author: Mr. Justice Friend

text:
    Earl W. Pliley, Plaintiff, v. Leroy H. Phifer, Jr. et al., and Pullman Trust and Savings Bank, Defendants, and Chicago National Bank, Appellant.
    Gen. No. 46,060.

      Opinion filed January 11, 1954.
    Rehearing denied March 8, 1954.
    Released for publication March 8, 1954.
    Browning & Parkin, of Chicago, for appellant; Richard Rex Parkin, of Chicago, of counsel.
    Harry H. Krinsky, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

On February 26, 1951 the plaintiff, Earl W. Pliley, recovered a judgment in the circuit court of Cook county against the principal defendant, Leroy H. Phifer, Jr., in the sum of $4,708 and costs, upon notes executed by him May 25, 1950. Execution issued and was returned unsatisfied by the sheriff on March 16, 1951. On May 29, 1951 plaintiff filed his complaint in chancery against Phifer and others, alleging that one or all of the additional defendants, Levine, Vander Wagen, Vander Wagen, Jr., and Berscheid held monies, property or choses in action in which Phifer had an interest but which were held so as to prevent plaintiff from reaching such assets except by these proceedings. The Chicago National Bank was joined as an additional party. The- complaint sought a discovery and asked that any property in which Phifer had an interest be decreed to apply on plaintiff’s judgment.

The individual defendants answered the complaint denying that they held any assets in which Phifer had an interest, but admitting that they held the sum of $2,364.86 which was assigned to the Chicago National Bank by an agreement dated December 6,1950 between them and Phifer. The bank answered that on December 19, 1949 it loaned Phifer the sum of $2,500 which is past due and unpaid, and took as security therefor fifty shares of the common capital stock of Floral Adaptor Corporation which it still holds; that it is the beneficiary of the agreement made December 6, 1950 between Phifer on the one hand, and Levine, Vander Wagen, Vander Wagen, Jr., and Berscheid on the other; that the funds thus held belong to the bank; and that Phifer has no interest therein until the bank’s loan is paid in full. There is evidence that as additional security for the amount due the bank from Phifer it obtained from Walter C. Erickson and Lawrence A. J. Kelly firm offers by letter to buy the stock of the Adaptor Corporation at par in the event said stock came into possession of the bank through default or for any other reason.

There is also evidence in the record to the effect that the bank endeavored to realize on the written promises of Erickson and Kelly and made demand on them to purchase the stock pledged to them as security, but no legal action was taken on their continued refusal to abide by their agreement; and there is evidence also that the stock is now worthless.

The complaint and answers were referred to Isidore Brown, master in chancery. After setting forth the salient facts hereinabove recited, he found that the bank renewed Phifer’s note five times, the last time being on September 18, 1950; that on that date, as at each other renewal, defendant Phifer signed a new note in place of the former one; that until December 6,1950 Phifer had been a member of a partnership comprising, in addition to him, Levine, Vander Wagen (for whom Vander Wagen, Jr., was subsequently substituted) and Berscheid; that on December 6, 1950 an agreement was drawn up in connection with the withdrawal of Phifer from the partnership reciting in substance that Phifer was obligated to the bank on his principal note of $2,500 dated September 18, 1950 and secured by fifty shares of the capital stock of Floral Adaptor Company; that he agreed that his share of the earnings in the partnership, as determined by a final accounting, should be applied in payment of the obligations of this indebtedness; that he expressly authorized, directed and empowered Levine, Vander Wagen and Berscheid to hold and retain his earnings for the purpose of applying them in reduction or payment of his obligation to the bank; and that “any excess shall thereupon be paid by the remaining partners to Phi-fer.” This agreement was never executed by the parties, but a copy of the unexecuted copy was furnished the bank in January 1951.

December 6,1950 Phifer withdrew from the partnership, and simultaneously with his withdrawal another agreement, not identical with but substantially the same as the unexecuted agreement, was signed by the parties. As stated, the bank had a copy of the unex-ecuted agreement, but never received a copy of the later agreement actually signed; nor did it know, until such fact was disclosed during the hearings, that the signed agreement replaced the unexecuted one in its possession.

Pursuant to the agreement an accounting was had showing that on January 6, 1951 Phifer’s interest in the partnership amounted to $5,916.36, of which $3,051.59 was paid to the bank pursuant to the agreement and in satisfaction of another note mentioned, and that $500 was paid to Phifer, leaving in the hands of the partnership the sum of $2,364.86 which is now held by Levine (the partnership of Levine, Yander Wagen and Berscheid having been dissolved) in a special account in his name and which he will pay to the party determined by the decree of court to be entitled thereto.

The plaintiff’s complaint was filed May 29, 1951, the bank filed its answer October 8, 1951, the audit which showed the amount to which Phifer was entitled from his partners, as of January 6, 1951, was dated July 5, 1951. The hearing before the master commenced July 21,1952, and the decree herein was entered on November 25, 1952.

Upon these facts the bank claims that it is a third-party beneficiary under the unexecuted agreement and is therefore entitled to the $2,364.86 now held by Levine. The master found that the bank is entitled to these funds, and recommended that a decree be entered requiring Levine to turn them over to the bank. However, the chancellor sustained exceptions to the master’s report and entered a decree adverse to the bank’s claim, from which it has taken an appeal.

As Phifer’s creditor the bank sought by all means, short of suit, to enforce payment of the indebtedness, and as a result thereof Phifer voluntarily, on December 6, 1950, entered into the agreement with his partners whereby he withdrew from the partnership and directed the remaining partners to apply his interest toward payment of the indebtedness. When the agreement was made the partnership had uncompleted contracts, and the amount of Phifer’s profit could not be ascertained until they were completed, accounts collected and a partnership accounting had. Accordingly Phifer did all he could to guarantee payment by executing the agreement; and the bank, upon receiving notification, “relaxed” its efforts to collect and awaited a final accounting and payment. Of course if Phifer had been able to realize his profits from the partnership when the agreement was signed and pay his indebtedness to the bank there could be no question of his right to do so. The instant proceeding arose because Phifer had another creditor, the plaintiff herein, who took judgment against him on February 26, 1951, over two months after the agreement was executed. There is no claim or evidence of any fraudulent conveyance, and the mere fact that Phifer conveyed his interest in the partnership for the sole interest of the bank at the time when he had another creditor did not render the conveyance in anywise fraudulent. It has been held in Illinois that even an insolvent debtor or one in failing circumstances may prefer a creditor, provided the debt preferred is actual, the property transferred does not greatly exceed the amount of the claim, and the transaction is not a mere device to secure an advantage to the debtor or hinder, delay or defraud other creditors. Bartel v. Zimmerman, 293 Ill. 154; Third National Bank v. Norris, 331 Ill. 230.

Questions involved in the decision of this case are whether the agreement of December 6, 1950 was revocable by Phifer, and whether it divested him of all interest in the partnership until the bank’s obligation was paid in full. Without reciting the agreement at length we call attention to the provision therein under which Phifer specifically divested himself of any interest in the partnership assets until the bank was paid in full, thereby agreeing in effect that he would not revoke the contract. This undertaking, we think, amounted to a conveyance or assignment of Phifer’s partnership interest to his former partners for the benefit of the bank. The master who heard all the evidence concluded that the agreement “made the Chicago National Bank a third party creditor beneficiary and in effect assigned the moneys owing Leroy H. Phifer, Jr. to the Chicago National Bank.” Under similar circumstances the Supreme Court held, in the early cases of Young v. Jones, 180 Ill. 216, and Smith v. Bates Machine Co., 182 Ill. 166, as well as in cases cited in these decisions, that a direction of this kind amounted in equity to an assignment of so much of his earnings as would be necessary to make the payments. In the Young case the court quoted with approval from 2 Am. & Eng. Ency. of Law, 2d ed., pp. 1059, 1060, to the effect that

“. . . fit is a general rule that an order payable out of a particular fund operates as an equitable assignment of the fund, not only as between the drawer and the payee, but as regards the drawee also, notwithstanding the order may not be accepted by the latter party.’ ” «

Plaintiff proceeds on the theory that by reason of the judgment recovered by him against Phifer and the institution of the present creditor’s bill, he established a lien upon the fund superior to any claim the bank had, and it is argued that although the bank is named in the agreement as a third-party beneficiary, nevertheless its being so named was only incidental to the purpose and terms of the agreement and not a material part thereof; that being so incidentally named gave the bank only the right to sue upon it in its own name; and that without some affirmative action on the part of the bank, either by accepting the provisions of the agreement or by instituting some action thereon, before the rights of the plaintiff accrued, the bank lost its right to priority over plaintiff’s claim. Of course if the agreement was a binding bilateral contract for the

benefit of the bank it was irrevocable by its terms because it had been partly performed by the actual withdrawal of Phifer from the partnership. In that situation the acceptance by the bank was not necessary. In Bay v. Williams, 112 Ill. 91, the court recognized this doctrine by stating that “it has never been held by this court that the express assent of the beneficiary is necessary to his right to avail of its benefits,” and in Midland Oil Co. v. Packers Motor Transport, 277 Ill. App. 451, the rule was again stated. We gather from the decisions, other than Commercial National Bank v. Kirkwood, 172 Ill. 563, on which plaintiff bases his claim, that it is only where the agreement is a mere agency relationship and not a contract that acceptance by the beneficiary is necessary. It should be noted, however, that there is evidence of the acceptance of the agreement by the bank. Albert Drozda, an officer of the bank, testified that upon being advised that the agreement was to be executed, the bank “relaxed” its attitude toward Phifer and “didn’t take him into court” because of the funds that were to be assigned to the bank, and that during the month of January 1951 and subsequently he talked to Phifer and Berscheid on numerous occasions about the agreement. Furthermore, the bank was paid the $3,000 due under the terms of the agreement by the Floral Adaptor Company and accepted this payment under the terms.

