Heinrich v. Harrigan

Citation126 N.E. 131,291 Ill. 294
Decision Date18 February 1920
Docket NumberNo. 13023.,13023.
PartiesHEINRICH, County Clerk, v. HARRIGAN.
CourtSupreme Court of Illinois
OPINION TEXT STARTS HERE

Action in assumpsit by Christopher Harrigan, individually, against Oscar Heinrich, County Clerk, in which the latter filed a bill of interpleader against Christopher Harrigan and Peoria County. From the decree the County Clerk appeals.

Decree modified and affirmed.

See, also, 288 Ill. 170, 123 N. E. 309.

Appeal from Circuit Court, Peoria County; John M. Niehaus, judge.

C. E. McNemar, State's Atty., of Peoria (Dan R. Sheen, of Peoria, of counsel), for appellant.

Mansfield & Cowan, of Peoria, for appellee.

FARMER, J.

This case concerns a fund of something over $1,500 which is in the custody of the clerk of the circuit court of Peoria county. The money is the proceeds of the redemption of lands from tax sales; the certificates of sales for taxes being the property of Michael Harrigan in his lifetime. After Harrigan's death they were claimed by his brother, Christopher, individually. At the time of his death Michael Harrigan was liable for unpaid taxes for ten years, amounting to over $5,000, and the county clerk, by direction of the county of Peoria, sought to apply the redemption money in his hands on payment of taxes. Christopher and Kate Harrigan, his sister, were executors of the will of Michael Harrigan. Christopher brought an action of assumpsit in his individual capacity against the county clerk for the redemption money, whereupon the county clerk filed a bill of interpleader, making Christopher and Peoria county defendants, and prayed they be required to interplead and settle the right to said fund and that Christopher be enjoined from prosecuting his action of assumpsit. By order of the court the money in dispute was deposited with the clerk of the circuit court pending a hearing and decision. The executors did not inventory the tax certificates and redemption money as property of the estate of Michael Harrigan, and a citation was issued by the probate court commanding them to show cause why they should not so inventory it, and on a hearing the court found it was the property of the estate and ordered it so inventoried. The executors in their representative capacity appealed from that order to the circuit court, and by agreement that cause and the interpleader were considered and tried together. At the time of the hearing Kate Harrigan was dead, leaving Christopher sole executor. In his answer to the interpleader bill he claimed the money and tax certificates in his individual capacity and disclaimed them as executor. Such proceedings were had that the court found and decreed that neither Christopher Harrigan nor the county of Peoria was entitled to the money in that action, and that the interpleader case should be continued until the legal owner should appear and ask for the money, and dismissed the county of Peoria from the suit without prejudice to its right to prosecute its claim for taxes probated in and allowed by the probate court and then pending on appeal in the circuit court. The county treasurer had asked to intervene in the interpleader suit but was denied leave, and he and Peoria county appealed to this court, where the judgment was reversed in part and the cause remanded, with directions. Heinrich v. Harrigan, 288 Ill. 170, 123 N. E. 309. In so far as the decree found the money and property belonged to the estate of Michael Harrigan and not to Christopher it was affirmed, but this court held it should be turned over to the executors of the estate of Michael Harrigan, and as it appeared from the record that Christopher was sole executor, the circuit clerk was directed to pay the money in his hands ‘to Christopher Harrigan as sole executor, and that said executor hold said funds as the property of the estate of Michael Harrigan, to be paid out by him in due course of administration.’

The opinion of the court was filed at the April term, 1919, and a rehearing denied in June, 1919. The case was reinstated in the circuit court and came up for hearing July 14, 1919. It appears the probate court, on a petition filed praying the removal of Christopher Harrigan, entered an order October 4, 1918, removing him and appointing E. J. Galbraith, the public administrator, administrator with the will annexed, and he qualified and letters issued to him October 7th. On the 16th October, Christopher prayed and was allowed an appeal from that order to the circuit court upon his giving bond in the sum of $15,000, with surety to be approved by the court. On the 24th of October, he filed the appeal bond and the same was approved. The cause was heard de novo in the circuit court on June 21, 1919, and a decree was entered affirming the judgment of the probate court removing Christopher Harrigan from the office of executor and appointing Galbraith administrator with the will annexed. Thereupon Christopher Harrigan, as executor and individually, prayed and was allowed an appeal to the Appellate Court for the Second District upon his giving bond in the sum of $30,000. He filed the bond, which was approved, and the case is now pending in the Appellate Court. When this case came on for hearing after remandment, Christopher Harrigan as executor and Christopher Harrigan individually moved the court for an order that the clerk pay the money in his hands to Christopher Harrigan, execu...

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