124 Ill. App. 300 | Ill. App. Ct. | 1905
delivered the opinion of the court.
The questions presented are raised solely by the answers to the bill of interpleader. It is contended in behalf of appellant that the only question is whether or not a change of beneficiary had taken place at the time of the death of the assured, that there was no such change and that the fund paid into court as proceeds of the policy belonged to the husband of the assured, Bronislaw F. Strzyzowski, subject to the lien of appellant’s judgment and the garnishment proceedings.
There is a motion by appellees’ counsel to dismiss the appeal and it is argued that appellant Max Gross has not supported his answer by proper proofs, is not prejudiced by the decree and cannot assign errors upon it. He was, however, made party defendant and filed his answer setting up a judgment and the garnishment proceedings under which he claims an interest in the fund. He is the only one who has perfected an appeal from the decree and filed an appeal bond. He is therefore the only one who can assign errors and that only in his own behalf. The assignments of error must be treated solely as assignments by Max Gross. Norris v. Downing, 196 Ill., 91—94. Inasmuch, however, as he is a party to the suit as an alleged judgment creditor of Bronislaw F. Strzyzowski, claiming a lien upon the latter’s interest in the fund, we perceive no reason why appellant is not entitled to appeal from a decree which finds that prior to the death of the assured a change of beneficiary had occurred by which the son of the assured was substituted as beneficiary in place of the husband Bronislaw F. Strzyzowski, and that hence the latter had no right to any part of the fund. If he had no right to the fund then appellant had none under the alleged judgment against the said husband set up in his answer. Appellant’s claim depended upon the validity of the claim of his alleged judgment debtor as well as upon the existence of a valid judgment in his own behalf against said Bronislaw F. Strzyzowski. In Gibson et al. v. Goldthwaite, 7th Ala., 281, there was an assignment of a fund to one Gibson who transferred a part of it to one Marsh. A bill of interpleader brought both Gibson and Marsh into court, where it was adjudged that as no right to the fund had been transferred to Gibson, he could pass none to Marsh. All parties prosecuted a writ of error. Marsh who stood in a position similar to that of appellant here was treated as a proper party entitled to prosecute the writ of error to the Supreme Court, and the latter affirmed the decree.
While however entitled to prosecute his appeal, appellant did not, so far as we can discover, introduce any evidence ■ whatever at the hearing in the Superior-Court tending to sustain the averments of his answer. We look in vain for any evidence tending to show that he ever obtained any judgment against Bronislaw F. Strzyzowski or that he has any claim of any kind, directly or indirectly, to the fund in. controversy. While therefore the motion to dismiss the appeal must be denied, appellant shows no ground appearing in this record to object to the decree so far ás he is concerned, and he cannot be heard to assign errors for any of the other defendants. Norris v. Downing, supra.
The decree of the Superior Court must be affirmed.
Affirmed.
A petition for rehearing has been filed in which it is urged, first, that since the bill in the nature of interpleader filed by the Mew York Life Insurance Company contains an allegation that suit had been entered against it by Bronislaw F. Strzyzowski for the use of appellant, in which suit the insurance company was named as garnishee, such allegation is to be regarded as stating in legal effect that appellant had obtained judgment against Bronislaw F. Strzyzowski; and second, that since appellant himself by his answer admits that he had recovered such judgment, and that he had commenced a garnishment suit against the insurance company based upon a judgment against Bronislaw F. Strzyzowski, therefore no proof of that alleged averment of the bill was required.
As between appellant and the insurance company the averment referred to as made in the bill may not require proof. Balchen v. Crawford, 1st Sandford’s Chan. Rep., 180; Morrill v. Manhattan L. Ins. Co., 183 Ill., 260-267. The controversy, however, is not- between .the insurance • company and appellant. It is between the defendants to the bill, appellant included, who are by the decree required “to inter’ plead and settle the matters in controversy in this suit between themselves.” Appellant as a defendant could doubtless admit the allegations of the bill as against himself, but it is not apparent how by admissions in his own favor, he can without proof of the matter so admitted bind other defendants whose interest is antagonistic to his own. The real controversy is between said Bronislaw F. Strzyzowski and appellant on the one side and Eddie Strzyzowski, a minor, on the other. The answer filed by said Bronislaw neither admits nor denies the averment of the bill to the effect that suit has been brought by him for appellant’s úse against the insurance company as garnishee. The answer filed in behalf of Eddie Strzyzowski contains no such admission. It “neither admits nor denies any and all other allegations” of the bill not specifically admitted or denied, “but requires strict proof thereof.” One of the allegations, strict proof of which is thus required, is that garnishment proceedings had been brought by Bronislaw F. Strzyzowski against the insurace company for use of appellant. Without such proof there is nothing in the record tending- to sustain the averment of the bill, which appellant claims should he construed as an allegation that he “had obtained a judgment against Bronislaw F. Strzyzowski.”
As to the opinion to which appellant now calls our attention, handed down in Freund v. Freund, 218 Ill., 189, since the foregoing opinion in the case at bar was filed, it is evident in view of what we have said, that it has no application in the ease before us as the record stands. It may be added that the-facts in the case at bar differ materially from those in the Freund case. Bronislaw F. Strzyzowski, the original beneficiary of the policy in controversy, “had refused to surrender the old certificate, so that the insured was unable to deliver it up to the Company when he (she) applied for a new certificate; and in such cases it was held that the assured had done all he (she) could do, and that it would be inequitable to allow a beneficiary to take advantage of his own wrong. FTo such state of facts existed” in the Freund case, from the opinion in which we take the foregoing quotation. (See 218 Ill., 189, on pages 204-5.)
The petition for rehearing will be denied.