Plaintiff’s contention overlooks the legal relationship held in Illinois to exist between the third-party beneficiary of a contract and his promisor. Plaintiff concedes that the bank had a right to sue the remaining partners. If that be true, the right arose because they owed a legal duty to pay the bank, resulting from the contract between Phifer and his former associates; consequently after the agreement was made and Phifer withdrew from the partnership his former associates were not obliged to pay him, and the only right which remained in bim was to insist that they comply with their duty to pay the bank pursuant to the terms of the agreement. The only right that plaintiff has under his creditor’s bill is to enforce the rights which Phifer may have had to the fund in question. The courts in this State have consistently held that the third-party beneficiary obtains a vested right as against the promisor, and this right, once given, deprives the promisor of any interest or right in the subject matter of the promise, including the right to alter, rescind or revoke it; nothing remains except that the promisor carry out his promise to the third-party beneficiary. Prather v. Vineyard, 9 Ill. (4 Gilm.) 40; Bay v. Williams, 112 Ill. 91; Hartman v. Pistorius, 248 Ill. 568; Conerty v. Richtsteig, 379 Ill. 360; Joslyn v. Joslyn, 386 Ill. 387; and various other decisions cited in the bank’s brief.

As against these decisions plaintiff relies solely on Commercial National Bank v. Kirkwood, 172 Ill. 563, to sustain his position. In essence the transaction in that case did not constitute a third-party beneficiary contract, being a mere relationship of principal and agent which could be revoked by the principal at any time before the creditor accepted it. See Corbin on Contracts, 1950 ed., West Publishing Co., vol. 4, at p. 246, for a discussion of this decision. A complete statement of the facts involved in that case is contained in a later appeal reported in 184 Ill. 139, showing a significant difference between that case and the instant proceeding. The agreement of Orr to pay the creditors was a conditional promise to be complied with only if title should be found to be perfect; and being conditional, it did not then vest a right in the creditors and was subject to revocation by Rush until the right vested in the creditors, either by their acceptance conveyed to Orr or by the perfecting of the title to the land. We think that the Kirkwood case is not susceptible of the construction sought to be placed upon it by plaintiff; and it is significant that it has never been cited by Illinois courts for the contention made with respect thereto by plaintiff. On the other hand, Bay v. Williams has been cited with approval in many cases reviewed in both the Supreme and Appellate Courts since the Kirkwood decision.

The problem here presented was not a question of determining which creditor obtained a lien by court decision but of recognizing the exclusive right of the bank to the fund under the agreement of December 6, 1950, before plaintiff had instituted any proceedings whatsoever.

Plaintiff raises for the first time the procedural point that the bank is not entitled to a decree awarding it the fund in controversy because it did not file a cross-complaint claiming the fund. The master recommended that a decree be entered directing Nathan A. Levine to turn over the fund to the bank. No objection was filed by plaintiff to this recommendation on the ground that the bank was not entitled to this relief because it had not filed a cross-complaint. When the present proceeding was instituted the fund was in the hands of Nathan A. Levine, and his answer alleged that it had been assigned to the bank by agreement of December 6, 1950. Subsequently the bank was made a party defendant and answered that it was entitled to the fund as beneficiary of the agreement. Since the person holding the fund admitted that it had been assigned to the bank no cross-complaint was necessary. At the hearing before the master Levine testified that the fund was being held subject to the decree of the court. Later when the decree was entered finding that plaintiff was entitled to the fund and sustaining plaintiff’s objection to the master’s report the chancellor directed Levine et al. to deposit the fund with the clerk of the court, to be held until further order of the court. The money is now held by the clerk. Under the situation thus presented the subject matter of the controversy has come into possession of the court without objection by any of the parties. Under the fundamental rule that a court of equity, having taken jurisdiction, will retain it for all purposes and do complete justice between the parties, it is incumbent upon the chancellor to distribute the fund to someone without further proceedings. Accordingly we are of opinion that the decree should be reversed and the cause remanded with directions to award the fund now in the hands of the court to the bank, and it is so ordered.

Decree reversed and cause remanded with directions.

Niemeyer, P. J. and Burke, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Reynolds

license: Public Domain

text:
    In the Matter of Last Will and Testament of Mary Gleeson, Deceased, Con Colbrook, Petitioner-Appellee, v. Helen Black, Bernadine Gleeson, Bernadine Gleeson as Conservator for Thomas Gleeson, an Incompetent, and Thomas Black, a Minor, by Helen Black, his Mother and Next Friend, Respondents-Appellants.
    Gen. No. 9,933.

      Opinion filed February 25, 1954.
    Released for publication March 15, 1954.
    H. Ogden Brainard, of Charleston, and Provine & Miley, of Taylorville, for appellants.
    Hershey & Bliss, and Bill J. Slater, all of Taylor-ville, for appellee.
   Mr. Presiding Justice Reynolds

delivered the opinion of the court.

Appellee, Con Colbrook, filed a petition to establish a testamentary trust created under the will of Mary G-leeson, deceased, and for confirmation of the appointment of appellee by the will as trustee thereunder. The appellants opposed the petition and filed their answer and counterclaim, alleging that there existed a fiduciary relationship between the deceased, Mary Gleeson, and the petitioner; that the petitioner had breached that fiduciary relationship by profiting personally from such trust; that petitioner was a contingent remainder-man with interests adverse to the appellants interest; that an irreconcilable hostility existed between the petitioner and the appellants, and asked that the petition be denied; that the court refuse to confirm the appointment of Con Colbrook as trustee and that he be removed as trustee and an impartial, disinterested and competent corporate trustee be appointed. The trial court took jurisdiction of the trust, confirmed the testamentary appointment of Con Colbrook as trustee, with the powers and duties as enumerated in the will of Mary Gleeson, deceased, set a bond of $15,000 for said trustee and dismissed the counterclaim of the appellants. From that order the appellants have appealed to this court.

The will of Mary Gleeson, after devising the household furniture and fixtures to her daughter, Bernadine Gleeson, devised all the rest of the estate unto Con Colbrook in trust. By the terms of the will, Con Col-brook as such trustee was to take, hold, manage, operate and control the same, with full power to lease, re-lease, invest, re-invest, mortgage and pledge the same. He was authorized to collect and receive all rentals and to pay all taxes, insurance, repairs, court costs and reasonable attorney and trustee fees.

The decedent died owning the Southeast Quarter of Section Thirty-one (31), Township Fifteen (15) North, Range One (1) West of the Third Principal Meridian in Christian county, Illinois, identified in the pleadings as Tract No. 1; she also owned an undivided one-half interest in and to the North Half of the Northwest Quarter of Section Eighteen (18), Township Fourteen (14), North, Range One (1) East of the Third Principal Meridian in Macon county, Illinois, identified in the pleadings as Tract No. 2. The other undivided one-half interest in Tract No. 2 was owned by Helen Black, Bernadine Grleeson and Thomas Grleeson. In other words, the decedent owned the 160-acre Tract No. 1, outright. She owned an undivided one-half interest in Tract No. 2, an 80-acre tract. The trust covered the 200 acres owned by Mary Grleeson, namely, Tract No. 1 and the undivided one-half of Tract No. 2.

By the terms of the will creating the trust the net income from one 80-acre tract was to be used to provide for the care, education and support of a son, Thomas Grleeson; the net income from the rest of the trust estate was to be paid, one-third to a daughter, Bernadine Grleeson; one-third to a daughter, Helen Black; and one-third for the care, maintenance and support of the son, Thomas Grleeson. The will also provided that upon the death of the said three beneficiaries, that the share of such beneficiaries should go to their children, and if no children, to the survivors of said beneficiaries. Upon the death of all the three beneficiaries, then it was provided that the trustee should, within one year, liquidate and convert said trust into cash and distribute to the children of the named beneficiaries, and if there were no children of the named beneficiaries, to the persons who would be the heirs at law of the decedent, Mary Grleeson.

Bernadine Grleeson was unmarried. Thomas Grleeson was an incompetent and had been so declared and committed to a mental hospital. Helen Black was the other daughter. The minor respondent, Thomas Black, was a son of Helen Black. Con Colbrook was a first cousin of the decedent, Mary Gleeson, and was a contingent remainderman.

The appeal raises these questions: 1. That the petitioner acted in a fiduciary capacity and had abused such fiduciary relationship for his own profit. 2. That a contingent remainderman should not be appointed as a trustee. 3. That where a trustee has broad discretionary powers and there is such hostility between the trustee and the beneficiaries as to prevent co-operation and to interfere with the operation of the trust, the trustee should be removed.

The evidence discloses that for several years after Mr. Gleeson’s death, Mr. Colbrook was the general supervisor and operator of the farms for Mrs. Gleeson; that Mrs. Gleeson for most of the time was active and consulted with Mr. Colbrook and knew how the farming operations were progressing. After she had a stroke, on the recommendation of Mr. Colbrook, she gave to her daughter, Bernadine Gleeson, a power of attorney. The evidence shows clearly that at the time Mr. Colbrook took over these farms, they were run down and that he had managed the farms in excellent manner. The witnesses, who were neighboring farmers, all testified that he had performed a good job of farming; that he had built the land up and that the farms were much more valuable at the time of Mrs. Gleeson’s death than they were when he first went there. The evidence shows that the two heirs, Mrs. Black and Miss Bernadine Gleeson became dissatisfied with Mr. Col-brook’s management when he was unable to furnish them specific information that they desired. It must be conceded that Mr. Colbrook was not a good bookkeeper and possibly he could not furnish the specific information these two heirs desired. However, there is no evidence that Mr. Colbrook at any time acted dishonestly or that he failed to do a good job. Apparently, the farm income was about $27.50 per acre over the years he farmed the land and at the same time he had built up the farm insofar as improvements and productivity were concerned. The heirs apparently objected to the building of a barn, yet evidence showed the barn was built several years before Mrs. Gleeson’s death so that she must have known of the expenditure of money for this improvement and no objection was made at that time. Evidently, the two heirs, Mrs. Black and Miss Bernadine Gleeson became dissatisfied after their mother’s death but up to the time of their mother’s death, were satisfied with the management of the farm by Mr. Colbrook and trusted his judgment in all matters connected with the farm, and the dissatisfaction that now exists, grows out of his failure or inability to give them specific reports on the farm. There is nothing in the evidence of either Miss Bernadine Gleeson or Mrs. Black to show any dishonesty or short dealings on the part of Mr. Colbrook.

