143 Ill. App. 530 | Ill. App. Ct. | 1908
delivered the opinion of the court.
The first general contention on behalf of appellants is that the nature of the suit and the proceedings in Colehour v. Boby and the receivership therein were of such a character that neither Bass, nor Geer, as executor, etc., could have or acquire any standing in the case for relief, and therefore the orders or decrees giving them relief were and are erroneous.
In support of this position much of the argument of counsel for appellants is based on matters which must be regarded as settled adversely to appellants’ contentions by the decrees of June 12, 1890, and of January 30, 1896, which have been affirmed by the Supreme Court. Roby v. Colehour, 135 Ill. 300, and Roby v. Title G. & T. Co., 166 id., 336. These decrees are binding adjudications under which the title and possession of the property involved became vested in the receiver. The Colehours and Roby were adjudged partners in the net profits of the venture and their proportionate interests in the profits and also their rights inter se were settled. Before the decrees now before us for review were entered, it had also been adjudged necessary in order to adjust the rights of the parties to sell and convert into money the entire property in the receiver’s hands. The propriety of the appointment of the receiver and the powers conferred upon the receiver are settled, we think, by those decrees, whether all the questions upon-those decrees were raised in the Supreme Court or not, on the appeals prosecuted therefrom. In our opinion the original suits were brought to settle a partnership, and under the pleadings an accounting was necessary for that purpose. The court had the power to appoint the receiver and order the parties to convey their titles to the lands in controversy to the receiver as a necessary step to preserve and protect the partnership assets and to a proper administration of the partnership affairs. The receiver was not a mere trustee only with the powers limited by the order of appointment, but it was the hand of the court in the practical settlement of the controversy before the court; and the powers of the receiver might be enlarged or withdrawn as the exigencies of the situation demanded, in working out the equities of the case. These appeals, and this writ of error, do not bring before us any questions of that nature. The relief asked for by the appellees and the defendant in error was subordinate to such orders and proceedings, and in recognition of their validity, and the relief granted was of the character asked by the petitions. All errors therefore assigned upon other orders or decrees than those before us must be disregarded, and likewise all arguments based thereon.
Regarding the decree of June 25, 1906, the record shows that Bass was a master in chancery of the Oircuit Court in which the litigation was pending’, and that the fees charged and allowed were incurred by the parties for the master’s services under orders of reference. The items allowed were not at the time they were allowed questioned by Charles W. Colehour and William H. Colehour, at whose instance and request, as well as at the request of Bass, they were ordered paid out of the Colehour fund in the receiver’s hands. It appears that the master’s services were performed and his fees earned in the litigation, and with reference to the subject of the litigation or fund which was in the possession of the court for administration and settlement. We think the court had the power to protect its officers and order the fees to be paid out of the funds named in the decree. 2 Daniels Ch. Pr., pars. 378 and 1380; 2 Beach Modern Eq. Jur. 979, sec. 1013. Courts of equity have a-large discretion in the matter of costs, and frequently give costs in intermediate stages of a case without waiting for a final decree. 11 Cyc. 98; Avery v. Wilson, 20 Fed. R. 856.
The objection that the petition of Bass is informal is without merit, for no petition was necessary. A mere motion was sufficient.
In our opinion, the decree of June 25, 1906, is free from material error and must be affirmed.
The decree of April 30, 1906, in No. 13801, in favor of defendant in error Ira J. Geer, executor, etc., is based on a claim for services rendered and loans to the Colehours guaranteed by William C. Goudy, deceased, in his lifetime, in regard to the lands involved in this cause, and other lands. Mr. Goudy as solicitor for the Colehours procured the decree of June 12, 1890, in favor of the Colehours and against Boby declaring that the lands and lots involved in the litigation were unlawfully held by Boby, directing an accounting and .appointing a receiver to take title to the property and to hold and sell it, etc.
The trust estate was liable to be lost by the expiration of redemption under foreclosure. At the last moment and under the most difficult circumstances Mr. Goudy procured loans of about $146,000, $110,000 of which "was secured by receiver’s certificates, the payment of which was personally guaranteed by him. Roby v. T. G. & T. Co., supra.
It appears that in June, 1891, Mr. Goudy and the Colehours made a settlement of the amounts then due to Mr. Goudy from the Colehours, and they gave him three written instruments dated June 30, 1891, acknowledging the indebtedness to him and assigning to him the amounts thereof out of the moneys to become due to the Colehours from the. sale of the lands by the receiver. These three instruments are shown by the exhibits attached to' the petition of Geer designated as “Exhibit A,” “Exhibit B,” and “Exhibit C,” respectively in the record. The last one, “Exhibit C,” is different in form from the others and does not contain formal words of assignment, but it contains an acknowledgment of the indebtedness and an agreement to pay it out of the fund in question and authorizes and consents to. the entry of such an order by the court whenever Goudy shall apply for the same. We are of the opinion that it was an equitable assignment by the Colehours of the amount therein named out of their shares of the estate in the receiver’s hands.
