H.B. Claflin Co. v. Kelley

• Decision Date: 08 November 1897
• Citation: 48 N.E. 176,169 Ill. 20
• Parties: H. B. CLAFLIN CO. v. KELLEY.
• Court: Illinois Supreme Court

169 Ill. 20

48 N.E. 176

H. B. CLAFLIN CO.

v.KELLEY.

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from appellate court, First district.

Petition by the H. B. Claflin Company against Charles B. Kelley, assignee of the Imperial Hotel Company, for leave to file a claim against said insolvent. A demurrer to the amended petition was sustained, and the petition dismissed, and from a judgment of affirmance entered in the appellate court (66 Ill. App. 348) petitioner appeals. Affirmed.

James A. Fullenwider, for appellant.

Edward S. Elliott (Aldrich, Reed, Brown & Allen, of counsel), for appellee.

During the winter and spring of 1893, the Imperial Hotel Company purchased certain ground near the north end of Jackson Park in Chicago, and erected thereon a building, called the ‘Windermere Hotel.’ Before the completion of the building, it contracted with appellant for a large amount of goods for furnishing the hotel ready for use during the World's Fair. The goods were shipped, and some of them began to arrive before May 20, 1893, but before all the goods were delivered the corporation A. C. Mills & Co. was organized to operate the hotel under a lease from the Imperial Hotel Company, and all of the furnishings that had been delivered were transferred to A. C. Mills & Co., and all the goods that arrived thereafter, though consigned to the hotel company, were received and used by A. C. Mills & Co., the transfer being the result of an agreement between the two companies. The hotel failed, and in August, 1893, W. G. Stevens was appointed receiver for both companies, and took possession, and ran the hotel. Thereafter, on October 17, 1893, both companies, their offices being the same, executed deeds of voluntary assignment to Charles B. Kelley. The assignee gave bonds in each assignment, and on April 30, 1894, reported to the county court that he had taken possession of the estates of the insolvent subject to the rights of the said receiver; and that on January 6, 1894, he had published notice to creditors, and mailed copies of such notice to such creditors, including appellant, notifying them to present their claims on or before April 6, 1894, as required by law. The assignee also afterward reported to the court lists of all creditors who had filed their claims within the time limited, as well as of those who had filed their claims after such date, but neither of these lists contained the name of appellant. These reports were approved by the court, and an order made directing the sale of the assets of the companies. Sale was made, and confirmed by the court. The assignee filed his inventories March 21, 1894. The appellant contended that it had received no notice of the assignments. However, it appeared that on October 30, 1893, a few days after the assignments, the appellant filed a petition in the county court in the case of A. C. Mills & Co., stating that it was a creditor, and asked for a citation against the officers of A. C. Mills & Co., requiring them to appear, and be examined as to the extent and value of the estate of their company. On February 10, 1894, appellant began suit in the superior court of Cook county against both the Imperial Hotel Company and A. C. Mills & Co. upon the indebtedness due it for the goods sold as above. Both companies filed separate pleas of the general issue with affidavit of complete defense, under oath of J. H. Defrees, their president. Appellant recovered judgment July 27, 1894, against both companies jointly, for $26,487.35. They took the case on appeal to the appellate court, and, from its judgment of affirmance, appealed to this court. Appellant did not file any claim with the assignee, but on May 10, 1894, filed its petitions in the assignment cases, setting forth its claims, the suit that it had brought, and the defense that had been made. On November 6, 1895, it filed its amended petitions, setting forth the recovery of the judgment, its affirmance by the appellate court, and its pendency in the supreme court, and asked for leave to file its claim with the assignee, and share in all of...