The point first urged, that the petitioner acted in a fiduciary capacity and had profited personally thereby, was a matter of fact that was determined by the chancellor, sitting in equity. We have repeatedly held, that on questions of fact, this court would not disturb the finding of the trial court, unless clearly and palpably erroneous. Western & Southern Life Ins. Co. v. Brueggeman, 323 Ill. App. 173. Where the evidence is conflicting, the conclusions of the trial judge who saw and heard the witnesses and had advantages not possessed by the reviewing court, in judging the weight of their testimony, should not be disturbed unless clearly wrong. City of Quincy v. Kemper, 304 Ill. 303; Bellm v. Henry, 336 Ill. App. 525; the chancellor’s finding on conflicting evidence and not contrary to the weight of the evidence must be sustained on appeal. We find no such palpable error on the part of the chancellor in this case, and his finding in that respect will not be disturbed.

The next point raised is that the petitioner was a contingent remainderman and not eligible for appointment. The petitioners cite the case of Yates v. Yates, 255 Ill. 66. That case was not one of appointment by the testator but was one of appointment of a successor in trust by the original trustee under a provision of the will authorizing the original trustee to appoint as his successor some suitable person to execute the trust. In that case, the court while not specifically holding that a remainderman could not be trustee, did hold, that due to the possibilities that such a remainderman, acting as trustee, could so manage the estate for his own ultimate benefit, refused the appointment of a remainderman as trustee. The appellants also cite the case of Lorenz v. Weller, 267 Ill. 230, which was a case of appointment of a trustee by the testator and in that case, the court distinguishes between the facts in such a case and the facts and the law as laid down in the Yates case. The court in stating the differences between the Yates case and that one, said: “In the Yates case the trustee, who was a contingent remainderman, was not appointed by the will but was appointed by the original trustee under a provision of the will authorizing him to appoint as his successor some suitable person to execute the trust. The holding in the Yates case is correct, but it has no application to the situation here. There the court was dealing with the question whether one who had been appointed as a successor in trust under a power to appoint a suitable person as such successor should be removed by reason of his relationship to the property, while here appellant is asking the court to remove the trustees appointed by the will. It does not necessarily follow that because a court of equity would not, under given circumstances and conditions, appoint certain persons to execute a trust created by a will, that the testator himself could not make a valid appointment of such persons under the same conditions. The desires of a testator in the appointment of a trustee will be observed although he may see fit to appoint a person whose relationship to the estate is such that a court of equity would not appoint him if the appointment was to be made by the court.” Thus it can be readily seen that the Tates case is good authority, but it is not applicable where the testatrix, as in this case, made the appointment of the trustee by her will. The desires of the testatrix should be observed.

This leaves only the question of the disagreement and the apparent hostility between the trustee and the beneficiaries. On this point, the appellants again cite the case of Lorenz v. Weller, 267 Ill. 230, 243. In that case, there was evidence of hostility between the trustee and the beneficiaries. Yet the court denied the petition to remove and said: “While Herman Weller admits he is not on friendly terms with appellant or her father, it does not appear that the relations are such as to interfere with the beneficial administration of the trust.” That there is disagreement and some hostility cannot be disputed. The litigation here is proof of that. Two of the heirs, namely, Mrs. Black and Bernadine Gleeson testify that they have lost all confidence in Mr. Colbrook and mistrust him. On his part, Mr. Colbrook admits that the mistrust on the part of the beneficiaries has made him feel unfriendly or at least he is no longer friendly with these two beneficiaries. The hostility on the part of the beneficiaries seems to stem mainly from Mr. Colbrook’s neglect or inability to render itemized statements on the farm management. There does not seem to be any question of Mr. Colbrook being a good farmer. Is this distrust and disagreement between the parties sufficient to defeat the wishes and desires of the testatrix, Mrs. Grlee-son? Is the hostility such that it would interfere with the beneficial administration of the trust? Again, these are questions of fact that were decided by the chancellor, and this court is not disposed to overrule his decision. The judgment of the trial court will be affirmed.

Affirmed.

Mr. Justice Hibbs took no part in the consideration or decision of this case.


author: Justice Friend.

text:
    Virginia L. Haste, Appellee, v. Clarence B. Haste, Appellant.
    Gen. No. 46,040. (Abstract of Decision.)
    Shulman, Shul-man, Abrams & Joseph, and Berkson & Spitzer, and Max Lurie, for appellant;
    Sprague & Redman, for appellee.
    Opinion filed November 30, 1953;
    rehearing denied March 8, 1954;
    released for publication March 8, 1954.
   Opinion by Hot to be published in fuU.

Justice Friend.


author: Presiding Justice Niemeyer.

text:
    People of State of Illinois, Defendant in Error, v. Paul J. O’Shea, Plaintiff in Error.
    Gen. No. 46,236. (Abstract of Decision.)
    Leonard N. Steiger, for plaintiff in error;
    John Gutkneeht, State’s Attorney of Cook county, for defendant in error;
    John T. Gallagher, Rudolph L. Janega, and Arthur P. Manning, Assistant State’s Attorneys, of counsel.
    Opinion filed January 11, 1954;
    released for publication March 8, 1954.
   Opinion by Not to be published in full.

Presiding Justice Niemeyer.


author: Justice Burke.

text:
    People of State of Illinois, Defendant in Error, v. William S. Bowman, Plaintiff in Error.
    Gen. No. 46,140. (Abstract of Decision.)
    Eerlie & Gannon, Joseph D. Gannon, and Euclid Taylor, for plaintiff in error;
    Prank J. Perlic, Joseph D. Gannon, and Euclid Taylor, of counsel;
    John Gutkneeht, State’s Attorney of Cook county, for defendant in error;
    John T. Gallagher, Rudolph L. Janega, and Arthur F. Manning, Assistant State’s Attorneys, of counsel.
    Opinion filed January 11, 1954;
    released for publication March 8, 1954.
   Opinion by Not to be published in full.

Justice Burke.


text:
    City Apartments, Inc., Appellee, v. Emil Ismaiel, Appellant.
    Gen. No. 46,243. (Abstract of Decision.)
    Irving D. Levin, and Paul R. Goldman, for appellant;
    Irving D. Levin, of counsel;
    Harold Maro-vitz, and Melvin F. Wingersky, for appellee;
    Melvin F. Wingersky, of counsel.
    Opinion filed January 11, 1954;
    released for publication March 8, 1954.
   Opinion by Not to be published in full.

Justice Burke.


text:
    Paysoff Tinkoff, Appellant, v. Estelle F. Cline et al., Defendants, Estelle F. Cline, Appellee.
    Gen. No. 45,922. (Abstract of Decision.)

      PaysofE TinkofE, pro se, appellant;
    Bartley, Powell & Skarzynski, for appellee;
    Harry F. Skarzynski, and Melvin B. Lewis, of counsel.
    Opinion filed January 11, 1954;
    rehearing denied February 25, 1954;
    released for publication March 8, 1954.
   Opinion by Not to be published in full.

Justice Friend.


text:
    Benjamin Kanter, Appellant, v. City of Chicago, Appellee.
    Gen. No. 46,077. (Abstract of Decision.)
    Harry E. Booth, and Joseph Keig, for appellant;
    John J. Mortimer, Corporation Counsel of City of Chicago, for appellee;
    Joseph F. Grossman, and Patrick W. Dunne, of counsel.
    Opinion filed January 11, 1954;
    released for publication March 8, 1954.
   Opinion by Not to be published in full.

Justice Friend.


author: Presiding Justice Reynolds.

text:
    People of State of Illinois, Plaintiff-Defendant in Error, v. Milton D. Batchelder and Walter Carter, Jr., Defendants-Plaintiffs in Error.
    Gen. No. 9,900. (Abstract of Decision.)
    James N. Keefe, for plaintiffs in error;
    H. David Condron, State’s Attorney, and William J. Dieterich, Assistant State’s Attorney, for defendant in error.
    Opinion filed February 25, 1954;
    released for publication March 15, 1954.
   Opinion by Not to be published in full.

Presiding Justice Reynolds.


text:
    Paul Hammers, Plaintiff-Appellant, v. The Board of Fire and Police Commissioners of City of Mattoon, Illinois, Defendant-Appellee.
    Gen. No. 9,911. (Abstract of Decision.)

      Kenneth A. Green, for appellant;
    Ryan & Austin, and R. G. Real, City Attorney, for appellee;
    Willis P. Ryan, of counsel.
    Opinion filed February 25, 1954;
    released for publication March 15, 1954.
   Opinion by Not to be published in full.

Presiding Justice Reynolds.


author: PRESIDING Justice Reynolds.

text:
    Robert G. Allen, Plaintiff-Appellee, v. Earl Byers, Defendant-Appellant.
    Gen. No. 9,920. (Abstract of Decision.)
    Gumbart, Grigsby & Gumbart, for appellant;
    Leonard G. Berry and Ellis E. Leighty, for appellee.
    Opinion filed February 25, 1954;
    released for publication March 15, 1954.
   Opinion by Not to be published in full.

PRESIDING Justice Reynolds.


author: Justice Carroll.

text:
    People of State of Illinois, Plaintiff-Defendant in Error, v. Walter Carter, Jr., Defendant-Plaintiff in Error.
    Gen. No. 9,899. (Abstract of Decision.)

      James 1ST. Keefe, for plaintiff in error;
    H. David Condron, State’s Attorney, and William J. Dieterieh, Assistant State's Attorney, for defendant in error.
    Opinion filed February 25, 1954;
    released for publication March 15, 1954.
   Opinion by Not to be published in full.

Justice Carroll.


text:
    Ray Evans, Plaintiff, Cross-Defendant-Appellee, v. Frank L. McDavid, Administrator De Bonis Non of Estate of Tony Shatas, Jr., Deceased, Defendant, Cross-Plaintiff-Appellant.
    Gen. No. 9,910. (Abstract of Decision.)
    Vandever & Vandever, and Walter A. Kassly, for appellant;
    Omer Poos, for appellee.
    Opinion filed February 25, 1954;
    released for publication March 15, 1954.
   Opinion by Not to be published in full.

Justice Carroll.


text:
    W. L. Strubinger, Administrator of Estate of Richard E. Baker, Deceased, Plaintiff-Appellant, v. Dick Coultas and Albert Coultas, Trading as Coultas Brothers, and Eugene Norton, Defendants-Appel-lees.
    Gen. No. 9,913. (Abstract of Decision.)
    Sehimmel & Sehimmel, for appellant;
    Weaver & Grigsby, for appellees.
    Opinion filed February 25, 1954;
    released for publication March 15, 1954.
   Opinion by Not to be published in full.

Justice Carroll.


text:
    Arch D. Welch, Plaintiff-Appellant, v. John P. Downs, Defendant-Appellee.
    Gen. No. 9,921.