The record shows that Mr, Goudy continued to render services to the Colehours until his death, April 27,1893, and that the Colehours at that time owed him further moneys for legal services and disbursements. On September 19, 1893, the Colehours executed an assignment to the executors of Mr. Goudy for $1,622, to be paid out of moneys due to them arising from the sales of lands by the receiver, with interest thereon at five per cent. The assignment contained their consent to the entry of an order in the case for the payment of the money by the receiver.
On June 30, the first three instruments above named were exhibited to the receiver, and on December 13, 1893, the fourth one of said instruments was exhibited to the receiver. Copies of said instruments were also furnished the receiver, and the record shows the admission by the receiver of such copies.
The intervening petition of Geer as executor is based upon the instruments above enumerated, and sets up the death of Mr. Goudy, the probate of his will, the death of the other executor, the death of William H. Colehour and the probate of his will devising his estate to Carrie M. Colehour, his widow, and the amounts due on said instruments, and prays for an order or decree directing the reeéiver to pay out of any proceeds of the trust estate belonging to the Coleliours the moneys mentioned in said instruments after payment by it of costs and moneys borrowed by the receiver.
Answers were filed by the receiver and Charles W. Colehour, and the defaults of Carrie M. Colehour and Eoby were entered after said respondents were ruled to answer. Proof was made in open court of the averments of the petition, and the court allowed the claims set up therein, and thereupon entered the decree sought to be reversed by this writ of error.
We are of the opinion that the instruments attached to the intervening petition as exhibits and executed by the Colehours to Goudy and his executor were equitable assignments of funds in the control of the court through its receiver or of funds to be derived from the sale of property in the control of the court, which gave Geer, as executor, the right to intervene in the case. No particular form of words is necessary in order to constitute an assignment valid in equity. Any instrument is sufficient which shows an intention of transferring or appropriating a fund or chose in action to the assignee for a valuable consideration to con-. stitute an assignment in equity. Am. Eng. Ency. of Law, Vol. 2, 1055; 2 Story’s Eq. Jur. (12 Ed.) p. 266; Savage v. Gregg, 150 Ill. 161.
A person having an equitable assignment of a fund which is in control of the court will be permitted, under the modern equity practice, to file an intervening petition in the'cause wherein the court has control of the fund and set up his interest therein, and his rights will be protected by the court. Marsh v. Green, 79 Ill. 385; Phillips v. Edsall, 127 id. 535. We think Geer, as executor, etc., had a right to exhibit his petition, and that the court did not err in protecting and enforcing the clear intent and effect of the instruments upon which the petition is based. Gage v. Cameron, 212 Ill. 171; Wightman v. Taryan Co., 217 id., 376.
The recitals of the record showing jurisdiction over Eoby and Carrie M. Colehour are sufficient and conclusive. ’ The order of revivor on the death of William H. Colehour adjudged that the suit be revived and continued in the name of Carrie M. Colehour, the Widow and sole devisee, and Carrie Colehour and Edith Colehour, “they standing in said suit in the name and stead of said William H. Colehour, according to their respective interests and rights in and to the estate of said William H. Colehour or touching the same.” Carrie Colehour and Edith Colehour were not interested in the property, and therefore were not necessary parties to the petition.
The motion of Eoby on April 25, 1906, to vacate the default entered July 21, .1900, was not accompanied with an answer; and the affidavits in support. of the motion failed to show the necessary vigilance on his part. Burge v. Burge, 88 Ill. 164; Dunn v. Keigan, 3 Scam., 297.
The amendment of “Exhibit B” attached to the petition, made at the* hearing by leave of court, by simply correcting a clerical error in the figures making the date 1885 instead of 1895 as recited in the exhibit, did not entitle the parties to file an answer subsequently when the draft of the decree was presented to the court for entry. No new matter was presented by the amendment. No new issue was raised. It was within the reasonable discretion of the court under the circumstances to allow or refuse leave to answer, and we think the court did not err in refusing leave to answer. Mosier v. Knox College, 32 Ill. 155; Farwell v. Meyer, 35 id., 41; Gordon v. Reynolds, 114 id., 118; Booth v. Wiley, 102 id., 84. The decree in No. 13801 is free from material error, we think, and must be affirmed.
This brings us to the decree of October 24, 1906, from which Charles W. Colehour and Roby prosecute an appeal in No. 13611.
The record shows that after the above decrees had been entered in favor of Bass, and Geer, as executor, Mr. Boby, without notice to anyone, on August 23, 1906, went ■ before one of the judges of the Circuit Court, sitting during the summer vacation period to hear emergency matters, and procured to be entered the order of that date shown in the record.
We think the decree of August 23, 1906, was inadvertently entered. It seriously affected the rights and interests of Bass, and Geer, as executor, without any notice to them or opportunity to be heard. As soon as the intervening petitioners Bass and Geer learned of the entry of the decree, and at the same term of court, they gave notice and entered a motion to vacate the decree. The motion was entered of record and was continued to October 8, 1906. On that day it was further continued to October 11, 1906, and then was again continued to October 24, 1906, when upon full hearing the decree of that date was entered, modifying the decree of August 23, 1906. In our opinion the decree of October 24, 1906, appealed from, was just and proper, and it is affirmed.
The decree of June 25, 1906, in No. 13244, and the decree of April 30, 1906, in No. 13801, and the decree of October 24, 1906, in No. 13611, are each affirmed.
Affirmed.
