6 N.E.2d 131 | Ill. | 1936
On the petition of the Attorney General we granted leave to appeal from a judgment of the Appellate Court for the First District which had dismissed an appeal from the circuit court of Cook county. The original action in the circuit court was one in chancery instituted by the Attorney General against William Hale Thompson, the Waterway and Flood Control Association of the Mississippi Valley, a corporation, and others, to protect and preserve a certain fund of money donated in 1927 for the use and benefit of flood sufferers in the Mississippi valley, and to require defendants to account for and restore as a public charitable trust the portion of the funds not used for the original purpose. The circuit court decreed, among other things, that a total of $72,794.79 was properly disbursed from the funds collected, under the cy pres doctrine, and it was only that portion of the decree which the Attorney General complained of as erroneous. The circuit court also required the defendant Thompson to turn over the sum of $31,131.17 to the American National Red Cross, "without *151 prejudice to the right of said complainant, Otto Kerner, as Attorney General of the State of Illinois, to appeal from any part or portion of this decree." In the Appellate Court the defendants filed a motion to dismiss the appeal, and in support thereof showed that they had complied with the provisions of the decree requiring them to turn over the sum of $31,131.17 to the Red Cross. Counter-suggestions to the motion to dismiss were filed by the Attorney General, to the general effect that the findings and decretal order of the circuit court were severable. The Appellate Court treated the motion as in the nature of a plea of a release of errors, and dismissed the proceedings for the principal reason that the plaintiff had accepted the benefits of a part of the decree, and after receiving from the defendants the amount found to be due upon an accounting could not thereafter prosecute a writ of error or take an appeal to reverse the remainder of the decree. The nature of the appeal and the questions involved preclude us from deciding the case upon its merits.
We must first consider the challenge to our jurisdiction. While the question of jurisdiction of the courts to take and determine this cause was raised by appellee Thompson for the first time upon the appearance of the cause in this court, the right to raise a jurisdictional point at any stage of the proceeding is unquestioned. (People v. Old Portage Park District,
The first argument of appellee Thompson is equivalent to a contention that he was simply handling a private charitable trust. The record will not sustain such a position, as it is conclusively shown that a public charitable use was established. This court had occasion to define a public charity in Grand Lodge
v. Board of Review,
The second point made by appellee Thompson is likewise untenable. The fact that the money was not entirely derived from contributions made by citizens of this State or the relief dispensed was not confined entirely within the bounds of Illinois is not controlling. The appeal for funds was generated and spread in Illinois by Thompson by virtue of his office as mayor and through the medium of Chicago newspapers and radio stations. The denominated trustee was not only a resident and citizen of Illinois but was an officeholder of importance, and the prestige of his office lent force and conviction to his appeal for funds. Appellee Thompson continued to reside in Illinois as a citizen during the time the funds came in and were dispensed. The Waterway and Flood Control Association was a corporation organized under the laws of Illinois, with its main office located in Thompson's office in the city hall of Chicago. Breen, who is the attorney for Thompson in this action, was one of the incorporators. The record shows that all the funds were deposited in and disbursed from Illinois depositaries on the orders of Thompson. The record does not show what percentage of the funds came from outside of the State, but we do not think the source of the contributions or the geographical distribution thereof is material, since the trustee's residence, the situs of the funds and the office of the trustee were all in this State. These facts were sufficient to give the State the necessary interest to support the action, since the fund was a public charitable use applicable to the public generally. The right of the State, acting through the Attorney General, to interfere in the handling of a public charitable use to prevent or correct abuses cannot be denied. Stowell v. Prentiss,
We come, now, to a consideration of the action of the Appellate Court in treating the motion to dismiss as a plea of a release of errors. Pleas are still in effect under the Civil Practice act. No rule has been adopted by this court and no statute has been enacted to dispense with pleas or to provide that in any event a plea of release of errors can be made by motion. As a matter of fact, a motion to dismiss is entirely different from, and inconsistent with, a plea of release of errors. Where a plea of release of errors is filed and is held insufficient the judgment or decree must be reversed. (Great Northern Refining Co. v.Jeffris Co.
The record further shows that by its own terms the decree appealed from was severable. When a decree is severable and independent matters are disposed of therein, an appeal can be taken from a severable portion thereof or from that part dealing with a particular subject. (Hoier v. Kaplan,
The appeal in this case was taken only from that part of the decree about which there was any dispute, and that portion was specified in the notice of appeal. Here the decree was not only divisible in itself but was further divided by the trial court, which provided that the payment of the sum held in the bank "shall be without prejudice to the right of said complainant * * * to appeal from any part or portion of this decree." No appeal was taken by either party from other portions and no cross-errors were assigned by defendants. The remainder of the decree was therefore definitely settled and disposed of. The fact that the suit was for an accounting cannot change the rule, as no exceptions are to be found in the rule to prevent its application alike to all kinds of actions. Justice could not easily be served if the acceptance of benefits by a third party, who was not a party to the suit except as made so by the decree, could preclude an appeal from another portion of the decree by its operation as a release of errors. The payment of the check in this case to the Red Cross, *156 and its acceptance by that corporation as trustee, could not have released errors, because the money then paid is now, and at all times since its payment has been, under the direction and control of the court. The acceptance of benefits in a part of disputed funds by a trustee newly appointed by the court, who was not a party to the action, cannot bind either the Attorney General or the People in this case, and the right to maintain an appeal as to another portion of the fund remains the same as if all the money had been retained by the defendants.
The Appellate Court erred in treating the motion to dismiss as a plea of release of errors and in denying appellant the right to appeal from the specified portion of the decree.
The judgment of the Appellate Court is therefore reversed and the cause is remanded to that court, with directions to overrule the motion to dismiss and to consider the case on its merits.
Reversed and remanded, with directions.