      Opinion filed February 25, 1954.
    Rehearing denied March 31, 1954.
    Released for publication March 31, 1954.
    Hal M. Stone, Jr., and Chester Thomson, both of Bloomington, for appellant.
    Richard F. Dunn, and Joseph W. DePew, both of Bloomington, for appellee.
   Mr. Presiding Justice Reynolds

delivered the opinion of the court.

This is an appeal from an order of the circuit court of McLean county, dismissing the complaint.

Originally there was a judgment for a deficiency in a foreclosure suit in the court of common pleas in Hardin county, Ohio. On June 1, 1931, one Frank H. McCullough obtained a deficiency judgment for the sum of $36,737.22, against a number of defendants. The plaintiff in this suit was a co-maker of the original mortgage and mortgage note, and one of the judgment debtors against whom the deficiency judgment was rendered by the court in Ohio. Neither of the parties to this suit has ever resided in the State of Ohio. The defendant is a lifelong resident of McLean county, Illinois. In the original suit in Ohio, both the defendant herein and the plaintiff herein, entered their appearances in the court in Ohio, but it appears that the defendant herein was not at any time personally within the territorial jurisdiction of the State of Ohio, at the time of the original suit or at the time the revivor suit was pending in Ohio.

The plaintiff herein secured an assignment of the deficiency judgment entered on June 1, 1931, from one William J. Bach, and on February 14, 1952, filed a motion in the Ohio court to revive the deficiency judgment, alleging in said motion that the judgment was dormant. The Ohio court, upon the filing of the motion to revive, entered a conditional order of revivor and ordered notice of said suit, by publication, ordering the defendant to show cause on or before March 29, 1952, why the deficiency judgment should not be revived. The service had therein on the revivor suit was by publication and it is not contended that any personal service was ever had on the defendant. On March 31,1952, the Ohio court entered a final order of revivorship of the original deficiency judgment.

On June 2, 1952, the plaintiff filed suit in the circuit court of McLean county, Illinois, upon the revived deficiency judgment. The trial court dismissed the complaint on motion of the defendant. The plaintiff elected to stand by his complaint, and from such order of dismissal, the cause comes to this court.

The plaintiff assigns as error, that the trial court erred in allowing the motion to dismiss, erred in dismissing the complaint and erred in its finding that the claim of plaintiff was barred by the Illinois statute of limitations, and erred in holding that the Ohio court had no jurisdiction to enter the judgment. Since the order of the trial court in allowing the motion to dismiss and dismissing the complaint is predicated upon the conclusions of the trial court that the Ohio court had no jurisdiction and that the claim was barred by the statute of limitations, it is pertinent to examine the facts and the law in that connection. It is conceded by both parties that section 15 [Ill. Rev. Stats. 1951, ch. 83, § 16; Jones Ill. Stats. Ann. 107.275] of the Limitations Act governs this case, and that a suit must be brought within five years from the date the judgment is obtained in a foreign jurisdiction. There seems to be no question of the jurisdiction of the Ohio court in the original suit. Both the plaintiff and the defendant had entered their appearance, although both were residents of McLean county, Illinois.

The plaintiff contends that the judgment of revivor is an original suit, a new personal judgment, binding upon both parties, and that the finding of the Ohio court upon the revivor suit is res adjudieata as to Illinois, on the question of the purchase of the Ohio judgment extinguishing the old Ohio judgment.

The defendant on the other hand, contends that the revivor suit in Ohio does not operate as res adjudieata in Illinois; that the revivor judgment is not a new judgment but a revival of the old judgment; that no jurisdiction was acquired by the Ohio court as to the defendant, and that the Illinois statute of limitations applied to the old judgment. He further contends that while the judgment of the Ohio court might be binding upon persons residing in Ohio, it did not acquire jurisdiction upon the defendant residing in Illinois; that the proceeding of revivor of the original judgment was a proceeding in personam and not in rem, and that being a suit in personam, personal service on the defendant was necessary. The proceeding on the revivor suit and the method of service seems to be in full compliance with the Ohio statutes. But was this compliance with the requirements of Ohio sufficient to give the Ohio court jurisdiction over a defendant living in Illinois? The trial court held that it did not and in arriving at this decision, relied upon the case of Sutton v. Hole, 349 Ill. App. 219, which is analogous to the question here. In that case it was sought to enforce a money decree entered by the U. S. District Court against one Perry L. Hole, and in addition, sought other relief in personam against the Washington Loan and Trust Company, of Washington, D. C. Service was had by delivery to its vice president in Washington, D. C. of a copy of the summons and complaint. There, as in this case, the defendant was a nonresident. The court filed a memorandum opinion finding that the allegations and prayers of the complaint were in personam. The court in its decision said: “Neither the statutes nor the decisions authorize the making of personal service outside of this State in actions in personam. Section 16 of the Civil Practice Act [Ill. Rev. Stats. 1951, ch. 110, par. 140; Jones Ill. Stats. Ann. 104.016] must be read in connection with section 14 of that Act. . . . See Fitzgerald for Use of Foreman-State Nat. Bank v. First National Bank of Chicago, 272 Ill. App. 570; and McCormick v. Blaine, 345 Ill. 461. The Supreme Court of the United States in Milliken v. Meyer, 311 U. S. 457, has held that a State may authorize the service of summons in another State upon one of its citizens who is temporarily out of the State for the purpose of an in personam action. In the case at bar the defendant is not a resident corporation and does not do business in this State. ... We are convinced that plaintiffs are attempting to prosecute an action in personam. We are of the opinion that the service on the corporation in the city of Washington, D. C., did not confer jurisdiction on the superior court of Cook county to enter a judgment in personam and that the court was right in quashing the service.”

Following the law laid down in that case, in the instant case, we must hold that this is an action in personam, and that the service by publication in the Ohio court was not proper and legal service upon a defendant residing in Illinois.

It has been held in an unbroken line of cases, that the period of limitations within which an action may be brought in this State upon a judgment rendered in another State, is five years. Davis v. Munie, 235 Ill. 620; Bemis v. Stanley, 93 Ill. 230; Ambler v. Whipple, 139 Ill. 311. This disposes of the old judgment, which was dormant for twenty years. But the plaintiff urges that the Ohio court having jurisdiction of the defendant in the old case, retained jurisdiction in the revivor case. This position is untenable in view of the fact that the statute of limitations made the judgment against the defendant valueless after five years. It is true that the revivor suit is only a reviving of the old deficiency judgment. It is possibly good in Ohio, but because of the insufficiency of service, it is not good in Illinois.

The judgment of the trial court is affirmed.

Affirmed.

Mr. Justice Hires took no part in the consideration or decision of this case.


author: Mr. Presiding Justice Schwartz

text:
    Kathryn Lennon Merschat, Administratrix of Estate of Richard W. Merschat, Deceased, and Kathryn Lennon Merschat, Individually, Plaintiff-Appellee and Cross-Appellant, v. Henry A. Merschat, Defendant-Appellant and Cross-Appellee, and Drovers Trust and Savings Bank, as Trustee of Trust Number M 31 et al., Codefendants.
    Gen. No. 46,015.

      Opinion filed March 2, 1954.
    Rehearing denied March 23, 1954.
    Released for publication March 23, 1954.
    Klein & Thorpe, of Chicago, for appellant; Franklin W. Klein, and Arthur C. Thorpe, both of Chicago, of counsel.

      Mulcahy, Murphy & Dieringbr, of Chicago, for ap-pellee ; Michael F. Mulcahy, and Henry W. Dieringbr, both of Chicago, of counsel.
   Mr. Presiding Justice Schwartz

delivered the opinion of the court.

This is an appeal by Henry A. Mersehat, hereinafter called “defendant,” from a decree which declared a resulting trust in favor of plaintiff for a one-half beneficial interest in the premises known as 8023 South Vernon avenue, Chicago. Plaintiff filed a cross-appeal, contending that she should have been awarded the full beneficial interest in the building. Certain other minor issues are raised which we will consider later.

Plaintiff, Kathryn Mersehat, is the widow of Richard W. Mersehat, a brother of defendant. Richard at the time of the acquisition of the property herein, operated a drugstore. His wife, plaintiff, worked in the store, assisted in the management of their property, and took care of their home. Sometime prior to the transaction in question, Richard, Henry and Kathryn together discussed the matter. Negotiations followed and on October 2, 1940 an agreement was made for the purchase of the property for $20,750, of which $500 was recited as having been paid. The deal was closed November 23, 1940 by the transfer of the property to the Drovers Trust & Savings Bank as trustee. The trust agreement, after the usual formal recitals, stated that the “following named persons shall be entitled to the earnings, avails and proceeds of said real estate according to the respective interests herein set forth, to-wit: Henry A. Mersehat and Richard Wm. Mersehat, as joint tenants and not as tenants in common.” It further provided that the interest of any beneficiary thereunder “shall be deemed to be personal property” and that the trustee “shall deal with said real estate on the written direction of either Henry A. Mersehat or Richard Wm. Merschat . . . .” The agreement was signed by Henry Merschat and Bichard William Mers-chat. According to the testimony of an officer of the bank, the words “Henry A. Merschat and Bichard Wm. Merschat, as joint tenants and not as tenants in common,” were not in the agreement at the time it was prepared in the bank. How and where they were inserted does not appear. According to plaintiff’s testimony, the document was brought to her husband to sign while he was lying ill in bed. She claims he had no understanding of that clause.

$13,250 of the purchase price was paid when the deal was closed and a mortgage given for the balance of $7,500, payment of which Bichard and Henry guaranteed. One year later, in November 1941, Bichard sold his drugstore because of illness and from the proceeds paid $5,000 on the mortgage which, together with $2,500 from Henry, paid it off. Henry collected rents from the time the property was purchased until Bichard and Kathryn moved into an apartment in the premises in September 1941, after which time Bichard collected substantially all the rents. Following Bichard’s death on June 23,1948, Kathryn collected rents until January 1949, when she learned of Henry’s claim to the entire property, and this suit was filed.

