February, 1955, to “the fall of the year 1955” the defendant was guilty of adultery in that she lived and cohabited with Robert Mayer, assumed his name and lived openly and notoriously with him as husband and wife; that during the course of the cohabitation with Mayer she became pregnant by him and thereafter gave birth to a female child who is not the child of the plaintiff. On June 15, 1956, the court entered a decree finding the defendant guilty of adultery in that from February 19, 1955, to the fall of the year 1955, she lived and cohabited with Robert Mayer, assumed his name, lived openly and notoriously with him as husband and wife, became pregnant by him and gave birth to a female child who is not the child of the plaintiff. The decree found that plaintiff wilfully deserted the defendant on or about August 1, 1954, without reasonable cause. The court found that by virtue of her conduct she is not entitled to alimony and that she is a fit and proper person to have the care, custody and education of their child. The decree dissolved the bonds of matrimony, awarded the care, custody, control and education of Patrick to the defendant, directed plaintiff to pay her $22.50 per week for the support and maintenance of the child, provided for the right of visitation by the father and ordered plaintiff to pay $375 to the attorney for the defendant for his fees. The decree denied alimony to the defendant. Plaintiff appealed.

Section 18 of the Divorce Act (Par. 19, Ch. 40, Ill. Rev. Stat. 1955) provides that when a divorce shall be decreed the court may make such order touching the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just. In Wade v. Wade, 345 Ill. App. 170, the court said (183) :

“The chancellor is given broad discretion in awarding custody of children in divorce matters. He has an opportunity to see the witnesses, test their credibility or want of credibility, and courts of review should not reverse Ms findings for these reasons unless they are clearly against the manifest weight of the evidence.”

See also Cannon v. Cannon, 351 Ill. App. 135; Nye v. Nye, 411 Ill. 408; and Miezio v. Miezio, 6 Ill.2d 469.

The plaintiff had been regularly employed since the marriage and provided a home for his wife. He also purchased and paid for their furniture. After their marriage the parties moved to South Bend, Indiana, where they lived for one year. They then moved to Chicago, where they lived for a time with plaintiff’s mother and with defendant’s aunt. Then they moved to an apartment at 2908 South Parnell Avenue, Chicago. He testified that he always treated his wife well, that he took care of the bills, paid the rent and sometimes the defendant did the cooking and sometimes he cooked his own meals. He stated that she was in the habit of going out and would not “always be home” when he returned from work. He said that his wife was in the habit of going out to drink at taverns. He testified further that in his absence from their apartment on Parnell Avenue his wife moved out, taking all the furniture. He denied that he left her and stated that she “never came back to live” with him. Katherine Blair, the landlady, testified that on August 1, 1954, she saw the defendant moving the furniture out of her apartment to a truck in the alley. The witness did not know how much of the furniture defendant moved.

"When called to testify under Section 60 of the Civil Practice Act, the defendant denied that she knew Robert Mayer or that she had a child by him. When she testified in her own behalf she said she knew Mayer and that she had a child by him who at the time of the trial was five months old. The child is taken care of by Mayer’s mother. She stated that plaintiff left her twice during their marriage, the first time when they were living at her aunt’s house after returning to Chicago from South Bend, and the second time in August, 1954. She said that up to the time she separated from him she was a good wife to him, that he did not give her any money and that he paid all the bills. She stated that Patrick was living with her and her mother.

Plaintiff’s mother testified that she brought nine children into the world, she being one of twenty-two herself, and that she has adequate and suitable accommodations for Patrick and would do all possible for him. Plaintiff’s sister testified that she lives at home, that her mother is a good housekeeper and that she knows how to take care of children. The defendant testified that she has lived at her mother’s home since her separation from the plaintiff and that Patrick has a fine home there. The maternal grandmother of Patrick loves him and takes good care of him. She has been divorced three times. The defendant’s mother, who quit her job after Patrick was discharged from the hospital in order to remain at home and take care of him, testified to the care given the child, and stated that her daughter is a fit person to have the custody of the child. The defendant’s father, who intends to remarry defendant’s mother, testified similarly. A former sister-in-law of defendant’s mother stated that the child was in good hands. The child is in good health. Plaintiff and plaintiff’s mother testified that they found the baby well and that they have no complaint as to his care. At the time of the trial the defendant was living at her mother’s house. The statement during oral argument that Mayer and the defendant were married on July 7, 1956 and that they are presently residing with defendant’s mother pending the completion of an upstairs apartment in her mother’s house, was not disputed. Mrs. Jack E. Eohats, a former sister-in-law of defendant’s mother, testified that the defendant treated her husband “very well”; that plaintiff treated defendant “very coldly”; that she visits the mother “very often and she is a fit person to take care of the child together with her daughter”; and that the defendant “has a physical as well as a mental illness.” Witnesses for the defendant testified that after the birth of Patrick the plaintiff suggested that the child be put out for adoption.

The defendant lived in an open state of adultery with Robert Mayer and gave birth to a child born out of wedlock. The second child was born ten months after the birth of Patrick. The defendant took the second child to the home of Robert Mayer. The mother of defendant believes that both children could grow up happily together. Prom the time of his birth to the present Patrick has been cared for by defendant’s mother. The plaintiff has a good record as a soldier and as a citizen. We are convinced that the defendant deserted him without reasonable cause. We think that the finding that the defendant is a fit and proper person to have the care, custody and education of Patrick and that it is for the best interest and welfare of the child that he remain with her, is clearly against the manifest weight of the evidence. The evidence establishes that plaintiff is a fit and proper person to have the care, custody and - education of Patrick.

Plaintiff asserts that the allowance of attorney’s fees to the defendant is an abuse of discretion. The allowance of attorney’s fees in a divorce proceeding rests in the sound discretion of the chancellor, and unless such discretion is clearly abused its exercise will not be interfered with. Ylonen v. Ylonen, 2 Ill.2d 111, 121. On a consideration of the record we cannot say that the chancellor abused his discretion in awarding attorney’s fees.

Because of these views the parts of the decree finding that plaintiff deserted the defendant without any reasonable cause and awarding the custody of the son of the parties, Patrick John Landrey, to the defendant and requiring plaintiff to pay for the support and maintenance of Patrick, are reversed, and that part of the decree awarding attorney’s fees is affirmed, and the cause is remanded with directions to modify the decree by awarding custody of Patrick John Landrey to the plaintiff with appropriate right of visitation to defendant.

Decree reversed in part and affirmed in part and cause remanded with directions.

NIEMEYER, P. J. and FRIEND, J., concur.