De Korwin v. First National Bank of Chicago

• Decision Date: 22 June 1956
• Docket Number: No. 11649.,11649.
• Citation: 235 F.2d 156
• Parties: Margaret DE KORWIN, etc., Plaintiff, v. The FIRST NATIONAL BANK OF CHICAGO, etc., et al., Defendants. The FIRST NATIONAL BANK OF CHICAGO, Trustee, etc., Petitioner-Appellee, v. Samuel A. RINELLA, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

235 F.2d 156 (1956)

Margaret DE KORWIN, etc., Plaintiff, v. The FIRST NATIONAL BANK OF CHICAGO, etc., et al., Defendants.

The FIRST NATIONAL BANK OF CHICAGO, Trustee, etc., Petitioner-Appellee, v. Samuel A. RINELLA, Respondent-Appellant.

No. 11649.

United States Court of Appeals Seventh Circuit.

June 22, 1956.

Samuel A. Rinella, Myer N. Rosengard, Chicago, Ill., for appellant.

Charles Rivers Aiken, William S. Bodman, Chicago, Ill., for appellee.

Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.

LINDLEY, Circuit Judge.

In an equity proceeding having to do with the trust estate mentioned in De Korwin v. First National Bank of Chicago, 7 Cir., 156 F.2d 858, certiorari denied 329 U.S. 795, 67 S.Ct. 481, 91 L.Ed. 680, affirming, D.C., 84 F.Supp. 918, in 7 Cir., 179 F.2d 347, certiorari denied, Pratt v. De Korwin, 339 U.S. 982, 70 S.Ct. 1025, 94 L.Ed. 1386, and in De Korwin v. First National Bank of Chicago, D.C., 94 F.Supp. 577, the district court, in De Korwin v. First National Bank of Chicago, D.C., 136 F.Supp. 720, restrained Marie Louise Tonella and her attorney, Samuel A. Rinella, from prosecuting, in the Superior Court of Cook County, a partition suit involving the trust property. From that decree, Mrs. Tonella, the litigant, has taken no appeal; her attorney, Rinella, has appealed, and prays that we reverse the order enjoining him from prosecuting the said suit.

In the trial court's decision, D.C., 136 F.Supp. 720, Judge Igoe has supplied a chronicle of the salient events and reached conclusions which we consider unassailable. Consequently, we shall supplement his decision only briefly and only to the extent necessary to dispose of two specific subject matters, the right of Rinella to prosecute his appeal, and the question of whether, in view of the fact that Mrs. Tonella did not appeal, the review now sought has become moot.

While the administration of the trust was pending in the district court, Rinella instituted the partition suit in Mrs. Tonella's behalf in the state court. We think it clear that the complaint was filed without her permission, and that shortly after it was filed she directed Rinella to dismiss it. He refused to do so. Thereupon she appeared in Superior Court with other counsel and obtained an order dismissing her complaint with prejudice. Some 40 days later Rinella on his own account procured an order in the Superior Court reinstating the cause. It was the prosecution of this suit that the district court restrained.

The trial court explored the situation and disposed of it thus, 136 F. Supp. at page 723 of its opinion: "The order of reinstatement procured by respondent Rinella in the Superior Court partition suit, upon which his claims of res judicata, estoppel and laches are based, is void upon its face and is to be disregarded. Apart from the showing that the Superior Court complaint was filed by the respondent Rinella in the name of the respondent Marie Louise Tonella without her `desire or intention to institute that suit' and its commencement was without her `agreement or consent' and was ordered by her to be dismissed shortly after its filing, and putting to one side the clear Illinois rule that properties held in an active trust are not subject to partition along with other invalidities, the order reinstating the partition complaint in the Superior Court entered April 16, 1951, upon application of the respondent Rinella alone, is plainly void on its face in at least two respects. After Rinella had refused to effect a dismissal of the partition suit, Mrs. Tonella appeared before the Superior Court on February 6, 1951, with other counsel and obtained a voluntary dismissal with prejudice of her complaint. On March 19, 1951, more than thirty days after the final decree of dismissal, Rinella presented his own petition to vacate the judgment on the ground that plaintiff, Mrs. Tonella, his former client, was indebted to him for attorney fees and advancements. The Illinois Supreme Court in Illinois Nat. Bank of Springfield v. Gwinn, 390 Ill. 345, at page 352, 61 N.E.2d 249, at page 253, 159 A.L.R. 468, said: `A court of equity has no power to modify, set aside or vacate a final decree after the expiration of thirty days from the date of its rendition, Ill.Rev.Stat., ch. 77, pars. 83 and 84'. To the same effect, see: Barnard v. Michael, 392 Ill. 130, 135, 63 N.E.2d 858. An equally settled Illinois doctrine is that where a plaintiff voluntarily dismisses her suit the court lacks jurisdiction to reinstate the action even when applied for the very next day unless the order of dismissal expressly grants leave to make such an application. The Superior Court judgment not only omitted leave to move for its reinstatment but expressly precluded such a right by specifically directing that the dismissal be `with prejudice'. In People ex rel. Waite v. Bristow, 391 Ill. 101, at page 108, 62 N.E.2d 545, at page 549, the Court said: `Where the plaintiff voluntarily dismisses his suit the court has no power to set aside the order of dismissal and reinstate the cause, unless at the time the nonsuit is...