The principal issue of fact concerns the contributions made to the amount of $13,250 paid in when the property was purchased. Kathryn contends that she contributed $8,000 to the purchase, and that the balance of $5,250 came from other members of Henry’s family. Henry insists that only $3,000 of the amount was Kathryn’s money and that, at most, it was loaned to Bichard and Henry for the purchase. The evidence concerning these squarely opposing contentions is not completely free from doubt. Kathryn testified that at the closing of the deal she paid the $3,000 (which Henry admits) by a check drawn on her bank account; that at the same time she withdrew $2,000 from the Grand Crossing Postal Savings Station which she gave in cash to Henry, thus mailing a total of $5,000. In this respect she is corroborated by the postal savings record showing the withdrawal. In addition to this amount, Kathryn testified that she had $3,000 in cash in her home, which she also gave Henry. On this latter claim there is no corroborating testimony. Henry’s evidence sought to show that aside from the $3,000 check from Kathryn’s account, the balance of the money was produced by his mother and him. In support of this he produced his mother Marie, his father Paul, and his sister. They testified unequivocally that Marie and Paul went to the Grand Crossing Postal Savings Station where Marie, the mother, withdrew $2,000 from her savings account and $1,000 from the sister’s account. It appears, however, that the mother and sister did not have accounts at the Grand Crossing Postal Station, although they did at the Englewood Station, some miles away, and the records of that station show that a withdrawal was made at the time the deal was closed. Other conflicts and inconsistencies appear in their testimony. In addition, the mother testified that she gave Henry $2,000 in cash which she had in her house. There is no corroborating testimony to that effect by any disinterested witness. It is clear, however, that approximately $5,000 in cash was used to close the deal which, together with Kathryn’s check for $3,000 and the earnest money and checks contributed by Henry amounting to over $5,000, made up the $13,250.

The case was heard by a master over a considerable period of time in the desultory fashion which characterizes such proceedings. After the close of plaintiff’s case, a motion was made to dismiss the suit. The master on September 13, 1950, for some reason made what appears to be a definitive report, denying the motion. Objections were made to the report, some of which were sustained and others set aside, and a supplemental report was made on November 15,1950. The master made another report on August 17, 1951, and then made a supplemental report on December 3, 1951, so that altogether, we have four drafts of reports. The chancellor found that the reports were so confusing and inconsistent with each other that it was necessary for him to study and consider all the testimony and exhibits, to hear arguments at length, and to have briefs presented. He found that Kathryn contributed substantially half the purchase price for the property and that accordingly a resulting trust arose in her favor to that extent. He set aside the joint tenancy, decreed that Kathryn was entitled to a one-half beneficial interest in the trust, and directed the trustee to act only upon the direction of both plaintiff and defendant.

The principal error relied on by defendant is that the evidence does not support the requirements necessary under the law of Illinois for the establishment of a resulting trust. A resulting trust may be found where one person’s money has been invested in land and the conveyance taken in the name of another. “If the fact exists, by mere operation of law a trust is raised in favor of the party whose money was paid to purchase the land, either to the whole or his equivalent portion thereof.” Mercury Club v. Keillen, 323 Ill. 24, 26 (1926); Craven v. Craven, 407 Ill. 252, 260 (1950); Frewin v. Stark, 319 Ill. 35 (1925); John v. John, 322 Ill. 236 (1926); Bruce v. Roney, 18 Ill. 67 (1856). If Kathryn’s money was contributed either all or in part to purchase the property, then the joint tenancy between Richard and Henry is a nullity. Kane v. Johnson, 397 Ill. 112 (1947). There is no question but that Kathryn contributed money toward the purchase price at the time the property was obtained and that she did so for the purpose of having an interest therein. The record does not show any support of Henry’s contention that the funds contributed by Kathryn were joint funds belonging to both Bichard and Kathryn. Nor does it support the alternative contention that the money contributed by Kathryn was merely a loan to Bichard and Henry.

The chancellor, in finding that Kathryn contributed “substantially half” the amount, overruled the master’s report, as he properly could. Zilvitis v. Szczudlo, 409 Ill. 252, 255 (1951); Jones v. Koepke, 387 Ill. 97 (1945). Where the chancellor sustains the master’s report, the findings of the court cannot thereafter be set aside unless they are against the manifest weight of the evidence. Schmalzer v. Jamnik, 407 Ill. 236 (1951) (and cases there cited); City of Quincy v. Kemper, 304 Ill. 303 (1923). Where, however, the chancellor does not sustain the master, then a reviewing court may take the master’s report into account so far as it may appear to be worthy, but no particular measure of weight is ascribed to it. Obviously, what the chancellor did was to accept that portion of plaintiff’s case which was clearly proven, to-wit: that initially she contributed $5,000 by check and cash and that thereafter there was contributed for her an additional $5,000 to discharge the mortgage, making a total of $10,000, or approximately half the purchase price, thereby entitling her to a resulting trust for one-half. This was a reasonable conclusion, supported by the evidence.

Defendant contends that certain formal requirements necessary to the establishment of a resulting trust are lacking. Before proceeding to a consideration of those particular points, it should be noted that there are facts which differentiate this case from the usual case involving resulting trusts. This was not a joint tenancy in land created by a formal agreement, but an agreement whereby the avails and proceeds of this property, declared to be personal property, were

to be held in joint tenancy. This simple provision was inserted without any formality in an instrument signed by defendant and his brother, without the advice of a lawyer. That Henry did not understand the meaning of the joint tenancy clause is evidenced by the testimony of Price, the real estate agent, a disinterested witness. Price stated that Henry came to see him six months or a year after the closing of the transaction and said he wanted to fix the property so that in case he went into service and did not return, the title would not be involved. He told Price he was “holding the property for his brother and his brother’s wife.” He talked about drawing deeds and not recording them, and Price testified he told Henry he did not know how to handle property in that manner and suggested that Henry see an attorney or someone more familiar with those matters than himself. This, together with the family relationship of the parties, reveals the informal character of their arrangement with respect to this property. It was proper for a court of equity to take that into account in determining whether the formal requirements for a resulting trust were present. A study of the principal cases on which defendant relies will reveal that the substantial prerequisites for such a trust were here present.

Defendant contends that in order to establish a resulting trust, the precise amount contributed must be proven. In Kedas v. Kedas, 342 Ill. 630 (1931) cited by defendant, a son sought to establish a resulting trust on two pieces of real estate taken in the name of his mother. His contention was that the family lived together and earned money which they put in a bank account, and that this was the source of payment for the property. The court said, at p. 633:

“ ‘Where several persons contribute to the purchase of real estate, it is essential, in order to create a resulting trust, that it shall appear that the sums severally contributed were for some distinct interest or some definite part of the estate. Reed v. Reed, 135 Ill. 482; Strong v. Messinger, 148 id. 431; Katsing v. Wiegand, 286 id. 646.’ To the same effect is Stelling v. Stelling, 323 Ill. 122.”

The point stressed by the court in that case is that the contribution should have been made for a specific purpose, that is, for a specific interest in a specific piece of land, and it is this fact which a court must find, rather than the precise amount of the contribution.

In Orear v. Farmers State Bank & Trust Co., 286 Ill. 454 (1919), also cited by defendant, the situation was similar to the Kedas case in that plaintiff contended that she and the decedent were supposed to be partners, and that all the money he invested in real estate was partnership money. Accordingly, she sought to impress a resulting trust on a certain parcel of real estate after his death. The court rejected plaintiff’s claim on the ground that she had not established an interest in the particular land in question, saying, p. 468:

“ [Plaintiff’s witnesses] did not claim that they knew what special pieces of land [decedent] was referring to or how many pieces, and while they were not at all certain as to the dates of most of these declarations, it is apparent that the majority of them, at least, must have been made years before Rees purchased the land in . . . question. . . . Even conceding that Rees stated [that they were to be partners in lands], what lands did he mean?”

Kinsch v. Kinsch, 348 Ill. 446 (1932) and Brooks v. Gretz, 323 Ill. 161 (1926), which are relied on by defendant, also involve childrens’ contributions to common funds over a period of years, which funds they allege were used by the parents to purchase the disputed properties. In rejecting the claims the court in both of those cases stressed the lack of proof as to the relationship between the contribution and the property in question. Here, there is no question that Kathryn’s money was directly contributed to the purchase of the property in question. Accordingly, the cases cited by defendant are not applicable to the instant case.

It is conceded that one year after the purchase of the property, Bichard sold his drugstore and from the proceeds paid $5,000 upon the mortgage debt, which brought the total amount contributed by Bichard and Kathryn to $10,000, or about the same as Henry’s contribution. Defendant contends that this cannot be considered because an essential requirement of a resulting trust is that only payments made at the time of the original transaction can be taken into account, citing Pomeroy’s Equity Jur., 5th Ed., Vol. IV, sec. 1037, p. 72, and cases. Defendant admits that there is an exception to this rule in a case where a plaintiff pays off a mortgage and note which he signed or for which he assumed liability at the time of the original purchase. We accept as definitely established on the part of plaintiff that her check for $3,000 plus the $2,000, which it was shown she had withdrawn from her postal savings account that day, or $5,000, was paid by her for an interest in the property. Thereafter, when the mortgage was paid, a further contribution of $5,000 was made for her, making a total of $10,000. Taking into account that Henry had received $250 rebate on the commission, which appears from the real estate agent’s testimony, this is practically a full accounting by Kathryn of payment of one-half the purchase price. The unequal payment on the mortgage must have been pursuant to a prior understanding entered into at the time the deal was made that she was to provide substantially half the total purchase price. Any other conclusion does not make sense. It is argued by defendant that the contribution of $5,000 to discharge the mortgage was made by Bichard, and not by his wife Kathryn. In view of the relationship between Bichard and his wife, her association with him in business and in the management of their property, her participation in the original conference with respect to the purchase of this property, and her contribution of her own funds, it appears clear that the contribution of $5,000 made by Bichard, even though not shown to be out of a common fund with Kathryn, was nevertheless a contribution toward her interest in the property. This is certainly much more reasonable than that it was intended for Henry’s benefit. The cases cited by defendant on this point are different factually from the case at bar and have no value as precedent on what is essentially an issue of fact.

Admonitions of courts with respect to proof required in cases involving resulting trusts stem from the time real estate constituted not only the great body of wealth in the community, but fixed both social and political status. A conveyance of real estate or any instrument creating an interest therein constituted a ceremonial of great dignity and importance. In our time, however, formal land titles are no longer held in such high sanctity by courts, laymen, or lawyers. Such titles are frequently put in the names of nominees or “strawmen,” or a title may be in the name of one when, as a matter of fact, he has an interest along with many. In re Childs Co., 163 F.2d 379, 382; Shiel v. Chicago Title & Trust Co., 262 Ill. App. 410, 416. This is the realistic conception which we must take of real estate transactions today. Any other view can often lead to great injustice. This does not mean that this court departs from accepted rules of long standing with respect to proof required in cases of resulting trusts. What we have said relates rather to the weight of evidence such as was here presented on behalf of Kathryn. Considered in this light, the evidence offered on her behalf with respect to her interest in the property is reasonable. We affirm the conclusion of the chancellor that Kathryn is entitled to a one-half interest in the property and that there is a resulting trust in her favor to that extent.

The chancellor made no findings as to one of the alternative contentions of plaintiff — that Henry stood in a confidential relationship to Kathryn and accordingly could not stand on the legal technicalities of the joint tenancy clause. In our view of the case, it is unimportant to decide that question, although it would-appear from the evidence that elements of such a relationship were present.

Plaintiff complains of that part of the decree which divided the costs of the proceeding equally between the parties. That matter is within the discretion of the chancellor and there is no indication that he abused his discretion.

There remains for our consideration that portion of the decree which rereferred the cause to the master to determine whether there should be an accounting on the part of plaintiff for income received from the premises and, if so, to take such an accounting. The record shows that large costs have already been incurred in connection with this litigation. In our opinion the chancellor should first determine whether an accounting should be made and, if possible, should avoid any further reference. Accordingly, that portion of the decree relating to an accounting is reversed and the cause remanded to the chancellor with directions to take further proceedings not inconsistent with the view herein expressed. In all other respects, the decree of the chancellor is affirmed. Costs of the appeal are hereby taxed to the defendant Henry Mersehat.

Affirmed in part and reversed in part.

Tuohy and Robsoh, JJ., concur.


text:
    People of State of Illinois ex rel. Richard A. White, Plaintiff-Appellant, v. Stephen E. Hurley et al., Members Constituting the Civil Service Commission of the City of Chicago, and Herman N. Bun-desen, President of the Board of Health of the City of Chicago, Defendants-Appellees.
    Gen. No. 46,104.

      Opinion filed March 2, 1954.
    Rehearing denied March 23, 1954.
    Released for publication March 23, 1954.
    Michael F. Ryan, of Chicago, for appellant; Richard F. McPartlin, Jr., of Chicago, of counsel.
    John J. Mortimer, Corporation Counsel of City of Chicago, for appellees; L. Louis Karton, Head of Appeals and Review Division, and David D. Stevenson, Assistant Corporation Counsel, both of Chicago, of counsel.
   Mr. Presiding Justice Schwartz

delivered the opinion of the court.

This is an appeal from an order sustaining defendants’ motion to strike the amended complaint of the relator and to dismiss the suit. The relator seeks a writ of mandamus against the members of the Civil Service Commission and the President of the Board of Health of the City of Chicago, to compel them to permit him to take a promotional examination for the position of Supervising Dairy Inspector in the classified service of the Board of Health, and if he passes such examination, to place his name in its proper place upon the promotional register.

It appears that the relator took and passed an examination for the position of Food Inspector in 1914 and was appointed to the position that year. At that time, as it is alleged in the complaint, and for some years thereafter, the duties of Food Inspector included milk inspection. In 1924 plaintiff was assigned to the Country Division of the Food Bureau and was delegated duties in connection with milk inspection. He performed those duties until June 25, 1937, when he was given a temporary appointment as Supervising Dairy Inspector. He was given a leave of absence from the office of Food Inspector and held the office of Supervising Dairy Inspector under temporary appointment until the time of the filing of the amended complaint herein. Sometime prior to 1939, the position of Dairy Inspector was classified by the Civil Service Commission as a position in Branch III, Class O, Grade 3, being the same branch, class and grade as that of Food Inspector. The duties of Dairy Inspector were defined and were distinguished from those of Food Inspector and on November 16, 1942, were redefined and classified.

According to defendants, the office of Dairy Inspector was created as early as 1926 and the office of Supervising Dairy Inspector in 1928. However, relator refers to it as a newly created position, which, was classified August 24, 1948. Relator further states that between 1939 and 1941, a number of employees under the title of “Food Inspector,” or “Health Inspector,” who were performing duties in connection with milk and dairy inspection, had their title changed without any civil service examination to “Dairy Inspector,” and that by oversight, the title of the relator was not changed, although at that time he was a Food Inspector, being on leave of absence from that office to perform the duties of Supervising Dairy Inspector, as we have stated.

On March 15, 1951, the Civil Service Commission issued a call for the holding of a promotional examination for the position of Supervising Dairy Inspector, Branch III, Class 0, Grade 4, prescribing that all civil service Dairy Inspectors would be eligible. Relator applied for the examination and was permitted to take it, but his papers were not marked because, after taking the examination, the Civil Service Commission took the position that he was not eligible therefor since he was not a civil service Dairy Inspector at the time. This is the action complained of.

Under section 9 of the Civil Service Act [Ill. Rev. Stats. 1953, ch. 24%, § 47; Jones Ill. Stats. Ann. 23.048], it is the duty of the Civil Service Commission to provide that wherever practicable, vacancies shall be filled by promotion and that examinations shall be competitive among such members of the next lower rank as desire to submit themselves as candidates for promotion. The relator argues that he was in the next lower rank; that, although on the civil service list as a Food Inspector, he was in reality a Dairy Inspector, on leave of absence in order to perform the duties of Supervising Dairy Inspector. What counsel for relator, with commendable candor, submit to us is that

while the relator was not on the civil service list as a Dairy Inspector, the history of his employment shows that he was qualified to take the examination for Supervising Dairy Inspector. They earnestly argue that if the objective of the civil service law is to promote efficiency, then certainly a man who had for many years performed the duties of the position, both as a civil service appointee and then as a temporary appointee in a supervisory position, ought to be permitted to take the examination. If in this class of cases courts were permitted to exercise broad equitable powers, there might be some reasonable basis for this argument. Here, relator seeks a writ of mandamus against a branch of the executive department. He must show a clear legal right to this writ. People v. Allman, 382 Ill. 156, 164; People ex rel. Clark v. Hurley, 343 Ill. App. 182, 187; People ex rel. McKeown v. Hurley, 343 Ill. App. 413, 416. It has repeatedly been held that the Civil Service Commission is a branch of the executive department and before the judicial branch can interfere with the executive, it must be clearly made to appear that the executive in the discharge of its ministerial functions is about to commit an illegal act. The objection here is against the strict compliance of the Civil Service Commission with the law. The Commission has, pursuant to section 9 of the Civil Service Act [Ill. Rev. Stats. 1953, ch. 24%, § 47; Jones Ill. Stats. Ann. 23.048], limited the promotional examination to those who were civil service Dairy Inspectors. Relator is not a civil service Dairy Inspector.

He argues that he should have been transferred to the list along with the others who were so transferred in 1939, but this was a matter for the Civil Service Commission at that time and in that period. It is not for the courts to correct such error, if it were an error. Accepting, as we do, all that is said by the relator in his complaint, we still do not know what were the full motives of the Civil Service Commission in creating the position of Dairy Inspector back many years. Did the growth of the city and the application of scientific methods with respect to milk production require a new and different type of work, as distinguished from other food inspectors? This and many other questions come to mind. Relator argues that he has had all this experience in his position, by temporary appointment, as Supervising Dairy Inspector. That may be true, but we need only consider what would be the situation if, without the background of his civil service standing as Food Inspector, relator sought to enforce a right to take the examination on the basis of his experience as temporary Supervising Dairy Inspector. That could throw the examination open to the entire field and defeat the provision requiring a promotional examination to be given, wherever practicable, to those in the next lower rank.

We do not overlook the argument relator makes, that he was in the next lower rank by virtue of the fact that he was a Food Inspector, because the ranks of Food Inspector and Dairy Inspector were in the same branch, class and grade. The examination was limited to those who were Dairy Inspectors in that branch, class and grade. While it is true that both Food Inspectors and Dairy Inspectors were in the same branch, class and grade, it is set forth in the complaint that their respective duties were different; that Dairy Inspectors are now confined to milk inspection. It was, therefore, clearly sound civil service practice and a faithful discharge of their duties under the law for the Commission to restrict the promotional examination to Dairy Inspectors who were in Branch m, Class 0, Grade 3. Courts have no right to interfere with an executive or administrative decision made in compliance with the law. People ex rel. McKeown v. Hurley, 343 Ill. App. 413.

We are of the opinion that the trial court properly sustained the motion to strike and dismiss the suit.

Affirmed.

Tuohy and Robson, JJ., concur.


author: Mb. Pbesiding Justice Schwabtz

text:
    Andrew B. Anderson et al., Appellants, v. N. Manley Elliott, Sidney H. Koch, and Mitchell M. Leon, Appellees.
    Gen. No. 46,146.

      Opinion filed March 2, 1954.
    Rehearing denied March 16, 1954.
    Released for publication March 23, 1954.
    Frederick J. Bertram, and John E. Erickson", both of Chicago, for appellants.

      Andebson & Boche, Theodobe L. Fobsbebg, Doty & Johnson, and Seymotjb J. Layfeb, all of Chicago, for appellees; C. Hilding Andebson, and Seymoub J. Lay-feb, both of Chicago, of counsel.
   Mb. Pbesiding Justice Schwabtz

delivered the opinion of the court.

This case comes to us upon the complaint, motion to dismiss, supported by affidavit, and reply thereto, supported by counter-affidavit. The essence of the complaint is that defendants conspired to defraud plaintiffs, former holders of certain certificates of beneficial interest in the now defunct Byron Apartments Liquidation Trust, by selling the trust property for $2,000 less than could have been obtained for it. Plaintiffs also seek to have defendant Koch account for and return to the trust estate the sum of $2,175 which he was paid as a commission. The chancellor sustained defendants’ motion and dismissed the complaint.

Defendants are the former successor-trustee of the trust real estate, Dr. N. Manley Elliott; the real estate commission broker, Sidney H. Koch; and the purchaser of the trust real estate, Mitchell M. Leon. The property involved is not large and was held in trust for the benefit of a considerable number of small certificate holders, among whom were the eleven plaintiffs. It appears that the trust was about to expire and that the trustee and managers were concerned about what might then happen, such as a complicated and expensive partition suit resulting in a public sale, and they undertook to solicit offers for the purchase of the property. One offer of $42,500 was submitted to and rejected by action of the certificate holders, pursuant to the provisions of the trust agreement. The trust managers called a meeting of the certificate holders to determine their wishes. A majority of them then and there determined that the trustee should endeavor to secure the best price obtainable. Immediately thereafter, Elliott, as trustee, solicited and received several offers from various real estate men, none of which, however, was as advantageous as that already rejected by the certificate holders.

On March 8, 1949, about two weeks before the trust was to expire, one of the defendants, Mitchell M. Leon, submitted a written offer of $42,500, deposited therewith $2,500 as earnest money, recognized the right of the certificate holders of thirty-five per cent or more of the outstanding units of record to reject the offer by filing written dissents or objections thereto, and reserved the right, upon five days’ notice given him by the trustee, to meet any offer higher by $1,000 or multiples thereof, which the trustee might receive within twenty days from March 9th. On March 9, the trustee and managers by mail notified the certificate holders of this offer and of all terms and conditions thereof, as provided for in the trust agreement. It does not appear that any certificate holder objected to the proposed sale by filing with the trustee within twenty days his or her written dissent or objection.

On March 25, however, one Krogh, who apparently has never himself appeared in person, offered to pay $44,500 for the property and reserved the right to meet any higher offer by Leon. This offer Leon met. The trustee then attempted to arrange a meeting for the purpose of permitting Krogh and Leon to bid against one another. Erickson, one of the plaintiffs here and attorney also for the other plaintiffs, appeared at the meeting on behalf of Krogh. Leon, apparently having determined that he had the basis for a valid contract, notified the trustee that he did not propose to embark upon a “bidding contest,” and filed suit against the trustee and managers for specific performance. Shortly thereafter, Krogh, through his attorney Erickson, increased the offer to $45,500.

On May 18,1949, the day of the hearing on the motion filed by the trustee and managers to strike the complaint for specific performance, one Hane, operating as the Hane Realty Company and specified in Krogh’s offers as the person to whom payment of a 5% broker’s commission by the trust was to be made, appeared in court and denied under oath that he had found a buyer for the property or that he expected any commission or, apparently, that he even knew Krogh or had ever heard of anyone by that name. Krogh had as yet made no appearance. The motion to strike the complaint as amended, to include an additional count charging Krogh with bad faith, was sustained and leave granted the trustee to file a counterclaim for instructions. The counterclaim named Leon and Krogh as defendants; set out that the trust agreement had expired by its own terms; that there were two bidders for the property; the nature and amount of the bids; that the trustee desired to secure the most advantageous price for the certificate holders; and prayed that the court direct him in the premises. On May 25, 1949, after a hearing upon the counterclaim, the court entered an order directing the trustee to convey the trust real estate to Leon for $43,500 and to return Krogh’s deposit to Erickson, attorney for Krogh. Thereafter, with the consent and under the direction of the trust managers, the trustee conveyed the property to Leon for $43,500, requested and received surrender of the certificates from all certificate holders, cancelled said certificates, and distributed the net proceeds of the sale to all certificate holders.

In 1950 a suit similar to the instant case was filed by plaintiffs and was dismissed for want of prosecution. In 1952, the instant suit was filed. The issue raised by the affidavits in support of and against defendants’ motion to dismiss plaintiffs’ complaint, and the question we are called upon to decide in order to dispose of the entire cause, is whether plaintiffs, as cestuis que trustent, are bound by the chancellor’s order entered May 25,1949, directing the trustee to sell the property to Leon for $43,500.

As a general rule, all parties interested, which would include cestuis que trustent, are necessary parties in suits by or against a trustee relating to the trust or its property. White v. Macqueen, 360 Ill. 236, 243. However, because of the existence of numerous and varied instances of exception, it has been said that “whether beneficiaries should be made parties to a suit affecting the trust rests in the sound discretion of the court, and depends upon the facts and circumstances of each case” (Rothbart v. Metropolitan Trust Co., 307 Ill. App. 271, 279-80) and that “in general a trustee represents his cestuis que trustent in actions to which he is a party.” Campbell v. Albers, 313 Ill. App. 152, 167.

In any event, there are two well established exceptions to the general rule that the cestuis que trustent are necessary parties in actions by or against a trustee relating to the trust or its property. The first is where the absent parties are properly represented. When, in such case, the trustee is made party to a suit affecting the cestuis’ interest, the latter are as much bound by the decree rendered in the suit as if they were individually made parties thereto, for the reason that their interests receive actual and efficient protection. White v. Macqueen, supra. Thus, for example, where the trustee is authorized to act in some appropriate and particular manner with regard to the legal title, the cestuis are not necessary parties. Kerrison v. Stewart, 93 U. S. 155, 160; Manson v. Duncanson, 166 U. S. 533, 543; Colorado 3 Southern Ry. Co. v. Blair, 214 N. Y. 497, 513-4. Where, for example, the litigation does not concern the rights of the trustee and the cestuis, as between themselves, in any way, the cestuis are not necessary parties. Wollenberger v. Hoover, 346 Ill. 511, 576; Campbell v. Albers, supra; Matter of Estate of Straut, 126 N. Y. 201, 212; Colorado & Southern Ry. Co. v. Blair, supra. The second exception to the general rule arises where the beneficiaries are very numerous, so that the delay and expense of bringing them in becomes oppressive and burdensome. In such case they will not be deemed necessary parties where the trustee representing them is made a party. White v. Macqueen, supra.

The instant case comes within both exceptions. Unless, therefore, the charges of collusion and fraud against defendants can be supported by some fact or facts alleged in the complaint, plaintiffs are bound by the prior decree. Kerrison v. Stewart, supra; Manson v. Duncanson, supra; Dean v. Kellogg, 394 Ill. 495.

The complaint and reply affidavit allege no material fact not disclosed to or before the court in the former suit. That court resolved the trustee’s dilemma respecting the possibility of future personal liability to Leon, Krogh, or the cestuis by granting the trustee leave to file a counterclaim for instructions, by hearing the several parties and, after considering all the facts and circumstances, by directing the trustee to convey and sell the property to Leon for $43,500, to which Leon agreed and which he paid. We cannot find that under these circumstances a trustee, who from the pleadings and facts exhibited the highest good faith and earnestly desired to discharge his full duty, should now be penalized for complying with the court’s order.

It is alleged in the complaint that defendants conspired to pay an “alleged real estate commission to the said Sidney H. Koch, who was not then a

licensed real estate broker in the City of Chicago . . . and who was in no way entitled to receive a real estate commission . . . .” The charge that Koch was not a licensed broker is made by way of recital and nowhere is it stated that the trustee and managers knew that he was not licensed. Plaintiffs seek a discovery regarding the status of Koch as a real estate broker and an accounting and money decree. While it is true that an agent who is not licensed cannot recover a real estate commission for procuring a purchaser, plaintiffs’ briefs do not discuss the question whether such commission, having once been paid for services rendered, can be recovered. That point is not argued.

The circuit court properly entered the order sustaining defendants’ motion to dismiss and dismissing plaintiffs’ complaint.

Order affirmed.

Tuohy and Robson, JJ., concur.


author: Mr. Justice Robsou

text:
    Clarence L. Mortenson, Appellant, v. Esther McCredie, Appellee.
    Gen. No. 46,012.

      Opinion filed March 2, 1954.
    Released for publication March 23, 1954.
    Dale, Lyttoh, Haffner & Grow, of Chicago, for appellant; John M. Wejmah, of Chicago, of counsel.

      Howard & Howard, of Chicago, for appellee; John E. Guy, of Chicago, of counsel.
   Mr. Justice Robsou

delivered the opinion of the court.

Clarence L. Mortenson, plaintiff, a tenant of Esther McCredie, defendant, filed an action as set forth in his amended complaint, as amended, based on an order of the Chicago Rent Director dated June 8,1951, which was pursuant to section 1895 of the Housing and Rent Act of 1947, as amended, to recover a refund for overcharges of rent which the plaintiff had paid to the defendant from April 1,1949, to July 28,1950. Defendant filed a motion to strike the amended complaint, as amended. The trial court entered an order reserving its ruling on the motion to strike and dismiss and ordered defendant to answer. Thereafter, the court entered an order striking and dismissing the amended complaint, as amended. Plaintiff elected to stand on his amended complaint, as amended, and appealed from the order of dismissal.

The order of dismissal entered by the trial court is general and makes no specific findings as to the grounds upon which the amended complaint, as amended, was dismissed. We must, therefore, consider the points raised by the defendant in her motion.

The amended complaint, as amended, alleges, in substance, an oral lease from two weeks to two weeks between plaintiff and defendant for the first floor of certain premises; that the plaintiff had been a tenant of these premises under the agreement from April 1,1949, to July 28, 1950; that he paid the defendant for said premises a weekly rental of $40 from April 1, 1949, to March 10,1950, and a weekly rental of $35 from March 11, 1950, to July 28, 1950. It further alleges that the premises were never registered by defendant with the Chicago office of the Housing Expediter as required by the Rent Act and Rent Regulations and that on June 8, 1951, the Chicago Area Rent Director issued his order determining the maximum rental of the premises at $23 per week, which was effective back to April 1,1949. Plaintiff alleges that defendant did not refund the back rental overcharges as provided in the Rent Director’s order and he is, therefore, entitled to treble damages in the sum of $3,219 and reasonable attorney’s fees. Attached to the complaint is a copy of the order of the rent director fixing said maximum weekly rental.

Defendant contends that the complaint did not establish a landlord and tenant relationship. We have examined the complaint and are satisfied that the allegations are sufficient to establish such relationship.

Defendant further contends that plaintiff should have pleaded the rent regulations. This is not necessary. The court has the power to take judicial notice of rent regulations for housing issued under the Act which are reported in the federal register. 222 East Chestnut Street Corp. v. Murphy, 325 Ill. App. 392, 401; Elfenbein v. Giannakas, 350 Ill. App. 389, 392.

Defendant further contends that in the order of the Housing Expediter there is no finding of a landlord and tenant relationship. The order shows the plaintiff as the tenant and the defendant as the landlord, and then sets the maximum rental. In our opinion this is sufficient.

Defendant next contends that the cause of action is barred because it was not brought within one year from the date of the last accepted rent payment. This has no merit. The Supreme Court of the United States in Woods v. Stone, 333 U. S. 472, early laid down the law on this question. This court in the case of Woods v. Murray, 336 Ill. App. 181, adopted the decision in Woods v. Stone, holding that the one-year statute of limitations commenced to run on the date when the landlord refused to obey the order directing the refund. The refund order was issued on June 8, 1951, and plaintiff filed his action on Sept. 26, 1951, which was well within the one year as interpreted by Woods v. Murray.

Defendant’s next contention is that section 1895 of the Rent Act does not authorize retroactive refund orders. The applicable portion of section 1895 reads as follows:

“(c) Suit to recover liquidated damages as provided in this section may be brought in any Federal Court of competent jurisdiction regardless of the amount involved, or in any State or Territorial Court of competent jurisdiction, within one year after the date of violation: . . . .”

In order to give the congressional purpose its fullest impact upon the forces of inflation, the great majority of courts follow the view that the term “violation,” as found in that section, must refer to the landlord’s breach of his duty to refund under the order and cannot refer to each overcharge received by the landlord. Rauer v. Wexler (C. C. A. 3rd), 167 F.2d 817; United States v. Smith (W. D. Pa.), 95 F. Supp. 622; United States v. Natale (D. Conn.), 100 F. Supp. 82; Demosse v. Shimmel, 12 N. J. Super. 356, 79 A.2d 508; Cooper v. Jeter, 17 N. J. Super. 180, 85 A.2d 555; Henneman v. Vaughan (C. P. Ohio), 97 N.E.2d 725. Reason and logic allow but one conclusion, that if section 1895 is to have any force and effect it must authorize a retroactive refund order. Without it the tenant has no cause of action. Rauer v. Wexler (C. C. A. 3rd), supra; United States v. Smith (W. D. Pa.), supra; United States v. Natale (D. Conn.), supra; Demosse v. Shimmel, supra; Cooper v. Jeter, supra; Penner v. Geller, 193 Misc. 821, 87 N.Y.S.2d 249. The cases cited by defendant in support of her contention represent a small minority view and this court can find no sound reason to follow them as precedent.

The appellee’s final contention is that section 83 (b) of the Housing and Rent Regulations does not authorize the retroactive order unless “issued in a proceeding commenced by the Director within three months after the date of the filing of such registration statement.” This argument is specious and not based upon precedent. No order could have issued until the defendant registered with the Area Rent Office or until the tenant himself complained of the overcharge. The burden is placed upon the landlord to register pursuant to the Act and Regulations. There could have been no proceeding until such registration by the landlord. To require the tenant to initiate the proceedings, or the Director, would utterly defeat the purpose of the Act. Lutz v. Bender, 340 Ill. App. 120. To follow defendant’s contention would make an absurdity of section 83 (b). We would put a premium on failing to register by a warped and narrow interpretation of the provision, and we would he ignoring the common-sense viewpoint of the section. This we will not do.

The judgment of the trial court dismissing the amended complaint, as amended, is reversed with directions that the trial of the case proceed pursuant to the issues raised by the answer to the amended complaint, as amended, and such further proceedings be had as may be necessary and appropriate.

Judgment reversed and cause remanded with directions.

Schwartz, P. J. and Tuohy, J., concur.


author: Mr. Presiding Justice Niemeyer

text:
    Lester S. Abelson et al., Trading as Stuart and Williams, a Copartnership, Appellees, v. Steffke Freight Company, Appellant.
    Gen. No. 46,145.
    Opinion filed March 8, 1954.
    Rehearing denied March 22, 1954.
    Released for publication March 24, 1954.

      Charles Q-. Martin, of CMcago, for appellant.
    D’Ancona, Pplaum, Wyatt & Riskind, of CMcago, for appellee; Edgar Bernhard, of CMcago, of counsel.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

Defendant appeals from an order overruling and denying its motion to vacate a default judgment and to dismiss the garnishment proceeding instituted on the judgment.

Plaintiff brought suit alleging the wrongful delivery of a shipment of merchandise by defendant, a motor-freight carrier, without collecting a sight draft for $1,492. Service was had on defendant, as shown by the sworn return of the bailiff of the court, “by leaving a copy thereof . . . with John Doe-Agent who refused to give true name of said defendant found in the City of Chicago.” Judgment by default for $1,492 was entered October 22, 1951; an execution, issued January 18, 1952, was returned April 18, 1952 no property found and no part satisfied, demand having been made February 14, 1952 by delivering a copy of the execution to “John Doe-Agent, who refused to give true name of said corporation.” A garnishment suit on the judgment was started August 29, 1952 and service had on the garnishee. Its time to answer was extended ten- days from September 12,1952. Before the expiration of this period defendant filed its sworn petition, and later a sworn amendment to the petition, in which it alleged that at the time of the entry of the judgment it had no notice or knowledge of the pendency of plaintiff’s suit; that Stanley Steffke was the registered agent of defendant, and at all times on the dates of the purported service of the summons and execution was located and to be found at 3260 S. Damen Avenue, the office of defendant in Chicago; that neither the summons nor execution was served upon an officer, the registered agent of defendant, or any other agent.

A defense to plaintiff’s suit is stated in the petition. Defendant asked that the judgment by default be vacated and opened up; that the garnishment suit be dismissed ; that the petition and amendment thereto stand as defendant’s affidavit of defense and that the cause be set for trial. Plaintiff’s answer to the petition sets up no facts relating to the alleged service of the summons or execution. It asserts that the petition should be dismissed because the allegations as to the want of service are conclusions without a statement of facts to support them; that defendant has not shown diligence, and that on the 31st day after the entry of the judgment defendant was notified that the judgment had been entered. Without hearing any evidence the court entered the orders appealed from. It apparently adopted plaintiff’s position in this court that after 30 days from the entry of the judgment the return on the summons is conclusive as between the parties.

We consider defendant’s petition sufficient to entitle it to a full hearing on the merits as to whether the summons and execution were in fact served on its agent. The cases cited by plaintiff as to the conclusiveness of the return of service of process between the parties are not applicable to the facts presented on this record. The general rule is stated in 42 Am. Jur., Process, sec. 129, as follows:

“The rule that the officer’s return of process is conclusive as to parties and privies does not apply to statements or recitals or facts or matters which need not be returned, or to those which are not presumptively within the personal knowledge of the officer, but upon which he must act from information obtained from others, and hence about which he was liable to be misinformed,

such facts, for instance, as where ‘the usual place of residence’ of the defendant is located, or whether the defendant was agent for a corporation.”

This rule was adopted in Illinois as early as 1859 in Mineral Point Railroad Co. v. Keep, 22 Ill. 9. Keep brought an action of debt on two contracts, and for warrants drawn upon the treasurer of defendant; he also filed the common counts; service of summons was had by leaving a copy with J. E. Booth, agent, and J. W. Dexter, conductor of defendant, “the President of said company not residing in the State.” Attachment was sued out in aid and levied upon locomotives, railroad cars, a lathe and shop of defendant, and a copy of the attachment writ left with Booth as agent of defendant. A plea in abatement to the affidavit and writ of attachment was filed. A demurrer to the plea was sustained. Defendant then moved to set aside the sheriff’s return on the summons, supporting its motion by affidavits of Dexter, Booth and Johnson that Dexter and Booth were not and had not ever been agents, conductors, or in any way employees of the company. The court ruled that the testimony was inadmissible because the return could not be contradicted. On review on writ of error the Supreme Court, speaking through Mr. Justice Breese, said (p. 16):

“We are not inclined to think the return of the officer, as to the fact of agency, when a corporation is sued, should be conclusive. Great injustice and ruin to incorporated companies might be the consequence, had the officer the undisputed power to select any person he might choose, as the agent of a company sued, and serve the process upon him. That he was the agent must be held to be a fact open to the country. An officer’s return is not conclusive of all the facts stated in it, as where he returns upon a fi. fa., ‘money made and paid to the plaintiff,’ the payment is a fact which may be contested. So in this case, the fact that J. R. Booth was the agent and Dexter the conductor, is not conclusively established by the return; it can be contested. . . . When a party sues an incorporated company whose president and whose place of doing business is out of the county where suit is brought, and causes his process to be served on one whom he chooses to consider the agent of the company, it is no hardship to require him to prove such person was the agent.”

This rule has never been departed from. In Mahler v. Segel, 333 Ill. App. 138, this court held that a return is not proof that the place of service was the “usual place of defendant’s abode,” citing with other eases, Trust Co. of Chicago v. Sutherland Hotel Co., 389 Ill. 67, 73, wherein the court said: “The statement in the sheriff’s return, that Kafkie was the agent of the corporation, cannot be accepted as proof of the agency.” In Cannon v. Time, Inc. (C. C. A. 4th Cir.), 115 F.2d 423, the contention that the sheriff’s return of service on the agent of a corporation could not be attacked, was disposed of by Mr. Justice Parker in the following language:

“Little need be said as to plaintiff’s contention that the officer’s return is conclusive. The statement in the return, that the person served was an agent of the defendants, was nothing more than the officer’s conclusion; and the contention, that the court is bound by such conclusion on a motion to quash the return, is so manifestly unsound as not to warrant discussion. See Earle v. McVeigh, 91 U. S. 503, 23 L. Ed. 398; Tignor v. Balfour & Co., supra; Bank of Bristol v. Ashworth, 122 Va. 170, 99 S. E. 469. Many troublesome jurisdictional questions could be solved very easily if the return of the process officer were accepted as conclusive. The courts, however, may not thus abdicate the judicial function to the server of process.”

This court in In re Estate of Young, 346 Ill. App. 257, 270 (affirmed in 414 Ill. 525, 536), held that parol evidence is admissible, on motion to vacate a judgment for want of notice and opportunity to be heard made more than 30 days after the entry of the judgment. If, as defendant contends, service was not had on a proper agent of the corporation, the judgment entered herein was void. Defendant was not bound to take notice of it or move to set it aside until steps were taken to enforce it. Plaintiff’s answer to the petition shows that it refrained from giving notice of the judgment until 31 days after its entry, at a time when, according to plaintiff’s contention, no steps could be taken to set it aside.

The orders appealed from are reversed. The cause is remanded with directions to hear evidence as to the service of the summons, and for such other action as may be necessary or desirable in conformity with this opinion.

Reversed and remanded with directions.

Friend and Burke, JJ., concur.